State v. Groves

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IRVIN MATTHEW GROVES, Appellant.

No. 1 CA-CR 22-0384
FILED 4-11-2023

Appeal from the Superior Court in Coconino County
No. S0300CR202000695
The Honorable Stacy Lynn Krueger, Judge

AFFIRMED

COUNSEL

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

Coconino County Legal Defender’s Office, Flagstaff
By Joseph Adam Carver
Counsel for Appellant
 STATE v. GROVES
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Michael J. Brown joined.

P E R K I N S, Judge:

¶1 Irvin Matthew Groves appeals his convictions for possession
of dangerous drugs, a class 4 felony, and possession of drug paraphernalia,
a class 6 felony. Anders v. California, 386 U.S. 738 (1967). Groves’ counsel has
searched the record and found no arguable question of law that is not
frivolous. See Anders, 386 U.S. at 744; State v. Clark, 196 Ariz. 530, 537, ¶ 30
(App. 1999). Groves had the opportunity to file a supplemental brief and
did not.

¶2 Our obligation is to review the entire record for reversible
error, Clark, 196 Ariz. at 537, ¶ 30, viewing the evidence in the light most
favorable to sustaining the convictions and resolving all reasonable
inferences against Groves. State v. Guerra, 161 Ariz. 289, 293 (1989). After
reviewing the record, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶3 A “civil standby” generally involves the presence of law
enforcement to maintain peace when parties to a dispute are hostile toward
one another but must be at the same location, such as when one party is
lawfully retrieving personal property from the other party’s residence. In
August 2019, Groves was present with a party to a civil standby. At the civil
standby location, a police officer asked for Groves’ name and date of birth.
The officer discovered two outstanding arrest warrants for Groves and
arrested him. During a search incident to the arrest, an officer recovered a
butane lighter, a small glass pipe, and a plastic clamshell container
containing a crystallized substance. When the officer asked Groves if it was
methamphetamine, Groves responded "yeah, that would be a good guess."
Forensic testing later confirmed that the glass pipe and plastic clamshell
container each contained usable quantities of methamphetamine.

¶4 The State charged Groves with (1) possession of dangerous
drugs, a class 4 felony, and (2) possession of drug paraphernalia, a class 6

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Decision of the Court

felony. The state later amended the indictment, alleging four prior felonies
as the basis for sentencing enhancements and aggravating circumstances.

¶5 During voir dire, Groves challenged juror nine for cause
because her juror questionnaire stated that she trusted most law
enforcement officers to be truthful and accurate. When questioned, juror
nine confirmed that she could nonetheless be impartial. The court denied
Groves’ motion to strike juror nine during an unrecorded sidebar. The court
subsequently detailed the sidebar discussion on the record.

¶6 At trial, the arresting officer testified that Groves had a pipe,
lighter, and clamshell container. The forensic scientist who conducted the
lab tests identified the residue in the glass pipe and the crystalline substance
in the clamshell container as methamphetamine. Groves argued that
someone planted the drugs on him to steal his valuable miniature pigs.
Groves called his friend, to testify that shortly after Groves’ incarceration
pending trial on the drug charges at issue here, the miniature pigs went
missing from Groves’ home. Groves chose not to testify. The jury
unanimously found Groves guilty on both counts.

¶7 Before sentencing, the state offered to narrow the range of the
sentence to between 4.5 years and 7.5 years, in exchange for Groves
admitting to one prior historical felony conviction and waiving his right to
an appeal. Groves rejected the offer. The trial court allowed Groves to speak
at sentencing and he did so. The court sentenced Groves to concurrent
terms of 6.5 years for Count 1 and 2.5 years for Count 2, as category 3
repetitive offenses, with credit for 313 days of presentence incarceration.

DISCUSSION

¶8 Groves’ counsel identified several “potential errors” but
concluded that none amounted to reversible error. Specifically, counsel
noted (1) the court’s failure to strike juror nine for cause; (2) the court’s
failure to hold the challenge to juror nine colloquy on the record; (3)
references made in counsel’s opening statements and witness testimony to
unrelated warrants for Groves’ arrest; (4) references in witness testimony to
Groves’ incarceration at the time of trial; and (5) the prosecutor’s
misstatements of law related to witness credibility instructions.

¶9 If a defendant objects at trial and thereby preserves an issue
for appeal, we review for harmless error. State v. Henderson, 210 Ariz. 561,
567, ¶ 18 (2005). If the defendant fails to object to alleged trial error, the
fundamental error standard applies. Id. at ¶ 19.

