Opinion
No. 1 CA-CR 14-0017
06-02-2015
STATE of ARIZONA, Appellee, v. KEVIN MICHAEL TAUBMAN, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Eliza Ybarra Counsel for Appellee Law Office of Nicole Farnum, Phoenix By Nicole T. Farnum 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2011-005457-002
The Honorable Roland J. Steinle III, Judge
CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART, VACATED IN PART AND REMANDED FOR RESENTENCING COUNSEL Arizona Attorney General's Office, Phoenix
By Eliza Ybarra
Counsel for Appellee
Law Office of Nicole Farnum, Phoenix
By Nicole T. Farnum
Counsel for Appellant
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Samuel A. Thumma joined. KESSLER, Judge:
¶1 Kevin Taubman ("Defendant") appeals his convictions and sentences on two counts of first degree murder and counts of aggravated assault, kidnapping, burglary, robbery, and related charges arising from a series of home invasions. For the reasons set forth below, we affirm the convictions and sentences except the sentence on Count 19, which is vacated and remanded for resentencing consistent with this decision.
FACTUAL AND PROCEDURAL HISTORY
"We construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant." State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998).
¶2 In mid-November 2010, Defendant and his accomplice forced their way into three different homes. Defendant and his accomplice beat and tied up the homeowners, all of whom were elderly, and stole a number of items which they later sold or traded for drugs. Several weeks later, two of the victims died as a result of their injuries sustained during the burglary of their home.
¶3 The State charged Defendant with two counts of first degree murder, two counts of aggravated assault, five counts of kidnapping, three counts of second degree burglary, five counts of aggravated robbery, one count of theft of means of transportation, one count of attempted theft of means of transportation, and one count of trafficking stolen property in the first degree. A jury convicted Defendant of the charged crimes and found several aggravating circumstances for each count. The trial court subsequently sentenced Defendant to natural life terms on the murder convictions (to be served concurrently) and aggravated terms (concurrent to some and consecutive to others) on the remaining convictions.
¶4 Defendant timely appealed. This Court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 13-4031 (2010) and 13-4033(A) (2010).
DISCUSSION
I. Defendant's Sentence For Count 19 Was Not Authorized By Arizona Law And Is Vacated And Remanded For Resentencing
¶5 Defendant argues that his sentence on Count 19, attempted theft of means of transportation, is illegal because it exceeded the maximum possible sentence for a class four felony committed by a category two repetitive offender. The State concedes error, but contends that at resentencing Defendant may appropriately be sentenced as a category three repetitive offender.
¶6 The trial court sentenced Defendant to 16.25 years' imprisonment on Count 19. Count 19, attempted theft of means of transportation, is a class four felony. See A.R.S. §§ 13-1001 (2010), -1814 (2010). The aggravated sentence for a class four felony for a category two repetitive offender is 7.5 years' imprisonment, and for a category three repetitive offender is 15 years. A.R.S. § 13-703(I), (J) (2014). Therefore, whether the trial court meant to sentence Defendant as a category two or category three repetitive offender, the sentence was illegal. Accordingly, we vacate this sentence and remand to the trial court for resentencing. II. The Aggravation Phase Jury Instructions Did Not Result In Fundamental, Prejudicial Error
The court stated it was sentencing Defendant as a category three repetitive offender, but then sentenced Defendant to the maximum aggravated sentence applicable to a category two repetitive offender for all other convictions. See A.R.S. § 13-703(I) (2014). We do not address the issue of whether at resentencing Defendant should be sentenced as a category two or category three repetitive offender. There is evidence Defendant might be classified as a category three repetitive offender, but we leave it to the trial court to apply the facts to his conviction on Count 19 on remand.
We cite to the current versions of statutes when no changes material to this decision have since occurred.
¶7 Defendant argues that the trial court's jury instructions during the aggravation phase violated his due process rights. Specifically, Defendant alleges the court erred by (1) inadequately instructing the jury under Arizona Rule of Criminal Procedure 19.1, (2) informing the jury that the aggravating circumstances would be used to determine Defendant's sentence, (3) failing to define any of the aggravating circumstances for the jury, and (4) failing to define or instruct the jury to make separate findings as to each prong of the "especially heinous, cruel or depraved" aggravator.
