Opinion
2 CA-CR 2024-0029-PR
06-20-2024
The State of Arizona, Respondent, v. Nathan Larry Joseph Loebe, Petitioner.
Apfel Law Group, Seth Apfel Counsel for Petitioner
NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Pima County No. CR20174678001 The Honorable Joan L. Wagener, Judge
REVIEW GRANTED; RELIEF DENIED
Apfel Law Group, Seth Apfel Counsel for Petitioner
Chief Judge Vasquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Gard concurred.
MEMORANDUM DECISION
VASQUEZ, Chief Judge
¶1 Petitioner Nathan Loebe seeks review of the trial court's ruling summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Martinez, 226 Ariz. 464, ¶ 6 (App. 2011). Loebe has failed to establish such abuse here.
¶2 After a jury trial, Loebe was convicted of twelve counts of sexual assault, one count of attempted sexual assault, five counts of kidnapping, and three counts of stalking. His convictions were based on multiple incidents ranging from May 2003 through May 2015 and involving multiple victims. The trial court sentenced him to concurrent and consecutive, aggravated prison terms totaling 260 years. This court affirmed his convictions and sentences on appeal. State v. Loebe, No. 2 CA-CR 2019-0137 (Ariz. App. May 28, 2021) (mem. decision).
¶3 Thereafter, Loebe initiated a proceeding for post-conviction relief. In his petition, Loebe raised numerous claims of ineffective assistance of appellate and trial counsel. Specifically, he argued appellate counsel had failed to challenge "the improper introduction of testimony regarding the religious views of victims, two witnesses, and the defendant"; improper comments by the prosecutor; "improper and/or missing" jury instructions, "which had the combined effect of shifting the burden to the defense"; the stalking instructions; the dismissal of juror M.; and his sentences on the stalking counts. As to trial counsel, Loebe asserted that he had failed to conduct any meaningful investigation into exculpatory witnesses; "impeach key witnesses"; "object to a considerable volume of objectionable testimony"; and complete a mitigation report for sentencing. He also maintained that trial counsel had made inappropriate comments, referring to the incidents as "'sexual assaults,' thereby signaling to the jury that the defense believed the incidents constitute assaults and not consensual interactions." Finally, Loebe argued that trial counsel had been "ineffective due to the effect of cumulative errors throughout the trial."
¶4 In January 2024, the trial court issued a twenty-seven-page ruling addressing each of Loebe's claims. As to his sentencing on the stalking counts, the court agreed with Loebe that he "should have been sentenced to class five felonies on all three counts" and, therefore, vacated those sentences and ordered a resentencing hearing. Otherwise, the court found that Loebe had not established "a colorable claim for ineffective assistance of appellate or trial counsel." This petition for review followed.
¶5 On review, Loebe reasserts various claims of ineffective assistance of appellate and trial counsel. "To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." Id. Under the first prong of Strickland, "we must presume 'counsel's conduct falls within the wide range of reasonable professional assistance' that 'might be considered sound trial strategy.'" State v. Denz, 232 Ariz. 441, ¶ 7 (App. 2013) (quoting Strickland, 466 U.S. at 689). And to establish prejudice under the second prong of Strickland, a defendant cannot meet his burden by "mere speculation." State v. Rosario, 195 Ariz. 264, ¶ 23 (App. 1999).
We do not address the claims raised below but not reasserted on review. See Ariz. R. Crim. P. 32.16(c)(4) ("A party's failure to raise any issue that could be raised in the petition for review or cross-petition for review constitutes a waiver of appellate review of that issue.").
¶6 Loebe first reasserts his claim that appellate counsel was ineffective for failing to challenge the "improper introduction of religious testimony." Specifically, he points to testimony from D.C. that she had recently been ordained and testimony from L.N. that she was a Christian and Loebe had told her that he did not believe in God.
¶7 Questioning any witness as to his or her religious beliefs for the purpose of affecting credibility is prohibited. See State v. Thomas, 130 Ariz. 432, 436 (1981) (citing Ariz. R. Evid. 610 and Ariz. Const. art. II, § 12). "However, if such information is probative of something other than veracity, it is not inadmissible simply because it may also involve a religious subject as well." State v. Stone, 151 Ariz. 455, 458 (App. 1986). For example, in Stone, this court concluded that the challenged religious statements were proper because they "related at least in part to identification and not solely to the victim's credibility." Id. at 459. We further noted that the statements were "merely isolated references and not significant in relation to the trial proceedings in their entirety." Id.
