State v. Wilkins

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CODY JAMES WILKINS, Appellant.

No. 1 CA-CR 21-0311
FILED 1-11-2022

Appeal from the Superior Court in Yavapai County
No. P1300CR201901290
The Honorable Krista M. Carman, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Deborah Celeste Kinney
Counsel for Appellee

Law Office of Nicole Countryman, Phoenix
By Nicole Countryman
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Michael J. Brown joined.

C R U Z, Judge:

¶1 Cody James Wilkins appeals his conviction and sentence for
one count of organized retail theft. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 One morning in October 2019, a couple shopping at a mall in
Prescott observed Wilkins and two women quickly grabbing items from
shelves at a Victoria’s Secret store and putting them in a bag. They reported
their observations to a store employee and mall security. The couple left
the mall and went to a nearby strip mall. There, they observed Wilkins and
the two women park and exit a red pickup truck. The couple called the
police and alerted nearby stores.

¶3 That same morning, a Dillard’s employee at the mall observed
two women and two men, Wilkins and Robert Soper, acting suspiciously.
Wilkins was wearing a brown designer backpack that he had not purchased
and was subsequently determined to be Dillard’s merchandise. Later,
police found the brown backpack and two perfume bottles in the pickup.
One of the women had a pink designer backpack when she was
apprehended. The backpacks were missing from Dillard’s inventory and
the perfume bottles were missing from Dillard’s perfume counter.

¶4 After being notified about the suspected shoplifters, the
manager of ULTA watched the store’s surveillance video footage and
observed Soper and the two women. The women each took an ULTA
shopping bag. All three wore backpacks. Soper brought something to the
women and then left the store. Shortly thereafter, one of the women put a
perfume bottle in her bra and the other put a perfume bottle in her pants
and they left the store. The manager later identified two recovered perfume
bottles and three cologne bottles as ULTA merchandise.

¶5 A cashier at Dick’s Sporting Goods was also warned about the
four individuals. When they entered the store, she started watching them,
and observed all of them checking merchandise for security sensors. The

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cashier saw Wilkins enter the area of the store where knives and memory
cards were displayed, but the area was not in her line of sight and she did
not see him remove anything from the area. The cashier unlocked two
fitting rooms for the four, and when they left she checked the rooms and
found clothing, tags, and a security sensor. Police observed one of the
women carrying the brown designer backpack when she left the store. The
cashier later identified clothing, a knife, and a memory card found in the
pickup as Dick’s Sporting Goods merchandise.

¶6 A police officer responding to the strip mall saw the red
pickup parked near Dick’s Sporting Goods. When the pickup started
moving, he followed it. He activated his lights but the pickup, driven by
Wilkins, did not pull over. The pickup stopped to let one of the women out
but took off again. Another officer was able to stop the pickup and police
arrested Wilkins and the two women. They took Soper into custody several
days later. The pickup was “chock-full” of items including clothing,
hangers, cosmetics, lingerie, shoes, and backpacks.

¶7 A grand jury indicted Wilkins on one count of organized
retail theft, a class 4 felony. After a jury trial, Wilkins was convicted as
charged. The superior court sentenced Wilkins to 5.5 years in prison.
Wilkins timely appealed, and we have jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, -4033(A).

DISCUSSION

I. Rule 20 Motion

¶8 Wilkins argues his conviction should be vacated because the
superior court erred by denying his Rule 20 motion. See Ariz. R. Crim. P.
20(a)(1) (“After the close of evidence on either side, and on motion or on its
own, the court must enter a judgment of acquittal on any offense charged
in an indictment, information, or complaint if there is no substantial
evidence to support a conviction.”). According to Wilkins, the organized
retail theft charge failed because there was no evidence that he or the people
he was with “used an artifice, instrument, container, device or other article
to remove merchandise from any of the stores.” See A.R.S. § 13-1819(A)(2)
(“A person commits organized retail theft if the person acting alone or in
conjunction with another person . . . [u]ses an artifice, instrument, container,
device or other article to facilitate the removal of merchandise from a retail
establishment without paying the purchase price.”).

