State v. Axton

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ANTHONY SCOTT AXTON, Appellant.

No. 1 CA-CR 19-0634
FILED 12-22-2020

Appeal from the Superior Court in Mohave County
No. S8015CR201801106
The Honorable Douglas R. Camacho, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee

By Harriette P. Levitt
Counsel for Appellant
 STATE v. AXTON
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Jennifer B. Campbell and Vice Chief Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 Anthony Scott Axton appeals his convictions and sentences
for one count each of armed robbery, aggravated robbery, kidnapping,
misconduct involving body armor, three counts of aggravated assault, and
two counts of attempted first-degree murder. For the following reasons, we
affirm.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 On July 1, 2018, Axton and an accomplice entered a Dollar
General in Kingman, Arizona. Armed and wearing masks, they held an
employee and bystander at gunpoint. They ordered the manager to open
the store’s safe, and the manager placed money from the safe’s cash
drawers inside a duffle bag. Axton and his accomplice left the store but
encountered police officers before they could drive away. Axton began
firing his rifle at the police from behind his truck. After intense gunfire,
Axton fled on foot but was eventually arrested by the police. Police
discovered he was wearing body armor and found a second rifle,
ammunition, zip ties, duct tape, and headcovers inside his truck.

¶3 The State charged Axton with: (1) armed robbery, a class 2
felony; (2) aggravated robbery, a class 3 felony; (3) three counts of
aggravated assault, two class 2 felonies and one class 3 felony; (4) two
counts of attempted first-degree murder, both class 2 felonies;
(5) kidnapping, a class 4 felony; (6) attempted kidnapping, a class 5 felony;
and (7) misconduct involving body armor, a class 4 felony. The State alleged
all offenses were dangerous under A.R.S. § 13-704. It further alleged the
aggravating factors of an accomplice’s presence, the expectation of

1 We view the facts in the light most favorable to upholding the verdict
and resolve all reasonable inferences against the defendant. State
v. Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).

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pecuniary gain, emotional harm, and the wearing of equipment meant to
minimize the risk of injury from a deadly weapon.

¶4 Over sixty exhibits were admitted into evidence at trial,
including photographs of Axton’s body armor. Officer Brennan Cassidy
testified that he took the body-armor pictures. Cassidy explained how each
photo displayed a different body armor component, and all were admitted
without objection. Similarly, Detective David Kinion photographed
Axton’s duffle bag and its contents, including the duct tape. Without
objection, Kinion testified and described where he found the items and how
he photographed them.

¶5 Before deliberations, two jurors were selected as alternates
and excused. During deliberations, the jury informed the court that one of
the jurors said he had previously seen Axton “in town as a crossdresser.”
The information was provided to the court by juror G.M. Upon receiving
the note, the court paused the deliberations to interview the jurors
individually. K.A. was identified as the juror who had previously seen
Axton, and the other jurors confirmed K.A. had referred to Axton as a
“crossdresser.”

¶6 When questioned by the court, K.A. said that he had seen
Axton once or twice before but only recognized him after seeing his driver’s
license. K.A. told the court that when he saw Axton previously, he
“oftentimes had what looked like breasts and wore female clothing.” K.A.
stated he did not directly interact with Axton and had only seen him in
passing. The court asked K.A. if he held any bias against Axton or men who
wear women’s clothing, or if the recognition would affect his deliberations.
K.A. answered that it would not affect his decision-making and mentioned
the cross-dressing merely because it was unusual and out-of-place.
However, after the court questioned K.A., another juror reported that K.A.
had made disparaging comments and believed that K.A. could not remain
impartial.

¶7 During the court’s questioning, it came to light that an
argument occurred between K.A. and G.M. over whether to inform the
court that K.A. recognized Axton. Several jury members were frustrated by
G.M.’s insistence on providing the information to the court. G.M. was the
only juror who believed it was a problem the court needed to consider.
When asked by the court about their frustrations, several jurors expressed
that they were irritated because of the deliberations’ delay.

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¶8 One juror believed that G.M. could not remain impartial and
told the court that G.M. had stated: “crossdressers or transgenders should
not be allowed in society.” No other juror reported hearing this comment,
although a different juror told the court that they also believed G.M. could
no longer be fair. Several jurors said that G.M. appeared either “distressed,”
“taken aback,” or “shocked” when she learned Axton might have worn
women’s clothing. When asked their opinions about G.M.’s reaction, two
jurors believed she only reacted because she was unfamiliar with the term
cross-dressing and was surprised by it. One of those jurors believed G.M.’s
reaction stemmed from a concern for the deliberations’ fairness. After
interviewing every juror, the court did not recall G.M. for further
clarification. Because G.M. was interviewed first, the court did not have the
opportunity to inquire about her alleged statement or reactions.

