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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
VIRGIL MARVEL TOGSTAD, III,
Appellant.
No. 1 CA-CR 15-0119
FILED 03-29-2016
Appeal from the Superior Court in Maricopa County
No. CR2011-005503-001
The Honorable Bruce R. Cohen, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Chris DeRose
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Christopher V. Johns
Counsel for Appellant
STATE v. TOGSTAD
Decision of the Court
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kenton D. Jones joined.
O R O Z C O, Judge:
¶1 Virgil Marvel Togstad, III, appeals his conviction and
sentence for one count of promoting prison contraband, a class two
nondangerous felony. On appeal, Togstad argues that the trial court
abused its discretion when it overruled his foundation objection to certain
evidence and that he was entitled to a jury trial on his prior conviction
offered for sentencing pursuant to Arizona Revised Statutes (A.R.S.) section
13-708.A and D (West 2016).1
FACTS2 AND BACKGROUND
¶2 On October 18, 2010, Togstad was incarcerated in the
Maricopa County Fourth Avenue Jail Detention Center awaiting trial on
other charges. During a random search of Togstad’s cell, detention officers
discovered two sharpened, plastic objects hidden in a bible under the top
bunk mattress assigned to Togstad. Togstad admitted that the items were
his. At trial on the contraband charge, over Togstad’s objection, the court
admitted a page acknowledging receipt of the jail’s rules and regulations,
allegedly signed by Togstad. The jury found Togstad guilty. Prior to
sentencing, the trial court found Togstad had one historical prior; a 2007
class six nondangerous felony conviction for disorderly conduct, a domestic
violence offense. Pursuant to A.R.S. § 13-703.B and I, the court sentenced
Togstad to a presumptive term of 9.25 years’ incarceration.
1 Absent a material change, we cite to the most recent version of a
statute. According to the record on appeal, Togstad was sentenced
pursuant to A.R.S. § 13-703, not -708.
2 We view the facts in the light most favorable to sustaining the trial
court’s verdict. State v. Flores, 201 Ariz. 239, 240, ¶ 2 (App. 2001).
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STATE v. TOGSTAD
Decision of the Court
¶3 Togstad timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21.A,
13-4031 and -4033.
I. Admission of Signature Page
¶4 A charge of promoting prison contraband requires proof that
Togstad knowingly made, obtained or possessed contraband in a
correctional facility. See A.R.S. § 13-2505.A.3. The State offered the inmate
rules and regulations policy acknowledgement signature page as evidence
Togstad was aware that the jail prohibited possession of any item that could
be used as a deadly or dangerous weapon as contraband. On appeal,
Togstad contends that the trial court improperly admitted the signature
page, claiming there was insufficient foundation to authenticate his
signature. The trial court’s determination that adequate foundation was
provided for the admission of evidence is reviewed on appeal for an abuse
of discretion. State v. George, 206 Ariz. 436, 446, ¶ 28 (App. 2003). A ruling
is an abuse of discretion when “the reasons given by the court . . . are clearly
untenable, legally incorrect, or amount to a denial of justice.” State v.
Chapple, 135 Ariz. 281, 297 n.18 (1983), superseded by statute on other grounds.
¶5 A proponent of evidence must establish foundation by first
authenticating or identifying the evidence. Ariz. R. Evid. 901(a). The
proponent does this by producing “evidence sufficient to support a finding
that the item is what the proponent claims it is.” Id. Authentication may
be accomplished when a witness with knowledge testifies that “an item is
what it is claimed to be.” Id. at 901(b)(1). The trial court’s role is not to
determine the authenticity of the evidence, but instead to determine
“whether evidence exists from which the jury could reasonably conclude
that it is authentic.“ State v. Lavers, 168 Ariz. 376, 386 (1991).
¶6 We cannot say that the trial court’s admission of the evidence
was “clearly untenable, legally incorrect, or amount[ed] to a denial of
justice.” Chapple, 135 Ariz. at 297 n.18. At trial, a detention officer testified
that it was the practice of officers to provide the rules and regulations to
each inmate and to obtain a signature from each before assigning housing.
Testimony of the jail’s practice “could raise a reasonable inference that
proper procedures were followed in this case.” See State v. Stotts, 144 Ariz.
72, 79 (1985) (holding that a parole officer’s testimony that it was the
practice to provide copies of probation conditions to parolees was sufficient
to support a finding that the defendant had received them). Further,
Togstad provided no evidence or testimony to refute the detention officer’s
testimony. On this record, we find no abuse of discretion.
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STATE v. TOGSTAD
Decision of the Court
II. Jury Trial on Prior Convictions
¶7 Togstad also argues that the trial court erred by failing to
conduct a jury trial to prove his prior conviction. Because Togstad did not
raise this issue in the trial court, we review for fundamental error. State v.
Robles, 213 Ariz. 268, 272, ¶ 12 (App. 2006). To prevail under fundamental
error review, Togstad must establish that fundamental error exists and that
the error was prejudicial. State v. Henderson, 210 Ariz. 561, 567, ¶ 20 (2005).
An error is fundamental when a defendant shows “the error complained of
goes to the foundation of his case, takes away a right that is essential to his
defense, and is of such magnitude that he could not have received a fair
trial.” Id. at 568, ¶ 24.
¶8 The State noticed its intent to allege a 2007 felony disorderly
conduct conviction as a historical prior before trial. Prior to sentencing, the
trial court heard testimony from a Maricopa County Sheriff crime lab unit
employee who offered evidence documenting Togstad’s 2007 felony
conviction for disorderly conduct, a nondangerous domestic violence
offense. The evidence indicates that Togstad pled guilty to the 2007
disorderly conduct charge. In arguing the prior conviction should have
been submitted to a jury, Togstad relies on State v. Gross 201 Ariz. 41 (App.
2001) and State v. Large, 234 Ariz. 274 (App. 2014), arguing he was entitled
to a jury trial for any enhancement that would increase his sentence.
¶9 In Apprendi v. New Jersey, the United States Supreme Court
held that “[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury.” 530 U.S. 466, 490 (2000) (emphasis added). See also
Alleyne v. United States, 133 S. Ct. 2151, 2168 (2013) (observing that any fact,
other than a prior conviction, that increases the mandatory minimum sentence
must be found by a jury). Because Togstad’s historical prior was a
conviction, a trial by jury was not required.
¶10 Even if we accept Togstad’s argument that he was entitled to
a trial by jury to determine whether his 2007 conviction was, in fact, a
conviction, his argument does not survive a fundamental error review,
because a reasonable jury would find that Togstad had been convicted of
the 2007 offense based on the evidence presented to the trial court. We find
no error. See Large, 234 Ariz. at 280, ¶ 19 (holding that a defendant was
entitled to a jury trial to prove his release status, but failure to provide one
was harmless error when no reasonable jury could conclude the defendant
was not on parole).
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STATE v. TOGSTAD
Decision of the Court
CONCLUSION
¶11 For the foregoing reasons, we affirm Togstad’s conviction and
sentence.
:RT
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