State v. Jackson ( 2019 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
RANDOLPH JACKSON, JR., Appellant.
No. 1 CA-CR 18-0237
1 CA-CR 18-0583
1 CA-CR 19-0095
(Consolidated)
FILED 6-6-2019
Appeal from the Superior Court in Yavapai County
No. P1300CR201400227
The Honorable Michael R. Bluff, Judge
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Michelle L. Hogan
Counsel for Appellee
Law Offices of David W. Dow, Phoenix
By David W. Dow
Counsel for Appellant
STATE v. JACKSON
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.
J O N E S, Judge:
¶1 Randolph Jackson, Jr., appeals his convictions and sentences
for one count each of sale or transportation of a narcotic drug, possession
or use of drug paraphernalia, and misdemeanor resisting arrest. He also
appeals two orders denying motions to modify his sentence. For the
following reasons, we modify the sentencing minute entry to reflect that the
sentence imposed for possession of drug paraphernalia is a slightly
mitigated term. In all other respects, Jackson’s convictions and sentences
are affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 In March 2014, two Yavapai County Sheriff’s Office (YCSO)
deputies parked in separate patrol vehicles monitored the roadway for
traffic violations.1 One deputy used a radar gun to determine the vehicle in
which Jackson was a passenger was traveling eighty miles per hour in a
seventy-five-mile-per-hour zone. He also saw the vehicle cross over the fog
line and watched as the driver seemed to hide from his view. When the
deputy pulled onto the roadway, the vehicle slowed to seventy miles per
hour.
¶3 When the deputy stopped the vehicle, he smelled an odor of
marijuana and asked the driver and Jackson to exit. Jackson stated they
were returning from Nevada and California to Oklahoma, where he had
rented the vehicle. When asked about the smell of marijuana, Jackson
claimed he legally smoked marijuana in California. Around this time, the
deputy learned from dispatch that the rental car company in Oklahoma had
reported the vehicle stolen.
1 “We view the facts in the light most favorable to sustaining the
convictions with all reasonable inferences resolved against the defendant.”
State v. Harm, 236 Ariz. 402, 404, ¶ 2 n.2 (App. 2015) (quoting State v.
Valencia, 186 Ariz. 493, 495 (App. 1996)).
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¶4 After being arrested and informed of his rights pursuant to
Miranda v. Arizona, 384 U.S. 436 (1966), Jackson became belligerent and
combative, forcefully pushing and pulling away from the deputies. Once
Jackson was subdued, a search incident to arrest revealed approximately
ten ounces of heroin in the insoles of Jackson’s shoes. After obtaining a
search warrant for Jackson’s phone, the deputies found photos and text
messages indicative of drug trafficking.
¶5 The State charged Jackson with sale or transportation of a
narcotic drug, possession or use of drug paraphernalia, theft of means of
transportation, and resisting arrest. Later, the trial court granted the State’s
motion to dismiss the theft of means of transportation count without
prejudice. Three months after his arrest, Jackson contacted a lieutenant
with YCSO to report that the deputies had acted improperly. In that
conversation, Jackson admitted he possessed heroin at the time.
¶6 A jury convicted Jackson of all remaining counts, and the trial
court sentenced him as a repetitive offender to an aggregate term of fifteen
years’ imprisonment. Jackson timely appealed his convictions and
sentences. While that appeal was pending, Jackson filed two unsuccessful
motions to amend his sentence, alleging he was improperly sentenced as a
repetitive offender, and timely appealed the orders disposing of those
motions. The cases were consolidated on appeal and we have jurisdiction
pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1),2 13-4031,
and -4033(A)(1), (3). See State v. Pill, 5 Ariz. App. 277, 278-79 (1967)
(concluding an order denying a motion to modify or vacate a judgment in
a criminal case made within a reasonable time after judgment is appealable
as an order made after judgment affecting the substantial rights of the
party).
DISCUSSSION
I. Suppression of the Evidence
¶7 Before trial, Jackson moved to suppress all evidence obtained
from the traffic stop. Of his many pleadings, most centered on whether the
traffic stop was illegal and whether the deputies had given inconsistent or
false statements in prior hearings; none addressed whether the search was
conducted incident to a lawful arrest or in violation of Miranda.
2 Absent material changes from the relevant date, we cite the current
version of rules and statutes.
