State v. Kummer ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JAMES BRIAN KUMMER, Appellant.
No. 1 CA-CR 13-0739
FILED 2-3-2015
Appeal from the Superior Court in Maricopa County
No. CR2010-006269-001
The Honorable Warren J. Granville, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Terry Reid
Counsel for Appellant
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.
STATE v. KUMMER
Decision of the Court
J O N E S, Judge:
¶1 James Kummer appeals his convictions and sentences for
burglary in the first degree, kidnapping, violent sexual assault, attempted
sexual assault, and assault. Kummer’s defense counsel has searched the
record on appeal and asserts having found no arguable question of law that
is not frivolous. Therefore, in accordance with Anders v. California, 386 U.S.
738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense
counsel asks this Court to search the record for fundamental error.
Kummer was granted an opportunity to file a supplemental brief in propria
persona, which he elected to do. After reviewing the record, and examining
the issues raised by Kummer within his supplemental brief, we find no
reversible error. Accordingly, Kummer’s convictions and sentences are
affirmed.
FACTS1 AND PROCECDURAL HISTORY
¶2 On June 23, 2007, at approximately 6:30 a.m., S.P.L. was alone
in her apartment and getting ready for work. She was suddenly overcome
by a feeling she was no longer alone, and stepped out of the bathroom to
find a man standing in her living room. The man was wearing a black ski-
mask that covered his entire face and attempting to put on gloves. Upon
seeing S.P.L., the man dropped his gloves, picked up a gun he had placed
on a sofa, gestured to S.P.L. to remain quiet, and told her “no hurt” in
Spanish. He then grabbed her, tied her hands behind her back with plastic
zip-ties, and wrapped masking tape over her eyes and mouth.
¶3 The man then led S.P.L. into an adjoining bedroom, where he
closed and locked the door. Once in the room, the man tore her clothing
and fondled her breasts. The man also attempted to remove S.P.L.’s pants,
but she successfully resisted. After struggling for approximately 10 to 15
minutes, S.P.L. was able to remove the tape from her mouth and scream for
help. In an attempt to silence S.P.L., the man shoved the tape into her
mouth.
¶4 By that time, S.P.L.’s screaming had alerted her neighbor, who
came to S.P.L.’s bedroom window to investigate. Apparently aware other
people were present, the man struck S.P.L. on the forehead with his gun,
1 “We view the evidence and all reasonable inferences therefrom in
the light most favorable to sustaining the jury’s verdicts.” State v. Miles, 211
Ariz. 475, 476, ¶ 2, 123 P.3d 669, 670 (App. 2005) (citing State v. Riley, 196
Ariz. 40, 42, ¶ 2, 992 P.2d 1135, 1137 (App. 1999)).
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which caused a laceration and rendered her unconscious, and left the
apartment. After regaining consciousness, S.P.L. managed to escape her
locked apartment with her hands still tied behind her back and went to her
neighbor’s apartment, where she called the police. Phoenix Police
responded, eventually escorting S.P.L. back to her apartment to retrieve a
shirt, at which time she noticed her purse, containing a bottle of water, her
identification, and about $150, was missing.
¶5 In the course of the investigation, multiple items were taken
into custody by Phoenix Police, including the gloves and zip-ties left at the
apartment and the tape that had been wrapped around S.P.L.’s head.
Subsequent testing showed DNA collected from the left glove matched
Kummer, and DNA collected from the right glove and tape was consistent
with Kummer’s DNA profile. It was later discovered that Kummer’s
girlfriend at the time of the attack lived in the same apartment complex.
¶6 Kummer was ultimately indicted on one count of burglary in
the first degree (Count 1), one count of kidnapping (Count 2), one count of
violent sexual assault (Count 3), one count of attempted sexual assault
(Count 4), one count of aggravated assault (Count 5), and one count of
armed robbery (Count 6).
¶7 Prior to trial, the State sought to admit evidence of a 1992
sexual assault against L.R., to which Kummer pleaded guilty, toward
demonstrating Kummer “had a character trait giving rise to an aberrant
sexual propensity to commit the offense charged.” Ariz. R. Evid. 404(c).
Following oral argument,2 the trial court found the requirements of Rule
404(c) had been satisfied, and allowed the State to offer the evidence at trial.
¶8 Following a thirteen-day trial, a jury found Kummer guilty of
Counts 1 through 4 as charged, and of the lesser included offense of assault
on Count 5. The jury was unable to reach a verdict on Count 6, which was
subsequently dismissed.
¶9 At sentencing, Kummer admitted to three prior felony
convictions. The State also alleged three aggravating factors — emotional
harm, physical harm and use of a deadly weapon. Kummer waived his
right to have the aggravating factors tried to a jury, and the trial court found
2 Kummer complains he was not present at this oral argument.
However, the record demonstrates Kummer had waived his presence for
the 404(c) hearing, and, as a result of his waiver, he was not transported to
the hearing.
