IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) Appeal from the Superior Court in Maricopa County

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1 NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. KEITH THOMAS PARKER, Appellant. ) ) ) ) ) ) ) ) ) 1 CA-CR DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR DT The Honorable Edward O. Burke, Judge AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Capital Litigation/Criminal Appeals Section Attorneys for Appellee Thomas A. Gorman, Attorney at Law Attorney for Appellant Keith Thomas Parker Appellant in propria persona Phoenix Sedona San Luis K E S S L E R, Judge 1 Keith Thomas Parker ( Parker ) appeals his conviction for three dangerous felonies: second degree murder, attempted armed robbery, and aggravated assault. Parker s counsel filed an appeal brief pursuant to Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969).

2 Parker s counsel found no arguable question of law and requested that this court search the record for fundamental error. Parker filed a pro per supplemental brief raising multiple issues. After searching the record for fundamental error, we find none. For the following reasons, we affirm Parker s conviction and sentence. FACTUAL AND PROCEDURAL HISTORY 2 On June 29, 2005, G. Lopez ( Lopez ) was shot and killed at the Glendale house he shared with his girlfriend, her five children, and her son s friend. That afternoon, Parker and another man visited Lopez s house where they apparently were going to buy approximately one hundred pounds of marijuana from Lopez. 1 The three men met in Lopez s kitchen. Lopez s friend, D.W., was also in the kitchen. Other people in the house included Lopez s girlfriend s son, M.M., his friend, P.G., and an associate of Lopez s, E.T.. 3 D.W. testified that there were two large bundles of something that smelled like marijuana near the kitchen table where the men were standing. He heard Parker tell the person who came with him to take the bundles to their vehicle which was parked in the carport adjacent to the house. Then he saw Parker place a small black purse on the kitchen table. As Lopez 1 Several witnesses described Parker as a large, black man wearing a yellow shirt on the day of the incident, and Parker admits to being the person described as such. 2

3 reached for the bag, D.W. saw Parker reach under his shirt, pull out something that looked like a part of a gun, Lopez attempted to grab Parker s waist, and then D.W. heard a gunshot. D.W. then saw Lopez fall to the ground. 4 All three people who were in the house, but outside the kitchen, testified they heard gunshots. Immediately after hearing gunshots, P.G. and E.T. saw Lopez wrestling with Parker who had a gun in his hands. They testified that Lopez had been shot in the chest and appeared to be wrestling for the gun with the man in the yellow shirt who had the gun. Thereafter they saw Parker shooting a gun towards the hallway while running out of the house s side door, apparently to the carport. E.T. was shot in the leg. Lopez later died as a result of a bullet wound to his chest. 5 Two of Lopez s neighbors testified that they heard gunshots and saw Parker firing a gun from the driveway and the street toward Lopez s carport or house. Police officers detained Parker a few blocks from Lopez s house. Parker was no longer wearing the yellow shirt but had blood stains on his shorts. A blood stained yellow shirt was recovered near Lopez s house and a criminalist identified Parker s DNA on the tag inside the collar and Lopez s blood on the shirt. A gun was later found that was alleged to be the murder weapon. 3

4 6 The State charged Parker with first degree murder, armed robbery, and aggravated assault, which was later amended to attempted armed robbery in lieu of armed robbery. The jury found Parker not guilty of first degree murder, but guilty of second degree murder for killing Lopez, aggravated assault for shooting E.T., and attempted armed robbery for attempting to take Lopez s property. The jury also found all of the crimes of which it convicted Lopez to be dangerous offenses. The superior court sentenced him to concurrent terms of imprisonment for the murder and attempted armed robbery convictions, sixteen and seven and a half years respectively. It also sentenced Parker to seven and a half years for aggravated assault to run consecutive to the murder and attempted armed robbery sentences. Parker received 390 days of presentence incarceration credit. Parker filed a motion for new trial which the superior court denied. 7 Parker timely appealed pursuant to Arizona Rule of Criminal Procedure ( Ariz. R. Crim. P. ) We have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) sections (A)(1) (2003), (2001), and (A)(1), (3) (Supp. 2008). 2 2 We cite the current version of the applicable statutes because no revisions material to this decision have since occurred. 4

