State v. Rockward

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ANDRE TERRELL ROCKWARD, Appellant.

No. 1 CA-CR 18-0476
FILED 6-13-2019

Appeal from the Superior Court in Maricopa County
No. CR2015-131927-001
The Honorable Teresa A. Sanders, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Scott L. Boncoskey
Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge James P. Beene joined.
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Decision of the Court

W E I N Z W E I G, Judge:

¶1 Andre Rockward appeals his convictions and sentences for
two counts of forgery, a class 4 felony, and one count of theft, a class 1
misdemeanor. After searching the record and finding no arguable, non-
frivolous question of law, Rockward’s counsel filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), asking this court to search the record for fundamental error.
Rockward had the opportunity to file a supplemental brief, but did not. He
did, however, ask his counsel to list six issues in the Anders brief and we
address them. After reviewing the record, we affirm Rockward’s
convictions and sentences.

FACTS AND PROCEDURAL BACKGROUND

¶2 Rockward purchased an Xbox One console, several games
and accessories from A.L. with counterfeit bills. Rockward learned about
the sale on Craigslist and expressed interest to A.L. under the false name
“Mike.” After communicating by phone and text, A.L. and Rockward
agreed to meet and complete the deal for a lower purchase price ($540
instead of $550) because Rockward only had $20 bills and could not get to
the bank. Rockward had used “two or three” different phone numbers.

¶3 A.L. and his girlfriend, K.S., met Rockward in a Walmart
parking lot. Rockward looked at the merchandise and put it in his car. He
then removed and counted 27 twenty-dollar bills from a bank envelope,
returned the bills to the envelope and handed the envelope to A.L. A.L.’s
girlfriend watched from the car and “thought it was weird” how Rockward
counted the money and had it in a bank envelope after earlier complaining
he could not get to the bank. As a precaution, she photographed
Rockward’s license plate.

¶4 After leaving the parking lot, A.L.’s girlfriend examined the
bills and concluded they were fake based on look and feel. She and A.L.
contacted the police, and an investigation ensued.

¶5 Phoenix police officers met with A.L. and K.S. that same day
and confirmed the bills were counterfeit. They gathered some general
information and then ran the license plate number on Rockward’s vehicle
using the photograph taken by K.S., which showed Rockward as the
registered owner. The next day, A.L. and K.S. separately identified
Rockward as the suspect from a photo lineup.

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¶6 A few days later, officers went to the address where
Rockward resided and knocked on the door. A woman answered. She
initially denied but eventually acknowledged Rockward was inside the
house and then allowed the officers in to make the arrest. The officers
found Rockward in a back bedroom “with an Xbox controller in his hand.”
They arrested him without incident and put him in the patrol car. After
being read his Miranda 1 rights, Rockward admitted he had used counterfeit
bills to purchase the Xbox and knew the bills were counterfeit. He said he
was “having a hard time trying to find a job,” that he was “the only one
[who] worked in his family and that he came into the fake currency, which
he paid some bills with” and had used to get the Xbox. Rockward offered
“to work with detectives and the Secret Service if it would help reduce his
jail time.”

¶7 Meanwhile, officers searched the house and found the Xbox
One console, games and equipment. The serial number on the console
matched the one A.L. had provided, and A.L. recognized the other
equipment and games recovered by the officers. Officers also gained access
to Rockward’s vehicle, the same one he had driven to meet A.L. They found
more counterfeit money in the driver’s side compartment and door panel
of the car and impounded it.

¶8 The State charged Rockward with two counts of forgery, a
class 4 felony, and one count of theft, a class 1 misdemeanor. After a three-
day trial, which Rockward did not attend, the jury found Rockward guilty
as charged. The court found clear and convincing evidence of four prior
felony convictions and sentenced Rockward to two minimum, concurrent
terms of eight years’ imprisonment on the forgery counts and a terminal
disposition on the misdemeanor theft count.

¶9 Rockward 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, -4033(A)(1).

DISCUSSION

A. Issues Raised

¶10 Rockward asked his counsel to list six issues in the Anders
brief, which he did. No argument or authorities are presented. Although
this failure “usually constitutes abandonment and waiver of [his claims],”

1 Miranda v. Arizona, 384 U.S. 436 (1966).

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State v. Carver, 160 Ariz. 167, 175 (1989), we still address the issues raised in
our discretion.

1. Rockward’s Voluntary Absence

¶11 The court did not err by allowing the trial to proceed in
absentia based on Rockward’s failure to appear. “[A] defendant’s voluntary
absence waives the right to be present at any proceeding,” including trial,
and “[t]he court may infer that a defendant’s absence is voluntary if the
defendant had actual notice of the date and time of the proceeding, notice
of the right to be present, and notice that the proceeding would go forward
in the defendant’s absence.” Ariz. R. Crim. P. 9.1. Rockward failed to
appear for his trial. His counsel avowed he received adequate notice, and
the court relied on those statements to find his absence was voluntary.

2. Rockward’s Statements to Police

¶12 We find no error in the superior court’s denial of Rockward’s
motion in limine to preclude his offer to help law enforcement in exchange
for reduced jail time under Arizona Rule of Evidence 408.

