Opinion
2 CA-CR 2023-0002
08-26-2024
The State of Arizona, Appellee, v. Rafael LaQuinn Batain, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Rebecca Jones, Assistant Attorney General, Phoenix Counsel for Appellee Megan Page, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20220644001 The Honorable Javier Chon-Lopez, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Rebecca Jones, Assistant Attorney General, Phoenix Counsel for Appellee
Megan Page, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Appellant
Chief Judge Staring authored the decision of the Court, in which Presiding Judge Gard and Judge Eckerstrom concurred.
MEMORANDUM DECISION
STARING, CHIEF JUDGE
¶1 Rafael Batain appeals from his convictions and sentences for third-degree burglary, criminal trespass, and four counts of aggravated harassment. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against Batain. State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). In February 2021, A.P. filed a petition for an injunction against harassment against Batain, a family friend she had previously considered an "uncle figure." A.P. alleged Batain had "[l]eft a long letter at [her] door step" after she refused to open her door, "show[ed] up at [her] job" and demanded she talk to him, and "[s]howed up at [her] home address . . . unannounced after being asked to leave [her] alone repeatedly" and "being blocked on all medias, including phone number." The trial court granted A.P.'s ex parte petition, prohibiting Batain from having any contact with A.P. and from going "to or near" her workplace or within five hundred feet of her residence. Batain was served with the injunction in April 2021. The injunction was "effective for one year from date of service."
¶3 In August 2021, Batain left an anonymous note on the windshield of A.P.'s car, which was parked behind her home. The note stated that Batain had taken pictures and a video of A.P. and her boss having sex. It threatened that he would show the video to A.P.'s parents and her boss's wife. A.P. reported the note to police.
¶4 In September, Batain entered A.P.'s backyard after repositioning a security camera A.P. had installed. Batain then looked into her home through a gap in the blinds covering her sliding glass door. A.P. provided police with a copy of the surveillance footage, in which Batain was visible.
¶5 In October, Batain approached A.P.'s backyard late one evening while she was sitting in her parked car behind her home. After A.P. got out of her car and began recording a video on her cell phone, Batain yelled at her and asked her if she was recording. A.P. turned off the camera, got back in her car, and called the police. In February 2022, Batain again entered A.P.'s porch and left candy, a candle, and a DVD at her back door.
¶6 Batain was charged with four counts of aggravated harassment and two counts of third-degree burglary. After a four-day jury trial, he was convicted on all four counts of aggravated harassment and one count of third-degree burglary related to the September 2021 incident. As to the remaining burglary charge related to the February 2022 incident, Batain was convicted of the lesser-included offense of first-degree criminal trespass. He was sentenced to concurrent and consecutive prison terms totaling four years. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Batain was also charged with one count of unlawful distribution of images in a state of nudity, but this charge was dismissed without prejudice before trial at the state's request.
Discussion
¶7 On appeal, Batain argues the trial court erred in admitting evidence of his prior bad acts, expert testimony regarding handwriting analysis, and testimony referencing the invocation of his right to remain silent. He also contends that the evidence was insufficient to support his convictions for third-degree burglary and aggravated harassment related to the September 2021 incident and that the court improperly imposed consecutive sentences for those offenses.
I. Prior Bad Acts
¶8 We first address Batain's argument that the trial court erred in admitting evidence of his "prior bad acts that led to the granting of the injunction" against harassment. We review the admission of other-act evidence for an abuse of discretion. State v. Scott, 243 Ariz. 183, ¶ 14 (App. 2017).
¶9 Rule 404(b) allows trial courts to admit evidence of other crimes, wrongs, or acts for a permitted purpose. Ariz. R. Evid. 404(b)(2). The rule provides a non-exhaustive list of such purposes, including to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Scott, 243 Ariz. 183, ¶ 14. In evaluating evidence of other crimes, wrongs, or acts under Rule 404(b), a court must find: (1) clear and convincing proof the defendant committed the act; (2) the act is offered for a proper purpose; (3) the act is relevant to prove that purpose; and (4) the act has sufficient probative value as not to be substantially outweighed by undue prejudice. State v. Escalante-Orozco, 241 Ariz. 254, ¶ 77 (2017), abrogated on other grounds by State v. Escalante, 245 Ariz. 135, ¶¶ 15, 41 (2018).