¶8 Loebe argues that religious testimony, when "introduced for an improper purpose," is "per se fundamental error" under Thomas. Even assuming that were true, the challenged testimony in this case was not offered for an improper purpose. D.C.'s testimony that she had "just received [her] ordination credentials" was in response to a question about what she did "for a living." We agree with the trial court that this "isolated reference" to a "broad and innocuous question" is not the type of testimony with which Thomas was concerned-it was not solicited solely to bolster D.C.'s testimony but was instead offered as background information. Similarly, L.N.'s testimony that she believed in God and "wasn't going to have sex before marriage" was not offered for purposes of bolstering her credibility. Instead, as the trial court pointed out, L.N.'s testimony was used to show that Loebe "knew or should have known that she did not" consent to have sex.
¶9 Even assuming the religious testimony should not have been admitted in this case, however, Loebe has offered nothing but speculation to establish prejudice. See Bennett, 213 Ariz. 562, ¶ 21. Indeed, he contends only that "a different outcome on direct appeal may have resulted had the issue been raised." This is insufficient to meet his burden under Strickland. See Rosario, 195 Ariz. 264, ¶ 23. The trial court therefore did not err in summarily rejecting this claim.
¶10 Loebe next contends that the trial court erred in concluding he had failed to establish a colorable claim as to appellate counsel's ineffective assistance in challenging the prosecutor's "repeated improper comments." Specifically, he points to the prosecutor's references to him as a "predator" and to the incidents as "sexual assaults," and he also complains that the prosecutor elicited testimony that Loebe was "creepy, not 'normal mindstated.'" Loebe maintains that the court failed to consider the "improper comments cumulatively."
¶11 The trial court concluded that because Loebe had "failed to establish prosecutorial error occurred in any of the instances alleged," he also failed to establish "cumulative error necessary for this issue to have been raised on appeal." Citing State v. Bocharski, 218 Ariz. 476, ¶ 75 (2008), the court explained that "there can be no cumulative effect of prosecutorial error sufficient to render the trial unfair without any finding of error."
¶12 The case law is "inconsistent in discussing whether a claim of error that is, in fact, not error can still be considered for a finding of cumulative error." State v. Vargas, 249 Ariz. 186, n.1 (2020). But our supreme court has recently clarified that when no instance amounts to prosecutorial error, we need not consider if the individual acts collectively amount to cumulative error. State v. Smith, 250 Ariz. 69, ¶ 146 (2020). The trial court, therefore, did not err in concluding that because Loebe had failed to establish any individual instance of prosecutorial error, he likewise failed to establish cumulative error.
Our supreme court has differentiated between prosecutorial error and prosecutorial misconduct, the latter of which may involve an ethical violation. See In re Martinez, 248 Ariz. 458, ¶ 47 (2020). The trial court determined that Loebe's argument was directed at prosecutorial error-a determination he had not challenged on appeal.
¶13 Loebe next repeats his argument that appellate counsel was deficient in failing to challenge the jury instructions. He argues that the last sentence of Revised Arizona Jury Instructions (RAJI) Standard Criminal 21 (defendant witness (prior conviction)) (6th ed. 2022) was missing and that Revised Arizona Jury Instructions (RAJI) Standard Criminal 9 (defendant need not produce evidence) (6th ed. 2022) was not given. Loebe also challenges two instructions that were given but that are not part of the RAJI: (1) "Neither side is required to call as a witness all persons who may have been present at the time of the events disclosed by the evidence, or who may appear to have some knowledge of these events, or to produce all objects or documents mentioned or suggested by the evidence," and (2) "Under the Arizona Constitution, a victim of a crime has the right to confer with the prosecutor prior to trial and to refuse an interview requested by the defense attorney." Loebe maintains that because these "instructional errors, considered as a whole, were fundamental, the issue should have been raised by appellate counsel on direct appeal" and "it may have resulted in a different outcome of the appeal."
The last sentence of RAJI Stand. Crim. 21 provides: "You must not consider a prior conviction as evidence of guilt of the crime for which the defendant is now on trial." RAJI Stand. Crim. 9 provides: "The State must prove guilt beyond a reasonable doubt based on the evidence. The defendant is not required to produce evidence of any kind. The defendant's decision not to produce any evidence is not evidence of guilt."
