Opinion
No. 2 CA-CR 2016-0214
04-28-2017
THE STATE OF ARIZONA, Appellee, v. WILLIAM LAMONTE BODNEY, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Michael T. O'Toole, Assistant Attorney General, Phoenix Counsel for Appellee The Hopkins Law Office, P.C., Tucson By Cedric Martin Hopkins 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NOT FOR PUBLICATION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. 31.24. Appeal from the Superior Court in Pima County
No. CR20143819001
The Honorable Carmine Cornelio, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Michael T. O'Toole, Assistant Attorney General, Phoenix
Counsel for Appellee The Hopkins Law Office, P.C., Tucson
By Cedric Martin Hopkins
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Staring and Judge Miller concurred. ESPINOSA, Judge:
¶1 After a jury trial, William Bodney was found guilty of attempted robbery, robbery, burglary, two counts of armed robbery, two counts of aggravated assault, and possession of a deadly weapon by a prohibited possessor. The trial court sentenced him to a combination of concurrent and consecutive prison terms totaling 25.75 years. On appeal, Bodney challenges the court's denial of his motion to sever twelve of the counts charged in the indictment into seven separate trials. He also challenges the sufficiency of the evidence for his convictions. For the following reasons, we affirm.
Factual and Procedural Background
¶2 In February 2015, Bodney was charged with one count of attempted robbery, two counts of robbery, one count of burglary, four counts of armed robbery, four counts of aggravated assault, and one count of possession of a deadly weapon by a prohibited possessor. The first twelve of these counts arose out of seven separate robberies of convenience stores and a restaurant occurring between August 21 and August 28, 2014. In December 2015, he filed a motion to sever the counts into eight separate trials, which the trial court subsequently denied except for the prohibited possessor charge.
¶3 Trial commenced in February 2016, and at the close of evidence, Bodney renewed his motion to sever, which the trial court again denied. The jury found him guilty of the charges associated with four of the robberies but did not convict on the other charges. In a separate trial, the jury also returned a guilty verdict on the prohibited possessor charge. Bodney was sentenced as noted above, and we have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
The jury was unable to reach a verdict on the counts associated with two of the robberies and acquitted Bodney of the charges for another.
Motion to Sever Counts
¶4 We review the denial of a motion to sever for a clear abuse of discretion. State v. Comer, 165 Ariz. 413, 418, 799 P.2d 333, 338 (1990). When reviewing a pretrial motion to sever, we consider only the evidence before the court at the time the motion was made, which here includes the statement of probable cause in the interim complaint and testimony presented at a hearing on Bodney's separate motion to suppress evidence. See State v. Van Winkle, 186 Ariz. 336, 339, 922 P.2d 301, 304 (1996). It is therefore necessary to consider the facts and evidence pertaining to all seven robberies for which Bodney was indicted even though the jury only convicted him of four.
¶5 Count 2 of the indictment charged Bodney with the attempted robbery of K.S. on August 21, 2014. Specifically, on that afternoon, a man entered a CVS store and handed K.S., the cashier, a note saying it was a robbery and he had a gun. K.S. walked away from the man, who then left the store empty-handed. R.D., a CVS manager who was also present during the attempted robbery, later identified Bodney in a photographic line-up.
¶6 Counts 3 and 4 charged Bodney with robbing P.N. and burglarizing the 99 Cent Store where she was a cashier on August 21, 2014. In particular, in the late afternoon of August 21, a man threatened to shoot P.N., and when she opened the register, he reached into it and grabbed more than $200 in cash. P.N. identified Bodney as the robber.
¶7 Counts 5 and 6 charged Bodney with the armed robbery and aggravated assault of A.A. on August 23, 2014. Those offenses arose from a man having laid a handgun on the Dollar General counter and telling A.A., the cashier, to give him the money from the register. The man left the store with over $200 in cash. Counts 11 and 12 charged Bodney with the August 28, 2014 armed robbery and aggravated assault of C.A. after a man went into the Quik Mart where C.A. was a cashier, pointed a gun at her, and demanded money, which she gave him.
¶8 As for the charges for which the jury did not convict Bodney, Count 1 was based on the robbery of L.G. on August 21, 2014. That morning, a man robbed a pizza restaurant of $50 after showing the cashier, L.G., a note written on a piece of paper. The robber threatened her, saying he had a gun and demanding the cash from the register.
