State v. Strong

NOTICE: NOT FOR PUBLICATION.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.
PRESTON ALTON STRONG, Appellant.
No. 1 CA-CR 12-0754
FILED 09-02-2014
Appeal from the Superior Court in Yuma County
No. S1400CR200800527
The Honorable John Neff Nelson, Judge
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee
Elizabeth M. Brown, Attorney at Law, Yuma
By Elizabeth M. Brown
Counsel for Appellant
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Donn Kessler joined.
H O W E, Judge:
¶1 Preston Alton Strong appeals his convictions on two counts
of first-degree murder, one count each of kidnapping, armed robbery,
burglary, and attempted arson, and two counts of aggravated assault. For
reasons that follow, we affirm all of the convictions, but modify the
judgment of guilt and sentencing order to merge the two convictions for
first-degree murder into a single count and vacate the sentence imposed on
the second murder count.
FACTS AND PROCEDURAL HISTORY
¶2 On the evening of November 2, 2007, the police were called to
the victim’s home to perform a welfare check. When officers entered the
home, they smelled natural gas and saw multiple candles burning in the
kitchen and dining room. The officers retreated from the home and
contacted the fire department for assistance. After turning off the gas and
ventilating the home, firefighters entered and extinguished the candles.
The firefighters determined that all four burners on the home’s gas stove
had been turned on.
¶3 Once the home was safe to enter, officers found the victim
dead in the master bathroom. The victim was dressed in pants and an
undershirt, and his body was draped facedown over the bathtub with the
lower part of the body outside the tub. The tub was partially filled with
water, and the victim’s head was in the water. In addition, the victim had
both a leather belt and a cloth belt from a bathrobe wrapped around his
neck.
¶4 An autopsy revealed that the victim died of asphyxia due to
ligature strangulation with blunt force trauma to his head as a contributing
factor. The victim’s body was found to have bruising and numerous
fractured ribs consistent with additional multiple blunt force impacts to his
rib area and his legs before his death. Based on the condition of the body,
the pathologist who performed the autopsy opined that the time of death
was closer to when the victim was last seen alive in the late afternoon of
November 1st, rather than when the victim was found dead the following
evening.
¶5 The victim had engaged in strange conduct the day before he
died. The victim called a friend that afternoon and offered her one hundred
dollars if she would come by his home and take a check to the bank to cash
for him. The check was in the amount of $24,000 and was left under the
door mat at the victim’s front door. While the friend went to and from the
2
bank, the victim called her several times to see if she had completed the
errand. Once at the bank, the friend presented the check and the teller gave
her the funds in packets of fifty-dollar bills bound with purple money
bands. When the friend returned to the victim’s home with the money, the
victim opened the door only a crack and took the money, telling the friend
that it was for a family emergency. The friend asked if she could come in,
but the victim said no, claiming he was not dressed. The friend was puzzled
by this response because she could see that the victim was in fact dressed,
wearing the same pants and shirt he was found dead in the following
evening. Shortly after the friend left, the victim called her again and asked
if they could meet for dinner that evening. The friend agreed, but the victim
never appeared at the time scheduled and never returned any of the friend’s
calls. The friend learned the next day that the victim’s cell phone had been
found near a canal and asked the police to conduct the welfare check.
¶6 Strong’s ex-girlfriend, the victim’s co-worker, informed the
police on the same evening the victim was found dead that she had
concerns that Strong was involved in his murder. She told the police that
Strong had a large amount of money that morning and no explanation for
it. Subsequent investigation led the police to conclude that Strong forced
the victim to arrange for delivery of the money from the bank, then killed
him and left the gas turned on and the candles lit to cover up the murder
by burning down the home.
¶7 A grand jury indicted Strong on first-degree premeditated
murder, first-degree felony murder, kidnapping, armed robbery, first-
degree burglary, aggravated assault, and attempted arson. The State further
alleged multiple aggravating circumstances and gave notice it intended to
seek the death penalty.
¶8 During pretrial proceedings, Strong offered to waive his right
to a jury trial in exchange for withdrawal of the State’s notice of intent to
seek the death penalty. The State accepted the offer, and the trial court held
a hearing at which Strong signed a written waiver of his right to a jury trial
and the trial court questioned him about his decision. The trial court
accepted the waiver, finding that it was made knowingly, intelligently, and
voluntarily.
