State v. Stevenson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROBERT E. STEVENSON, Appellant.

No. 1 CA-CR 24-0380
FILED 01-26-2026

Appeal from the Superior Court in Maricopa County
No. CR2020-134219-001
The Honorable Chuck Whitehead, Judge

CONVICTIONS AFFIRMED; REMANDED FOR RESENTENCING

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael J. Woodburn
Counsel for Appellee

The Susser Law Firm PLLC, Chandler
By Adam M. Susser
Counsel for Appellant
 STATE v. STEVENSON
Decision of the Court

MEMORANDUM DECISION

Presiding Judge David B. Gass delivered the decision of the court, in which
Judge Michael J. Brown and Judge Andrew J. Becke joined.

G A S S, Judge:

¶1 Counsel for Robert E. Stevenson filed this appeal in
accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Counsel certified he found no arguable, non-frivolous
question of law. See State v. Clark, 196 Ariz. 530, 537–38 ¶¶ 30–31 (App.
1999). Counsel asked the court to review the record for any arguable issues.
See Penson v. Ohio, 488 U.S. 75, 80 (1988); State v. Thompson, 229 Ariz. 43, 45
¶ 3 (App. 2012). The court allowed Stevenson to file a supplemental brief in
propria persona. He has not.

¶2 After an initial review of the record, the court asked for
supplemental briefing under Penson. The court sought briefing on whether
the superior court’s comments during Stevenson’s sentencing about
Stevenson’s failure to admit guilt and lack of remorse constitutes
fundamental, prejudicial error requiring remand for resentencing.

¶3 The court affirms Stevenson’s convictions, but vacates his
sentences and remands for resentencing.

FACTUAL AND PROCEDURAL HISTORY

¶4 The court views the facts in the light most favorable to
sustaining the jury verdicts, resolving all reasonable inferences against
Stevenson. State v. Felix, 237 Ariz. 280, 283 ¶ 2 (App. 2015).

¶5 The victim was waiting in her car for a friend. Stevenson, who
lived with the victim and also trafficked her, approached her car on his
bicycle. He reached through the victim’s rolled-down car window,
unlocked and opened the car door, and shoved the victim into the
passenger seat, got into the car, and drove to their residence.

¶6 Once inside the residence, Stevenson took the victim’s purse,
dumped its contents, and punched her in the face after a syringe fell out. As
the victim yelled, Stevenson dragged her by the hair into a soundproof
room. The victim told Stevenson she needed heroin because she felt sick,

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and he told her she would have to have sex with him first. Stevenson had
sex with the victim even though she did not consent. Stevenson then threw
the heroin in the victim’s face. The victim later persuaded Stevenson to give
her the car keys and let her leave, at which point the victim left in her car.

¶7 The victim called the police after she met with her father and
a friend. The police took the victim to a sexual assault victim center, then to
a hospital. At the hospital, a doctor diagnosed the victim with multiple
facial fractures requiring surgery. The victim stayed in the hospital for 2
days.

¶8 The State charged Stevenson with kidnapping, a class 2 felony
under A.R.S. § 13-1304; sexual assault, a class 2 felony under A.R.S. § 13-
1306; and aggravated assault, a class 4 felony under A.R.S. § 13-1204. After
the superior court empaneled 14 jurors (12 with 2 alternates), it held a 5-day
trial.

¶9 At the close of the State’s case-in-chief, Stevenson did not
move for a judgment of acquittal under Rule 20, Arizona Rules of Criminal
Procedure. Stevenson testified in his own defense. He denied trafficking the
victim, making her drive off with him, punching her, stopping her from
leaving the house, and forcing her to have sex with him. The jury found
Stevenson guilty on all 3 counts and found each count was a domestic
violence offense.

