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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

       FRANCISCO MANUEL NIEBLAS RODRIGUEZ, Appellant.

                             No. 1 CA-CR 18-0899
                               FILED 1-16-2020


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-160844-001
                  The Honorable Mark H. Brain, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Casey Ball
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
                          STATE v. RODRIGUEZ
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Judge Michael J. Brown joined.


C A M P B E L L, Judge:

¶1           Francisco Manuel Nieblas Rodriguez appeals his convictions
and sentences for multiple counts of armed robbery, aggravated assault,
kidnapping, and attempted armed robbery. Rodriguez challenges the
superior court’s denial of his motion to sever, and contends the court erred
by allowing the victims to remain in the courtroom during each other’s trial
testimony. For the following reasons, we affirm.

                             BACKGROUND1

¶2             Based on evidence collected from eight attempted or
completed robberies at check-cashing businesses, the State charged
Rodriguez with seven counts of armed robbery, nine counts of aggravated
assault, seven counts of kidnapping, and two counts of attempted armed
robbery.2 Before trial, Rodriguez moved to sever the charges. He argued
that each offense should be tried separately because they occurred on eight
different days over a period of months, were dissimilar in modus operandi,
and the witness’s description of the suspect differed. He also argued he
would be denied a fair trial if all nine victims were allowed to testify before
the same jury. The superior court denied the motion. The court found
severance was not warranted because the stipulated facts indicated the
robberies were committed in a similar fashion. Namely, the robberies took
place at similar places of business by an assailant with a similar description
at a similar time of the business day with similar victims. The court also




1      We view the facts in the light most favorable to sustaining the jury’s
verdicts and resolve all reasonable inferences against Rodriguez. State v.
Payne, 233 Ariz. 484, 509, ¶ 93 (2013).

2      The State also charged Rodriguez with one count of misconduct
involving weapons, which the superior court ultimately dismissed with
prejudice.


                                      2
                          STATE v. RODRIGUEZ
                           Decision of the Court

found evidence of the incidents would be cross-admissible at separate
trials.

¶3            As trial began, Rodriguez asked the court to exclude one of
the victims from the courtroom, and he re-urged his motion to sever. The
court denied the request to exclude the victim and implicitly denied the
motion to sever. During the State’s presentation of evidence, Rodriguez
renewed his severance motion because the victims in the courtroom heard
one another testify and identify him as the man who committed each
individual robbery. The court treated the motion to sever as a “motion for
mistrial and lack of severance,” which it denied.

¶4           The jury found Rodriguez guilty of the 25 charged offenses.
The superior court sentenced Rodriguez to concurrent prison terms, the
longest being 33 years. Rodriguez timely appealed.

                               DISCUSSION

I.     The superior court did not err by denying Rodriguez’s motion to
       sever.

¶5            Rodriguez challenges the superior court’s denial of his
severance motion, arguing the State improperly joined the offenses under
Arizona Rule of Criminal Procedure 13.3(a). We review the denial of a
severance motion for an abuse of discretion. State v. Prince, 204 Ariz. 156,
159, ¶ 13 (2003).

¶6            Multiple offenses may be joined in a complaint if they “are of
the same or similar character[.]” Ariz. R. Crim. P. 13.3(a)(1). However, the
court must sever joined offenses if “necessary to promote a fair
determination of any defendant’s guilt or innocence of any offense.” Ariz.
R. Crim. P. 13.4(a). Further, a defendant is entitled to severance of right if
the “offenses [are] joined solely under Rule 13.3(a)(1), unless evidence of
the other offense or offenses would be admissible if the offenses were tried
separately.” Ariz. R. Crim. P. 13.4(b).

