Opinion
No. 2 CA-CR 2018-0326-PR
03-27-2019
THE STATE OF ARIZONA, Respondent, v. WILLIAM DEAN SCHIRMER, Petitioner.
COUNSEL Law Offices of Thomas Jacobs, Tucson By Thomas Jacobs Counsel for Petitioner
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NOT FOR PUBLICATION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. 31.19(e). Petition for Review from the Superior Court in Pima County
No. CR20132405001
The Honorable Kenneth Lee, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Law Offices of Thomas Jacobs, Tucson
By Thomas Jacobs
Counsel for Petitioner
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Brearcliffe concurred. VÁSQUEZ, Judge:
¶1 Petitioner William Schirmer seeks review of the trial court's order denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Schirmer has not shown such abuse here.
¶2 After a jury trial, Schirmer was convicted of kidnapping, three counts of attempted sexual abuse of a minor under fifteen, and three counts of aggravated assault of a minor under fifteen. The trial court sentenced Schirmer to a combination of concurrent and consecutive enhanced, maximum prison terms totaling seventy-one years and ordered him to register as a sex offender upon release. On appeal, we affirmed his kidnapping and aggravated assault convictions, but vacated his convictions and sentences for attempted sexual abuse. State v. Schirmer, No. 2 CA-CR 2015-0038 (Ariz. App. Aug. 31, 2016) (mem. decision). The convictions stemmed from incidents at a retail store and a church when he approached young girls from behind, grabbed and tickled them, and in one instance, continued pulling on the victim after she attempted to get away from him. Schirmer sought post-conviction relief raising, inter alia, multiple claims of ineffective assistance of trial and appellate counsel. The court summarily dismissed his petition, and this petition for review followed.
¶3 To prevail on a claim of ineffective assistance of counsel, a defendant is "required to demonstrate that counsel's conduct fell below prevailing professional norms and that he was prejudiced thereby." State v. Denz, 232 Ariz. 441, ¶ 6 (App. 2013) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). There is "[a] strong presumption" that counsel "provided effective assistance," State v. Febles, 210 Ariz. 589, ¶ 20 (App. 2005), which the defendant must overcome by providing evidence that counsel's conduct did not comport with prevailing professional norms, see State v. Herrera, 183 Ariz. 642, 647 (App. 1995). Moreover, tactical or strategic decisions rest with counsel, State v. Lee, 142 Ariz. 210, 215 (1984), and we will presume "that the challenged action was sound trial strategy under the circumstances," State v. Stone, 151 Ariz. 455, 461 (App. 1986). Thus, "[d]isagreements as to trial strategy or errors in trial [tactics] will not support a claim of ineffective assistance of counsel as long as the challenged conduct could have some reasoned basis." State v. Meeker, 143 Ariz. 256, 260 (1984). To show prejudice, defendant must demonstrate that there is a "reasonable probability"—that is, "a probability sufficient to undermine confidence in the outcome" of the trial—that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
Ineffective Assistance of Trial Counsel
¶4 Schirmer argues trial counsel was ineffective for the following reasons: (1) failing to request a jury instruction on the lesser-included offense of attempted kidnapping; (2) failing to object to the admission of other-act evidence under Rule 404(c), Ariz. R. Evid.; (3) failing to object to jury instructions regarding the admission of evidence under Rule 404(b) and 404(c); (4) failing to request jury instructions on the definitions of "injure, insult [and] provoke" as used in the assault statute, A.R.S. § 13-1203(A)(3), and to assert that the statute is unconstitutionally vague; and (5) conceding in closing argument that the state had proved the aggravated assault counts beyond a reasonable doubt. We address each of Schirmer's claims in turn.
The other-act evidence offered to show a character trait giving rise to an aberrant sexual propensity to commit the charged offenses pursuant to Rule 404(c) consisted of the following: in 2007 during two incidents at a retail store Schirmer asked two minor girls if they liked to be tickled and then tickled them on their backs and stomachs, resulting in guilty pleas for misdemeanor offenses; in 2009 Schirmer tickled minor female children on their stomachs and near their ribs while they were attending church, resulting in a guilty plea to two counts of aggravated assault of a minor and a three-year prison term; and probation records from Minnesota indicated Schirmer had admitted tickling eighty female victims ranging from four to fourteen years old and had admitted that he became sexually aroused by tickling female children.
