Opinion
No. 1 CA-CR 12-0023
03-07-2013
STATE OF ARIZONA, Appellee, v. LEON BOWLES, JR., Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Liza-Jane Capatos, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-007659-001
The Honorable Daniel G. Martin, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Liza-Jane Capatos, Assistant Attorney General
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
By Kathryn L. Petroff, Deputy Public Defender
Attorneys for Appellant
Phoenix DOWNIE, Judge ¶1 Leon Bowles, Jr., appeals his conviction and sentence for trafficking in stolen property. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Detective Lindsey worked undercover and established himself in the community as a "fence" who was "looking to buy property cheap." One of his contacts introduced him to "Leo," who advised the detective he "boosted" items from stores and "could probably assist" him in obtaining items such as guns, computers, and construction equipment. The following day, Leo called Detective Lindsey to say that "some friends" were selling a new-in-the-box generator for $200. The detective responded that the price was too high and said to call him back "if they decided to come down a little more." The next day, Leo called Officer Lindsey, saying his friends "were interested in dealing," and he arranged a meeting. ¶3 When Detectives Lindsey and Fulton arrived for the meeting, Leo questioned Detective Lindsey about where he lived and what type of business he conducted; Detective Fulton interpreted Leo's questions as an attempt to ensure they were not police officers. At the meeting, the detectives negotiated and purchased the generator for $160. Detective Fulton surreptitiously recorded the transaction. After negotiations concluded, Leo "made the statement that this was the first of many dealings where it would be profitable for all of us." ¶4 Bowles was charged with recklessly trafficking in property stolen from Checker Auto Parts -- specifically, a generator. During the ensuing jury trial, the State called Detective Aboussafy to testify about the process used to identify Bowles during the police investigation.
[Aboussafy]: After Detective Fulton and Detective Lindsey completed the deal, they provided me with some brief information describing the subject that they dealt with, and then from there I started looking around to try to identify him. I ended up pulling up some photographs on a computer that we call crime capture. Then presented those to Detective Fulton, asking her if she knew anyone from the photos that were displayed.¶5 Detectives Lindsey and Fulton testified about their contacts with Leo and identified Bowles as "Leo." The video recording of the transaction was introduced into evidence. A manager from Checker Auto Parts testified that the generator in question was stolen from his business. ¶6 Bowles was found guilty and was sentenced to a term of imprisonment. He timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21, 13-4031, and -4033.
. . . .
[State]: You mentioned that you brought some photos up on the crime capture software. Can you explain that to the jury?
[Aboussafy]: We have a computer system that's operated by DPS and it logs photographs, government photographs in there, for example, from driver's licenses or other police contacts.
. . . .
[Aboussafy]: I used the first name, Leo, beginning first name Leo, black male, and an approximate height of 5 foot 10 to enter into the crime capture to give me some choices of photographs to look at.
. . . .
[State]: Once you entered that information into the computer, I guess what displays on the computer screen with respect to the photographs?
[Aboussafy]: Photographs are displayed, four rows with six photos in each row. They're color photographs, no names, no dates of birth, no height, just, basically, the common MVD photo from kind of the shoulders up, and that's it.
Detective Lindsey testified that "boosted" is "street language" for shoplifting or stealing.
DISCUSSION
¶7 Bowles contends he was denied a fair trial because the jury heard that his identity had been "determined through 'crime capture' software." Because Bowles did not object to this testimony at trial, we review only for fundamental error, which requires a defendant to establish both that fundamental error occurred and that he was prejudiced by it. See State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20, 115 P.3d 601, 607 (2005) (citations omitted). ¶8 Detective Aboussafy testified that the "crime capture software" used to identify Bowles was a collection of "government photographs" culled from "driver's licenses or other police contacts." She described the photos shown to the detectives in this case as "color photographs . . . the common MVD photo." This testimony does not impermissibly suggest to the jury that Bowles spent time in prison or was previously arrested. See State v. Bailey, 160 Ariz. 277, 280, 772 P.2d 1130, 1133 (1989) (when defendant does not testify, suggestion he spent time in prison is improper); see also State v. Moore, 108 Ariz. 215, 219, 495 P.2d 445, 449 (1972) (using "the words 'mug shot' could lead the jury to only one conclusion-that the defendant had been previously arrested"). ¶9 Even if the testimony were improper, Bowles has not established fundamental error. See Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607 (fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial"). Bowles makes the speculative claim, that without mention of the "'crime capture' software, a juror could have found" he lacked the requisite intent to traffic in stolen property. (Emphasis added.) Speculation, though, is insufficient to establish prejudice on fundamental error review. State v. Munninger, 213 Ariz. 393, 397, ¶ 14, 142 P.3d 701, 705 (App. 2006). ¶10 Moreover, viewing the evidence in the light most favorable to affirming the conviction, State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3, 110 P.3d 1026, 1027 (App. 2005) (citation omitted), and setting aside the information about how Bowles was identified, substantial evidence supports the conviction. "A person who recklessly traffics in the property of another that has been stolen is guilty of trafficking in stolen property in the second degree." A.R.S. § 13-2307(A); see also A.R.S. § 13-105(10) (c) (a person acts recklessly when that person "is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists"). The testimony of the detectives and the store manager, along with the videotape, offered substantial evidence from which reasonable jurors could conclude that Bowles was, at the very least, recklessly involved in locating and selling "boosted" items. ¶11 Finally, Bowles alleges prosecutorial misconduct because the State did not try to "rehabilitate" Detective Aboussafy's testimony or avoid further use of the "prejudicial term," repeating it "at least twice on direct." "Reversal on the basis of prosecutorial misconduct requires that the conduct be 'so pronounced and persistent that it permeates the entire atmosphere of the trial.'" State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998). Even if prosecutorial misconduct exists, it "is harmless error if we can find beyond a reasonable doubt that it did not contribute to or affect the verdict." Id. at 80, ¶ 32, 969 P.2d at 1192. ¶12 The term "crime capture" was used twice by the prosecutor and twice by Detective Aboussafy. Bowles does not explain how these brief references, which were not repeated in closing argument, demonstrate "pronounced and persistent" conduct by the prosecution, such that they "permeate[d] the entire atmosphere of the trial." Id. at 79, ¶ 26, 969 P.2d at 1191. And as previously noted, the evidence was sufficient for a jury to find Bowles guilty of the charged offense. On the record before us, we can say beyond a reasonable doubt that any arguable impropriety in using the term "crime capture" did not contribute to or affect the verdict. Id. at 80, ¶ 32, 969 P.2d at 1192 (citations omitted).
CONCLUSION
¶13 For the foregoing reasons, we affirm Bowles'
conviction and sentence.
________________________
MARGARET H. DOWNIE,
Presiding Judge
CONCURRING: ________________________
MAURICE PORTLEY, Judge
________________________
PHILIP HALL, Judge