¶7             Arizona Rule of Evidence 404(b) generally precludes the
admission of “evidence of other crimes, wrongs, or acts . . . to prove the
character of a person in order to show action in conformity therewith.” But
other-act evidence may be admitted for other purposes, including proving
the identity of the perpetrator. Ariz. R. Evid. 404(b). “The identity exception
to [Rule] 404(b) applies if identity is in issue, and if the behavior of the
accused both on the occasion charged and on some other occasion is
sufficiently distinctive, then proof that the accused was involved on the


                                      3
                           STATE v. RODRIGUEZ
                            Decision of the Court

other occasion tends to prove his involvement in the crime charged.” State
v. Goudeau, 239 Ariz. 421, ¶ 58 (2016) (quoting State v. Stuard, 176 Ariz. 589,
597 (1993)). Although “[t]he pattern and characteristics of the crimes must
be so unusual and distinctive as to be like a signature,” id. (quoting Stuard,
176 Ariz. at 597) “identity in every particular is not required. [T]here must
be similarities between the offenses in those important aspects ‘when
normally there could be expected to be found differences.’” State v. Roscoe,
145 Ariz. 212, 216 (1984) (quoting State v. Jackson, 124 Ariz. 202, 204 (1979)).
Identity was the central issue in this case—Rodriguez asserted he was not
the robber. Provided the incidents were sufficiently similar, the State could
properly introduce evidence of the other robberies to prove Rodriguez also
committed the other offenses even though they occurred on a different date.

¶8           Rodriguez argues the offenses did not share sufficiently
similar characteristics to permit a joint trial. The superior court disagreed,
as do we.

¶9              When Rodriguez first moved to sever the charges, the parties
stipulated to a set of facts.3 Namely—that on eight occasions from April 19
to December 30, 2016, the assailant approached lone female employees of
cash-checking stores as they were opening or closing the businesses.
Brandishing a handgun, the assailant either attempted to or gained entrance
to employee-only areas of the stores and demanded the women open safes
and registers to get him money. The assailant wore dark, long sleeved
clothing and a black baseball cap. After several of the robberies, the
assailant left in a white sedan.4

¶10            The court considered the stipulated facts when denying the
motion to sever―eight robberies were committed over the course of
approximately eight months. The robberies all took place at similar cash
businesses during a time of day when customers were less likely to be
present. All the victims were women. In each instance a demand for money
was made while a handgun was brandished as a threat. The assailant wore
similarly described dark clothing during each incident. To be sure, the
robberies do not share identical characteristics, but such precision is not
necessary. The robberies all bore sufficient evidentiary similarity to
implicate a single perpetrator. The superior court did not abuse its

3     “[W]e consider only the evidence before the court when it ruled on
the motion to sever.” Goudeau, 239 Ariz. at 444–45, ¶ 60.

4      The trial evidence, with the addition of the nine victims’ in-court
identifications of Rodriguez, is consistent with the foregoing facts.


                                       4
                           STATE v. RODRIGUEZ
                            Decision of the Court

discretion by concluding the charges were properly joined under Rule
13.4(a)(1).

¶11           Rodriguez nonetheless complains he was entitled to
severance because the number of charges and the number of victims could
cause the jury to convict him, not based on the evidence supporting each
individual count, but on a “criminal propensity” theory, the exact
circumstance that motivated the preclusion of other acts evidence. Ariz. R.
Evid. 404(b). We reject this argument. First, for the reasons stated, see supra
¶ 10, the other-act evidence was admissible under Rule 404(b) to prove
identity of the assailant from each incident. Further, the superior court
instructed the jury to consider each count separately from the other counts,
and the prosecutor and defense counsel both reiterated this requirement
during closing arguments. We presume jurors follow the court’s
instructions. State v. McCurdy, 216 Ariz. 567, 574, ¶ 17 (App. 2007).

II.    The superior court properly denied Rodriguez’ request to prohibit
       the victims from hearing each other’s trial testimony.

¶12            Rodriguez argues the superior court committed reversible
error by allowing the victims to observe each other’s trial testimony.
Rodriguez asserts that by observing other victims identify him as the
perpetrator, the victims who subsequently testified were influenced by the
previous identification testimony. Reviewing for an abuse of discretion, we
reject this argument. State v. Wilson, 185 Ariz. 254, 259 (App. 1995).

