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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                RUSSELL EUGENE SHIELDS II, Appellant.

                             No. 1 CA-CR 14-0181
                               FILED 9-24-2015


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201101029
           The Honorable Derek C. Carlisle, Judge, Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Eliza C. Ybarra
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
                           STATE v. SHIELDS
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge John C. Gemmill joined.


J O H N S E N, Judge:

¶1            Russell Eugene Shields appeals his conviction and sentence
for second degree murder. Shields argues the evidence was insufficient to
support his conviction. He further argues the superior court erred when it
did not properly respond to a question from the jury, when it refused to
order the production of a recording of a witness's "free talk," when it
violated Shields's right to confrontation and when it failed to find sentence
disparity as a mitigating circumstance for sentencing purposes. For the
reasons that follow, we affirm Shields's convictions and the resulting
sentences.

             FACTS AND PROCEDURAL BACKGROUND

¶2            The State charged Shields with first degree murder, Class 1
felony; abandonment of a body, a Class 5 felony; tampering with physical
evidence, a Class 6 felony; hindering prosecution, a Class 3 felony; and
misconduct involving weapons, a Class 4 felony. The State alleged
alternate theories of premeditated and felony murder and further alleged
both principal and accomplice liability. The jury acquitted Shields of first
degree murder but found him guilty of the lesser-included offense of
second degree murder. It also found him guilty of the remaining counts as
charged. The superior court sentenced Shields to an aggravated term of 24
years' imprisonment for second degree murder and concurrent, shorter
sentences of imprisonment for the remaining counts. Shields filed a timely
notice of appeal.

                              DISCUSSION

¶3           Shields appeals his conviction and sentence for second
degree murder, a Class 1 felony.1 We have jurisdiction pursuant to the
Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes


1     Shields raises no issues regarding his other convictions or sentences.



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                            STATE v. SHIELDS
                            Decision of the Court

("A.R.S.") sections 12-120.21(A)(1) (2015), 13-4031 (2015) and -4033(A)(1), (4)
(2015).2

A.     Sufficiency of the Evidence.

¶4           Shields argues the evidence was insufficient to support his
conviction for second degree murder whether as a principal or an
accomplice. Shields contends the evidence was insufficient because his
former codefendant, Langan, provided the only direct evidence against
Shields and Langan was not credible.

¶5             As Shields was charged and as the jury was instructed, a
person commits second degree murder if the person, without
premeditation: (1) intentionally causes the death of another person; or (2)
causes the death of another person knowing his or her conduct will cause
death or serious physical injury; or (3) causes the death of another person
by recklessly engaging in conduct that creates a grave risk of death and the
person does so under circumstances that manifest extreme indifference to
human life. See A.R.S. § 13-1104(A)(1)-(3) (2015). Further, a person is
criminally liable for the conduct of another if the person is an "accomplice"
in the commission of the offense, including "any offense that is a natural
and probable or reasonably foreseeable consequence of the offense for
which the person was an accomplice." A.R.S. § 13-303(A)(3) (2015). An
"accomplice" is a person "who with the intent to promote or facilitate the
commission of an offense: . . . [s]olicits or commands another person to
commit the offense; or . . . [a]ids, counsels, agrees to aid or attempts to aid
another person in planning or committing an offense . . . . [or] [p]rovides
means or opportunity to another person to commit the offense." A.R.S. §
13-301(1)-(3) (2015).

¶6            "Reversible error based on insufficiency of the evidence
occurs only where there is a complete absence of probative facts to support
the conviction." State v. Soto-Fong, 187 Ariz. 186, 200 (1996) (quoting State v.
Scott, 113 Ariz. 423, 424-25 (1976)). "To set aside a jury verdict for
insufficient evidence it must clearly appear that upon no hypothesis
whatever is there sufficient evidence to support the conclusion reached by
the jury." State v. Arredondo, 155 Ariz. 314, 316 (1987).

¶7           "We construe the evidence in the light most favorable to
sustaining the verdict, and resolve all reasonable inferences against the


2      Absent material revision after the date of an alleged offense, we cite
a statute's current version.


                                       3
                            STATE v. SHIELDS
                            Decision of the Court

defendant." State v. Greene, 192 Ariz. 431, 436, ¶ 12 (1998). In our review of
the record, we resolve any conflict in the evidence in favor of sustaining the
verdict. State v. Guerra, 161 Ariz. 289, 293 (1989). We do not weigh the
evidence, however; that is the function of the jury. See id.