¶10 Before trial, Batain moved to preclude evidence of "any alleged harassment that occurred prior to [A.P.] obtaining and serving" him with the injunction as substantially more prejudicial than probative. At a hearing on Batain's motion, the state indicated it intended to present at trial a certified copy of the injunction and asserted A.P. had "a right to say . . . what her relationship was with [Batain] before, how that shifted, [and] what specifically occurred that led her to go to the court and request an injunction against harassment." Defense counsel stated it was "willing to stipulate" to admission of A.P.'s petition for injunction listing three incidents of alleged harassment, noting he was "fine with that document coming in and just having the jury read it" because the jury would "see the injunction anyway" in deciding whether it was valid. See A.R.S. § 13-2921.01(A)(1)(b) (valid injunction against harassment element of aggravated harassment). However, defense counsel continued, "talking about anything else would be going into other acts and that would be [Rule] 404." The trial court ordered the state to "reveal exactly what [A.P. was] going to say and then present it to counsel," noting it would, at that time, "address . . . how much she can go into it" at trial.
We cite the current version of this statute because revisions enacted after Batain committed the offenses in 2021 are not material to this decision.
¶11 On the first day of trial, the state asked the trial court for permission to ask A.P. about her relationship with Batain "prior to seeking the injunction" in addition to the three instances of alleged harassment cited in the petition. The state explained "those three instances listed on the petition are not the totality as to the reason why [A.P.] sought to protect herself" from Batain, and, in order to "develop the full picture for the jury," it needed to present the "cumulative effect" of additional "situations that occurred" between June 2020 and February 2021. It also stated it intended to ask A.P. for examples of Batain's behavior that had made her "uncomfortable" and "afraid." Batain again stated he was "willing to stipulate the three items listed in the injunction itself" but objected to introduction of additional incidents as prejudicial other-act evidence.
¶12 After the state provided specific examples of testimony it expected to elicit from A.P., the trial court denied the state's request to introduce the additional acts, concluding that "even if they are relevant and probative, their probative value is substantially outweighed by the danger of unfair prejudice" and "confusion of the issues." The court further stated it felt "that the acts that are in the injunction and stipulated to are sufficient." Over Batain's objection, the court ruled it would allow A.P. to testify that, "before she got the injunction, [Batain] was stalking her and she was afraid."
¶13 On direct examination, A.P. testified she had filed a petition for an injunction against harassment by Batain because she "had a strong reason to believe that he was stalking [her] and it made [her] very afraid of him." The state then asked A.P. to "tell the jury what [she] wrote" in her petition. Batain objected on hearsay grounds, and the trial court held a bench conference during which it stated it "thought [Batain was] stipulating to the three acts" mentioned in the petition. Batain responded he was objecting to the "form" of A.P.'s testimony rather than the "substance" before agreeing A.P. could read the petition to herself to refresh her recollection and then "say what she remembers." The court subsequently allowed A.P. to read directly from the petition after it was admitted into evidence without objection. A.P. testified Batain had "[l]eft a long letter at [her] door step" after she refused to open her door, "show[ed] up at [her] job," texted her there demanding that she talk to him, and "showed up at [her] home . . . address . . . unannounced, after being asked to leave [her] alone repeatedly." She testified he did each of these things after "being blocked on all medias, including phone number."
¶14 On appeal, Batain challenges the trial court's admission of A.P.'s testimony regarding the three events listed in the petition for injunction, as well as her statement that he had been stalking her and she had been afraid. He first asserts the state failed to provide notice of its intent to introduce the evidence until he moved to preclude it, thereby violating Rule 404(b)(3), Ariz. R. Evid., and Rule 15.1(b)(7), Ariz. R. Crim. P. Further, Batain contends the testimony was not relevant for any proper purpose because he "would be guilty for violating an injunction no matter what he had done before." And, he argues, even if relevant, the testimony's probative value was substantially outweighed by the risk of unfair prejudice, asserting it "served only to lead the jury to have sympathy for [A.P.] and make an emotional decision about the case."
¶15 As discussed, Batain indicated before trial that he was "willing to stipulate [to] the three items listed in the injunction itself." After Batain objected at trial to A.P.'s testimony regarding the three incidents at issue, the trial court indicated it believed Batain had stipulated to the admission of such testimony. Batain responded that he was not objecting to the substance of A.P.'s testimony. Because Batain effectively stipulated to A.P.'s testimony about what she had documented in her petition and did not later seek relief from that stipulation, we do not further address the propriety of its admission. See Gangadean v. Flori Inv. Co., 106 Ariz. 245, 248 (1970) (stipulation binding in absence of motion for relief from the effect thereof); State v. Parker, 231 Ariz. 391, ¶ 61 (2013) (defendant's stipulation to admission of evidence "precludes him from asserting on appeal that [its] admission was error"); State v. Fulminante, 161 Ariz. 237, 248-49 (1988) ("no error" where defense strategically stipulated to admission of defendant's prior conviction); see also State v. Allen, 223 Ariz. 125, ¶ 11 (2009) (stipulations of counsel binding on parties). Further, to the extent Batain argues the trial court erred in allowing A.P.'s testimony that she had been afraid of him prior to seeking the injunction against harassment, such testimony does not constitute other-act evidence and thus does not fall under Rule 404(b). Because Batain does not challenge this testimony on any other basis, we do not further address his argument.