Jury Instruction on Attempted Kidnapping
¶5 Schirmer asserts trial counsel was ineffective for failing to request a jury instruction on attempted kidnapping as a lesser-included offense of kidnapping, maintaining the evidence in this case justified requesting such an instruction and that "no reasonable attorney would have" failed to have done so. Although we determined on appeal that there was sufficient evidence that Schirmer had committed kidnapping because he knowingly restrained the victim in such a way to substantially interfere with her liberty, see Schirmer, No. 2 CA-CR 2015-0038, ¶ 19; see also A.R.S. § 13-1304(A), Schirmer argues that if the jury had been given an instruction on attempted kidnapping, it could have found he was not guilty of kidnapping.
¶6 In denying this claim below, the trial court determined that trial counsel's failure to request the lesser-included instruction of unlawful imprisonment was based on trial strategy and found, in any event, that Schirmer had failed to establish prejudice "because there existed sufficient evidence to support a verdict of kidnaping." The court also noted the jury had been instructed on the lesser-included offense of unlawful imprisonment.
The trial court stated defense counsel requested that instruction. Although Schirmer maintains his attorney did not do so, he does not direct us to the relevant portion of the record showing who did request the instruction. In any event, the record shows the instruction was given to the jury.
¶7 Schirmer has not presented any evidence suggesting the trial court erred by finding counsel's decision to forgo requesting an additional lesser-included instruction was anything but tactical. See State v. Mercer, 13 Ariz. App. 1, 2-3 (1970) (not requesting lesser-included offense instruction may be sound trial strategy); see also Stone, 151 Ariz. at 461 (presume challenged action was trial strategy). Moreover, Schirmer cites no evidence suggesting counsel made a mistake of law, nor does he direct us to any persuasive authority suggesting any competent counsel necessarily would have acted differently. Cf. State v. Speers, 238 Ariz. 423, ¶¶ 16-18 (App. 2015) (where attorney misunderstood the law, failure to request lesser-included instruction not based on trial strategy). Additionally, Schirmer did not provide an expert affidavit to support his claim. See Ariz. R. Crim. P. 32.5(d) ("The defendant must attach to the petition any affidavits, records, or other evidence currently available to the defendant supporting the petition's allegations."). We thus find no abuse of discretion in the court's denial of this claim.
Admission of Other-Act Evidence under Rule 404(c)
¶8 Schirmer contends trial counsel was ineffective for failing to object to the admission of other act evidence under Rule 404(c) because attempted sexual abuse of a minor is not specifically listed as a sexual offense under the plain language in A.R.S. § 13-1420(C). He also asserts "[t]here can be no question" he was prejudiced by the jury's consideration of the other-act evidence. Generally, "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Ariz. R. Evid. 404(b). Rule 404(c) provides an exception to this rule.
We note that trial counsel objected generally to the admission of the other act evidence as a violation of due process, but did not raise the specific argument Schirmer now advances.
Rule 404(c) provides in relevant part:
In a criminal case in which a defendant is charged with having committed a sexual offense, . . . evidence of other crimes, wrongs, or acts may be admitted by the court if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged.
. . . .
. . . As used in this subsection of Rule 404, the term "sexual offense" is as defined in A.R.S. [§] 13-1420(C) . . . .
¶9 In State v. Williams, 209 Ariz. 228, ¶¶ 38-39 (App. 2004), we addressed a similar issue and concluded "the aberrant sexual propensity exception to the prohibition against character evidence, codified in Rule 404(c), encompasses the crimes of public sexual indecency and public sexual indecency to a minor," even though those offenses are not expressly recognized within § 13-1420. We further noted in Williams that Rule 404(c) "was promulgated for the purpose of broadening, not narrowing, the types of cases in which other act evidence might be admissible." Id. ¶ 38; see State v. Aguilar, 209 Ariz. 40, ¶ 26 (2004) (Rule 404(c) adopted to "broaden[] the types of sexual offense cases in which other act evidence might be admissible"); see also § 13-1420(B) ("This section does not limit the admission or consideration of evidence under any court rule.").