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STATE v. KUMMER
Decision of the Court
the State had proven the emotional harm factor beyond a reasonable doubt
and concluded the jury’s verdicts on Counts 1 through 3 necessarily
showed Kummer used a gun in the commission of the crimes. Accordingly,
Kummer was sentenced to a presumptive term of 15.75 years’
imprisonment on Count 1, an aggravated term of 20 years’ imprisonment
on Count 2, the statutorily required imprisonment term of natural life
without the possibility of parole for 25 years on Count 3, a presumptive
term of 11.25 years’ imprisonment on Count 4, and a presumptive term of
six months on Count 5. The sentences were set to run consecutively, except
for Count 4, which was set to run concurrently with Count 2, and Count 5,
which was set to run concurrently with Count 1. The trial court awarded
Kummer 1,077 days of presentence incarceration credit on Counts 1 and 5.
DISCUSSION
I. Opening Brief
¶10 Although defense counsel asserted he found no arguable
question of law that is not frivolous, the opening brief hints at possible error
surrounding Kummer’s waiver of his right to have the jury determine
whether aggravating circumstances existed, and his admission of prior
felony convictions. Given the purpose of Anders appeals, we address
counsel’s implicit concerns. See State v. Clark, 196 Ariz. 530, 535-36, ¶¶ 22-
24, 2 P.3d 89, 94-95 (App. 1999) (discussing proper method to achieve
purpose of Anders appeal — to ensure indigent defendants receive equal
and effective counsel in identifying arguable issues for appeal) (citing
Penson v. Ohio, 488 U.S. 75, 81-83 (1988)). As Kummer did not object to these
proceedings below, our review is for fundamental error. State v. Henderson,
210 Ariz. 561, 567, ¶ 22, 115 P.3d 601, 608 (2005). Under this standard, any
error must be fundamental and have caused Kummer prejudice. State v.
James, 231 Ariz. 490, 493, ¶ 11, 297 P.3d 182, 185 (App. 2013) (quotations and
citations omitted).
A. Waiver of Jury Trial on Aggravating Circumstances
¶11 With regard to waiver, the opening brief states that “[o]ther
than his right to a jury determination of the facts beyond a reasonable
doubt, [Kummer] was not advised of his constitutional rights.” A
defendant has the constitutional right to have “any fact that increases the
penalty for a crime beyond the prescribed statutory maximum,” including
allegations of aggravating circumstances, “‘submitted to a jury, and proved
beyond a reasonable doubt.’” See State v. Brown, 212 Ariz. 225, 229, ¶ 19,
129 P.3d 947, 951 (2006) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490
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STATE v. KUMMER
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(2000)). A defendant may choose to waive this right, but may only do so
“with consent of the prosecution and the court.” Ariz. R. Crim. P. 18.1(b);
see also Ariz. Rev. Stat. (A.R.S.) § 13-3983;3 State v. Durham, 111 Ariz. 19, 20,
523 P.2d 47, 48 (1974). Prior to accepting a waiver, the trial court must
“address the defendant personally, advise the defendant of the right to a
jury trial and ascertain that the waiver is knowing, voluntary, and
intelligent.” Ariz. R. Crim. P. 18.1(b)(1); State v. Baker, 217 Ariz. 118, 120,
¶ 8, 170 P.3d 727, 729 (App. 2007). “The pivotal consideration in
determining the validity of a jury trial waiver is the requirement that the
defendant understand that the facts of the case will be determined by a
judge and not a jury.” State v. Conroy, 168 Ariz. 373, 376, 814 P.2d 330, 333
(1991) (citations omitted).
¶12 The record reflects Kummer was advised by the trial court of
his right to have the alleged aggravating circumstances submitted to a jury,
and that the allegations would have to be found beyond a reasonable doubt.
Additionally, the court explained to Kummer the sentencing consequences
that may result if the allegations were proven. After being advised,
Kummer indicated he understood the ramifications, but wished for the
court to make the decision. In response to further questioning by the court,
Kummer denied: (1) taking any medicine, drugs, or alcohol within the
preceding 24 hours, (2) being promised anything in exchange for his
waiver, or (3) being threatened into waiving his right. Kummer also stated
he had sufficiently discussed his decision with defense counsel. Given this
colloquy, the court found Kummer’s waiver was knowing, intelligent and
voluntary.
¶13 Kummer was advised of his right to a jury trial, the burden of
proof, and the sentencing consequences of an affirmative finding. The trial
court also specifically explained that his waiver would enable the court to
make the findings rather than requiring a consensus of the 12-person jury.
On this record, we find no error, fundamental or otherwise, in the trial
court’s acceptance of Kummer’s waiver of his right to a jury determination
of the allegations of aggravating circumstances.