¶14 In its ruling, the trial court pointed out that jury instructions must be considered "as a whole to determine whether they adequately reflect the law." The court then concluded that the "jury was adequately instructed on the limited use of the prior-conviction evidence" under RAJI Stand. Crim. 21 because the jury was instructed that "the evidence of prior convictions could only be considered as evidence of . . . Loebe's credibility as a witness" and it was "required to consider the evidence separately for each charge." As to the omission of RAJI Stand. Crim. 9, the court likewise found no error because the jury had been "made well aware that it was the burden of the State to produce evidence sufficient to prove each element of each charge beyond a reasonable doubt." As to the instruction that neither side must call a witness, the court explained that "[t]his instruction merely instructs that the lack [of] one or more pieces of evidence should not forestall a verdict if there is, nonetheless, sufficient proof." Again, when considered with the other instructions, the court determined that the state's burden of proof was clear. Finally, as to the instruction discussing the victim's rights under the Arizona Constitution, the court explained it "did not beseech the jury to balance [the victims'] rights against the constitutional rights of . . . Loebe." Rather, the court reiterated that the jury was "clearly instructed that . . . Loebe was under no obligation to prove his innocence, that he had the right to be presumed innocent which required the State to prove each element of each charge beyond a reasonable doubt."
¶15 We are not persuaded by Loebe that the trial court incorrectly determined that "his appellate counsel was not ineffective for failing to raise these issues on appeal." Notably, we agree with the court that the instructions as a whole properly informed the jury of the state's burden of proof and caused no confusion over Loebe's duty to present evidence. See State v. Dansdill, 246 Ariz. 593, ¶ 63 (App. 2019) ("[R]eading the jury instructions as a whole to ensure that the jury receives the information it needs to arrive at a legally correct decision.") (quoting State v. Prince, 226 Ariz. 516, ¶ 77 (2011))); see also State v. Miller, 251 Ariz. 99, ¶ 10 (2021) (counsel's deficiency must be established by "demonstrable reality"). Perhaps more importantly, Loebe has again failed to make a sufficient showing of prejudice warranting relief. See Rosario, 195 Ariz. 264, ¶ 23. Accordingly, no error occurred with respect to the rejection of this claim.
¶16 Finally, with respect to his claims of ineffective assistance of appellate counsel, Loebe again contends that counsel failed to challenge the dismissal of juror M. Juror M. unilaterally declared himself the foreman of the jury and refused to let the jurors leave before 5:00 p.m. on a Friday afternoon, despite the trial court's suggestion otherwise. He also sent the jurors on a break without following protocol or informing anyone. Two other jurors, who wished to remain anonymous, indicated that there was a problem and that they were being bullied. Based on the foregoing, the court dismissed juror M., over Loebe's objection.
¶17 In its Rule 32 ruling, the trial court concluded that Loebe's "appellate counsel was not ineffective for failing to raise this issue on appeal," noting that judges have broad discretion in deciding whether to excuse a deliberating juror. The court pointed out that "[t]he reason for dismissing this juror was put on the record and investigating further risked compromising the contents of the deliberations." The court additionally determined that Loebe had failed to show he was prejudiced, noting that Loebe "does not contend that the jury that ultimately deliberated was biased or that any issues arose from the substitution."
¶18 Loebe now contends the trial court's ruling "presumes the facts alleged respecting [juror M.] despite the lack of evidence in the record to support the presumption (given second hand nature)." But the recitation of facts in the ruling is based on the trial judge's and the bailiff's interactions with the jurors. And, given that this claim was asserted as one of ineffective assistance of appellate counsel, the ruling did not need to provide an "explanation as to why [the] jurors could not have been questioned with a preceding instruction not to discuss deliberations," as Loebe suggests.
Contrary to Loebe's suggestion, juror M.'s statement that he "was not aware of anything being written" on the jury's whiteboard prior to his dismissal does not necessarily contradict the bailiff's observation of "foreman equals boss" written on the whiteboard.
¶19 More importantly, however, Loebe admits that whether this purported error was "prejudicial is unclear." He asks for an evidentiary hearing on this matter to "question [the] jurors about the issue." But to receive an evidentiary hearing, Loebe was first required to establish a colorable claim. See Bennett, 213 Ariz. 562, ¶ 21. Because he failed to do so, as the trial court noted, we cannot say that the court erred in rejecting this claim.
¶20 Next, Loebe reasserts his claims of ineffective assistance of trial counsel. First, he contends that to the extent any of his claims of ineffective assistance of appellate counsel are deemed "to constitute error, but not fundamental error, trial counsel was prejudicially ineffective for failing to object." However, he does not support this argument, and we therefore deem it waived. See Ariz. R. Crim. P. 32.16(c)(2)(D) (petition must include reasons why court should grant relief and citations to supporting legal authority, if known); State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (failure to develop argument waives claim on review).