5 ANALYSIS I. Standard of Review 8 We review the record for fundamental error. Error is fundamental when it [g]oes to the foundation of [the] case, takes away a right that is essential to [the] defense, and is of such magnitude that [the defendant] could not have received a fair trial. State v. Henderson, 210 Ariz. 561, 568, 24, 115 P.3d 601, 608 (2005). The appellant also must show that any error prejudiced his case. Id. at 568, 26, 115 P.3d at 608. II. Ineffective Assistance of Counsel 9 Parker contends that his right to counsel was denied because his counsel provided ineffective assistance. He alleges that his counsel s opening brief on appeal contained untrue facts, false testimony, and lacked evidence to support the allegations. Parker further alleges that his counsel was biased against him. We will not review the merits of an ineffective assistance of counsel claim on a direct appeal because the issues must be raised in a Rule 32.1 post-conviction relief proceeding. Ariz. R. Crim. P. 32.1; State v. Spreitz, 202 Ariz. 1, 2, 4, 39 P.3d 525, 526 (2002). III. Sufficiency of the Evidence 10 Parker argues the verdict is contrary to the law and evidence. Specifically, he contends there were no eye witnesses who saw him shoot Lopez or E.T. and DNA evidence on the alleged 5

6 murder weapon does not match his. Parker also argues there is no evidence of what property he attempted to take. In addition, Parker alleges the State used false statements and testimony to obtain a guilty verdict. Parker, therefore, requests that this court vacate the superior court judgment and grant him a new trial. We find sufficient evidence supports the verdict and affirm on that basis. 11 We review claims of insufficient evidence to determine if substantial evidence exists to support the verdict. State v. Stroud, 209 Ariz. 410, 411, 6, 103 P.3d 912, 913 (2005). Substantial evidence is [e]vidence that reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt. Id. at 412, 6, 103 P.3d at 914 (citation omitted). We construe the facts and evidence [i]n the light most favorable to sustaining the jury verdict and resolve all reasonable inferences against the defendant. Id. (citation omitted). We will only reverse based on insufficient evidence if it [c]learly appear[s] that upon no hypothesis whatever [there] is [] sufficient evidence to support the conclusion reached by the jury. State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987) (citation omitted). 12 A person commits second degree murder when, acting without premeditation, he or she causes the death of another person either: (1) intentionally; or (2) knowing that his or her 6

7 conduct will cause death or serious injury; or (3) under circumstances manifesting extreme indifference to human life, recklessly engages in conduct that creates a grave risk of death. A.R.S (A) (Supp. 2008). A person commits aggravated assault when, among other things, he or she intentionally, knowingly, or recklessly causes physical injury to another person by using a deadly weapon. A.R.S (A) (1) (2001) and (A)(2) (Supp. 2008). 13 Here, the evidence shows Parker was in the kitchen with Lopez at the time gunshots were heard. D.W. saw Parker pull something out from under his shirt that looked like a part of a gun and immediately following he and other witnesses heard gunshots. Two witnesses observed Lopez attempting to wrestle a gun from Parker s hands moments after gunshots were heard. DNA evidence shows that Parker s shirt had Lopez s blood on it. As Parker exited the house, witnesses saw him fire shots down the hallway. E.T. was in the house at that time and was shot. At least two neighbors saw Parker shooting a gun toward Lopez s house. Parker argues that no one actually saw him shoot Lopez or E.T., and therefore, the evidence is insufficient. We have long held that [t]he probative value of direct and circumstantial evidence are [sic] intrinsically similar..... State v. Harvill, 106 Ariz. 386, 391, 476 P.2d 841, 846 (1970). This evidence strongly suggests that Parker caused 7

8 Lopez s death either intentionally or knowing that his conduct would cause such death, thereby satisfying the second degree murder elements. Further, the fact that E.T. was in the house at the time Parker fired multiple shots down the hallway indicates Parker either intentionally or knowingly injured him, thereby satisfying the aggravated assault elements. We hold this evidence substantially supports the verdict. 14 A person commits robbery [i]f in the course of taking any property of another... against his will, such person threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance..... A.R.S (A) (2001); State v. Benenati, 203 Ariz. 235, 242, 26, 52 P.3d 804, 811 (App. 2002). A person commits attempted armed robbery when he or she, acting with a deadly weapon, intends to commit robbery and makes an overt act toward that end. A.R.S (A)(2) (2001) and ; State v. Clark, 143 Ariz. 332, 334, 693 P.2d 987, 989 (App. 1984). 15 Here, the evidence shows that Parker told the person who came to Lopez s house with him to take two packages of something that smelled like marijuana to their vehicle. Parker then placed a small purse on the table, apparently offering something to Lopez in exchange for the packages. However, as Lopez reached for the purse, Parker pulled something out from under his shirt that looked like part of a gun and shots were 8

