State v. Cummings ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
NATHANIEL BODINE CUMMINGS, Appellant.
No. 1 CA-CR 13-0544
FILED 07-10-2014
Appeal from the Superior Court in Maricopa County
No. CR2012-133876-001
The Honorable Harriet E. Chavez, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Louise Stark
Counsel for Appellant
STATE v. CUMMINGS
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Patricia K. Norris joined.
P O R T L E Y, Judge:
¶1 This is an appeal under Anders v. California, 386 U.S. 738
(1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for
Nathaniel Bodine Cummings has advised us that, after searching the
entire record, she has been unable to discover any arguable questions of
law, and has filed a brief requesting us to conduct an Anders review of the
record. The brief also notes that Cummings has identified four issues and
we will address those issues.
FACTS 1 AND PROCEDURAL HISTORY
¶2 In the early morning on June 26, 2012, Cummings entered a
7-Eleven convenience store. He made himself a plate of nachos and
attempted to pay for the purchase using food stamps on an EBT card, but
the store’s computer system would not accept the card for the transaction.
Cummings then placed one dollar on the counter, but the store clerk told
him the total cost was $3.27. Cummings replied that he had more money,
placed an additional dollar on the counter, along with a gun. Cummings
moved the gun back and forth on the counter and repeatedly asked the
clerk, “Do I owe you more money?” The clerk replied “Okay. It’s okay.
Just leave. I don’t want any trouble in this store.”
¶3 Cummings left the store with his nachos and drove away in
a truck. The store clerk called 911 and Phoenix police officers responded.
Officers observed the truck and when it stopped, removed Cummings and
a female passenger. The truck was searched and the police found a gun in
the passenger’s purse.
1We view the facts “in the light most favorable to sustaining the verdict,
and resolve all reasonable inferences against the defendant.” State v.
Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997).
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STATE v. CUMMINGS
Decision of the Court
¶4 Cummings was arrested and subsequently indicted for
armed robbery, a class two dangerous felony; aggravated assault, a class
three dangerous felony; and misconduct involving weapons, a class four
felony. He was tried and a jury only convicted him of misconduct
involving weapons. 2 Cummings stipulated to four prior felony
convictions, was subsequently sentenced to eight years in prison, and
given 394 days of presentence incarceration credit.
¶5 We have jurisdiction over this appeal pursuant to Article 6,
Section 9, of the Arizona Constitution, and Arizona Revised Statutes
sections 12-120.21(A)(1), 13-4031, and -4033(A)(1). 3
DISCUSSION
¶6 Cummings argues that the superior court erred by denying
his motion to admit hearsay statements made by the female passenger.
We review the ruling excluding hearsay for an abuse of discretion. State v.
Cruz, 218 Ariz. 149, 162, ¶ 60, 181 P.3d 196, 209 (2008). “Generally, a court
abuses its discretion where the record fails to provide substantial support
for its decision or the court commits an error of law in reaching the
decision.” State v. Cowles, 207 Ariz. 8, 9, ¶ 3, 82 P.3d 369, 370 (App. 2004)
(quoting Files v. Bernal, 200 Ariz. 64, 65, ¶ 2, 22 P.3d 57, 58 (App. 2001))
(internal quotation marks omitted).
¶7 Generally, hearsay evidence is inadmissible. Ariz. R. Evid.
802. Hearsay, however, as pertinent here, may be admitted either under
Arizona Rules of Evidence (“Rule”) 804 or 807. Rule 804 allows hearsay to
be admitted if the person making the statement is unavailable and the
statement “expose[s] the declarant to . . . criminal liability; and . . . is
supported by corroborating circumstances that clearly indicate its
trustworthiness.” Ariz. R. Evid. 804(a), (b)(3); see State v. Machado, 226
Ariz. 281, 284-85, ¶ 18, 246 P.3d 632, 635-36 (2011). Rule 807(a) allows
hearsay “if the statement is not specifically covered by a hearsay exception
in Rule . . . 804” and, in pertinent part, if “the statement has equivalent
circumstantial guarantees of trustworthiness.”
2 Cummings was found not guilty of armed robbery, but the jury was
hung on the aggravated assault charge.
3 We cite the current version of all applicable statutes, unless otherwise
noted.
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STATE v. CUMMINGS
Decision of the Court
¶8 Here, Cummings attempted to introduce the hearsay
statements made by the female passenger that she was the owner of the
gun and had exclusive possession of it during the time of the alleged
incident. The superior court found the statements lacked “circumstantial
guarantees of trustworthiness” because the passenger made several
contradictory statements about the gun. As a result, the court denied
Cummings’s motion to admit the passenger’s statements. Because the
passenger gave inconsistent statements about the gun which undermined
its trustworthiness, a requirement under either Rule 804(b)(3)(B) or
807(a)(1), the court did not abuse its discretion by denying Cummings’s
motion.
¶9 Cummings next contends that his stipulation at trial that he
was a prohibited possessor was used “as an admission that he possessed a
gun on [the date of the incident].” We disagree.
¶10 The superior court instructed the jury after both sides rested.
