State v. Snodgrass

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-CR 22-0479
FILED 2-6-2024

Appeal from the Superior Court in Maricopa County
No. CR2020-002256-001
The Honorable Laura M. Reckart, Judge, Retired

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Damon A. Rossi
Counsel for Appellant
 STATE v. SNODGRASS
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Daniel J. Kiley delivered the decision of the Court, in which
Judge Kent E. Cattani and Judge D. Steven Williams joined.

K I L E Y, Judge:

¶1 A jury convicted Robert Curtis Snodgrass of multiple felonies.
Snodgrass now appeals, arguing that the superior court erred in sustaining
the prosecutor’s objection when defense counsel expressed his personal
opinion about Snodgrass’s veracity in closing argument. Because defense
counsel’s statement was improper, the court did not err in sustaining the
prosecutor’s objection. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 When Snodgrass married his wife “Sarah” in 2017, Sarah had
a seven-year-old daughter “Polly” from a prior relationship.1

¶3 In 2019, Sarah called the police after finding ten photographs
of a child’s vagina on Snodgrass’s iPad. During the ensuing investigation,
a police detective arranged for Sarah to place a call to Snodgrass that was
recorded without his knowledge. During this call, Snodgrass denied
knowing about the photographs, telling his wife, “I don’t know what . . .
you’re talking about” and “I do not take pictures of my daughter.” Over the
course of two more recorded calls, however, Snodgrass admitted that he
took “a bunch of pictures” of Polly’s vagina “two years ago,” explaining
that he did so “at [Polly’s] request” because “she wanted to see what it
looked like.” He denied that he took the photographs for any sexual or
other personal purpose and claimed that he deleted them after showing
them to Polly.

¶4 A detective then interviewed Snodgrass, who admitted to
taking photographs of Polly’s vagina on multiple occasions. Snodgrass
explained that Polly used to “ask [him] all kinds of things about her
privates” and that he took the photographs to help answer her questions.
On one occasion, for example, Polly told him that she thought her vagina

1 We use pseudonyms for the victim and her mother pursuant to Arizona

Supreme Court Rule 111(i).

2
 STATE v. SNODGRASS
Decision of the Court

“looked funny.” After assuring her that her vagina looked “just like any
other girl’s” or “maybe a little bit better,” Snodgrass stated that he “took
pictures and showed her them.” He claimed, however, to have deleted
those photographs “right away.”

¶5 Snodgrass further stated that on another occasion Polly called
him into the bathroom, where he found her sitting on the floor “with her
legs completely spread open.” According to Snodgrass, Polly asked him,
“Does this look funny?” while pointing to her vagina, which, he observed,
was “beet red.” Worried that she might have “some kind of infection,”
Snodgrass claimed, he took photographs and then told Sarah, who took
Polly to an urgent care center where she was diagnosed with a urinary tract
infection. Snodgrass admitted, however, that he did not tell Sarah about the
photographs he took.

¶6 When asked why the photographs were saved on his iPad,
Snodgrass stated, “The pictures are on the iPad because I put them there.”
Snodgrass explained that the photographs were automatically uploaded
from his phone to his Google Photos account without his knowledge. After
he realized that the photographs had been saved to his Google Photos
account, he stated, he imported them to his iPad. When asked why, he
replied that he “couldn’t figure out how to delete them” from his Google
Photos account, and so he “imported them back to the phone.” They “were
in my phone for quite a while,” he stated, before he “sent them to the iPad.”
He admitted that he “can’t answer why” he sent them to his iPad, but
insisted, “I do not get off on little girls.”

¶7 A grand jury indicted Snodgrass on ten counts of sexual
exploitation of a minor and two counts of molestation of a child, each a class
2 felony and Dangerous Crime Against Children under A.R.S. § 13-705. The
court later severed the molestation counts, ultimately dismissing them
without prejudice.

¶8 At trial, recordings of Snodgrass’s phone calls with Sarah and
his interview with the detective were introduced as exhibits and played for
the jury. Both the detective and Sarah testified, and sanitized versions of the
photographs were introduced as exhibits. Snodgrass did not testify.

