State v. Fisher
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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. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. ROBERT LEE FISHER, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) 1 CA-CR 08-0700 DIVISION ONE FILED: 04-20-2010 PHILIP G. URRY,CLERK BY: GH DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. CR 2006-0076 The Honorable Steven F. Conn, Judge CONVICTIONS AFFIRMED; REMANDED IN PART FOR RESENTENCING Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section And Susanne Bartlett Blomo, Assistant Attorney General Attorneys for Appellee David Goldberg, Esq. Attorney for Appellant Fort Collins, CO B R O W N, Judge ¶1 Robert Lee Fisher appeals his convictions and sentences for second-degree murder and aggravated assault. For the his reasons that follow, we affirm both convictions and sentence for second-degree murder, but vacate the sentence for aggravated assault and remand for resentencing. BACKGROUND ¶2 A grand jury indicted Fisher on charges of first- degree murder, arson of an occupied structure, and aggravated assault arising from the stabbing death of his mother in her home in Kingman in January 2006. Neighbors discovered the body when they saw smoke coming from the mobile home, and ran to put out the fire. The autopsy showed that the victim suffered thirty-four stab wounds to the upper back, neck, and head, one of which severed a carotid artery, and six defensive wounds to her arms and hands. ¶3 Witnesses observed Fisher behaving strangely shortly before the murder. Fisher was arrested soon thereafter; he had a cut on his hand and blood on his shoes, clothes, arms, and legs. Police investigators found Fisher s blood at the scene; they also found both his blood and his mother s blood on his shoes and sweatshirt. Fisher did not testify at trial, but called witnesses in support of his insanity defense. ¶4 The jury convicted Fisher of the lesser included crime of second-degree murder and of aggravated assault, but acquitted 2 him of arson. He was sentenced to an aggravated 1 term of twenty- one years for the second-degree murder conviction, with 942 days of presentence incarceration credit, and a presumptive term of 3.75 years on the aggravated assault conviction; the terms to be served consecutively. jurisdiction pursuant Fisher to timely Article 6, appealed. Section 9, of We the have Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12120.21(A)(1) (2003), 13-4031 (2010) and 13-4033(A)(1) (2010). 2 DISCUSSION I. ¶5 Competency Fisher argues that the trial court: (1) abused its discretion in finding him competent to stand trial; (2) failed to hold restored the required competency; hearing (3) upon notification misstated the of burden of Fisher s proving incompetency; and (4) abused its discretion in failing to order further evaluations and competency proceedings based on his counsel s personal observations and red flags in the final competency evaluation before trial. We find no reversible error on any of these grounds. ¶6 The court appointed Dr. Daniel Malatesta and Dr. 1 The aggravating factors included Appellant s entire criminal record, the use of a dangerous instrument, and the especially cruel manner in which this crime was committed. 2 We cite the current version of the applicable statutes if no revisions material to this decision have since occurred. 3 Vasilios Kaperonis to examine Fisher regarding his competency to stand trial and his mental condition at the time of the alleged offense. Dr. Kaperonis opined that Fisher suffered from chronic paranoid schizophrenia, was not competent to stand trial, and was incapable of distinguishing right from wrong at the time of the offense. Dr. Malatesta disagreed and opined that Fisher was competent to stand trial, but, based on the records before him, he could not offer an opinion on Fisher s mental state at the time of the offense and could not rule out malingering. After the parties stipulated to the reports, the court found Fisher incompetent to stand trial and ordered him remanded to the custody of the Arizona State Hospital ( ASH ) for competency restoration proceedings. ¶7 Seven months later, ASH psychiatrist Dr. Edward Jasinski reported that Fisher had been restored to competency, although he suffered from a primary mental illness, most likely a Psychotic explained Disorder, that exaggerating his Not Fisher s symptoms Otherwise Specified. behavior suggested and/or malingering. The that A doctor he was competency hearing was set for March 2008, but was vacated upon motion of defense counsel who, after lengthy conferral with his client, concluded that Fisher was presently competent to stand trial, and [was] competent to assist his attorney in his defense. ¶8 Two months later, defense counsel filed a motion for 4 reexamination and redetermination of Fisher s competency based on counsel s observations that his client was