¶8 Before the aggravation phase, the court and counsel specifically reviewed the aggravating circumstances that the State alleged as to each count against Defendant. The State generally alleged five aggravating circumstances: (1) infliction or threatened infliction of serious physical injury, (2) presence of an accomplice, (3) "especially heinous, cruel or depraved" manner in which the offense was committed, (4) the offense was committed in expectation of pecuniary value, and (5) the victim of the offense was at least sixty-five years of age. The court advised counsel that it would use "a very bare bones set of instructions" and would not define the aggravating terms. Although the court offered both the prosecutor and defense counsel the opportunity to propose language, specifically asking defense counsel if he wanted any definitions included in the instructions, neither counsel thought it necessary. Thus, after the jury found Defendant guilty on all counts, the court gave the following jury instruction:
The State alleged all five aggravating circumstances for the burglary, kidnapping, aggravated robbery, aggravated assault, and first degree murder convictions. As to the theft of means of transportation and attempt to commit theft of means of transportation convictions, the State alleged all the aggravating factors except that the crime was committed in expectation of pecuniary value. Finally, the State alleged only the presence of an accomplice, committed in expectation of pecuniary value, and the victim of the offense was at least sixty-five years of age circumstances as aggravators for the trafficking in stolen property conviction.
The law . . . requires that you now determine whether the State has proved any of the following aggravating circumstances beyond a reasonable doubt.
These findings will be considered by the Court in determining the sentence to impose on the defendant.
The aggravating circumstances are:
1. Presence of an accomplice.
2. Especially heinous, cruel and depraved manner in which the offense was committed.The court then described the verdict forms to the jury and explained there would be a separate verdict form for each conviction. The court instructed the jury members to indicate on the verdict form whether they believed the State had proved the circumstance, had failed to do so, or if they were unable to decide. Prior to allowing the State to present argument, the court explicitly stated that it was the jury's job to "decide whether these aggravating [circumstances had] been proven."
3. The defendant committed the offense as consideration for the receipt or in expectation of the receipt of anything of pecuniary value.
4. The victim of the offense is at least 65 years of age.
In deciding [each of these] issue[s], you [must] determine [from] the evidence presented whether the State has proved each of the allegations beyond a reasonable doubt.
The jury instructions previously given apply w[h]ere relevant, including the definition of reasonable doubt, accomplice, and [the] requirement that each aggravating circumstance be unanimous.
. . . .
So it will be your job to go back - the lawyers will argue to you in a minute whether they think they've been proven or not proven, and it will be your job to go back and decide whether these aggravating factors have been proven. And then it will be up to me at the time of sentencing to use those factors in determining the appropriate sentence within the range given by the legislature.
¶9 During its argument, the State pointed out that one of the aggravators was missing from the instructions. The court noted that the instructions failed to include the infliction or threatened infliction of serious physical injury and requested that court staff correct them. After the State's argument, the court reiterated that the infliction or threatened infliction of serious physical injury instruction had been added and sent the jury to deliberate. The jury found the State proved every aggravating circumstance alleged as to every count.
All of the aggravators were, however, properly included on the verdict forms.
¶10 At sentencing, the trial court relied on two aggravating circumstances for each conviction to impose on Defendant an aggravated sentence for each conviction. Specifically, the court relied on the "especially heinous, cruel or depraved" manner in which the offense was committed and the fact that the victim was at least sixty-five years of age as aggravators for the burglary, kidnapping, aggravated robbery, aggravated assault, and first degree murder convictions. For the theft of means of transportation, attempt to commit theft of means of transportation, and trafficking in stolen property convictions, the court relied on the presence of an accomplice and the fact that the victim was at least sixty-five years of age. Thus, in sentencing Defendant, the court limited itself to two aggravating factors on each count. This result, including the sentences, is summarized in the following chart:
The trial court was not required to find aggravating circumstances to sentence Defendant to a natural life sentence for his first degree murder convictions. See State v. Fell, 210 Ariz. 554, 560, ¶ 19, 115 P.3d 594, 600 (2005) (holding that "the Sixth Amendment does not require . . . a jury find an aggravating circumstance before a natural life sentence can be imposed").
