Opinion
No. 1 CA-CR 14-0176
02-24-2015
STATE OF ARIZONA, Appellee, v. DAVID CRAMER, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Andrew Reilly Counsel for Appellee Droban & Company, PC, Anthem By Kerrie M. Droban Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAYBE BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2012-139652-001
The Honorable Hugh E. Hegyi, Judge
CONVICTIONS AFFIRMED; SENTENCE MODIFIED IN PART
COUNSEL Arizona Attorney General's Office, Phoenix
By Andrew Reilly
Counsel for Appellee
Droban & Company, PC, Anthem
By Kerrie M. Droban
Counsel for Appellant
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Patricia K. Norris joined. HOWE, Judge:
¶1 David Cramer appeals from his convictions on two counts of kidnapping, one count of endangerment, one count of unlawful imprisonment, and two counts of resisting arrest. The offenses occurred on July 20 and July 25, 2012. Cramer argues that the superior court committed fundamental error in denying his motion to sever the July 20 from the July 25 charges and violated his Confrontation Clause rights by admitting his daughter's statement to the police. He also argues that the State presented insufficient evidence to support his convictions. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
We view the evidence in the light most favorable to sustaining the convictions and resolve all reasonable inferences against defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2, 212 P.3d 11, 12 (App. 2008).
¶2 On July 20, 2012, Peoria Police Officer Graham responded to a 911 call from citizens concerned about Cramer's behavior in the park with his two young children, G. and P. Officer Graham observed that Cramer's motions were "very jerky and rapid" and that he "couldn't stand still." When Graham attempted to speak with Cramer's daughter P., Cramer cursed at him and "grabbed" his children with a "pulling, jerking action" and started to walk away. Graham told Cramer to "calm down" and then Graham walked away to speak with Cramer's wife "to deescalate the situation." Graham obtained Cramer's identifying information from his wife and learned that Cramer had an outstanding warrant for his arrest.
¶3 After Graham asked Cramer's wife to "get her children," Graham and two other officers walked toward Cramer to arrest him. As they neared Cramer, Cramer's wife asked "to see the children." P. ran to her mother, but Cramer "picked up his son [G.] by wrapping his arms around the front of his son, [and] pulled [his son] up to his chest so that the son was looking out toward [Graham]." Cramer then yelled that they "couldn't control him" and to "get away from him," and "to not touch him."
¶4 Graham and Cramer's wife urged Cramer to release his son, but he refused. When an officer put his hand on Cramer, Cramer "fell to his knees still holding [his son] and bent over on top of the child." Graham told Cramer that he was under arrest, but Cramer tucked his arms under his body until officers were able to handcuff him. Cramer claimed injury and was taken to a hospital. At the hospital, Cramer eluded police custody and left the hospital.
¶5 Police subsequently learned that Cramer and his wife and children were staying at a Glendale hotel. On July 25, 2012, shortly after midnight, police observed Cramer leave the hotel in his Lincoln Navigator with his wife and children. Detective Ching followed Cramer and executed a "vehicle containment maneuver" to block the Navigator. Ching got out of his car, yelled "Police," and ordered Cramer to show his hands. Cramer refused to comply. All of the detectives wore ballistic vests with "Police" written on the vests.
¶6 Cramer's wife jumped into Cramer's lap as Cramer sat in the driver's seat, braced herself with her feet against the dashboard, and "barricaded herself up as though she was trying to shield [Cramer]." She was also "saying no and screaming a lot more." At the same time, Cramer attempted to move the Navigator, but the containment maneuver had him blocked.
¶7 Detective De Carlo then shattered the driver's side window so that Ching could grab Cramer. Before Ching could reach him, however, Cramer crawled into the back seat, "hunched down," "had his children over the top of him . . . squeezing ahold [sic] of them, kind of like a bear hug or choking them . . . ." Concerned for the children's safety, an officer tased Cramer. Cramer flailed around and screamed before releasing the children, but he still did not comply with officers' commands. At that time, a K-9 officer deployed his dog to bite Cramer's neck. As the dog dragged Cramer out of the Navigator, Cramer "took his daughter and put his daughter into the face of the dog." When the dog "lost his bite," the dog was deployed a second time until the officers tased Cramer again and were able to remove him from the Navigator. Cramer continued to struggle, "fighting and . . . kicking at [the] officers."
