Opinion
No. 1 CA-CR 20-0257
03-09-2021
STATE OF ARIZONA, Appellee, v. KRISTA MARIE CLINE, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Michelle L. Hogan Counsel for Appellee Law Offices of Stephen L. Duncan, P.L.C., Scottsdale By Stephen L. Duncan Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Yavapai County
No. V1300CR201780520
The Honorable Michael R. Bluff, Judge
AFFIRMED AS MODIFIED
COUNSEL Arizona Attorney General's Office, Phoenix
By Michelle L. Hogan
Counsel for Appellee Law Offices of Stephen L. Duncan, P.L.C., Scottsdale
By Stephen L. Duncan
Counsel for Appellant
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge Cynthia J. Bailey joined. WINTHROP, Judge:
¶1 Krista Marie Cline appeals her convictions and sentences for one count of fraudulent schemes and artifices and two counts of theft. For the following reasons, we affirm two of Cline's convictions and the resulting sentences. We also affirm the third conviction as modified and modify the sentence imposed on that conviction.
FACTS AND PROCEDURAL HISTORY
We view the evidence in the light most favorable to sustaining the verdicts and resolve all inferences against Cline. See State v. Stroud, 209 Ariz. 410, 412, ¶ 6 (2005).
¶2 Cline was a licensed fiduciary. In January 2016, she began serving as the trustee of a special needs trust established for the benefit of M.T. Over the ensuing year, M.T. became concerned that Cline's bills were excessive and that she had been transferring money from the trust account to various accounts that had no association with him or his trust. M.T. confronted Cline about these accounting issues, and she told him she would fix the errors.
¶3 In March 2017, M.T. sent Cline a text message firing her from her trustee position. That same day, Cline transferred $16,500 into M.T.'s trust account and those funds came from a conservatorship she managed as the guardian for C.M., who had passed away in January 2017.
¶4 After M.T.'s allegations were reported to Adult Protective Services, a detective interviewed M.T. and then obtained the trust's bank records along with the records of Cline's personal accounts. Based on an examination of these records, the detective found that "thousands of dollars [were] going to at least four different accounts belonging to" Cline. When the detective saw Cline's $16,500 transfer to M.T.'s trust, he subpoenaed the conservatorship's bank records.
¶5 The detective arranged a meeting with Cline to discuss M.T.'s allegations. Although Cline had agreed to produce the accounting invoices for M.T.'s trust at the interview, she did not do so and refused to turn them over to the detective voluntarily. Cline admitted that she had improperly transferred $16,500 out of M.T.'s account. She attributed the transfer to an accounting error in which she mistakenly used funds from M.T.'s account to make payments to the assisted living facility caring for C.M. at the time. Cline said that she transferred the funds back to M.T.'s trust when she realized the mistake.
¶6 The detective ultimately found thirty-four transactions in which Cline had transferred funds from the victims' accounts to her personal accounts and determined that Cline had stolen, at minimum, about $26,000 from M.T. and $65,000 from C.M. Based on the detective's investigation, the State charged Cline with fraudulent schemes and artifices, a class 2 felony (Count 1); one count of theft of property from M.T., with a value of $25,000 or more but less than $100,000, a class 2 felony (Count 2); and one count of theft of property from C.M., with a value of $25,000 or more but less than $100,000, a class 2 felony (Count 3).
¶7 At the trial, the State, without objection, called Milli Ann Briggs, a licensed fiduciary, to testify as an expert in explaining the role and responsibilities of a fiduciary, the procedures court-appointed fiduciaries must follow, and the standard accounting practices of a fiduciary. Briggs pointed out various problems she saw in Cline's accounting practices: Cline failed to provide specific dates of services she performed; she gave insufficient descriptions of the work she had done; her bills were excessive; and she paid herself for services performed before receiving court approval.
¶8 After the State rested, the trial court denied Cline's motion for judgment of acquittal under Arizona Rule of Criminal Procedure 20. Cline testified and denied that she ever stole money from the victims. The defense introduced Cline's client activity reports and invoices for the two accounts to support her testimony.
¶9 After the seven-day trial, a jury convicted Cline as charged on Counts 1 and 3. On Count 2, the jurors found Cline guilty of the lesser-included offense of theft as a class 3 felony, finding she had stolen between $4,000 and $25,000 from M.T.'s trust. The trial court sentenced Cline on all counts to concurrent terms of 5 years' imprisonment. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).
On Count 1, the jurors found the value of the property was less than $100,000, which is the threshold amount to implicate the prison-mandatory sentencing enhancement. See Ariz. Rev. Stat. § 13-2310(C).
