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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 JOSHUA THOMAS BARLOW, Appellant.

         Nos. 1 CA-CR 15-0541, 1 CA-CR 15-0546 (Consolidated)
                           FILED 8-30-2016


           Appeal from the Superior Court in Maricopa County
            No. CR2014-161382-001 and CR2013-458563-001
                    The Honorable Rosa Mroz, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Christopher V. Johns
Counsel for Appellant
                           STATE v. BARLOW
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Chief Judge Michael J. Brown and Judge Kenton D. Jones joined.


G O U L D, Judge:

¶1            Joshua Thomas Barlow appeals his convictions and sentences
in these consolidated cases. For the following reasons, we affirm.

I.     FACTUAL AND PROCEDURAL BACKGROUND

¶2            A grand jury indicted Barlow on one count of aggravated
assault, a class three dangerous felony, and one count of misconduct
involving weapons, a class four felony.1 The court severed trial of the
aggravated assault and misconduct involving weapons charges, and
ordered that Barlow stand trial first on the aggravated assault charge.

¶3            The evidence presented at trial showed that a witness
observed both Barlow and the victim in a bar before the stabbing. 2 The
witness watched Barlow leave the bar with the victim around midnight
while she was walking across the street to her car. Then, from about 50
yards away, she saw Barlow “hitting” the victim several times under a
streetlight. When the victim fell to the ground and Barlow fled from the
scene, she rushed over to help; at that point, she realized the victim had
been stabbed. The witness later identified Barlow to the police as the
individual who assaulted the victim; at trial, she stated she was “150
percent certain” of her identification.

¶4             Barlow was stopped while he was fleeing from the scene by
security officers in a nearby apartment complex. A switchblade knife was
recovered from Barlow’s back pocket. There was also blood on Barlow’s
right hand and on the knife blade.




1      Maricopa County Superior Court Case No. CR2014-161382-001.

2     We view the evidence in the light most favorable to supporting
Barlow’s aggravated assault conviction. State v. Boozer, 221 Ariz. 601, 601, ¶
2 (App. 2009).


                                      2
                            STATE v. BARLOW
                            Decision of the Court
¶5           The victim testified that he had drunk a lot of alcohol that
night, and did not remember who had stabbed him or what the person
looked like.

¶6              At the conclusion of the guilt phase of the trial, the jury found
Barlow guilty of aggravated assault. Then, following the aggravation phase
of the trial, the jury found the existence of two aggravating circumstances:
(1) Barlow was on probation at the time he committed the aggravated
assault,3 and (2) Barlow caused physical, emotional, or financial harm to the
victim. Barlow entered a plea of no contest to the remaining charge of
misconduct involving weapons.

¶7           Based on the guilty verdict, the court determined that Barlow
was automatically in violation of his probation in his prior case. The court
revoked his probation and sentenced him to concurrent presumptive terms
of one year on each count with credit for 243 days’ time served, and
designated both offenses as class six felonies.

¶8            In Barlow’s new case, the court imposed presumptive
sentences of 7.5 years for the aggravated assault conviction and 2.5 years
for the misconduct involving weapons conviction, to be served
concurrently with each other, but consecutive to the sentences for the
probation violation. Barlow filed timely appeals of the probation
revocation, and the convictions and sentences. This court ordered
consolidation of the appeals.

II.    DISCUSSION

       A.     Aggravation Hearing

¶9            Barlow argues he was unfairly prejudiced at the aggravation
hearing because the State was permitted to introduce evidence of the nature
of the offenses for which he was on probation. Specifically, Barlow claims
the State should have been limited to showing that he was on probation at
the time he committed the aggravated assault, and should not have been
allowed to show that he was on probation for aggravated assault and
possession of burglary tools.

¶10          Before opening statements at the aggravation trial, Barlow
asked the court to bifurcate the trial. Barlow argued that a bifurcated trial


3     Barlow was on probation for attempted aggravated assault and
possession of burglary tools, both undesignated felonies, in Maricopa
County Superior Court Case No. CR2013-458563-001.


                                       3
                            STATE v. BARLOW
                            Decision of the Court
was warranted to prevent any prejudice he might suffer from the jury
learning he was on probation before considering the aggravating
circumstance of emotional, physical, or financial harm to the victim. The
court denied the request. Following submission of the verdict forms to the
jury, Barlow asked for a mistrial on the same grounds. The court also
denied the mistrial, noting it had “already ruled on the issue.” We review
a trial court’s ruling on the admissibility of prior convictions for abuse of
discretion. State v. Green, 200 Ariz. 496, 498, ¶ 7 (2003).

