STATE v. BELLMON

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. JOE BELLMON, Appellant. ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 07/24/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 11-0007 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-139208-001DT The Honorable Robert L. Gottsfield, Judge (Retired) CONVICTIONS AND SENTENCES AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Stephen R. Collins, Deputy Public Defender Attorneys for Appellant Phoenix J O H N S E N, Judge ¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following Joe Bellmon s conviction of aggravated assault, a Class 3 felony, and shoplifting, a Class 1 misdemeanor. Bellmon s counsel has searched the record found no arguable question of law that is not frivolous. and See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Bellmon was given the opportunity to file a supplemental brief but did not do so. Instead, he requested his counsel raise several issues, which we address below. Counsel now asks this court to search the record for fundamental error. After reviewing the entire record, we affirm Bellmon s convictions and sentences. FACTS AND PROCEDURAL HISTORY ¶2 A loss prevention employee of a retail store observed Bellmon enter the store with several empty bags. 1 Bellmon walked to the men s department and put several shirts in a shopping cart. The loss prevention employee next observed Bellmon walk to a different aisle in the back of the store, take the shirts off the hangers and conceal them in one of his bags. Bellmon then proceeded to the front of the store, toward the exit. 1 Upon review, we view the facts in the light most favorable to sustaining the jury s verdicts and resolve all inferences against Bellmon. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 ¶3 The loss prevention employee exited the store ahead of Bellmon. Outside the store, she contacted Bellmon, identified herself as a loss prevention employee and told Bellmon he needed to give her the merchandise. a knife out of his pocket. She testified Bellmon then pulled She then told Bellmon, I just want the merchandise back, and Bellmon threw the bag at her and ran off. Officers apprehended Bellmon at a nearby grocery store and found a knife in his pocket. ¶4 Bellmon was charged assault, a dangerous offense. with shoplifting and aggravated After a three-day trial, a jury convicted him of shoplifting and aggravated assault but found the aggravated assault to be non-dangerous. The superior court sentenced shoplifting Bellmon to time served for the and a mitigated term of 2.75 years for the aggravated assault, with 141 days presentence incarceration credit. ¶5 Bellmon timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12- 120.21(A)(1), 13-4031 and -4033 (West 2012). 2 2 Absent material revision after the date offense, we cite a statute s current version. 3 of the alleged DISCUSSION A. Issues Raised by Bellmon. 1. Asserted prosecutorial examination. ¶6 for vouching and improper cross- Bellmon first argues the prosecutor improperly vouched the loss prevention Bellmon cross-examined employee s asking by veracity him and whether he improperly thought the employee was lying. ¶7 Bellmon testified he did not use the knife to threaten the employee; rather, he said he had taken the knife out of his pocket while he still in the store He fingernails. was to said that when the employee pick at his approached him outside the store, he was holding the knife in a non-threatening manner. The prosecutor asked Bellmon if he thought the employee was lying about what she saw or had any motive to lie. When Bellmon stated he did not assault the victim, the prosecutor responded, That s So your she s making conjecture, to this all which up? the Bellmon prosecutor stated, responded, Well, no, my conjecture is she s telling the truth. ¶8 The prosecutor continued the same theme in his closing argument. He directed the jury to the instruction on evaluating testimony for truthfulness, arguing what you need to do in this case is to evaluate the testimony. Either [the victim] is telling the truth and the defendant is guilty or he s telling 4 the truth and he s not guilty. The prosecutor then went through several of the factors in the instruction, including motive, bias and prejudice. The prosecutor then said, If you believe Mr. Bellmon was telling you the truth, that means [the victim is] a liar. ¶9 It means she made this up. [I]t is improper for the prosecution to vouch for the credibility of the state s witnesses. State v. Salcido, 140 Ariz. 342, 344, 681 P.2d 925, 927 (App. 1984). Prosecutorial vouching occurs when the prosecutor places the prestige of the government behind its witness, or where the prosecutor suggests that information not presented to the jury supports the witness s testimony. State v. Garza, 216 Ariz. 56, 64, ¶ 23, 163 P.3d 1006, 1014 (2007) (citation omitted). A prosecutor s remark that, out of context, appears to place the prestige of the government behind a witness may not constitute reversible error if the prosecutor makes it clear that the jury alone must determine the witness s credibility. 