ANALYSIS
I. Expert Testimony
¶10 Cline argues the trial court fundamentally erred by admitting Briggs' expert testimony, asserting Briggs lacked sufficient qualifications under Arizona Rule of Evidence ("Rule") 702. To prevail on fundamental-error review, a defendant must first show "trial error exists." State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). If so, the defendant next carries the burden to establish, under the totality of the circumstances, that such error (1) went to the foundation of the case, (2) took away a right essential to the defense, or (3) was so egregious that the defendant could not possibly have received a fair trial. Id. "If the defendant establishes fundamental error under prongs one or two, he must make a separate showing of prejudice[.]" Id.
¶11 Rule 702 governs the admissibility of expert testimony and provides:
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:Ariz. R. Evid. 702.
(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 has reliably applied the principles and methods to the facts of the case.
¶12 Rule 702 was amended in 2012 to mirror Federal Rule of Evidence 702, which incorporates the principles set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). State ex rel. Montgomery v. Miller, 234 Ariz. 289, 297, ¶ 17 (App. 2014). In applying Rule 702, the trial court serves as a "gatekeeper," and "the party seeking to admit expert testimony must prove, by a preponderance of the evidence, that the testimony is both relevant and reliable." Id. at 298, ¶ 19. "If an expert meets the liberal minimum qualifications, [the expert's] level of expertise goes to credibility and weight, not admissibility." State v. Delgado, 232 Ariz. 182, 186, ¶ 12 (App. 2013) (internal quotation marks omitted).
¶13 Rule 702 does not "preclude the testimony of experience-based experts," nor does it "supplant traditional jury determinations of credibility and the weight to be afforded otherwise admissible testimony." Ariz. R. Evid. 702 cmt. (2012); accord Sandretto v. Payson Healthcare Mgmt., Inc., 234 Ariz. 351, 357, ¶ 14 (App. 2014) (quoting the advisory committee note to Federal Rule of Evidence 702: "Nothing in this amendment is intended to suggest that experience alone—or experience in conjunction with other knowledge, skill, training or education—may not provide a sufficient foundation for expert testimony."). "Rather, '[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 evidence.'" State v. Bernstein, 237 Ariz. 226, 229, ¶ 11 (2015) (quoting Ariz. R. Evid. 702 cmt. (2012)).
¶14 Contrary to Cline's argument, the trial court properly fulfilled its gatekeeping role when it allowed Briggs to testify as an expert. Briggs testified she had worked as a fiduciary for ninteen years and had served around one hundred clients in that time. She explained that to become a licensed fiduciary she attended a three-day training seminar, passed a state examination, and provided proof that she had received a college degree. Briggs described herself as the longest practicing fiduciary in the general geographical area where the crimes occurred. On this record, Cline fails to meet her burden to show the trial court committed error, fundamental or otherwise, by finding Briggs' experience provided sufficient foundation for her to opine on standard fiduciary practices and how Cline's conduct violated such practices.
¶15 Although Cline concedes Briggs' testimony was "not scientific in nature," she nonetheless complains the trial court erred by failing to consider other factors suggested in Daubert. "Daubert offers additional non-exclusive factors for determining whether scientific evidence is admissible, including empirical testing, peer review, error rate, the existence of standards and controls, and the degree to which the theory and technique is generally accepted by a relevant scientific community." Sandretto, 234 Ariz. at 356, ¶ 12 (internal quotation marks omitted). However, "not all of the Daubert factors will apply to all experts or in every case." Miller, 234 Ariz. at 299, ¶ 25 (internal quotation marks omitted). Because Cline fails to explain how any of the Daubert factors she cites might apply to Briggs' testimony, her argument is without merit.
¶16 Finally, Cline points to portions of Briggs' testimony that she asserts rendered the expert's opinions unreliable. This argument is unavailing, however, because it goes to the testimony's weight and credibility, not its admissibility. See Delgado, 232 Ariz. at 186, ¶ 12.
II. Asserted Prosecutorial Error
As an initial matter, we note that Cline does not argue, nor do we find, any prosecutorial misconduct that would constitute a professional or ethical violation. See In re Martinez, 248 Ariz. 458, 469-70, ¶¶ 42-47 (2020). Therefore, we refer to the issue as prosecutorial error. Id.
¶17 Cline next argues the State committed prosecutorial error by eliciting testimony from the detective that Cline had refused to provide him with her accounting statements for M.T.'s trust. See supra ¶ 5. Cline asserts such testimony constituted an impermissible comment on her failure to testify. Because Cline did not object below, our review is limited to fundamental, prejudicial error. See Escalante, 245 Ariz. at 142, ¶ 21.
