State v. Fullen ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JOHN HOYT FULLEN, Appellant.
No. 1 CA-CR 22-0315
FILED 3-14-2023
Appeal from the Superior Court in Yavapai County
No. P1300CR202000574
The Honorable Krista M. Carman, Judge
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee
Law Offices of Stephen L. Duncan, Scottsdale
By Stephen L. Duncan
Counsel for Appellant
STATE v. FULLEN
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Angela K. Paton and Kent E. Cattani joined.
C R U Z, Judge:
¶1 This appeal was filed in accordance with Anders v. California,
386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969). Appellant John
Hoyt Fullen appeals his conviction and sentence for one count of tampering
with a witness, a class 6 felony. Counsel for Fullen has advised this court
that counsel found no arguable questions of law and asks us to search the
record for fundamental error. Fullen has been afforded an opportunity to
file a supplemental brief in propria persona and has done so. After reviewing
the record, we affirm Fullen’s conviction and sentence but modify the
superior court’s sentencing order to correct a typographical error and
thereby confirm the superior court’s ruling that Fullen is a repetitive
offender.
FACTUAL AND PROCEDURAL HISTORY
¶2 We view the evidence in the light most favorable to sustaining
the verdict, resolving all reasonable inferences against Fullen. See State v.
Rienhardt, 190 Ariz. 579, 588-89 (1997). In April 2020, F.R. contacted the
Prescott Police Department and alleged Fullen sexually assaulted her. The
State charged Fullen with sexual assault.
¶3 About a year later, F.R. was contacted by a woman named
Jackie, whose son, R.C., was in jail with Fullen. Jackie tried to persuade F.R.
not to testify against Fullen.
¶4 In February 2022, a grand jury indicted Fullen on two
additional counts—conspiracy to commit fraudulent schemes and artifices
(count 2)1 and tampering with a witness—F.R. (count 3).
¶5 Among other witnesses at trial, F.R. and R.C. testified. R.C.
testified that Fullen asked him to have Jackie contact F.R. and talk her out
1 The State alleged Fullen schemed with R.C. to have a third
individual set up a fraudulent Facebook account in F.R.’s name to create
evidence Fullen could use to defend against the sexual assault charge.
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STATE v. FULLEN
Decision of the Court
of testifying at trial. R.C. testified Fullen wanted Jackie to hide F.R. at
Jackie’s house until the trial was over, and that Fullen would pay F.R. if she
did so. F.R. testified she was contacted by Jackie, who tried to persuade her
not to testify against Fullen. F.R. testified the conversation with Jackie
caused her to feel threatened, and she reported the conversation to police.
¶6 At the close of the state’s evidence, the superior court granted
Fullen’s Arizona Rule of Criminal Procedure (“Rule”) 20 motion to dismiss
count 2. The court denied Fullen’s Rule 20 motions as to counts 1 and 3.
The jury convicted Fullen of tampering with a witness, a class 6 felony, and
acquitted him of sexual assault.
¶7 After a trial on Fullen’s prior felony convictions, the superior
court sentenced Fullen as a category three repetitive offender to a
presumptive term of 3.75 years in prison, and gave him credit for 138 days
of presentence incarceration. See Arizona Revised Statutes (“A.R.S.”)
section 13-703(C), (J).
¶8 Fullen timely appealed. We have jurisdiction pursuant to
Arizona Constitution Article 6, Section 9, and A.R.S. §§ 12-120.21(A), 13-
4031, and -4033(A)(1).
DISCUSSION
¶9 We review Fullen’s conviction and sentence for fundamental
error. See State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011). Counsel for
Fullen has advised this court that after a diligent search of the record
counsel has found no arguable question of law. We have read and
considered counsel’s brief and Fullen’s supplemental brief.
¶10 In his supplemental brief, Fullen argues his trial counsel was
ineffective, the superior court erred in determining his sentence and
presentence incarceration credit and by admitting certain exhibits, the State
presented improper expert testimony and misled and prejudiced the jury
during closing argument, and insufficient evidence supported the
conviction.