delusional, [] subject to both auditory and visual hallucinations, and appears to continually process, observe, perceive and react to internal stimuli that have no basis in objective reality. Harvancik was appointed to examine Fisher and Dr. Mark evaluate his competency to stand trial. ¶9 Dr. Harvancik s evaluation concluded that Fisher was competent to stand trial and aid in his defense despite a likelihood that he had a primary mental illness. Based on Dr. Harvancik s no evaluation, the trial court found basis to question Fisher s competency and deemed him competent to stand trial. A. Finding of Competency ¶10 Fisher argues first that the trial court abused its discretion in finding him competent to stand trial based on Dr. Harvancik s report. We will not upset a trial court s finding of competency absent an abuse of discretion. 208 Ariz. conducting 424, our 444, ¶ review, 55, we 94 P.3d determine 1119, only State v. Moody, 1139 (2004). whether In reasonable evidence supports the trial court s finding that the defendant was competent, considering the facts in the light most favorable to sustaining the trial court s finding. State v. Glassel, 211 Ariz. 33, 44, ¶ 27, 116 P.3d 1193, 1204 (2005), cert. denied, 5 547 U.S. 1024 (2006). ¶11 The test for competency is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him. The mere Dusky v. United States, 362 U.S. 402, 402 (1960). presence of a mental illness is not finding a defendant incompetent to stand trial. grounds for Ariz. R. Crim. P. 11.1; see Moody, 208 Ariz. at 444, ¶ 56, 94 P.3d at 1139. Rather, the test for competency is whether the mental illness renders a criminal defendant unable to understand the proceedings against him or her or to assist in his or her own defense. Ariz. R. Crim. P. 11.1; see Moody, 208 Ariz. at 444, ¶ 56, 94 P.3d at 1139; Glassel, 211 Ariz. at 44, ¶ 30, 116 P.3d at 1204. The competency inquiry thus focuses on an extremely narrow issue: whether whatever is afflicting the defendant has so affected his present capacity that he is unable to appreciate the nature of the proceedings conducting his defense. or to assist his counsel in State v. Amaya-Ruiz, 166 Ariz. 152, 162, 800 P.2d 1260, 1270 (1990) (citation omitted). ¶12 Fisher argues that he was incompetent to stand trial and unable to reasonably understand the proceedings against him or assist his counsel. He contends that Dr. Harvancik s report confirmed actively that he was 6 delusional and hallucinating during his final pretrial assessment; therefore, Dr. Harvancik s conclusion that Fisher was competent was faulty because a person who suffers auditory considered competent. ¶13 him and visual hallucinations cannot be The evidence suggests otherwise. Three of the four doctors who examined Fisher found competent to malingering. Dr. thinking it stand as trial Malatesta related and found to suggested no he evidence of Fisher s awareness could be delusional of court proceedings, a fair understanding of the charges against him, and the nature of his relationship with his attorney. Likewise, after seven months of restoration treatment, Dr. Jasinski found to a reasonable degree of psychological certainty . . . [Fisher] understands the nature and object of the proceedings against him . . .[and] has the ability to assist an attorney in the preparation trial, Dr. exaggerating of his Harvancik his defense. found symptoms, Finally, that his Fisher symptoms one week appeared were before to be controlled by medication and did not interfere with the evaluation process, and he was competent to stand trial and aid in his defense. ¶14 Fisher further contends that Dr. Harvancik s report did not provide the court with sufficient information to address Fisher s competency. ¶15 Two months We disagree. after the initially scheduled Rule 11 hearing was vacated, defense counsel requested reexamination and 7 redetermination regarding Fisher s competency. That request was granted and Dr. Harvancik was appointed to evaluate Fisher. Dr. Harvancik submitted his written evaluation to the court and a hearing was held in which Fisher s competency was considered. Although Fisher was aware that this hearing was for the purpose of considering his competency, 3 he offered no evidence to support his inability to understand the nature of the proceedings beyond the personal opinion of his defense counsel. Further, Fisher chose not to call any witnesses during the hearing, even though he could have had he so chosen, and did not object to the nature of the proceedings or request additional proceedings in which competency would be determined; he thereby acquiesced to a determination of competency based on the only evidence before the court at that time Dr. Harvancik s written evaluation. See State v. Cobb, 110 Ariz. 578, 579, 521 P.2d 1124, 1125 (1974) (finding that a formal oral hearing is waived when psychiatric report is filed with the court, counsel is present at the hearing, some form of procedure took place, and no objection to that procedure was made). The court considered the evidence provided regarding Fisher s competency and, based on the expert opinion provided by Dr. Harvancik, determined Fisher competent 3 The minute entry dated May 19, 2008 granted Appellant s motion for redetermination and reexamination, ordered Dr. Harvancik to evaluate Appellant and submit a written report to the court, and set a status hearing. 