¶18 In evaluating potentially prejudicial testimony, we examine (1) whether the remarks called attention to matters the jurors should not consider and (2) the probability that the remarks influenced the jurors. State v. Jones, 197 Ariz. 290, 304, ¶ 32 (2000). We will reverse a defendant's conviction because of prosecutorial error only if (1) error is present and (2) a reasonable likelihood exists that the error could have affected the jury's verdict. State v. Moody, 208 Ariz. 424, 459, ¶ 145 (2004).
¶19 "The Fifth Amendment gives a person the right to remain silent once in custody[.]" State v. VanWinkle, 229 Ariz. 233, 236, ¶ 14 (2012). Nevertheless, a defendant's pre-arrest, pre-Miranda silence is admissible as substantive evidence of guilt. State v. Lopez, 230 Ariz. 15, 19-20, ¶¶ 15-17 (App. 2012); see also Montejo v. Louisiana, 556 U.S. 778, 795 (2009) ("When a defendant is not in custody, he is in control, and need only shut his door or walk away to avoid police badgering."); accord State v. Yonkman, 231 Ariz. 496, 498, ¶ 8 (2013). The privilege against self-incrimination generally is not self-executing, meaning a person who desires its protection must claim it. Salinas v. Texas, 570 U.S. 178, 181 (2013).
¶20 No error occurred here. Cline does not argue, let alone demonstrate, that she was subject to custodial interrogation when she met with the detective. See VanWinkle, 229 Ariz. at 236-38, ¶¶ 14, 20; Lopez, 230 Ariz. at 19-20, ¶¶ 15-17. Nor does Cline contend she ever asserted her right not to speak to the detective. See Salinas, 570 U.S. at 181. As Montejo and Yonkman make clear, to assert the right to remain silent in a non-custodial setting, a person need only "walk away" and end the police contact. Montejo, 556 U.S. at 795; Yonkman, 231 Ariz. at 498, ¶ 8. Cline did not do so; rather, she spoke freely in the interview. See Anderson v. Charles, 447 U.S. 404, 408 (1980) (stating that a defendant who speaks voluntarily has not remained silent).
¶21 The Fifth Amendment right against compelled self-incrimination prohibits a prosecutor from commenting on a defendant's failure to testify. Griffin v. California, 380 U.S. 609, 615 (1965); State v. Fuller, 143 Ariz. 571, 574 (1985). "The Fifth Amendment does not, however, protect a defendant who takes the stand and testifies[.]" State ex rel. McDougall v. Corcoran, 153 Ariz. 157, 159-60 (1987). A defendant who takes the stand "is subject to cross-examination to the same extent and subject to the same rules as any other witness." Id. at 160.
¶22 Assuming without deciding that Cline had a Fifth Amendment right to refuse to voluntarily turn over her invoices, once she took the stand she was subject to cross-examination on her actions. Therefore, the issue presented is whether it was reversible error to allow the State to admit Cline's refusal before she testified. We find no reversible error under State v. Henry, 176 Ariz. 569, 580 (1993) and State v. Villarreal, 126 Ariz. 589, 590 (App. 1980). In both cases, the courts held the State eliciting such testimony in its case-in-chief for impeachment purposes is harmless error because the State could have used it after the defendant testified. Henry, 176 Ariz. at 580; Villarreal, 126 Ariz. at 590.
III. Sufficiency of the Evidence
¶23 Cline challenges the sufficiency of the evidence supporting the value of the stolen property for the theft convictions, arguing the trial court erred in denying her motion for judgment of acquittal under Arizona Rule of Criminal Procedure 20. We review the sufficiency of the evidence de novo. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011).
A conviction of fraudulent schemes and artifices under A.R.S. § 13-2310(A) does not require proof of the value of the benefit obtained. State v. Henry, 205 Ariz. 229, 235, ¶ 26 (App. 2003).
¶24 The trial court "must enter a judgment of acquittal . . . if there is no substantial evidence to support a conviction." Ariz. R. Crim. P. 20(a)(1). Substantial evidence is "proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." West, 226 Ariz. at 562, ¶ 16 (internal quotation marks omitted). "[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 beyond a reasonable doubt." Id. "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200 (1996).
¶25 Because the value of the stolen property determines the offense classification for a theft conviction, the trier of fact "must assign a value to the property." State v. Wolter, 197 Ariz. 190, 192, ¶ 12 (App. 2000). Theft of property valued at $25,000 or more is a class 2 felony, and theft of property valued at $4,000 or more but less than $25,000 is a class 3 felony. A.R.S. § 13-1802(G).