¶9 Following a thirty-four-day bench trial, the trial court found
Strong guilty on all eight counts. The trial court thereafter sentenced Strong
to concurrent terms of natural life imprisonment on the first-degree murder
convictions. The remaining convictions were ordered to be served
consecutively to the murder convictions, with presumptive terms of five
years’ imprisonment on each of the kidnapping, armed robbery, and
3
burglary counts, and three and one-half years’ imprisonment on each of the
aggravated assault and attempted arson counts, totaling twenty-two years
consecutive to the two concurrent life terms. Strong timely appealed.
DISCUSSION
¶10 Strong argues the trial court erred by: 1) denying his motion
for change of venue; 2) denying his motion to disqualify the Yuma County
Attorney’s Office for prosecutorial misconduct; 3) finding that he made a
voluntary waiver of his right to a jury trial; and 4) finding him guilty when
insufficient evidence supported his convictions.
1. Motion for Change of Venue
¶11 Before waiving his right to a jury trial, Strong moved for a
change of venue, citing unfair pretrial publicity regarding the victim’s
murder and a second incident involving the murder of six people in which
the police named him a “person of interest.” He argued that given the
nature and amount of the pretrial publicity and Yuma County’s small
population, receiving a fair trial in that county would be impossible. After
hearing argument and considering the evidence, the trial court denied the
motion.
¶12 Strong claims the trial court abused its discretion in refusing
to change venue. In response, the State argues Strong’s election to proceed
with a bench trial mooted any claim he may have had arising out of the
denial of his motion for a change of venue. We agree that Strong’s waiver
of a jury trial mooted the issue of the motion for change of venue.
¶13 A defendant is entitled to change the venue for his trial “if a
fair and impartial trial cannot be had for any reason other than the interest
or prejudice of the trial judge.” Ariz. R. Crim. P. 10.3(a). Appellate review
of a ruling on a motion for change of venue based on a claim of pretrial
publicity involves two inquires: “(1) did the publicity pervade the court
proceedings to the extent that prejudice can be presumed?; if not, then (2)
did defendant show actual prejudice among members of the jury?” State v.
Murray, 184 Ariz. 9, 26, 906 P.2d 542, 559 (1995). Strong explicitly states in
his opening brief that he “is not alleging on appeal that presumed prejudice
existed” and concedes that he must therefore “demonstrate actual
prejudice” to prevail on his claim of error.
¶14 In the absence of presumed prejudice, a defendant must
demonstrate “that the pretrial publicity was actually prejudicial and likely
deprived him of a fair trial.” State v. Davolt, 207 Ariz. 191, 206 ¶ 49, 84 P.3d
4
456, 471 (2004). “The relevant inquiry for actual prejudice is the effect of the
publicity on the objectivity of the jurors actually seated.” (internal quotation
marks and citations omitted) (emphasis added). State v. Cruz, 218 Ariz. 149,
157 ¶ 21, 181 P.3d 196, 204 (2008). By having the case tried to the court rather
than a jury, Strong eliminated any possibility of being deprived of a fair
trial due to biased jurors.
2. Motion to Disqualify Prosecutor’s Office
¶15 A month before trial was to begin, Strong moved to disqualify
the Yuma County Attorney’s Office from handling the prosecution. He
alleged that the prosecutor’s office and the Yuma Police Department
engaged in the following misconduct that interfered with his right to
prepare a defense: 1) causing a police officer to cancel an interview defense
counsel scheduled; 2) placing the statement “Please do not discuss your
testimony with anyone” on subpoenas served on trial witnesses; 3) video
recording a defense witness while he was inspecting evidence at the Yuma
Police Department; 4) obstructing his ability to obtain records from the
Yuma County jail; and 5) intimidating mitigation witnesses by advising
them to “disassociate” with Strong. At the conclusion of a lengthy
evidentiary hearing, the trial court denied the motion, finding that neither
the Yuma County Attorney’s Office nor the Yuma Police Department
intentionally, or with reckless indifference, committed misconduct or
prejudiced Strong’s ability to prepare his defense.
¶16 Strong claims the trial court erred in denying his motion to
disqualify, arguing that disqualification was an appropriate discovery
sanction under Arizona Rule of Criminal Procedure 15.7 for the alleged
prosecutorial misconduct. We review a ruling on a motion to disqualify
counsel for abuse of discretion. Villalpando v. Reagan, 211 Ariz. 305, 307 ¶ 6,
121 P.3d. 172, 174 (App. 2005). We likewise review a trial court’s ruling on
a request for discovery sanctions for abuse of discretion. See State v. Jackson,
186 Ariz. 20, 24, 918 P.2d 1038, 1042 (1996) (“The imposition and choice of
sanction are within the discretion of the trial court.”).