Batain asserts on appeal that the trial court misinterpreted defense counsel's stipulation to mean that the defense had withdrawn its objection to a description of those events, and instead suggests he had intended to stipulate only that "there were three incidents that if true justified the injunction, or that the injunction was valid." At no point did Batain seek to correct or clarify the court's understanding.
¶16 And, even assuming without deciding A.P.'s testimony that Batain had been stalking her was erroneously admitted, this testimony was harmless beyond a reasonable doubt. See State v. Perez-Gutierrez, ___ Ariz. ___, ¶ 18, 548 P.3d 1102, 1107 (2024) ("When a defendant properly objects to a trial error, we review for 'harmless error,' and the state must 'prove beyond a reasonable doubt that the error did not contribute to or affect the verdict or sentence.'" (quoting State v. Henderson, 210 Ariz. 561, ¶ 18 (2005))). It did not reference any specific information about a prior instance or act but referred generally to Batain's behavior before the issuance of the injunction, three instances of which he had already stipulated were admissible. See State v. Copeland, 253 Ariz. 104, ¶ 27 (App. 2022) (erroneously admitted evidence harmless when it "supports a fact otherwise established by existing evidence" (quoting State v. Bass, 198 Ariz. 571, ¶ 40 (2000))).
II. Expert Testimony
¶17 Batain asserts the trial court erred in admitting expert testimony opining that he had written the note left on A.P.'s windshield in August 2021. He argues that because the state did not "introduce evidence on most of the factors in the Rule 702/Daubert analysis," it failed to establish the testimony was admissible. "We review a trial court's ruling on the admissibility of expert testimony for an abuse of discretion," State v. Ortiz, 238 Ariz. 329, ¶ 5 (App. 2015), but "we review de novo the interpretation of the Rules of Evidence," State v. Romero, 239 Ariz. 6, ¶ 11 (2016). A court abuses its discretion by committing an error of law. Id. "Whether a party has laid sufficient foundation for the admission of evidence is within the sound discretion of the trial court, and we will not disturb its ruling absent a clear abuse of that discretion." State v. George, 206 Ariz. 436, ¶ 28 (App. 2003).
¶18 Rule 702, Ariz. R. Evid., provides as follows:
We cite the current version of Rule 702 because no revisions material to this decision have occurred since Batain's trial.
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert's opinion reflects a reliable application of the principles and methods to the facts of the case.See also Fed.R.Evid. 702; Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). A "trial judge serves as a 'gatekeeper' who makes a preliminary assessment as to whether the proposed expert testimony is relevant and reliable." State ex rel. Montgomery v. Miller, 234 Ariz. 289, ¶ 19 (App. 2014) (quoting Ariz. R. Evid. 702 cmt. to 2012 amend.); see State v. Bernstein, 237 Ariz. 226, ¶ 14 (2015) (Rule 702's "overall purpose . . . is simply to ensure that a fact-finder is presented with reliable and relevant evidence, not flawless evidence." (quoting State v. Langill, 945 A.2d 1, 10 (N.H. 2008))); see also Daubert, 509 U.S. at 594-95 (court's gatekeeping role under Rule 702, Fed. R. Evid., is a "flexible one" focused on the reliability of the underlying principles). In determining whether expert testimony is admissible, "courts must remain cognizant of the separate functions of judge and jury. The court's role as gatekeeper does not supplant or replace the adversary system." Miller, 234 Ariz. 289, ¶ 20. "[C]ross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible [expert] evidence." Id. (first alteration added, second alteration in Miller) (quoting Heller v. Shaw Indus., Inc., 167 F.3d 146, 152 (1999)).
¶19 Before trial, the state asked the court to order Batain to provide a handwriting sample to compare with the note left on A.P.'s car. Batain did not object, the court granted the motion, and Batain provided the state with a handwriting sample. The state subsequently provided notice of its intent to call Alan Kreitl, a forensic document examiner with the Arizona Department of Public Safety, as an expert witness at trial. The state noted Kreitl would testify as to whether Batain had written the note left on A.P.'s car in August 2021, as well as "any and all information relevant in this case and on topics identified in his Curriculum Vitae."
¶20 Batain subsequently moved to preclude Kreitl's testimony under Daubert and Rule 702, Ariz. R. Evid. Batain argued that "handwriting analysis is not a legitimate field of science" and, even if the court were to determine otherwise, it "should still preclude . . . Kreitl from testifying because he . . . employ[ed] methodologies that are outside the generally accepted norms of his field." Further, Batain asserted, "the suggestive nature in which [detectives] provided the note to . . . Kreitl invalidates his opinion."