¶8 Based on this incident, the State charged Cramer with two counts of kidnapping P., each a Class 2 felony and domestic violence offense and a dangerous crime against children, for knowingly restraining her with the intent to hold her for ransom, as a shield or hostage and for knowingly restraining her with the intent to interfere with the performance of a governmental or political function. The State also charged Cramer with one count of endangerment of G., a Class 1 misdemeanor and domestic violence offense, and one count of resisting arrest, a Class 6 felony. Based on the July 20 incident, the State charged Cramer with two counts of kidnapping of G., each a Class 2 felony, domestic violence offense, and dangerous crime against children, for knowingly restraining him with the intent to hold him for ransom, as a shield or hostage and for knowingly restraining him with the intent to interfere with the performance of a governmental or political function. Cramer was also charged with resisting arrest, a Class 6 felony.
¶9 At trial, Cramer testified about the July 20 incident and stated that he was frightened of police from previous interactions and was simply trying to protect his children from them. He acknowledged that he was making payments to a bail bond company on a prior case, but claimed that on July 20 he had no idea that the police were attempting to arrest him on a warrant based on that case. On cross-examination, Cramer acknowledged that he had missed a court date, but maintained he was told that the case was dismissed. Regarding the July 25 incident, Cramer testified that he did not know he had been arrested on July 20 or that he had an outstanding warrant for his arrest because he had no police guard at the hospital and was simply allowed to leave. Cramer also testified that his bail bondsman never told him that he had missed a court date or had a warrant out for his arrest. Finally, Cramer maintained that he was unaware that the police were barricading his vehicle and that he was trying to protect his children when he held them to him.
¶10 The jury acquitted Cramer on kidnapping P. with the intent to use P. as a shield or hostage, but found him guilty of kidnapping P. with the intent to interfere with the performance of a government function, and found that offense was a dangerous crime against children. The jury also acquitted him of kidnapping G. with the intent to use G. as a shield or hostage, but found him guilty of the lesser-included offense of unlawful imprisonment of G. The jury found him guilty of kidnapping G. with the intent to interfere with the performance of a government function, and found the offense was a dangerous crime against children. The jury further found him guilty of endangerment of G., a domestic violence offense, and two counts of resisting arrest. The trial court sentenced Cramer to presumptive sentences totaling 24 years in prison.
DISCUSSION
I. Denial of Severance
¶11 Before trial, Cramer moved to sever the July 20 and July 25 counts. He argued that severance was required because the offenses "occurred five days apart and had nothing to do with one another," they involved "different locations . . . [and] different officers," and separate trials were "necessary to promote a fair determination" of his guilt or innocence. The State objected, arguing that the charges were properly joined because they represented Cramer's ongoing plan to use his children to avoid arrest on the bench warrant that he knew existed. Moreover, the State argued the evidence of all the offenses was cross-admissible in separate trials because the evidence of each incident was relevant to establish Cramer's intent, motive, and knowledge in both. After a hearing, the trial court denied the motion to sever, finding that evidence of both incidents would be cross-admissible if the charges relating to each incident were tried separately. The court ruled that the evidence would be admissible under Arizona Rule of Evidence 404(b) to show intent, knowledge, and lack of mistake.
¶12 To properly preserve a severance objection for appeal, a defendant must move to sever 20 days before trial and then renew that motion during trial. Ariz. R. Crim. P. 13.4(c). Cramer concedes that he is entitled only to fundamental error review on appeal because he failed to renew his motion during trial. See State v. Laird, 186 Ariz. 203, 206, 920 P.2d 769, 772 (1996) (failure to review severance motion during trial results in waiver of issue and appellate review is for fundamental error only). He urges us to find that the trial court committed fundamental error when it denied his motion to sever.