¶9 We review the denial of a Rule 20 motion de novo. State v.
West, 226 Ariz. 559, 562, ¶ 15 (2011). Substantial evidence is “proof that

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‘reasonable persons could accept as adequate and sufficient to support a
conclusion of defendant’s guilt beyond a reasonable doubt.’” Id. at ¶ 16
(citation omitted). “When reasonable minds may differ on inferences
drawn from the facts, the case must be submitted to the jury, and the trial
judge has no discretion to enter a judgment of acquittal.” State v. Lee, 189
Ariz. 590, 603 (1997). We view the facts in the light most favorable to
sustaining the verdict, and resolve all conflicts in the evidence against the
defendant. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013); State v. Bustamante, 229 Ariz. 256, 258, ¶ 5 (App. 2012). “[I]n reviewing the sufficiency of the
evidence, we do not distinguish circumstantial from direct evidence.” State
v. Borquez, 232 Ariz. 484, 487, ¶ 11 (App. 2013).

¶10 Here, substantial evidence supports the jury’s verdict. The
State provided testimony that Wilkins and his accomplices used bags and
backpacks to remove store merchandise without paying for it. Wilkins and
his female accomplices placed Victoria’s Secret merchandise into a store bag
to facilitate its removal from the store. Wilkins and the women, joined by
Soper, then went to Dillard’s where Wilkins was observed wearing a stolen
backpack and acting suspiciously. An additional designer backpack and
two perfume bottles were missing from Dillard’s and recovered by police.

¶11 Wilkins and his accomplices then went to a strip mall where
the women were observed on video surveillance at ULTA wearing
backpacks, carrying store bags, and putting perfume bottles into their
clothing before leaving the store. The four then went into Dick’s Sporting
Goods wearing backpacks, where all four were observed checking
merchandise for sensors. The four also went into dressing rooms and left
without buying anything. Dick’s Sporting Goods merchandise was found
in the pickup and one of the backpacks. When the group was finished at
the strip mall, Wilkins drove the pickup full of stolen merchandise with the
two women as passengers and was detained before getting away. Viewing
the evidence in the light most favorable to sustaining the verdict, a rational
trier of fact could find that Wilkins acted in conjunction with the two
women and Soper to commit organized retail theft.

¶12 Wilkins argues that police found none of the merchandise in
a container and found no store bags in the truck. As noted above, however,
some of the merchandise was found in the brown designer backpack.
Section 13-1819(A)(2) required the State to prove that “an artifice,
instrument, container, device or other article” was used to facilitate the
removal of the merchandise. Moreover, the State was not required to prove
that the merchandise was still located in the container used to facilitate the
theft.

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¶13 Because substantial evidence reasonably supported a
conclusion that Wilkins committed organized retail theft, the superior court
properly denied Wilkins’ Rule 20 motion.

II. Duplicitous Charge & Unanimous Verdict

¶14 Wilkins next argues his right to a unanimous verdict was
violated because the charge against him was duplicitous and the superior
court failed to provide interrogatories on the verdict form to ensure the
verdict was unanimous.

¶15 “[A] duplicitous indictment charges two or more separate
offenses within a single count.” State v. Paredes-Solano, 223 Ariz. 284, 288,
¶ 9 (App. 2009). “[A] duplicitous charge creates the danger that the jury
will not return a unanimous verdict . . . .” State v. Davis, 206 Ariz. 377, 390,
¶ 65 (2003). Objections to an indictment must be raised at least twenty days
before trial, and the failure to timely object forfeits the objection absent
fundamental error. Paredes-Solano, 223 Ariz. at 287, ¶ 7 (noting that pretrial
objections to an indictment are required “in order to allow correction of any
alleged defects before trial begins,” and that a timely objection could result
in “a new indictment charging multiple counts, thus exposing a defendant
to multiple penalties”) (citation omitted); Ariz. R. Crim. P. 13.5(d), 16.1(b).
Article 2, Section 23 of the Arizona Constitution guarantees criminal
defendants the right to a unanimous verdict in a criminal case, and a
violation of that right constitutes fundamental error. Davis, 206 Ariz. at 390,
¶ 64.

¶16 Because Wilkins did not object to the indictment or the verdict
form in the superior court, he has the burden of establishing that
fundamental, prejudicial error occurred. Id. at ¶ 62; State v. Escalante, 245
Ariz. 135, 142, ¶ 21 (2018). “A defendant establishes fundamental error by
showing that (1) the error went to the foundation of the case, (2) the error
took from the defendant a right essential to his defense, or (3) the error was
so egregious that he could not possibly have received a fair trial.” Escalante,
245 Ariz. at 142, ¶ 21.