B. Admission of Prior Felony Convictions
¶14 The opening brief also implies the trial court erred in
accepting Kummer’s admission of three prior felony convictions without
conducting a complete colloquy as required by Arizona Rule of Criminal
3 Absent material revisions since the relevant date, we cite to a
statute’s current version.
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STATE v. KUMMER
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Procedure 17. Specifically, the brief asserts Kummer was not advised of his
“constitutional right[] to a trial on the prior convictions.”
¶15 Arizona Rule of Criminal Procedure 17.6 makes Rule 17’s
colloquy requirement for accepting plea agreements applicable to
admissions of prior convictions. The purpose of the Rule 17 colloquy is to
ensure a defendant’s admission of prior convictions is voluntary and
intelligent. See Ariz. R. Crim. P. 17.1(b); State v. Morales, 215 Ariz. 59, 60,
¶ 1, 157 P.3d 479, 480 (2007) (citing Ariz. R. Crim. P. 17.2, 17.3). Prior to
accepting a plea, the trial court must advise the defendant of his rights and
of the consequences of his guilty plea. Ariz. R. Crim. P. 17.2(a)-(f). The
court must also determine the defendant wishes to forego his or her
constitutional rights and the admission “is made voluntarily and not the
result of force, threats or promises.” Ariz. R. Crim. P. 17.3.
¶16 Here, the Rule 17 colloquy was incomplete. Although the
admission came after the State began presenting evidence regarding
Kummer’s prior convictions, the trial court did not specifically advise
Kummer of his right to require the State to prove them. See Ariz. R. Crim.
P. 17.2(c), 17.6; State v. Anderson, 199 Ariz. 187, 194, ¶ 36, 16 P.3d 214, 221
(App. 2000) (“[A] trial court must advise the defendant of . . . the
defendant’s right to proceed to trial and require the State to prove the
allegation.”) (citing State v. Stuart, 168 Ariz. 83, 87, 911 P.2d 335, 339 (App.
1990), and Ariz. R. Crim. P. 17.2, 17.6). The failure to provide a complete
Rule 17.6 colloquy prior to accepting an admission of prior convictions is
fundamental error. See State v. Geeslin, 221 Ariz. 574, 578, ¶ 14, 212 P.3d 912,
916 (App. 2009) (citing Morales, 215 Ariz. at 61, ¶ 10, 157 P.3d at 481, and
State v. Thues, 203 Ariz. 339, 340, ¶ 4, 54 P.3d 368, 369 (App. 2002)), vacated
in part on other grounds, 223 Ariz. 533, 225 P.3d 1129 (2010).
¶17 But that does not end our analysis. Morales, 215 Ariz. at 62,
¶ 11, 157 P.3d at 482 (“The absence of a Rule 17.6 colloquy, however, does
not automatically entitle a defendant to a resentencing.”). Rather, a
defendant must also show he was prejudiced by the error. Id. “[P]rejudice
generally must be established by showing that the defendant would not
have admitted the fact of the prior conviction had the colloquy been given.”
Id. (citing United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)).
¶18 This Court has held “that an unobjected-to presentence report
showing a prior conviction to which the defendant stipulated without the
benefit of a Rule 17.6 colloquy conclusively precludes prejudice and a
remand . . . .” State v. Gonzales, 233 Ariz. 455, 458, ¶ 11, 314 P.3d 582, 585
(App. 2013). Here, the presentence report contained the three prior felony
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STATE v. KUMMER
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convictions admitted to by Kummer and listed in the sentencing minute
entry. Kummer did not object to the accuracy of the sentencing report’s
summary of his criminal history, or seek to rebut or correct the report. See
id. (citing State v. Walden, 126 Ariz. 333, 336, 615 P.2d 11, 14 (App. 1980), and
State v. Nichols, 24 Ariz. App. 329, 330, 538 P.2d 416, 417 (1975)). Given this,
Kummer was not prejudiced by the failure to conduct a complete colloquy.
Id. at ¶ 12 (holding combination of criminal history set forth in presentence
report and subsequent stipulation to same crimes was sufficient to establish
lack of prejudice in failure to conduct colloquy) (citations omitted).
Therefore, the lack of a complete colloquy, in this instance, did not amount
to fundamental error requiring resentencing.
II. Supplemental Brief
¶19 Although his arguments are somewhat unclear, Kummer
raises the following issues in his supplemental brief: (1) the trial court erred
by allowing the State to introduce evidence of the 1992 sexual assault
pursuant to Arizona Rule of Evidence 404(c); (2) he was deprived a fair trial
by virtue of prosecutorial misconduct; and (3) the trial court abused its
discretion in the sentences imposed.4 We address each in turn.