8 to stand trial. Prior to making such a determination, Fisher had been reported returned to competency by Dr. Jasinski from ASH, he had been re-evaluated at defense counsel s request, and again found competent by Dr. Harvancik. We find no abuse of the trial court s discretion in making a competency determination based on these facts. ¶16 In addition, the court received numerous letters from Fisher prior understands to trial; the legal some of system which and reflected who can a file guy who subjective motions that make sense and others that reflect someone who is operating with a different mind-set that does not really have an attachment with reality. The court is entitled to rely on experts to assist its assessment of a defendant s competency and may also rely on determinations. 409, 724 appoint the observations 23, mental 28 (1986) health [but] he (recognizing experts is not to bound that assist by their determination of fact and law is his ). letters from opinion of mental state Fisher, Dr. in making such See Bishop v. Superior Court, 150 Ariz. 404, P.2d determination, court s the Harvancik, was input of the court puzzling and him in opinions; counsel, commented it judge may his the In considering the defense thus a felt that and the Fisher s compelled to attach more weight to the expert opinion of Dr. Harvancik in making a competency determination. 9 On this record, reasonable evidence supported the trial court s finding. ¶17 We opinion also reject revealed that Fisher s Fisher claim was that Dr. actively Harvancik s delusional and hallucinating, and thereby unable to reasonably understand the proceedings against him or assist his counsel. Although Dr. Harvancik initially noted that there appeared to be evidence of some ongoing Fisher s hallucinations, symptoms appeared he ultimately concluded be controlled with to that medication treatment, his seeming responses to internal stimuli did not appear to be credible, and in combination with SIRS results, suggested that he was exaggerating his symptoms. At trial, Dr. Harvancik testified to the same effect, explaining that when he initially met responding with to evaluation, Fisher, internal he did not he thought stimuli, believe but that he might after he was internal stimuli, responding to hallucinations. have been completing responding his to Moreover, he testified that persons can be experiencing hallucinations and still be competent to stand trial. On this record, we find that reasonable evidence supported the trial court s conclusion that Fisher was competent to stand trial. B. ¶18 Restoration Hearing and Burden of Proof Fisher next argues that the trial court violated Arizona Rule of Criminal Procedure 11.6(a)(1) and A.R.S. § 134514(C)(2) (2010) in failing to hold the required hearing upon 10 receiving Dr. Jasinski s report that Fisher had been restored to competency. Our review of the record does not support this contention. ¶19 As outlined above, three days before the first scheduled hearing, defense counsel moved to vacate the Rule 11 hearing because he believed his client was presently competent to stand trial and to assist in his defense. Fisher invited the about it on appeal. error, and is precluded On this record, from complaining See State v. Logan, 200 Ariz. 564, 566-67, ¶ 15, 30 P.3d 631, 633-34 (2001) (holding that invited error doctrine barred a defendant from claiming as error on appeal a jury instruction that he had requested). ¶20 Fisher also argues that the trial court misstated the burden of proof when it indicated to the parties that it would start with the presumption that [Fisher] is competent[.] disagree that the court misstated the law. We The court s comment was made during a status hearing held on February 8, 2000. The court first noted that Fisher had been returned from ASH based on a final report indicating that Fisher had been restored to competency. The court s subsequent statement that it would presume Fisher to be competent, considered in proper context, was not intended to shift the burden of proof to Fisher to establish that he was still incompetent. Instead, in our view the court s purpose was to simply inform the parties that the 11 court had received the report from ASH and if a decision was made based solely on that report, Fisher would be found competent. ¶21 A prior adjudication of incompetency gives rise to a rebuttable presumption of continued incompetency. State Blazak, 100 Ariz. 202, 204, 516 P.2d 575, 577 (1973). v. Trial