State v. Brown ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CHRISTOPHER ROBERT BROWN, Appellant.
No. 1 CA-CR 18-0652
FILED 8-29-2019
Appeal from the Superior Court in Maricopa County
No. CR2018-103044-001
The Honorable Geoffrey H. Fish, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Michael J. Dew Attorney at Law, Phoenix
By Michael J. Dew
Counsel for Appellant
STATE v. BROWN
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Maria Elena Cruz joined.
J O N E S, Judge:
¶1 Christopher Brown appeals his convictions and sentences for
one count each of sex trafficking, receiving the earnings of a prostitute,
pandering, and assault. After searching the entire record, Brown’s defense
counsel identified 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 (1969), defense counsel asks this Court to search
the record for fundamental error. Brown was granted an opportunity to file
a supplemental brief in propria persona and did so. After reviewing the
entire record, we reject the arguments raised in Brown’s supplemental brief,
and find no error. Accordingly, Brown’s convictions and sentences are
affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 On January 17, 2018, during a vice enforcement operation
near 38th Street and Van Buren Avenue, a Phoenix Police Department
officer saw Brown argue with E.L.P., strike her, and then point to the west,
in which direction she subsequently walked.1 With Brown watching her,
E.L.P. entered a truck driven by an undercover officer and agreed to engage
in a sexual act in exchange for money. In a recorded interview with the
officer, E.L.P. stated that Brown was her boyfriend, but he made her engage
in prostitution; she did so to support them because Brown refused to work;
she gave her earnings to Brown; and she feared he might hurt her if she
refused.
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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STATE v. BROWN
Decision of the Court
¶3 The State charged Brown with sex trafficking, receiving the
earnings of a prostitute, pandering, and assault. Brown rejected the State’s
plea offer, waived his right to a jury, and was tried at a bench trial.
¶4 At a defense interview the day prior to her testimony, E.L.P.
repeated the statements made to the undercover officer. Her testimony
differed markedly at trial, however, where she claimed Brown had nothing
to do with her prostitution, and that her choices in the matter were all her
own. The State impeached E.L.P. with the recording of her initial interview.
The undercover officer who conducted this interview also testified that, in
his experience with sex trafficking cases, victims frequently change their
story after seeing their trafficker in court. This officer further testified that
this is a common pattern with both sex trafficking and domestic violence
cases, wherein victims are manipulated to do what their abuser wants them
to do. Indeed, Brown had to be admonished not to communicate with
E.L.P. on more than one occasion during the trial.
¶5 When questioned about the discrepancy, E.L.P. claimed that
she had been lying on both earlier occasions because she was angry with
Brown: on the day of his arrest for having struck her, and on the day before
her testimony because she had heard he was talking to other women on the
telephone while in jail. She also claimed to have lied in her initial interview
because she wanted to avoid withdrawal symptoms from heroin and
methamphetamine that may have resulted from remaining in custody.
¶6 At the close of the State’s case, Brown’s counsel moved
unsuccessfully for a judgment of acquittal pursuant to Rule 20 of the
Arizona Rules of Criminal Procedure. Brown then testified on his own
behalf, admitting he had assaulted E.L.P. but denying any involvement in
E.L.P.’s prostitution. According to Brown, the two were in love, and the
argument police witnessed pertained to her drug use.
¶7 The trial court found Brown guilty as charged. After finding
Brown had three prior historical felony convictions, the court sentenced
Brown as a non-dangerous, repetitive offender to the minimum term of
fourteen years’ imprisonment for sex trafficking, presumptive terms of five
years’ imprisonment for receiving the earnings of a prostitute and
pandering, and one month of jail time for assault. The court ordered the
sentences to be served concurrently and credited Brown with 241 days of
presentence incarceration. Brown timely appealed, and we have
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STATE v. BROWN
Decision of the Court
jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-
120.21(A)(1),2 13-4031, and -4033(A)(1).
DISCUSSION
I. Discovery
¶8 Within his supplemental brief, Brown first argues that
because he had not received discovery, he was unable to mount an effective
defense. Generally, the trial court is afforded great latitude in discovery
issues, and we will not disturb their rulings “absent an abuse of discretion.”
State v. Bernini, 220 Ariz. 536, 538, ¶ 7 (App. 2009) (citations omitted). This
abuse arises when the court applies the law incorrectly or renders decisions
without a rational basis. See State v. Linares, 241 Ariz. 416, 418, ¶ 6 (App.
2017) (citing Gorman v. City of Phx., 152 Ariz. 179, 182 (1987)). We find no
such abuse. When Brown raised the issue at trial, both the court and
Brown’s counsel indicated that Brown had already been provided with all
the material to which he was entitled — in this case a police report. The
court here found that Brown had simply misunderstood what “discovery”
meant. On this record, Brown has not shown his ability to raise a defense
was hindered by discovery issues.
II. Admission of E.L.P.’s Prior Inconsistent Statements
¶9 Brown also argues the trial court erred in admitting E.L.P.’s
prior statements because she testified she was lying during the interviews.