A. Evidence of the 1992 Sexual Assault
¶20 At trial, L.R. testified Kummer sexually assaulted her in 1992,
in her apartment, in the middle of the night, while alone with her baby.
Kummer argues error by the trial court in the admission of this testimony
under Rule 404(c) to establish an “aberrant sexual propensity” to commit
the offenses charged. We review the admission of sexual propensity
evidence for an abuse of discretion. State v. Garcia, 200 Ariz. 471, 475, ¶ 25,
4 Kummer also raises concerns regarding ineffective assistance of
counsel. While recognizing such a claim is inappropriate for direct appeal,
State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002) (holding
“ineffective assistance of counsel claims are to be brought in Rule 32
proceedings”), Kummer raises various related issues, such as counsel’s
failure to test evidence, object to examination questions, and highlight
allegedly inconsistent testimony, because “the collective contribution of
[defense counsel’s] errors and inadequacies throughout the history of these
proceedings . . . greatly contributed to the prosecutorial misconduct to go
unopposed or to argue against the judicial error as it occurred.” To the
extent Kummer’s arguments throughout can be construed as raising a claim
of ineffective assistance of counsel, we do not address those concerns here.
Id.7
STATE v. KUMMER
Decision of the Court
28 P.3d 327, 331 (App. 2001) (citing State v. Vigil, 195 Ariz. 189, 191, ¶ 13,
986 P.2d 222, 224 (App. 1999)).
¶21 “Generally, evidence of other wrongs may not be used ‘to
show that a defendant is a bad person or has a propensity for committing
crimes.’” State v. Roque, 213 Ariz. 193, 211, ¶ 54, 141 P.3d 368, 386 (2006)
(quoting State v. Amarillas, 141 Ariz. 620, 622, 688 P.2d 628, 630 (1984), and
citing Ariz. R. Evid. 404(b)). An exception to this general rule has been
carved out in Rule 404(c), which “permits the admission of evidence of
[another crime, wrong, or act] to establish ‘that the defendant had a
character trait giving rise to an aberrant sexual propensity to commit the
offense charged.’” Garcia, 200 Ariz. at 475, ¶ 26, 28 P.3d at 331 (quoting
Ariz. R. Evid. 404(c)).
¶22 Before the trial court may admit evidence of another crime,
wrong, or act, it must specifically find:
(A) The evidence is sufficient to permit the trier of fact to find
that the defendant committed the other act.
(B) The commission of the other act provides a reasonable
basis to infer that the defendant had a character trait
giving rise to an aberrant sexual propensity to commit the
crime charged.
(C) The evidentiary value of proof of the other act is not
substantially outweighed by danger of unfair prejudice,
confusion of issues, or other factors mentioned in Rule 403.
Ariz. R. Evid. 404(c)(1). Here, the trial court allowed the testimony
pursuant to Rule 404(c) after considering the parties’ motions, conducting
oral argument, and reviewing a psychologist’s report. It made specific
findings with respect to each factor before admitting L.R.’s testimony, in
compliance with State v. Aguilar, 209 Ariz. 40, 49, ¶¶ 30-31, 97 P.3d 865, 874
(2004), and Rule 404(c)(1)(D), and the record supports those findings.
¶23 Under Rule 404(c)(1)(A), the State must prove by clear and
convincing evidence that the defendant committed the other act. State v.
Terrazas, 189 Ariz. 580, 584, 944 P.2d 1194, 1198 (1997). Here, Kummer
pleaded guilty to the 1992 sexual assault. His conviction of the prior sexual
assault is sufficient to allow the trier of fact to conclude he committed that
act. State v. Dixon, 226 Ariz. 545, 550, ¶ 14, 250 P.3d 1174, 1179 (2011). The
trial court did not err in determining the first prong was satisfied.
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¶24 The record also supports the trial court’s conclusion that
evidence of the prior offense provided a reasonable basis to infer Kummer
has a character trait giving rise to an aberrant sexual propensity to commit
sexual assault against non-consenting adult females.5 See Ariz. R. Evid.
404(c)(1)(B). A psychologist submitted a report to the trial court detailing
the similarities between the two assaults, and opined “the commission of
the other act in 1992 provide[d] a reasonable basis to infer” Kummer
possessed an aberrant sexual propensity to commit the crimes charged in
2007. As the court noted, both assaults involved the issue of control and
power, as the assailant over-powered both victims against their will,
prevented their escape, and took measures to keep the victims from alerting
help. In neither case did Kummer have an emotional relationship with the
victims prior to the assault. Given “the expert testimony and the substantial
similarities between the two crimes,” the court did not abuse its discretion
in determining this prong had been satisfied. Dixon, 226 Ariz. at 550, ¶ 15,
250 P.3d at 1179 (citing Ariz. R. Evid. 404(c)(1)(B), cmt. to 1997 amend. in
approving finding of a reasonable basis based upon “expert testimony” or
other facts).