¶9 Counts 7 and 8 charged Bodney with the armed robbery and aggravated assault of J.M. on August 24, 2014. J.M., a Quik Mart store clerk, handed over about $50 after the robber displayed a handgun and told her, "you know what to do."
¶10 Counts 9 and 10 charged the armed robbery and aggravated assault of N.M. on August 24, 2014. The robber threatened N.M., a Quik Mart clerk, with a gun and demanded cash. The clerk later identified Bodney as the robber.
Joinder and Severance Rules
¶11 Under Rule 13.3(a), Ariz. R. Crim. P., multiple offenses may be charged and tried together if they "(1) [a]re of the same or similar character; or (2) [a]re based on the same conduct or are otherwise connected together in their commission; or (3) [a]re alleged to have been a part of a common scheme or plan." But Rule 13.4(a), Ariz. R. Crim. P., requires that offenses be tried separately if severance "is necessary to promote a fair determination of the [defendant's] guilt or innocence." Additionally, Rule 13.4(b) states the defendant is "entitled [to severance] as of right" if the offenses were joined solely under Rule 13.3(a)(1), unless the state could properly introduce evidence of the other counts in the trial for any one count.
¶12 Bodney argues on appeal, as he did in his pretrial motion to sever, that the first twelve counts of the indictment could be properly joined only under Rule 13.3(a)(1) and he was therefore entitled to severance as of right. The trial court, however, found the counts properly joined under either Rule 13.3(a)(1) or Rule 13.3(a)(3). Because the first twelve counts were "alleged to have been a part of a common scheme or plan" and we find they were properly joined under that provision, we do not address Bodney's arguments concerning Rules 13.3(a)(1) or 13.4(b).
Common Scheme or Plan
¶13 Rule 13.3(a)(3) permits the joinder of counts "alleged to have been a part of a common scheme or plan." In his brief, Bodney argues that the offenses must be based on "the same conduct" and focuses on dissimilarities in the robberies to conclude "there was no common scheme or plan." But the "same conduct" test is a part of 13.3(a)(2), not (a)(3), and the latter does not rest the joinder of charges on the underlying crimes' similarities.
¶14 In State v. Ives, our supreme court held that joinder under Rule 13.3(a)(3) is limited to cases alleging "a particular plan of which the charged crime is a part." 187 Ariz. 102, 106-08, 927 P.2d 762, 766-68 (1996), quoting State v. Ramirez Enriquez, 153 Ariz. 431, 433, 737 P.2d 407, 409 (App. 1987). Ives had been charged with four counts of child molestation involving three victims and occurring over a seven-year period. Id. at 103, 109, 927 P.2d at 763, 769. The trial court denied his pretrial motion to sever, finding the counts properly joined under Rule 13.3(a)(3) because of a number of "unique similarities" between the crimes. Id. at 103, 108, 927 P.2d at 763, 768. The supreme court reversed, reasoning those similarities only went to identity, which was not at issue in the case, and did not establish that the four crimes spread out over seven years were part of a particular plan. Id. at 108-09, 927 P.2d at 768-69.
¶15 Ives discussed State v. Ramirez Enriquez, 153 Ariz. 431, 737 P.2d 407 (App. 1987) and State v. Henderson, 116 Ariz. 310, 569 P.2d 252 (App. 1977). As stated in Ramirez Enriquez, "[t]he common plan or scheme exception does not permit proof that the defendant is a long time drug dealer or burglar. Instead it permits proof of his commitment to a particular plan of which the charged crime is a part." 153 Ariz. at 432-33, 737 P.2d at 408-09. In Henderson, the court found joinder improper because the charges for rape and burglary occurring in the same apartment complex a month apart were only connected by the similarity of victims, location, nighttime occurrence, and the way in which the apartment windows had been broken. 116 Ariz. at 312-13, 317-19, 569 P.2d at 254-55, 259-61.
Ramirez Enriquez, 153 Ariz. at 432, 737 P.2d at 408, concerned the "plan" exception to Rule 404(b), which states, "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person [but] may, however, be admissible . . . as proof of [a] . . . plan." "[R]ule 13.3(a)(3) is coextensive with the 'common scheme or plan' exception to [Rule 404(b)]." State v. Henderson, 116 Ariz. 310, 316, 569 P.2d 252, 258 (App. 1977).
