                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                     STATE OF ARIZONA, Respondent,

                                        v.

              ROBERT RICHARD SPURLING, III, Petitioner.

                         No. 1 CA-CR 12-0788 PRPC
                               FILED 4-7-2015


    Petition for Review from the Superior Court in Coconino County
                           No. CR 2008-0672
               The Honorable Joseph J. Lodge, Judge Retired

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Coconino County Attorney’s Office, Flagstaff
By Heather A. Mosher
Counsel for Respondent

White Law Offices, PLLC, Flagstaff
By Wendy F. White
Counsel for Petitioner


                       MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Diane M. Johnsen joined.
                             STATE v. SPURLING
                             Decision of the Court

G E M M I L L, Judge:

¶1             Robert Richard Spurling petitions this court for review of the
dismissal of his petition for post-conviction relief. We have considered the
petition for review, and we grant review but deny relief for the following
reasons.

¶2             A jury convicted Spurling of five counts of child molestation,
all dangerous crimes against children. The trial court sentenced him to an
aggregate term of thirty-four years’ imprisonment. This court vacated one
conviction and affirmed the remaining convictions and sentences on direct
appeal. State v. Spurling, 1 CA-CR 09-0939, 2011 WL 662629, at *1, ¶20 (Ariz.
App. Feb. 24, 2011). Our decision did not affect Spurling’s aggregate
sentence, however. Spurling then petitioned for post-conviction relief. The
trial court found colorable claims for relief and held an evidentiary hearing.
The court denied relief after the evidentiary hearing and Spurling now
seeks review. We have jurisdiction pursuant to Arizona Rule of Criminal
Procedure 32.9(c).

¶3             In his petition for review, Spurling presents a number of
claims of ineffective assistance of counsel, all of which allege Spurling’s
counsel was ineffective when he failed to make various objections over the
course of the trial. We address only those issues for which Spurling sets
forth specific claims supported by sufficient argument and citation to both
legal authority and the record. The claims Spurling does not properly
support are deemed abandoned and waived. See Ariz. R. Crim. P.
31.13(c)(1)(vi) (“[A]ppellant’s brief shall include . . . [a]n argument which
shall contain the contentions of the appellant with respect to the issues
presented, and the reasons therefor, with citations to the authorities,
statutes and parts of the record relied on.”); see also State v. Carver, 160 Ariz.
167, 175, 771 P.2d 1382, 1390 (1989) (“failure to argue a claim usually
constitutes abandonment and waiver of that claim”) (citations omitted).

¶4            Whether to grant or deny post-conviction relief pursuant to
Rule 32 is an issue addressed to the trial court’s sound discretion. State v.
Schrock, 149 Ariz. 433, 441, 719 P.2d 1049, 1057 (1986). To state a colorable
claim of ineffective assistance of counsel, a defendant must show that
counsel’s performance fell below objectively reasonable standards and that
the deficient performance prejudiced the defendant.             Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). To show prejudice, a “defendant
must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. Strategic choices made after adequate investigation


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                            STATE v. SPURLING
                            Decision of the Court

of the law and facts “are virtually unchallengeable.” Id. at 690-691.
”Defense counsel’s determinations of trial strategy, even if later proven
unsuccessful, are not ineffective assistance of counsel.” State v. Valdez, 160
Ariz. 9, 14, 770 P.2d 313, 318 (1989). There is a strong presumption that the
actions of counsel were sound trial strategy under the circumstances
present at that time. State v. Stone, 151 Ariz. 455, 461, 728 P.2d 674, 680 (App.
1986). “Nor is every failure to object to an improper question, exhibit, or
argument worthy of being called ineffective assistance of counsel.” Valdez,
160 Ariz. at 15, 770 P.2d at 319. “Even the best trial lawyer makes many
mistakes in every trial. Defendants are not guaranteed perfect counsel, only
competent counsel.” Id.1

