STATE v. PLEICKHARDT

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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 DIVISION ONE FILED: 10/11/2012 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) ) ) ) ) ) ) ) ) Appellee, v. ROBERT THOMAS PLEICKHARDT, Appellant. 1 CA-CR 11-0314 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2009-157077-001 DT The Honorable Paul J. McMurdie, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Myles A. Braccio, Assistant Attorney General Attorneys for Appellee Theresa M. Armendarez PLC By Theresa M. Armendarez Attorneys for Appellant Phoenix Manteo, N.C. J O H N S E N, Judge ¶1 Robert Thomas Pleickhardt appeals his convictions and sentences for two counts of second-degree burglary and one count each of theft, aggravated robbery, kidnapping and first-degree felony murder. Pleickhardt argues the superior court erred when it motion denied his felony-murder to statute sever; and he the instruction are unconstitutional. also argues Portillo the Arizona reasonable-doubt For the reasons that follow, we affirm Pleickhardt s convictions and sentences. FACTS AND PROCEDURAL HISTORY ¶2 Pleickhardt robbed two elderly men he believed were prostitution clients of his girlfriend ( Girlfriend ). 1 He robbed RH shortly before one o clock in the afternoon one day. RH was in his late seventies and was an admitted client of Girlfriend. RH had arranged for Girlfriend and Pleickhardt to come to his home so that he could watch them engage in sexual acts. Shortly after Girlfriend and Pleickhardt finished their performance, Pleickhardt struck RH from behind and knocked him to the ground. Pleickhardt then repeatedly and kicked him repeatedly. struck RH on the head Pleickhardt took RH s money and credit cards and beat him further in an effort to force RH to divulge his PIN number. ¶3 The second victim, DE, was 61 years old. Pleickhardt robbed DE the evening of the same day he robbed and beat RH. 1 We construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant. State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). 2 While Pleickhardt believed DE was a client of there was no independent evidence of that fact. Girlfriend s, Pleickhardt did assert, however, that he mentioned Girlfriend s name to DE to gain his confidence and permission to enter the house. DE was found dead, bound face down on the floor immediately behind his front door. His wallet and other items were missing. There were signs of a struggle; DE suffered blunt-force trauma to his head and face and his blood had soaked through the rug on which he was found. the manner Pleickhardt The cause of death was positional asphyxia due to in which used one he was tied of DE s and credit placed cards on the later evening and used another several times later. floor. that same Officers found personal property of DE s in Pleickhardt s wallet, in the car Pleickhardt was driving, in an apartment in which Pleickhardt recently stayed and in Girlfriend s purse. ¶4 The State charged Pleickhardt with second-degree burglary and aggravated robbery for the incident involving RH. It charged kidnapping Pleickhardt and involving DE. with first-degree theft, felony second-degree murder for burglary, the incident A jury convicted Pleickhardt as charged and the superior court sentenced Pleickhardt to an aggregate term of natural life plus 11.25 years imprisonment. ¶5 We have jurisdiction of Pleickhardt s appeal pursuant to Article 6, Section 9, of the Arizona Constitution, 3 and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (West 2012), 13-4031 (West 2012) and 13-4033 (West 2012). 2 DISCUSSION A. Denial of the Motion to Sever. ¶6 Prior to trial, Pleickhardt moved to sever the counts involving RH from the counts involving DE. The superior court denied the motion, holding that evidence of the offenses would be admissible in separate trials and that the danger of unfair prejudice did not outweigh the probative value of the evidence. ¶7 Pleickhardt argues on appeal that the superior court erred when it denied his motion to sever. Pleickhardt, however, failed to renew his motion during trial. If the court denies a defendant s pretrial motion to sever, the defendant must renew the motion at or before the close of the evidence. If he does not renew his motion, he waives the right to severance. Ariz. R. Crim. P. 13.4(c); State v. Laird, 186 Ariz. 203, 206, 920 P.2d 769, 772 (1996). ¶8 sever, Because we review fundamental error. Pleickhardt the court s failed denial to of renew his motion to his motion only for Laird, 186 Ariz. at 206, 920 P.2d at 772. To establish fundamental error, [a defendant] must show that the error complained of goes to the foundation of his case, 2 Absent material revisions after the date offense, we cite a statute s current version. 4 of an alleged takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial. State v. Henderson, 210 Ariz. 561, 568, ¶ 24, 115 P.3d 601, 608 (2005). Even if a defendant establishes fundamental error, the defendant also must demonstrate the error was prejudicial. at ¶ 26. Id. We review the decision to grant or deny a motion to sever based on the information before the superior court at the time the court made its ruling. See State v. Blackman, 201 Ariz. 527, 537, ¶ 39, 38 P.3d 1192, 1202 (App. 2002). ¶9 Arizona Rule of Criminal Procedure 13.3(a) allows offenses to be joined if they: (1) Are character; or of the same or similar (2) Are based on the same conduct or are otherwise connected together in their commission; or (3) Are alleged to have been a part of a common scheme or plan. Offenses must be severed if they are joined only by virtue of their same or similar character under Rule 13.3(a)(1) and evidence of one offense would not be admissible in a trial of the other. Ariz. R. Crim. P. 13.4(b). Otherwise, offenses must be severed on a defendant s motion when necessary to promote a fair determination of [] guilt or innocence. P. 13.4(a). 