¶26 Here, M.T. testified that Cline stole between $30,000 and $40,000 from him. The detective testified that Cline stole no less than $26,000 from M.T. and $65,000 from C.M. Furthermore, Cline admitted, both in her interview with the detective and in her testimony, that she had improperly transferred $16,500 out of M.T.'s trust and then transferred those funds back from C.M.'s account; she denied only that she did so fraudulently. See State v. Bolton, 182 Ariz. 290, 308 (1995) (explaining a defendant who presents a defense "waives any error if his case supplies evidence missing in the state's case"). The State also presented the detective's accounting spreadsheet on which he based his calculations, as well as bank account statements that established Cline's fraudulent billing.
¶27 Cline's challenge to the jurors' findings on value essentially urges us to reweigh the evidence and reassess credibility, neither of which are functions of an appellate court. See State v. Buccheri-Bianca, 233 Ariz. 324, 334, ¶ 38 (App. 2013). Accordingly, because a juror could reasonably conclude that Cline stole $4,000 or more from M.T. and $25,000 or more from C.M., substantial evidence supports Cline's theft convictions.
IV. Sentencing
¶28 After the parties filed their briefs in this matter, Cline moved to amend her opening brief to raise a sentencing issue. Although she was convicted of a class 3 felony on Count 2, the court incorrectly entered judgment on that count for a class 2 felony, as the State had initially charged. The court then sentenced Cline on Count 2 to 5 years' imprisonment, which the court correctly stated was the presumptive term for a class 2 felony. In Cline's motion to amend, she asks us to (1) correct the sentencing minute entry to show she was convicted of a class 3 felony and (2) reduce the sentence on Count 2 to 3.5 years' imprisonment, the presumptive term for a class 3 felony.
¶29 The State does not dispute Cline's assertion that the trial court erred. However, the State asks us to vacate Cline's sentence on Count 2 and remand for resentencing because, it argues, the trial court's intent cannot be discerned from the record.
¶30 We must correct "an illegal sentence . . . imposed upon a lawful verdict." A.R.S. § 13-4037(A). Furthermore, we will not ignore fundamental error when we see it, State v. Fernandez, 216 Ariz. 545, 554, ¶ 32 (App. 2007), and an illegal sentence is fundamental error, State v. Cox, 201 Ariz. 464, 468, ¶ 13 (App. 2002).
¶31 Here, the judgment of conviction on Count 2 constituted fundamental error, given that the jury found Cline guilty of theft of property with a value of less than $25,000. See A.R.S. § 13-1802(G). Thus, based on our authority under A.R.S. § 13-4037(A), we amend the trial court's sentencing minute entry filed April 27, 2020, to reflect the conviction of theft on Count 2 as a class 3 felony. See State v. Vandever, 211 Ariz. 206, 210, ¶ 16 (App. 2005) (amending minute entry to correctly identify offense as a class 6 felony rather than a class 3 felony); see also Ariz. R. Crim. P. 31.19(c) (authorizing an appellate court to modify lower court's action).
¶32 We next examine whether the error requires a remand for resentencing. We are authorized to modify a sentence only if we can ascertain the trial court's intent from the record. See A.R.S. § 13-4037(A); Lopez, 230 Ariz. at 18, ¶ 9 n.2 (App. 2012).
¶33 After recounting its findings on the aggravating and mitigating factors, the trial court orally pronounced the sentence as follows:
[The court] find[s] that those aggravating factors and mitigating factors balance so I'm sentencing you to a period
of imprisonment. With regard to Count 1 you are sentenced to a presumptive term of five years in prison. . . . The sentence in Count 2, theft, you are sentenced to a presumptive term of five years in prison. That sentence will . . . run concurrent with Count 1. . . . For the offense[] in Count 3, you are sentenced to a presumptive term of five years in prison. That sentence will also run concurrent with Count 1.
¶34 We conclude the trial court's findings sufficiently reveal the court's intent. The trial court expressly found the aggravating and mitigating factors were evenly balanced and, based on that finding, imposed presumptive terms on all counts. Thus, the trial court's recitation makes clear that it intended to sentence Cline to concurrent presumptive terms on the three convictions, totaling 5 years.
¶35 Therefore, on this record, we are not persuaded that a remand for resentencing is necessary. Because we conclude the trial court intended to sentence Cline on Count 2 to a concurrent presumptive term of imprisonment, we modify her sentence on that count to 3.5 years' imprisonment.
CONCLUSION
¶36 We affirm Cline's convictions on Counts 1 and 3 and affirm the resulting sentences. On Count 2, we amend the sentencing minute entry to show that Cline was convicted of a class 3 felony, rather than a class 2 felony, and modify her sentence on that count to 3.5 years' imprisonment.