¶17 Strong advances two arguments in his challenge to the trial
court’s denial of his motion to disqualify. First, he asserts that the trial court
completely failed to include any law, analysis, or discussion in the order
denying the motion. But the trial court’s eight-page minute entry order
denying the motion included an extensive discussion of the law pertaining
to prosecutorial misconduct and the duty of a prosecutor to be a minister of
justice. In addition, the order reflects that the trial court considered all the
evidence presented with respect to the claims of prosecutorial misconduct
and found that Strong failed to establish any conduct rising to the level that
5
would warrant disqualifying the Yuma County Attorney’s Office from
continuing with the prosecution. The trial court’s order denying the motion
was more than sufficient to address the merits of Strong’s claim and explain
the trial court’s reasoning.
¶18 Second, Strong argues that the trial court erred by failing to
consider the cumulative error doctrine in denying the motion. This
argument is meritless. The trial court expressly referred to the cumulative
error doctrine in its order and, after referencing the various alleged acts of
misconduct, found that none of them prejudiced Strong’s ability to prepare
his defense. The trial court did not abuse its discretion in denying the
motion to disqualify.
3. Waiver of Right to Jury Trial
¶19 Strong argues that the trial court erred in finding that he
voluntarily waived his right to a jury trial. We review a trial court’s
acceptance of a waiver of a jury trial for abuse of discretion. See State v. Rose,
231 Ariz. 500, 505 ¶ 12, 297 P.3d 906, 911 (2013) (holding appellate court
“reviews a trial court’s acceptance of a guilty plea for an abuse of
discretion”). We must determine if “reasonable evidence” supports the trial
court’s finding that the waiver was voluntary and will consider the facts “in
a light most favorable to sustaining the trial court’s finding.” Id. (citation
omitted).
¶20 Even though the right to trial by jury is a fundamental
constitutional right, a defendant may waive the right. State v. Butrick, 113
Ariz. 563, 565, 558 P.2d 908, 910 (1976). Under Arizona Rule of Criminal
Procedure 18.1(b), the trial court may accept the waiver of the right after
addressing the defendant personally to advise him of the right and
ascertain that the waiver is made knowingly, intelligently, and voluntarily.
Ariz. R. Crim. P. 18.1(b)(1).
¶21 The record reflects that the trial court fully complied with
Rule 18.1(b). The written waiver Strong signed informed him of the right to
trial by jury and the effect of his waiver. In addition, the trial court
addressed Strong in open court about the waiver, confirmed that Strong
had read and signed the waiver, and reviewed its contents with him to
ensure that he understood the right that he was waiving. The trial court also
inquired whether the waiver was the result of any threats or promises other
than those included in the agreement between the parties, and Strong stated
his decision to waive the right was voluntary and not the result of threats
or any other unstated promises.
6
¶22 Strong claims that the record does not support the finding
that his waiver was voluntary. Specifically, he argues that the trial court
ignored his statements of apprehension about his ability to get a fair trial
due to the Yuma County Attorney’s Office and the Yuma Police
Department’s conduct in pursuing the prosecution and the pretrial
publicity. The record shows, however, that the trial court was well aware
of Strong’s feelings on these matters, but correctly concluded that such
circumstances did not render the waiver involuntary. A defendant’s
concerns that arise out the fact of prosecution and related matters such as
adverse rulings are simply not the types of improper threats or fears that
will render a waiver involuntary. See United States v. Mezzanatto, 513 U.S.
196, 209-10 (1995) (holding the “number of difficult choices that criminal
defendants face every day” with respect to pending prosecutions do not
make their waivers of fundamental rights inherently involuntary).
¶23 Here, after Strong made reference to feeling “pressure,” the
trial court gave him the opportunity to confer with counsel to ensure he
understood the waiver, that he was waiving his right voluntarily for his
benefit, and that the waiver was not the result of any improper promises or
threats. When the trial court questioned Strong about any concerns he had
after having the opportunity to discuss the matter with counsel, Strong
stated without qualification that no threats or force were applied to have
him waive his right to a jury trial. His counsel likewise confirmed that
nothing in the circumstances of the case would render involuntary the
exchange of the right to a jury trial for the withdrawal of the State’s intent
to seek the death penalty.
¶24 The requirements for a valid waiver of constitutional rights,
including the right to a trial by jury, “are met when it appears from a
consideration of the entire record that the accused was aware that he was
waiving [his constitutional] rights and it appears that it was a knowing and
voluntary waiver.” Rose, 231 Ariz. at 508 ¶ 31, 297 P.3d at 914. On this
record, the trial court did not abuse its discretion in finding that Strong
knowingly, intelligently, and voluntarily waived his right to a jury trial.