¶5             Spurling first argues his counsel was ineffective when he
failed to object to the admission of portions of recorded telephone
conversations.     The conversations were between Spurling and his
girlfriend, T.G, and recorded while he was in jail. Spurling argues his
girlfriend’s “half” of the conversations was hearsay.2 Counsel testified he
did not object because in his analysis, there was no basis to object that
would ultimately succeed and the trial court would eventually admit the
girlfriend’s portions of the conversations “one way or the other.” The trial
court, in the post-conviction proceeding, stated that counsel’s performance
was “almost perfect.” From that finding—though we would have preferred
more specific findings—we infer that the judge meant that counsel’s



1  Section 13-4238(D), A.R.S., and Arizona Rule of Criminal Procedure
32.8(d) provide that the court “shall make specific findings of fact, and state
expressly its conclusions of law relating to each issue presented.” At the
close of the evidentiary hearing, the trial court stated that defense counsel
“did nothing wrong” in his representation of Spurling and was “almost
perfect” at trial. These “findings” and “conclusions” may not fully comply
with § 13-4238(D) and Rule 32.8(d). On this record, however, we need not
remand for more specific findings and conclusions because the record is
sufficient to allow us to perform an appropriate appellate review.
Additionally, counsel for Spurling has noted in the petition for review that
remand would serve “no purpose” and that, in the interest of judicial
economy, we should proceed with our review of the record. We agree and
have done so.

2 Spurling also argues the testimony was prejudicial, irrelevant, and
improper opinion. We deem these arguments abandoned and waived. See
supra ¶ 3.


                                       3
                            STATE v. SPURLING
                            Decision of the Court

performance did not fall below objectively reasonable standards, and we
agree.

¶6            Regarding the admission of the recordings themselves, we
deny relief. Spurling’s statements in the recorded conversations are party
admissions, not hearsay. See Arizona Rule of Evidence 801(d)(2)(A); State
v. Garza, 216 Ariz. 56, 66, ¶ 41, 163 P.3d 1006, 1016 (2007) (admitting
defendant’s recorded conversation with a friend as a “party admission
under Arizona Rule of Evidence 801(d)(2)(A)”). The statements of
Spurling’s girlfriend on the recording are also not hearsay, because they
were offered not for the truth of what she said but rather to give context
and meaning to the recorded statements of Spurling. See United States v.
Walter, 434 F.3d 30, 33–34 (1st Cir. 2006) (holding that recorded statements
of a person talking with defendant “had a nonhearsay purpose—namely,
they were offered not for the truth of the matters asserted, but to provide
context for the admissions” of defendant); United States v. Boykins, 380
Fed.Appx. 930, 934 (11th Cir. 2010) (ruling that the confidential informant’s
recorded statements in conversation with defendant “are not hearsay
because they were not offered for the truth of the matter asserted”).

¶7             Spurling additionally argues that T.G.’s testimony about the
statements in the recordings was inadmissible hearsay. We conclude
counsel’s conduct did not fall below an objective standard of reasonably
effective assistance when he chose not to object. The recorded statements
at issue were previously admitted into evidence during testimony by the
State’s witness without objection and not in error. See State v. Hernandez,
167 Ariz. 236, 240, 805 P.2d 1057, 1061 (App. 1990) (“[i]n a criminal case,
hearsay evidence admitted without objection is competent evidence
admissible for all purposes unless its admission amounts to fundamental
fairness”); see also supra ¶ 6.

¶8             For these reasons, we agree with the court that counsel’s
failure to object to the recorded statements and T.G.’s testimony about those
statements did not constitute ineffective assistance of counsel.

¶9             Spurling next argues his counsel was ineffective when he
failed to object to portions of the State’s cross-examination of a witness. The
witness interviewed one of the victims and testified regarding that victim’s
statements and body language during the interview. Spurling identifies
only one allegedly objectionable question in his petition for review.
Further, Spurling concedes his counsel objected to that question and that
the court overruled his objection, holding that the question was appropriate
as a matter of “wide-open cross-examination.” Because counsel objected to


                                      4
                           STATE v. SPURLING
                           Decision of the Court

the sole question Spurling identifies as objectionable, we deny relief on this
issue. Although Spurling complains his counsel made no further objections
to alleged hearsay during the remainder of the cross-examination, he does
not identify the objectionable testimony. He has therefore failed to provide
sufficient argument to support these additional claims.