¶13 Rule 408 does not apply. Rule 408 precludes evidence of
statements “made during compromise negotiations” when offered “to
prove or disprove the validity or amount of a disputed claim or to impeach
by a prior inconsistent statement or a contradiction.” Ariz. R. Evid.
408(a)(2). Rockward’s statement was not made in a “compromise
negotiation” as contemplated by this rule. Nor was it made in an actual
plea discussion, triggering the protection of Arizona Rule of Evidence
410(a)(4). State v. Gill, 242 Ariz. 1, 4, ¶ 12 (2017) (“A plea discussion entails
the prosecutor and defendant negotiating whether the defendant will plead
guilty or no contest to a criminal offense in exchange for some concession
by the prosecutor on any aspect of the disposition of the case.”).

3. Judicial Bias Allegations

¶14 We reject Rockward’s argument of judicial bias. State v.
Myers, 117Ariz. 79, 86 (1977) (“Bias and prejudice means a hostile feeling or
spirit of ill-will, or undue friendship or favoritism, towards one of the
litigants.”). “[T]he bias and prejudice necessary to disqualify a judge must
arise from an extra-judicial source and not from what the judge has done in
his participation in the case.” State v. Emanuel, 159 Ariz. 464, 469 (App. 1989)
(quotation omitted). As such, “opinions formed by the judge on the basis
of facts introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a basis for a bias or

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partiality motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible.” Liteky v. United
States, 510 U.S. 540, 555 (1994). Rockward points to no such statements here.

4. Sufficiency of Evidence

¶15 As described above, the jury had sufficient evidence for its
verdicts. A.R.S. § 13-2002(A)(2) (“A person commits forgery if, with intent
to defraud, the person . . . [k]nowingly possesses a forged instrument . . .
.”); A.R.S. § 13-1802(A)(3) (“A person commits theft if, without lawful
authority, the person knowingly . . . [o]btains services or property of
another by means of any material misrepresentation with intent to deprive
the other person of such property or services . . . .”).

5. Prosecutorial Misconduct

¶16 There was no prosecutorial misconduct. “To prevail on a
claim of prosecutorial misconduct, a defendant must demonstrate that the
prosecutor’s misconduct so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” State v. Hughes, 193 Ariz. 72,
79, ¶ 26 (1998) (quotation omitted). The conduct must be “so pronounced
and persistent that it permeates the entire atmosphere of the trial.” Id.
(quotation omitted). In making this assessment, we consider the
“cumulative effect” of any misconduct on the trial as a whole. Id.

¶17 Rockward only points to two statements made in closing and
rebuttal argument to support his prosecutorial misconduct claim: (1) the
prosecutor’s description of Rockward’s conduct as to Count 1 as “a pretty
decent crime and plan as far as crimes go”; and (2) the prosecutor’s
statement that defense counsel was “grasp[ing] at straws” by challenging
the credibility of the State’s witnesses. Rockward has not explained how
these statements constitute misconduct, let alone how their cumulative
effect rendered the whole trial unfair. The alleged misconduct falls well
below the threshold for reversing the convictions, especially given the
overwhelming evidence of guilt, which included Rockward’s own
admission to police.

6. Evidence of Prior Felony Convictions

¶18 The State presented sufficient evidence to establish
Rockward’s prior felony convictions. In particular, the State offered into
evidence certified copies of the “pen packs” of four felony convictions
which each include the full name, date of birth and fingerprints of “Andre
Terrell Rockward.” It also admitted a certified copy of a 10-print fingerprint

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card, completed before trial in this case, which likewise includes the full
name, date of birth and fingerprints of Rockward (as well his photograph
and physical description). A forensic scientist compared the fingerprints
from the pen packs and the 10-print card and testified that they matched.
The court thus found “more than an adequate basis” that Rockward was
the person identified in the four prior felony convictions.

¶19 Rockward submits the evidence was insufficient because
there was no direct witness testimony establishing that the pen pack
fingerprints were taken from Rockward in connection with the prior
convictions. But such evidence was not required because Rockward was
positively identified through testimony here.

B. Fundamental Error Review

¶20 We have read and considered counsel’s brief and have
reviewed the record for reversible error. See Leon, 104 Ariz. at 300. We find
none. Rockward was present and represented by counsel at all stages of
the proceedings against him, except when Rockward waived his right to be
present through his voluntary absence. Ariz. R. Crim. P. 9.1. The record
reflects the superior court afforded Rockward all his constitutional and
statutory rights, and the proceedings were conducted in accordance with
the Arizona Rules of Criminal Procedure. The court conducted appropriate
pretrial hearings, and the evidence presented at trial and summarized
above was sufficient to support the jury’s verdicts. Rockward’s sentences
fall within the lawful range, with sufficient credit given for presentence
incarceration.

CONCLUSION

¶21 Rockward’s convictions and sentences are affirmed.
Counsel’s obligations in this appeal will end upon informing Rockward of
the outcome and his future options, unless 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). On the court’s
own motion, Rockward has 30 days from the date of this decision to
proceed with a pro se motion for reconsideration or petition for review.

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