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Decision of the Court
A. Traffic Stop
¶8 Jackson argues the trial court abused its discretion by refusing
to suppress evidence obtained after an illegal traffic stop. We review the
denial of a motion to suppress for an abuse of discretion, State v. Butler, 232
Ariz. 84, 87 ¶ 8 (2013), but review the court’s legal conclusions de novo, State
v. Booker, 212 Ariz. 502, 504, ¶ 10 (App. 2006). In doing so, we consider only
the evidence presented at the suppression hearing,3 viewing the facts in the
light most favorable to upholding the court’s ruling. Butler, 232 Ariz. at 87,
¶ 8.
¶9 To conduct a lawful traffic stop, an officer must have
articulable, reasonable suspicion that the person committed a traffic
violation. State v. Salcido, 238 Ariz. 461, 464, ¶ 7 (App. 2015) (citing State v.
Starr, 222 Ariz. 64, 69, ¶ 11 (App. 2009)). The subjective intentions of the
officer do not impact the validity of a traffic stop, so long as he reasonably
suspects that a driver committed a traffic violation. Whren v. United States,
517 U.S. 806, 813 (1996). One officer’s testimony, without corroboration, is
sufficient to support a determination of reasonable suspicion. State v.
Montano, 121 Ariz. 147, 149 (App. 1978) (noting that the “strength or
weakness of testimony is not measured by the number of witnesses”).
¶10 In Arizona, a driver must not travel “on a highway at a speed
greater than is reasonable and prudent under the circumstances.” A.R.S.
§ 28-701(A). Driving at speeds above the posted limit creates the
presumption of a violation of A.R.S. § 28-701(A). State v. Rich, 115 Ariz. 119,
121 (App. 1977) (citations omitted). Additionally, a driver travelling on a
roadway “divided into two or more clearly marked lanes” must drive “as
nearly as practicable entirely within a single lane.” A.R.S. § 28-729(1); see
also State v. Acosta, 166 Ariz. 254, 257 (App. 1990) (finding that crossing the
dividing line constituted unsafe lane usage).
¶11 The first YCSO deputy testified at the suppression hearing
that he observed at least two traffic violations, providing him with
reasonable suspicion to initiate the traffic stop. The second deputy
confirmed that he had seen the first using the radar gun to measure the car’s
speed, the car appeared to be speeding, and the car’s tires crossed the fog
line. Though the driver testified to the contrary, we defer to the trial court’s
3 The trial judge who presided over the initial suppression hearing
later recused herself from the case and asked that a second hearing be
conducted. Accordingly, we only consider the evidence presented at the
second hearing to resolve Jackson’s claims.
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Decision of the Court
assessment of witness credibility and resolution of conflicts in the evidence.
State v. Olquin, 216 Ariz. 250, 252, ¶ 10 (App. 2007). Based upon this record,
the traffic stop was supported by an articulable, reasonable suspicion and
the court did not abuse its discretion in denying Jackson’s motion to
suppress.
B. Search Incident to Arrest
¶12 Jackson claims the trial court erred in failing to suppress
evidence obtained as a result of an illegal Terry stop. See Terry v. Ohio, 392
U.S. 1 (1968). Because Jackson failed to directly advance this argument
below, we limit our review to fundamental, prejudicial error. See State v.
Escalante, 245 Ariz. 135, 140, ¶ 12 (2018) (citing State v. Henderson, 210 Ariz.
561, 567, ¶ 20 (2005)). Moreover, the record does not support Jackson’s
contention that the search of his shoes was merely a Terry stop. Rather,
Jackson had been placed under arrest for theft of means of transportation,
and therefore, the search was incident to arrest. Warrantless searches are
permissible if conducted incident to a lawful arrest but must be limited to
the arrestee’s person and the area within his immediate control. Chimel v.
California, 395 U.S. 752, 762-63 (1969), abrogated on other grounds by Arizona
v. Gant, 556 U.S. 332, 338 (2009).
¶13 Jackson argues that because the theft of means of
transportation charge was later dropped, there was no basis for the search.
Contrary to this assertion, the record does not affirmatively show a crime
did not occur, but merely that the State could not proceed upon the theft
charge at the time of trial. In moving to dismiss the theft of means of
transportation count, the State avowed that a material witness suffered
from Alzheimer’s disease and the other out-of-state witnesses had not been
cooperative. Nonetheless, at the time of the search, the deputies had
probable cause to arrest Jackson after being advised the vehicle had been
reported stolen. Thus, Jackson’s shoes were removed and searched incident
to a lawful arrest, id., and the trial court did not commit error, fundamental
or otherwise.