¶21 Loebe also argues that trial counsel was ineffective for failing to "conduct any meaningful investigation" and "to call witnesses known to have exculpatory information." Specifically, he contends that counsel should have called C.W., who "provided evidence [that] sex between Loebe and B.K. was consensual."
Loebe further contends that "[o]ther witnesses could have been located to testify," including a "roommate named Brandon." But Loebe does not meaningfully explain how these other witnesses would have supported his defense. He has therefore failed to show any prejudice resulting from trial counsel's purported failure to locate them.
¶22 In rejecting this claim, the trial court determined that there were several "reasons to warrant defense counsel's choice" not to call C.W. as a witness, including his prior felony conviction, his observation that both Loebe and B.K. seemed intoxicated at the time of the incident, and his statement that Loebe "brings girls home all the time." The court thus concluded, "It fell appropriately within the discretion of counsel and bears a presumption that it was sound legal strategy."
¶23 Loebe now contends that "the trial court assumed facts not in evidence" because the state provided no affidavit from trial counsel as to why he had declined to call C.W. But Loebe overlooks the presumption that "'counsel's conduct falls within the wide range of reasonable professional assistance' that 'might be considered sound trial strategy.'" Denz, 232 Ariz. 441, ¶ 7 (quoting Strickland, 466 U.S. at 689); see also Miller, 251 Ariz. 99, ¶ 10. To overcome this presumption, Loebe-not the state- "was required to show counsel's decisions were not tactical in nature, but were instead the result of 'ineptitude, inexperience or lack of preparation.'" Denz, 232 Ariz. 441, ¶ 7 (quoting State v. Goswick, 142 Ariz. 582, 586 (1984)). Because he failed to do so, we cannot say the court erred in summarily rejecting this claim.
¶24 Loebe next maintains the trial court erred in dismissing his claim that trial counsel was ineffective in making "inappropriate comments referring to the incidents [as] 'sexual assaults,' signaling to the jury that the defense believed the incidents constitute assaults and not consensual interactions." He argues that the court "provided no basis for its decision [that] this would be reasonable strategy." We disagree. In its ruling, the trial court explained that this case involved a "difficult subject matter" and that the witnesses "were likely emotional." The court further noted, "An aggressive strategy may, in fact, have presented poorly to [the] jury and harmed . . . Loebe's defense."
¶25 In any event, Loebe has failed to establish prejudice from this purported error. Notably, the jurors were instructed that they must "determine the facts" based solely on "the evidence produced in court." The trial court further instructed the jury that "what the lawyers say is not evidence." We presume the jury followed these instructions. See State v. Gallardo, 225 Ariz. 560, ¶ 44 (2010). And Loebe has offered nothing but speculation that trial counsel's statements "poisoned the minds of the jurors." See Rosario, 195 Ariz. 264, ¶ 23. Therefore, we cannot say the court erred in denying this claim.
¶26 Lastly, Loebe asserts the trial court erred in rejecting his claim of ineffective assistance of trial counsel as to the preparation of a mitigation report for sentencing. He argues that the court's ruling "presumes mitigation would not have impacted the sentences, but does so without information as to what that mitigation may have been."
¶27 At the sentencing, which was three months after the jury's verdicts, trial counsel requested a continuance to interview Loebe's brother, who was incarcerated, to obtain mitigation evidence as to Loebe's "difficult" childhood and untreated mental-health conditions. The court denied the motion to continue but allowed defense counsel to explain the proposed mitigation evidence, which counsel did. After imposing aggravated sentences, the court explained that it had considered in mitigation Loebe's "chaotic childhood" and his mental-health issues.
¶28 In the Rule 32 ruling, the trial court recognized that "trial counsel's failure to complete a mitigation report was a mistake" and that "the effect was that the contents of an interview with . . . Loebe's brother about his childhood was not considered." However, the court determined that "any prejudice that resulted was not substantial enough to suggest a reasonable probability that, but for this error, the outcome would have been different." We agree.
¶29 At the sentencing, although the trial court did not have the benefit of a written mitigation report, trial counsel informed the court of what he expected the contents of that report to include. And the court took those serious mitigating factors "as a given" when sentencing Loebe. The court explained that the aggravating factors-including Loebe's prior criminal history and the physical and emotional harm to the many victims, as well as their financial losses-outweighed the mitigating factors. We thus fail to see how Loebe was prejudiced by trial counsel's failure to prepare a mitigation report, and the court did not err in rejecting this claim.
¶30 For all these reasons, we grant review but deny relief.