¶9 When the court individually questioned each juror, all 12 told
the court that they were not personally biased or otherwise influenced by
the possibility that Axton cross-dressed. Apart from the two jurors who
expressed concerns about K.A.’s and G.M.’s fairness, the other jurors
believed everyone could remain fair and unbiased.

¶10 After approximately half of the jurors were questioned by the
court, Axton’s counsel requested that both K.A. and G.M. be struck from
the jury and replaced with the alternates. Axton’s counsel stated he was
more concerned about K.A. than G.M. but requested G.M. be removed after
hearing her alleged statements. In the alternative, Axton’s counsel
requested a mistrial. Over the objections of the State, the Court struck K.A.
from the jury.

¶11 After the juror questioning concluded, Axton’s counsel again
requested that G.M. be struck from the jury but stated he was “not
necessarily inclined to request a mistrial at this point as long as [K.A.] is
struck.” The court said it wished to conduct some research on the issue and
recessed without ruling. After the break, the court did not further address
Axton’s request to strike G.M. See State v. Hill, 174 Ariz. 313, 323 (1993)
(When a court fails to rule on a motion, the appellate court deems it
denied.); State v. Mendoza-Tapia, 229 Ariz. 224, 231, ¶ 22 (App. 2012).

¶12 The court gave the parties a proposed reconstitution
instruction for the jury. The instructions concerned only removing a single
juror, K.A., and Axton’s counsel did not object to the instruction.

¶13 The jury returned a guilty verdict on all counts, except for
Count 8, the charge of attempted kidnapping. The jury further found that

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the aggravating circumstances alleged by the State were proven beyond a
reasonable doubt. After a sentencing hearing, the court sentenced Axton to
concurrent and consecutive terms of imprisonment totaling 63 years’
imprisonment, with 494 days’ presentence incarceration credit.

¶14 Axton appealed, and we have jurisdiction under A.R.S.
§§ 12-120.21(A)(1), 13-4031, and -4033(A)(1). Axton’s appellate counsel filed
a brief per Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104
Ariz. 297 (1969), certifying that, after a diligent search of the record, she
found no arguable question of law that was not frivolous. Counsel asked
this court to search the record for arguable issues. See Penson v. Ohio, 488
U.S. 75, 83 (1988); State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). Axton
filed a pro se supplemental brief. In his supplemental brief, Axton argued:
(1) the court improperly admitted photographic evidence of the body
armor and duct tape, (2) the jury was prejudiced against him, and
(3) multiple witnesses for the state improperly used notes during oral
testimony or testified falsely. After reviewing the record, we issued a Penson
order requesting the parties to address whether the superior court violated
Axton’s right to an impartial jury or abused its discretion by declining to
either further question or strike juror G.M. from the jury.

DISCUSSION

A. The Superior Court Did Not Err by Admitting Photographs of
Axton’s Body Armor and Duct Tape in Place of the Items.

¶15 Axton does not challenge the photographs’ admission but
instead argues that because the actual body armor and duct tape were not
admitted into evidence, the jury “decided on fact[s] not admitted into
evidence.” However, Arizona courts regularly rely on photographs of items
in place of the items. See State v. Bouillon, 112 Ariz. 238, 240-41 (1975); State
v. Raffaele, 113 Ariz. 259, 262 (1976); State v. Rose, 121 Ariz. 131, 141 (1978).
So long as the proponent complies with the Arizona Rules of Evidence, a
court may properly rely on photographic evidence. See Bouillon, 112 Ariz.
at 241.

¶16 In this case, the photographs were admitted correctly under
Arizona Rule of Evidence 901(b)(1), which allows for identifying evidence
through witness testimony. State v. Haight-Gyuro, 218 Ariz. 356, 358, ¶ 9
(App. 2008). Officer Cassidy testified that he took the body-armor
photographs and explained how each photo identified a different
component, thus satisfying Rule 901(b)(1). Similarly, Officer Kinion
identified the pictures as those he took of the duct tape found in Axton’s

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truck. The photos of the body armor and duct tape were admitted correctly
in the items’ place.

B. The Superior Court Did Not Abuse Its Discretion or Violate
Axton’s Right to An Impartial Jury by Declining to Strike Juror
G.M.

¶17 The parties dispute what the proper standard of review is in
this appeal. The State argues fundamental-error review is appropriate
because Axton’s trial counsel did not renew his motion to strike juror G.M.
after the court returned from the recess. However, before the break, counsel
twice moved to strike G.M. from the jury, thereby preserving the issue for
review. See State v. Totress, 107 Ariz. 18, 20 (1971). While counsel “may not
sit back and allow error to occur when a prompt objection might have
allowed the court to cure the problem,” that is not what happened here.
State v. Lichon, 163 Ariz. 186, 189 (App. 1989).