¶9 During closing argument, defense counsel noted that
Snodgrass did not testify at trial but asserted that his testimony was
unnecessary because the jurors had already heard directly from him in the
recordings that were admitted as exhibits. “He’s told you everything,”
counsel stated. “He told the police everything. He told his wife everything.”

3
 STATE v. SNODGRASS
Decision of the Court

¶10 Defense counsel then stated that “there’s a lot of discussion”
about Snodgrass’s “explanation and his story” about why the photographs
were on his iPad, adding, “And, yes, I believe Robert.” When the prosecutor
objected, saying “[t]hat’s his personal opinion,” the court sustained the
objection. Defense counsel then proceeded to argue that the State had failed
to present sufficient evidence to satisfy its burden of proof beyond a
reasonable doubt.

¶11 The jury convicted Snodgrass on all ten counts of sexual
exploitation of a minor. The court sentenced Snodgrass to presumptive,
consecutive sentences of 17 years for each count, with 110 days of
presentence incarceration credit. Snodgrass timely appealed, and we have
jurisdiction. See Ariz. Const. art. 6, § 9; A.R.S. §§ 12-120.21(A)(1), 13-4021,
13-4033(A)(1).

DISCUSSION

¶12 Snodgrass’s sole contention on appeal is that the superior
court improperly sustained the State’s objection during defense counsel’s
closing argument. According to Snodgrass, whether “the jury believed” the
statements he made to his wife and the detective was “crucial” to his
defense that “the photos were not for the purpose of sexual stimulation.”
Because “the State argued” that “evidence supported” an inference that
Snodgrass lied when he claimed that he did not take the photographs “for
purposes of sexual stimulation,” Snodgrass insists, defense counsel was
“entitled to express the opposite opinion that the evidence supported
[Snodgrass’s] version of events.”

¶13 We review the superior court’s ruling on an objection to a
statement made during closing argument for an abuse of discretion. State v.
Pandeli, 215 Ariz. 514, 525, ¶ 30 (2007); see also State v. Tims, 143 Ariz. 196,
199 (1985) (“The trial court is vested with great discretion in the conduct
and control of closing argument and will not be overturned on appeal
absent an abuse of discretion.”).

¶14 It is well-established that trial counsel “must refrain from
interjecting personal beliefs into the presentation of his case.” United States
v. Young, 470 U.S. 1, 8-9 (1985). This prohibition on expressing personal
beliefs encompasses an attorney’s opinions about the credibility of
witnesses and about the defendant’s guilt or innocence. See State v. Acuna
Valenzuela, 245 Ariz. 197, 216-17, ¶¶ 70, 72-73 (2018) (noting that
prosecutor’s objection to witness’s testimony on the ground that it was “not
true” was an “inappropriate” comment “on the veracity of [the] witness”);

4
 STATE v. SNODGRASS
Decision of the Court

State v. Van Den Berg, 164 Ariz. 192, 196 (App. 1990) (“It is improper and
unethical for an attorney in his closing argument to express his personal
opinion as to a defendant’s guilt or innocence.”). Similarly, “counsel may
not refer to evidence which is not in the record or ‘testify’ regarding matters
not in evidence.” Acuna Valenzuela, 245 Ariz. at 217, ¶ 71 (cleaned up). In
telling the jury “I believe Robert,” defense counsel referred to matters not
in evidence by expressing his personal beliefs about the truthfulness of his
client’s statements. And because, by Snodgrass’s own admission, his
credibility was “crucial” to his defense, defense counsel’s statement “I
believe Robert” amounted to a statement of belief in his client’s innocence.
Defense counsel’s statement was, therefore, inappropriate, and the court
did not err in sustaining the State’s objection to it.

¶15 Noting that “[c]ounsel are afforded wide latitude in closing
argument,” State v. Rosas-Hernandez, 202 Ariz. 212, 219, ¶ 24 (App. 2002),
Snodgrass contends that his counsel “merely argued a reasonable
inference—that [Snodgrass] told the truth—based upon the evidence
presented.” By sustaining the State’s objection, he argues, the court unfairly
“deprived” defense counsel of the “wide latitude” to which he was entitled.