9 heard. We find that a reasonable person could accept this evidence as substantial; it shows that Parker attempted to take the two packages while using a deadly weapon. Additionally, the evidence shows this act was against Lopez s will because, after being shot, he wrestled with Parker for the gun. Thus, the evidence satisfies the attempted armed robbery elements and supports the verdict. Since the court instructed the jury as to the elements of each charge and evidence supports the verdict, we find no error. IV. Amendment to Indictment Attempted Armed Robbery 16 Parker argues that the attempted armed robbery charge should have been dismissed because the State amended the original armed robbery charge to attempted armed robbery over his objection. process rights. Parker claims this is a violation of his due When charges against a defendant are amended, [t]he test to determine what amendments are constitutionally permitted is whether the amendment changes the nature of the offense charged or prejudices the defendant in any way. State v. Sanders, 205 Ariz. 208, 214, 19, 68 P.3d 434, 440 (App. 2003). We have expressly held that a defendant s constitutional rights are not violated when the amendment [c]hanges the legal description by charging a crime that is a lesser-included offense of the original charge. Id. at 215, 24 n.2, 68 P.3d 434, 441 n.2 (citing Ariz. R. Crim. P. 13.2(c)). Since 9

10 attempted armed robbery is a lesser-included offense of armed robbery, the court did not err by permitting the State to amend the charge. V. Flight or Concealment Instruction 17 Parker argues that despite his objection, the superior court instructed the jury regarding flight or concealment. He claims the instruction amounts to the court making prohibited comments on the evidence and that the evidence does not support the instruction. Thus, he claims the court erred and he is entitled to a new trial. We disagree. A court s decision to instruct a jury regarding evidence of flight or concealment depends on the facts in the case and [i]s proper only when the defendant s conduct manifests a consciousness of guilt. State v. Speers, 209 Ariz. 125, 132, 27, 98 P.3d 560, 567 (App. 2004) (citation omitted). A court can give such instruction if it is [a]ble to reasonably infer from the evidence that the defendant left the scene in a manner which obviously invites suspicion or announces guilt. Id. at 28 (citation omitted). If the evidence shows the defendant attempted to conceal himself, a flight or concealment instruction is proper. State v. Bailey, 107 Ariz. 451, 452, 489 P.2d 261, 262 (1971). 18 In State v. Salazar, 173 Ariz. 399, 409, 844 P.2d 566, 576 (1992), the Arizona Supreme Court held that a flight instruction was warranted when a defendant ran from the scene of 10

11 a crime and took his shoes off along the way so as to hide his shoeprints. Similarly, Parker ran from Lopez s house soon after Lopez and E.T. were shot and along the way he discarded his bloodied shirt. We find this conduct manifests attempted concealment and a consciousness of guilt. Further, witnesses testified that Parker exited the house while shooting a gun down the hallway and into the carport from the street. This behavior invites suspicion. Thus, we hold the court did not err by instructing the jury on flight and concealment of evidence. VI. Lesser-Included Offenses Instruction 19 Parker argues the superior court erred by instructing the jury on second degree murder, a lesser-included offense of first-degree murder. 3 Specifically, Parker objected to the second degree murder instruction based on insufficient evidence. However, the State argued the lesser-included offense instruction should be given because the evidence supported the instruction. Parker contends that because this is not a capital murder case, the court should have abided by his request to exclude instructions on lesser-included offenses. We disagree. 3 Parker also complains of an instruction on attempted armed robbery as a lesser-included offense of armed robbery. This issue is moot, however, because that instruction was not given as a lesser-included offense. Instead, an instruction on attempted armed robbery was given because it was what the State charged Parker with in lieu of the discarded armed robbery charge. 11