¶13 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." State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005) (citation omitted). To warrant relief under a fundamental error standard of review, the defendant is required to establish both that fundamental error exists and that the error in his case caused him prejudice. Id. at 567 ¶ 20, 115 P.3d at 607. Before we engage in fundamental error review, however, we must first find that the trial court committed some error. State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342 (1991).
¶14 In Arizona, two or more offenses may be joined in an indictment, information or complaint if they:
(1) Are of the same or similar character; orAriz. R. Crim. P. 13.3(a). If the offenses are joined "only by virtue of Rule 13.3(a)(1)," a defendant is entitled to severance "as of right . . . unless evidence of the other offense or offenses would be admissible under applicable rules of evidence if the offenses were tried separately." Ariz. R. Crim. P. 13.4 (b). The trial court found that severance was inappropriate because evidence of the July 20 and July 25 offenses would be cross-admissible in separate trials.
(2) Are based on the same conduct or are otherwise connected together in their commission; or
(3) Are alleged to have been part of a common scheme or plan.
¶15 The trial court ruled correctly. The offenses on both dates were of the "same or similar character." On July 20, Cramer used his children to keep the officers at bay when they attempted to arrest him on his outstanding warrant. Fewer than four days later, acting on the same outstanding warrant, police again tried to arrest Cramer. Once again, Cramer refused to comply with the officers' directives and attempted to evade arrest by placing his children between him and the officers.
¶16 The evidence of these incidents was cross-admissible. Under Rule 404(b), evidence of other acts is admissible to show, among other things, "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." The evidence of the July 20 incident would be admissible in a separate trial on the July 25 incident to show that Cramer intentionally restrained his children to interfere with performance of a government function and knew of the warrant for his arrest. The July 25 incident would be admissible in a separate trial on the July 20 incident to show that his actions in kidnapping his children were not an accident or unintended. The trial court committed no error in denying severance.
II. Confrontation Clause Violation
¶17 Cramer argues that the trial court improperly admitted P.'s statements over his objection and his inability to cross-examine her denied him of his Confrontation Clause rights pursuant to Crawford v. Washington, 541 U.S. 36 (2004). We review claims of Confrontation Clause violations de novo. State v. Ellison, 213 Ariz. 116, 129 ¶ 42, 140 P.3d 899, 912 (2006).
¶18 Cramer's seven-year-old daughter P. made two spontaneous statements to police officers on July 25 after she was removed from the Navigator. Shortly after police shattered the Navigator's windows and while police were still attempting to apprehend Cramer, P. jumped into the front seat of the vehicle. Detective Carlo went to the driver's window and told P. to "come to [him]." P. went to the detective, and the detective removed her from the vehicle. As the officer carried her, P. said that "[they] were not supposed to do that when she was in the car." A few minutes later, while waiting for the fire department to arrive, P. told another detective, "I was just sleeping and then I heard my dad say it's the cops, and he told me to jump on top of him."
¶19 The Confrontation Clause bars the admission of prior testimonial hearsay unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. Crawford, 541 U.S. at 53-54. Although the Supreme Court has not comprehensively defined "testimonial" statements, it has enumerated a "core class of 'testimonial' statements that include such things as affidavits, custodial examinations, prior testimony that a defendant was unable to cross-examine, pre-trial statements that declarants would reasonably expect to be used prosecutorially, prior confessions," and "any statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 51-52. Whether a statement is testimonial is a fact-driven inquiry that must be determined on a case-by-case basis. State v. Alvarez, 213 Ariz. 467, 471 ¶ 14, 143 P.3d 668, 672 (App. 2006).
¶20 The State argues that the statements are admissible because they are not testimonial under the Confrontation Clause. Specifically, the State contends that the statements were not testimonial because (1) the "primary purpose" of the officers' contact with P. was solely to meet an "ongoing emergency;" (2) P.'s interaction with the police was "highly informal;" and (3) P. made her statements while she was still distraught and upset by the ongoing violent and chaotic struggle with defendant.