| Count | Aggravators Used | Aggravated Sentence |
|---|---|---|
| Felony Murder(2 Counts) | 1. Victim was at least 652. Especially cruel manner*No aggravators necessary | Natural Life |
| Aggravated Assault(2 Counts) | 1. Victim was at least 652. Especially cruel manner | 16.25 Years |
| Kidnapping(5 Counts) | 1. Victim was at least 652. Especially cruel manner | 23 Years |
| 2nd Degree Burglary(3 Counts) | 1. Victim was at least 652. Especially cruel manner | 16.25 Years |
| Aggravated Robbery(5 Counts) | 1. Victim was at least 652. Especially cruel manner | 16.25 Years |
| Theft ofTransportation | 1. Victim was at least 652. Presence of Accomplice | 16.25 Years |
| Attempted Theft ofTransportation | 1. Victim was at least 652. Presence of Accomplice | 16.25 Years |
| Trafficking in StolenProperty | 1. Victim was at least 652. Presence of Accomplice | 23 Years |
¶11 "[A] trial court has a duty to instruct on the law relating to the facts of the case when the matter is vital to a proper consideration of the evidence, even if not requested by the defense and failure to do so constitutes fundamental error." State v. Avila, 147 Ariz. 330, 337, 710 P.2d 440, 447 (1985). In determining the adequacy of jury instructions, "[t]he test is whether the instructions, viewed in their entirety, adequately set forth the law applicable to the case." State v. Rosas-Hernandez, 202 Ariz. 212, 220, ¶ 31, 42 P.3d 1177, 1185 (App. 2002).
¶12 Because Defendant did not object to the instructions, we review them for fundamental error. See State v. Kuhs, 223 Ariz. 376, 386, ¶ 52, 224 P.3d 192, 202 (2010). The burden is on Defendant to show not only that such error occurred, but also that the error was fundamental and that it prejudiced him. State v. Henderson, 210 Ariz. 561, 568-69, ¶¶ 24-26, 115 P.3d 601, 608-09 (2005). Fundamental error is that which reaches the foundation of a defendant's case or takes away a right essential to his defense. Id. "Prejudice under fundamental error review is a fact-intensive inquiry and varies depending upon the type of error that occurred and the facts of a particular case." State v. James, 231 Ariz. 490, 494, ¶ 15, 297 P.3d 182, 186 (App. 2013) (internal citation and quotation marks omitted). "[T]o show prejudice, [Defendant] must show that a reasonable jury could have reached a different result had the jury been properly instructed." Id. (internal citation and quotation marks omitted).
A. The Court's Use Of Jury Instructions Different Than The Revised Arizona Jury Instructions ("RAJI") Was Not Fundamental Error
¶13 Defendant maintains that the trial court did not adequately instruct the jury under Arizona Rule of Criminal Procedure 19.1, implying that it could have only done so by employing the RAJI. Rule 19.1, however, does not require a trial court to use the RAJI. See County of La Paz v. Yakima Compost Co., 224 Ariz. 590, 606, ¶ 48, 233 P.3d 1169, 1185 (App. 2010) (stating that "the RAJI is not binding authority"); see also State v. Logan, 200 Ariz. 564, 566, ¶ 12, 30 P.3d 631, 633 (2001). Here, the court's instructions, although significantly more concise than those set out by the RAJI, adequately presented the law applicable to the case at hand, except in those instances we have identified below. In its instructions, the court presented every vital element the corresponding RAJI instruction presents. During the aggravation phase, the court explicitly instructed that it was for the jury to decide whether the aggravating circumstances had been proven by the State beyond a reasonable doubt. The court twice stated that it was for the court to decide an appropriate sentence. The court also apprised the jury of all five of the alleged aggravating circumstances. Even though the court originally failed to include the infliction or threatened infliction of serious physical injury aggravator in the jury instructions, this aggravator correctly appeared on the verdict forms from the beginning and the court corrected itself and the jury instructions prior to allowing the jury to deliberate.
Defendant also appears to be arguing that there was confusion between what the trial court told the jury it could consider as aggravators and what the verdict forms provided. We need not discuss this argument because ultimately the court applied only the specific aggravators to the specific counts in the chart above and those counts were found by the jury as instructed. Thus, any error based on confusion between what the court told the jury and the jury forms was harmless.
