State v. Earl

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DION LEE EARL, Petitioner.

No. 1 CA-CR 25-0145 PRPC
FILED 07-31-2025

Appeal from the Superior Court in Maricopa County
No. CR2017-149648-001
The Honorable Suzanne E. Cohen, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Jason B. Easterday
Counsel for Respondent

DeBrigida Law Offices, PLLC, Glendale
By Ronald M. DeBrigida Jr.
Counsel for Petitioner
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Decision of the Court

MEMORANDUM DECISION

Chief Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Angela K. Paton and Judge Daniel J. Kiley joined.

H O W E, Judge:

¶1 Dion Lee Earl petitions this Court for review from the
superior court’s dismissal of his petition for post-conviction relief. We grant
review but deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2017, a grand jury indicted Earl on two counts of
kidnapping and one count each of sexual assault, sexual abuse, public
sexual indecency, and assault. These charges stemmed from incidents
connected to two victims. Before trial, the State moved to allow testimony
from five individuals unrelated to the victims as other relevant acts under
Arizona Rule of Evidence 404. The State first claimed that the other acts
evidence was admissible under subsection (b) of the rule because they
would show a “clear pattern” of Earl’s behaviors going to his intent, motive,
and absence of mistake. See Ariz. R. Evid. 404(b)(2). Further the State argued
that the other acts evidence was admissible under subsection (c) “to show
that [Earl] has a character trait that gives rise to aberrant sexual propensity.”
See Ariz. R. Evid. 404(c). Earl responded that the evidence would be more
prejudicial than probative and that the State’s evidence was not sufficient
to be admissible under subsection (c). The court held an evidentiary hearing
and reviewed several video files of interviews from the potential witnesses.
After consideration, the court held that the testimony of three individuals
was admissible but that the testimony of two individuals was not.

¶3 After trial, the jury convicted Earl of two counts of
kidnapping and one count each of sexual assault, sexual abuse, public
sexual indecency, and assault. See State v. Earl, 1 CA-CR 19-0592, 2021 WL
164911, at *1 ¶ 1 (Ariz. App. Jan. 19, 2021) (mem. decision). Earl appealed,
arguing, among other claims that (1) “the trial court erred by finding that
the other act evidence was admissible because his right to confront the three
other act victims was violated, as none of them were present at the
evidentiary hearing” and (2) “the trial court erred by finding that he had
committed the other acts by clear and convincing evidence.” Id. at *3 ¶¶ 17,

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19. Because Earl failed to object to the other acts evidence at trial, this Court
reviewed these issues for fundamental error and found that the superior
court did not err. Id. at 3–4 ¶¶ 17–18, 20, 22. Thus, this Court affirmed his
convictions on direct appeal. Id. at *5 ¶ 29.

¶4 Earl petitioned for post-conviction relief under Arizona Rule
of Criminal Procedure (“Rule”) 32 arguing that his trial counsel was
ineffective. He argued that “the level of ineffective assistance of counsel
demonstrated” was sufficient even “without a showing of prejudice” and
that counsel’s ineffectiveness had a cumulative effect, ultimately violating
his due process rights. Earl claimed that trial counsel was ineffective for (1)
“Not Obtaining the Various Items of Digital Evidence that Would Have
Impacted the Credibility of the Alleged Victims,” (2) “Failing to Conduct
Pretrial Investigation and Interviews of the Alleged Victims and the Rule
404 Witnesses, and for Failing to Object to the Use of Their Recorded
Statements at the Evidentiary Hearing,” and (3) “Failing to Request a Willits
Instruction.” He also argued that the court erred in its decision to admit
other acts evidence.

¶5 The superior court dismissed his petition, finding that Earl
did not show deficient performance, that even if counsel erred, any error
was harmless, and that “nothing trial counsel did or did not do caused any
prejudice” to Earl. The court concluded that he failed to allege sufficient
facts to establish a colorable claim. Further, the court found that Earl’s
argument that the court erred in admitting other acts evidence was “fully
addressed and dismissed in his [direct] appeal” and thus precluded from
relief in his post-conviction proceeding.

¶6 Earl petitioned this Court for review of the superior court’s
ruling and we have jurisdiction under Article 6, Section 9 of the Arizona
Constitution, A.R.S. § 13-4239(C), and Rule 32.16.

DISCUSSION

¶7 Earl now argues that his trial counsel was ineffective in:

1) not obtaining valuable digital evidence of the interactions
between Earl and the complaining witnesses; 2) failing to
conduct pretrial investigation and interviews of witnesses
valuable to the issue of the credibility of the State’s witnesses;
3) failing to object to request a Willits instruction regarding
mishandled evidence; and that the cumulative effect of acts of
ineffective assistance amounts to a due process violation.

