State v. Stuebe

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

JERRY L. STUEBE, Petitioner.

No. 1 CA-CR 24-0013 PRPC
FILED 10-17-2024

Appeal from the Superior Court in Maricopa County
No. CR2018-108628-002
The Honorable Dewain D. Fox, Judge

REVIEW GRANTED/RELIEF DENIED

COUNSEL

Michael J. Dew Attorney at Law, Phoenix
Counsel for Petitioner

Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Respondent

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.
 STATE v. STUEBE
Decision of the Court

M c M U R D I E, Judge:

¶1 Defendant Jerry Stuebe petitions this court to review the
summary dismissal of his post-conviction relief (“PCR”) petition filed
under Arizona Rule of Criminal Procedure (“Criminal Rule”) 32.1. His
petition asserted ineffective assistance of counsel (“IAC”) based on
counsel’s failure to request a mere presence instruction. We grant review
but deny relief because Stuebe failed to establish a constitutional violation
of counsel ineffectiveness as he failed to show prejudice for counsel’s
supposed failure.

FACTS AND PROCEDURAL BACKGROUND

¶2 A jury convicted Stuebe of burglary in the third degree and
possession of burglary tools based on these facts. Before dawn one morning
in February 2018, law enforcement responded to a 9-1-1 call from a security
company about a silent alarm at a mostly vacant commercial property
called Zanjero Falls West. State v. Stuebe, 249 Ariz. 127, 129, ¶ 2 (App. 2020),
depublished by 251 Ariz. 57 (2021). Triggered by a motion detector, a security
camera at the property recorded the burglary. Id. at 130, ¶ 6. A law
enforcement officer arrived at the parking lot and observed an SUV driving
into the lot. The officer then saw two individuals running toward the
arriving SUV. Id. at ¶ 2. The officer activated his emergency lights, and as a
man entered the rear driver’s side door, a large bag fell out of the vehicle.
The officer stopped the vehicle as the get-away driver started to drive it
away. Stuebe was the male passenger seated in the rear driver’s side of the
SUV.

¶3 The bag the officer saw fall out of the vehicle was heavy and
contained cut copper wire matching wire that was cut in the building. A
backpack full of tools was found in the vehicle at Stuebe’s feet. The officers
seized a two-way radio, bolt cutters, a hacksaw, a flashlight, and other
burglary tools.

¶4 At the end of the trial, the court instructed the jurors on
accomplice liability.

“Accomplice” means a person, who, with the intent to
promote or facilitate the commission of the offense, does any
of the following:

1. solicits or commands another person to commit the
offense; or

2
 STATE v. STUEBE
Decision of the Court

2. aids, counsels, agrees to aid, or attempts to aid
another person in planning or committing the
offense; or

3. provides means or opportunity to another person
to commit the offense.

A defendant is criminally accountable for the conduct
of another if the defendant is an accomplice of such other
person in the commission of the offense, including any
offense that is a natural and probable or reasonably
foreseeable consequence of the offense for which the person
was an accomplice.

Stuebe did not object to giving the accomplice instruction or request a
mere-presence instruction.1

¶5 Stuebe argued to the jurors that there was no evidence that he
was in the building or participated in cutting and removing the wire. As for
accomplice liability, Stuebe argued:

As [the prosecutor] did point out regarding accomplice
liability, you have to help somebody. But beyond that, you
have to know what you’re helping them with, that it’s actually
a crime. So I didn’t hear evidence to that fact. And if it existed,
they would have brought it out.

The jurors convicted Stuebe as charged. The jury also found that, as
aggravating factors, Stuebe committed the crimes for pecuniary gain,
involved the presence of an accomplice, caused damage sufficient to justify
the finding of an aggravating circumstance, and caused the victim

1 The Revised Arizona Jury Instruction Standard Criminal 43 (4th ed.
2018) mere-presence instruction provides:
Guilt cannot be established by the defendant's mere
presence at a crime scene, mere association with another
person at a crime scene or mere knowledge that a crime is
being committed. The fact that the defendant may have been
present, or knew that a crime was being committed, does not
in and of itself make the defendant guilty of the crime
charged. One who is merely present is a passive observer who
lacked criminal intent and did not participate in the crime.

3
 STATE v. STUEBE
Decision of the Court

emotional or financial harm. The superior court sentenced Stuebe as a
repetitive offender to concurrent sentences totaling 10 years’ imprisonment.
Stuebe appealed, and we affirmed his convictions and sentences. Stuebe, 249
Ariz. 127.

¶6 After the appeal, Stuebe petitioned for PCR. In the petition,
Stuebe claimed he was denied effective assistance of counsel because trial
counsel did not request a mere-presence instruction, which was his defense
at trial. See Ariz. R. Crim. P. 32.1(a) (constitutional violation). Stuebe
requested a new trial.