¶18 Counsel first asked the court to remove G.M. immediately
after the alleged statement was reported, and then again after the court
finished questioning the jurors. Although counsel equivocated on the
request for a mistrial, the two requests to strike G.M. were explicit and not
withdrawn. Thus, the objection to G.M.’s presence on the jury was “brought
to the attention of the trial court in a manner sufficient to advise the court
that the error was not waived.” State v. Lujan, 136 Ariz. 326, 328 (1983)
(quoting State v. Briggs, 112 Ariz. 379, 382 (1975)). While it is true that
counsel did not make a third request to strike G.M. after the recess and after
hearing the proposed jury instruction, making the request twice was
sufficient to make his objection clear and preserved for review. State v.
Henderson, 210 Ariz. 561, 567, ¶ 18 (2005). Nevertheless, we hold the court
did not abuse its discretion by refusing to strike or failing to question G.M.
further for the reasons set forth below.

¶19 “Under the Sixth and Fourteenth Amendment to the United
States Constitution, a criminal defendant is entitled to an impartial jury.”
State v. Velazquez, 216 Ariz. 300, 306, ¶ 14 (2007) (citing Witherspoon v.
Illinois, 391 U.S. 510, 518 (1968)). “Even a single partial juror violates a
defendant’s constitutional right to a fair trial.” State v. Macias, 249 Ariz. 335,
339, ¶ 10 (App. 2020) United States v. Angulo, 4 F.3d 843, 848 (9th Cir. 1993)).
“The determination of whether to excuse a juror for cause is within the
sound discretion of the trial court and should not be disturbed on appeal
absent a clear showing of abuse.” State v. Cocio, 147 Ariz. 277, 279–80 (1985),
abrogated on other grounds by State v. Nissley, 241 Ariz. 327, 330, ¶ 11 (2017).

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¶20 To establish an abuse of discretion, a defendant must show
that the juror was biased such that he or she could not render a fair or
impartial verdict. Ariz. R. Crim. P. 18.4(b); Cocio, 147 Ariz. at 280. However,
if a juror assures the court that they can be fair and impartial, the juror need
not be removed. State v. Purcell, 199 Ariz. 319, 323, ¶ 8 (App. 2001). Because
the superior court can observe a juror, it is in the best position to determine
whether those assurances are credible. Id. at ¶ 9.

¶21 The threshold issue in deciding whether a court must excuse
a juror is not whether that juror personally holds prejudicial views. Instead,
it is whether that juror can set aside those views and render an impartial
verdict. See, e.g., State v. Munson, 129 Ariz. 441, 442–44 (App. 1981)
(declining to excuse prospective jurors who expressed racial bias but
assured the court they could set that bias aside); State v. Rose, 121 Ariz. 131,
139 (1978) (declining to excuse a prospective juror who was a victim of
kidnapping, when the juror assured the court he could set his experience
aside to sit on a separate kidnapping case); Cocio, 147 Ariz. at 279–80
(declining to excuse a juror from a drunk driving manslaughter case,
despite the juror’s strong personal feelings about drinking and driving).
Thus, even if a juror holds strong personal opinions, the court may allow
the juror to remain, provided the court is convinced the juror will remain
impartial.

¶22 When interviewed by the superior court, G.M. decisively and
repeatedly stated the possibility that Axton cross-dressed would not affect
her in any way. Moreover, G.M. herself reported K.A.’s recognition of
Axton to the court over other jurors’ objections. Despite the pressure from
jurors to merely proceed with the deliberations, her insistence on informing
the court could reasonably support its conclusion that G.M. would be
impartial and committed to ensuring the deliberations remained fair. Only
one juror reported hearing G.M.’s alleged statement regarding
crossdressers. Although an additional juror was concerned about G.M.’s
ability to remain fair, that juror’s statements arose from the jury’s internal
disagreement regarding whether to report K.A.’s comment, rather than any
prejudice held against Axton. The remaining jurors did not express concern
about G.M.’s ability to be impartial.

¶23 The only evidence that G.M. held a prejudice against Axton
comes from one juror’s statement, which the superior court weighed
against G.M.’s statements. The court’s conclusion that G.M. could remain
fair and unbiased was supported by sufficient evidence to fall within the
court’s discretion.

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¶24 The court’s conclusion is likewise supported by statements
from Axton’s counsel, who stated, “obviously I’m more concerned about
[K.A.] than [G.M.].” Although Axton’s counsel still requested G.M. be
struck after hearing the alleged comment, he was not wholly convinced she
held actual bias or prejudice against Axton. Trial counsel believed that the
real issue regarding G.M. was that she “wanted to make sure that this was
brought to the court’s attention [rather] than necessarily something against
my client.” Thus, while counsel ultimately did move to remove G.M., his
argument was equivocal and overshadowed by concerns about K.A.

