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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
KEVIN JOSEPH BIBBINS, Appellant.
No. 1 CA-CR 15-0086
FILED 2-4-2016
Appeal from the Superior Court in Mohave County
No. S8015CR201400814
The Honorable Steven F. Conn, Judge
AFFIRMED
APPEARANCES
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Law Office of Daniel DeRienzo PLLC, Prescott Valley
By Daniel J. DeRienzo
Counsel for Appellant
Kevin Joseph Bibbins, Tucson
Appellant
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.
STATE v. BIBBINS
Decision of the Court
G E M M I L L, Judge:
¶1 Kevin Joseph Bibbins appeals from his convictions for
aggravated assault, a Class 3 felony, and disorderly conduct, a Class 6
felony. Bibbins’s counsel filed a brief in compliance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878
(1969), stating that he has searched the record and found no arguable
question of law and requesting that this court examine the record for
reversible error. Bibbins was given permission to file a pro per supplemental
brief and did so. He also filed additions to that supplemental brief,
identifying various issues that we address below. For the following
reasons, we affirm Bibbins’s convictions and sentences.
Facts and Procedural History
¶2 Upon review, we view the facts in the light most favorable to
sustaining the jury’s verdicts and resolve all inferences against Bibbins.
State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998). Bibbins lived in an
adjoining apartment of the Sunrise Suites, next door to the victim (“M.C.”).
On the morning of June 11, 2014, while M.C. was making coffee in his
kitchen, he heard Bibbins knock on his front door. When M.C. opened the
door, Bibbins informed M.C. that if he did not stop slamming cabinet doors,
Bibbins would cut and beat him. After getting dressed, M.C. walked out
into the hallway of the apartment complex, in between the two apartments,
and said “[i]f you have a problem, come out and talk to me.” Bibbins then
came out of his apartment into the hallway and when they were
approximately three feet apart, Bibbins raised and pointed a knife at M.C.
12 to 18 inches away from M.C.’s chest. M.C. repeatedly asked Bibbins to
put the knife down.
¶3 The property manager (“R.P.”) heard the conflict from his
office and walked up to the second floor hallway and approached M.C. and
Bibbins. After coming within a few feet of them, R.P. saw that Bibbins had
a knife pointed at M.C. and told Bibbins several times to put the weapon
down. Bibbins eventually walked back into his apartment and put the knife
away, but then returned to the hallway and continued arguing with M.C.
R.P. told M.C. and Bibbins to return to their own apartments and called the
police. Two police officers arrived at the scene where they spoke with
Bibbins and seized the knife from inside his apartment.
2
STATE v. BIBBINS
Decision of the Court
¶4 A jury convicted Bibbins of aggravated assault and disorderly
conduct. At sentencing the superior court found several mitigating factors,
and sentenced Bibbins to mitigated, concurrent sentences of 5.25 years of
incarceration for aggravated assault and 1.75 years for disorderly conduct.
The court gave Bibbins credit for 223 days of presentence incarceration.
Bibbins appeals, and we have jurisdiction pursuant to Article 6, Section 9,
of the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”)
sections 12-120.21(A)(1), 13-4031 and 13-4033.
Denial of Rule 20 Motion
¶5 Bibbins asserts the trial court erred in denying his motion for
judgment of acquittal, under Arizona Rule of Criminal Procedure 20(a)
(“Rule 20”). Rule 20(a) states that “the court shall enter a judgment of
acquittal of one or more offenses charged in an indictment, information or
complaint after the evidence on either side is closed, if there is no
substantial evidence to warrant a conviction.” We review de novo a trial
court’s denial of a Rule 20 motion. State v. Harm, 236 Ariz. 402, 406, ¶ 11
(App. 2015).
¶6 The State presented two witnesses who identified Bibbins in
court, were cross-examined by defense counsel, and testified that Bibbins
approached M.C. in the hallway of their apartment complex with an
unsheathed knife and threatened to cut him with it several times. The
record therefore demonstrates substantial evidence supporting Bibbins’s
conviction of aggravated assault and disorderly conduct with a deadly
weapon or dangerous instrument, and the trial court did not err in denying
Bibbins’s Rule 20 motion.
Lack of Jury Determination of Dangerous Offenses
¶7 The State alleged in the indictment that both offenses were
“dangerous” under A.R.S. § 13-704 and the court sentenced Bibbins on both
counts under that statute. The verdict forms did not instruct the jury on
this issue and the jury did not make a specific finding of dangerousness on
either verdict. Even assuming the court erred in not presenting the issue of
dangerousness separately to the jury, any such error does not rise to the
level of fundamental, prejudicial error. Because the aggravator in this case
— use of a deadly weapon or dangerous instrument — was an element of
both offenses, no reasonable jury could fail to find dangerousness. Bibbins
cannot demonstrate the requisite prejudice to obtain relief under a harmless
error analysis, much less under fundamental error analysis, because any
3
STATE v. BIBBINS
Decision of the Court
such error was harmless. See State v. Larin, 233 Ariz. 202, 212, ¶ 38 (App.
2013) (explaining that “[g]enerally, an allegation of dangerousness must be
found by a jury,” “[h]owever, a jury need not make a finding of
dangerousness where it is inherent in the crime.”) (internal quotations
omitted).