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¶10 Groves objected to the court’s failure to strike juror nine.
When jurors unequivocally state that they can fairly evaluate the evidence,
follow a court’s instructions, and set aside any preconceived notions of
guilt, a trial court does not abuse its discretion by refusing to strike the
jurors for cause. State v. Cruz, 218 Ariz. 149, 158, ¶ 29 (2008). Juror nine met
these criteria. And no potential juror, including juror nine, raised any
concerns about his or her ability to appropriately weigh witness testimony.
The court did not err in keeping juror nine.

¶11 Groves did not object to any of the remaining issues counsel
identified. We must, therefore, first consider whether fundamental error
occurred. State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). An error is
fundamental if it (1) “went to the foundation of the case,” (2) “took from the
defendant a right essential to his defense, or (3) . . . was so egregious that he
could not possibly have received a fair trial.” Id. The first two types of error
require a separate showing of prejudice; the third is inherently prejudicial.
Id.

¶12 Taking the remaining “potential errors” in order, we consider
first the court’s failure to preserve the challenge to juror nine on the record.
Examinations of potential jurors as well as challenges to a potential juror
for cause must occur on the record. Ariz. R. Crim. P. 18.5(f), (h). While the
examination of the jurors occurred on the record here, Groves’ counsel
moved to strike juror nine for cause, and the court denied the request,
during an unrecorded sidebar. Although the objection and ruling were
initially made during the off-the-record sidebar, the court subsequently
recounted on the record that the defense moved “to strike [juror nine] for
cause, and the state objected, and the Court denied that request.” The court
then invited both counsel to provide any additional information regarding
the sidebar. In this light, any error regarding the initial sidebar discussion
was not sufficient to deny Groves a fair trial. And because the court did not
err in denying the motion to strike, supra ¶ 10, defendant was not
prejudiced by any error. See Escalante, 245 Ariz. at 142, ¶ 21.

¶13 Counsel next identified as potential error references during
the trial to Groves’ arrest on unrelated warrants and his incarcerated status.
Presumably counsel suggests the improper admission of other act evidence.
See Ariz. R. Evid. 404(b) (forbidding introduction of evidence of other
crimes to prove the character of a defendant is in conformity with the crime
alleged). But during closing argument, Groves' attorney used the warrants
to attempt to explain some of Groves' incriminating statements. Even if we
agreed that error occurred, at best we can infer only speculation as to the
prejudice here, given the overwhelming direct evidence of his guilt.

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“Speculative prejudice is insufficient under fundamental error review.”
State v. Martin, 225 Ariz. 162, 166, ¶ 15 (App. 2010); see also State v. Ramos, 235 Ariz. 230, 237, ¶ 20 (App. 2014) (finding that defendant had not met his
burden of establishing prejudice under fundamental error review in light
of overwhelming evidence).

¶14 Finally, the prosecution did not misstate the law of witness
credibility. The prosecution stated that Standard Criminal Jury Instruction
22 does not require the jury to “give every witness a level playing field”
because it “can take [the fact that the witness has been convicted of a felony]
into account as to whether or not you believe him.” The prosecution’s
description is consistent with Standard Criminal Jury Instruction 22.

¶15 Having reviewed the record, we conclude that none of the
potential errors constitutes reversible error.

¶16 The record reflects that all other proceedings were conducted
in compliance with the Arizona Rules of Criminal Procedure. See State v.
Gomez, 27 Ariz. App. 248, 251 (1976). Groves was present for all stages of
the proceeding. He was represented by counsel at all stages of the
proceeding. The record contains sufficient evidence for which the jury
could find, beyond a reasonable doubt, that Groves is guilty of possession
of dangerous drugs and possession of drug paraphernalia. At sentencing
Groves was allowed to speak, did so, and the court stated on the record that
it was a non-dangerous, repetitive offense as well as other factors
considered in determining the sentence. See Ariz. R. Crim. P. 26.9, 26.10. The
trial court delivered a sentence within the statutory limits. See A.R.S. §§
13-701, 13-703(C), 13-703(J), 13-708.

CONCLUSION

¶17 We have reviewed the entire record for arguable issues of law
and find none. We affirm Groves’ conviction and resulting sentence. State
v. Leon, 104 Ariz. 297, 300–01 (1969).

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Decision of the Court

¶18 Defense counsel’s obligations pertaining to Groves’
representation in this appeal have ended. Counsel must only inform Groves
of the outcome of this appeal and his future options, 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).

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

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