¶25 Lastly, the trial court did not abuse its discretion in
concluding that Rule 404(c)(1)(C) was likewise satisfied. Under this prong,
the court must determine whether the evidentiary value of the other act is
substantially outweighed by the danger of unfair prejudice to the
defendant. Ariz. R. Evid. 404(c)(1)(C). In performing this task, the court
must consider several factors, including the remoteness of the other act,
similarities or dissimilarities between the prior and present acts, the
strength of the evidence that defendant committed the other act, the
frequency of any other acts, the surrounding circumstances and relevant
intervening events, and any other relevant factors. Ariz. R. Evid.
404(c)(1)(C)(i)-(viii).
5 Kummer contends that one prior act is insufficient to show a
character trait. First, Rule 404(c) is phrased in singular form. Rule 404(c)(1)
(“The court shall admit evidence of the other act . . . .”) (emphasis added).
Second, under Rule 404(c), evidence of the prior act is admissible only if its
commission provides “a reasonable basis to infer” the defendant has a
character trait. Ariz. R. Evid. 404(c)(1)(B). Thus, while Kummer may be
correct that a single prior act does not necessarily prove a character trait, it
remains admissible, relevant evidence from which a jury may properly
infer the existence of a character trait in the defendant giving rise to an
aberrant sexual propensity to commit a specific sexual offense.
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¶26 The record reflects the trial court carefully analyzed these
factors. Although noting the incidents took place fifteen years apart, the
court determined the acts were not too remote in light of the fact that
Kummer had been incarcerated for eight of those years. See State v. Bible,
175 Ariz. 549, 575, 858 P.2d 1152, 1178 (1993) (excluding jail time in
calculation of remoteness). There is not a “bright line test of remoteness or
similarity.” Ariz. R. Evid. 404(c)(1)(C), cmt. to 1997 amend. And the
remoteness of an act “generally does not determine its admissibility,” but
rather goes to the weight of the evidence. Bible, 175 Ariz. at 576, 858 P.2d at
1179 (“Are the two crimes so similar, unusual, and distinctive that the trial
judge could reasonably find that they bear the same signature? If so, the
evidence may be admissible and any dissimilarities go to its weight.”)
(citing State v. Roscoe, 145 Ariz. 212, 217-18, 700 P.2d 1312, 1317-18 (1984)).
Indeed, we have affirmed admission of prior acts even more remote than
the seven years found here. See, e.g., State v. Salazar, 181 Ariz. 87, 92 n.5, 887
P.2d 617, 622 n.5 (App. 1994) (approving admission of evidence of
uncharged rape that occurred twenty years prior to the charged offense
with appropriate restraints); State v. Weatherbee, 158 Ariz. 303, 304-05, 762
P.2d 590, 591-92 (App. 1988) (allowing evidence regarding prior acts of
child molestation that occurred nineteen to twenty-two years prior to the
charged offense).
¶27 The trial court also considered the similarities between the
assaults. In both, the assailant entered the apartments without a forceful
entry — once with a key and once by finding the door unlocked — and
exhibited a certain amount of planning in both assaults, entering in the early
morning hours when the victims were alone. Both victims were twenty
years old and had similar physical characteristics, such as height and
weight, and hair and eye color. They both had their clothes forcibly torn
off and were prevented from screaming by both physical and psychological
means. In addition, Kummer had developed a familiarity with the locations
where the assaults occurred: he lived in the same apartment complex as
L.R., and his girlfriend lived in the same apartment complex as S.P.L.
¶28 Differences do exist between the two crimes. Most notably,
the 2007 sexual assault illustrated an increased level of planning through
use of a weapon, concealment of identity with a ski-mask, and use of items
to help restrain the victim. However, that the second act involved a higher
level of planning than the first is not so significant as to preclude the
admission of the evidence. See Roscoe, 145 Ariz. at 218, 700 P.2d at 1318(“Absolute identity in every detail cannot be expected. Where an
overwhelming number of significant similarities exist, the evidence of the
prior act may be admitted.”). Given the totality of the circumstances and
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the similarities between the two offenses, we cannot say the trial court
abused its discretion in admitting the testimony regarding the 1992 sexual
assault under Rule 404(c).
B. Prosecutorial Misconduct
¶29 Kummer identifies numerous instances during the trial and
sentencing proceedings he believes support a claim for prosecutorial
misconduct. Specifically, he argues the prosecutor improperly coached
witnesses, made incorrect remarks about the evidence during closing
argument, and “invent[ed] testimony” at sentencing “to influence and
confuse the sentencing judge.”