Ineffective Assistance of Counsel
¶8 Bibbins challenges the effectiveness of his counsel during plea
negotiations and throughout various stages of the trial. Claims of
ineffective assistance of counsel, however, must be raised in a post-
conviction proceeding under Ariz. R. Crim. P. 32. See State v. Spreitz, 202
Ariz. 1, 3, ¶ 9 (2002) (holding that ineffective assistance of counsel claims
will not be considered on direct appeal and, instead, must be presented in
Rule 32 proceedings). We will therefore not consider this issue in this direct
appeal.
Issues Related to Witness Testimony
¶9 Bibbins argues the State deliberately failed to produce a
witness M.C. mentioned in his original statement to the police and further
that he — Bibbins — should have had a chance to cross-examine that
witness because he or she would have testified in his favor. Although the
State is required to disclose material evidence attacking its case in chief, see
Brady v. Maryland, 373 U.S. 83, 87 (1963), the State is not obligated to call
witnesses that may favor a defendant’s case. Thus, no reversible error
occurred by the State’s failure to call the witness M.C. mentioned in his
statement to the police.
¶10 Further, Bibbins argues that the court erroneously allowed
two State’s witnesses to testify in contradiction to their original witness
statements. Questions of witness credibility and consistency of testimony
are appropriately resolved by the jury, and we will not disturb a verdict
based upon conflicting evidence when there is substantial evidence to
support the verdict. See State v. Hughes, 104 Ariz. 535, 538 (1969); see also
State v. Harrison, 111 Ariz. 508, 509 (1975). Because substantial testimony
and evidence supported the verdict, no reversible error occurred by virtue
of some witnesses testifying inconsistently.
Alleged Prosecutorial Misconduct
¶11 Bibbins additionally alleges that prosecutorial misconduct
occurred because M.C. sat behind Bibbins and coached a witness while that
4
STATE v. BIBBINS
Decision of the Court
witness testified. Bibbins did not identify in his brief who the witness was.
Defense counsel did not object to M.C.’s location in the courtroom during
any witness testimony. “Failure to object waives an issue on appeal absent
fundamental error.” State v. Hughes, 193 Ariz. 72, 85, ¶ 58 (1998). “To
prevail on a claim of prosecutorial misconduct, a defendant must
demonstrate that the prosecutor’s misconduct ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due process.’” Id.
at 79, ¶ 26 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). If the
court can determine beyond a reasonable doubt that the prosecutorial
misconduct did not contribute to or affect the verdict, it is harmless error.
Hughes, 193 Ariz. at 80, ¶ 32. The record does not indicate that any of the
prosecutor’s actions during any of the witnesses’ testimonies infected the
trial with unfairness resulting in a denial of due process. We find no error.
Alleged Sentencing Error
¶12 Bibbins asserts that the trial court displayed bias against and
“total dislike” for him, and that the court should have “lowered [the
charges] to misdemeanors” because it had the authority to “override the
jury at sentencing.” We do not presume bias on the part of the court and
the record does not indicate that the court was prejudiced against Bibbins.
Moreover, the jury verdicts for both charges statutorily obligated the court
to impose at least the minimum sentences for each conviction. A.R.S. § 13-
704; see State v. Johnson, 116 Ariz. 221, 222 (App. 1977) (statutes can fix or
define minimum penalties that a judge may impose).
Actual Sentence Compared to Plea Offer
¶13 Bibbins argues that he was penalized for exercising his
constitutional right to a trial because the sentence imposed was harsher
than the plea bargain originally offered. This argument is without merit
because the natural risk of rejecting a plea offer is that trial may result in
conviction and a longer sentence. Moreover, there is no federal or state
constitutional right to a plea bargain in the first place. Weatherford v. Bursey,
429 U.S. 545, 561 (1977); State v. Morse, 127 Ariz. 25, 31 (1980).
¶14 Bibbins has raised several other issues in his supplemental
and additional briefs. We have considered each argument and have found
each one to be without legal merit or factual basis in the record before us.
We conclude that no reversible error occurred in his trial or sentencing.
Due Process Review
5
STATE v. BIBBINS
Decision of the Court
¶15 The record reflects Bibbins received a fair trial. He was
represented by counsel at all stages of the proceedings against him, he was
present at all critical stages, and the court held appropriate pretrial
hearings.
¶16 The State presented both direct and circumstantial evidence
sufficient to allow the jury to convict. The jury was properly comprised of
eight members with one alternate. The court properly instructed the jury
on the elements of the charges, the State’s burden of proof, and the necessity
of a unanimous verdict. The jury returned a unanimous verdict, which was
confirmed by juror polling. The court received and considered a
presentence report, addressed its contents during the sentencing, and
imposed legal sentences for the crimes of which Bibbins was convicted.
Conclusion
¶17 We have reviewed the entire record for reversible error and
find none, and we therefore affirm the convictions and resulting sentences.
See Leon, 104 Ariz. at 300.
¶18 After the filing of this decision, defense counsel’s obligations
pertaining to Bibbins’s representation in this appeal have ended. Defense
counsel need do no more than inform Bibbins 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. On the court’s own
motion, Bibbins has 30 days from the date of this decision to proceed, if he
wishes, with a pro per motion for reconsideration. Bibbins also has 30 days
from the date of this decision to proceed, if he wishes, with a pro per petition
for review.
:ama
6