State v. Crain

250 Ariz. 387

480 P.3d 655

STATE of Arizona, Appellee,

v.John Gordon CRAIN, Jr., Appellant.

No. 1 CA-CR 19-0502

Court of Appeals of Arizona, Division 1.

FILED February 2, 2021

Arizona Attorney General's Office, Phoenix, By Joshua C. Smith, Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix, By Margaret M. Green, Counsel for Appellant

Presiding Judge James B. Morse Jr. delivered the opinion of the Court, in which Judge Maria Elena Cruz and Judge Paul J. McMurdie joined.

MORSE, Judge:

¶1 John Crain Jr. ("Crain") appeals his convictions and sentences for aggravated assault and misconduct involving weapons, arguing the superior court committed fundamental error by failing to sever the two charges. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Crain was on felony probation in November 2018 and subject to regular home inspections by probation officers. He lived in a one-bedroom apartment with his mother and cousin, and he was not permitted to possess a firearm while on probation.

¶3 On the morning of November 5, 2018, Crain's new probation officer, BK, came to conduct a home visit at Crain's apartment. When BK knocked on the door, a female voice asked who was knocking, and BK announced herself as a probation officer. BK was wearing a badge; her vest had "probation" printed across the front and back in white letters.

¶4 BK later testified that Crain answered the door wearing boxers and holding an item covered by a cloth or some clothing. BK testified that Crain pointed the object sideways at her and said, "My f---ing cousin ain't here." BK could not see the object beneath the cloth but believed it was a firearm based on the object's length, rectangular shape, "the way it was pointed out," and Crain's "aggressive demeanor[.]" BK retreated, and Crain shut the door. Moments later, Crain reappeared in the doorway without anything in his hands, wearing pants, and greeted BK by saying, "My bad, my bad."

¶5 BK then introduced herself to Crain as his new probation officer. Crain offered to let BK inspect his apartment, but BK declined. BK gave Crain her business card before she left. Crain called BK later that day, left a voicemail, and sent her a text message saying, "Hey [BK] this is John [C]rain you came to see me this morning just giving you my cell number[.]"

¶6 BK told her supervisor that she believed Crain had pointed a firearm at her. BK also told her husband, a federal border patrol agent, and he reported the incident to Phoenix Police. Two days later, police executed a search warrant for Crain's apartment. Ten people were in the apartment—three adults, a teenager, and six children—and police found a loaded handgun underneath a pile of men's, women's, and children's clothing and assorted papers in Crain's bedroom closet. Some of the papers had Crain's name on them.

¶7 DNA evidence collected from the handgun showed a mix of at least four people, and a DNA analyst testified that no further identification could be drawn from the tests. A records trace failed to show any connection between Crain and the firearm.

¶8 A grand jury indicted Crain for aggravated assault using a deadly weapon or simulated deadly weapon and misconduct involving weapons while being a prohibited possessor. Crain timely moved to sever trial of the charges, arguing the State would need to present evidence of a prior felony conviction to prove his misconduct-involving-weapons charge, and the convictions would not otherwise be admissible on his aggravated-assault charge. The superior court denied Crain's motion to sever, finding the fact that Crain was on probation was admissible to prove both charges. Crain did not renew his motion to sever before the close of evidence.

¶9 Crain's former probation officer and BK both testified they supervised Crain on felony probation. The superior court then ruled that, if Crain testified, the State could impeach Crain with two of his prior felony convictions. Crain elected to testify in his own defense and admitted that he was on probation for the prior felony convictions. During cross-examination, the State impeached Crain with sanitized versions of two of his prior felony convictions.

¶10 Crain's mother testified that she did not see a firearm or a covered object in Crain's hands when he went to the door to meet BK. A police detective testified that, on the day of the search warrant, Crain's mother did not say she had witnessed the event when detectives told her of the incident.

¶11 Crain denied pointing a handgun at BK, claimed he did not have anything in his hands when he first opened the door, and said he never told BK that his "f---ing cousin ain't here." Crain also said that his girlfriend and her children were staying with him in his bedroom the day the search warrant was executed and claimed he did not know about the handgun in his closet. He testified he carried his girlfriend's luggage into the apartment and emptied her bags into the bedroom closet when she and her children came to stay with him the day after BK came to visit. Crain stated that the women's clothing and makeup police found on top of the firearm in the closet belonged to his girlfriend and her children.