¶30 “To prevail on a claim of prosecutorial misconduct, a
defendant must demonstrate that the prosecutor’s misconduct ‘so infected
the trial with unfairness as to make the resulting conviction a denial of due
process.’” State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998)
(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). To obtain a
reversal on this basis, the misconduct must be “‘so pronounced and
persistent that it permeates the entire atmosphere of the trial.’” Roque, 213
Ariz. at 228, ¶ 152, 141 P.3d at 403 (quoting Hughes, 193 Ariz. at 79, ¶ 26, 969
P.2d at 1191). When evaluating whether the “misconduct permeate[d] the
entire atmosphere of the trial, the court necessarily has to recognize the
cumulative effect of the misconduct.” Hughes, 193 Ariz. at 79, ¶ 26, 969 P.2d
at 1191. Again, because Kummer did not object to these statements at trial,
our review is for fundamental error. State v. Ramos, 235 Ariz. 230, 234, ¶ 8,
330 P.3d 987, 991 (App. 2014). For the reasons stated below, we find no
misconduct, and therefore, no error on this basis.
1. Alleged Coaching of Witnesses
¶31 Kummer identifies several instances where he believes the
prosecutor coached or prompted testimony that was inconsistent with
information provided in various police and medical reports, which were
not admitted into evidence at trial and are not in the record on appeal. First,
he contends the prosecutor coached the witnesses to exaggerate the
duration of the attack to garner jury sympathy. Second, he argues S.P.L.
was coached to claim she had been knocked unconscious during the attack
for similar reasons, when that fact was allegedly omitted from the police
and medical reports. Third, he argues the Phoenix police officer who
received a description of the assailant was coached to say S.P.L. was unsure
of the assailant’s eye color where she previously reported the assailant had
blue eyes.
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¶32 Our review of the record reveals no evidence the prosecutor
coached any of the witnesses to provide any specific testimony about the
attack or investigation. Each witness was placed under oath to testify
truthfully, as required by Arizona Rule of Evidence 603, and any minor
discrepancies between the testimony and alleged prior inconsistent
statements could be fairly attributed to the passage of time between the
assault in 2007 and the trial more than six years later. Moreover, Kummer
admits his counsel did not impeach the witnesses with any perceived
inconsistencies. The failure to do so indicates Kummer’s counsel
apparently believed the differences were of such limited significance as to
not make them noteworthy. This contention, then, would necessarily
implicate whether counsel provided ineffective assistance at trial, which we
cannot address here. Spreitz, 202 Ariz. at 3, ¶ 9, 39 P.3d at 527. Accordingly,
we find no merit in this argument.
2. Closing Arguments
¶33 Kummer also asserts the prosecutor made improper remarks
during closing argument that constituted misconduct. Prosecutors are
afforded “wide latitude in presenting their closing arguments to the jury.”
State v. Jones, 197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360 (2000). Nonetheless,
“arguments to the jury ‘must be based on facts which the jury is entitled to
find from the evidence and not on extraneous matters that were not and
could not be received in evidence.’” State v. Martinez, 175 Ariz. 114, 119, 854
P.2d 147, 152 (App. 1993) (quoting State v. Neil, 102 Ariz. 299, 300, 428 P.2d
676, 677 (1967)). “We consider arguments made in closing together with
the jury instructions to determine ‘whether the prosecutor’s statements
constituted fundamental error.’” State v. Haverstick, 234 Ariz. 161, 164, ¶ 6,
318 P.3d 877, 880 (App. 2014) (quoting State v. Hernandez, 170 Ariz. 301, 308,
823 P.2d 1309, 1316 (App. 1991)).
¶34 First, Kummer complains “misconduct occurred when [the]
prosecutor told [the] jury they could convict [him] just because of [his] prior
bad act.” However, Kummer misconstrues the prosecutor’s statement.
¶35 In addressing the jury, the prosecutor stated “we know that
this defendant attacked [S.P.L.] because of his attack on [L.R.].” The
prosecutor went on to explain that the prior act may be used for the “limited
purpose” of proving identity, which directly addressed Kummer’s defense
that he was not the assailant. The prosecutor told the jury the prior attack
could also be used to show Kummer “has a character trait that predisposes
him to commit the crimes charged,” pursuant to Arizona Rule of Evidence
404(c). Contrary to Kummer’s argument, the prosecutor did not tell the
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jurors they could convict him solely because of his prior conviction, but
rather informed them, correctly, that Kummer’s prior conviction may be
used to show identity.