4. Sufficiency of Evidence
¶25 Strong contends that the State did not present sufficient
evidence to support his convictions. He does not contest the evidentiary
sufficiency of the evidence proving any specific element of the various
offenses, but rather claims the evidence is insufficient to establish beyond a
reasonable doubt that he was the person who committed the offenses. We
review claims of insufficient evidence de novo, viewing the evidence in a
7
light most favorable to upholding the verdicts. State v. Bible, 175 Ariz. 549,
595, 858 P.2d 1152, 1198 (1993).
¶26 Arizona Rule of Criminal Procedure 20(a) requires the trial
court to enter judgment of acquittal “if there is no substantial evidence to
warrant a conviction.” In considering claims of insufficient evidence, our
review is limited to whether substantial evidence exists to support the
verdicts. State v. Scott, 177 Ariz. 131, 138, 865 P.2d 792, 799 (1993).
“Substantial evidence is proof that reasonable persons could accept as
sufficient to support a conclusion of a defendant’s guilt beyond a
reasonable doubt.” State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075
(1996). “If reasonable men may fairly differ as to whether certain evidence
establishes a fact in issue, then such evidence must be considered as
substantial.” State v. Herrera, 174 Ariz. 387, 393, 850 P.2d 100, 106 (1993)
(citation omitted). “We do not consider . . . [whether] we would reach the
same conclusion as the trier-of-fact, but only if there is a complete absence
of probative facts to support its conclusion.” State v. Carlisle, 198 Ariz. 203,
206 ¶ 11, 8 P.3d 391, 394 (App. 2000) (internal quotation marks and citation
omitted).
¶27 The State presented substantial evidence from which the trial
court could have concluded beyond a reasonable doubt that Strong was the
person who committed the charged offenses. Evidence showed that Strong
was familiar with the victim, who was a doctor, because his ex-girlfriend
worked in the victim’s medical office. Strong had an on-and-off relationship
with his ex-girlfriend and hoped that she would move back in with him.
During the time when the two were living apart, Strong was jealous and
angry at the victim because he believed the victim was interested in dating
his ex-girlfriend. Several months before the victim’s murder, Strong became
so angry at a party when someone commented on the victim’s interest in
his ex-girlfriend that Strong screamed at his ex-girlfriend and stormed out.
As he was leaving, Strong went through the parking lot and damaged the
victim’s car by throwing rocks at it.
¶28 Evidence also showed that around the time of the robbery and
murder, Strong needed money. Strong had an upcoming sentencing
hearing for a criminal matter in which he owed a large amount of
restitution. Strong believed that he might get probation if he could repay at
least some portion of the restitution owed. He additionally owed thousands
of dollars to his ex-girlfriend and other friends for loans they had made to
him, and his ex-girlfriend urgently needed Strong to repay her before he
was sentenced and possibly sent to prison. Because Strong knew the victim
was a doctor, he had reason to believe that the victim had money available
to him. Thus, Strong had motive for both the robbery and murder. See State
8
v. Hunter, 136 Ariz. 45, 50, 664 P.2d 195, 200 (1983) (stating “the fact that the
defendant had some motive, good or bad, for committing the crime is one
of the circumstances which, together with other circumstances, may lead
the fact-finder to conclude that he did in fact commit the crime”) (quoting
W. LaFave & A. Scott, Handbook on Criminal Law § 29, at 208 (1972)).
¶29 Although no eye-witness testimony or physical evidence
placed Strong inside the victim’s home at the time of the robbery and
murder, substantial circumstantial evidence indicated that he was the
person responsible for the crimes. The lack of direct evidence does not
preclude a finding of guilt, because criminal convictions may rest solely on
circumstantial proof. State v. Nash, 143 Ariz. 392, 404, 694 P.2d 222, 234
(1985). The circumstantial evidence included a surveillance video from a
local store showing that Strong purchased $4,300 in money orders with
banded fifty-dollar bills within hours after the victim had the $24,000
delivered to him from his bank in that same form. Further, when his ex-
girlfriend questioned him about the source of the $9,500 he gave her, when
he had no money the previous day, Strong lied, telling her that he cashed
the paycheck he had received the day before. She later discovered Strong’s
uncashed paycheck among his personal effects when they were turned over
to her after he was taken into custody for his pending criminal case.
¶30 In addition to the evidence of Strong’s possession of the
proceeds of the robbery and murder, phone company records showed
contacts that Strong’s cell phone made with cell towers that placed him in
the area of the victim’s home during the time in which the victim arranged
for his friend to cash the $24,000 and return the funds to him. Moreover,
Strong had found a stray cat that morning, and a cat was found inside the
victim’s home during the welfare check even though the victim did not own
a cat. The trial court could infer from this that Strong had brought the cat
that he had found and left it at the victim’s home.