85, 91, 932 P.2d 1356, 1362 State v. Corona, 188 Ariz. (App. 1997). Similarly, a prosecutor s characterization of a witness as truthful may not warrant reversal when linked to the evidence. ¶10 that characterization is sufficiently Id. Here, the prosecutor s comments were not impermissible prosecutorial vouching. In his closing argument, the prosecutor clearly tied his argument that the loss prevention employee was 5 credible and Bellmon was not credible to the jury instruction directing the jury to evaluate each witness s testimony. At no point did the prosecutor place the prestige of the government behind the witness rather than directing the jurors to evaluate the testimony for themselves. ¶11 Bellmon also argues that the prosecutor s questions to him about whether the employee was lying were improper. This court has counseled that unless the only possible explanation for the inconsistent testimony is deceit or lying or a defendant has opened the door by testifying about the veracity of other witnesses on direct examination, the safest and recommended course is for prosecutors to refrain from asking were they lying questions. State v. Morales, 198 Ariz. 372, 375, ¶ 13, 10 P.3d 630, 633 (App. 2000). ¶12 Because questioning at Bellmon trial, fundamental error. did not however, we object review to the his prosecutor s contention for See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental error is error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial. questions alone Id. (quotation will rarely omitted). amount to Were fundamental Morales, 198 Ariz. at 376, ¶ 15, 10 P.3d at 634. 6 they lying error. ¶13 We cannot say the prosecutor s questions constituted fundamental error. When the prosecutor pressed Bellmon to say that the employee was lying, Bellmon stated, I would go [as] far, as maybe mistaken. Maybe mental recall is not clear after the time that has elapsed, but I wouldn t go so far as to call anyone a liar. mitigated might much have That s of the produced; disrespectful. prejudice in any the event, Bellmon prosecutor s the himself questioning questioning did not deprive him of a fair trial. 2. State s failure to preserve surveillance footage. ¶14 Bellmon next argues the superior court should have dismissed the charges against him because the State failed to preserve store surveillance footage. Before trial, Bellmon moved to dismiss the charges because the defense had received only two minutes of a 12-minute security tape. The superior court held a hearing at which a police officer testified he viewed the 12 minutes of footage with employee after he arrived at the store. the loss prevention The officer stated that although the tape showed Bellmon shoplifting, it did not show the confrontation outside of the store. The loss prevention employee tried to make the officer a copy of the tape, which was impounded. The copy turned out to be blank. The loss prevention employee testified she did not know what had gone wrong with the recording. 7 ¶15 At the close of the State s case, as part of a motion for judgment of acquittal pursuant to Arizona Rule of Criminal Procedure 20, Bellmon argued the State had destroyed evidence and thereby violated his due-process rights. Youngblood, 173 Ariz. 502, 844 P.2d 1152 Citing State v. (1993), the court denied the motion, finding there was neither bad faith on the part of the loss prevention employee or the police nor willful destruction of evidence. [I]n the height of caution, however, the court ruled it would give a Willits instruction, over the State s objection. 274 (1964). See State v. Willits, 96 Ariz. 184, 393 P.2d Accordingly, the court instructed the jury: If you find that the state has lost, destroyed, or failed to preserve evidence whose contents or quality are important to the issues in this case, then you should weigh the explanation, if any, given for the loss or unavailability of the evidence. If you find that any such explanation is inadequate, then you may draw an inference unfavorable to the state, which in itself may create a reasonable doubt as to the defendant s guilt. ¶16 In Youngblood, our supreme court held that [w]ith respect to evidence which might be exculpatory, and where there is no bad faith conduct, the Willits rule more than adequately complies with the fundamental fairness component of Arizona due process. 173 Ariz. at 506-07, 844 P.2d at 1156-57. possibility ultimate of prejudice sanction an is not order 8 of sufficient dismissal. to The justify the Instead, the defendant gets instruction. ¶17 more than the process due with a Willits Id. at 507, 844 P.2d at 1157 (citation omitted). Bellmon did not dispute the employee s testimony that he placed the shirts in a bag while inside the store and then walked out with them. He only disputed the employee s account about what he did with the knife outside the store. There was no evidence, however, that the missing videotape depicted what happened outside the store, and after a hearing, the court determined there was no evidence of bad faith, either on the part of the loss prevention employee or the State. As such, the Willits instruction more than adequately ensured that Bellmon received due process, and the superior court did not err by failing to dismiss the charges against him because of the missing videotape. 