12 20 The superior court has discretion to refuse a jury instruction and we [w]ill not reverse it absent a clear abuse of that discretion. State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995) (citation omitted). A party is entitled to a jury instruction [o]n any theory of the case reasonably supported by evidence. Id. 21 Parker cites to State v. Wahl for the proposition that in a non-capital case, a court is required to abide by a defendant s objection to a lesser-included offense jury instruction. He does not provide a citation for State v. Wahl, but we assume he intended State v. Wall, 212 Ariz. 1, 126 P.3d 148 (2006). We fail to see how Wall supports Parker s argument. The defendant in Wall was charged with robbery or being an accomplice to robbery. Id. at 5. Wall claimed to have had no part in the alleged robbery, id., but nonetheless requested a lesser-included offense instruction on attempted theft, 4 which the trial court denied. Id. at 7. The Arizona Supreme Court reversed because it found there was sufficient evidence of attempted theft to support the instruction. Id. at 30. It held [t]hat a defendant does not forfeit his right to a lesserincluded offense instruction by asserting an all-or-nothing defense if the evidence in the record is sufficient to support 4 Theft is essentially robbery, supra 14, not involving force or threat. Wall, 212 Ariz. at 2, 7, 126 P.3d at 149; A.R.S (A)(1) (Supp. 2008). 12

13 the instruction. Id. at 1. The holding in Wall is consistent with our jurisprudence - a party is entitled to a lesser-included offense instruction if evidence supports it. Bolton, 182 Ariz. at 309, 896 P.2d at Parker essentially argues that his objection supersedes the prosecution s request to have the lesser-included offense instruction, despite evidentiary support for it. This is unpersuasive. In State v. Govan, 154 Ariz. 611, 614, 744 P.2d 712, 715 (App. 1987), the defendant argued the trial court erred by instructing the jury on a lesser-included offense of second degree murder, which the state had requested, but to which the defendant had objected. The defendant argued there was insufficient evidence to support the instruction. Id. The court of appeals found that the evidence supported the instruction, and held the trial court did not err. Id. at 615, 744 P.2d at 717. Similarly, here there was sufficient evidence to support a second degree murder conviction. Therefore, a jury instruction on that theory was supported by the evidence and the court did not err in giving that instruction. VII. Prosecutorial Misconduct 23 Parker argues that there was prosecutorial misconduct in this case for three reasons. First, he contends that the prosecutor s evidence was flawed: she presented the jury with false, contradictory, and conflicting testimony; failed to 13

14 produce evidence supporting the testimony of her witnesses; and failed to present evidence showing which bullets hit which person. Second, Parker argues the prosecutor asked leading questions during direct examination. Finally, Parker argues the prosecutor withheld exculpatory evidence during pretrial proceedings and during the grand jury presentation and destroyed evidence. To prove prosecutorial misconduct, an appellant must show: (1) the state s actions were improper; and (2) a reasonable likelihood exists that the misconduct could have affected the jury s verdict, thereby denying defendant a fair trial. State v. Montano, 204 Ariz. 413, 427, 70, 65 P.3d 61, 75 (2003) (citation omitted). We will reverse based on prosecutorial misconduct if the conduct is [s]o pronounced and persistent that it permeates the entire atmosphere of the trial. State v. Rosas-Hernandez, 202 Ariz. 212, , 23, 42 P.3d 1177, (App. 2002) (citation omitted). 24 Regarding Parker s claims that the prosecutor presented flawed evidence and testimony, Parker has not shown that the prosecutor s conduct was improper. Parker does not point to any authority stating that inconsistent testimony and the omission of certain evidence is error. However, assuming for the sake of argument that it was error, Parker does not explain how this adversely affected the jury s verdict and deprived him of a fair trial. Further, concerning Parker s 14