¶14 Further, the court advised the jury that each aggravating circumstance was to be considered separately and distinctly from the others by pointing out that each of the counts had separate verdict forms which would allow the jury to mark whether they believed each aggravator had been proven, not proven, or if they were unable to decide. Consistent with the RAJI, the court incorporated "[t]he jury instructions previously given [where] relevant." In its instructions to the jury during the guilt phase, given just four days before instructing the jury on the aggravation phase, the court had already instructed the jury on its duty to follow the instructions, to rely on only the evidence presented in court, to consider all of the instructions, that attorneys' statements are not evidence, that evidence could be direct or circumstantial, that it needed to evaluate witness credibility, that it must not consider the possible punishment, on the definitions of reasonable doubt and accomplice, that Defendant was presumed to be innocent, that the State had the burden of proving Defendant guilty, and that their decision must be unanimous. Given the record, we find the court's use of instructions different from those suggested by the RAJI did not violate Rule 19.1 or result in fundamental error.
B. The Failure To Define, Sua Sponte , Certain Aggravating Circumstances Was Not Fundamental Error
¶15 Defendant next contends the trial court's failure to define the aggravating circumstances in its jury instruction resulted in fundamental error. The Arizona Supreme Court has held, however, that even in cases in which a definition "would have been desirable," a trial court does "not commit fundamental error when [it] fail[s] to provide sua sponte the jury with the definitions of words whose legal and ordinary meanings overlap." State v. Harris, 151 Ariz. 236, 238, 727 P.2d 14, 16 (1986).
¶16 Defendant concedes that the aggravators concerning the presence of an accomplice and the victims' ages were "probably self-explanatory." The court determined the sentences relying only on three aggravators: the age of the victims, that the offense was committed in an especially cruel manner, and the presence of an accomplice. Two of those terms were self-explanatory and the court independently found and defined the third, especially cruel, during the sentencing phase. Thus, even if any terms were not adequately defined, Defendant cannot show that such failure prejudiced him because the terms of the aggravators applied by the court were self-explanatory or adequately defined. Additionally, aspects of some of the other aggravators, such as "serious physical injury" and "accomplice," had been defined for the jury in the court's previous instructions and the State defined "pecuniary gain" in its argument during the aggravation phase. See State v. Bruggeman, 161 Ariz. 508, 510, 779 P.2d 823, 825 (App. 1989) ("Closing arguments of counsel may be taken into account when assessing the adequacy of jury instructions."). Finally, the trial court's failure to define these aggravators did not prevent Defendant from arguing to the jury that they did not apply in this case. Therefore, the trial court's failure to define, sua sponte, these aggravating circumstances was not fundamental error.
C. Defendant Has Not Shown He Was Prejudiced By The Trial Court's Instructions Informing The Jury That Its Aggravation Findings Would Be Used To Determine Defendant's Sentence
¶17 Defendant argues that the court fundamentally erred by informing the jury that the aggravating circumstances would be used to determine Defendant's sentence. The court stated that the aggravators found by the jury "[would] be considered by the [c]ourt in determining the sentence to impose on the defendant" and that it would "be up to [the court] at the time of sentencing to use those circumstances in determining the appropriate sentence within the range given by the legislature."
¶18 Even assuming the court erred by making such statements, Defendant has failed to demonstrate he was prejudiced as a result of the statements. Relying on State v. Koch, 138 Ariz. 99, 673 P.2d 297 (1983), Defendant alleges that the statements "improperly invited the jury to consider what [Defendant's] punishment would be for crimes against particularly vulnerable victims, and encouraged the jurors to speculate that the more aggravators they found, the harsher [Defendant's] punishment would be." However, in Koch, the court found the defendant was not prejudiced because the instructions "did not indicate what sentence might be imposed nor did [they] suggest that [defendant] would not receive the maximum sentence in the event he was found guilty." 138 Ariz. at 106, 673 P.2d at 304. The same is true here, as the instructions did not indicate what sentence might be imposed nor suggest whether Defendant would receive the maximum sentence. Therefore, Defendant has failed to show the instruction prejudiced him.