judges are presumed to know the law and to apply it in making their decisions, and we thus presume that the court knew that its prior finding of incompetency gave presumption of continued incompetency. rise to a rebuttable See State v. Johnson, 212 Ariz. 425, 432, ¶ 21, 133 P.3d 735, 742, cert. denied, 549 U.S. 1022 (2006). Before Fisher was found competent to stand trial, had the court two reports, one from Dr. Jasinski concluding that Fisher had been restored to competency, and a second from Dr. Harvancik opining competent to stand trial. incompetency was that Fisher was presently On this record the presumption of adequately rebutted. We decline to find reversible error on this basis. ¶22 We violated also his due reject process Fisher s rights argument by that the employing court inadequate procedures to address his competency to stand trial in its rush to bring this case to trial. State observe procedures Due process requires that the adequate to protect a defendant s right not to be tried or convicted while incompetent. 12 Drope v. Missouri, 420 U.S. 162, 172 (1975) (citation omitted). had previously reports by been two found doctors incompetent and was restoration treatment at ASH. based ordered on to Fisher conflicting participate Dr. Jasinski from ASH thereafter concluded that Fisher had been restored to competency. Fisher s release from in ASH, the reevaluation of Fisher s competency. trial court After ordered a The court also conducted another competency hearing just one week before trial, after which it Fisher concluded, was based competent on Dr. to stand Harvancik s trial. We opinion, find that sufficient procedures were employed to protect Fisher against being tried while incompetent. C. ¶23 Failure to Order Further Evaluations Fisher finally argues that the trial court abused its discretion in failing to order further evaluations and competency proceedings based on defense counsel s observations and red flags in the final competency Harvancik two weeks prior to trial. has a right competency to to a stand examination exist. mental trial We disagree. examination when evaluation by A defendant and hearing on reasonable grounds for See Ariz. R. Crim. P. 11.3. Dr. his an In order for the trial court to grant another competency hearing, there must be some reasonable ground to justify another hearing on facts not previously presented to the 13 trial court. State v. Contreras, 112 Ariz. 358, 360-61, 542 P.2d 17, 19-20 (1975); see also Moody, 208 Ariz. at 443, ¶ 48, 94 P.2d at 1138. In determining whether reasonable grounds exist, a judge may rely, among other factors, on his own observations of the defendant s demeanor omitted). and ability to answer questions. Id. (citation We will not reverse a trial court s determination of whether reasonable grounds exist to order further proceedings absent an abuse of discretion. Amaya-Ruiz, 166 Ariz. at 162, 800 P.2d at 1270. ¶24 basis The court had sufficient grounds to conclude that no existed to further question Fisher s competency. Dr. Harvancik s evaluation of Fisher deemed him to be competent. The court s personal observations at the competency hearing and conclusions drawn from the numerous letters it had received from Fisher also proceedings. competency indicated Fisher understood the nature of the Finally, Fisher offered no new evidence at the hearing to support his incompetence; instead, his counsel merely attacked Dr. Harvancik s report as faulty and inadequate based solely on defense that it was internally inconsistent. counsel s personal belief It was within the court s discretion to accord more weight to the expert opinion of Dr. Harvancik than to that of defense counsel. On this record, the court had no evidence on which to justify another hearing and thus did not abuse its discretion in failing to order additional 14 competency evaluations. II. ¶25 Preliminary Jury Instruction on Reasonable Doubt Fisher argues that the trial court fundamentally erred by failing to instruct the jury at the start of trial that a defendant is presumed innocent, and to give the complete Portillo 4 instruction on proof beyond a reasonable doubt in the preliminary instructions. Specifically, Fisher asserts that the preliminary instruction did not fully explain to the jury that it had to innocent, start what with proof the presumption beyond a that reasonable [Fisher] doubt was actually entails, and that it must acquit [Fisher] absent such proof or a real possibility that [Fisher] was not guilty. ¶26 The trial court gave the following preliminary instruction at the start of trial: The charges against the Defendant are not evidence against him. You should not think that the Defendant is guilty just because he has been charged with a crime. The Defendant has pled not guilty. The Defendant s plea of not guilty means that the State must prove every part of the charges beyond a reasonable doubt. The law does not require a defendant to prove his innocence. He is presumed by law to be innocent. This means that the State must prove all of its case against the Defendant. The State must prove the Defendant guilty beyond a reasonable doubt which means you have to be firmly convinced 4 State v. Portillo, 182 Ariz. 592, 596, 898 P.2d 970, 974 (1995). 