¶36 Moreover, the jury was instructed it could only use evidence
of the sexual assault committed against L.R. “to establish the defendant’s
identity, intent[,] motive, preparation, plan, opportunity, knowledge,
and/or absence of the [sic] mistake or accident,” and when “determining
whether the defendant had a character trait that predisposed him to commit
the crimes charged in [that] these acts show the defendant’s character
predisposed him to commit the abnormal or unnatural sexual acts.” The
jury was then specifically instructed it could not “consider [the prior] act[]
to determine that the defendant acted in conformity with the defendant’s
character or character trait and therefore committed the charged offense,”
or “convict the defendant of any of the crimes charged simply because you
find . . . that he had a character trait that predisposed him to commit the
crimes charged.” Therefore, even if we were to assume the prosecutor’s
restatement of applicable law constituted misconduct, any resulting harm
was cured by the jury instructions. See, e.g., State v. Means, 115 Ariz. 502,
505, 566 P.2d 303, 306 (1977) (affirming refusal to grant new trial on basis of
incorrect statements of law in closing argument “in light of court’s
corrective remark and instructions”).
¶37 Next, Kummer argues the prosecutor made several factual
remarks that were unsupported by the evidence. The record does not
support his argument. The comments Kummer complains of relate to S.P.L.
being knocked unconscious during the attack, S.P.L. and L.R. having
similar physical characteristics, the length of the attack, the level of
confidence with which S.P.L. stated the perpetrator’s eyes were blue when
she gave her description of him, and his demeanor during his interview
with police. However, the prosecutor’s comments on each of these topics
were directly supported by unchallenged testimony at trial. Although
Kummer may disagree, a reasonable jury could have found the testimony
credible. See State v. Tucker, 231 Ariz. 125, 139, ¶ 29, 290 P.3d 1248, 1262
(App. 2012) (noting it is the province of the jury, not the appellate court, to
assess the witnesses’ credibility) (citing State v. Lee, 189 Ariz. 590, 603, 944
P.2d 1204, 1217 (1997)). Once the testimony was admitted, the prosecutor
“was entitled to comment on that evidence and to argue all reasonable
inferences . . . that might be drawn from it.” Martinez, 175 Ariz. at 119, 854
P.2d at 152 (citing State v. Amaya-Ruiz, 166 Ariz. 152, 171, 800 P.2d 1260, 1279
(1990)). She did nor err in doing so.
13
STATE v. KUMMER
Decision of the Court
¶38 Kummer next argues the prosecutor made incorrect
statements regarding the DNA evidence retrieved from the tape used to
blindfold S.P.L. Specifically, he alleges the prosecutor impeached the
State’s own expert witnesses’ testimony by claiming no other male DNA
than Kummer’s was found on that tape.
¶39 Testimony at trial from the State’s experts established that a
partial Y-STR DNA profile was obtained from a swab of a dark red stain on
the tape that was wrapped around S.P.L.’s head, which was consistent with
a DNA profile found on one of the gloves left at the scene. Further
testimony demonstrated the DNA profile from the glove matched that of
Kummer. On cross-examination, one of the State’s experts admitted there
was some additional DNA activity on the tape that made it possible another
profile was present, but that the sample was inconclusive and insufficient
to draw any more detailed conclusions. Kummer called his own DNA
expert, who ultimately agreed with the State’s experts that the profile
provided the possibility of an additional contributor, but could not offer
more than a theory that “an unknown gloved individual could have taken
the tape from the defendant’s residence and used it in the commission of
the crime.”
¶40 Given this testimony, it was not improper for the prosecutor
to argue Kummer’s DNA was the only male DNA on the tape. The Y-STR
DNA profile taken from the tape was consistent with Kummer’s. Although
testing indicated an inconclusive result for the presence of additional
persons, this did not prove an additional male contributor was present, but
merely that there was a possibility of such a contributor. One inference to
be drawn was that no such contributor existed; this is the reasonable
inference which the prosecutor was entitled to argue. State v. Gonzales, 105
Ariz. 434, 437, 466 P.2d 388, 391 (1970) (noting closing arguments are not
evidence, and “counsel are permitted to comment on the evidence already
introduced and to argue reasonable inferences therefrom”) (citing State v.
Propp, 104 Ariz. 466, 468, 455 P.2d 263, 265 (1969)). Indeed, defense counsel
could, and did, argue the opposing inference, that it was untrue there was
only one male DNA donor on the tape, leaving ultimate resolution of the
issue to the jury. State v. Hughes, 104 Ariz. 535, 538, 456 P.2d 393, 396 (1969).
¶41 Finally, “‘it is the universal rule that if improper statements
are made by counsel during the trial it is the duty of opposing counsel to
register an objection thereto so that the court may make a correction by
proper instruction.’” Gonzales, 105 Ariz. at 437, 466 P.2d at 391 (quoting
State v. Boozer, 80 Ariz. 8, 13, 291 P.2d 786, 789 (1955)); see also Hughes, 104
Ariz. at 538, 456 P.2d at 396 (noting no authority “for the proposition that
14
STATE v. KUMMER
Decision of the Court
the prosecutor should argue the defendant’s case for him”). Defense
counsel did not object to any of the comments Kummer deems improper.
And, upon independent review, we find the prosecutor’s remarks do not
constitute fundamental error.
