State v. Bibbs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GARY LYNN BIBBS, Appellant.

No. 1 CA-CR 22-0430
FILED 8-3-2023

Appeal from the Superior Court in Maricopa County
No. CR2020-144859-001
The Honorable Joseph S. Kiefer, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant

Gary Lynn Bibbs, Tucson
Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Anni Hill Foster joined.

T H U M M A, Judge:

¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297 (1969). Counsel for defendant Gary Lynn
Bibbs has advised the court that, after searching the entire record, he has
found no arguable question of law and asks this court to conduct an Anders
review of the record. Bibbs was given the opportunity to file a self-
represented supplemental brief, and has done so. This court has reviewed
the record and has found no reversible error. Thus, Bibbs’ conviction and
resulting sentence are affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Viewing the evidence in a light most favorable to sustaining
the verdict, State v. Moore, 111 Ariz. 496, 497 (1975), one night in November
2020, Phoenix Police Department responded to a shots-fired call in a
neighborhood from C.W.1 C.W. reported two separate rounds of shots took
place: the first before she called 911, and the other she observed while she
was on the phone. C.W. later testified she was at the front of her house on
the second-story balcony when she saw Bibbs standing near the front door
of his house against a concrete wall that surrounded the house. C.W.
testified Bibbs was shooting a pistol onto the street towards a light pole.
C.W. added there was a previous shooting at the same residence days or
weeks prior, and called to complain to the homeowners’ association after
the second shooting.

¶3 Another witness, A.A., testified he was driving down the
street and saw a little red car with the door open. As A.A. kept driving, he
saw one male turn a corner, running to his car with another male chasing
and firing a weapon. A.A. testified he could see the shooter for no more
than three to four seconds and remembered the shooter being a “black”
man in his 30’s wearing “dark jeans” and “a red puffy jacket.” A.A. could

1 Initials are used to protect witness’ privacy. State v. Maldonado, 206 Ariz.
339, 341 ¶ 2 n.1 (App. 2003).

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Decision of the Court

not see where the shooter fled because it was dark. Although A.A. drove
away, he later relayed what he saw to a police officer. A.A. said the officer
never wrote his name down or followed up with him.

¶4 Police officers arrived on the scene “less than 3 to 5 minutes”
after C.W.’s call and, based on the information C.W. provided, took Bibbs
and another individual into custody. A search of the area revealed several
.45 caliber shell casings in the roadway and in the nearby sidewalk area. A
gunshot residue (GSR) test on both individuals revealed GSR was found on
Bibbs but not the other individual. No handgun was ever located.

¶5 Bibbs was charged with: (1) unlawful discharge of a firearm,
a Class 6 felony (a charge dismissed before the case was submitted to the
jury) and (2) misconduct involving weapons, a Class 4 felony, alleging he
was a prohibited possessor given prior felony convictions. Although Bibbs
originally succeeded in moving to preclude the GSR evidence (based on
concessions by the State’s expert), this court found the evidence was
admissible in a special action proceeding.

¶6 After substantial motion practice, Bibbs was present for all
three days of his jury trial held in August 2022. After considering the
evidence and argument, the jury found Bibbs guilty of misconduct
involving weapons. At Bibbs’ request, the superior court polled the jurors
on their verdict, and each confirmed it was their true verdict. Given Bibbs’
prior criminal history, and without objection, the court sentenced Bibbs as
a category two repetitive offender for the nondangerous felony conviction
to four years in prison. Bibbs was properly given 31 days of presentence
incarceration credit. This court has jurisdiction over his timely appeal
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(A)
(2023).2

DISCUSSION

¶7 The record shows that Bibbs was represented by counsel at all
stages of the proceedings and that counsel was present at all critical stages.
The record contains substantial evidence supporting the verdict. The
sentence imposed was within statutory limits and the award of presentence
incarceration credit was accurate. In all other respects, from the record

2
Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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presented, all proceedings were conducted in compliance with the Arizona
Rules of Criminal Procedure. In his 22-page supplemental self-represented
brief, Bibbs raises several issues, addressed below.

I. Witness Bias.

¶8 Bibbs argues “it was a[n] abuse of discretion” for the court to
allow C.W. to testify at trial because she called the HOA to complain after
the second shooting. Bibbs argues C.W. had a “hidden agenda” against him
and that she wanted Bibbs to move out because “she did not like her
neighbors activities,” and C.W. “stood to gain from testifying.” Thus, Bibbs
argues, C.W. had bias, “improper influence and motive” in testifying
against Bibbs.

¶9 “In our system of justice, ‘[c]ross-examination is the principal
means by which the believability of a witness and the truth of his testimony
are tested.’” State v. Todd, 244 Ariz. 374, 379 ¶ 12 (App. 2018) (citation
omitted). “Although trial courts retain broad discretion to preclude
‘repetitive and unduly harassing interrogation,’ the opportunity to impeach
or discredit a witness, rather than merely test his perceptions and memory,
is fundamental to confrontation under the Sixth Amendment.” Id. Bias or
interest of a witness affects credibility and weight, not the admissibility of
testimony. Maricopa Cnty. v. Barkley, 168 Ariz. 234, 240 (App. 1990).

¶10 Bibbs’ counsel extensively cross-examined C.W. about her
actions before the 911 call and her feelings towards Bibbs. Among other
things, the jury heard a previous interview of C.W., where she said, “I called
the HOA and had them kick him out.” C.W. also was asked various
questions by Bibbs’ counsel about her 911 call.