D. Defendant Has Not Shown He Was Prejudiced By The Instruction On The "Especially Heinous, Cruel or Depraved" Aggravating Circumstance Instruction
¶19 Defendant argues, and the State concedes, that the court erred by failing to both define "especially heinous, cruel or depraved" and require the jury to specify which prong of this aggravator the State had proved. See State v. Snelling, 225 Ariz. 182, 187-88, ¶ 24, 236 P.3d 409, 414-15 (2010) (explaining that the United States Supreme Court has held Arizona's "especially heinous, cruel or depraved" aggravator facially vague). Defendant must demonstrate, however, that such error was fundamental and that he suffered prejudice. Assuming error, Defendant has failed to show prejudice.
¶20 In State v. Martinez, the Arizona Supreme Court held that "once a jury finds or a defendant admits a single aggravating [circumstance], the Sixth Amendment permits the sentencing judge to find and consider additional [circumstances] relevant to the imposition of a sentence up to the maximum prescribed in that statute." 210 Ariz. 578, 585, ¶ 26, 115 P.3d 618, 625 (2005). Therefore, given that the jury had properly found other aggravating circumstances as to each convicted count, the trial court could consider and find the "especially heinous, cruel or depraved" aggravator, so long as there was sufficient evidence to support such a finding.
We address sufficiency of the evidence in Section III.
¶21 We presume that judges know the law and apply it in making their decisions. State v. Williams, 220 Ariz. 331, 334, ¶ 9, 206 P.3d 780, 783 (App. 2008) (citing State v. Trostle, 191 Ariz. 4, 22, 951 P.2d 869, 887 (1997)). During sentencing proceedings the trial judge made specific findings that there was evidence of cruelty because "each one of the[] victims suffered physical pain and emotional pain." Under these circumstances, we presume the trial judge knew a finding of cruelty requires a victim to have "consciously experienced physical or mental pain and the defendant knew or should have known that the victim would suffer." State v. Cropper, 223 Ariz. 522, 526, ¶ 13, 225 P.3d 579, 583 (2010) (internal citation and quotation marks omitted). Therefore, Defendant has not demonstrated he suffered prejudice as a result of the court failing to define or require the jury to make specific findings as to each prong of the "especially heinous, cruel or depraved" aggravating circumstance. III. There Was Sufficient Evidence That Defendant's Offenses Were Committed In An "Especially Heinous, Cruel Or Depraved" Manner
¶22 Defendant next asserts there was insufficient evidence to support a finding that the State proved Defendant's offenses were committed in an "especially heinous, cruel or depraved" manner. Defendant concedes that because he failed to raise the issue at trial, he must demonstrate fundamental error and resulting prejudice. See Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. "Evidence is sufficient to support the finding of an aggravating circumstance if reasonable persons could conclude it establishes the circumstance beyond a reasonable doubt." State v. Payne, 233 Ariz. 484, 520, ¶ 163, 314 P.3d 1239, 1275 (2013).
¶23 Here, in sentencing Defendant, the trial court relied on two aggravators for the burglary, kidnapping, aggravated robbery, and aggravated assault convictions: (1) that the victims were over the age of sixty-five and (2) that the offense was committed in an "especially heinous, cruel or depraved" manner. Specifically, the court found the cruelty prong of the second aggravator applied. For the State to have demonstrated cruelty, the State must have established that "the victim consciously experienced physical or mental pain and the defendant knew or should have known that the victim would suffer." Cropper, 223 Ariz. at 526, ¶ 13, 225 P.3d at 583.
The trial court also relied on these two aggravating circumstances in sentencing Defendant on the first degree murder convictions. However, as previously addressed, the trial court was not required to find aggravators to sentence Defendant to a natural life sentence for these convictions. See Fell, 210 Ariz. at 560, ¶ 19, 115 P.3d at 600.
¶24 As to the three counts of second-degree burglary, Defendant contends there was no evidence he entered any of the homes in an "especially heinous, cruel or depraved" manner. Defendant also argues that it is unclear whether the jury or the court appropriately determined whether the aggravated robbery and kidnapping offenses were committed in an "especially heinous, cruel or depraved" manner. The evidence presented at trial is contrary to both these assertions.
Defendant does not challenge the appropriateness of the aggravator being applied to the aggravated assault convictions.