The jury was instructed about the elements of misconduct involving
weapons – “[t]he crime of misconduct involving weapons requires proof
that the defendant: 1. knowingly possessed a deadly weapon; and 2. was a
prohibited possessor at the time of possession of the weapon.” (Emphasis
in original.) The jury instructions also stated that “[Jurors] are to treat a
stipulation as any other evidence. [Jurors] are free to accept it or reject it,
in whole or in part, just as any other evidence.”
¶11 Although Cummings stipulated that he was a prohibited
possessor, one element of the offense, the jury was free to accept or reject
the stipulation. See State v. Allen, 223 Ariz. 125, 127, ¶ 11, 220 P.3d 245, 247
(2009) (“Although stipulations may bind the parties and relieve them of
the burden of establishing the stipulated facts, stipulations do not bind the
jury, and jurors may accept or reject them.”). Moreover, the jury was still
required to determine whether the State proved the other element of the
offense beyond a reasonable doubt – whether Cummings possessed a
deadly weapon on the date of the alleged incident. See State v. Carreon,
210 Ariz. 54, 64, ¶ 46, 107 P.3d 900, 910 (2005) (noting that a conviction
requires that a jury find the defendant guilty beyond a reasonable doubt
on every element of the offense charged), supplemented by 211 Ariz. 32, 116
P.3d 1192 (2005). The jury was properly instructed and we presume the
jury followed the court’s instructions. See State v. Reyes, 232 Ariz. 468, 471,
¶ 7, 307 P.3d 35, 38 (App. 2013). Consequently, the stipulation Cummings
entered into was not misused and we find no error.
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STATE v. CUMMINGS
Decision of the Court
¶12 Cummings also argues for the first time on appeal that the
prosecutor engaged in misconduct by improperly focusing on his prior
convictions. We disagree.
¶13 Because Cummings did not raise the issue at trial, we review
for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115
P.3d 601, 607 (2005). “To prevail . . . a defendant must establish both that
fundamental error exists and that the error in his case caused him
prejudice.” Id. at ¶ 20. Prosecutorial misconduct is “conduct that is not
merely the result of legal error, negligence, mistake, or insignificant
impropriety, but, taken as a whole, amounts to intentional conduct which
the prosecutor knows to be improper and prejudicial.” State v. Martinez,
221 Ariz. 383, 393, ¶ 36, 212 P.3d 75, 85 (App. 2009) (quoting Pool v.
Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984)) (internal
quotation marks omitted).
¶14 Before Cummings testified, the court determined that the
State could introduce his prior felony convictions for impeachment
purposes, but precluded the State from disclosing the nature of the
offenses. Cummings testified and admitted to having four prior felony
convictions and testified that he pled guilty each of those offense because
“I was guilty.” On cross-examination, Cummings was asked and only
told the jury about the dates of the offenses, the pleas, and his sentences.
The State did not violate the court’s pretrial order and did not disclose the
nature of the felony convictions.
¶15 Moreover, Cummings has not demonstrated that he was
unfairly prejudiced by the cross-examination. See Henderson, 210 Ariz. at
567, ¶ 20, 115 P.3d at 607. Accordingly, we find no error. See State v.
Watkins, 133 Ariz. 1, 2-3, 648 P.2d 116, 117-18 (1982) (noting that the State
may question a defendant regarding his or her prior convictions if the
court finds that the probative value of the evidence outweighs the
prejudicial effect); see also Davis v. Alaska, 415 U.S. 308, 316 (1974)
(recognizing “the cross-examiner has traditionally been allowed to . . .
discredit[] the witness” through the introduction of the witness’s prior
criminal convictions).
¶16 Cummings, however, argues he was prejudiced when the
State questioned him about a petition for post-conviction relief on one of
his prior convictions. Although the State asked Cummings about why he
had filed a petition “to try to get out of that guilty plea,” the court
sustained Cummings’s objection and subsequently struck the question
and answer from the record. Furthermore, the final jury instructions
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STATE v. CUMMINGS
Decision of the Court
stated that “[a]ny testimony stricken from the court record must not be
considered.” Because the court sustained the objection and directed the
jury to disregard the question and any answer, there was no prejudice.
See State v. Herrera, 203 Ariz. 131, 134-35, ¶¶ 3, 8, 51 P.3d 353, 356-57 (App.
2002) (noting that striking objectionable testimony may be a sufficient
remedy for trial error).
¶17 We have read and considered the opening brief and have
searched the entire record for reversible error. We find none. See Leon,
104 Ariz. at 300, 451 P.2d at 881. All of the proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure. The record, as
presented, reveals that Cummings was represented by counsel at all
stages of the proceedings, and the sentence imposed was within the
statutory limits.
¶18 After this decision is filed, counsel’s obligation to represent
Cummings in this appeal has ended. Counsel must only inform
Cummings of the status of the appeal and his future options, unless
counsel identifies 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). Cummings may, if desired, file a
motion for reconsideration or petition for review pursuant to the Arizona
Rules of Criminal Procedure.
CONCLUSION
¶19 Accordingly, we affirm Cummings’s conviction and
sentence.
:gsh
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