5 Ariz. R. Crim. ¶10 The State argued the charges need not be severed because they properly were joined pursuant to Rule 13.3(a)(3) as parts of a common scheme or plan. The superior court addressed the severance request as if the charges were joined pursuant to Rule 13.3(a)(1) Pleickhardt s (same motion or to similar sever character). because it It concluded denied evidence concerning each incident would be admissible in trial of the other pursuant to Arizona Rule of Evidence 404(b). ¶11 Whether offenses properly are joined as parts of a common scheme or plan pursuant to Rule 13.3(a)(3) presents the same question as whether evidence of various admissible to show a plan pursuant to Rule 404(b). offenses is See State v. Ives, 187 Ariz. 102, 109, 927 P.2d 762, 769 (1996) (definitions of plan used in Rule 404(b) and common scheme or plan in Rule 13.3(a)(3) are coextensive) (citing State v. Hanson, 138 Ariz. 296, 302, 674 P.2d 850, 856 (App. 1983)). ¶12 The State s theory was that Pleickhardt planned to rob Girlfriend s elderly clients, to gain access to the victims through their acquaintance with Girlfriend, to rob them and then to rely on their likely reluctance to report to police that they had been robbed frequented. by the Accordingly, boyfriend evidence of of the each prostitute offense they would be admissible to prove Pleickhardt had a common plan to commit the other. While the superior court did not expressly deny the 6 motion to sever on this basis, we may affirm its decision on any basis supported by the record. State v. Robinson, 153 Ariz. 191, 199, 735 P.2d 801, 809 (1987). ¶13 Moreover, as the superior court concluded, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Further, the court instructed the jury that it must address and decide each charge separately based on the evidence applicable to uninfluenced by its decision on any other count. presumed to follow their instructions. that count, Juries are State v. Dunlap, 187 Ariz. 441, 461, 930 P.2d 518, 538 (App. 1996). ¶14 Finally, as to possible prejudice from the denial of the motion to sever, Pleickhardt asserts only, The jury may have accumulated the evidence on the separate alleged crimes to find guilt, when if considered separately, it would not have so found. Furthermore, the jury may have experienced latent feelings of hostility engendered by the charge of several crimes as opposed to singularly related charges. There is nothing in the record to suggest either possibility occurred. reverse a inference. conviction based on speculation or We will not unsupported State v. Diaz, 223 Ariz. 358, 361, ¶ 13, 224 P.3d 174, 177 (2010). 7 B. The Constitutionality of the Felony-Murder Statute. ¶15 Pleickhardt argues A.R.S. § 13-1105(A)(2) (West 2012), the Arizona felony-murder statute, is unconstitutional because it violates a fundamental principle: it provides liability for first-degree murder whether or not the person intended to kill. Pleickhardt further unconstitutional, argues, per se, The under felony the murder Fifth, statute Eighth, is and Fourteenth Amendments to the U.S. Constitution because it is contrary to the fundamental value that criminal liability should be measured by the defendant s mens rea and because it imposes the same criminal liability for an unintended murder as a premeditated one. ¶16 Our supreme court has rejected these arguments: [T]he mens rea necessary to satisfy the premeditation element of first-degree [felony] murder is supplied by the specific intent required for the [relevant underlying] felony. We reject [the] claim that this is unconstitutional. It is not unconstitutional for the Arizona Legislature to mandate that an individual who causes the death of another while seeking to accomplish one of several enumerated felonies, each of which requires a showing of intent and/or knowledge for conviction, be subject to the same criminal charges and punishment as a person who causes the death of another person with premeditation. State v. McLoughlin, 139 Ariz. 481, 485-86, 679 P.2d 504, 508-09 (1984). 8 ¶17 When the supreme court addressed this same issue nine years later in another case, the court concluded, We reaffirm our holding in McLoughlin. Arizona s felony murder rule is not unconstitutional. State v. Herrera, 176 Ariz. 21, 30, 859 P.2d 131, 140 (1993). We are bound by decisions of the Arizona Supreme have Court and disregard them. 915, 916 Liquors, authority to overrule, modify, or Myers v. Reeb, 190 Ariz. 341, 342, 947 P.2d (App. Inc., no 1997) 177 (quoting Ariz. 375, City 378, of 868 Phoenix P.2d 958, v. Leroy s 961 (App. 1993)). C. The Portillo Instruction. ¶18 The superior court instructed the jury on the concept of reasonable doubt pursuant to State v. Portillo, 182 Ariz. 592, 596, 898 P.2d 970, 974 (1995). Pleickhardt argues the Portillo instruction should be abandoned. Our supreme court has mandated that the reasonable doubt instruction contained in Portillo be given in every criminal case. Id.; State v. Van Adams, 194 Ariz. 408, 418, ¶ 30, 984 P.2d 16, 26 (1999). Again, we Court. are bound by decisions of the Arizona Supreme Whether prior decisions of the Arizona Supreme Court are to be disaffirmed is a question for that court. Myers, 190 Ariz. at 342, 947 P.2d at 916 (quoting City of Phoenix, 177 Ariz. at 378, 868 P.2d at 961). 9 CONCLUSION ¶19 We affirm Pleickhardt s convictions and sentences. /s/ DIANE M. JOHNSEN, Judge CONCURRING: /s/ PATRICIA K. NORRIS, Presiding Judge /s/ JON W. THOMPSON, Judge 10

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