¶8             According to the evidence, Shields was a drug dealer who
owed his suppliers $8,000 and was unable to pay his mortgage and risked
losing his home. A ledger in Shields's home contained the victim's name
alongside a notation of $800. The night of the murder, Shields, Langan, Ellis
and others went bowling. Shields had to borrow money from Ellis so he
and his girlfriend could bowl. The group later went to Ellis's home. Shields
borrowed more money from Ellis later that night so he could pay his
mortgage.

¶9              The murder victim met with people at a motel at
approximately midnight that same night. While he was there, the victim
received a phone call. After he completed the call, he told the others he had
to go "to the other side of the tracks" to "re-up" and buy a quarter ounce of
methamphetamine. The victim had approximately $400 when he left.
Shields and Langan left Ellis's home together sometime that night. They
returned forty-five minutes to one hour later. Shields arrived in a car and
Langan arrived on foot. Shields looked like he had "run a marathon" and
Langan was pale and threw up in the front yard. Langan carried some
clothing he later washed at Ellis's home. Shields also had $400 he did not
have earlier. Shields gave that $400 and the other money he borrowed from
Ellis to his girlfriend to pay their mortgage.

¶10             A witness found the victim in a parked car about an hour after
the victim had left the hotel to go to "the other side of the tracks." The victim
died of a gunshot wound to the upper left chest. The $400 the victim had
when he was at the motel approximately one hour earlier was gone. The
last call the victim received on his cellphone occurred at 12:18 a.m. and was
from a cellphone Shields used. There were other calls between the two
cellphones earlier that evening.

¶11            The State did not call Langan to testify, but Shields called him.
Langan testified he and Shields left Ellis's home to meet the victim at
Shields's home. Shields and Langan planned to "rough up" the victim and
get him "in line" because the victim owed people money. The victim arrived
at Shields's home soon after Shields and Langan. Shields and the victim
talked in the garage while Langan went to use drugs in a bathroom. Langan
heard a shot while he was in the bathroom and re-entered the garage to find
Shields apologizing and saying, "I messed up." Langan disassembled the


                                       4
                            STATE v. SHIELDS
                            Decision of the Court

gun Shields used to shoot the victim and they later discarded the
components in a field. Investigators found components of a .380 semi-
automatic handgun in the field after Langan told them where to search.
Shields carried a .380 caliber semi-automatic handgun.

¶12           Shields and Langan loaded the victim's body into the victim's
car and Shields cleaned the garage floor. Langan then drove the victim's
vehicle to the location where they abandoned it, while Shields followed in
his vehicle. They then returned to Ellis's home, where Langan washed his
clothes.

¶13            Langan admitted he told a number of different stories about
the shooting during his interviews with investigators, including stories in
which he portrayed himself as the shooter, but claimed those were all lies
he told in an effort to protect Shields. Langan claimed he stopped trying to
protect Shields after he learned Shields blamed Langan for the murder.

¶14           The jury watched videos of four separate interviews Shields
gave to law enforcement officers. In those videos, Shields ultimately
admitted he was present when the murder occurred in his garage, but
claimed Langan shot the victim. Shields also admitted he helped clean the
scene. Deoxyribonucleic acid ("DNA") obtained from blood on one of
Shields's shoes matched the victim's DNA.

¶15           The above evidence was more than sufficient to support
Shields's conviction for second degree murder as a principal or an
accomplice under any of the three theories charged. That there may have
been issues with Langan's credibility is of no matter. "The credibility of
witnesses is an issue to be resolved by the jury." Soto-Fong, 187 Ariz. at 200
(quoting Scott, 113 Ariz. at 425). "Because a jury is free to credit or discredit
testimony, we cannot guess what they believed, nor can we determine what
a reasonable jury should have believed." State v. Bronson, 204 Ariz. 321, 328,
¶ 34 (App. 2003) (quoting State v. Bass, 198 Ariz. 571, 582, ¶ 46 (2000)).
Further, whether the jury believed any of Langan's testimony is
speculation; moreover, Langan's testimony was not necessary to obtain a
conviction. Along with Shields's videotaped admissions, the circumstantial
evidence was more than sufficient to support the conviction. See State v.
Murray, 184 Ariz. 9, 31 (1995) ("The probative value of evidence is not
reduced because it is circumstantial."); State v. Burton, 144 Ariz. 248, 252
(1985) (conviction may be based only on circumstantial evidence).




