STATE v. PLEICKHARDT

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NOTE: 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 DIVISION ONE FILED: 10/23/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. ROBERT THOMAS PLEICKHARDT, Appellant. ) ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 11-0311 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-006166-001 DT The Honorable Paul J. McMurdie, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Adriana M. Zick, Assistant Attorney General Attorneys for Appellee Theresa M. Armendarez, PLLC By Theresa M. Armendarez Attorneys for Appellant J O H N S E N, Judge Phoenix Manteo, N.C. ¶1 Robert Thomas Pleickhardt appeals his conviction and sentence for aggravated robbery, a Class 3 felony. For the reasons that follow, we affirm. FACTS AND PROCEDURAL BACKGROUND 1 ¶2 A jury indicted robbery aggravated grand in violation Pleickhardt on of Revised Arizona one count of Statutes ( A.R.S. ) sections 13-1902(A) (West 2012) and -1903(A) (West 2012). 2 At trial, the victim testified she was in a grocery store parking lot loading her bags into her car when a tan car stopped alongside her. Pleickhardt exited the passenger side of the car and grabbed the purse the victim was carrying on her shoulder. He yanked the purse several times until the victim fell, the and two struggled over the purse on the ground. Pleickhardt gained control of the purse and ran back with it to the car. The victim saw the license plate number of the car as it drove away and gave the number to law enforcement. Another witness also gave the same license plate number to authorities. ¶3 A detective testified he arrested Pleickhardt and his girlfriend, Kathleen Madden, on charges unrelated to the robbery 12 days later. They were apprehended as they approached the 1 Upon review, we view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against Pleickhardt. State v. Lopez, 209 Ariz. 58, 59, ¶ 2, 97 P.3d 883, 884 (App. 2004). 2 Absent material revisions after the date offense, we cite a statute s current version. 2 of an alleged same tan car involved in the grocery store incident. Madden was carrying a cell phone belonging to the victim of the grocery store robbery. allowed the Over the defense s objection, the superior court jury to see video clips of an interview conducted of Pleickhardt following his arrest. police In the portions shown to the jury, the detective asked Pleickhardt no questions about the grocery store incident, but Pleickhardt made several statements concerning his use of the tan car. ¶4 The jury convicted Pleickhardt of aggravated robbery and found two aggravating factors. The court found Pleickhardt was on release from confinement at the time of the offense and had two sentenced historical him imprisonment. appeal pursuant prior felony convictions. to the presumptive We have jurisdiction to Article 6, term of Section of The 11.25 Pleickhardt s 9, of the court years timely Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (West 2012), 13-4031 (West 2012) and -4033(A) (West 2012). DISCUSSION A. ¶5 The Portillo Instruction. Pleickhardt argues the superior court erred in giving the reasonable doubt instruction our supreme court mandated in State v. Portillo, 182 Ariz. 592, 595, 898 P.2d 970, 973 (1995). He argues the instruction misstates the law in violation of the United States and Arizona Constitutions by shifting the burden 3 to the defendant to prove the possibility of innocence and lowers the standard for reasonable doubt. ¶6 The reasonable court doubt in Portillo instruction approved language ordered and the the instruction given to juries in all future criminal cases. P.2d at 974. of a be Id. at 596, 898 Since then, the supreme court has reaffirmed the instruction s validity on several occasions. See, e.g., State v. Ellison, 213 Ariz. 116, 133, ¶ 63, 140 P.3d 899, 916 (2006); State v. Dann, 205 Ariz. 557, 575-76, ¶ 74, 74 P.3d 231, 249-50 (2003); State v. Van Adams, 194 Ariz. 408, 418, ¶ 30, 984 P.2d 16, 26 (1999). ¶7 The instruction object. superior required court by in this Portillo case and gave the Pleickhardt jury the failed to We therefore review for fundamental error. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-24, 115 P.3d 601, 607 (2005) (appellant who failed to object to alleged trial error must show fundamental error occurred and that such error prejudiced him). ¶8 The superior court did not err in giving the Portillo instruction, and we reject Pleickhardt s should re-visit and overrule Portillo. at liberty . unconstitutional. . . to find the contention that we This court is not Portillo instruction Our supreme court has expressly approved of the instruction and . . . [w]e have no authority to overrule the 4 supreme court s decision on this matter. Ariz. 186, 188-89, ¶ 14, 986 P.2d State v. Hoover, 195 219, 221-22 (App. 1998) (quotation omitted). B. Admission of Statements from the Unrelated Investigation. ¶9 Pleickhardt argues the superior court denied him a fair trial by admitting the video clips of his interview on the unrelated offenses. He contends the court should have excluded the video pursuant to Arizona Rule of Evidence 403 because the probative value of the statements he made on the portions of the interview shown to the jury was outweighed by the prejudice he suffered when the jury learned he had been arrested and questioned on the other offenses. ¶10 may Arizona Rule of Evidence 403 provides that the court exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice. We review a decision to admit evidence challenged pursuant to Rule 403 for an abuse of discretion. State v. Spencer, 176 Ariz. 36, 41, 859 P.2d 146, 151 (1993). We view the evidence in the light most favorable to the proponent, maximizing its probative value and minimizing its prejudicial effect. State v. Kiper, 181 Ariz. 62, 66, 887 P.2d 592, 596 (App. 1994). ¶11 The superior court did not abuse its discretion in admitting the statements in excerpts the video of Pleickhardt s clips 5 were interview. relevant to show The that Pleickhardt robbery, possessed which assailant. and refuted controlled his Pleickhardt s defense videotaped the car that used he was statement