State v. Butler

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

GLENN ANTHONY BUTLER, Appellant.

No. 1 CA-CR 22-0473
FILED 3-14-2024

Appeal from the Superior Court in Maricopa County
No. CR2021-007573-001
The Honorable Jeffrey A. Rueter, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

The Susser Law Firm, PLLC, Chandler
By Adam M. Susser
Counsel for Appellant

Glenn Anthony Butler, Eloy
Appellant
 STATE v. BUTLER
Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Michael S. Catlett joined.

C R U Z, Judge:

¶1 This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Counsel for Glenn
Anthony Butler has advised this Court that counsel found no arguable
questions of law and asks us to search the record for fundamental error.
Butler was convicted of one count of kidnapping, a class 2 felony; one count
of armed robbery, a class 2 felony; two counts of aggravated assault, class 3
felonies; and two counts of aggravated assault, class 4 felonies. Butler has
filed a supplemental brief in propria persona, which the Court has
considered. After reviewing the record, we affirm Butler’s convictions and
sentences.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
judgment and resolve all reasonable inferences against Butler. See State v.
Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).

¶3 On October 31, 2021, D.G. attended an event at Club Stratus
in Phoenix. D.G. drove a blue Dodge Charger to the event and carried with
him his identification, backpack with his laptop in it, two cellphones, and
$5,000-$6,000 in cash.

¶4 At around 0200 AM, D.G. left Club Stratus and walked to his
vehicle where he encountered three masked gunmen in his car. While D.G.
was being held at gunpoint in his vehicle, a second vehicle arrived, a black
Dodge Challenger, and blocked D.G.’s vehicle. The gunmen directed D.G.
to follow the Challenger. D.G. complied until one of the gunmen directed
D.G. to pull over. A gunman D.G. identified as Butler told D.G. to get into
the back of the Charger. Butler punched D.G. and hit him in the chest with
a gun. D.G. got into the back of the Charger and Butler drove until the car
started smoking. At that point, the group abandoned the Charger and
placed D.G. in the back of the Challenger with three or four gunmen. The
men drove D.G. to a house in Phoenix. During the drive and upon arrival

2
 STATE v. BUTLER
Decision of the Court

at the house D.G. was assaulted multiple times. At the house other men
arrived, assaulted D.G., and placed D.G. in the back of a blue Mercedes.
D.G. identified the driver of the Mercedes to be Butler’s codefendant
Gregory Ware.

¶5 In the Mercedes, D.G. was forced to strip and continued to be
assaulted. During this time, the men asked for D.G.’s personal items and
passwords to phones. Eventually D.G. was taken to an apartment in Tempe
where he was blindfolded and placed in a closet. While in the closet, D.G.
was cut, beaten, and burned. D.G. received burns to his genitalia and his
hand was crushed, later requiring surgery. D.G. was then placed in a hot
shower. While D.G. was in the shower, Butler asked him questions such as
who D.G. could contact to get the men $30,000.

¶6 Eventually the men placed D.G. back in the Challenger and
drove him to where the Gila River intersects with El Mirage Road by
Phoenix Raceway. The men made D.G. get into the water, one of the men
told him to run, and then a shot was fired. The men left and D.G. waved
down an individual who contacted the authorities.

¶7 D.G. identified Butler’s photo out of a photo lineup. Butler
was arrested on November 19, 2021. At trial, cellular data was presented
showing D.G. and Butler at Club Stratus at the same time around midnight
on November 1. The cellular data also showed Butler and D.G. in the same
area of Tempe later that morning when D.G. was being held at the Tempe
apartment. Additionally, fingerprints obtained from the Charger matched
Butler’s.

¶8 At trial, D.G. testified that he knew Ware from high school but
had not met or been in contact with Butler prior to November 1. But during
trial video footage was discovered that showed D.G., who did contracts in
real estate, showing Butler a property in July 2021. Another video was
discovered during trial of D.G. backing a car into the driveway of the
Phoenix house he was taken to after Club Stratus several months before the
incident occurred. Cell records showed that D.G. and Butler had called
each other in the weeks preceding the incident.