15 allegation that the prosecutor asked leading questions during direct examination, he does not point to any instance where this occurred or how it prejudiced him. Without more we cannot find any error. Nor does our review of the record reflect any fundamental error. 25 In addition, Parker argues that the State withheld exculpatory evidence from the defense and the grand jury. He apparently claims that the State allowed for the destruction of property and evidence by failing to test certain items found at the crime scene for blood evidence, DNA, or fingerprints. 5 As we understand Parker s argument, he contends such evidence would have been exculpatory. 26 We will reverse a conviction for loss or destruction of evidence if the defendant can show the State acted in either bad faith or that he was prejudiced by the loss. State, ex rel. Hyder v. Hughes, 119 Ariz. 261, 264, 580 P.2d 722, 725 (1978). In deciding whether the defendant has been prejudiced, we look at the circumstances of the particular case. Id. However, [a] defendant s speculation as to how some evidence might have been exculpatory is not persuasive. State v. Nelson, 129 Ariz. 582, 584, 633 P.3d 391, 393 (1981) (citing State v. Macumber, Parker claims the State failed to test the following: projectiles, the black purse, shell casings, packages of marijuana, and the blood spatters found throughout the home. 15

16 Ariz. 516, 519, 582 P.2d 162, 165 (1978)). Further, the State is not required to [c]all any particular witness or to make any particular test so long as there is fairly presented the material evidence bearing upon the charge for which the defendant is on trial. Hughes, 119 Ariz. at 264, 580 P.2d at 725 (citing State v. Maloney, 105 Ariz. 348, 464 P.2d 793 (1970)). Absent a clear showing of prejudice, we will presume a defendant is adequately protected when the court gives a Willits instruction. 6 Id. 27 Here, Parker does not demonstrate that the State acted in bad faith or that he was prejudiced by the State s failure to test certain items found at the crime scene. Although Parker did file a motion to compel disclosure of an unredacted Glendale police report, nothing in the record reveals that the State purposefully or negligently attempted to keep evidence from the defense. See Macumber, 119 Ariz. at 520, 582 P.2d at 166 (reasoning [t]here is no violation of the defendant s constitutional rights unless the government willfully or 6 A Willits instruction is a jury instruction concerning the destruction of evidence. State v. Willits, 96 Ariz. 184, 191, 393 P.2d 274, 279 (1964) (holding as appropriate the following instruction: If you find that the plaintiff, the State of Arizona, has destroyed, caused to be destroyed, or allowed to be destroyed any evidence whose contents or quality are in issue, you may infer that the true fact is against their interest. ). Id. at 187, 393 P.2d at

17 negligently destroys evidence that would have been favorable to the defendant s case. ) (citation omitted). 28 At trial, the State presented testimony from D.W. who saw Parker reach for what looked like a gun underneath his shirt. Both P.G. and E.T. saw Parker with a gun in his hand wrestling with the victim. Two neighbors also testified that they heard gunshots and saw Parker firing a gun from the driveway and the street toward Lopez s carport. Parker admitted he was at the victim s residence that day, that he had physical contact with the victim after shots were fired, that he fled the scene, and that he discarded his yellow shirt prior to being detained by the police. Parker s recovered yellow shirt tested positive for the victim s and Parker s DNA. 29 In light of these facts, we disagree with Parker s contention that the State acted in bad faith by failing to test certain items at the crime scene resulting in their destruction or loss. Parker s argument that the introduction of such evidence would be exculpatory is speculative given the overwhelming evidence against him. Moreover, the issue whether the State lost or destroyed any evidence was weighed by the jury after the court properly gave a Willits instruction. We assume the jury followed the court s instructions. Hyatt Regency Phoenix Hotel Co. v. Winston & Strawn, 184 Ariz. 120, 140,

18 P.2d 506, 526 (App. 1995). We, therefore, hold the prosecutor s actions did not amount to prosecutorial misconduct. VIII. Jury Verdict and Instructions 30 Parker claims that the jury erred by finding him guilty beyond a reasonable doubt. He argues that the testimony was inconsistent, contradictory, conflicting, and not credible. In essence, Parker argues that this allegedly flawed testimony gave rise to reasonable doubt and that the jury failed to follow the jury instructions which required them to find him not guilty if they concluded the State failed to prove him guilty beyond a reasonable doubt. The instructions state, in relevant part, If you conclude that the State has not met its burden of proof beyond a reasonable doubt, then you must find the defendant not guilty of those charges. We find no error for two reasons. First, because we assume that the jury followed the superior court s instructions. Hyatt, 184 Ariz. at 140, 907 P.2d at 526. Second, because ample evidence supports the jury s verdict. Arredondo, 155 Ariz. at 316, 746 P.2d at 486. IX. Declaration and Amendment Rights 31 Parker contends that if we do not grant a new trial, his constitutional rights will be violated as follows: [d]ue process, equal protection, effective assistance of counsel at trial and on appeal, a fair trial and appeal, and freedom from cruel and unusual punishment under the 5th, 6th, 8th and 14th 18