¶7 The State responded to the petition, partly arguing that the
counsel’s alleged deficient performance did not prejudice Stuebe.2 As for
prejudice, the court wrote:

2 The State also argued the ineffective assistance of counsel (“IAC”)
claim was precluded under Criminal Rule 32.2(a)(1)-(3). The State was
wrong. Criminal Rule 32.2(a) precludes claims that could have been raised
on direct appeal, were raised on direct appeal and resolved, or waived at
trial. An IAC claim cannot be raised at trial or on direct appeal. State ex rel.
Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20 (2007) (“We therefore hold,
consistent with [State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002)], that a defendant
may bring ineffective assistance of counsel claims only in a Rule 32
post-conviction proceeding—not before trial, at trial, or on direct review.”).
So Stuebe could only raise the IAC in the PCR proceedings.
We also note that the substance of the IAC claim, failure to give a
mere-presence instruction, would have been reviewed differently if it had
been raised on direct appeal. If the substance of the claim had been raised
on appeal, the failure to request a mere-presence instruction would have
led to the claim being reviewed for fundamental error. See State v. Crain, 250
Ariz. 387, 396-97, ¶ 33 (App. 2021). To succeed on fundamental error,
Stuebe would have had to show that the jurors “would have returned a
different verdict had the superior court provided a mere-presence
instruction.” Id. The fundamental error prejudice showing is greater than
the reasonable probability of a different result for an IAC claim. See
Strickland v. Washington, 466 U.S. 668, 690 (1984). We need not belabor the
point further as the superior court explained that its summary denial was
not based on preclusion, but lack of a valid IAC claim.

4
 STATE v. STUEBE
Decision of the Court

[B]efore the jury could convict Defendant of burglary in the
third degree, the jury instructions required the jury to find
that Defendant: “1. entered or remained unlawfully in or on a
nonresidential structure; and 2. did so with the intent to
commit any theft therein” . . . . As such, if the jury believed
Defendant’s story that he was a mere bystander or merely
along for the ride, by following the instructions, the jury
would have found Defendant not guilty--even without the
mere presence instruction. Accordingly, Defendant has not
met his burden as to the actual prejudice prong.

The superior court summarily denied the petition. See Ariz. R. Crim. P.
32.11(a) (If the court does not find a colorable claim for relief, it “must
summarily dismiss the petition.”).

¶8 Stuebe petitioned for review. We have jurisdiction under
Arizona Revised Statutes (“A.R.S.”) §§ 13-4031 and -4239 and Criminal Rule
32.16.

DISCUSSION

¶9 We review the superior court’s denial of PCR for an abuse of
discretion, State v. Macias, 249 Ariz. 335, 339, ¶ 8 (App. 2020), but review the
interpretation of the Criminal Rules de novo, State v. Mendoza, 248 Ariz. 6,
14–15, ¶ 12 (App. 2019). It is a defendant’s burden on review to show that
the superior court abused its discretion by denying the PCR petition. State
v. Reed, 252 Ariz. 236, 239, ¶ 6 (App. 2021). We review the court’s legal
conclusions de novo. State v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017).

¶10 The Supreme Court established a two-pronged test for IAC
claims in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under Strickland,
a court first determines “whether counsel’s representation ‘fell below an
objective standard of reasonableness.’” Hinton v. Alabama, 571 U.S. 263, 272
(2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 366 (2010)). This inquiry
focuses on the “practice and expectations of the legal community” and asks,
considering all the circumstances, whether counsel’s performance was
reasonable under prevailing professional norms. Id. at 273.

¶11 Next, a defendant must “show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Hinton, 571
U.S. at 275 (quoting Strickland, 466 U.S. at 694). But “[i]t is not enough for
the defendant to show that the errors had some conceivable effect on the

5
 STATE v. STUEBE
Decision of the Court

outcome of the proceeding” because then “[v]irtually every act or omission
of counsel would meet that test.” Strickland, 466 U.S. at 693.

¶12 Although a defendant must satisfy both prongs of the
Strickland test, we need not address both prongs “if the defendant makes an
insufficient showing on one.” Strickland, 466 U.S. at 697; Pandeli, 242 Ariz.
at 180–81, ¶¶ 5-6 (2017).

A. Stuebe Failed to Allege a Colorable Claim for Ineffective
Assistance of Counsel.

¶13 The parties and the court spilled much ink on whether State
v. Noriega, 187 Ariz. 282 (App. 1996), review dismissed 188 Ariz. 386 (1997),
established a per se rule of deficient performance if defense counsel fails to
request a mere-presence instruction when the evidence supports it. The
resolution of that position awaits another day because Stuebe failed to show
prejudice under Strickland.

