State v. Bogan

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CARL LEON BOGAN, Appellant.

No. 1 CA-CR 20-0274
FILED 2-11-2021

Appeal from the Superior Court in Maricopa County
No. CR 2018-147461-001
The Honorable Marvin L. Davis, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Robert W. Doyle
Counsel for Appellant
 STATE v. BOGAN
Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge David D. Weinzweig joined.

B R O W N, Judge:

¶1 Carl Leon Bogan appeals his conviction and sentence for theft
of means of transportation. Bogan argues the superior court erred when it
admitted speculative testimony over his objection. Because the error was
harmless, we affirm.

BACKGROUND

¶2 M.D. was driving her daughter’s Ford Expedition
(“Expedition”) when she ran over a concrete barrier and got stuck next to
the light rail track. Bogan did not know M.D., but after noticing the
dilemma he helped her maneuver the Expedition off the track. M.D. was
on her way to a doctor’s appointment and Bogan offered to accompany her
to the appointment. Bogan went into the doctor’s office with M.D. and
hugged her before she was summoned to see the doctor.

¶3 A short time later M.D. looked in her purse and noticed her
keys were missing. When she could not find Bogan, she realized the
Expedition was missing as well. In her 911 call, M.D. gave a description of
Bogan and reported the Expedition had been stolen.

¶4 M.D.’s daughter had installed a tracker on the Expedition,
which allowed the police to locate it quickly in the parking lot of an
apartment complex. Bogan and another male were sitting inside the
Expedition as officers watched it for over 15 minutes before arresting
Bogan. During a recorded police interview, Bogan initially claimed he did
not know whose car he was sitting in but that he took the bus there and
spent the night with a lady who lives in the apartment complex. He claimed
that “OG” told him to get into the Expedition and left right before the police
officers arrested him. Bogan also said “I made a mistake . . . y’all got me .
. . it’s just done . . . it’s over.” Later in the interview, Bogan claimed he
borrowed the car from M.D. to get it fixed, but never told her, adding he
needed to apologize.

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 STATE v. BOGAN
Decision of the Court

¶5 Detective Pocknell, who interviewed Bogan, testified at trial.
In the interview, which was played for the jury, Bogan said he needed to
apologize to M.D. for taking the Expedition to get it fixed without asking.
Bogan testified that he was not honest with the police officers because M.D.
asked him to get her marijuana and he did not want to get her in trouble.
He also said she gave him the keys and told him to get the Expedition fixed.

¶6 The jury found Bogan guilty of theft of means of
transportation, and the superior court sentenced him to 11.25 years. Bogan
timely appealed.

DISCUSSION

¶7 When a proper objection is made at trial, we consider the
alleged error under the harmless error standard. State v. Henderson, 210
Ariz. 561, 567, ¶ 18 (2005). “Error, be it constitutional or otherwise, is
harmless if we can say, beyond a reasonable doubt, that the error did not
contribute to or affect the verdict.” State v. Anthony, 218 Ariz. 439, 446, ¶ 39
(2008) (citation and internal quotation marks omitted). “The State has the
burden of convincing us that any error was harmless.” Id.

¶8 Bogan argues the superior court should have sustained his
objection to Pocknell’s testimony because it was speculative. The relevant
exchange occurred during direct examination at trial:

[Prosecutor]: Is it common based on your experience for
people in these interviews to express that they want to
apologize to whoever they may have offended during this --
the course of events?

[Pocknell]: Some interviews, yes.

[Prosecutor]: And what does that mean to you?

[Pocknell]: Usually that they did something wrong and
they’re trying to make it better or they’re trying to --

[Defense Counsel]: Objection, speculation, your Honor,
foundation, relevance as to this case.

[The Court]: Objection overruled. He can talk about what he
believed it meant to him.

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 STATE v. BOGAN
Decision of the Court

[Pocknell]: In my experience, people usually want to try to
make some type of amends and show that they’re sorry for
what they did.

¶9 The State concedes error based on relevance, but contends the
error was harmless. We agree.

¶10 Although the superior court should have sustained Bogan’s
objection to Pocknell’s irrelevant testimony, nothing in the record reveals
his brief comments about apologies affected the outcome of the case.
Pocknell spoke generally about why people may apologize and whether
they commonly apologize in police interviews. His testimony tracked the
other evidence presented, including Bogan’s own words during the police
interview and Bogan’s trial testimony that he wanted to apologize for
missing a phone call from M.D. It was for the jury to decide what he was
apologizing for, which was something Pocknell did not opine about. Nor
did Pocknell offer an opinion on the credibility of any witness. See State v.
Schroeder, 167 Ariz. 47, 49 (App. 1990) (explaining that witness credibility is
an issue the jury decides). Because the State has met its burden of showing
the error did not affect or contribute to the jury’s determination, the error
was harmless.

CONCLUSION

¶11 We affirm Bogan’s conviction and sentence.

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

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