15 of the Defendant s guilt before you return a guilty verdict in this case. can No guilty verdict may be based on suspicion, probability or supposition. mere Since the burden is on the State to prove the Defendant guilty beyond a reasonable doubt, the Defendant has the right to rely upon a failure, if any, of the State to establish such proof. ¶27 Because Fisher failed to object at trial to this preliminary jury instruction, we review for fundamental error only. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). establishing that the Fisher accordingly bears the burden of trial court erred, that the error fundamental, and that the error caused him prejudice. 568, ¶ 22, 115 P.3d at 608. was Id. at We review the adequacy of jury instructions in their entirety to determine if they accurately reflect the law. State v. Hoskins, 199 Ariz. 127, 145, ¶ 75, 14 P.3d 997, 1015 (2000). be taken into instructions. The lawyers arguments to the jury may consideration in evaluating the adequacy of State v. Valverde, 220 Ariz. 582, 586, ¶ 16, 208 P.3d 233, 237, cert. denied, 130 S. Ct. 640 (2009). We will not reverse unless we can reasonably find that the instructions, when taken as a whole, would mislead the jurors. State v. Sucharew, 205 Ariz. 16, 26, ¶ 33, 66 P.3d 59, 69 (App. 2003) (citation omitted). ¶28 We find no fundamental error on this record. First, contrary to Fisher s claim, the preliminary instruction clearly 16 stated that Fisher is presumed by law to be innocent. It further noted that the charges against Fisher were not evidence of his guilt, and that because the State has the burden of proof, Fisher could rely on the failure of the State to provide such proof. the venire Moreover, during voir dire, the court also advised persons that Fisher was presumed by law to be innocent: The defendant in any criminal case is presumed by law to be innocent. innocence. This means he is not required to prove his In fact, he is not required to produce any evidence at all in his own behalf. Thus, Fisher s claim that the jury was not aware until final instructions that it had to start with the presumption that [Fisher] was innocent is without merit. ¶29 The preliminary instruction also informed the jury that in order to convict based on proof beyond a reasonable doubt, it must be firmly convinced of Fisher s guilt, although the court did not further define the concept before trial. Fisher concedes that the trial court gave a complete instruction on the presumption of innocence and instruction in its closing instructions. 5 5 the entire Portillo Moreover, both counsel The Portillo instruction further explains the concept of preponderance of the evidence used in civil cases, and notes that the burden of proof in criminal cases is the more powerful beyond a reasonable doubt, which means that the proof leaves one firmly convinced of the defendant s guilt, a concept it explains is not that of absolute certainty, but one that if the 17 reiterated in closing arguments the principles of presumption of innocence, burden of proof, and beyond a reasonable doubt. Although it is advisable for the trial court to give the more complete Portillo definition in its preliminary instruction to the jury as well as in its final instruction, we find failure to do so in this case was not fundamental error. its Read as a whole, the jury instructions, together with the closing arguments of the parties, adequately informed the jury of the legal framework governing its decision. ¶30 Moreover, Fisher has failed to establish the required prejudice for reversal on this basis, as he relies only on speculation that the jury might have been misled because the concept of beyond a reasonable doubt was not fully explained before the start of trial. No evidence supports speculation, which is insufficient to establish prejudice. such See State v. Bass, 198 Ariz. 571, 576-77, ¶ 17, 12 P.3d 796, 801-02 (2000) (citation omitted). III. Rebuttal Testimony by Psychologist ¶31 Fisher argues that the trial court abused its discretion in allowing the State to offer rebuttal testimony from Dr. Harvancik limited to his opinions regarding Fisher s juror thinks there is a real possibility that the defendant is not guilty, the juror must give him the benefit of the doubt and find him not guilty. See Portillo, 182 Ariz. at 596, 898 P.2d at 974. 