¶21 We agree that the statements in this case were not testimonial given both the highly informal and the volatile circumstances in which they were made. Michigan v. Bryant, 131 S. Ct. 1143, 1160 (2011); Davis v. Washington, 547 U.S. 813, 822 (2006). Moreover, the statements were voluntary and not the result of any police interrogation. Objectively viewed, the purpose of the officers' contact with P. was not gathering proof of past criminal events but simply to comfort two highly upset and traumatized children. We find it telling that the officers never took advantage of P.'s utterances by using them as an invitation to question her further or to coax additional comments. It is also inconceivable that P. would have had any notion, let alone a reasonable expectation, that her statements might be used in a future prosecution. Crawford, 541 U.S. at 51-52. Accordingly, we find no violation of Cramer's Confrontation Clause rights.
III. Sufficiency of the Evidence
¶22 Cramer next argues that the trial court abused its discretion in denying his Rule 20 motion, and that insufficient evidence supports his convictions. We review the sufficiency of the evidence de novo. State v. West, 226 Ariz. 559, 562 ¶ 15, 250 P.3d 1188, 1191 (2011). We do not reweigh the evidence, but view it in the light most favorable to sustaining the jury's verdicts. State v. Jones, 188 Ariz. 388, 394, 937 P.2d 310, 316 (1997). If conflicts exist in the evidence, we resolve them in favor of sustaining the verdicts. State v. Salman, 182 Ariz. 359, 361, 897 P.2d 661, 663 (App. 1994). We also resolve all reasonable inferences against defendant. State v. Mincey, 141 Ariz. 425, 432, 687 P.2d 1180, 1187 (1984). When assessing the sufficiency of the evidence, we weigh direct and circumstantial evidence equally. State v. Bible, 175 Ariz. 549, 560 n.1, 858 P.2d 1152, 1163 n.1 (1993).
¶23 When a defendant challenges the sufficiency of the evidence, we affirm if there is substantial evidence to support the guilty verdicts. Salman, 182 Ariz. at 361, 897 P.2d at 663. Substantial evidence is "[m]ore than a scintilla and is such proof as a reasonable mind would employ to support the conclusion reached." Id. In considering the sufficiency of the evidence on appeal, we evaluate the entire record, including the defendant's testimony. State v. Alvarado, 178 Ariz. 539, 541, 875 P.2d 198, 200 (App. 1994) (citing State v. Nunez, 167 Ariz. 272, 279, 806 P.2d 861, 868 (1980). "To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypotheses whatever is there sufficient evidence to support the conclusion reached by the jury." State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). The record discloses that the trial court properly denied defendant's motion and that sufficient evidence supports the jury's verdicts.
¶24 On appeal, Cramer essentially reiterates his arguments and testimony, arguing that he only acted to protect his children; that he did not know he had an outstanding warrant for his arrest or was being placed under arrest; and that he never resisted arrest. The jury considered these arguments and rejected them. We will not reweigh the evidence. We find that the trial evidence, and all the reasonable inferences to be drawn therefrom, are sufficient to support the jury's verdicts.
¶25 The State points out that only one conviction may stand when multiple convictions are based on one single uninterrupted event or offense. See State v. Jones, 185 Ariz. 403, 406-07, 916 P.2d 1119, 1122-23 (App. 1995). As the State concedes, the evidence shows that Cramer's convictions for the unlawful imprisonment of G. and his kidnapping of G. are predicated on the single, uninterrupted act when Cramer held G. in the park on July 20. When that occurs, the general remedy is to vacate the conviction on the lesser-included offense. Id. at 408, 916 P.2d at 1124. Accordingly, we vacate Cramer's conviction and sentence on Count 5.
CONCLUSION
¶26 For the foregoing reasons, we affirm Cramer's convictions and sentences on Counts 2, 3, 4, 6, and 7. We vacate Cramer's conviction and sentence on Count 5, and remand the matter to superior court for re-sentencing.