¶25 The subsidiary issue is whether the jurors were contaminated
by outside information about Axton’s personal life, irrelevant to the State’s
charges. When irrelevant information is brought to the jurors’ attention, a
court’s response should be tailored to the severity of the threat posed. State
v. Miller, 178 Ariz. 555, 557 (1994). In Miller, our supreme court concluded
the superior court erred when it failed to question the jury after one juror
received a note from an excused alternate juror which read either “He’s
guilty” or “My vote is guilty.” Id. The court reasoned, “the possibility of
improper influence certainly warranted investigation.” Id. There, the
superior court failed to investigate and did not inquire whether any jurors
were improperly influenced. Id.

¶26 But this case is not Miller. Here, the superior court
interviewed each juror personally to explore the possibility of bias or
impartiality. Each juror attested that they could remain fair and impartial
despite the alleged cross-dressing. G.M. personally testified that she could
remain fair and impartial throughout the deliberations. Although the court
did not recall G.M. for questioning after learning about her alleged
statement, the court continued to interview the remaining jurors, none of
whom reported hearing the comment. The court conducted a reasonably
thorough investigation that was commensurate with the threat of possible
juror bias.

¶27 In his Penson brief, Axton cites Pena-Rodriguez v. Colorado, in
which a juror made several prejudicial comments against Mexicans,
including: “I think he did it because he’s Mexican and Mexican men take
whatever they want.” 137 S. Ct. 855, 862 (2017). The jury convicted the
defendant, and the trial court declined to order a new trial. Id. The Supreme
Court concluded the juror’s specific reliance on racial bias violated the
defendant’s right to an impartial jury and reversed. Id. at 870–71.

¶28 But Pena-Rodriquez is distinguishable from this case for
several reasons. First, the statements in Pena-Rodriguez were revealed only

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after the conclusion of the trial, and the court did not question the jurors
regarding their ability to remain impartial. Id. at 862. In this case, the
superior court questioned all jurors, including G.M. Second, two jurors in
Pena-Rodriguez submitted affidavits that described at least five specific
biased statements by the problematic juror. Id. In contrast, only one juror
alleged that G.M. had made a single biased statement. Finally, the juror at
issue in Pena-Rodriguez allegedly made five discriminatory statements and
stated that he believed the defendant was guilty precisely because of the
defendant’s race, clearly demonstrating he could not set aside his biases. Id.
There is no evidence here that G.M. relied on prejudice in voting to convict
Axton, and she clearly stated she could decide the case impartially.
Accordingly, the superior court did not abuse its discretion by allowing
G.M. to remain on the jury.

C. The Testimony Given by the State’s Witnesses Was Admitted
Without Error.

¶29 “Whether to preclude or limit a witness’s testimony lies
within the discretion of the trial court.” State v. Moody, 208 Ariz. 424, 457,
¶ 135 (2004). When a witness’s memory fails, Rule 612 permits the use of
writing to refresh his or her memory while testifying. Ariz. R. Evid. 612.
The court does not err by allowing a witness to read a document to
themselves to answer a question posed during testimony. See State v. Inman,
2 CA-CR 2017-0199, 2018 WL 2276996, at *1, ¶ 5 (Ariz. App. May 18, 2018)
(mem. decision).

¶30 In his supplemental brief, Axton argues that all the State’s
witnesses were given scripts or notes, and seven of those witnesses
improperly relied on those scripts or notes. Axton alleges that these
witnesses either “[got] caught reading from scripts/notes/reports” or
“[got] told to read from scripts/notes/reports.” However, during the
interactions that Axton cites, the record shows that the witnesses merely
refreshed their memory by referring to documents when they were
otherwise unable to recall a relevant fact. On several occasions, Axton’s
counsel interjected to request a witness refrain from reading directly from
the documents and limiting their review to refresh their recollection. Aside
from these requests to restrict consideration of documents to refresh a
recollection, counsel offered no objections to the use of notes or reports.
Because the witnesses’ use of documents was limited to refreshing their
memories, the superior court did not err by allowing the testimony.

¶31 Additionally, Axton argues that witness A.N. testified falsely
at trial. He argues that security footage admitted at trial contradicts her

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testimony. However, the finder-of-fact, not the appellate court, weighs the
evidence and determines the witnesses’ credibility. State v. Cid, 181 Ariz.
496, 500 (App. 1995); see also State v. Ortega, 220 Ariz. 320, 330, ¶ 34 (App.
2008). The jury was presented with A.N.’s testimony and the security
footage, and Axton’s counsel had the opportunity to address any alleged
inconsistencies. How much weight to give to A.N.’s testimony or whether
it was credible are questions for the jury, and we will not reweigh the
evidence on appeal.

CONCLUSION

¶32 We affirm Axton’s convictions and sentences.

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

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