                                       5
                           STATE v. SHIELDS
                           Decision of the Court

B.   The Court's Response to the Jury Question.

¶16            Shields argues the superior court erred by how it responded
to a juror's question during deliberations. The question read, "This question
is in regard to what makes an accomplice. An accomplice to the offense
(murder). If [Shields] cleaned up the evidence, but didn't know [Langan]
was going to murder [the victim]; would the cleaning up of evidence make
him an accomplice to the offense (murder)?"

¶17           The superior court explained to the parties that it could not
answer the question "yes" or "no" because it was not a "cut and dried
question." The court noted that Shields could be an accomplice to first
degree felony murder as charged if Shields was an accomplice to the
robbery or attempted robbery of the victim and in the course of the robbery
Langan caused the victim's death. See A.R.S. § 13-1105(A)(2) (2015) (first
degree felony murder based on robbery and/or attempted robbery). This
would permit liability even if Shields did not "know" Langan would
murder the victim. The court ruled the accomplice instructions it gave were
adequate and ruled it would simply tell the jury to refer to the instructions
given.

¶18            Shields, however, asked the court to respond, "You'll have to
base your decision on the evidence, comma, and on the definition of
accomplice, comma, previously presented during the trial. . . . Something
like that." Shields explained he wanted to "steer" the jury to the accomplice
instructions. The court denied Shields's request. The court believed
Shields's requested response would highlight one instruction over the
others and further highlight specific evidence even if it did not constitute a
comment on the evidence. The court believed the question required
consideration of all the applicable instructions and not just the accomplice
instruction. The court ultimately referred the jury back to the instructions
given.

¶19            On appeal, Shields does not assert the superior court erred
when it failed to give the response to the jury question Shields requested at
trial. It is only now on appeal that Shields contends the superior court
should have responded, "No."

¶20           "In general, the decision as to whether and how to respond to
a question from the jury is the province of the trial court" and is reviewed
for an abuse of discretion. Harrington v. Beauchamp Enters., 158 Ariz. 118,
121 (1988). Because Shields did not argue below that the court should have
answered "no," we review for fundamental error. See State v. Gendron, 168



                                      6
                            STATE v. SHIELDS
                            Decision of the Court

Ariz. 153, 154 (1991) (failure to raise an issue at trial waives all but
fundamental error). "To establish fundamental error, [a defendant] must
show that 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." State v. Henderson, 210 Ariz. 561,
568, ¶ 24 (2005). Such a defendant must establish both fundamental error
and that the error was prejudicial. Id. at ¶ 26.

¶21           There was no error, fundamental or otherwise. The final
instructions more than adequately addressed the law of accomplice
liability. The instructions informed the jury that to find Shields was an
accomplice, the jury had to find he intended to promote or facilitate the
commission of the offense and then: (1) solicited or commanded another
person to commit the offense; or (2) aided, counseled, agreed to aid or
attempted to aid another person in planning or committing the offense; or
(3) provided means or opportunity to another person to commit the offense.
See A.R.S. § 13-301(1)-(3). Shields does not contend the instructions
misstated the law or were confusing or misleading. Further, we presume
juries follow their instructions. State v. Dunlap, 187 Ariz. 441, 461 (App.
1996).

¶22             Finally, the question was an inartfully worded hypothetical
that did not take into account all the facts presented in the case and
effectively asked the court to apply the instructions to that hypothetical and
tell the jurors if Shields was an accomplice under those facts. It is the jury's
function to determine the facts based on the evidence, apply the law given
in the final instructions to those facts and determine guilt or innocence. It
is not the superior court's function to respond to incomplete "what if"
hypotheticals and make determinations for the jury. The superior court did
not err when it responded to the question by referring the jury back to the
previously given instructions.

C.     Denial of the Motion to Disclose the "Free Talk."

¶23          Shields asserts the superior court erred when it denied his
motion to disclose the recording of a "free talk" Langan gave to law
enforcement officers.3 The court reviewed the recording in camera and held
it contained nothing that tended to mitigate or negate Shields's guilt or



3      Shields's argument implies the State refused to produce the
recording of the free talk. The State did not disclose the recording because
the superior court ordered it did not have to.


                                       7
                            STATE v. SHIELDS
                            Decision of the Court

reduce his punishment. The court further held Shields failed to
demonstrate he had a substantial need for the recording.

¶24           We review the determination of whether the State must
disclose evidence for abuse of discretion. See State v. Cordova, 198 Ariz. 242,
244, ¶ 6 (App. 1999). The State must disclose all material information in its
possession or control that "tends to mitigate or negate the defendant's guilt
as to the offense charged, or which would tend to reduce the defendant's
punishment therefor." Ariz. R. Crim. P. 15.1(b)(8); see also Brady v. Maryland,
373 U.S. 83, 87 (1963). The court may order disclosure of additional
materials and information if the defendant demonstrates a "substantial
need" for the material for the preparation of the defendant's case, and the
defendant cannot "without undue hardship" obtain the material. See Ariz.
R. Crim. P. 15.1(g).