18 competency to stand trial, because his opinion that Fisher was malingering two weeks before trial unfairly tainted the jury s consideration of his sanity at the time of the offense. We review a trial court s ruling on the admissibility of evidence for abuse of discretion. State v. Wood, 180 Ariz. 53, 61, 881 P.2d 1158, 1166 (1994). ¶32 At trial, Dr. Kaperonis testified that Fisher suffered from chronic paranoid schizophrenia and could not distinguish right from wrong at the time of the offense. He also testified that he had not personally interviewed anyone who had observed Fisher around the time of the offense, but instead relied on police reports and Fisher s personal assertions about his symptoms and psycho-social history regarding auditory and visual hallucinations. He testified that he did not perform any tests to detect malingering, but rather relied on his own clinical judgment. ¶33 In rebuttal, the State called Dr. Harvancik to testify that he observed indicators of malingering and that a sanity evaluation could not be completed for the time of the offense without extensive interviews and evaluations targeted for that time period which were not performed here. The State argued that such testimony was relevant to determine the credibility of Dr. Kaperonis opinions. ¶34 Fisher moved to preclude 19 Dr. Harvancik s rebuttal testimony on the ground that Dr. Harvancik had evaluated Fisher only for his competency to stand trial; therefore, any opinion on his sanity at the time of the crime was not relevant and was unfairly prejudicial. The court, however, found Dr. Harvancik s rebuttal testimony relevant because Dr. Kaperonis had already testified as to Fisher s psychological history and had testified that if Fisher provided him inaccurate information, that would affect the accuracy of his assessment. The court also found that Dr. Harvancik s testimony was a legitimate thing for the jury to hear, for them to weigh in assessing this. He further commented that he had given counsel a great deal of latitude into things that would be relevant to [Fisher s] mental health and therefore did not believe that there [was any] basis to preclude [Dr. Harvancik s testimony]. ¶35 Dr. Harvancik testified that in order to evaluate Fisher s sanity at the time of the offense, it was important to review extensive documents outlining Fisher s family, school, medical, psychological, criminal, and personal history, and to conduct extensive interviews with persons who knew him well, as well as any third parties who might be involved. He testified he would also rely on psychological testing, including the SIRS test for malingering. He testified that he had administered the SIRS test to Fisher when he evaluated him in May 2008, and Fisher appeared to be exaggerating the extent of his symptoms. 20 He also testified that without interviewing individuals who knew Fisher, and having access to more documents, he could not offer an opinion on Fisher s mental state at the time of the offense. ¶36 Contrary to Fisher s claims, Dr. Harvancik s testimony was not introduced to show that Fisher was competent either at the time of Harvancik s evaluation the murder testimony of was Fisher was or to used stand to trial. show inadequate Rather, that under Dr. Dr. Kaperonis generally accepted procedures in the profession to determine his sanity at the time of the offense, and to determine malingering. Dr. Harvancik s tests for malingering were The results of relevant to shed light on the credibility of the information Fisher had provided to Dr. Kaperonis a year earlier, and on which Dr. Kaperonis relied for his opinion. ¶37 Nor are we persuaded that the trial court failed to weigh the probative value of this evidence against the danger of unfair prejudice. should explain A trial court conducting a Rule 403 analysis its weighing process benefit of the appellate court. on the record for the See Ariz. R. Evid. 403; see also Shotwell v. Donahoe, 207 Ariz. 287, 295-96, ¶ 33, 85 P.3d 1045, 1053-54 (2004). However, we need not reverse a judgment merely because a trial court fails to explain on the record its reasons for making a Rule 403 determination. Higgins v. Assmann, Elec., Inc. 217 Ariz. 289, 299, ¶ 37, 173 P.3d 453, 463 21 (App. 2007) (citing Shotwell, 207 Ariz. at 295-96, ¶ 33, 85 P.3d at 1053-54). We decline to find reversible error on this basis. IV. ¶38 Reference to Criminal History Fisher also argues that the trial court fundamentally erred in failing to preclude Dr. Harvancik s repeated references to his prior arrests, incarceration, and criminal history. The record to which Fisher cites contains three discrete references by Dr. Harvancik to Fisher s criminal history: (1) he testified that he believed, based on information in other reports, that [Fisher] appeared to minimize his use of substances[,] as well as his criminal antisocial history ; personality (2) disorder he diagnosed based on his Fisher with deceptiveness . . . [in] reporting of the substance use history, the criminal record, as well as the SIRS ; and (3) he considered indicative of antisocial personality disorder failure to conform to social norms, lawful behavior. His multiple arrests . . . would certainly support that. ¶39 Because Fisher failed to object at trial to any of this testimony, or ask for a limiting instruction, we review for fundamental error only. 115 P.3d at establishing 607. that See Henderson, 210 Ariz. at 567, ¶ 19, Fisher the trial accordingly court bears erred, that the burden of the error was fundamental, and that the error caused him prejudice. 