¶10 The superior court then conducted the aggravation phase.
After multiple admonitions, the court removed Stevenson from the
courtroom during that phase because of his outbursts denying the offenses.
See State v. Delvecchio, 110 Ariz. 396, 401 (1974) (recognizing a disruptive
defendant may lose the right to be present at trial if the defendant continues
the disruption after being warned the disruption may result in the
defendant’s removal from the courtroom); see also Illinois v. Allen, 397 U.S.
337, 343 (1970) (recognizing the same as Delvecchio). The superior court later
gave Stevenson a chance to return, but he declined. The jury found 5
aggravating circumstances: (1) the offense occurred while the defendant
was on felony probation under A.R.S. § 13-708.A; (2) the offense caused
emotional harm to the victim under A.R.S. § 13-701.D.9; (3) the defendant
was convicted of a felony offense within the 10 years immediately
preceding the current charges under A.R.S. § 13-701.D.11; (4) the defendant
did not seek help for the victim under State v. Jenkins, 193 Ariz. 115, 122 ¶ 27
(App. 1998); and (5) there was a need to protect future victims from the
defendant under State v. McCuin, 167 Ariz. 447, 453 (App. 1991).

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¶11 The superior court held a separate trial on whether Stevenson
had prior felony convictions, after which it found Stevenson was a category
3 repetitive offender. Stevenson addressed the superior court as part of the
sentencing hearing. Consistent with his extensive comments, Stevenson
ended by saying, “I did not do nothing to her, period. I wouldn’t do it.”

¶12 For the kidnapping conviction, the superior court sentenced
Stevenson to a maximum term of 28 years in prison with 1,075 days of
presentence incarceration credit. See A.R.S. § 13-703.J. For the sexual assault
conviction, the superior court sentenced him to a maximum term of 28 years
in prison with 1,075 days of presentence incarceration credit. See id. For the
aggravated assault conviction, the superior court sentenced Stevenson to a
maximum term of 12 years in prison with no presentence incarceration
credit. See id. The court ordered Stevenson to serve the 28-year kidnapping
and 28-year sexual assault sentences concurrently and the 12-year
aggravated assault sentence consecutive to the others. The superior court
then said:

The Court does find that the reason for the consecutive
sentence is because of the separate harm to the victim—
because of the separate harm to the victim. The Court also
notes that Mr. Stevenson is expressing no remorse for his
actions and is accepting no responsibility for the charges in
this case.

Stevenson’s counsel did not object, but Stevenson responded by protesting
his innocence: “Because I didn’t do it.”

¶13 The court has jurisdiction over Stevenson’s timely appeal
under Article VI, Section 9, of the Arizona Constitution, and A.R.S. §§ 13-
4031 and -4033.A.1.

DISCUSSION

¶14 Because Stevenson did not object at sentencing, the court
reviews the superior court’s comments about Stevenson’s failure to admit
guilt and lack of remorse for fundamental, prejudicial error. State v.
Escalante, 245 Ariz. 135, 140 ¶ 12 (2018). When reviewing a sentence for
fundamental error, the court first determines whether the superior court
erred. State v. Melendez, 259 Ariz. 282, 288 ¶ 16 (2025). If error occurred, the
court must “evaluate whether the error was fundamental and prejudicial.”
Id. To show fundamental error, Stevenson must establish an error (1) going
to the foundation of his case, (2) depriving him of a right essential to his
defense, or (3) of such magnitude he could not possibly have received a fair

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trial. See Escalante, 245 Ariz. at 142 ¶ 21. To prove prejudice, Stevenson must
show “that without the error, a reasonable jury could have plausibly and
intelligently returned a different verdict.” See id. at 144 ¶ 31. If Stevenson
proves both fundamental error and prejudice, then the court must grant a
new sentencing. See Melendez, 259 Ariz. at 288 ¶ 16.

I. It was fundamental prejudicial error to tie Stevenson’s professed
innocence and failure to show remorse to Stevenson’s maximum,
consecutive sentences.

¶15 Under the facts here, the superior court’s mention of
Stevenson’s lack of remorse and failure to take responsibility constitutes
fundamental error. The superior court tied Stevenson’s lack of remorse and
failure to take responsibility for the harm to the victim when it explained
its sentencing. See State v. Trujillo, 227 Ariz. 314, 318 ¶ 15 (App. 2011). “A
defendant is guilty when convicted and if he chooses not to publicly admit
his guilt, that is irrelevant to a sentencing determination.” State v. Carriger, 143 Ariz. 142, 162 (1984). For that reason, when “sentencing a defendant, a
court may not consider his or her lack of remorse or failure to admit guilt.”
Trujillo, 227 Ariz. at 318 ¶ 14.