C. Miranda Warnings
¶14 Jackson contends the trial court erred in allowing the State to
present evidence obtained in violation of Miranda. However, the only
statements that Jackson identifies as improperly admitted are those he
made regarding whether the officers could search his phone. Because the
record shows the officers obtained a warrant before searching Jackson’s
phone, we find no error on this basis.
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Decision of the Court
¶15 To the extent Jackson intended to challenge the admission of
other statements he made in the course of his arrest, he has failed to
adequately present such a claim and it is therefore waived. See State v.
Carver, 160 Ariz. 167, 175 (1989).
II. Exculpatory Evidence and Alleged Prosecutorial Misconduct
¶16 Jackson filed multiple discovery requests and motions to
compel the State to produce dash camera recordings and disciplinary
records for the two deputies.
¶17 In early pretrial hearings, the YCSO deputy testified his dash
camera equipment was broken at the time of the offenses. At a subsequent
hearing, the deputy testified his dash camera equipment was not broken,
but he could not download recordings. The State later disclosed that the
deputy resigned from YCSO prior to an internal investigation that
“revealed numerous discrepancies and inconsistencies in [his] statements
and claims pertaining to the condition of his issued camera and audio
recording devices.” Upon in camera review of the internal investigation
records, the trial court ordered multiple memoranda and transcripts
pertaining to the investigation be disclosed to Jackson, to which the State
complied.
¶18 Jackson filed additional motions to compel the State to
produce any possible metadata from the deputy’s “in-car system hard
drives” and allow for inspection of the patrol vehicle. The State avowed
that all available evidence pertaining to the dash camera equipment had
been disclosed and, per YCSO, any possible metadata would have been
overwritten within months of the date of the offense, which was nearly two
years prior to the State or YCSO learning of the issue involving the deputy’s
equipment. The trial court found that the State had complied with
disclosure requirements, adding that any possible metadata or inspection
of the vehicle would not uncover any new information. Jackson’s motions
for dismissal and sanctions were denied.
¶19 At trial, the YCSO deputy testified that his dash camera
equipment was not broken but he could not download recordings to a disc.
The deputy denied any attempts to cover up misconduct. Jackson
extensively cross-examined the deputy as to his disciplinary records, prior
inconsistent statements, and failure to preserve recordings of the arrest.
Jackson then testified on his own behalf, claiming both deputies used racial
slurs, assaulted him, stole his money, and planted the heroin in his shoes.
He further testified that the deputies destroyed or withheld recordings to
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STATE v. JACKSON
Decision of the Court
hide their own misconduct. Although the driver of the vehicle testified at
the suppression hearing, she invoked her right against self-incrimination
for the purpose of trial and did not testify.
¶20 The trial court denied Jackson’s request to provide the jury
with a Willits instruction, see State v. Willits, 96 Ariz. 184 (1964), finding that
the recordings and possible metadata, if available, would not tend to
exonerate Jackson of the crimes.
A. Brady Violations
¶21 Jackson argues the trial court erred in denying his motions to
compel, strike, and dismiss related to the State’s purported failure to
preserve and disclose exculpatory evidence as required by Brady v.
Maryland, 373 U.S. 83 (1963). We review the court’s ruling on an alleged
Brady violation for an abuse of discretion. See State v. Arvallo, 232 Ariz. 200,
206, ¶ 36 (App. 2013).
¶22 Under Brady, the State must disclose all exculpatory evidence
in its possession that is material to the issues of guilt or punishment.
Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987) (citing United States v. Agurs,
427 U.S. 97, 107 (1976), and Brady, 373 U.S. at 87); see also Ariz. R. Crim. P.
15.1(b)(8), (f)(2)-(3) (disclosure requirements). To establish a Brady
violation, a defendant must show: (1) the undisclosed evidence is favorable
to the defense; (2) the State suppressed the evidence; and (3) nondisclosure
caused prejudice. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). If the State
fails to timely disclose exculpatory evidence, the trial court may impose
sanctions based upon the degree of prejudice caused and the availability of
less stringent remedies. State v. Ramos, 239 Ariz. 501, 504, ¶ 9 (App. 2016)
(citing what is now Ariz. R. Crim. P. 15.7(b)).
¶23 Although the YCSO deputy provided inconsistent statements
regarding his dash camera equipment, it is unclear from the record whether
any recordings or related metadata were ever created or, if created, what
they would have captured. The “mere possibility” that the items would
have aided Jackson’s defense is not enough to establish a Brady violation.