¶17 Here, the indictment charged Wilkins with one count of
organized retail theft, alleging that on or about October 17, 2019, Wilkins:

acting alone or in conjunction with another person, did use an
artifice, instrument, container, device or other article to
facilitate the removal of merchandise from Dick’s Sporting
Goods, Dillard’s, ULTA, and/or Victoria’s Secret, a retail
establishment, without paying the purchase price, in violation

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of A.R.S. § 13-1801, 13-1819(A)(2), 13-701, 13-702, and 13-801,
a class 4 Felony.

¶18 “When the indictment is merely duplicitous . . . the trial court
may cure the error by instructing the jurors that they must unanimously
agree regarding which offense was committed or that the defendant
committed both (or all) of the offenses.” State v. Petrak, 198 Ariz. 260, 268,
¶ 28 (App. 2000). See also State v. Kelly, 149 Ariz. 115, 117 (App. 1986) (Error
resulting from a duplicitous indictment could be cured with an instruction
informing jurors they must unanimously find beyond a reasonable doubt
which (or both) of two acts the defendant committed).

¶19 In its final jury instructions, the superior court instructed the
jurors on multiple acts:

The defendant is accused of having committed the crime of
Organized Retail Theft. The prosecution has introduced
evidence for the purpose of showing that there is more than
one act upon which a conviction on Organized Retail Theft
may be based. Defendant may be found guilty if the proof
shows beyond a reasonable doubt that he committed any one
or more of the acts. However, in order to return a verdict of
guilty, all jurors must agree that he committed the same act or
acts. It is not necessary that the particular act agreed upon be
stated in your verdict.

The court further instructed the jurors:

All eight of you must agree on each verdict. You must be
unanimous. Once all eight agree on a verdict, only the
Foreperson need sign the verdict form on the line marked
“Foreperson.”

The jury’s verdict form, signed by the foreperson, indicates the jury found
Wilkins guilty of organized retail theft committed on October 17, 2019, and
that the verdict was unanimous.

¶20 We will presume the jury followed the court’s instructions.
State v. Prince, 226 Ariz. 516, 537, ¶ 80 (2011). Nothing in the record
indicates the jurors were confused or failed to follow the court’s instruction
that they must unanimously agree upon which act or acts Wilkins
committed. Wilkins has therefore failed to establish that fundamental,
prejudicial error occurred.

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III. Jury Instruction for Lesser Included Offense of Shoplifting

¶21 Finally, Wilkins argues his due process rights were violated
because the superior court did not sua sponte instruct the jury on the lesser
included offense of shoplifting. See State v. Cope, 241 Ariz. 323, 325, ¶ 6
(App. 2016) (shoplifting under § 13-1805(A)(1) is a lesser included offense
of organized retail theft under § 13-1819(A)(2)). Because Wilkins did not
request a lesser included instruction at trial, he has waived the issue absent
fundamental error. See State v. Tschilar, 200 Ariz. 427, 437, ¶ 39 (App. 2001).

¶22 “In general the trial judge should withhold charging on lesser
included offense[s] unless one of the parties requests it, since that charge is
not inevitably required in our trials, but is an issue best resolved, in our
adversary system, by permitting counsel to decide on tactics.” State v.
Gipson, 229 Ariz. 484, 487, ¶ 15 (2012) (citations and internal quotation
marks omitted). See also State v. Vanderlinden, 111 Ariz. 378, 379-80 (1975)
(declining to extend requirement that the superior court sua sponte instruct
on a lesser included offense to cases involving crimes other than homicide).
Wilkins has shown no error, fundamental or otherwise. And even if the
superior court erred by failing to sua sponte give a shoplifting instruction,
which was inconsistent with Wilkins’ defense that he was merely present
and did not commit a crime, Wilkins has not established fundamental,
prejudicial error. See Escalante, 245 Ariz. at 142, ¶ 21; State v. Whittle, 156
Ariz. 405, 407 (1988) (failure to give unrequested instructions on other
possible lesser included offenses was not an interference with the
defendant’s theory of the case or a denial of any right essential to his
defense).

CONCLUSION

¶23 For the foregoing reasons, we affirm Wilkins’ conviction and
sentence.

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

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