Opinion
No. 1 CA-CR 17-0804
03-12-2019
STATE OF ARIZONA, Appellee, v. MARIANNE VISANSKA FOLEY, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Michelle L. Hogan Counsel for Appellee The Nolan Law Firm, P.L.L.C., Mesa By Todd E. Nolan, Cari McConeghy Nolan, Craig A. Raymond Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2013-000578-001
The Honorable James T. Blomo, Judge Retired
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Michelle L. Hogan
Counsel for Appellee The Nolan Law Firm, P.L.L.C., Mesa
By Todd E. Nolan, Cari McConeghy Nolan, Craig A. Raymond
Counsel for Appellant
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Chief Judge Samuel A. Thumma joined. JONES, Judge:
¶1 Marianne Foley appeals her convictions and sentences for one count each of fraudulent schemes and artifices and theft. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In 2011, Red Mountain Family Chiropractic (RMFC) terminated Foley's employment after discovering she had not been depositing patients' cash payments into the company's bank account. RMFC later determined Foley had employed a variety of tactics to embezzle money from RMFC during the four years she served as the company's office manager. The State charged Foley with one count of fraudulent schemes and artifices and one count of theft of property valued at $100,000 or more.
We view the facts in the light most favorable to upholding the verdicts and resolve all reasonable inferences 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)).
¶3 At trial, Foley testified she did not steal from RMFC; rather, the transactions reflected loans to and from RMFC and other expenditures verbally authorized by RMFC's owner. The jury found Foley guilty as charged but determined the value of the property underlying the theft charge was between $25,000 and $99,999. The jury also found three aggravating factors for each count.
¶4 At sentencing, the trial court determined the mitigating factors outweighed the aggravating factors and sentenced Foley to the minimum term of four years' imprisonment for fraudulent schemes, followed by seven years' probation for theft. Foley timely appealed, and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
Absent material changes from the relevant date, we cite the current version of rules and statutes.
DISCUSSION
I. Other-Act Evidence
¶5 Foley argues the trial court erred in admitting other-act evidence in violation of Arizona Rule of Evidence 404(b) (prohibiting "evidence of other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith"). Because Foley did not object to the admission of other-act evidence, we would generally review her claim for fundamental, prejudicial error. State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018) (citing State v. Henderson, 210 Ariz. 561, 567, ¶ 20 (2005)). However, "if defense counsel invited trial error, strategically or carelessly, the defendant cannot obtain appellate relief even if the error was fundamental and prejudicial." Id. at 145, ¶ 38 (citing State v. Logan, 200 Ariz. 564, 566, ¶ 15 (2001)); see also State v. Pandeli, 215 Ariz. 514, 528, ¶ 50 (2007) ("This court has long held that 'a defendant who invited error at trial may not then assign the same as error on appeal.'") (quoting State v. Moody, 208 Ariz. 424, 453, ¶ 111 (2004)).
¶6 The record reflects that Foley stipulated to the admission of all the documentary evidence she now challenges. Accordingly, Foley invited any alleged error and cannot obtain relief on this basis. See State v. Parker, 231 Ariz. 391, 405, ¶ 61 (2013) (holding the defendant's stipulation to admit evidence "precludes him from asserting on appeal that [the] admission was error") (citing Pandeli, 215 Ariz. at 528, ¶ 50).
II. Prosecutorial Misconduct
¶7 Foley argues reversal is warranted on the grounds of prosecutorial misconduct. Specifically, she contends: (1) the prosecutor improperly vouched for the State's witnesses during his opening statement; (2) the prosecutor improperly referred to other-act evidence during his closing argument; and (3) the prosecutor impermissibly shifted the burden of proof to her in his rebuttal. Because Foley did not object to the prosecutor's statements at trial, our review is for fundamental, prejudicial error. Escalante, 245 Ariz. at 140, ¶ 12 (citing Henderson, 210 Ariz. at 567, ¶ 20).
¶8 To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that "(1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying defendant a fair trial." Moody, 208 Ariz. at 459, ¶ 145 (2004) (quotation omitted). There is an important scienter requirement to the claim:
Prosecutorial misconduct "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, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial."State v. Aguilar, 217 Ariz. 235, 238-39, ¶ 11 (App. 2007) (quoting Pool v. Superior Court, 139 Ariz. 98, 108-09 (1984)). We address each of Foley's claims in turn and find no error, let alone fundamental error. See Escalante, 245 Ariz. at 142, ¶ 21 ("[T]he first step in fundamental error review is determining whether trial error exists.") (citing Henderson, 210 Ariz. at 568, ¶ 23).