3. Sentencing Phase
¶42 Kummer further contends the prosecutor fabricated
testimony regarding the length of the attack, the responding neighbor’s
memory of the attack, S.P.L.’s emotional state when police officers arrived
at the scene, and the extent of S.P.L.’s head wound, to influence and confuse
the sentencing judge. However, the gist of this argument rests in his
contrary interpretation of the evidence presented at trial. Each statement
was directly supported by testimony at trial, and none were improper.
¶43 Kummer also alleges the prosecutor deliberately mixed the
facts from the 1992 sexual assault with the 2007 sexual assault “to elicit a
response from the judge.” But there is no indication in the record that the
prosecutor confused the facts, let alone did so deliberately.
¶44 In sum, we find nothing improper in the prosecutor’s
handling of this case, and certainly no misconduct sufficient to “permeate
the entire trial” and deprive Kummer of a fair proceeding. Accordingly, we
find no error.
C. Alleged Sentencing Errors
¶45 Lastly, Kummer argues the trial court “lost his impartiality”
during sentencing, as evidenced by the “harsh sentencing range” Kummer
received. “[W]e review a court’s sentencing decision for an abuse of
discretion.” State v. Reyes, 232 Ariz. 468, 471, ¶ 8, 307 P.3d 35, 38 (App. 2013)
(citing State v. Ward, 200 Ariz. 387, 389, ¶ 5, 26 P.3d 1158, 1160 (App. 2001)).
Recognizing the broad latitude of the trial court judge in determining the
appropriate penalty, “we will not disturb a sentence that is within the
statutory limits . . . unless it clearly appears that the court abused its
discretion.” State v. Cazares, 205 Ariz. 425, 427, ¶ 6, 72 P.3d 355, 357 (App.
2003) (citing State v. Patton, 120 Ariz. 386, 388, 586 P.2d 635, 637 (1978), and
State v. Cameron, 146 Ariz. 210, 215, 704 P.2d 1355, 1360 (App. 1985)).
¶46 Contrary to Kummer’s argument, the harsh nature of the
sentence resulted not from an alleged lack of impartiality, but from the
nature of the offenses of which Kummer was found guilty, coupled with his
three prior felony convictions. The historical priors, to which Kummer
admitted at trial, qualified him to be sentenced as a category three repeat
15
STATE v. KUMMER
Decision of the Court
offender and enhanced the applicable sentencing range faced on Counts 1,
2, and 4. A.R.S. § 13-703(C), (J). This enhanced sentencing range was
explained to Kummer after the State began introducing evidence of his
prior felony convictions, and prior to his admission, and each of the
sentences imposed are within the proscribed range. See A.R.S. § 13-703(J).
Moreover, the trial court was mandated by statute to sentence Kummer to
life in prison for his violent sexual assault conviction. A.R.S. § 13-1423(B).
As the sentences are within the statutory limits, and the record does not
indicate any abuse of discretion, we will not disturb the sentences on
appeal.
¶47 Kummer also argues the trial court failed to award him
presentence incarceration credit on each count. Kummer was awarded
1,077 days of presentence incarceration credit on Counts 1 and 5 only,
which were set to run concurrently. The remaining counts were set to run
consecutively to Count 1. “When consecutive sentences are imposed, a
defendant is not entitled to presentence incarceration credit on more than
one of those sentences.” State v. McClure, 189 Ariz. 55, 57, 938 P.2d 104, 106
(App. 1997) (citing State v. Jackson, 170 Ariz. 89, 94, 821 P.2d 1374, 1379 (App.
1991), and State v. Cuen, 158 Ariz. 86, 88, 761 P.2d 160, 162 (App. 1988)).
Because consecutive sentences were imposed, the trial court correctly
limited the award of presentence incarceration credit to Counts 1 and 5.
CONCLUSION
¶48 After reviewing the entire record for reversible error, we find
none. See Leon, 104 Ariz. at 300-01, 451 P.2d at 881-82. All of the proceedings
were conducted in compliance with the Arizona Rules of Criminal
Procedure. So far as the record reveals, Kummer was represented by
counsel at all stages of the proceedings and was present at all critical stages.
There was sufficient evidence for the jury to find Kummer committed the
offenses, and the sentences imposed were within the statutory limits.
Accordingly, we affirm Kummer’s convictions and sentences.
¶49 After the filing of this decision, defense counsel’s obligations
pertaining to Kummer’s representation in this appeal have ended. Defense
counsel need do no more than inform Kummer 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. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).
¶50 Kummer has 30 days from the date of this decision to proceed,
if he wishes, with an in propria persona petition for review. See Ariz. R. Crim.
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STATE v. KUMMER
Decision of the Court
P. 31.19(a). Upon the court’s own motion, we also grant Kummer 30 days
from the date of this decision to file an in propria persona motion for
reconsideration.
:ama
17