3. ¶18 Inability to interview victim. Bellmon next argues he was deprived of due process in that, because his lawyer was not permitted to interview the loss prevention employee, he was unaware of another witness that the employee identified at trial. At the hearing the morning of the second day of trial on the issue of the missing videotape, the court asked surveillance the loss prevention camera would be the only employee other whether witness of the the aggravated assault, and she responded, There is the associates the sales associates, cashiers at the front of the store. 9 They witnessed it. The court then asked the State if any of these witnesses would testify at trial, and the State responded they would not. ¶19 Under Arizona law, a crime victim has the right [t]o refuse an interview, deposition, or other discovery request by the defendant, the defendant s attorney, or other person acting on behalf of the defendant. Ariz. Const. art. 2, § 2.1(A)(5). Unless the victim consents, the victim shall not be compelled to submit to an interview by the defense. A.R.S. § 13-4433(A) (West 2012). ¶20 It is well-accepted that if, in a given case, the victim s state constitutional rights conflict with a defendant s federal constitutional rights to due process and effective cross-examination, the victim s rights must yield. P.M. v. Gould, 212 Ariz. 541, 545-46, ¶ 18, 136 P.3d 223, 227-28 (App. 2006) (quoting State v. Riggs, 189 Ariz. 327, 330, 942 P.2d 1159, 1162 (1997)). due-process rights. rights However, the defendant must show that his conflict with and override the victim s See State v. Connor, 215 Ariz. 553, 558, ¶¶ 10-11, 161 P.3d 596, 601 (App. 2007). ¶21 Bellmon has made no such showing. While he may believe additional witnesses might corroborate his version of the events, he points to nothing to show what they would say. Nor is there anything in the record to support his implicit 10 contention that he could not have known without interviewing the employee that others saw what happened outside the store. In short, the victim s refusal to be interviewed, in accordance with Arizona law, did not violate Bellmon s due-process rights. 4. ¶22 Sufficiency of the evidence. Bellmon next argues supported his convictions. that insufficient evidence At trial, Bellmon s counsel moved for a judgment of acquittal, and the superior court denied the motion. ¶23 Under superior court verdict if Arizona may there conviction. Rule grant is no a of Criminal judgment of substantial Procedure evidence Ariz. R. Crim. P. 20(a). to the before acquittal 20, the warrant a We review the superior court s denial of a Rule 20 motion for abuse of discretion and will reverse only when there is a complete substantial evidence to support the charges. absence State v. Carlos, 199 Ariz. 273, 276, ¶ 7, 17 P.3d 118, 121 (App. 2001). evidence recounted above was sufficient to of support The Bellmon s convictions. 5. Ineffective assistance of counsel. ¶24 Finally, Bellmon argues his counsel was ineffective. A of claim ineffective reviewed on direct appeal. assistance of counsel will not be State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20, 153 P.3d 1040, 1044 (2007); State v. 11 Spreitz, 202 (ineffective Ariz. 1, assistance 3, of ¶ 9, 39 counsel P.3d claim 525, must 527 be Arizona Rule of Criminal Procedure 32 proceeding). (2002) raised in We therefore do not reach the merits of Bellmon s argument that his counsel was ineffective. B. Fundamental Error Review. ¶25 was The record reflects Bellmon received a fair trial. represented by counsel at all stages of the proceedings against him and was present at all critical stages. held appropriate pretrial hearings. It did He not The court conduct a voluntariness hearing; however, the record did not suggest a question about the voluntariness of Bellmon s statements to police. See State v. Smith, 114 Ariz. 415, 419, 561 P.2d 739, 743 (1977); State v. Finn, 111 Ariz. 271, 275, 528 P.2d 615, 619 (1974). ¶26 The State presented both direct and evidence sufficient to allow the jury to convict. circumstantial The jury was properly comprised of eight members with two alternates. The court the properly instructed the jury on the elements of charges, the State s burden of proof and the necessity of a unanimous verdict. The jury returned a unanimous verdict, which was juror confirmed by polling. The court received and considered a presentence report, addressed its contents during 12 the sentencing hearing and imposed legal sentences for the find no crimes of which Bellmon was convicted. CONCLUSION ¶27 After reviewing reversible error. ¶28 the entire record, we See Leon, 104 Ariz. at 300, 451 P.2d at 881. After the filing of this decision, defense counsel s obligations pertaining appeal have ended. to Bellmon s representation in this Defense counsel need do no more than inform Bellmon of the outcome of this appeal and his future options, unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 15657 (1984). On the court s own motion, Bellmon has 30 days from the date of this decision to proceed, if he wishes, with a pro per motion for reconsideration. Bellmon has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ LAWRENCE F. WINTHROP, Chief Judge /s/ DONN KESSLER, Judge 13

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