¶10             Spurling also asserts his counsel was ineffective when he
failed to object to alleged prosecutorial misconduct. He contends his
counsel should have objected when the prosecutor asked Spurling if it was
correct that Spurling was testifying that everyone except Spurling was
lying. We reject this argument because, even if we assume that this
question is objectionable, it did not rise to the level of prosecutorial
misconduct. See State v. Aguilar, 217 Ariz. 235, 238–39, ¶ 11, 172 P.3d 423,
426–27 (App. 2007) (prosecutorial misconduct “amounts to intentional
conduct which the prosecutor knows to be improper and prejudicial, and
which [the prosecutor] pursues for any improper purpose with indifference
to a significant resulting danger of mistrial”) (citation omitted). Second,
although defense counsel did not object to this specific question, he did
eventually object to the line of questioning in which the prosecutor asked
Spurling if specific witnesses were lying. The court sustained that
objection. Further, Spurling testified that several witnesses were lying and
implied other witnesses were lying. Under these circumstances, we
conclude that the trial court did not abuse its discretion when it denied
relief on this issue.

¶11            Spurling next argues his counsel failed to object to
prosecutorial misconduct that occurred when the prosecutor asked
Spurling an allegedly compound and misleading question. That question
was, “[w]hen you touched [the victim’s] vagina with your hand, after you
put the dog in her lap, you had a big smile on your face, didn’t you?” We
reject Spurling’s argument because the question was neither compound nor
misleading, and asking this question did not constitute prosecutorial
misconduct. The question made a single inquiry—whether Spurling smiled
at a specific point in time. Finally, Spurling’s counsel testified he did not
object because he found nothing objectionable about the question. The trial
court did not abuse its discretion in denying relief on this issue.

¶12           Regarding alleged prosecutorial conduct, we also note that
Spurling’s counsel testified he believed the jury did not like the prosecutor
because of his actions in the courtroom. Because of this, he refrained from
making certain objections in an effort to take advantage of the jury's
apparent dislike of the prosecutor. This was a matter of trial strategy.



                                      5
                            STATE v. SPURLING
                            Decision of the Court

¶13            Spurling next argues his counsel was ineffective when he
failed to object to the trial court’s allegedly improper comment on the
evidence. Comments on the evidence occur when a trial court “expresses
its opinion to the jury as to what the evidence shows, or when it misinforms
the jury that a fact has been proven when the fact remains a subject of
dispute. The Arizona Constitution forbids trial judges from making such
comments to a jury.” State v. Wolter, 197 Ariz. 190, 193, ¶ 14, 3 P.3d 1110,
1113 (App. 2000) (internal citation omitted). During closing argument,
Spurling’s counsel argued the evidence showed one of the victims had been
coached. The State objected, arguing those facts were not in evidence. The
trial court responded:

       Well, Ladies and Gentlemen of the Jury, there’s been an
       objection to that statement. I’m going to leave that up to you.
       Quite frankly, I don’t remember that testimony, and so I can’t
       really rule on that. You’re going to have to rely on your
       individual memories in regards to what counsel just stated.

Spurling argues the court’s statement communicated to the jury that the
court “did not remember that being the evidence.” We deny relief because
the court’s statement was not an objectionable comment on the evidence.
The statement communicated that the jury would have to rely on its own
memory because the court did not remember the testimony. It did not
communicate that the court disagreed with defense counsel’s interpretation
of the testimony. The trial court did not make an improper comment on the
evidence and abuse its discretion when it denied relief on this issue.

¶14            Finally, although the petition for review presents additional
issues, Spurling did not raise those issues in the petition for post-conviction
relief he filed with the trial court. A petition for review may not present
issues not first presented to the trial court. State v. Ramirez, 126 Ariz. 464,
468, 616 P.2d 924, 928 (App. 1980); Ariz. R. Crim. P. 32.9(c)(1)(ii).

¶15           We grant review but deny relief.




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