¶16 Our supreme court has suggested similarity among the charged offenses is by itself insufficient evidence of an overarching plan connecting them, even if the crimes are of the same type. See State v. Stuard, 176 Ariz. 589, 597, 863 P.2d 881, 889 (1993) ("Aside from the series of crimes themselves, there is little evidence of any scheme or plan and considerable evidence to the contrary."). Post-Ives, what distinguishes cases finding a common scheme or plan from those that do not is evidence beyond the mere similarity of offenses. Compare State v. Lee, 189 Ariz. 590, 598-99, 944 P.2d 1204, 1212-13 (1997) (joinder under Rule 13.3(a)(3) improper where victims and crimes shared many commonalities but "no testimony or evidence suggest[ed] that the two robberies were part of a single plan"), with State v. Hausner, 230 Ariz. 60, ¶ 47, 280 P.3d 604, 619 (2012) (joinder under Rule 13.3(a)(3) proper where, in addition to crimes' similarities, "forensic psychiatrist testified that, after reviewing information about the crimes, he concluded that this scheme was 'the seeking of thrills or excitement or relief of boredom or relief of negative feelings'").
¶17 Here, contrary to Bodney's contention, the trial court's ruling did not rely solely on similarities among the charged crimes. In response to Bodney's motion to sever, the state introduced Facebook messages he had sent about a month before the robberies asking to borrow money and saying he was "really debating doing sum dumb shit" because he was "feeling the pressure of being broke," "aint got shit," and knew "how easy it is to run up in the thang thang and get it." He further stated that, although he was "trying to stay out," being broke "aint me." These statements were evidence extrinsic to the robberies and suggested they were all part of a common scheme or plan. It is notable the court was aware of Bodney's previous conviction for armed robbery, providing context for his "trying to stay out." Additionally, all seven robberies occurred within an eight-day period, three of them on one day and two on another. This case thus differs from Henderson, in which the crimes occurred a month apart, and certainly is unlike Ives, where the crimes were spread out over several years.
¶18 Instead, we find Hausner instructive. As in that case, the evidence extrinsic to the charged crimes here speaks to the appellant's motive for the crimes. Indeed, the evidence in this case goes beyond the Hausner forensic psychiatrist's testimony to suggest not only motive but the form of the plan itself. The trial court acknowledged at the severance hearing that the meaning of "run up in the thang thang" is not readily apparent. But Bodney preceded this statement by asking to borrow money because he was "really debating doing sum dumb shit" and was "feeling the pressure of being broke" and followed it by saying he was "trying to stay out" but being broke wasn't him. Viewing the statement in context supports the inference, as argued by the state, that Bodney planned to commit a number of robberies to remedy his situation. All of these statements work together to paint a clearer picture of a common scheme than the thrill-seeking mentality justifying joinder in Hausner.
¶19 Furthermore, the finding of a common scheme or plan in this case comports with the Ramirez Enriquez distinction between permissible other acts evidence showing a plan and impermissible other acts evidence showing bad character. Bodney was not portrayed as "a long time drug dealer or burglar [or robber]," Ramirez Enriquez, 153 Ariz. at 433, 737 P.2d at 409. Rather, there was evidence he went on a week-long crime spree, and extrinsic evidence that all seven robberies were part of a common scheme or plan. Accordingly, joinder of the offenses was proper under Rule 13.3(a)(3).
Fair Determination of Guilt or Innocence
¶20 Having found the first twelve counts properly joined as part of a common scheme or plan, we must still consider whether Rule 13.4(a) nevertheless required severance "to promote a fair determination of . . . guilt or innocence." "When a defendant challenges a denial of severance on appeal, he must demonstrate a compelling prejudice against which the trial court was unable to protect." Hausner, 230 Ariz. 60, ¶ 48, 280 P.3d at 619, quoting State v. Prince, 204 Ariz. 156, ¶ 13, 61 P.3d 450, 453 (2003). "[A] defendant is not prejudiced by a denial of severance where the jury is instructed to consider each offense separately and advised that each must be proven beyond a reasonable doubt." Prince, 204 Ariz. 156, ¶ 17, 61 P.3d at 454.
¶21 In denying Bodney's motion to sever, the trial court stated it would "give the jury a crafted and strong instruction regarding the multiple charged offenses and the requirement that each element of each offense be proven beyond a reasonable doubt." The court then instructed the jury at trial "to make sure the State has . . . proved each of the charges . . . beyond a reasonable doubt each time" and further directed:
It is important for you to know that each count charges a separate and distinct offense. When deciding whether the State has proven one count to you beyond a reasonable doubt, you may only consider evidence presented concerning other counts to the extent that evidence shows a common scheme or plan or to the extent the other evidence is relevant to the question of identity. It is not sufficient if the acts are similar, there must be a high degree of similarity and uniqueness.These instructions were sufficient to prevent "compelling prejudice" from a single trial on the twelve counts. Prince, 204 Ariz. 156, ¶ 13, 61 P.3d at 453.