568, ¶ 22, 115 P.3d at 608. 22 Id. at ¶40 We find no reversible error. Even if the court arguably erred in failing to preclude testimony about Fisher s criminal history, Fisher has failed to show that the error deprived him of a fair trial or that he was prejudiced thereby. Dr. Harvancik s brief references to Fisher s criminal history were simply cumulative of those already made by Dr. Kaperonis on his examination by defense counsel the day before. On direct examination, Dr. Kaperonis noted that defendant was prescribed an anti-psychotic drug [w]hen he was in Florence, other antipsychotic medications [w]hile incarcerated, and that he saw a psychiatrist for paranoia in California in 1994 and 1995. some correction facility in Dr. Kaperonis also testified that it was possible that Fisher had antisocial personality disorder given the pattern of repeated legal infractions, seeming persistent lack of guilt and remorse. 6 [and] a On this record, Dr. Harvancik s brief references to Fisher s criminal history were cumulative expert failure witness, to of Dr. preclude earlier, similar Kaperonis, them was and references thus, neither 6 the by Fisher s trial court s fundamental error, nor The trial court commented in passing at the end of the trial day, in discussion of whether defendant might testify and thus require a ruling on his impeachment by his prior convictions, that Dr. Kaperonis had made at least two separate references in his testimony to defendant s criminal record, noting, however, that he was not certain that the jury had caught them. 23 error that prejudiced defendant. See Moody, 208 Ariz. at 455, ¶ 121, 94 P.3d at 1150. V. ¶41 Sentencing Errors Fisher next argues that the trial court abused its discretion by finding that he was on parole at the time of this offense, and in finding the existence of two prior historical convictions for purposes of imposing an enhanced sentence for the aggravated assault conviction. He further argues that it was improper to aggravate his murder conviction by the use of a dangerous weapon, because use of a dangerous weapon is an essential element of second-degree murder. A. ¶42 Finding that Defendant Was On Parole Fisher first challenges the court s finding that he was on parole at the time he committed the instant offense and the court s use of this finding in declining to impose less than the presumptive sentence for each conviction pursuant to A.R.S. § 13-604.02(B) (2001). 7 ¶43 Over Fisher s objection, the court found that he was on parole from a conviction in Mohave County at the time he committed the instant offense, but it was unclear from the record whether the parole arose from the conviction for the 1999 burglary, or from a 2003 criminal 7 damage/aggravated assault This statute has since been renumbered as A.R.S. § 13-708 (2010), and the subsection at issue is now subsection C. 24 conviction that the parties reversed on appeal. erroneously believed had been Regardless, the court found that because each offense was committed while Fisher was on parole, it was prevented from imposing a mitigated sentence. ¶44 We need not address whether the court s finding was in error, because the record clearly shows the trial court would have reached the same result even without consideration of the improper factor[]. P.2d 1006, stated 1008 that aggravated it State v. Ojeda, 159 Ariz. 560, 562, 769 (1989). would assault In have this case, imposed conviction the and the same the court expressly sentence on second-degree the murder conviction, even absent its finding that Fisher committed the offenses while on parole. On this record, any error in the court s finding that Fisher was on parole at the time of the offense was harmless. B. ¶45 Finding of California historical felony conviction Fisher also challenges the court s finding that a California conviction for possession of unidentified controlled substances imposing was an conviction. a prior enhanced historical sentence for felony the for purposes aggravated of assault The State argued that during sentencing for a 1999 burglary conviction, Fisher admitted his California conviction was a prior historical felony conviction. Based on this judicial admission, the court found the California conviction 25 was a felony Fisher on in the Arizona. Accordingly, aggravated assault the conviction court sentenced based on the existence of this prior historical felony conviction, as well as one for the 1999 burglary in Mohave County. ¶46 prior We review a trial court s determination of whether a conviction constitutes conviction de novo. 