State v. Marusich ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Respondent,
v.
STEVEN KEITH LUJAN MARUSICH, Petitioner.
No. 1 CA-CR 22-0096 PRPC
FILED 11-29-2022
Appeal from the Superior Court in Maricopa County
No. CV2014-152251-001
The Honorable Bradley H. Astrowsky, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Krista Wood
Counsel for Respondent
Daniel R. Raynak, P.C., Phoenix
By Daniel R. Raynak
Counsel for Petitioner
STATE v. MARUSICH
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Brian Y. Furuya and Judge Jennifer B. Campbell joined.
M c M U R D I E, Judge:
¶1 Steven Keith Lujan Marusich petitions this court to review the
dismissal of his petition for post-conviction relief (“PCR”) filed under
Arizona Rule of Criminal Procedure 32.1. We have considered the petition
and grant review but deny relief.
¶2 The superior court sentenced Marusich after a jury found him
guilty of two counts of sexual conduct with a minor. This court affirmed the
convictions and sentences on direct appeal. State v. Marusich, No. CA-CR
18-0295, 2019 WL 4447629, at *5, ¶ 39 (Ariz. App. Sept. 17, 2019) (mem.
decision).
¶3 Marusich then petitioned for PCR, arguing his counsel was
ineffective. The superior court denied the petition, finding no colorable
claim. In rejecting the claims, the court explained that even if Marusich’s
allegations were true, “the verdict would not have been different as there
would not have been much, if any, additional relevant evidence and there
was overwhelming evidence of guilt.”
¶4 Marusich petitioned for review, claiming that trial counsel
was ineffective by failing to (1) adequately investigate the victim’s (Abby)1
mental health records and reputation, (2) request a mistrial, preclusion, or
extended continuance upon the State’s disclosure of phone records, and
(3) object to evidence of other instances of Marusich and Abby’s sexual
relations at trial.
¶5 We review the superior court’s denial of post-conviction relief
for an abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006).
“To state a colorable claim of ineffective assistance of counsel, a defendant
must show both that counsel’s performance fell below objectively
reasonable standards and that this deficiency prejudiced the defendant.”
1 We use a pseudonym to protect the victim’s identity.
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STATE v. MARUSICH
Decision of the Court
Bennett, 213 Ariz. at 567, ¶ 21. As for prejudice, a defendant must show that
if the allegations are true, there is a reasonable probability the result would
have been different but for the counsel’s performance. Id. at 568, ¶ 25. A
defendant is burdened with proving a “demonstrable reality” of counsel’s
ineffectiveness rather than mere speculation. State v. Tison, 129 Ariz. 546,
556 (1981). Marusich fails to establish a colorable claim for relief.
¶6 First, Marusich alleges that counsel should have sought to
obtain Abby’s mental health records. Trial counsel did seek to obtain
Abby’s records. See Marusich, No. CA-CR 18-0295, at *1, ¶ 6 (“Marusich
argues the court erred in denying his motion to compel disclosure of
[Abby’s] mental health and school counseling records, asserting specifically
that they were relevant to her credibility.”) On appeal, this court held that
Marusich did not establish a substantial need for the record. Id. at *2, ¶ 10.
¶7 In his PCR petition, Marusich claimed counsel could have
easily figured out where Abby attended high school and should have
interviewed Abby’s friends and classmates to gather information
undermining her credibility. But Marusich fails to show how this evidence
would be discoverable or admissible. Moreover, Marusich fails to explain
how this evidence, if admitted, would have affected the outcome of his trial.
Aside from Abby’s testimony that Marusich knew she was a minor, the jury
had Marusich’s admission that he knew Abby’s age as well as messages,
pictures, phone records, and a recorded phone call all depicting a sexual
relationship between Marusich and Abby. Marusich does not explain how
proving Abby’s reputation or attacking her credibility by her mental health
records would have impacted his verdict, given the overwhelming
evidence of guilt that he knowingly had sexual relations with a minor.
¶8 Marusich further claims that counsel did not “fully explore[]”
his claim that the State untimely disclosed a report of Abby’s phone records.
Marusich asserts that, rather than reviewing the records in one day, counsel
should have moved for “mistrial, preclusion, or an extended continuance.”
Marusich states that the phone records were “dam[n]ing.” Again, this court
rejected a similar claim on appeal. Marusich, No. CA-CR 18-0295, at *2, ¶ 12.
¶9 The phone records showed that Marusich and Abby
communicated. And at the trial, Marusich conceded he spoke with Abby
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STATE v. MARUSICH
Decision of the Court
and had sex with her more than once. Marusich does not explain how the
verdicts would differ but for counsel’s actions.2
¶10 Marusich also argues that counsel erred by failing to object to
evidence that Abby and Marusich had sexual intercourse multiple times.
As this court noted when affirming Marusich’s conviction, the evidence
was likely still admissible under Arizona Rule of Evidence 404(c) because
the “acts were committed against the same victim, around the same time as
the charged acts, and in a similar manner.” Marusich, No. CA-CR 18-0295,
at *5, ¶ 25. Marusich does not explain how failing to object was
unreasonable or how the outcome would have been different had counsel
objected.
¶11 Marusich failed to establish a colorable claim of ineffective
assistance of counsel. Thus, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
2 The State disputed that it disclosed the phone records untimely. The
State avowed it disclosed the report nearly two months before the trial.
Marusich, No. CA-CR 18-0295, at *3, ¶ 14. In rejecting the claim on appeal,
this court assumed disclosure of the records was tardy but still found no
prejudice. Id. at *3, ¶ 15.
4