¶16 Snodgrass’s characterization of his counsel’s statement as a
“reasonable inference” from “evidence presented” is inaccurate. Instead of
identifying facts in evidence that corroborated or bolstered the credibility
of the statements Snodgrass made to his wife and the detective, defense
counsel simply referred to those statements and stated, “I believe Robert.”
As the State correctly observes, defense counsel’s statement “is not an
inference” but “an improper personal opinion about the evidence.” See State
v. Thompson, 318 P.3d 1221, 1242, ¶ 58 (Utah App. 2014) (holding that
prosecutor’s statements in closing argument that “I don’t think [witness]
was credible” and “I think he was being dishonest with you” were
“expressions of personal opinion” that “amounted to a form of unsworn,
unchecked testimony” that would “induce the jury to trust the prosecutor’s
judgment rather than to form their own view of the evidence”) (cleaned up).

¶17 Snodgrass argues that the “use of a personal pronoun—such
as I—is not in and of itself improper,” “[n]or does an attorney’s use of the
phrase ‘I believe,’ automatically make his point inappropriate.”

¶18 Whether a lawyer’s use of the personal pronoun in closing
argument is improper depends on the context in which it is used. See State
v. Goudeau, 239 Ariz. 421, 466, ¶ 196 (2016) (“In determining whether an
argument is misconduct, . . . [w]e look at the context in which the statements
were made.”) (cleaned up). In one case, for example, the court held that a

5
 STATE v. SNODGRASS
Decision of the Court

prosecutor did not engage in misconduct by using the phrase “I think” in
closing argument because the term simply expressed her uncertainty about
the contents of an exhibit that had been admitted. State v. King, 417 P.3d
1073, 1085 (Kan. 2018). “The prosecutor was not advancing her personal
opinion,” the court held, “but simply hedging her statement as she was
describing the evidence.” Id. Likewise, another court rejected a defendant’s
argument that the prosecutor “improperly revealed her personal opinions”
by saying “I think” during closing argument, finding that the prosecutor
“use[d] the phrase ‘I think’ in an innocuous, conversational sense” that did
not “suggest an attempt to replace the evidence with the prosecutor’s
personal judgments.” United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995).

¶19 Here, by contrast, defense counsel said “I believe Robert”
directly after referencing Snodgrass’s “explanation and story.” Viewed in
context, defense counsel’s statement cannot reasonably be interpreted as
anything other than an expression of counsel’s personal opinion about the
credibility of his client’s “explanation and story.”

¶20 Snodgrass attempts to distinguish case law condemning
vouching by trial counsel by asserting that those cases involve vouching by
prosecutors rather than criminal defense attorneys. “[P]rosecutorial
vouching,” Snodgrass contends, “often places the prestige of the
government behind a witness,” and so “raises much more serious
concerns” than vouching by defense counsel.

¶21 Trial counsel’s “personal assurances of a witness’s veracity”
raise heightened concerns when counsel represents the State, since such
vouching tends to “place[] the prestige of the government behind its
witness.” Acuna Valenzuela, 245 Ariz. at 217, ¶ 75 (cleaned up). Vouching by
counsel for criminal defendants and other private litigants, however, is also
improper. Young, 470 U.S. at 8-9 (“It is clear that counsel on both sides of
the table share a duty to confine arguments to the jury within proper
bounds,” and “[d]efense counsel, like the prosecutor, must refrain from
interjecting personal beliefs into the presentation of his case.”). Because
Snodgrass’s counsel improperly expressed his personal opinion in closing
argument about the credibility of his client’s statements, the superior court
did not abuse its discretion in sustaining the State’s objection to defense
counsel’s statement. Snodgrass is not entitled to relief.

6
 STATE v. SNODGRASS
Decision of the Court

CONCLUSION

¶22 We affirm.

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

7