¶21 On the second day of trial, the court held an evidentiary hearing on Batain's motion to preclude, during which Kreitl testified regarding his qualifications, general comparison process, and methods and analysis applied to the writings in this case. Kreitl explained that he compares writings by looking for significant consistencies and differences between them. He continued that, in order to conclude two writings have been written by the same person, there must be "an ample amount of significant similarities between the two bodies in combination with an absence of significant differences," but there is no "minimum amount of similarities that need[] to exist to warrant . . . an identification." Kreitl testified that, in this case, he had compared the note left on A.P.'s car to a nine-page letter addressed to A.P. and signed by "Rafael" before comparing those two "unknown" writings to Batain's "known" handwriting sample provided to the state. He noted consistencies between these writings and no significant differences and ultimately concluded they had all been written by the same individual.
¶22 Batain argued that, while Kreitl's testimony would assist the jury, it was inadmissible under "every other prong of the Daubert test." Specifically, he argued Kreitl's testimony was not based on sufficient facts and data. See Ariz. R. Evid. 702(b). Further, Batain challenged Kreitl's methods and asserted they had not been reliably applied because the analysis had not been performed in a "controlled setting" and detectives had labeled the note as having been "left on [A.P.]'s car by the defendant" before submitting it to Kreitl for analysis. See Ariz. R. Evid. 702(c), (d). The trial court denied Batain's motion, finding Kreitl's testimony would assist the jury in determining whether Batain had written the note left on A.P.'s car. It continued that, "even if the handwriting is qualified as shaky evidence in this case," it did "not necessarily have to meet all of the Daubert criteria" because it was "more of an experience-based side of expert testimony."
¶23 At trial, Kreitl testified he had compared the note left on A.P.'s car to the "known" sample of Batain's handwriting. He further testified that, based on "the amount of significant similarities between the two bodies of writings and the absence of any significant differences," the two documents had been written by the same person. The state asked Kreitl whether he had "reach[ed] a confidence level with regard to []his analysis," and Kreitl indicated he had the "highest degree of confidence expressed by document examiners and handwriting comparisons" in his conclusion that Batain had written the note left on A.P.'s car.
¶24 Batain argues on appeal that the trial court erred in concluding experience-based testimony was not subject to analysis under Rule 702 or Daubert. And, he asserts, because the state failed to "introduce evidence on most of the factors in the Rule 702/Daubert analysis," the court erred in admitting Kreitl's testimony. Batain again contends the state failed to present evidence that Kreitl's testimony was based on sufficient facts and data, his testimony was the product of reliable principles and methods, and he had reliably applied those principles and methods to the facts of this case. See Ariz. R. Evid. 702(b)-(d). Batain also argues the court erred in "rel[ying] on the jury to evaluate" the relevance and reliability of Kreitl's testimony when it was part of the court's gatekeeping role to evaluate that evidence before admitting it.
¶25 Contrary to Batain's assertion, the trial court did not conclude experience-based testimony was not subject to analysis under Daubert. Instead, as noted, it determined Kreitl's testimony regarding handwriting analysis did not need to satisfy all of the reliability factors-as set forth in Daubert and discussed below-to be admissible. See 509 U.S. at 593-94. The court's reasoning is correct. Indeed, although a court's gatekeeping function under Daubert applies to all types of expert testimony and not just scientific testimony, see Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999), "not all of the [reliability] factors will apply to 'all experts or in every case,'" Miller, 234 Ariz. 289, ¶ 25 (quoting Kumho Tire, 526 U.S. at 141). And we have previously recognized that Rule 702 was not "intended to prevent expert testimony based on experience." McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 244, ¶ 17 (App. 2013). Further, the comment to Rule 702 clarifies it is not "intended to permit a challenge to the testimony of every expert, [nor] preclude the testimony of experience-based experts." Ariz. R. Evid. 702 cmt. to 2012 amend.
¶26 First, as to Batain's argument that the state failed to establish Kreitl's testimony was based on sufficient facts and data pursuant to Rule 702(b), we disagree. Batain asserts "the only relevant testimony was about computer scientists who used an algorithm, but Kreitl used his eyes and circled things he thought were important." Batain's argument challenges the reliability of the principles and methods used, not the sufficiency of the facts and data supporting Kreitl's testimony. See Ariz. R. Evid. 702(c). Indeed, "[t]he assessment of the sufficiency of the facts and data is a quantitative, not qualitative analysis." Miller, 234 Ariz. 289, ¶ 22. Here, Kreitl compared the note left on A.P.'s car to a nine-page document addressed to A.P. and signed by "Rafael." He then compared those two unknown writings with Batain's known handwriting sample. Although the nine-page document was not admitted at trial, "the facts or data underlying an expert's testimony may include inadmissible evidence." Id. Batain fails to show Kreitl's testimony was not based on sufficient facts and data.