A. Vouching
¶9 Foley asserts the prosecutor vouched for the State's witnesses when, in the course of describing the chain of events, he stated "I wish it had ended there [at misappropriation of insurance funds and her unauthorized pay raise], but it didn't," before proceeding to describe the various ways Foley diverted RMFC funds to her personal use and concluding, "based on all of this, the State has charged the defendant with fraudulent schemes and artifices and theft for stealing over a hundred thousand dollars" from RMFC. Prosecutorial vouching occurs either "(1) where the prosecutor places the prestige of the government behind its witness; [or] (2) where the prosecutor suggests that information not presented to the jury supports the witness's testimony." State v. Vincent, 159 Ariz. 418, 423 (1989) (citing State v. Salcido, 140 Ariz. 342, 344 (App. 1984)).
¶10 The prosecutor's statements here are not vouching. The first statement accurately highlighted the escalating nature of Foley's fraudulent activity, and the conclusion simply reminded the jury of the nature of the criminal charges. The statements did not place the prestige of the State behind its witnesses; nor did they bolster the credibility of witnesses with information outside the record.
B. Other-Act Evidence
¶11 Foley argues the prosecutor engaged in misconduct by referring to the same uncharged acts of misconduct she claims were admitted in violation of Rule 404(b) in his closing argument. However, because Foley stipulated to evidence of those acts, it was not erroneously admitted, see supra ¶ 6, and the prosecutor was permitted to refer to that evidence during closing arguments. See State v. Bible, 175 Ariz. 549, 602 (1993) ("[D]uring closing arguments counsel may summarize the evidence, make submittals to the jury, urge the jury to draw reasonable inferences from the evidence, and suggest ultimate conclusions.") (citations omitted).
C. Burden of Proof
¶12 During her closing argument, Foley challenged the State's investigation and complained about the State's failure to disclose certain records relating to RMFC's bookkeeping practices. Foley argues the prosecutor shifted the burden of proof when he responded to her challenges in rebuttal, stating:
You can't obtain documentation that doesn't exist. The defendant was in charge of the recordkeeping. She's the office manager. If there is no documentation in her office, no documentation where it should be, how is anyone able to obtain it? I mean, the defense is claiming they had to provide all this documentation. Well, how can you possibly determine that something on a credit card receipt that says Staples isn't for her personal use? And assuming — you have to assume that if she's claiming that there is missing documents and if she's in charge of those documents, why isn't it at the business? If everything you are doing is on the up and up, why isn't it located in her office in the business?
¶13 We do not construe these comments as shifting the burden of proof. See State v. McKinley, 157 Ariz. 135, 138 (App. 1988) (finding the prosecutor's argument that a defendant had the opportunity to independently test evidence and failed to do so did not shift the burden of proof to the defendant); see also State ex rel. McDougall v. Corcoran, 153 Ariz. 157, 160 (1987) ("[T]he prosecutor may properly comment on the defendant's failure to present exculpatory evidence which would substantiate defendant's story, as long as it does not constitute a comment on defendant's silence.") (citing State v. Fuller, 143 Ariz. 571, 575 (1985), and State v. Hatten, 106 Ariz. 239, 241-42 (1970)). Rather, the comments are a proper response to Foley's argument regarding the lack of documentation. See State v. Alvarez, 145 Ariz. 370, 373 (1985) ("Prosecutorial comments which are a fair rebuttal to areas opened by the defense are proper.") (citing State v. Martinez, 130 Ariz. 80, 82-83 (App. 1981)).
¶14 Moreover, the jury was instructed not to consider the attorneys' statements and arguments as evidence and that the State bore the burden of proving "each element of the charged crime[s] beyond a reasonable doubt." We presume the jurors follow the trial court's instructions, see Pandeli, 242 Ariz. at 189, ¶ 58 (citing State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006)), and are satisfied the prosecutor's comments did not deny Foley a fair trial.
III. Improper Sentence
¶15 Finally, Foley argues the trial court considered improper factors at sentencing resulting in a "clearly excessive" prison sentence. "A sentence within the statutory limits will not be modified . . . unless the trial court is arbitrary, capricious, or fails to conduct an adequate investigation of the facts." State v. Webb, 164 Ariz. 348, 355 (App. 1990) (citing State v. Fatty, 150 Ariz. 587, 592 (App. 1986)).
¶16 Foley does not identify where in the record this alleged error occurred. Indeed, the record reflects the court considered and accepted Foley's mitigating evidence, ultimately finding the mitigating factors outweighed the statutory aggravators found by the jury and imposing the minimum sentence for a first-time offender convicted of a class 2 felony. See A.R.S. §§ 13-702(D), -2310(A). Foley thus provides no basis upon which to disturb the sentence.
CONCLUSION
¶17 Foley's convictions and sentences are affirmed.