¶13            The Victim’s Bill of Rights (“VBR”), Ariz. Const. art. II,
§ 2.1(12)(C), and statutory implementation act, A.R.S § 13-4401 et. seq., were
enacted “to provide crime victims with basic rights of respect, protection,
participation and healing of their ordeals.” Champlin v. Sargeant In & For
Cty. of Maricopa, 192 Ariz. 371, 375, ¶ 20 (1998) (internal citation omitted).
We construe the victims’ rights statutes “liberally to preserve and protect
the rights to which victims are entitled.” A.R.S. § 13-4418. Victims’ rights
arise on the defendant’s arrest or formal charging and continue to be
enforceable “until the final disposition of the charges, including acquittal or
dismissal of the charges, all post-conviction release and relief proceedings
and the discharge of all criminal proceedings relating to restitution.” A.R.S.
§ 13-4402 (emphasis added); State v. Leonardo, ex rel. Cty. of Pima, 226 Ariz.
593, 594, ¶ 5 (App. 2011). Victims have a right to remain in the courtroom
under the VBR. A.R.S. § 13-4420. This right is not limited by joinder of
counts. See generally Ariz. Const. art. II, § 2.1(12)(C); A.R.S § 13-4401 et. seq.
Until final disposition of the charges, each victim maintains the right to be
present. Leonardo, 226 Ariz. at 594, ¶ 5.


                                        5
                            STATE v. RODRIGUEZ
                             Decision of the Court

¶14             As defense counsel conceded at trial, the victims “unlike other
witnesses, . . . have a right to watch the trial.” Ariz. Const. art. II § 2.1(A)(3)
(“To preserve and protect victims’ rights to justice and due process, a victim
of a crime has a right . . . [t]o be present at . . . all criminal proceedings where
the defendant has the right to be present.”); A.R.S. § 13-4420 (“The victim
has the right to be present throughout all criminal proceedings in which the
defendant has the right to be present.”); Ariz. R. Crim. P. 9.3(a) (noting a
crime victim is an exception to the trial court’s authority to exclude
prospective witnesses from the courtroom during opening statements and
other witnesses’ testimony).

¶15            Further, the superior court did not prevent Rodriguez from
presenting the issue of victim influence to the jury. In fact, defense counsel
implied during closing arguments that the victims’ identification of
Rodriguez was influenced by their observations of other victims identifying
him during the trial. The jurors, in fulfilling their proper role to determine
the credibility and weight to be afforded testimony, State v. Toney, 113 Ariz.
404, 408 (1976), apparently did not find counsel’s argument sufficiently
persuasive.

¶16            Rodriguez contends State v. Nichols held that a crime victims’
rights are “specific to the crime committed against the named victim.”
Thus, the eight victims should only have been allowed to remain in the
courtroom while evidence of the crime in which they were a victim was
being presented. See 224 Ariz. 569, 574, ¶ 22 (App. 2010). However, that
proposition was not relevant to the holding in that case. In Nichols, this
court concluded that, although a person against whom an offense is
committed while they are in custody does not enjoy victim status under the
VBR, a victim’s rights “are not thereafter lost if the victim subsequently
should be in custody for an unrelated offense.” Nichols, 224 Ariz. at 574,
¶ 22 (internal quotations omitted). The language Rodriguez cites was part
of our holding in in State v. Stauffer. 203 Ariz. 551, 555, ¶ 9 (App. 2002). In
that case, we addressed the rights of victims who are called pursuant to
404(c) for the purpose of proving a defendant’s sexual propensity in a later
prosecution for a similar offense. We concluded that the victim of a prior
charged offense retains the right to decline a pretrial interview but does not
enjoy every right available under the VBR, including the right to participate
in the later prosecution’s proceedings. 203 Ariz. at 555. We also concluded
that victim’s rights arise upon the arrest or charging of a defendant for the
offense in which the witness claims victim status. A.R.S. § 13-77012(A).
Neither Nichols nor Stauffer are applicable to the issues in this case. Id.;
Nichols, 224 Ariz. at 574, ¶ 22.



                                         6
                          STATE v. RODRIGUEZ
                           Decision of the Court

¶17             Here we address whether different victims of similar
offenses, tried simultaneously, have the right to be present during the entire
trial. For the reasons set forth above, we determine they do. The superior
court did not abuse its discretion by allowing the victims to observe each
other’s trial testimony.

                               CONCLUSION

¶18           For the foregoing reasons, we affirm.




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




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