¶10 Although Schirmer acknowledges our decision in Williams, he urges us not to follow it, arguing that it is contrary to Arizona law and to the plain language in Rule 404(c)(4) and § 13-1420(C). In its ruling rejecting this claim below, the trial court found trial counsel's conduct was "not objectively unreasonable" based on "the nature of [Schirmer's] conduct leading to the charged offenses, the nature of his prior acts, and in light of . . . Williams." The court also found Schirmer had "not demonstrated prejudice beyond speculation." In light of our holding in Williams, a decision that was binding on both trial counsel and the trial court, we conclude the court did not abuse its discretion in determining that trial counsel was not ineffective for failing to raise a claim that was contrary to binding case law. We thus decline to further address Schirmer's additional arguments regarding our reasoning in Williams.
Jury Instructions on Other-Act Evidence
¶11 Schirmer argues trial counsel was ineffective for failing to object to the "ambiguous" jury instructions on the other-act evidence admitted under Rule 404(b) and Rule 404(c) because they did not distinguish how that evidence could be used as to each of the charged offenses. Specifically, he argues that because the jury was permitted to use the 404(c) evidence to improperly convict him of attempted sexual abuse, a conclusion he draws because we vacated those convictions on appeal, he maintains "there is a likelihood" he would not have been found guilty of the other offenses if the jury had not been permitted to consider all of the other-act evidence.
¶12 In rejecting this argument below, the trial court concluded that because trial counsel objected to an unrelated flight instruction, counsel apparently had reviewed all of the instructions and his conduct thus was not deficient. The court further determined that even had counsel's performance been deficient in this regard, Schirmer did not establish any resulting prejudice. We agree with the court that counsel's decision to object to an unrelated instruction suggests counsel was diligent in reviewing the instructions. However, we cannot agree that it establishes that competent counsel had no basis to object to the prior-act instruction. But, we nonetheless find the court correctly rejected this claim. See State v. Oakley, 180 Ariz. 34, 36 (App. 1994) (appellate court "will affirm the trial court when it reaches the correct result even though it does so for the wrong reasons").
¶13 Schirmer has not explained how the challenged instructions failed to comply with Rule 404(c)(2), nor has he provided relevant authority showing why more detailed instructions were required. Moreover, he has not meaningfully argued why the proffered instructions do not apply to all of the offenses. And, although the trial court provided jury instructions regarding the consideration of the other acts under Rule 404(b) and Rule 404(c), it also instructed the jury it must "consider the instructions that do apply, together with the facts as you have determined them." "We presume that the jurors followed the court's instructions." State v. Newell, 212 Ariz. 389, ¶ 68 (2006). Consequently, we presume the jury did not consider the other acts as propensity evidence where they did not apply factually and that it followed the court's limiting instruction. We thus conclude Schirmer has not sustained his burden to show counsel was ineffective or that he suffered resulting prejudice.
Jury Instructions on Assault Statute
¶14 Schirmer contends trial counsel should have requested a jury instruction on the definitions of "injure, insult or provoke," as used in the assault statute. See § 13-1203(a)(3) (person commits assault by "[k]nowingly touching another person with the intent to injure, insult or provoke such person."). He argues such an instruction was required because the statute is unconstitutionally vague and maintains reasonable people may differ on what is insulting or provoking. He also contends there was no evidence to show he intended to insult or provoke the victims, "except perhaps to provoke laughter."
¶15 Schirmer raised the same argument on appeal, albeit as a claim that insufficient evidence supported the aggravated assault convictions. On appeal, we noted that trial counsel had conceded both that Schirmer's touching of the victims was "'offensive,'" and that the state had proven the aggravated assault counts "'beyond a reasonable doubt.'" And, we concluded that trial counsel had "admitted the aggravated assault charges in the hopes of winning credibility for his arguments as to the other counts."