¶27 Rule 702(c) also requires that an expert's testimony be based on "reliable principles and methods." Accordingly, "an expert must be able to explain how his methods, reasoning and opinions are based on 'an accepted body of learning or experience.'" Miller, 234 Ariz. 289, ¶ 23 (quoting Fed.R.Evid. 702, advisory committee's notes, 2000 amendments). "While the expert's methodology must be based on more than speculation, its reliability need not be established to a degree of scientific certainty." Id. In determining whether an expert's testimony is reliable, courts consider five non-exclusive factors: "(1) whether the expert's theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether the technique or theory is generally accepted within the relevant scientific community; (4) the known or potential rate of error of the technique or theory when applied; and (5) the existence and maintenance of standards controlling application of the technique." Id. ¶ 24; see Daubert, 509 U.S. at 593-94. "No single Daubert factor is dispositive of the reliability of an expert's testimony." Miller, 234 Ariz. 289, ¶ 25; see also State v. Favela, 234 Ariz. 433, ¶ 8 (App. 2014).
¶28 Batain fails to show Kreitl used unreliable methods to reach his conclusion in this case. Batain points to the lack of evidence regarding each of the five aforementioned factors in asserting Kreitl's testimony was inadmissible under Rule 702(c). But the "trial court's evaluation of reliability is intended to be 'flexible,' and the court has 'considerable leeway,' based on the 'particular facts and circumstances of the particular case,' to assess reliability." State v. Kelly, 257 Ariz. 101, ¶ 28 (App. 2024) (citation omitted) (quoting Kumho Tire, 526 U.S. at 141, 152, 158); see Bernstein, 237 Ariz. 226, ¶ 9 ("Because Rule 702 mirrors its federal counterpart, we may look to the federal rule and its interpretation for guidance."). "In doing so, the court need not consider any specific factor or set of factors." Kelly, 257 Ariz. 101, ¶ 28; see Miller, 234 Ariz. 289, ¶¶ 24-25. Because the basis of Kreitl's opinion "was neither rocket science nor complex statistical modeling," we conclude his "explanation of his methods and experience was sufficient for the trial judge to be confident" in its reliability. Kelly, 257 Ariz. 101, ¶ 29 (quoting United States v. Lopez-Martinez, 543 F.3d 509, 515 (9th Cir. 2008)).
¶29 Under Rule 702(d), a trial court "consider[s] whether an expert reliably applied the pertinent methodology" to the facts of the case. Bernstein, 237 Ariz. 226, ¶ 13. "[A]lleged flaws in the application of a reliable methodology should not result in exclusion of evidence unless they 'so infect[] the procedure as to make the results unreliable.'" State v. Conner, 249 Ariz. 121, ¶ 29 (App. 2020) (first alteration in Conner, second alteration in Bernstein) (quoting Bernstein, 237 Ariz. 226, ¶ 17); see also Daubert, 509 U.S. at 588 (noting "general approach of relaxing the traditional barriers to 'opinion' testimony" under Federal Rules of Evidence). Here, Batain fails to show Kreitl's opinion was unreliable.
To the extent Batain suggests Kreitl's testimony was "biased" because the conclusion that Batain had written the note "was in the request itself," he cross-examined Kreitl on confirmation bias and addressed it in closing argument. See Bernstein, 237 Ariz. 226, ¶ 18.
¶30 As to Batain's assertion that the trial court improperly relied on the jury to evaluate the relevance and reliability of Kreitl's testimony, we disagree. The court's gatekeeping function under Rule 702 is "not intended to supplant traditional jury determinations of credibility and the weight to be afforded otherwise admissible testimony." Ariz. R. Evid. 702 cmt. to 2012 amend.; see Bernstein, 237 Ariz. 226, ¶ 18 (when reliability of expert's opinion is a close question, the court should allow jury to exercise its fact-finding function in assessing weight and credibility of evidence). And, as noted, "cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible" expert testimony. Miller, 234 Ariz. 289, ¶ 20 (quoting Heller, 167 F.3d at 152). On the record before us, Batain fails to establish the trial court abused its discretion in admitting Kreitl's testimony.
III. Invocation of Right to Remain Silent
¶31 Batain challenges the introduction of officer testimony "mentioning [his] invocation" of his right to remain silent. We review de novo a claim of an improper comment on a defendant's constitutional right to remain silent. See State v. Newell, 212 Ariz. 389, ¶¶ 27-37 (2006) (reviewing de novo application of Miranda); State v. Nordstrom, 230 Ariz. 110, ¶ 27 (2012) (constitutional claims reviewed de novo). Because Batain failed to object to the officer's testimony at trial, we review this claim only for fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20; see also State v. Fleming, 117 Ariz. 122, 127 (1977) (prosecutor's improper comments about exercise of right to remain silent "will be fundamental error").