¶25 During the first burglary, Defendant and his accomplice knocked on the door of the victims, one of whom answered. Defendant asked to use the victim's phone and, when her back was turned, rushed the victim. Defendant dragged her to the couch, beat her into submission, and hogtied her with tape Defendant and his accomplice had brought with them. Defendant and his accomplice also restrained this victim's husband in another room. After taking many of the victims' possessions, Defendant and his accomplice left the victims, tied up in separate rooms, only to be found almost 18 hours later, after both had suffered heart attacks. These victims later died as a result of the injuries they sustained during the burglary.
¶26 Before the second burglary, Defendant told his accomplice that the house they were burglarizing had previously been burglarized and that the victim was a hoarder, implying that Defendant knew it would be an easy target. Defendant and his accomplice entered through a door at the back of the house. When they woke the victim, Defendant punched him a couple of times, and tied him up with rope they had brought with them prior to taking many of the victim's possessions.
¶27 As to the third burglary, Defendant and his accomplice broke into the third home through a window. Defendant startled one of the victims by placing his hand over her mouth and punching her several times when she attempted to cry out for help. Defendant also tied up this victim and duct taped a pillow over her face with tape Defendant and his accomplice had brought with them. Defendant then found this victim's husband in another room and placed a pillow over his face and tied him up with phone cords and duct tape. After the Defendant and his accomplice left, the male victim freed himself and freed his wife, who he initially believed to be dead.
¶28 Burglary is a continuing offense. A.R.S. § 13-1507(A) (2010) ("A person commits burglary in the second degree by entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein."). The burglary does not suddenly end when, after gaining entry, the defendant commits the felony in the residence. State v. McGuire, 131 Ariz. 93, 95-96, 638 P.2d 1339, 1341-42 (1981) (holding that for purposes of proving felony murder, striking the victim after gaining illegal entrance amounted to second degree burglary because the defendant remained in the structure with the intent to commit a felony). The evidence here was more than sufficient to find beyond a reasonable doubt that Defendant committed these burglaries, and the related offenses, in an especially cruel manner. The victims clearly consciously suffered physical or mental pain and anguish, and Defendant knew or should have known such pain and anguish would result.
Defendant also argues that the court erred in applying the especially cruel aggravator to the theft counts. However, as previously indicated in the chart above, the court did not use that factor in sentencing Defendant on the two theft counts.
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IV. Ineffective Assistance Of Counsel Must Be Raised In A Post-Conviction Proceeding Pursuant to Arizona Rule of Criminal Procedure 32
¶29 Citing to various exhanges, including those with the court, Defendant alleges that his trial counsel was ineffective. He argues the court's failure to declare a mistrial based on consel's conduct deprived Defendant of his constitutional right to due process and a fair trial. Defendant concedes that ineffective assistance of counsel claims are usually raised in Rule 32 petitions. However, Defendant attempts to differentiate his case by arguing that "the court had a duty to declare a mistrial [sua sponte] and appoint new counsel." Defendant, however, cites no authority supporting this argument. Further, although it is within the discretion of the trial court to take "remedial steps, such as replacement of defense counsel, when confronted with evidence of deficient performance," State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20, 153 P.3d 1040, 1044 (2007), the trial court should not be making ineffective assistance of counsel determinations during the trial, id. at at 414-15, ¶¶ 17-20, 153 P.3d at 1043-44 (holding that "a defendant may bring ineffective assistance of counsel claims only in a Rule 32 post-conviction proceeding—not before trial, at trial, or on direct review"). Moreover, claims of ineffective assistance of counsel are not cognizable on direct appeal. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). Consequently, we will not address Defendant's ineffective assistance of counsel claim.
V. The Admission Of The Parties' Stipulation Regarding Defendant's DNA Was Not Fundamental Error
¶30 Defendant maintains that the trial court erred by permitting the admission of the parties' stipulation that Defendant's DNA was found at the scenes of two previous burglaries, one in August 2009 and the other in August 2010. Again, Defendant's trial counsel failed to object to this alleged error below. Therefore, we will grant Defendant relief only if he has demonstrated fundamental error and resulting prejudice. See Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607.
¶31 Before trial, the State provided Defendant with notice that, under Rule 404(b) of the Arizona Rules of Evidence, it intended to use evidence from two cases pending against Defendant to demonstrate Defendant had intent to commit the burglaries in this case and knowledge of the consequences of committing those burglaries. These other pending cases involved charges of burglary and attempted burglary stemming from incidents in August 2009 and August 2010, after which Defendant's DNA was recovered at the scenes. At trial, the Defendant testified and admitted to the August 2009 and August 2010 incidents. The State called the homeowners involved in these incidents to testify during the State's rebuttal. After this testimony, the court admitted a stipulation by the parties regarding the DNA evidence found in the August 2009 and August 2010 cases. The State read the stipulation to the jurors as follows:
Stipulations for 404(b) purposes only.