¶11           The court did not abuse its discretion in denying Barlow’s
request to bifurcate the aggravation trial. Criminal Procedure Rule 19.1(b)
does not require that a post-conviction trial on a defendant’s probation
status be bifurcated from a post-conviction trial on aggravating
circumstances. See Ariz. R. Crim. P. 19.1(b) (providing generally that no
reference to prior offenses or sentencing allegations be made at trial of the
charged offense). The policy behind Rule 19.1(b) — “to prevent the jury
from being swayed by knowledge of past convictions when deciding the
defendant’s guilt or innocence of the present charge”4 — has no
applicability to a post-conviction determination of probation status and
aggravating circumstances. See State v. Gilbert, 119 Ariz. 384, 385 (1978)
(“The defendant does not, however, suffer this same prejudice when a jury
is determining the truth or falsity of a prior conviction after the conviction
of the defendant for the offense charged.”).

¶12           Moreover, any error in refusing to bifurcate was necessarily
harmless. To demonstrate that an error was harmless, the state must prove
beyond a reasonable doubt that the error in admitting the evidence “did not
contribute to or affect the verdict or sentence.” State v. Henderson, 210 Ariz.
561, 567, ¶ 18 (2005).

¶13            Here, the record clearly shows that Barlow was on probation
at the time of the instant offense; Barlow does not contest this fact on appeal.
Moreover, the court sentenced Barlow to a presumptive sentence, the
minimum sentence it could impose under A.R.S. § 13-708 as a result of the
jury finding he committed the instant offense while on probation. Under
these circumstances, any error in refusing to bifurcate the post-conviction
hearing was necessarily harmless.

¶14           Nor did the court reversibly err by failing to sua sponte sanitize
the offenses for which Barlow was on probation. Because Barlow did not
ask the court to sanitize the offenses, and raises this claim of error for the

4      State ex rel McDougall v. Mun. Court, 160 Ariz. 324, 326 (App. 1989)
(internal citation omitted).


                                       4
                            STATE v. BARLOW
                            Decision of the Court
first time on appeal, we review his claim for fundamental error only. See
Henderson, 210 Ariz. at 568, ¶ 22. On fundamental error review, Barlow has
the burden of proving that the court erred, that the error was fundamental
in nature, and that he was prejudiced thereby. Id. at ¶ 20. To prove
prejudice, Barlow must show that a reasonable jury or judge could have
reached a different result absent the error. Id. at ¶ 27.

¶15           Barlow has failed to meet his burden on fundamental error
review, because he has failed to show the necessary prejudice. Again, the
court sentenced Barlow to a presumptive sentence for his convictions, the
minimum sentence it could impose under A.R.S. § 13-708 based on the jury
determination he was on probation at the time of the instant offense. See,
supra, ¶ 13. He argues only that the jury’s finding that he was on probation
was unfairly prejudiced by admission of the nature of the offenses for which
he was on probation. This claim of prejudice is based on speculation, an
insufficient basis to establish prejudice on fundamental error review. See
State v. Munninger, 213 Ariz. 393, 397, ¶ 14 (App. 2006).

¶16           At sentencing, the court improperly determined Barlow was
eligible for community supervision as to his prison terms. The State
alleged, and the jury found, that he committed his offenses while on
probation for another felony conviction. As a result, pursuant to A.R.S. §
13-708(A), Barlow was required to serve flat-time sentences, as opposed to
being eligible for release on community supervision. See A.R.S. § 41-
1604.47(A). However, because the State has not filed an appeal or a cross-
appeal on this issue, we do not have jurisdiction to address it. See State v.
Dawson, 164 Ariz. 278, 286 (1990).

       B.     Eyewitness-identification Instruction

¶17           Barlow argues that the eyewitness-identification jury
instruction violated his due process right to a fair trial because it included
a “witness’s certainty” prong that scientific studies have shown has no
bearing on accuracy, and thus misled the jury.5


5
       In Appendix II, Barlow submits a list of books and articles regarding
studies on the reliability of eyewitness identification and “witness
certainty.” Because these sources were never presented to the trial court,
we grant the State’s motion to strike Appendix II. See Ariz. R. Crim. P.
31.13(c)(1)(vi) (the argument section of a brief must include “citations to the
authorities, statutes and parts of the record relied on”); State v. Schackart,
190 Ariz. 238, 247 (1997) (an appellate court cannot consider “materials that
are outside the record on appeal” because it “does not act as a fact-finder.”).


                                      5
                             STATE v. BARLOW
                             Decision of the Court
¶18             The witness’s level of certainty at the time of the identification
is one of five factors outlined in Neil v. Biggers, 409 U.S. 188 (1972) and used
by Arizona courts and given to the jury in the standard Arizona jury
instruction to determine the reliability of an eyewitness identification. See
Biggers, 409 U.S. at 199-200; Manson v. Brathwaite, 432 U.S. 98, 114 (1977);
State v. Williams, 144 Ariz. 433, 440 (1985) (reciting the Biggers factors as
those to “be examined in determining reliability” of a suggestive
identification); State v. Goudeau, 239 Ariz. 421, 454, ¶ 132 (2016) (same); State
v. Dessureault, 104 Ariz. 380, 384 (1969) (requiring an identification
instruction upon request when court has found pretrial procedure was
unduly suggestive, but proposed in-court identification was nevertheless
reliable); State Bar of Arizona, RAJI Std. Crim. 39 (Identification) (2013).