¶32 "The Fifth Amendment gives a person the right to remain silent once in custody ...." State v. VanWinkle, 229 Ariz. 233, ¶ 14 (2012). "Due process demands that the state refrain from introducing testimony reflecting that a defendant had invoked" that right. State v. Siddle, 202 Ariz. 512, ¶ 5 (App. 2002); see State v. Carrillo, 156 Ariz. 125, 131 (1988) (courts do not penalize defendant "for exercising his Miranda rights").
¶33 At trial, the state called as a witness an officer who had spoken to A.P. when she reported the August 2021 note incident. The officer testified he had subsequently contacted Batain and asked him to come to the police station to discuss the incident. The officer continued, "When [Batain] came down, I read him his Miranda rights. He had answered yes and no. I didn't ask him any questions about that case from August 31st, but I did cite him for" harassment before releasing him. Batain did not object.
¶34 Here, the officer, albeit tersely, both referenced having advised Batain of his Miranda rights and Batain's response to the advisory. Although this was improper because it might have cued an alert jury that Batain had invoked his right to remain silent, it was not the type of explicit and intentional remark concerning a defendant's post-Miranda silence that warrants reversal. See Siddle, 202 Ariz. 512, ¶ 5 (testimony "that falls short of disclosing a defendant's invocation of the right to remain silent does not run afoul of the Due Process Clause"); State v. Keeley, 178 Ariz. 233, 234-36 (App. 1994) (error reversible where prosecutor's comments on defendant's silence "were a deliberate trial strategy by the prosecutor, not an inadvertent slip by the officer"); State v. Sorrell, 132 Ariz. 328, 329 (1982) (error fundamental and reversible when state commented during opening and closing on defendant's invocation of right to remain silent and elicited testimony from witness). Indeed, the prosecutor did not ask any questions relating to Batain's invocation or argue that his silence implied he was guilty. See State v. Guerrero, 173 Ariz. 169, 172 (App. 1992) (comment on defendant's invocation of constitutional rights not reversible error "unless the prosecution draws the jury's attention to the . . . exercise of the right to remain silent and uses it to infer guilt"). Thus, on the record before us, Batain fails to show fundamental, prejudicial error requiring reversal. See Henderson, 210 Ariz. 561, ¶¶ 19-20.
IV. Sufficiency of the Evidence
¶35 Batain argues the evidence was insufficient to support his convictions for third-degree burglary and aggravated harassment related to the September 2021 incident in which he moved A.P.'s security camera, entered her backyard, and looked into her home. As such, he contends, the trial court erred in denying his motion for a judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P. "We review a denial of a Rule 20 motion de novo, 'viewing the evidence in a light most favorable to sustaining the verdict.'" State v. Allen, 253 Ariz. 306, ¶ 69 (2022) (quoting State v. Bible, 175 Ariz. 549, 595 (1993)). In conducting our review, "we compare the evidence 'against the statutorily required elements of the offense,'" State v. Brock, 248 Ariz. 583, ¶ 22 (App. 2020) (quoting State v. Pena, 209 Ariz. 503, ¶ 8 (App. 2005)), and do not "reweigh the evidence to decide if [we] would reach the same conclusions as the trier of fact," State v. Barger, 167 Ariz. 563, 568 (App. 1990).
¶36 "A judgment of acquittal is appropriate when 'no substantial evidence [exists] to warrant a conviction.'" State v. Nunez, 167 Ariz. 272, 278 (1991) (alteration in Nunez) (quoting State v. Clabourne, 142 Ariz. 335, 345 (1984)); see Ariz. R. Crim. P. 20(a)(1). "Substantial evidence is more than a mere scintilla and is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Ellison, 213 Ariz. 116, ¶ 65 (2006) (quoting State v. Mathers, 165 Ariz. 64, 67 (1990)). If reasonable people "could differ as to whether the evidence establishes a fact in issue, that evidence is substantial." State v. Mincey, 141 Ariz. 425, 432 (1984). Substantial evidence may be direct or circumstantial. Pena, 209 Ariz. 503, ¶ 7.
¶37 At the close of the state's presentation of evidence, Batain moved for a judgment of acquittal. With respect to the September 2021 incident, he argued he had not been "properly identified," no forensic evidence placed him at the scene, and "there was no evidence of any sort of annoyance or bothering that was contemporaneous with [A.P.] being there." The trial court denied Batain's motion.
