Opinion
No. 1 CA-CR 13-0318
06-17-2014
STATE OF ARIZONA, Appellee, v. ALBERT KARL HEITZMANN, Appellant.
Arizona Attorney General's Office, Phoenix By Michael O'Toole Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Terry J. Adams Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2012-134114-001
The Honorable Robert L. Gottsfield, Retired Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Michael O'Toole
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Terry J. Adams
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in which Judge Michael J. Brown and Judge Jon W. Thompson joined.
HOWE, Judge:
¶1 Albert Karl Heitzmann appeals his conviction and sentence for misconduct involving weapons. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In 2007, Deputy Maricopa County Attorney J.G. prosecuted Heitzmann in an unrelated case where Heitzmann was convicted of a felony.
¶3 On June 19, 2012, Heitzmann delivered a letter to his defense attorney's secretary. The letter stated: "I was originally planning to hand these to you personally: . . . My plan to assassinate [J.G.]" The letter contained Heitzmann's signature and contact information.
¶4 Maricopa County Sheriff's Office Detective J.C. called Heitzmann. Heitzmann agreed to meet at the detective's office. Heitzmann admitted that he delivered the letter, stating "Oh, I'm going to shoot Miss [J.G.] That's why you want to talk to me; that's why you're interested in that." When asked why he wrote the letter, Heitzmann explained that he wanted to get his attorney's "attention, and that it was a bad joke." Heitzmann also explained that J.G. had "prosecuted him . . . by fraudulent means."
¶5 When asked if he had a problem with J.G., Heitzmann responded, "Damn right I do." Although Heitzmann denied that he wanted to physically harm J.G., he stated that he planned to get J.G. disbarred and "wanted to ruin her personally" to "get back at her." Stating that shooting J.G. would be "too good for her" and "counterproductive," Hetizmann claimed that the "plan to assassinate" J.G. "was actually someone else's plan." When the detective asked Heitzmann if he owned any weapons, Heitzmann admitted to owning a handgun that he stored in a shed behind his mother's house. Determining that Heitzmann was a prohibited possessor, Detective J.C. obtained a search warrant for the shed and discovered the gun.
¶6 Heitzmann was indicted for threatening or intimidating (Count 1) and misconduct involving weapons (Count 2). On February 11, 2013, Heitzmann moved to sever the charges under Arizona Rules of Criminal Procedure 13.3(a) and 13.4(a), arguing that the "offenses are essentially mutually exclusive . . . [because] independent evidence will be necessary to prove [each count]." Finding "no manifest injustice," the trial
court denied Heitzmann's motion to sever counts. Heitzmann renewed his motion to sever counts at trial, which the trial court denied.
¶7 The trial court instructed the jury that Counts 1 and 2 were separate, distinct, and had to be considered independently: "You may find that the state has proved beyond a reasonable doubt all, some or none of the charged offenses." The jury found Heitzmann guilty of Count 2, but did not reach a verdict on Count 1.
DISCUSSION
¶8 Heitzmann argues that the trial court erred by denying his motion to sever Count 1 from Count 2. We review a trial court's denial of a motion to sever counts for an abuse of discretion and will affirm a trial court's ruling if it is correct for any reason. State v. Hausner, 230 Ariz. 60, 74 ¶ 43, 280 P.3d 604, 618 (2012); State v. Herrera, 232 Ariz. 536, 543 ¶ 14, 307 P.3d 103, 110 (App. 2013).
¶9 Joinder of offenses is appropriate if the offenses:
(1) Are of the same or similar character; or
(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.
¶10 Under Rule 13.3(a)(2), joinder is permissible if the respective counts involved "are based on the same conduct or are otherwise connected together in their commission[.]" Offenses are considered connected together in their commission when (1) "the offenses arose out of a series of connected acts, and the evidence as to each count, of necessity, overlaps"; (2) "where most of the evidence admissible in proof of the one offense was also admissible in proof of the other"; or (3) "where there [are] common elements of proof in the joined offenses." State v. Martinez-Villareal, 145 Ariz. 441, 446, 702 P.2d 670, 675 (1985).
¶11 Applying this rule, we affirm the trial court's denial of Heitzmann's motion to sever Count 1 from Count 2. Joinder was permissible because the two counts were (1) connected in their commission because the offenses arose out of a series of connected acts
and (2) part of a common scheme or plan. After delivering a signed letter stating his "plan to assassinate [J.G.]," Heitzmann admitted that he was "going to shoot Miss [J.G.]" When the subsequent investigation of Heitzmann revealed that he was a prohibited possessor, Detective J.C. discovered the semi-automatic pistol in the shed. Because evidence that Heitzmann possessed a firearm was necessary to prove the "true threat" element of the threatening or intimidating charge, the counts were properly joined under Rule 13.3(a)(2) as connected together in their commission. Furthermore, the offenses were properly connected under 13.3(a)(3) because Heitzmann's possession of a semi-automatic pistol as a prohibited possessor evidenced his plan to shoot J.G. Accordingly, the court did not err by denying Heitzmann's motion to sever the counts.
¶12 Heitzmann also contends that severance should have been granted under Rule 13.4 "to promote a fair determination of [his] guilt or innocence" because the evidence on Count 1 was prejudicial to Count 2. Ariz. R. Crim. P. 13.4(a). We interpret his argument to be that evidence from Count 1 "rubbed-off" on Count 2. See State v. Atwood, 171 Ariz. 576, 612-13, 832 P.2d 593, 629-30 (1992), disapproved on other grounds by State v. Nordstrom, 200 Ariz. 229, 241 ¶ 25, 25 P.3d 717, 729 (2001). But our supreme court has held that the "rub-off" doctrine, applicable in considering severance between co-defendants, does not apply to severance of offenses. Id. In Atwood, the court stated that "a defendant is not prejudiced if the jury is (1) instructed to consider each offense separately, and (2) is advised that each offense must be proven beyond a reasonable doubt." Id. at 613, 832 P.2d at 630; accord State v. Prince, 204 Ariz. 156, 160 ¶ 17, 61 P.3d 450, 454 (2003). Here, the jury was given such instructions. And even if error occurred, no evidence shows that Heitzmann suffered prejudice because the jury convicted him of Count 1, but not Count 2. This demonstrates that the jury was able to distinguish between the two counts. Accordingly, the court did not abuse its discretion in denying his motion to sever counts.
CONCLUSION
¶13 For the foregoing reasons, we affirm.