¶12 During cross-examination, Crain denied ever asking his girlfriend to claim that the gun was found in her purse to make his case "go away." The State later played an audio recording of a phone call between Crain and his girlfriend. During the call, Crain asked his girlfriend to tell Crain's lawyer that the police "found that gun in your purse" to "put a hole in their f---ing case and they're going to have to throw that bullshit out."

¶13 At the close of the State's case-in-chief, Crain moved for a judgment of acquittal pursuant to Rule 20 of the Arizona Rules of Criminal Procedure ("Rule 20 motion"). The superior court denied Crain's motion.

¶14 The jury found Crain guilty of both aggravated assault and misconduct involving weapons. The superior court sentenced Crain as a repetitive offender to concurrent terms of 11.25 years in prison for aggravated assault and 10 years in prison for misconduct involving weapons.

¶15 Crain timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A).

DISCUSSION

I. Denial of the Motion to Sever.

¶16 Crain claims that the superior court erred when it denied his motion to sever trial of the two counts. Two or more offenses may be joined in an indictment as separate counts if they: "(1) are of the same or similar character; (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." Ariz. R. Crim. P. 13.3(a). The trial court must sever trial of counts that have been joined, either on motion or on its own initiative, "if necessary to promote a fair determination of any defendant's guilt or innocence of any offense." Ariz. R. Crim. P. 13.4(a). When a pretrial motion to sever is denied, "the defendant must renew the motion during trial before or at the close of evidence[,]" otherwise, "the right to severance is waived ...." Ariz. R. Crim. P. 13.4(c). Because Crain failed to renew his motion to sever, he acknowledges that we review for fundamental error. State v. Gutierrez , 240 Ariz. 460, 465, ¶ 12, 381 P.3d 254, 259 (App. 2016). Crain bears the burden to show that any error was both fundamental and prejudicial. State v. Soliz , 223 Ariz. 116, 119, ¶ 11, 219 P.3d 1045, 1049 (2009).

¶17 Crain relies on State v. Burns to argue the superior court erred when it failed to sever trial of the weapons charge from the aggravated-assault charge. 237 Ariz. 1, 14-15, ¶¶ 34-39, 344 P.3d 303, 316-317 (2015). In Burns , the Arizona Supreme Court held the trial court abused its discretion when it declined to sever the trial of a misconduct-involving-weapons charge from sexual assault, kidnapping, and first-degree murder charges. Id. at 14, ¶36, 344 P.3d at 316. The Court noted that the defendant did not testify at trial, and "[b]ut for joinder of the misconduct-involving-weapons charge, the evidence of [the defendant's] prior felony convictions would not have been admissible during the guilt phase." Id. at ¶ 35. The Court found that while the defendant's "possession of the murder weapon was cross-admissible for the murder and the weapons charge, his prior conviction was not and its admission created a serious risk of prejudice." Id. at ¶ 36 (citing United States v. Nguyen , 88 F.3d 812, 815 (9th Cir. 1996) ).

¶18 The Court also reasoned that the superior court's curative instruction was insufficient because "[s]uch an instruction requires the jury to ignore prior felony convictions in a capital criminal prosecution[,]" which the Court found was "well beyond moral capacities." Id. at 14-15, ¶37, 344 P.3d at 316-317 (citing United States v. Daniels , 770 F.2d 1111, 1118 (D.C. Cir. 1985) ). However, the Court found the error was harmless given the overwhelming evidence of the defendant's guilt and that the State did not emphasize the felony convictions during closing argument. Id. at 15, ¶38, 344 P.3d at 317. Nevertheless, the Court emphasized that "[a]bsent an appropriate factual nexus, trial courts generally should not join a misconduct-involving-weapons charge, or any charge that requires evidence of a prior felony conviction, unless the parties have stipulated to a defendant's status as a prohibited possessor." Id. at ¶ 39.

¶19 Evidence that Crain was on probation was relevant to the assault charge because it explained his relationship with BK and the reason for BK's visit to his apartment. Crain does not argue the court should have excluded that evidence. Crain also acknowledges that evidence he possessed a handgun was relevant to both charges but argues that his prior felony convictions were relevant only to the misconduct-involving-weapons charge. He contends there was no "appropriate factual nexus" allowing the...