¶16 In its ruling denying Schirmer's claim below, the trial court correctly determined he had not established either that trial counsel's performance was deficient or that he was prejudiced thereby. Because Schirmer has not persuaded us that the terms injure, insult or provoke are ambiguous, we conclude the jury was able to understand their ordinary meaning and that no additional jury instruction was necessary. See State v. Burbey, 243 Ariz. 145, ¶ 7 (2017). Moreover, based on our conclusion on appeal that trial counsel conceded Schirmer's culpability on the aggravated assault offenses for strategic reasons, we do not find counsel's failure to request a jury instruction related to those offenses deficient. See Lee, 142 Ariz. at 215. We further note that Schirmer has not established prejudice from counsel's failure to request such an instruction. Accordingly, the court correctly rejected this claim below.
Concession of Aggravated Assault Counts
¶17 Schirmer argues trial counsel was ineffective for conceding to the jury, without his consent, that the state had proved aggravated assault of a minor beyond a reasonable doubt. Although Schirmer acknowledges that this court "may [have] be[en] correct" when it found on appeal that trial counsel's concession was strategic, he nonetheless asserts counsel's concession had "no reasoned strategy." He also maintains his constitutional right to have a jury determine his guilt was violated, and he was prejudiced by counsel's conduct because the aggravated assault charges were "winnable" and because he could not challenge those convictions on appeal based on counsel's waiver.
¶18 In its ruling below, the trial court noted that Schirmer had attached an affidavit to his Rule 32 petition stating in relevant part:
During the time I was being represented by [trial counsel, he] never explained to me that he was not going to mount a defense to the Aggravated Assault charges, or that he was going to concede my guilt to those charges. I did not believe the State had met its burden of proof that I touched the children with the intent to injure, insult or provoke them. If [trial counsel] had told me he wanted to concede my guilt to the aggravated assault charges, I would have objected to him doing that, and I would have demanded that he let the jury decide those charges. I did not waive my right to a jury determination of guilt or innocence on those charges.
¶19 However, as the trial court noted, Schirmer's affidavit was unsigned and un-notarized, and despite Rule 32 counsel's representation that the record would be supplemented with a signed affidavit "when it is received," this apparently did not occur. The court concluded that the "unsigned and un-notarized affidavit amounts to self-serving assertions which, without more, do not give rise to a colorable claim," and thus found that, "[h]aving presented no additional evidence to support his claim," Schirmer had "not met his burden to demonstrate trial counsel's deficient performance or resulting prejudice."
¶20 We agree with the trial court that Schirmer failed to support his claim and further note that he failed to show that trial counsel's decision to concede guilt on certain counts lacked a reasoned basis, to wit, to win the jury's trust on the other counts, as we concluded on appeal. See Schirmer, No. 2 CA-CR 2015-0038, ¶ 16; see also Meeker, 143 Ariz. at 260. Moreover, in light of the substantial evidence supporting Schirmer's guilt on the aggravated assault counts, he has not established any likelihood that counsel's concession resulted in his convictions for aggravated assault.
Ineffective Assistance of Appellate Counsel
¶21 Schirmer maintains appellate counsel was ineffective for failing to: (1) assert that the admission of evidence under Rule 404(c) was fundamental error; (2) assert that the jury instructions regarding the admission of evidence under Rule 404(b) and 404(c) was fundamental error; and (3) file a motion for reconsideration regarding the kidnapping conviction after we vacated the convictions for attempted sexual abuse of a minor on appeal.
Admission of Other-Act Evidence under Rule 404(c) and Jury Instructions on Other Act-Evidence
¶22 Schirmer reasserts the claims he previously raised regarding trial counsel, now claiming that appellate counsel should have asserted, under fundamental error review, that the other-act evidence was improperly admitted under Rule 404(c) and that appellate counsel should have challenged the jury instructions on the other-act evidence. The trial court denied these claims, concluding that Schirmer had not established appellate counsel was deficient because the proffered arguments were not as strong as those appellate counsel elected to raise on appeal, and noting that three of Schirmer's convictions were vacated "as a direct result of arguments that appellate counsel did raise."