¶11 On the record presented, Bibbs has not shown that the court
erred in allowing C.W. to testify. See State v. Trammell, 245 Ariz. 607, 609 ¶ 9
(App. 2018) (citation omitted) (“No rule is better established than that the
credibility of the witnesses and the weight and value to be given to their
testimony are questions exclusively for the jury.”). Thus, Bibbs’ witness bias
arguments fail.

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II. Inconsistent Witness Testimony.

¶12 Bibbs argues there were “witness inconsistencies” involving
A.A.’s testimony. At trial, A.A. testified the shooter was in his 30’s and
wearing dark-colored pants. The evidence shows Bibbs is in his 60’s and
was wearing light-colored pants when he was taken into custody. Bibbs
argues the “inconsisten[t] testimonies did not collaborate in the record of
evidence received.”

¶13 Defense counsel, however, cross-examined A.A. about the
claimed inconsistencies. During that exchange, the jury heard information
that, on the night of the incident, A.A. stated he thought the shooter was in
his 30’s and he was certain the shooter was wearing dark pants. Defense
counsel showed the jury how A.A. attempted to report the incident to an
officer, but the officer never wrote down his name or followed up with A.A.
Bibbs’ argument about the inconsistent statements go to credibility to be
assessed by the jury, not admissibility to be determined by the court, and
were adequately addressed during cross-examination. See Trammell, 245
Ariz. at 609 ¶ 9. Again, Bibbs has shown no error.

III. Insufficient Evidence/GSR.

¶14 Bibbs argues that admitting the GSR evidence “was
substantial error.” Although Bibbs argues the evidence should have been
weighed differently, this court does not reweigh the evidence on appeal.
See Montano v. Luff, 250 Ariz. 401, 406 ¶ 13 (App. 2020) (citation omitted).
Moreover, during cross-examination, defense counsel showed the jury how
the police officer who conducted Bibbs’ GSR test only performed the test
twice before. Further, defense counsel showed the jury that the police
officer who conducted Bibbs’ GSR test touched the front of their police car
with their gloves on, to establish a possible contamination theory.

¶15 As noted above, in the special action, this court found the GSR
evidence relevant because the evidence had a “tendency to make a fact
more or less probable than it would be without the evidence,” and thus was
admissible. See Ariz. R. Evid. 401(a). Bibbs has not shown that decision was
in error, or that the superior court had to exclude the GSR evidence as
presenting the danger of unfair prejudice or any of the other reasons set
forth in Arizona Rule of Evidence 403.

¶16 Nor has Bibbs shown the superior court erred in denying his
motion for judgment of acquittal under Arizona Rule of Criminal Procedure
20. This rule requires the court, on motion at the close of evidence of either
side, to enter a judgment of acquittal for any charge if there is no substantial

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evidence to warrant the conviction. Ariz. R. Crim. P. (Rule) 20(a)(1).
“Substantial evidence is proof that ‘reasonable persons could accept as
adequate . . . to support a conclusion of defendant’s guilt beyond a
reasonable doubt.’” State v. Bearup, 221 Ariz. 163, 167 ¶ 16 (2009) (citation
omitted).

¶17 After the State rested in its case in chief, and after hearing
argument from the parties, the superior court determined there was
“sufficient evidence to meet the standard or overcome the standard in Rule
20.” Additionally, the court also found there was sufficient evidence
considering the totality of the evidence including that Bibbs was a
prohibited possessor based on the stipulation of the parties, and thus
denied the defense’s Rule 20 motion. For these reasons, Bibbs’ claimed
insufficient evidence argument fails.

IV. Bibbs Has Shown No Prosecutorial Misconduct.

¶18 Bibbs argues there was prosecutorial misconduct which
“caused prejudice to the verdict” because of leading questions during direct
examination. Bibbs’ brief notes the following question during direct
examination in particular: “[w]ould it be toward that light pole and the –
further back?” Although that question was objected to, and the objection
was sustained, Bibbs argues it was a fundamental error to do so “without
calling for [a] mistrial.”

¶19 Leading questions generally should not be used on direct
examination of a witness except as necessary to develop the witness’
testimony, to interrogate an unwilling, hostile or biased witness, or to
interrogate on direct a witness who is a representative or managing agent
of an adverse party, or a witness whose interests are identified with an
adverse party. See Ariz. R. Evid. 611(c). Although Bibbs suggests it was
prosecutorial misconduct to ask leading questions, defense counsel
objected to the question and reasoned the question was leading, and the
court sustained the objection. For these reasons, Bibbs’ claimed leading
questions argument fails.

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CONCLUSION

¶20 This court has read and considered counsel’s brief and Bibbs’
pro se supplemental brief and has searched the record provided for
reversible error and has found none. Leon, 104 Ariz. at 300; State v. Clark,
196 Ariz. 530, 537 ¶ 30 (App. 1999). Thus, Bibbs’ conviction and resulting
sentence are affirmed.

¶21 Upon the filing of this decision, defense counsel is directed to
inform Bibbs of the status of the appeal and of his future options. Defense
counsel has no further obligations unless, upon review, counsel identifies
an issue appropriate for submission to the Arizona Supreme Court by
petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Bibbs
has 30 days from the date of this decision to proceed, if he desires, with a
pro se motion for reconsideration or petition for review.

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

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