¶14 “A party is entitled to an instruction on any theory of the case
reasonably supported by the evidence.” State v. Shumway, 137 Ariz. 585, 588
(1983). A court does not err by omitting a jury instruction if other
instructions adequately cover the substance of that instruction. State v. Mott, 187 Ariz. 536, 546 (1997). The test is whether the instructions, viewed in
their entirety, adequately set forth the law applicable to the case. State v.
Rosas-Hernandez, 202 Ariz. 212, 220, ¶¶ 31-34 (App. 2002); State v. Rodriguez, 192 Ariz. 58, 61-62, ¶ 16 (1998). To evaluate jury instructions in context, we
consider the facts, other instructions, and the closing arguments of counsel.
See State v. Bruggeman, 161 Ariz. 508, 510 (App. 1989); State v. Sulu-Kerr, 256
Ariz. 530, 538, ¶ 32 (App. 2024); State v. Tarr, 235 Ariz. 288, 293, ¶ 14 (App.
2014). We will not reverse a conviction unless the instructions, taken as a
whole, misled the jury. See State v. Kuhs, 223 Ariz. 376, 380, ¶ 37 (2010).

¶15 Stuebe relies heavily on Noriega, 187 Ariz. at 284, for the
argument that the instructions here misled the jury. The concern in Noriega
was that, without a mere-presence instruction, jurors might ascribe guilt
based on non-culpable conduct or infer the intent necessary to establish
accomplice liability from an individual’s mere presence at the scene.
Noriega, 187 Ariz. at 285–86. Given the facts, instructions, and arguments of
counsel in this case, we are not so concerned.

¶16 The State attempts to distinguish Noriega from this case by
claiming a distinction in how the cases were charged, claiming that Stuebe
was not charged as an accomplice. But that is a distinction without
difference. When A.R.S. §§ 13-301 and -303 are read together, an accomplice

6
 STATE v. STUEBE
Decision of the Court

may be the principal or an accessory to the crime. State v. McNair, 141 Ariz.
475, 480 (1984). In McNair, our supreme court cited the Kentucky Supreme
Court:

The words “accomplice,” “accessory,” and “aider and
abettor” are often used indiscriminately and interchangeably
by courts and textbook writers on criminal law. But an
“accomplice” may be one of the principal actors, or an aider
and abettor or an accessory before the fact. The word includes
in its meaning all persons who participate in the commission
of a crime, whether they so participate as principals, aider and
abettors, or accessories before the fact.

Id. at 480 (quoting Levering v. Commonwealth, 117 S.W. 253, 257 (Ky. 1909)).
Simply stated, “an accomplice is one who knowingly and with criminal
intent participates, associates, or concurs with another in the commission of
a crime.” Id. at 480 (quoting State v. Shields, 132 N.W.2d 384, 385 (S.D. 1965)).
The law does not distinguish between which co-defendants actively
committed an offense and who was an accomplice. Cline v. State, 21 Ariz.
554, 556 (1920). Here, the grand jury charged Stuebe and the co-defendant
for committing the crimes but listed the accomplice statutes for both.

¶17 The facts supported instructing the jurors on accomplice
liability. The evidence showed two individuals inside the parking garage.
The officer arrived and saw two men, Stuebe and the co-defendant, moving
toward the SUV, which had been moving before the two men appeared. As
they climbed into the SUV, the men tried to load their bounty into it. But
the officer saw a duffle bag drop from inside where Stuebe was positioned.
When the officer stopped the SUV, he noted the co-defendant and Stuebe
were the only two males in the vehicle. Officers later noted that the wire in
the duffle bag appeared to match that of freshly cut wire inside the
premises, and a bag of burglary tools was found at Stuebe’s feet.

¶18 Stuebe does not dispute that the court’s instructions correctly
informed the jurors about the elements of the charged offenses and the
liability ascribed to co-defendants as accomplices. The court’s instructions
correctly stated that to be an accomplice, the defendant had to act “with the
intent to promote or facilitate the commission of the offense.” The State and
Stuebe highlighted in their arguments that the actions had to be with the
intent to help in the commission of the offense. See supra ¶ 6.

¶19 We presume that jurors follow their instructions. Kuhs, 223
Ariz. at 387, ¶ 55. Given the facts of the case, the instructions, and counsel’s

7
 STATE v. STUEBE
Decision of the Court

arguments, the record does not rebut this presumption. See State v. Dalton, 241 Ariz. 182, 187, ¶ 20 (2016) (No indication in the record that jurors failed
to understand and comply with their instructions.), abrogated on other
grounds by State v. Escalante, 245 Ariz. 135, 140, ¶ 15 (2018); Bruggeman, 161
Ariz. at 510. The lack of a mere-presence instruction does not undermine
confidence in the verdict. Hinton, 571 U.S. at 275; Strickland, 466 U.S. at 694.
The superior court did not abuse its discretion by finding that Stuebe failed
to allege a colorable claim of prejudice for his IAC claim.

CONCLUSION

¶20 We grant review but deny relief.

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

8