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He also argues that the court abused its discretion in finding his claim
related to other acts evidence precluded and thus not colorable.

¶8 To state a colorable claim of ineffective assistance of counsel
Earl must prove that his counsel’s performance was both deficient and
prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984). “Failure to
satisfy either prong of the Strickland test is fatal to an ineffective assistance
of counsel claim.” State v. Bennett, 213 Ariz. 562, 567 ¶ 21 (2006).

¶9 Regarding deficiency, a “strong presumption” exists that
“counsel’s conduct falls within the wide range of reasonable professional
assistance” and thus “[j]udicial scrutiny of counsel’s performance must be
highly deferential.” Strickland, 466 U.S. at 689. The defendant must provide
evidence that counsel’s conduct “fell below an objective standard of
reasonableness.” Id. at 687–88. Simply disagreeing with counsel’s trial
strategy is insufficient. See State v. Pandeli, 242 Ariz. 175, 181 ¶ 8 (2017). Even
if counsel’s performance were deficient, Earl must also show prejudice. See
Bennett, 213 Ariz. at 567 ¶ 21. To do so, he must provide evidence showing
a reasonable probability that counsel’s deficient performance affected the
case’s outcome. See State v. Rosario, 195 Ariz. 264, 268 ¶ 23 (App. 1999).
Conclusory allegations and speculation are insufficient to state a colorable
claim of prejudice. See State v. Leyva, 241 Ariz. 521, 528 ¶ 22 (App. 2017);
State v. Donald, 198 Ariz. 406, 414 ¶ 21 (App. 2000).

¶10 First, Earl claims that defense counsel should have collected
certain pieces of digital evidence, including recordings from his home
security system and messages between himself and the victims. He argues
that this evidence “would have most certainly cast serious doubts on the
truthfulness of [the victim’s] statements to the police, as well as their
testimony at trial.” Despite this conclusory statement, he fails to elucidate
how this potential evidence would do so. See Donald, 198 Ariz. at 414 ¶ 21
(“To mandate an evidentiary hearing, [a] defendant’s challenge must
consist of more than conclusory assertions.”). Assuming his claim is true,
he must still show a reasonable probability that the result would have been
different but for counsel’s failure to collect the digital evidence. Bennet, 213
Ariz. at 568 ¶ 25. Several messages between Earl and the victim were
discussed at trial, including one where a victim replied “LOL. Okay.” to
Earl’s request for a massage. Then, during cross-examination, defense
counsel asked the victim “you had agreed LOL okay” and “LOL okay
means yes; right.” The victim denied that “LOL okay” meant that she
agreed to massage Earl. Despite counsel’s efforts, these messages and
testimony did not lead to Earl’s acquittal. Earl fails to explain how
additional messages or security footage would have changed the outcome.

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See Rosario, 195 Ariz. at 268 ¶ 23. A defendant must prove a “demonstrable
reality” of counsel’s ineffectiveness rather than mere speculation. State v.
Tison, 129 Ariz. 546, 556 (1981). Because he does not clarify how the digital
evidence would have “cast serious doubts” on the victim’s credibility, Earl
fails to establish a reasonable probability of prejudice, Rosario, 195 Ariz. at
268 ¶ 23, and therefore the superior court did not err.

¶11 Earl next argues that counsel failed to investigate and
interview witnesses, specifically “the State’s Rule 404 witnesses.” He makes
the conclusory statement that his “counsel could have and should have
conducted interviews of these and any related witnesses” because “counsel
must . . . conduct whatever pretrial investigation he deems necessary to
ensure that all available defenses are raised.” But conclusory statements are
not sufficient proof, see Donald, 198 Ariz. at 414 ¶ 21, and Earl fails to
“overcome the presumption” that his counsel’s decision was “sound trial
strategy,” Pandeli, 242 Ariz. at 181 ¶ 7 (citation omitted). He argues that
“had [his] defense team investigated the background of Victim B, they
would have determined that she had been cited for Shoplifting” and that
conviction “may have been fair game for impeachment on cross-
examination.” (Emphasis added.) Earl does not prove that this evidence
would have been admissible for impeachment purposes, nor that, if
admitted, it would have damaged the witness’s credibility sufficiently to
change the outcome. See State v. Herrera, 183 Ariz. 642, 647 (App. 1995) (A
colorable claim is “one which, if true, might have changed the outcome.”
(cleaned up)). And Earl’s counsel had access to interviews—prepared for
the evidentiary hearing—with several witnesses including “Victim B.” Earl
proves neither that his counsel’s conduct was not sound trial strategy nor
that it “fell below an objective standard of reasonableness.” Strickland, 466
U.S. at 687–89.