¶11 First, Fullen’s ineffective assistance of counsel claim may not
be resolved on direct appeal, and we do not address it. See State v. Spreitz,
202 Ariz. 1, 3, ¶ 9 (2002).
¶12 Fullen argues the superior court erred by admitting exhibits
33 and 55—letters R.C. provided to law enforcement that R.C. claimed he
had received from Fullen—into evidence because they only pertained to
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STATE v. FULLEN
Decision of the Court
count 2. Even if that is so, the court admitted those exhibits into evidence
after Fullen stipulated to their admission and before the court dismissed
count 2 at the close of the State’s evidence. We find no error, fundamental
or otherwise.
¶13 Fullen argues the State’s witness, Detective Hanna, gave
improper expert witness testimony when he “speculated that there was a
possibility that the handwriting [in exhibits 33 and 55] was Mr. Fullen’s.”
Detective Hanna, who was trained in handwriting analysis, testified that
after being provided copies of the letters, he took steps to verify they had
been written by Fullen, including comparing the writing in the letters with
copies of Fullen’s motor vehicle records containing his handwriting. As
noted above, Fullen did not object to the admission of exhibits 33 and 55,
and he also did not object to Detective Hanna’s testimony about
handwriting comparison. We find no reversible error.
¶14 Fullen argues the State engaged in intentional “misconduct”2
during closing argument by misstating the facts, giving an incorrect
definition of reasonable doubt, and by referring to him as a “predator.”
Fullen fails to cite to the record for these arguments and does not indicate
which facts he believes the prosecutor misstated. See Ariz. R. Crim. P.
31.10(a)(7)(A). We note, however, that the prosecutor’s discussion of
reasonable doubt comported with the law as well as the superior court’s
final jury instruction on the burden of proof. Further, Fullen immediately
objected when the prosecutor began a sentence with “[p]redators like the
Defendant in this case,” and the superior court sustained the objection and
struck the comment. We find no reversible error.
¶15 The superior court properly sentenced Fullen to the
presumptive sentence of 3.75 years in prison after finding he had two
historical prior felony convictions and was a category three repetitive
offender. See A.R.S. § 13-703(C), (J). The court’s minute entry order
erroneously has a box checked “nonrepetitive.” This is a typographical
error, and we order it corrected without remanding to the superior court.
See State v. Bowles, 173 Ariz. 214, 216 (App. 1992); State v. Stevens, 173 Ariz.
2 As our supreme court has explained, the term “prosecutorial
misconduct” broadly encompasses any conduct that violates a defendant’s
constitutional rights and “sweeps in prosecutorial conduct ranging from
inadvertent error or innocent mistake to intentional misconduct.” State v.
Murray, 250 Ariz. 543, 548, ¶ 12 (2021) (quoting In re Martinez, 248 Ariz. 458,
469, ¶ 45 (2020)).
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STATE v. FULLEN
Decision of the Court
494, 496 (App. 1992). Because Fullen spent 138 days in custody on the
tampering with a witness charge, the court did not err in determining his
presentence incarceration credit. See A.R.S. § 13-712(B) (“All time actually
spent in custody pursuant to an offense until the prisoner is sentenced to
imprisonment for such offense shall be credited against the term of
imprisonment . . . .”) (emphasis added).
¶16 We have read and considered counsel’s brief and Fullen’s
supplemental brief, and we have fully reviewed the record for reversible
error and find none. See Leon, 104 Ariz. at 300. All proceedings were
conducted in compliance with the Arizona Rules of Criminal Procedure.
Sufficient evidence supported the jury’s verdict, and Fullen was present
and represented by counsel at all critical proceedings. The sentence
imposed was within the statutory guidelines. Accordingly, we affirm
Fullen’s conviction and his sentence, as modified.
¶17 Upon the filing of this decision, defense counsel shall inform
Fullen of the status of the appeal and his future options. Counsel has no
further obligations, unless upon review counsel finds an issue appropriate
for submission to the Arizona Supreme Court by petition for review. See
State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Fullen will have thirty days
from the date of this decision to proceed, if he desires, with a pro per motion
for reconsideration or petition for review.
CONCLUSION
¶18 For the foregoing reasons, we affirm Fullen’s conviction and
his sentence, as modified.
AMY M. WOOD • Clerk of the Court
FILED: AA
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