¶25             "[T]he obvious purpose of exculpatory evidence is to
contradict the Government's evidence against the accused." United States v.
Quinn, 728 F.3d 243, 262-63 (3d. Cir. 2013). Exculpatory evidence is material
"if there is a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different."
Strickler v. Greene, 527 U.S. 263, 280 (1999) (quoting United States v. Bagley,
473 U.S. 667, 682 (1985)). "There is never a real 'Brady violation' unless the
nondisclosure was so serious that there is a reasonable probability that the
suppressed evidence would have produced a different verdict." Strickler,
527 U.S. at 281. "The mere possibility that an item of undisclosed
information might have helped the defense, or might have affected the
outcome of the trial, does not establish 'materiality' in the constitutional
sense." United States v. Agurs, 427 U.S. 97, 109-10 (1976).

¶26            The superior court did not abuse its discretion when it denied
Shields's motion to disclose the free talk. We have reviewed the recording
of the free talk and there is nothing in the recording that tends to mitigate
or negate Shields's guilt, nor is there anything in the recording that would
tend to reduce his punishment. The free talk is consistent with the evidence
introduced at trial concerning Shields's involvement in the murder and in
some ways is even more inculpatory. There is no reasonable probability
that anything in the free talk would have produced a different verdict or
resulted in a reduced sentence.

D.    Limitation of the Examination of Langan.

¶27          Shields argues the superior court interfered with his right to
confrontation when it granted the State's motion in limine regarding



                                      8
                           STATE v. SHIELDS
                           Decision of the Court

Langan's conviction and sentence, when it excluded evidence of the free
talk Langan had with law enforcement officers, and when it excluded
evidence that Langan had worked as a confidential informant in Texas. We
review evidentiary rulings for abuse of discretion. State v. Amaya-Ruiz, 166
Ariz. 152, 167 (1990).      To the extent those rulings implicate the
Confrontation Clause, we review de novo. State v. Ellison, 213 Ariz. 116, 129,
¶ 42 (2006).4

              1.     The motion in limine.

¶28           Langan pled guilty to hindering prosecution and received a
sentence of 8.75 years' imprisonment.5 The State filed a motion in limine to
exclude information regarding the length of Langan's sentence and the fact
that his conviction was the result of a plea agreement. The superior court
granted the motion in limine as to the existence of a plea agreement and the
length of Langan's sentence. The court further held, however, that Shields
could introduce evidence that Langan had a felony conviction for hindering
prosecution.

¶29           The superior court did not err in its ruling regarding the
manner in which Shields could question Langan about his record. Shields
informed the court more than once that he had no objection to the State's
motion in limine so long as he could ask Langan if he had originally been
charged with murder together with Shields. The court allowed Shields to
address this area and noted that the jury already knew Langan had been
charged with first degree murder together with Shields because the court
read the indictment that named both of them. Having told the court he did

4       Shields contends "[t]he error deprived [him] of the benefit of the
Confrontation Clause of the Sixth Amendment by improperly limiting the
cross-examination of the co-defendant/accomplice." Further, all the cases
Shields cites address confrontation and cross-examination of prosecution
witnesses who testify against the defendant. As noted above, however, the
State did not call Langan to testify. Shields did. This was not cross-
examination of a witness who gave evidence against Shields on behalf of
the State. This was direct examination of a witness Shields himself called
to testify.

5      Langan did not enter the plea bargain in exchange for his testimony
in this case and there was otherwise no "testimonial agreement" with
Langan.




                                      9
                           STATE v. SHIELDS
                           Decision of the Court

not object to the State's motion, Shields may not complain about the ruling
on appeal.

             2.     Exclusion of evidence of the free talk.

¶30           Shields also argues the court erred when it refused to allow
him to impeach Langan with evidence that he gave a free talk.6 The court
did not abuse its discretion. Shields never sought to ask Langan if he gave
a free talk. Shields sought to ask a detective if Langan gave a free talk.
Shields argued this was relevant to Langan's bias and veracity. The court
excluded the questions regarding the free talk as irrelevant at that time and
of no probative value because Langan had not yet testified. When Shields
ultimately called Langan to testify, Shields never sought to question him
about the free talk and we will not speculate that the superior court would
have excluded that evidence at that time.