The State of Arizona by and through undersigned Deputy County Attorney and the defendant [b]y and through his attorney, enter into stipulations regarding the chain of custody and DNA results as it relates to the 404(b) cases that took place on August 14, 2010, at [street address], Tempe, Maricopa County, Arizona. And that took place on August 26th of 2009 at [street address], Phoenix, Maricopa County, Arizona.
The parties stipulate to the following:
1. Swabs from the staining on the shirt obtained from [J.R.] was properly processed, tested and determined to be blood.
Swabs obtained from the blood stain were properly processed, tested and determined to match the known DNA of the defendant, Kevin Michael Taubman.
2. Sock obtained from [M.M]'s home on August 26th of 2009 was taken from the home by Phoenix Police Officer [J.C.] . . . and was properly impounded into evidence.
This sock contains stains on it that were properly processed, tested and determined to be blood. Blood drops were also located by Officer [J.C.] outside [M.M]'s home on the ground near the broken window
3. Swabs from the blood stain on the sock obtained from [M.M.]'s home was properly processed, tested and determined to match in the known DNA of the defendant Kevin Michael Taubman.
Both parties also agree that the testing of the evidence as it relates to 404(b) evidence was done correctly and followed all proper procedures.
¶32 Defendant argues that the stipulation's probative value was substantially outweighed by the possibility that it would mislead or confuse the jury under Arizona Rule of Evidence 403. Specifically, Defendant argues that because the "poorly worded" stipulation did not include a definition of Rule 404(b) evidence and failed to differentiate the stipulated DNA evidence from that at the scenes of the crimes for which Defendant was on trial, the jury could have misinterpreted the stipulation to mean Defendant was not disputing that his DNA was found at the scenes of the crimes for which he was on trial. We disagree.
¶33 Although the stipulation itself did not include a definition of Rule 404(b) evidence, the trial court appropriately instructed the jury on the nature of Rule 404(b) evidence. Immediately following the reading of the parties' stipulation, the court read the following instructions:
Evidence of these other acts have been presented both this morning and this afternoon. You may consider these acts only if you find that the State has proved by clear and convincing evidence the defendant committed these acts.
You may only consider these acts to establish the defendant's motive, opportunity, intent, preparation, plan, knowledge, identity, and the absence of mistake or accident.Such instructions adequately explain the principle of Rule 404(b) and the way in which the jury was to use not only the stipulation, but all of the evidence pertaining to the August 2009 and August 2010 incidents. See Ariz. R. Evid. 404(b) (allowing for the admission of other crimes, wrongs, or acts to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident). As such, the jury was sufficiently advised of their duty to consider the evidence pertaining to the August 2009 and August 2010 incidents, including the stipulation, within the confines of Rule 404(b).
You must not consider these acts to determine the defendant's character or a character trait or to determine that the defendant acted in conformity with the defendant's character or character trait and therefore committed the crimes charged.
¶34 Moreover, although the State presented DNA evidence for both the crimes charged at trial and for the August 2009 and August 2010 incidents, the record reflects the risk of confusion of this evidence was minimal. First, the language of the stipulation clearly identified the dates of the incidents to which it applied as well as the victims of those incidents. Additionally, the victims of the August 2009 and August 2010 incidents testified immediately prior to the stipulation being read on the record. This testimony revealed the August 2009 and August 2010 incidents to be distinguishable from the circumstances of the crimes charged at trial, at least to the extent that the risk of confusion of the burglaries was minimal.
¶35 Given that the court adequately explained the principle of Rule 404(b) and the risk of confusion of the DNA was minimal, the court did not commit fundamental error by admitting the parties' stipulation. Moreover, even if admission of the stipulation was error, Defendant has failed to show prejudice.
CONCLUSION
¶36 For the foregoing reasons, we affirm Defendant's convictions and sentences except the sentence on Count 19, which is vacated and remanded for resentencing in accordance with this decision.