Agurs, 427 U.S. at 109-10. Additionally, the prosecutor timely disclosed the
deputy’s disciplinary records and the jury heard that the deputy had
resigned just prior to a finding that he was inconsistent and, at the very
least, lacked competency related to the use of his dash camera equipment.
Nothing from the record indicates undisclosed exculpatory evidence was
withheld from the jury. See State v. Jessen, 130 Ariz. 1, 4 (1981) (“When
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Decision of the Court
previously undisclosed exculpatory information is revealed at the trial and
is presented to the jury, there is no Brady violation.”).
B. Prosecutorial Misconduct
¶24 Jackson alleges the prosecutor: (1) elicited perjured testimony;
(2) intimidated a defense witness; and (3) improperly vouched for a deputy.
We review the trial court’s ruling on a motion to dismiss for prosecutorial
misconduct for an abuse of discretion. State v. Trani, 200 Ariz. 383, 384, ¶ 5
(App. 2001). To establish a claim of prosecutorial misconduct, a defendant
must show “the prosecutor’s misconduct so infected the trial with
unfairness as to make the resulting conviction a denial of due process.”
State v. Goudeau, 239 Ariz. 421, 465, ¶ 193 (2016) (quoting State v. Hughes,
193 Ariz. 72, 79, ¶ 26 (1998)). As arms of the State, prosecutors must not
only disclose exculpatory evidence, they may not knowingly elicit false
testimony, State v. Rivera, 210 Ariz. 188, 190, ¶ 11 (2005), or use the prestige
of the government to improperly vouch for the credibility of the State’s
witnesses, State v. Doerr, 193 Ariz. 56, 62, ¶ 24 (1998) (quoting State v.
Dumaine, 162 Ariz. 392, 401 (1989)).
¶25 To the extent Jackson argues the prosecutor purposefully
elicited perjury associated with the dash camera equipment, this contention
is not supported by the record. At trial, the YCSO deputy admitted having
provided inconsistent statements about his equipment but claimed he
believed it was malfunctioning in some way. Eliciting such testimony did
not amount to prosecutorial misconduct. Rivera, 210 Ariz. at 190, ¶ 11.
¶26 Jackson’s additional claims that the prosecutor committed
witness intimidation and vouching are similarly without merit. The
prosecutor’s request that the trial court appoint counsel for the driver of the
vehicle, who was previously listed as Jackson’s codefendant, in no way
amounted to witness intimidation. Regarding vouching, Jackson cites the
following comments made by the prosecutor to the second YCSO deputy
regarding Jackson’s allegations that during the arrest the deputies used a
racial slur and beat him: “Did either — look, you’re among friends. We’ll
keep it our secret. Did either of those things happen?” Though ill-advised,
the prosecutor’s comment that the deputy was “among friends,” did not
rise to the level of vouching; it neither placed the prestige of the government
behind its witness, nor suggested that other information not presented to
the jury supported his testimony. See Doerr, 193 Ariz. at 62, ¶ 24.
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STATE v. JACKSON
Decision of the Court
C. Willits Instruction
¶27 Jackson further contends the trial court’s failure to provide
the jury with a Willits instruction requires reversal. We review a court’s
refusal to provide a Willits instruction for an abuse of discretion. State v.
Glissendorf, 235 Ariz. 147, 150, ¶ 7 (2014) (citing State v. Bolton, 182 Ariz. 290,
309 (1995)).
¶28 A defendant is entitled to a Willits instruction, if he proves
that “(1) the state failed to preserve material and reasonably accessible
evidence that could have had a tendency to exonerate the accused, and
(2) there was resulting prejudice.” State v. Smith, 158 Ariz. 222, 227 (1988)
(citing State v. Perez, 141 Ariz. 459, 464 (1984)). It is not enough for the
defendant to merely speculate that lost or destroyed evidence may have
been helpful to the defense. Glissendorf, 235 Ariz. at 150, ¶ 9.
¶29 Though the record shows the YCSO deputy failed either to
record or preserve dash camera recordings, we are not persuaded that a
recording of the traffic stop would have tended to exonerate Jackson. The
State produced other witnesses who corroborated the deputy’s version of
events. Additionally, the State elicited testimony that the dash camera
would have only recorded the traffic stop but not the search of Jackson’s
person, which occurred in the back seat of the patrol vehicle. Jackson
presented his version of events, and the jury was tasked with determining
the credibility of the witnesses. On this record, the trial court did not abuse
its discretion in refusing to provide a Willits instruction.