167 P.3d 1286, an historical prior felony State v. Rasul, 216 Ariz. 491, 496, ¶ 20, 1291 (App. 2007). We also review the determination that a foreign conviction constitutes a felony in Arizona for purposes of sentence enhancement as an issue of law, de novo. See State v. Health, 198 Ariz. 83, 84, ¶ 4, 7 P.3d 92, 93 (2000). ¶47 The State concedes, and we agree, that the court had insufficient information to support its finding that this California conviction qualified as an Arizona felony conviction. The minute entry from that case states only the following: IF REPETITIVE PER A.R.S. § 13-604, the Court finds that the defendant was previously convicted of the following felonies: 1. Possession of a Controlled Substance on March 24, 1997 in Riverside County, California . . . And the reasons therefore are stated by the Court on the record. Although the trial court might take judicial notice from this 26 minute entry that another court had determined that the California conviction was an historical prior felony conviction, nothing in the minute entry establishes whether this issue was challenged and litigated, admitted by Fisher, or simply found without objection. court erred in Under these circumstances, we find that the adopting this determination over Fisher s objection. ¶48 Nor can we determine on the basis of the record submitted on appeal whether the conviction for possession of an unidentified controlled substance would have been a felony in Arizona. court See Health, 198 Ariz. at 84, ¶ 3, 7 P.3d at 93. acknowledged as much at sentencing, noting that The the California judgment submitted by the State at sentencing failed to supply sufficient information to conduct the required inquiry, as it was possible that possession of a controlled substance in California may include possession of items that would not be a felony if possessed in Arizona. judgment in evidence at the hearing did The copy of the not identify the controlled substance that defendant was convicted of possessing, but simply referred to the governing statute[.] 8 8 Under these In 1997, the statute at issue, Section 11377(a) of the California Health and Safety Code, prohibited possession of numerous controlled substances listed in different statutes and outlined various exceptions to the prohibition. See Cal. Health & Safety Code § 11377(a) (1991). 27 circumstances, we vacate and remand for resentencing. resentencing, the State may produce additional At the evidence to establish the existence of historical prior felony convictions. See State v. Sowards, 147 Ariz. 156, 158-59, 709 P.2d 513, 51516 (1985) (holding that double jeopardy does not prevent the state from offering additional evidence to support enhancement at resentencing after finding insufficient evidence was offered at original sentencing). C. Use of Dangerous Instrument as Aggravator in Murder ¶49 Finally, Fisher argues that the trial court abused its discretion by imposing an aggravated sentence for the seconddegree murder instrument. conviction based on the use of a dangerous Fisher argues that because an essential element of [Fisher s] conviction for first degree murder [sic] was the use of either a deadly weapon or a dangerous instrument, the court violated the statutory prohibition against employing use of a dangerous instrument to aggravate an offense for which use of a dangerous instrument is an essential element. See A.R.S. § 13-702(C)(2) (2001). 9 ¶50 use Fisher s argument is based on the faulty premise that of essential 9 a deadly weapon element This section 701(D)(2) (2010). was of or dangerous second-degree transferred 28 in instrument murder. 2008 to is an Second-degree A.R.S. § 13- murder requires only that defendant: (1) intentionally caused the death of another person; (2) caused the death of another person, knowing that his conduct would cause death or serious physical injury; (3) under circumstances manifesting extreme indifference to human life, recklessly engaged in conduct that created a grave risk another person. See (2010). of death A.R.S. § thereby causing 13-1104(A)(1), the death of (2), and (3) Although Fisher used a knife to commit this offense, there are any number of ways to murder a person without the use of a dangerous suffocation. instrument, including by strangulation In short, use of a dangerous instrument is not an essential element of the crime of second-degree murder. court and accordingly did not err in employing this aggravate Fisher s sentence for second-degree murder. 29 factor The to CONCLUSION ¶51 For the foregoing reasons, we affirm Fisher s convictions and his sentence for second-degree murder, but we vacate his sentence for aggravated assault and remand for resentencing. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ ______________________________ PATRICK IRVINE, Presiding Judge /s/ ______________________________ DONN KESSLER, Judge 30
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