¶16 In his opening Penson brief, Stevenson argues he was
prejudiced because the superior court erred when it discussed Stevenson’s
lack of remorse and failure to take responsibility after Stevenson addressed
the court and proclaimed his innocence. The State argues the superior
court’s reason for imposing a consecutive sentence was the separate harm
to the victim. That is true as to one reason, but the superior court added
remorse and responsibility into the mix as other reasons.

¶17 The State argues the superior court would have imposed a
consecutive sentence even absent Stevenson’s professed innocence and lack
of remorse. See State v. Hardwick, 183 Ariz. 649, 656–57 (App. 1995) (quoting
State v. Ojeda, 159 Ariz. 560, 562 (1989)). That may be true, but that is not
what the superior court said. The only way to know what sentences the
superior court would have imposed is to remand for sentencing.

¶18 The State also argues Stevenson failed to show the superior
court’s comments prejudiced him, saying Stevenson merely speculates the
superior court might have imposed a more lenient sentence. See State v.
Dickinson, 233 Ariz. 527, 531 ¶ 13 (App. 2013). But that is the standard
Stevenson must meet. Stevenson need not show the superior court would
have imposed a more lenient sentence. Instead, Stevenson “must
demonstrate that absent the error the court could have reasonably imposed

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a lighter sentence.” State v. Alston, 1 CA-CR 23-0511, __ Ariz. __, __ ¶ 24,
2025 WL 2950592, at *6 (App. 2025) (citing Trujillo, 227 Ariz. at 318 ¶ 15).

¶19 The superior court explicitly referred to Stevenson expressing
no remorse and taking no responsibility just after saying it imposed the
consecutive sentences for the aggravated assault conviction “because of the
separate harm to the victim.” And the superior court tied the consecutive
sentence both to the harm to the victim and to Stevenson’s professed
innocence and lack of remorse when, in the next sentence, it said, “The court
also notes that Mr. Stevenson is expressing no remorse for his actions and
is accepting no responsibility for the charges in this case.” (emphasis
added).

¶20 On this record, Stevenson has shown the superior court
“could have reasonably imposed a lighter sentence.” See id. (citing Trujillo,
227 Ariz. at 318 ¶ 15). Stevenson established prejudice because there is no
way to determine from the record whether the superior court would have
imposed the same sentences if it had not tied Stevenson’s lack of remorse
and failure to take responsibility to the harm to the victim. See id. at 319 ¶ 21
(recognizing a reasonable likelihood the superior court could have imposed
more favorable sentences if it had not considered the defendant’s lack of
remorse and failure to take responsibility).

II. Beyond the sentencing issue, the court read and considered
counsel’s brief, and fully reviewed the record for arguable, non-
frivolous error, and identified no such error.

¶21 All proceedings complied with the Arizona Rules of Criminal
Procedure. The superior court properly empaneled 12 jurors and 2
alternates. See A.R.S. § 21-102.A. The record shows no evidence of jury
misconduct. The court properly instructed the jury on the elements of the
charged offenses, the State’s burden of proof, and Stevenson’s presumed
innocence. Stevenson was present and represented by counsel at all stages
of the proceedings, other than when the superior court ordered him
removed for being disruptive as discussed in paragraph 10. See Delvecchio,
110 Ariz. at 401. The superior court held appropriate pretrial hearings, and
the evidence presented at trial and summarized above was sufficient to
support the jury’s unanimous verdict.

CONCLUSION

¶22 The court thus affirms Stevenson’s convictions but vacates his
sentences and remands for resentencing.

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 STATE v. STEVENSON
Decision of the Court

¶23 As to the convictions, defense counsel has no further
obligations unless counsel finds an issue that may be appropriately
submitted to the Arizona Supreme Court by petition for review. See State v.
Shattuck, 140 Ariz. 582, 584–85 (1984).

¶24 The court, of its own accord, grants Stevenson 30 days from
the date of this decision to file an in propria persona motion for
reconsideration. But see Ariz. R. Crim. P. 31.20 (allowing 15 days to file a
motion for reconsideration). Stevenson has 30 days from the date of this
decision to proceed, if he wishes, with an in propria persona petition for
review, or if Stevenson files a timely in propria persona motion for
reconsideration, he has 15 days after the motion is decided. See Ariz. R.
Crim. P. 31.21.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JT

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