III. In Propria Persona Motions
¶30 Jackson filed a litany of pleadings in propria persona, both as a
self-represented litigant and while represented by an attorney. Through
the course of this case, Jackson went through six different attorneys before
eventually choosing to represent himself at trial; the trial court informed
Jackson of the possible repercussions of such a decision. At Jackson’s
request, the court granted numerous continuances and deadline extensions.
A. Untimely Motions
¶31 Jackson argues the trial court erred in setting a substantive
motion deadline and denying various motions as untimely. Though the
court has the discretion to extend filing deadlines, parties must file motions
no later than twenty days before trial, unless the court directs otherwise,
and any untimely motions may be precluded. Ariz. R. Crim. P. 16.1(b)-(c).
“The preclusion sanction in Rule 16.1(c) exists in order to insure orderly
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pretrial procedure in the interests of expeditious judicial administration.”
State v. Vincent, 147 Ariz. 6, 8 (App. 1985).
¶32 Here, the record shows the trial court extended the filing
deadline on multiple occasions, regularly ruled upon the merits of untimely
motions, and acted within its discretion in setting a filing deadline in the
interest of judicial economy.
B. Removal from Docket
¶33 Jackson argues the trial court’s removal of motions filed in
propria persona from the docket constituted prejudicial error. “When a
defendant concurrently has self-representation and representation by
counsel, hybrid representation results.” State v. Roscoe, 184 Ariz. 484, 498
(1996) (citing State v. Murray, 184 Ariz. 9, 27 (1995)). A criminal defendant
has no constitutional right to hybrid representation, and it is disfavored as
a matter of law. State v. Cornell, 179 Ariz. 314, 325 (1994); State v. Rickman,
148 Ariz. 499, 504 (1986). “Whether to allow such hybrid representation
remains within the sound discretion of the trial judge.” Cornell, 179 Ariz. at
325 (citation omitted).
¶34 Jackson filed several pleadings in propria persona while
represented by an attorney. The trial court acted within its broad discretion
in removing the pleadings from the docket.
C. Motion to Continue During Trial
¶35 Jackson contends that the trial court erred in denying his
motion to continue, filed during trial, to allow him to obtain private
counsel. “We review the court’s interpretation of a constitutional right de
novo,” State v. Aragon, 221 Ariz. 88, 90, ¶ 4 (App. 2009), and its denial of a
request for a continuance in order to substitute counsel for an abuse of
discretion, State v. Hein, 138 Ariz. 360, 368 (1983) (citing State v. Sullivan, 130
Ariz. 213, 215 (1981)).
¶36 A trial court is given “wide latitude in balancing the right to
counsel of choice against the needs of fairness, and against the demands of
its calendar.” United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006)
(citation omitted). Our supreme court has stated that “[w]hether an
accused’s constitutional rights are violated by the denial of a request for a
continuance depends on the circumstances present in the particular case.”
Hein, 138 Ariz. at 369 (citing United States v. Casey, 480 F.2d 151, 152 (5th Cir.
1973)). In making this determination, we look to the number of other
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continuances granted, the length of the requested delay, the inconvenience
to litigants, jurors, and witnesses, and the sincerity of the request. Id.
¶37 Here, the trial court granted multiple continuances,
appointed numerous attorneys to the case, and, prior to the start of trial,
fully briefed Jackson on the consequences of representing himself.
Jackson’s request was made following the State’s presentation of its case-
in-chief with a jury already empaneled. On this record, the court did not
abuse its discretion in denying Jackson’s requested continuance. See State
v. Dixon, 226 Ariz. 545, 553, ¶ 39 (2011).
IV. Use of Prior Felony Conviction
¶38 Before trial, the State provided written notice that it intended
to use four prior felony convictions for the purposes of impeachment,
sentencing enhancement, and as an aggravating factor. The State later
disclosed copies of certified records of two prior out-of-state felony
convictions: (1) aiding and abetting racketeering, a felony offense for which
Jackson was sentenced to five years’ imprisonment in 2004 (the 2004
conviction); and (2) assault with a deadly weapon, a felony offense for
which Jackson was sentenced to six years’ imprisonment in 1981 (the 1981
conviction).