¶31 Furthermore, Strong’s efforts to cover his tracks and influence
witnesses showed his consciousness of guilt. These efforts included
avoiding showing identification while buying the money orders,
instructing his ex-girlfriend to wash his clothes that he wore the night of the
robbery and murder, and lying to her about cashing his paycheck and his
whereabouts the evening of the robbery and murder. Strong further tried
to convince one witness that he had been with the witness “way earlier”
than 7 p.m. on November 1st as the witness had remembered. Strong
sought to have another witness “remember” that he had shown the witness
that same evening “hundreds” or “twenties,” as opposed to fifty-dollar
bills. Strong had flashed the witness a large stack of cash bound with a
money band. Such evidence suggesting consciousness of guilt supports the
9
trial court’s finding that Strong was responsible for the robbery and
murder. See Hunter, 136 Ariz. at 48, 664 P.2d at 198 (observing evidence of
“consciousness of guilt, in turn, gives rise to an inference of actual guilt”).
¶32 Strong offered an alibi defense with witnesses testifying that
he was with them on the afternoon the victim was murdered. This alibi
testimony was contradicted, however, by other evidence such as phone
company records indicating Strong was in the area of the victim’s home at
that time rather than with the alibi witnesses. Furthermore, a conflict in
testimony between the State and defense witnesses does not render the
evidence insubstantial. State v. Toney, 113 Ariz. 404, 408, 555 P.2d 650, 654
(1976). Rather, the finder-of-fact must weigh the evidence, resolve conflicts
in the evidence, and assess the credibility of witnesses. State v. Manzanedo,
210 Ariz. 292, 293 ¶ 3, 110 P.3d 1026, 1027 (App. 2005). The alibi witnesses‘
credibility was a matter solely for the trial court to determine as finder-of-
fact, with the trial court being free to disbelieve their testimony. State v.
Jeffers, 135 Ariz. 404, 420, 661 P.2d 1105, 1121 (1983).
¶33 The circumstantial evidence, when considered as a whole,
provided sufficient evidence from which the trial court could conclude
beyond a reasonable doubt that Strong was the person who robbed and
murdered the victim. The fact that the evidence left questions unresolved
does not preclude the existence of substantial evidence. The State “is not
required to disprove every conceivable hypothesis of innocence when guilt
has been established by circumstantial evidence.” State v. Fischer, 219 Ariz.
408, 419 ¶ 43, 199 P.3d 663, 674 (App. 2008) (internal quotation marks and
citation omitted).
5. Multiple Convictions for Murder
¶34 The trial court found Strong guilty on both counts one and
two, which charged first-degree premeditated murder and felony murder
respectively, and imposed two concurrent natural life sentences on the
convictions. Although Strong did not challenge the multiple murder
convictions and life sentences, the State notes in its answering brief that the
murder convictions are multiplicitous.
¶35 Charges are multiplicitous if they charge a single offense in
multiple counts. Merlina v. Jejna, 208 Ariz. 1, 4 ¶ 12, 90 P.3d 202, 205 (App.
2004). The two murder convictions stemming from a single death are
multiplicitous because premeditated murder and felony murder are not
separate crimes—“they are simply two forms of first-degree murder.” State
v. Tucker, 205 Ariz. 157, 167 ¶ 50, 68 P.3d 110, 120 (2003); see also State v.
Gerlaugh, 134 Ariz. 164, 168, 654 P.2d 800, 804 (1982) (“[I]n Arizona, first-
10
degree murder is only one crime whether it is premeditated murder or a
felony murder.”); State v. Williams, 232 Ariz. 158, 160 ¶ 7, 302 P.3d 683, 685
(App. 2013) (recognizing that the majority of jurisdictions that have
addressed the issue do not allow multiple murder convictions when only
one person is killed).
¶36 When multiple convictions occur on multiplicitous charges,
the appropriate remedy is to merge the two convictions and vacate one of
the sentences. Merlina, 208 Ariz. at 4 ¶ 14 n.4, 90 P.3d at 205 n.4. Thus, we
modify the judgment and sentencing order by merging the convictions on
counts one and two into a single conviction for first-degree murder and
vacate the second life sentence.
CONCLUSION
¶37 For the foregoing reasons, we modify the convictions on
counts one and two by merging them into a single conviction for first-
degree murder and vacate the second of the two natural life sentences
imposed by the trial court. We affirm Strong’s convictions and sentences in
all other respects.
:gsh
11