¶22 Finally, we note Bodney was convicted of the counts arising from four robberies but not of those arising from the remaining three. This suggests the jury adhered to the trial court's instruction to consider the evidence for each count separately and did not reflexively convict Bodney of all the charged crimes. See Stuard, 176 Ariz. at 600, 863 P.2d at 892 ("The [defendant's acquittal on some charges] shows . . . that the jury followed the judge's instructions and considered the evidence separately on each charge.").
Renewed Motion to Sever
¶23 Rule 13.4(c) mandates waiver of the issue if a defendant does not renew a motion to sever during trial. In accordance with this rule, Bodney renewed his severance motion at the close of the evidence and the trial court again denied it. In renewing his motion, Bodney did not assert any new arguments based on what had occurred at trial, and the court considered both parties' original arguments in its ruling. We likewise find the reasons for denying Bodney's pretrial motion to sever equally applicable to his renewed motion during trial.
Sufficiency of the Evidence
¶24 Bodney next asserts his convictions are not supported by sufficient evidence. We review this issue de novo, and consider the evidence and inferences to be drawn from it in the light most favorable to sustaining the jury's verdicts. See State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993). "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime[s] beyond a reasonable doubt." State v. West, 226 Ariz. 559, ¶ 16, 250 P.3d 1188, 1191 (2011), quoting State v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990).
¶25 Bodney was convicted on Counts 2 through 6 and 11 through 13. He essentially appears to argue that, because the robberies were tried together, inconsistencies in the witnesses' descriptions of the robber rendered the evidence as to identity insufficient. However, considering the evidence for each count separately, as the jury was properly instructed to do, the convictions were supported by substantial evidence upon which the jury could find guilt beyond a reasonable doubt. The most pertinent evidence relevant to each count is as follows. Count 2 - Attempted Robbery at CVS on August 21, 2014
¶26 K.S., a CVS cashier, testified a man handed her a note that said he wanted the cash from the register and had a gun, which he would use. K.S. was frightened, put down the note, and walked away. The man then ran out the door. During the encounter, K.S. had noticed there was something wrong with the man's eye. Although she was unable to later identify Bodney as the attempted robber during a photographic line-up, she testified the eye problem "was the main thing [she] was looking for" and Bodney's eyes appeared normal in his line-up photo.
¶27 R.D., a CVS supervisor who was also present during the attempted robbery, testified she noticed the would-be robber when K.S. left him, because it was unusual for K.S. to walk away from a customer. At that point, the man looked at R.D. before running out the door, passing within four or five feet of her. R.D. too noticed a problem with the man's eye, but still identified Bodney during a photographic line-up seven weeks later and again at trial. The state also introduced the store's surveillance video of the robbery, which showed a man whose appearance was consistent with Bodney's build, height, and facial features.
¶28 T.F., Bodney's girlfriend, testified Bodney had an eye infection in late August 2014 and she had taken him to a hospital for treatment on August 26. The state introduced video surveillance of the two of them at the hospital and, shortly thereafter, at a pharmacy, filling Bodney's prescription. Counts 3 & 4 - Robbery at 99 Cent Store on August 21, 2014
¶29 P.N., a 99 Cent Store clerk, testified the robber bought some dishwasher detergent, left the store, and then returned a few minutes later to ask for cigarettes and rolling papers. After he handed her some money, P.N. opened the register and the robber reached across the counter and grabbed cash from it while telling P.N. he had a gun and would shoot her if she did not stay quiet. P.N. identified Bodney as the robber both during a photographic line-up and in court. Regarding the line-up, P.N. testified through an interpreter, "I look at that picture and I feel it right away that's the right person." The state also introduced the store's surveillance video of the robbery, which, again, showed a man whose appearance was consistent with Bodney's build, height, and facial features. Counts 5 & 6 - Armed Robbery at Dollar General on August 23, 2014
¶30 A.A., a Dollar General cashier, testified a man approached her at the check-out counter and asked for cigarettes. When she requested identification, he produced a handgun, pointed it at her, and told her to give him the cash from the register and not make any quick movements. After A.A. handed him the money and the cigarettes, he told her to "[s]tand here and act natural for a second" before he left the store. She too noticed something wrong with the robber's eye but was unable to identify anyone in the photographic line-up. Surveillance video footage of the robbery showed a man matching Bodney's height and build. Counts 11 & 12 - Armed Robbery at Quik Mart on August 28, 2014
¶31 C.A., a Quik Mart cashier, was checking the freezer temperatures when a man entered the store wearing sunglasses. C.A. testified he took a beer from the beverage cooler, brought it to her at the counter, and asked for cigarettes. She had trouble hearing him because he had music playing from a device on his person, but then she saw a handgun on the counter pointed at her. The man told her to empty the cash register and to "be cool." C.A. "was very scared" and gave him about $56. Surveillance video footage again showed a man with Bodney's physical and facial features. Additionally, a palm print found on the counter near the cash register was matched to Bodney's hand.