¶39 At trial, the State advised it planned to impeach Jackson with
the 2004 conviction. Over Jackson’s objection, the trial court found the 2004
conviction fell within the ten-year limit, ordered that the nature of the
offense be sanitized for the jury, and instructed the jury to consider the 2004
conviction only for purposes of witness credibility, not evidence of guilt.
Jackson ultimately admitted to the 2004 conviction, testifying that the “last
time I had trouble was in 2003.” The State did not refer to the 2004
conviction in cross-examination, nor mention it in closing argument.
¶40 At sentencing, the State presented certified records of both the
1981 and 2004 convictions, noting Jackson had admitted to the 2004
conviction during trial. The State argued the 2004 conviction was a prior
historical felony conviction given the term of imprisonment imposed but
failed to present any evidence as to Jackson’s release date. Jackson objected,
arguing the convictions were not historical. Agreeing with the State, the
trial court found the 2004 conviction to be historical for purposes of
sentencing enhancement.
¶41 Along with aggravating factors found by the jury, the trial
court considered the 1981 conviction as an aggravating factor. The court
sentenced Jackson as a category two repetitive offender, imposing a slightly
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aggravated term for sale or transportation of a narcotic drug concurrent to
a slightly mitigated term for the possession of drug paraphernalia. See infra
Part IV.
A. Impeachment
¶42 Jackson argues the trial court erred in allowing the State to
impeach him with the 2004 conviction under Arizona Rule Evidence 609.
We review the admission of a prior conviction for impeachment purposes
for an abuse of discretion. State v. King, 110 Ariz. 36, 39 (1973).
¶43 As relevant here, Rule 609 allows a party to impeach a witness
with a prior conviction if it was for a crime “punishable by death or by
imprisonment for more than one year.” Ariz. R. Evid. 609(a). Such
evidence is not admissible if a period of more than ten years has elapsed
since the date of the conviction or time of release from confinement,
whichever is later. Ariz. R. Evid. 609(b). However, Rule 609 also allows
admission of a prior felony conviction that is over ten years old if the
proponent provides written notice of intent to use the conviction and its
probative value “substantially outweighs its prejudicial effect.” Ariz. R.
Evid. 609(b)(1)-(2).
¶44 Given the State’s failure to prove a release date for the 2004
conviction and the substantial gap in time between the date of the
conviction and its admission at trial, we are not persuaded that the prior
felony conviction falls within the ten-year time limit. We nonetheless
conclude the 2004 conviction was admissible under Rule 609(b). The State
provided advanced written notice of its intent to use the 2004 conviction
and, given the significant emphasis upon witness credibility in this case, the
nature of the offenses, and Jackson’s combative conduct with the officers,
the 2004 conviction was particularly probative. Though the trial court
failed to make specific findings under Rule 609(b), the determining factors
are clear from the record. See State v. Hunter, 137 Ariz. 234, 237 (App. 1983)
(noting the failure to make findings does not require reversal where it is
clear from the record that the trial court balanced the relevant factors)
(citation omitted).
¶45 Furthermore, we are convinced beyond a reasonable doubt
that any error in the admission of the 2004 conviction was harmless. See
Bolton, 182 Ariz. at 303 (“Improper admission of evidence of prior
convictions is subject to harmless error analysis.”). The nature of the
conviction was sanitized, little attention was drawn to it, and the jury was
instructed to consider it only to assess credibility.
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B. Sentencing Enhancement
¶46 Jackson argues the trial court erred in determining the 2004
conviction was an historical felony. We review the court’s use of a prior
historical felony conviction for purposes of sentence enhancement de novo.
State v. Rasul, 216 Ariz. 491, 496, ¶ 20 (App. 2007) (citing State v. Derello, 199
Ariz. 435, 437, ¶ 8 (App. 2001)).
¶47 The State agrees the 2004 conviction was not a prior historical
felony but argues the error was harmless because the trial court could have
sentenced Jackson as a repetitive offender based on the 1981 conviction.
Indeed, the 1981 conviction involved a deadly weapon and constitutes an
historical felony conviction under A.R.S. §§ 13-105(22)(f) and -703(M).
Accordingly, we agree that Jackson was properly sentenced as a category
two repetitive offender under A.R.S. § 13-703(B) and (I) regardless of which
conviction the court found to be historical.
¶48 Jackson argues the 1981 conviction does not qualify as a prior
historical felony. Contrary to Jackson’s claim, the legislature’s rejection of
the “elements” analysis, by way of the 2012 and 2015 amendments to A.R.S.