¶38 As relevant here, a person commits harassment "if, with intent to harass or with knowledge that the person is harassing another person, the person . . . contacts . . . [or] communicates . . . with another person . . . in a manner that harasses," "[r]epeatedly commits an act or acts that harass," or "[s]urveils . . . a person for no legitimate purpose." A.R.S. § 13-2921(A)(1), (3), (4). A person commits aggravated harassment if (1) the person commits harassment under § 13-2921 and (2) a court has issued an injunction against harassment against the person and in favor of the victim and the injunction was served and is still valid. A.R.S. § 13-2921.01(A)(1)(b). "Harassment" means "conduct that is directed at a specific person and that would cause a reasonable person to be seriously alarmed, annoyed or harassed and the conduct in fact seriously alarms, annoys or harasses the person." § 13-2921(E). A defendant commits third-degree burglary by "[e]ntering or remaining unlawfully in or on a nonresidential structure or in a fenced commercial or residential yard with the intent to commit any theft or any felony therein." A.R.S. § 13-1506(A)(1).
We cite to the version of the statute in effect at the time of the offenses. See 2008 Ariz. Sess. Laws, ch. 205, § 2; see also A.R.S. § 1-246 ("[O]ffender shall be punished under the law in force when the offense was committed."); State v. Newton, 200 Ariz. 1, ¶ 3 (2001).
The state points out that the current version of § 13-2921(E) defines "harass" as to engage in "conduct that is directed at a specific person and that would cause a reasonable person to be seriously alarmed, annoyed, humiliated or mentally distressed and the conduct in fact seriously alarms, annoys, humiliates or mentally distresses the person." However, this definition was not added to the statute until September 2022. The offenses at issue were committed in September 2021, and, as such, we apply the version of the statute in effect at that time. See 2008 Ariz. Sess. Laws, ch. 205, § 2.
¶39 Batain argues that because the state asserted he had attempted to prevent A.P. from learning of his presence in her backyard, it necessarily failed to establish he had intentionally or knowingly annoyed her or created a "hostile situation." Indeed, he continues, "[t]here was no testimony [he] left anything in the yard or otherwise brought his presence to" A.P.'s attention. Batain acknowledges his behavior was in violation of the court's injunction but asserts it was insufficient to "satisfy the definition of harassment." Similarly, with respect to his burglary conviction, Batain asserts that, if, as the state argued, he had "moved the camera to prevent [A.P.] from learning he had been in her backyard, he was not intending to commit harassment or aggravated harassment." Thus, he contends, the state failed to establish he had entered A.P.'s fenced patio with intent to commit a felony as required to sustain his conviction for third-degree burglary.
¶40 The record contains substantial evidence to support the jury's verdicts. Batain does not dispute on appeal that the injunction against harassment was still in effect in September 2021 and that A.P. did, in fact, feel "seriously alarmed, annoyed or harassed" by his conduct. § 13-2921(E). At issue is whether Batain acted with "intent to harass or with knowledge that [he wa]s harassing" A.P. § 13-2921(A). Because Batain had been served with the injunction and was therefore on notice that any contact with A.P. or presence on her property would be unwelcome, he had reason to know A.P. would feel seriously alarmed, annoyed, or harassed by his behavior. Further, with respect to Batain's burglary conviction, the jury could infer from the totality of the evidence Batain's intent to commit aggravated harassment, including evidence that his conduct was targeted, repetitive, and part of a pattern. See Phx. Newspapers, Inc. v. Dep't of Corr., 188 Ariz. 237, 245 (App. 1997) ("[I]ntent to harass may be established by circumstantial evidence."). Although Batain asserts he repositioned the camera to prevent A.P. from knowing he was in her backyard, the jury could reasonably infer he instead moved the camera to prevent the recording of security footage placing him at A.P.'s home. To the extent Batain asks us to reweigh the evidence on appeal, we will not do so. See State v. Fischer, 242 Ariz. 44, ¶ 28 (2017). The trial court did not err in denying Batain's motion for a judgment of acquittal. See Allen, 253 Ariz. 306, ¶ 69.
Although Batain argued below that the injunction had not been "properly served" or was otherwise invalid, he does not reassert this argument on appeal. See Ariz. R. Crim. P. 31.10(a)(7)(A) (opening brief must include argument containing "contentions with supporting reasons for each contention"); State v. Bolton, 182 Ariz. 290, 298 (1995) (failure to argue claim constitutes waiver).
V. Consecutive Sentences
¶41 For the first time on appeal, Batain contends the trial court erred in sentencing him to consecutive terms of imprisonment for burglary and aggravated harassment related to the September 2021 incident because both convictions arose from the same act. As such, he asks us to order that his sentences for aggravated harassment run concurrently with his burglary sentence. We review de novo a court's decision to impose consecutive sentences under A.R.S. § 13-116. State v. Dunbar, 249 Ariz. 37, ¶ 48 (App. 2020). Because Batain failed to raise this issue below, we review solely for fundamental error. See Escalante, 245 Ariz. 135, ¶¶ 12, 21. "Imposition of an illegal sentence constitutes fundamental error." State v. Thues, 203 Ariz. 339, ¶ 4 (App. 2002).