¶32 The state also introduced evidence of Bodney's financial motivation for committing the robberies. Specifically, the state introduced the Facebook messages discussed above. Those posts were from an account that featured numerous photographs of Bodney, which multiple witnesses confirmed belonged to him. Also included was an entry from the same account on August 14, 2014, one week before the first robbery, in which Bodney stated, "I gotta do what I gotta do,[ ]times is hard and [I']m tired of being broke,[ I']m tired of waitin for shit to get right,[ I']m a go get it the best way I know how[ ]and if I get caught . . . [I']m not goin bac."
¶33 Finally, when a detective interviewed Bodney on the day he was arrested, Bodney volunteered he had been in Las Vegas between August 20 or 21 and August 30. But neither the detective nor the United States Marshal who initially took him into custody had told Bodney the time frame of the robberies they were investigating. We conclude the evidence was sufficient for the jury to find that Bodney had robbed or attempted to rob the four stores and had committed the related offenses of which he was convicted.
Count 13 - Prohibited Possession
¶34 The jury received testimony and exhibits showing Bodney had been convicted of a felony and was on parole on September 3, 2014. When Bodney was arrested at M.D.'s house on that date, he answered the door barefoot and the police asked him if he had any shoes or personal items in the house. Bodney said his cell phone and "Miami Heat" hat were there. M.D. also testified the hat belonged to Bodney. Police subsequently took a cheek swab from Bodney for his DNA and conducted a search of M.D.'s house. Inside, they found Bodney's hat and, underneath it, a loaded handgun.
Deoxyribonucleic acid.
¶35 A crime laboratory technician testified she compared Bodney's DNA and DNA found on the gun. Although there was not enough material on the gun for a "full profile," the technician was able to conduct a more limited Y-STR analysis and determine it was consistent with Bodney's DNA and those in his male paternal line, and statistically would match the DNA of about 1 in 750 African American males. At trial, Bodney's nephew testified Bodney had borrowed the hat from him, but the nephew also stated he was Bodney's sister's son. The lab technician specifically testified a man would not share the same Y-STR DNA profile as his sister's son. The technician also stated that although it would be possible for DNA to transfer from the hat to the gun beneath it, there would likely need to be some friction for such a transfer to occur.
Y-chromosome short tandem repeats. --------
¶36 Finally, the jury heard the testimony of two witnesses regarding whether M.D. kept guns in her house. M.D. testified that she did not have any guns and that she and her school-age son were the only people who lived there. Bodney's girlfriend, T.F., however, testified M.D. was "known to have guns[ and] drugs." The jury was entitled to decide whether to reject T.F.'s testimony in favor of M.D.'s. See State v. Cox, 217 Ariz. 353, ¶ 27, 174 P.3d 265, 269 (2007) ("No rule is better established than that the credibility of the witnesses and the weight and value to be given to their testimony are questions exclusively for the jury."), quoting State v. Clemons, 110 Ariz. 555, 556-57, 521 P.2d 987, 988-89 (1974).
¶37 The handgun here was found under Bodney's hat, in a residence where he had spent the night, and under all the circumstances, including the fact M.D. testified she did not keep guns in the house, the jury could reasonably infer the gun was in Bodney's possession. Accordingly, there was sufficient evidence to find Bodney had knowingly possessed a deadly weapon after having been convicted of a felony, in violation of A.R.S. § 13-3102(A)(4).
Disposition
¶38 For all of the foregoing reasons, Bodney's convictions and sentences are affirmed.