§§ 13-105(22) and -703(M), applies to his sentences. See State v. Newton, 200
Ariz. 1, 2, ¶ 3 (2001) (“A basic principle of criminal law requires that an
offender be sentenced under the laws in effect at the time he committed the
offense for which he is being sentenced.”); State v. Johnson, 240 Ariz. 402,
406, ¶ 18 (App. 2016) (noting the legislature’s rejection of a comparative
analysis for out-of-state convictions). Thus, under A.R.S. §§ 13-105(22) and
-703(M), an out-of-state prior felony conviction involving the discharge,
use, or threatening exhibition of a deadly weapon or dangerous instrument
constitutes an historical felony conviction, regardless of the time that has
lapsed, as long as it is “punishable by that jurisdiction as a felony.” A
“deadly weapon” is defined as anything designed for lethal use, including
a firearm. A.R.S. § 13-105(15).
¶49 Here, the State proved the 1981 conviction by clear and
convincing evidence, and the certified records show Jackson used a deadly
weapon — a shotgun — in the commission of the offense. See State v.
Morales, 215 Ariz. 59, 61, ¶ 6 (2007) (explaining what the State must do to
prove a prior conviction). The record thus reflects Jackson has one prior
historical felony conviction — the 1981 conviction — for purposes of
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sentencing enhancement under A.R.S. § 13-703(B) and (I),4 and one prior
nonhistorical felony conviction — the 2004 conviction — for use as an
additional aggravating factor. Because the ultimate sentencing decision
was legally correct, we need not remand for resentencing.
V. Other Errors
¶50 Jackson argues that numerous additional errors constitute
reversible error. Of the litany of issues presented, Jackson claims the trial
court repeatedly prevented him from presenting a defense, placed unfair
restrictions and limitations on his presentation at trial, and generally
favored the State.
¶51 To the extent Jackson argues that cumulative error requires
reversal, Arizona does not recognize the cumulative error doctrine in
criminal cases, and we decline to ignore long-standing precedent here. See
State v. Hughes, 193 Ariz. at 78-79, ¶¶ 24-25 (citing State v. Dickens, 187 Ariz.
1, 21 (1996)). We further decline to extend special treatment to defendants,
such as Jackson, who choose to represent themselves. See Smith v. Rabb, 95
Ariz. 49, 53 (1963) (explaining litigants proceeding in propria persona are
held to the same familiarity of procedures, statutes, and local rules as
qualified members of the bar) (citations omitted). Finally, we decline to
address arguments merely incorporated by reference without any
meaningful analysis. See Ariz. R. Crim. P. 31.10(a)(7)(A) (stating an
argument on appeal must contain “supporting reasons for each contention,
. . . with citations of legal authorities and appropriate references to the
portions of the record”); State v. Barraza, 209 Ariz. 441, 447, ¶ 20 (App. 2005)
(disapproving the practice of incorporation of arguments by reference on
appeal). For these reasons, we reject Jackson’s remaining claims of
reversible error.
VI. Sentencing Minute Entry
¶52 Finally, the trial court identified the sentence for possession
of drug paraphernalia as a “slightly aggravated” term of 1.5 years’
imprisonment in both the oral pronouncement of sentence and the related
4 Although Jackson argues that using the 1981 conviction as an
historical felony results in double jeopardy, “[d]ouble jeopardy principles
generally do not apply to sentencing proceedings.” State v. Ring, 204 Ariz.
534, 548 (2003) (citing United States v. DiFrancesco, 449 U.S. 117, 132 (1980)).
Jackson does not point to any authority suggesting the circumstances
presented here supply an exception to that general rule.
14
STATE v. JACKSON
Decision of the Court
minute entry. The 1.5-year sentence for a category two repetitive offender
convicted of a class 6 felony is actually a slightly mitigated term. See A.R.S.
§ 13-703(I). The error appears to be inadvertent, and the court’s intent is
apparent from the record. See State v. Bowles, 173 Ariz. 214, 216 (App. 1992).
Accordingly, we modify the sentencing minute entry to identify the
sentence for possession of drug paraphernalia as a slightly mitigated term.
CONCLUSION
¶53 We affirm Jackson’s convictions and sentences but modify the
sentencing minute entry to reflect that the sentence for the paraphernalia
count represents a slightly mitigated term.
AMY M. WOOD • Clerk of the Court
FILED: JT
15