¶42 At sentencing, the trial court imposed concurrent terms of imprisonment for each of Batain's four aggravated harassment convictions. As to Batain's third-degree burglary conviction, the court sentenced him to a 2.5-year prison term to run consecutively to his sentences for aggravated harassment, explaining that "burglary in the third degree is a different type of offense." The court further noted that "the reason for the consecutive sentences" is that, although the offenses had been joined for trial, they had "all happened on separate dates."
¶43 "An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent." § 13-116. Courts apply the three-pronged "identical elements test to determine whether the evidence shows a single act, which requires concurrent sentences, or multiple acts, which permit consecutive sentences." State v. Khoshbin, 166 Ariz. 570, 575 (App. 1990) (citing State v. Gordon, 161 Ariz. 308 (1989)). First, we consider the facts of the underlying crimes, subtracting the evidence needed to establish "the ultimate charge-the one that is at the essence of the factual nexus and that will often be the most serious of the charges." Gordon, 161 Ariz. at 315. If what remains is sufficient to prove the elements of the secondary crime, then § 13-116 may not bar consecutive sentences. Id. Second, the court must determine "whether . . . it was factually impossible to commit the ultimate crime without also committing the secondary crime." Id. Finally, the court must "consider whether the defendant's conduct in committing the [secondary] crime caused the victim to suffer an additional risk of harm beyond that inherent in the ultimate crime." Id.
¶44 As discussed above, a defendant commits aggravated harassment if a valid injunction against harassment is in place and the defendant, with intent to harass or knowledge that the conduct is harassing, "contacts . . . [or] communicates . . . with another person . . . in a manner that harasses," repeatedly commits acts that harass, or surveils a person for no legitimate purpose. § 13-2921(A)(1), (3), (4); see § 13-2921.01(A)(1). A defendant commits third-degree burglary by "entering or remaining unlawfully . . . in a fenced . . . residential yard with the intent to commit . . . any felony therein." § 13-1506(A)(1).
¶45 The state concedes the trial court erred in imposing consecutive sentences for the burglary and aggravated harassment counts related to the September 2021 incident. However, we are not bound by the state's concession and will examine the record ourselves to ensure it is supported by "applicable legal principles." Lopez v. Kearney, 222 Ariz. 133, ¶ 10 (App. 2009); see State v. Rogers, 2 Ariz.App. 232, 235 (1965) ("This Court is not bound by a confession of error in a criminal case and it has undertaken to examine the record."), overruled on other grounds by State v. Mallory, 19 Ariz.App. 15, 20 (1972).
¶46 We first determine whether aggravated harassment or third-degree burglary was the "ultimate charge" in this case. Gordon, 161 Ariz. at 315. Although third-degree burglary is the more serious of the two crimes by felony classification, we conclude aggravated harassment is the ultimate crime for purposes of this analysis, as it was "the primary object of the episode" and provides "a factual nexus to all the other crimes." State v. Alexander, 175 Ariz. 535, 537 (App. 1993). Applying the first Gordon prong, after subtracting the facts supporting Batain's aggravated harassment conviction from the evidence-that he looked into A.P.'s home through her sliding glass door while a valid injunction against harassment was in effect-sufficient evidence remains to support Batain's third-degree burglary conviction. Specifically, evidence remains that Batain entered A.P.'s yard with the intent to commit aggravated harassment. Therefore, application of the first Gordon factor suggests consecutive sentences were permissible in this case. See State v. Cornish, 192 Ariz. 533, ¶ 19 (App. 1998) (rejecting challenge to consecutive sentences imposed for burglary and attempted aggravated assault based on defendant's conduct in breaking into victim's home and strangling her; the "burglary" established by the "forced entry" into victim's home was "factually separate" from the "crime of violence" committed after entry).
¶47 Applying Gordon's second prong, we conclude Batain could have committed aggravated harassment without committing burglary and vice versa. The jury could have found that Batain committed burglary by entering A.P.'s patio with the intent to commit aggravated harassment and that Batain committed aggravated harassment by looking through A.P.'s sliding glass door with knowledge that such conduct was harassing while an injunction against harassment was in effect. As such, we need not consider the third Gordon factor. See State v. Boldrey, 176 Ariz. 378, 382-83 (App. 1993) (not necessary to consider "whether the other offenses increased [victim]'s risk of harm" where consecutive terms permissible under § 13-116). On this record, the trial court did not err in imposing consecutive sentences for aggravated harassment and third-degree burglary. State v. Perez, 141 Ariz. 459, 464 (1984) (we affirm trial court's ruling "if the result was legally correct for any reason").
Disposition
¶48 For the foregoing reasons, we affirm Batain's convictions and sentences.