19 amendments to the federal constitution and corresponding provisions of the state constitution. However, Parker does not cite to any authority or give reasons for his contention. Ariz. R. Crim. P (c)(1)(vi). We, thus, do not find that his constitutional rights were violated. As to any issue of ineffective assistance of counsel, we will not address it on direct appeal. Spreitz, 202 Ariz. at 2, 4, 39 P.3d at 526. X. Presence at Critical Stages and Trial 32 Parker was present for all pre-trial critical stages and during trial except for two instances in which Parker s counsel waived his presence. First, Parker s counsel waived his presence for the first twenty-three minutes of a pre-trial hearing because Parker had not been transported to the court. Second, Parker s counsel waived his presence during a discussion about jury instructions. 33 A defendant has a fundamental right to be present during all critical stages of a criminal trial. Ariz. R. Crim. P. 19.2; State v. Jones, 197 Ariz. 290, 308, 50, 4 P.3d 345, 363 (2000) (citation omitted). However, this right extends [o]nly to those situations in which his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge. Jones, 197 Ariz. at 308, 51, 4 P.3d at 363 (quoting State v. Levato, 186 Ariz. 441, 443, 924 P.2d 445, 447 (1996) (citation omitted)); State v. 19

20 Dann, 205 Ariz. 557, , 65-68, 74 P.3d 231, (2003) (holding that defendant s constitutional rights were not violated by his absence from minor proceedings when his counsel represented him). Further, a defendant may either voluntarily waive this right to be present pursuant to Ariz. R. Crim. P. 9.1, or he may be bound by his defense counsel s strategic decision to waive his presence. Levato, 186 Ariz. at 444, P.2d at 448 (citation omitted). 34 Parker s counsel waived Parker s presence for the first twenty-three minutes of a pre-trial hearing because [a]pparently he was not transported. It is unclear whether Parker refused to be transported or if the jail was unable to transport him. We, thus, cannot conclude that Parker voluntarily waived his presence or that his defense counsel did so for strategic reasons. However, Parker was only absent for a small portion of the hearing at which the court confirmed the last day of trial, and decided motions to preclude testimony from the medical examiner who examined Lopez s body, but who no longer worked in that capacity, and the medical examiner who replaced her. We hold there was no reversible error because the court: (1) precluded the former medical examiner s testimony in accordance with Parker s request; and (2) admitted the substitute medical examiner to testify about the results and gave Parker time to interview the witness. We do not see how 20

21 Parker s presence could have affected those decisions. The court s actions were administrative and not substantially related to Parker s ability to fully defend against the charge, thus, his constitutional rights were not violated. 35 Parker s counsel also waived Parker s presence during a discussion concerning instructing on lesser-included offenses. Parker was not in attendance because, as the court explained, he would be brought in when the jury arrived. The waiver did not violate Parker s rights in this instance because his counsel objected, per Parker s request, to the inclusion of the lesserincluded offenses. Thus, even though Parker s absence was involuntary, his objection was raised and his counsel was present to represent him. Accordingly, we hold that the error was harmless. XI. Presentence Incarceration Credit 36 Finally, we note the superior court awarded 390 days of presentence incarceration credit to Parker. The record indicates that Parker was arrested on March 15, 2006 and sentenced on April 4, We calculate 385 days between those dates. However, we will not modify the credit because the State did not appeal the issue. CONCLUSION 37 For the above reasons, we affirm the superior court s conviction and sentence. Upon filing this decision, Parker s 21

22 counsel must inform him of the appeal s status and his future options. State v. Shattuck, 140 Ariz. 582, , 684 P.2d 154, (1984). On the court s own motion, Parker has thirty days from the date of this decision to file a motion for reconsideration or petition the Arizona Supreme Court for review. See id. Unless Parker s counsel finds an issue that warrants the submission of a petition for review, he has no further obligations. CONCURRING: /S/ DONN KESSLER, Presiding Judge /S/ PHILIP HALL, Judge /S/ DANIEL A. BARKER, Judge 22