that in the not the he and Madden were living out of the car because they could not afford an apartment also demonstrated his motive to steal the victim s purse. ¶12 Pleickhardt argues his possession and control over the car could have been established without unfair prejudice if the State had accepted his offer to stipulate that he made those statements to police. The superior court, however, is not required to exclude probative evidence merely because a party offers to stipulate to facts the evidence tends to prove. See State v. Coghill, 216 Ariz. 578, 587, ¶ 38, 169 P.3d 942, 951 (App. 2007) (party s offer to stipulate is only one factor the court considers in determining whether to exclude evidence). ¶13 The videotaped statements shown to the jury related only to Pleickhardt s use of the car, and the clips together spanned only two minutes. On appeal, Pleickhardt does not argue he was prejudiced by the substance of the statements he made during the excerpts shown to the jury. Instead, he argues he was prejudiced by the testimony of the detective who introduced the video and told the jury that the interview took place while Pleickhardt was under arrest and that the interview from which the excerpts were taken lasted 10 to 12 hours. 6 But Pleickhardt did not object to the detective s testimony. Because he did not raise this issue at trial, we review it for fundamental error. See Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. To establish fundamental error, Pleickhardt must prove that error occurred and that it was fundamental and prejudiced the result of the proceeding. Id. at 567-69, ¶¶ 20-26, 115 P.3d at 607-09. ¶14 We are not persuaded the court fundamentally erred by allowing the jury to learn Pleickhardt was arrested and interviewed for 10 to 12 hours in connection with other alleged offenses. been Even assuming the detective s comments should have precluded on relevance grounds, any court committed was not fundamental error. error the superior Error is fundamental only when it goes to the foundation of [a defendant s] case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial. Id. at 568, ¶ 24, 115 P.3d at 608. The detective s statements about the arrest and length of the interview were isolated and brief, with the emphasis of the testimony on what Pleickhardt stated about the car during the interview. Thus, admitting the challenged that testimony was not an error went to the foundation of Pleickhardt s case. ¶15 Moreover, Pleickhardt has not shown he was prejudiced by admission of the detective s statements. The jury was not informed of the offenses for which Pleickhardt was arrested and 7 interviewed; nor was it told whether he was ever convicted of those offenses or whether there was any relationship between those offenses arrest nor the and the length aggravated of the interview during the remainder of the trial. strong evidence eyewitness establishing testimony and the robbery, and was neither mentioned the again Especially in light of the Pleickhardt s discovery of guilt, the including victim s cell phone in Madden s purse, the court did not commit fundamental error in admitting the detective s testimony. C. Sufficiency of the Evidence. ¶16 Pleickhardt also argues there was evidence to support the jury s guilty verdict. insufficient He argues the victim s identification of him was not credible and the State did not demonstrate his connection to the vehicle used in the robbery. When considering the sufficiency of the evidence, we view the evidence in the light most favorable to sustaining the verdict and reverse only if no substantial evidence supports the conviction. State v. Pena, 209 Ariz. 503, 505, ¶ 7, 104 P.3d 873, 875 (App. 2005). Evidence is substantial if reasonable persons could disagree whether it establishes a fact at issue. State v. (1996). Rodriguez, 186 Ariz. 240, 245, 921 P.2d 643, 648 We review the record to determine whether any rational trier of fact could have found the essential elements of the 8 crime beyond a reasonable doubt. State v. Cox, 217 Ariz. 353, 357, ¶ 22, 174 P.3d 265, 269 (2007) (emphasis in original). ¶17 Substantial evidence supported the verdict. The victim testified she made eye contact with Pleickhardt when he approached her from the tan car, and she was face-to-face with him when they struggled over her purse on the ground. description witness. of Pleickhardt The victim then matched one identified provided by Pleickhardt in Her another a photo lineup and in court. ¶18 We reject Pleickhardt s argument that the victim was more focused assailant s on memorizing appearance the and car s that she license must plate her assumed have than the assailant s photo would be included in the photo lineup. No rule the is better established than that the credibility of witnesses and the weight and value given to their testimony are questions exclusively for the jury. at 269 (quotation omitted). Id. at 357, ¶ 27, 174 P.3d Pleickhardt cross-examined the victim regarding her recollection of the assailant s appearance and whether assailant s she photo assumed in the the officer lineup. In would include addition, the the court instructed the jury on evaluating the reliability of in-court identifications and credibility of witnesses. ¶19 Pleickhardt further argues the car used in the robbery was not registered to him or Madden and he did not have keys to 9 it when he was arrested. Nevertheless, when Pleickhardt was arrested, he was approaching the same car in which witnesses saw the assailant flee from the grocery store parking lot. And as discussed above, Pleickhardt acknowledged during his videotaped interview that he lived in the car, drove it and bought gasoline for it. ¶20 In short, there was more than sufficient evidence on which a reasonable jury could conclude that Pleickhardt was the man who took the victim s purse and left the scene in a car driven by an accomplice. See A.R.S §§ 13-1902(A), -1903(A). CONCLUSION ¶21 For the foregoing reasons, we affirm Pleickhardt s conviction and sentence. /s/ DIANE M. JOHNSEN, Judge CONCURRING: /s/ PATRICIA K. NORRIS, Presiding Judge /s/ JON W. THOMPSON, Judge 10

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