¶9 The defense moved for a dismissal based on the newly
discovered video evidence. The superior court denied the motion, finding
no prosecutorial misconduct. D.G. was recalled by the State to testify about
the video evidence contradicting his previous testimony that he did not
know Butler. D.G. disputed whether he had “met” Butler, but ultimately
stated he had met Butler a few times before November 1.

3
 STATE v. BUTLER
Decision of the Court

¶10 After the close of the prosecution’s evidence, Butler moved
for a directed verdict, which the court denied. Following the conclusion of
evidence, the jury found Butler guilty of kidnapping (count 1), armed
robbery (count 3), and aggravated assault (counts 4, 5, 6, and 7).

¶11 The superior court conducted the sentencing hearing in
compliance with Butler’s constitutional rights and Arizona Rule of Criminal
Procedure 26. Butler stipulated to the following aggravating factors: As to
Counts 1, 3, 4, 5, 6, and 7, the offense involved the presence of an
accomplice, the offense caused physical, emotional or financial harm to the
victim, and Butler committed the offense while on probation for two
separate felony convictions. As to counts 1 and 3, the offenses are
dangerous offenses. The court sentenced Butler to 20 years imprisonment
for count 1, 20 years imprisonment for count 3, 15 years imprisonment for
count 4, 15 years imprisonment for count 5, 15 years imprisonment for
count 6, and 15 years imprisonment for count 7. Based on Butler’s age and
the totality of circumstances the court ordered those sentences to run
concurrently with one another, but consecutively to his probation violation
(CR 2020-134749 and CR 2021-105210) matters. Butler received 337 days of
presentence incarceration credit. The court imposed a $20.00 probation
assessment, $20.00 time payment fee, $2.00 victim rights enforcement
assessment, $13.00 criminal penalty assessment, and $9.00 to be paid to the
victim rights/compensation fund.

¶12 Butler timely appealed. 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).

DISCUSSION

¶13 We review the entire record for reversible error. State v.
Thompson, 229 Ariz. 43, 45, ¶ 3 (App. 2012). Counsel for Butler has advised
this Court that after a diligent search of the entire record, counsel has found
no arguable question of law. However, in his supplemental brief, Butler
argues that D.G. was found to have provided false testimony at trial and
the false testimony violated his due process rights.

¶14 “Knowing use of perjured or false testimony by the
prosecution is a denial of due process . . . .” State v. Ferrari, 112 Ariz. 324,
334 (1975). “The same result obtains when the State, although not soliciting
false evidence, allows it to go uncorrected when it appears.” Napue v.
Illinois, 360 U.S. 264, 269 (1959). A witness contradicting himself or
changing his story “does not create an inference . . . that the prosecutor

4
 STATE v. BUTLER
Decision of the Court

knowingly presented perjured testimony.” Bucci v. United States, 662 F.3d
18, 40 (1st Cir. 2011). The credibility of a witness is an issue to be resolved
by the jury. State v. Scott, 113 Ariz. 423, 425 (1976) (citations and internal
quotation marks omitted).

¶15 Videos showing Butler and D.G. together prior to November
1 were discovered during trial. After this discovery, D.G. was called to
testify again about his previous contact with Butler. Although D.G.’s
statements contradicted his prior testimony, there is no evidence that the
prosecutor knowingly solicited false testimony from D.G. The impact of
the impeaching evidence on D.G.’s credibility as a witness was an issue for
the jury and does not constitute reversible error.

¶16 We have read and considered counsel’s brief and Butler’s
supplemental brief and fully reviewed the record for reversible error, see
Leon, 104 Ariz. at 300, and find none. All of the proceedings were conducted
in compliance with the Arizona Rules of Criminal Procedure. So far as the
record reveals, counsel represented Butler at all stages of the proceedings,
and the sentences imposed were within the statutory guidelines. We
decline to order further briefing and affirm Butler’s convictions and
sentences.

¶17 Upon the filing of this decision, defense counsel shall inform
Butler of the status of the appeal and of his future options. Counsel has no
further obligations unless, upon review, counsel finds an issue appropriate
for submission to the Arizona Supreme Court by petition for review. See
State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Butler shall have 30 days from
the date of this decision to proceed, if he desires, with a pro per motion for
reconsideration or petition for review.

CONCLUSION

¶18 For the foregoing reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

5