Opinion
No. 2 CA-CR 2017-0257
04-11-2018
THE STATE OF ARIZONA, Appellee, v. GUYNEL GAGOT JR., Appellant.
COUNSEL Joel Feinman, Pima County Public Defender By Abigail Jensen, Assistant Public Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20164235001
The Honorable Janet C. Bostwick, Judge
AFFIRMED
COUNSEL Joel Feinman, Pima County Public Defender
By Abigail Jensen, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ESPINOSA, Judge:
¶1 After a jury trial, Guynel Gagot Jr. was convicted of six counts of robbery and sentenced to concurrent, seven-year prison terms for each count. Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530 (App. 1999), asserting she has reviewed the record but found no arguably meritorious issue to raise on appeal. Consistent with Clark, 196 Ariz. 530, ¶ 32, she has provided "a detailed factual and procedural history of the case with citations to the record" and asks this court to "search the record for error." Gagot has filed a supplemental brief arguing the trial court erred in granting the state's motion to sever several robbery counts.
Gagot also pled guilty to four additional counts of robbery, for which the trial court imposed concurrent, 4.5-year prison terms. --------
¶2 Viewed in the light most favorable to sustaining the jury's verdict, see State v. Tamplin, 195 Ariz. 246, ¶ 2 (App. 1999), the evidence is sufficient to support the verdicts here. Over several days in November 2015, Gagot entered five convenience stores (one twice), indicated to the clerk he had a weapon, and demanded and received cash from the clerk. See A.R.S. § 13-1902(A). His sentences are within the statutory range and were lawfully imposed. A.R.S. §§ 13-703(C), (J), 13-1902(B).
¶3 In his supplemental brief, Gagot asserts the trial court erred in granting the state's motion to sever several robbery counts. Before trial, the state moved to sever the six robbery charges from nine other alleged robberies. It asserted severance was appropriate "for logistical and judicial economy reasons" because the case could "be heard in one week and without reference to the other victims or incidents." The state also noted severance would benefit Gagot because it would not present "clothing and other inculpatory evidence regarding [Gagot]'s participation in the previous robberies." And, at a hearing on the motion, the state noted it "would not be able to go forward" on the counts it sought to sever. Gagot argued that severance "would not benefit judicial economy" because, in the event of an acquittal, the state would proceed to trial on the severed counts. He further asserted that the offenses were eligible for joinder under Rule 13.3(a), Ariz. R. Crim. P., and, if the state wished to try them separately, it should "dismiss the remaining counts." The trial court granted the motion to sever, concluding it was "in the interest of justice and judicial economy."
¶4 On appeal, Gagot again asserts that severance was inappropriate because the charges were eligible for joinder, and additionally claims the state was "deceptive" because it introduced clothing at trial. We review for an abuse of discretion a trial court's decision whether to allow severance. State v. Comer, 165 Ariz. 413, 418 (1990). Rule 13.4(a), Ariz. R. Crim. P., does not expressly provide that "judicial economy" is a basis for severance. And, although evidence of nine more robberies is unlikely to have aided Gagot's defense, the record does not support the conclusion that severance was "necessary to promote a fair determination" of his guilt. Ariz. R. Crim. P. 13.4(a). But any error in the court's rationale was harmless—nothing in the record suggests that it would have forced the state to proceed unprepared, that speedy trial deadlines were approaching, or that Gagot's chances of acquittal on the six counts would have been greater had he been tried for nine additional counts of robbery at the same time. See State v. VanWinkle, 229 Ariz. 233, ¶ 16 (2012) (error is harmless if it "did not contribute to or affect the verdict"). And, insofar as Gagot suggests the state committed misconduct by presenting clothing evidence at trial despite its statements in the motion to sever, he has not developed this argument in any meaningful way and we therefore do not address it. See State v. Bolton, 182 Ariz. 290, 298 (1995) ("Failure to argue a claim on appeal constitutes waiver of that claim.").
¶5 Pursuant to our obligation under Anders, we have searched the record for fundamental, reversible error and have found none. And we have rejected the arguments Gagot raised in his supplemental petition. Accordingly, his convictions and sentences are affirmed.