¶19           Here, the eyewitness identified Barlow shortly after the
stabbing when a police officer drove her to a nearby apartment complex
and shone a spotlight on a handcuffed Barlow. She again identified him at
trial. Following an evidentiary hearing, the court ruled that the pretrial
identification procedure was inherently suggestive, but that the
identification was nevertheless reliable and admissible at trial, and did not
taint any in-court identification. The eyewitness testified at trial that she
was “150 percent certain” of her identification.

¶20           Defense counsel objected below, and argues on appeal, that
the “witness’s level of certainty” should have been omitted from the jury
instruction as a factor in evaluating the reliability of an eyewitness
identification, because scientific evidence has shown that “the
eyewitness’[s] confidence does not correlate to whether the offense
occurred or not, is not a relevant consideration.” The court overruled
Barlow’s objection, reasoning, “I am going to be following the law. And the
law as it stands right now is that those are the factors the jury has to
consider, and so that will stay in the jury instructions.”

¶21            The court accordingly gave the jury the standard instruction
on the reliability of an eyewitness identification, including the objected-to
fourth prong addressing the “witness’s level of certainty at the time of the
pretrial identification” as follows:

       Identification. The state must prove beyond a reasonable
       doubt that the in-court identification of the defendant at this
       trial is reliable. In determining whether this in-court
       identification is reliable, you may consider such things as:
       One, the witness’[s] opportunity to view at the time of the
       crime; two, the witness’[s] degree of attention at the time of
       the crime; three, the accuracy of any descriptions the witness


                                        6
                             STATE v. BARLOW
                             Decision of the Court
       made prior to the pretrial identification; four, the witness’[s]
       level of certainty at the time of the pretrial identification; five,
       the time between the crime and the pretrial identification; six,
       any other factor that affects the reliability of the identification.

       If you determine that the in-court identification of the
       defendant at this trial is not reliable, then you must not
       consider that identification.

See State Bar of Arizona, RAJI Std. Crim. 39 (2013).

¶22           We review the adequacy of jury instructions in their entirety
to determine if they accurately reflect the law. State v. Hoskins, 199 Ariz. 127,
145, ¶ 75 (2000). We review de novo whether the given instruction correctly
states the law. State v. Solis, 236 Ariz. 285, 286, ¶ 6 (App. 2014). The
instructions must not mislead the jury. State v. Noriega, 187 Ariz. 282, 284
(App. 1996). “Closing arguments of counsel may be taken into account
when assessing the adequacy of jury instructions.” State v. Bruggeman, 161
Ariz. 508, 510 (App. 1989).

¶23           The trial court did not err in refusing Barlow’s request to
eliminate one of the Biggers factors, the witness’s certainty, from the
standard jury instruction on eyewitness identification testimony. The
instruction given adequately and accurately set forth the applicable law.
See Williams, 144 Ariz. at 440 (reciting the Biggers factors as “[t]he test for
determining whether a suggestive identification is otherwise reliable and
admissible.”) On appeal, Barlow does not argue the instruction fails to
accurately state the governing law; rather, he argues only that scientific
studies have shown that this factor has no bearing on the reliability of the
identification. However, no Arizona case has approved, much less
required, modification of the standard identification instruction in this
manner. The trial court accordingly did not err in denying Barlow’s request
to modify the instruction.

¶24             Additionally, Barlow had ample opportunity to highlight the
hazards of eyewitness-identification evidence, by exercising his right to
confront the witness and to appeal to the jury’s common sense in evaluating
credibility. Barlow’s trial counsel did not ask the court to allow him to
present expert testimony on the alleged weaknesses of eyewitness-
identification evidence. See State v. Chapple, 135 Ariz. 281, 293-98 (1983),
superseded on other grounds by A.R.S. § 13–756. Barlow’s counsel did,
however, vigorously cross-examine the witness who identified Barlow as
the assailant, highlighting the potential weaknesses of her identification,
i.e., by eliciting testimony that she had drunk at least one beer, she had


                                        7
                           STATE v. BARLOW
                           Decision of the Court
never seen the two men at the bar before that night, the lighting in the bar
was “not really bright,” the area where the two men walked was dark in
some areas, and the assailant disappeared for up to ten minutes after the
assault before she saw him again. Barlow’s counsel also argued at length
in closing that “[e]yewitness evidence is one of the weakest forms of
evidence,” and argued that the jury could find as a matter of common sense,
“eyewitnesses, they are certain, but they’re still wrong, sometimes . . .
confidence does not equal correctness, and that she has the right guy.”

¶25          Accordingly, based on this record, the court’s refusal to
modify the standard jury instruction on eyewitness identification did not
violate Barlow’s due process right to a fair trial.

III.   CONCLUSION

¶26          For the foregoing reasons, we affirm Barlow’s convictions and
sentences, and the revocation of his probation.




                          Amy M. Wood • Clerk of the court
                          FILED: AA




                                        8