¶12 Earl also argues that his counsel was ineffective for failing to
object to the “use of [the witness’s] recorded statements at the evidentiary
hearing” as “inadmissible hearsay and a violation of the Confrontation
Clause.” But, as the superior court noted, “the rules of evidence do not
restrict the types of evidence a court may consider” in determining whether
a witness is qualified to testify at trial under Arizona Rule of Evidence 404.
State v. James, 242 Ariz. 126, 132 ¶ 21 (App. 2017). The court could consider
hearsay at the evidentiary hearing and any objection to the contrary would
have been in vain. And this Court considered Earl’s Confrontation Clause
argument on direct appeal. See Earl, 1 CA-CR 19-0592, at *3 ¶ 18 (finding
that because Earl “cross-examined all three other act victims at trial, his
right to confront the other act victims at the pretrial hearing was not

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violated”). He fails to present a colorable claim of ineffective assistance of
counsel on this issue.

¶13 Earl also argues that his counsel was ineffective for failing to
request a Willits instruction. See State v. Willits, 96 Ariz. 184, 191 (1964).
Under Willits, “if the state fails to preserve evidence that is potentially
exonerating, the accused might be entitled to an instruction informing the
jury that it may draw an adverse inference from the state’s action.” State v.
Glissendorf, 235 Ariz. 147, 149 ¶ 1 (2014). Earl argues that “the State did not
take steps to secure important evidence and negligently caused it to be lost”
regarding messages on the victim’s cell phones. He bases this claim on the
defense expert’s trial testimony that some information was missing from
the victim’s cell phones. But he does not elaborate on why he believes that
the missing data would tend to exonerate him. See id. at 150 ¶ 9 (holding
that a defendant “must do more than simply speculate about how the
evidence might have been helpful” and must show “a real likelihood that
the evidence would have had evidentiary value”). Earl fails to show how
the data would have evidentiary value or how a Willits instruction would
alter the outcome. See Herrera, 183 Ariz. at 647. Thus, he fails to establish a
colorable claim.

¶14 Finally, Earl argues “that the cumulative effect of acts of
ineffective assistance amounts to a due process violation.” “This Court has
not recognized the cumulative error doctrine for [ineffective assistance of
counsel] claims.” Pandeli, 242 Ariz. at 191 ¶ 69. And regardless whether the
cumulative error doctrine applies here, we do not find his claims of
ineffective assistance of counsel colorable and thus no cumulative effect
exists.

¶15 Earl cites United States v. Cronic, 466 U.S. 648 (1984), in arguing
that “the level of ineffective assistance of counsel demonstrated is sufficient
. . . for relief without a showing of prejudice.” We disagree. Although Cronic
holds that certain factual circumstances are so likely to prejudice a
defendant that he need not independently show prejudice, the Supreme
Court ultimately held that the defendant still must show prejudice even
where a “young lawyer with a real estate practice” was assigned to
represent a criminal defendant with “only 25 days for pretrial preparation.”
466 U.S. at 649, 658, 666–67. As Cronic demonstrates, the circumstances
necessary for a defendant to forgo a showing of prejudice are rare. See id. at
659–61 (finding that the court may presume prejudice when a defendant is
wholly denied counsel or “if counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing” but not where, for

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example, “counsel was appointed in a capital case only three days before
trial”).

¶16 Although Earl had several attorneys throughout his case, the
counsel who represented him at trial was appointed eight months before
trial. This is ample time to prepare, and this case is dissimilar to cases where
courts have presumed prejudice. See id. at 659–61 (citing Powell v. Alabama, 287 U.S. 45 (1932), where “[o]n the day of trial, a lawyer . . . [who] stated
that he had not had an opportunity to prepare the case or to familiarize
himself with local procedure” was appointed to represent multiple
defendants in a capital case). Further, counsel’s general conduct at trial does
not indicate that he “fail[ed] to subject the prosecution’s case to meaningful
adversarial testing.” Cronic, 466 U.S. at 658. Counsel objected throughout
trial, cross-examined all the State’s witnesses, and moved for a directed
verdict under Rule 20. Thus, the presumption of prejudice does not apply,
and Earl has failed to show prejudice. See supra ¶¶ 10–13.

¶17 Earl also argues that the court erred in finding his other acts
evidence argument precluded. But this claim was fully adjudicated on the
merits in his direct appeal. See Ariz. R. Crim. P. 32.2(a) (precluding any
claim “finally adjudicated on the merits in an appeal”); Earl, 1 CA-CR 19-
0592, at *3–4 ¶¶ 17–22 (finding that “[t]he trial court [] properly admitted
the other act evidence”). The court did not err in finding the claim
precluded and not colorable.

CONCLUSION

¶18 We grant review but deny relief.

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

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