Arizona Rule of Evidence 801(d)(1)(A) permits the admission of prior
statements if “[t]he declarant testifies and is subject to cross-examination
about a prior statement, and the statement . . . is inconsistent with the
declarant’s testimony.” Courts admit such statements, which would
otherwise be considered hearsay, to allow the trier of fact “to hear the
conflicting statements and decide ‘which story represents the truth in the
light of all the facts, such as the demeanor of the witness, the matter brought
out on the witness’ direct and cross-examination, and the testimony of
others.’” State v. Joe, 234 Ariz. 26, 29, ¶ 12 (App. 2014) (quoting State v.
Miller, 187 Ariz. 254, 257 (App. 1996), and citing State v. Carr, 154 Ariz. 468,
471 (1987)). Here, E.L.P.’s recorded statements were inconsistent with her
testimony and she was subject to cross-examination. The fact-finder was
therefore empowered to hear the conflicting evidence, and we find no error
in the admission of this evidence.
2 Absent material changes from the relevant date, we cite the current
version of rules and statutes.
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STATE v. BROWN
Decision of the Court
III. Judicial Bias
¶10 Finally, Brown suggests the trial court judge was biased as a
trier-of-fact. In reviewing such claims, we presume judges to be “free of
bias and prejudice.” State v. Rossi, 154 Ariz. 245, 247 (1987) (citation
omitted). To overcome this presumption, the defendant “must prove by a
preponderance of the evidence that the judge is biased or prejudiced.” Id.
Brown offers no evidence to support his claim; he simply asserts that his
innocence was so obvious that only a biased judge could find otherwise.
Our review of the record shows no objective indication that the judge
lacked impartiality. Accordingly, Brown fails to prove he was deprived a
fair trial on this basis.
IV. Fundamental Error Review
¶11 Further review reveals no fundamental error. See Leon, 104
Ariz. at 300 (“An exhaustive search of the record has failed to produce any
prejudicial error.”). A person is guilty of sex trafficking if he “knowingly
traffic[s] another person, who is eighteen years of age or older,” with either
the intent to cause or knowledge that “the other person will engage in any
prostitution or sexually explicit performance by deception, force or
coercion.” A.R.S. § 13-1307(A). A person is guilty of receiving the earnings
of a prostitute if he “knowingly receives money . . . from the earnings of a
person engaged in prostitution.” A.R.S. § 13-3204. A person is guilty of
pandering if he “knowingly . . . [c]ompels, induces or encourages any
person to become a prostitute or engage in an act of prostitution.” A.R.S.
§ 13-3209(4). And, a person is guilty of assault if he “[k]nowingly touch[es]
another person with the intent to injure, insult or provoke such person.”
A.R.S. § 13-1203(A)(3). The record contains sufficient evidence upon which
the trier of fact could determine beyond a reasonable doubt that Brown was
guilty of the charged offenses.
¶12 All of the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. So far as the record reveals, Brown
was present at all stages of the proceedings and represented by counsel at
all critical stages. See State v. Conner, 163 Ariz. 97, 104 (1990) (right to
counsel at critical stages) (citations omitted); State v. Bohn, 116 Ariz. 500, 503
(1977) (right to be present at critical stages). While represented by counsel,
Brown knowingly, intelligently, and voluntarily waived his right to a jury
trial. See Ariz. R. Crim. P. 18.1(b). At sentencing, Brown was given an
opportunity to speak, and the trial court stated on the record the evidence
and materials it considered and the factors it found in imposing the
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STATE v. BROWN
Decision of the Court
sentences. See Ariz. R. Crim. P. 26.9, 26.10. Additionally, the sentences
imposed were within the statutory limits.3 See A.R.S. §§ 13-703(C), (J).
CONCLUSION
¶13 Brown’s convictions and sentences are affirmed.
¶14 Defense counsel’s obligations pertaining to Brown’s
representation in this appeal have ended. Defense counsel needs do no
more than inform Brown of the outcome of this appeal and his future
options, unless, upon review, counsel finds an issue appropriate for
submission to our supreme court by petition for review. State v. Shattuck,
140 Ariz. 582, 584-85 (1984).
¶15 Brown has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. See Ariz.
R. Crim. P. 31.21. Upon the Court’s own motion, we also grant Brown thirty
days from the date of this decision to file an in propria persona motion for
reconsideration. See Ariz. R. Crim. P. 31.20.
AMY M. WOOD • Clerk of the Court
FILED: AA
3 The record reflects Brown was arrested and incarcerated on January
17, 2018, and held until sentencing on September 10, 2018, for a total of 235
days’ presentence incarceration. Although the trial court erroneously gave
Brown credit for 241 days of presentence incarceration, the error is in
Brown’s favor and is, therefore, not fundamental because it does not
prejudice him. See State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20 (2005)
(explaining fundamental error is error that both goes to the foundation of
the case and prejudices the defendant).
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