¶23 The trial court correctly observed that appellate counsel may make a strategic decision to focus on stronger claims and forgo weaker ones. See Febles, 210 Ariz. 589, ¶ 20. In fact, these arguments would not have warranted relief on appeal for the same reasons we rejected them as to Schirmer's claims that trial counsel had been ineffective. We thus find the court correctly denied these claims.
Motion for Reconsideration
¶24 Schirmer argues appellate counsel was ineffective for failing to file a motion for reconsideration on his kidnapping conviction after we vacated his convictions for attempted sexual abuse of a minor on appeal. He contends that, once we found insufficient evidence to support one of the possible means for restraining the victim, to wit, to inflict a sexual offense, he was denied a unanimous verdict on the kidnapping conviction because there was no way to ascertain the alternative means the jury had relied upon to convict him of that offense. He similarly argues that in the absence of interrogatories regarding the alternative means for restraining the victim, appellate counsel should have filed a motion to reconsider his kidnapping conviction.
The jury was instructed that kidnapping "requires proof that the defendant knowingly restrained another person with the intent to: 1. Inflict physical injury or a sexual offense on the person; or 2. Aid in the commission of a felony." See § 13-1304(A)(3).
¶25 The jury returned a verdict stating it found Schirmer guilty of kidnapping as alleged in count one of the indictment (that Schirmer had kidnapped the victim "with the intent to inflict death, physical injury or a sexual offense on her"), and that it found proven beyond a reasonable doubt the allegation of sexual gratification by the defendant. Appellate counsel challenged the kidnapping conviction, arguing there was insufficient evidence to show Schirmer had substantially interfered with the victim's liberty and that he did not possess the intent to commit any of the acts set forth in § 13-1304(A)(3). As previously noted, on appeal we found sufficient evidence to show Schirmer had substantially interfered with the victim's liberty and that he had intended to commit aggravated assault, but insufficient evidence to show he had intended to inflict a sexual offense on the victim.
¶26 Schirmer correctly maintains he is entitled to a unanimous verdict on whether he committed kidnapping, a single act that can be committed in more than one way, but not as to the precise manner in which it was committed, although substantial evidence must support each of the possible means of committing the offense. See State v. Herrera, 176 Ariz. 9, 16 (1993); see also State v. West, 238 Ariz. 482, ¶ 13 (App. 2015). In its ruling rejecting Schirmer's argument below, the trial court noted that, because trial counsel had not requested special interrogatories on the kidnapping offense, appellate counsel could not be ineffective for failing to have raised a claim "left un-asserted" in the trial court. Again, we find the court reached the correct result but not necessarily for the same reason. See Oakley, 180 Ariz. at 36. In addressing the sufficiency of the evidence from a purely legal standpoint on appeal, we found it insufficient to show Schirmer had the intent to inflict a sexual offense on the victim. However, we nonetheless determined there was sufficient evidence for the jury to convict him of kidnapping based on his intent to aid in the commission of a felony, to wit, aggravated assault. And based on the jury's convictions on all three counts of aggravated assault of a minor, it necessarily follows that, at the very least, the jury agreed Schirmer knowingly restrained the victim to aid in the commission of that felony, rendering the kidnapping verdict unanimous on that ground.
¶27 In addition, Schirmer has not shown that appellate counsel's conduct did not comport with prevailing professional norms. See Herrera, 183 Ariz. at 647. In light of the nature of the other-acts evidence, the jury's findings beyond a reasonable doubt that Schirmer was sexually motivated when he committed the kidnapping and aggravated assault offenses, and our ruling on appeal that there was substantial evidence to support the kidnapping conviction, there is no persuasive evidence to support Schirmer's assertion that appellate counsel's failure to file a motion for reconsideration fell below prevailing professional norms, particularly one raising a complex and innovative claim. See Febles, 210 Ariz. 589, ¶ 20. And once again, Schirmer has not provided an expert affidavit to support this claim. See Ariz. R. Crim. P. 32.5(d).
¶28 For all of these reasons, we grant review but deny relief.