             3.     Langan's work as an informant.

¶31           In his final argument on this issue, Shields contends the
superior court erred when it excluded evidence that Langan had worked as
an informant in Texas. There was no error. The court admitted evidence
that Langan worked with law enforcement as a confidential informant in El
Paso, Texas in 2000.

E.   "Operation Street Sweeper" and the Cross-Examination of Ellis.

¶32           Shields contends the superior court interfered with his right
to confront Ellis when it denied his motion to produce records about a law
enforcement investigation called "Operation Street Sweeper" and when it
limited Shields's cross-examination of Ellis.

      1.     The motion to produce.

¶33           "Operation Street Sweeper" was a drug investigation that took
place in August 2013, more than two years after the murder. In his motion
to produce records from that operation, Shields claimed law enforcement
officers either questioned or arrested Ellis as part of that investigation.

6      Despite Shields's suggestions to the contrary, there was no evidence
Langan's free talk was in any way related to the dismissal of the murder
charge, the plea agreement he entered into or the sentence he received, nor
is there any evidence Langan ultimately received any benefit for the free
talk. Finally, as noted above, there was no evidence of any testimonial
agreement between Langan and the State.


                                     10
                            STATE v. SHIELDS
                            Decision of the Court

Shields, however, offered nothing to support his assertions. The superior
court denied the motion and held that any questioning of Ellis in an
unrelated investigation two years after the murder was irrelevant and/or
that any probative value was outweighed by the danger of confusion.

¶34            The superior court did not abuse its discretion when it denied
the motion to produce records from an unrelated investigation that
occurred more than two years after the murder. This is especially true in
light of the fact that there is no evidence Ellis testified in this case pursuant
to any agreement entered into as a result of Operation Street Sweeper or
any other investigation, nor is there any evidence Ellis was arrested or
charged as a result of that investigation.

              2.      The cross-examination of Ellis.

¶35            Shields argues the superior court erred when it refused to
allow Shields to ask Ellis if he was facing criminal charges at the time of
trial. There was no error because the record reveals the court did not
exclude that examination. The court expressly told Shields he could ask
Ellis if he was facing any criminal charges at that time. Even with the court's
permission, however, Shields did not do so.7 Further, Shields asked Ellis if
he was "under a certain amount of pressure from the police right now" and
did so without objection from the State. Ellis responded, "Not that I'm
aware of."

F.     Sentencing.

¶36           Finally, Shields argues the superior court erred when it failed
to find the disparity between the 8.75-year sentence Langan received for
hindering prosecution and the significantly longer sentence Shields would
receive for second degree murder was a mitigating factor for sentencing
purposes.8 When a court imposes a sentence within the statutory range, we
will not disturb that sentence absent an abuse of discretion. State v. Jenkins,
193 Ariz. 115, 121, ¶ 25 (App. 1998).

¶37          The superior court did not abuse its discretion. First, a court
need not find a mitigating circumstance simply because there is evidence

7      We note that to ask a question implying the existence of a prejudicial
factual predicate that the examiner cannot support by evidence is
unprofessional conduct. State v. Holsinger, 124 Ariz. 18, 20-22 (1979).

8     Shields waived his right to have a jury determine the existence of
aggravating factors for sentencing purposes.


                                       11
                            STATE v. SHIELDS
                            Decision of the Court

of that circumstance. The court need only consider that circumstance. Id.
Here, the superior court explained that it considered the disparity between
Shields's and Langan's sentences in determining the appropriate sentence
for murder. Nothing more was required and that alone defeats Shields's
contention. Second, "[a] disparity in sentences between codefendants
and/or accomplices can be a mitigating circumstance if no reasonable
explanation exists for the disparity." State v. Kayer, 194 Ariz. 423, 439, ¶ 57
(1999) (emphasis added). "Only the unexplained disparity is significant."
Ellison, 213 Ariz. at 140, ¶ 105. Here, the superior court held that while it
had considered Langan's sentence, it would not consider disparity as a
mitigating circumstance because there was an explanation for the disparity.
This included the DNA evidence that connected Shields to the murder and
the fact that Langan identified Shields as the person who shot the victim.
We also note there was evidence the victim was murdered with Shields's
handgun and in Shields's garage, that the victim owed Shields $800 and that
it was Shields who benefited financially from the victim's death, and that
the last call the victim received on his cell phone was from Shields. There
was no "unexplained disparity" in sentences.

                              CONCLUSION

¶38           We affirm Shields's convictions and resulting sentences.




                                  :ama




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