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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                JOHN STEPHEN WESTERFIELD, Appellant.

                             No. 1 CA-CR 16-0734
                               FILED 11-21-2017


           Appeal from the Superior Court in Maricopa County
              No. CR2012-127259-001, CR2014-001877-001
                  The Honorable Jose S. Padilla, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Elizabeth B. N. Garcia
Counsel for Appellee

The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
                         STATE v. WESTERFIELD
                           Decision of the Court




                      MEMORANDUM DECISION

Presiding Judge James P. Beene delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Kent E. Cattani joined.


B E E N E, Judge:

¶1            Defendant John Stephen Westerfield (“Westerfield”) appeals
his convictions and sentences, arguing that the superior court erred by
failing to dismiss his case based on prosecutorial vindictiveness. For the
following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            In May 2012, Westerfield was indicted on two counts of sexual
conduct with a minor against victim M.W. for events that occurred in June
2002 and on two counts of aggravated luring of a minor against another
victim, M.P., for events that occurred in May 2012.

¶3            In May 2014, the State indicted Westerfield on an additional
11 counts against M.P. for events that occurred from February to April 2012;
six counts of sexual exploitation of a minor and five counts of aggravated
luring of a minor.

¶4            The State moved to consolidate the 2012 and 2014 cases.
Westerfield objected. He argued, in pertinent part, that the 2014 charges
were “designed for a single purpose; to wit, in a fruitless attempt to compel
[him] to take a plea and deny him his right to trial by Jury.” Despite
Westerfield’s pledge to file a motion to dismiss for prosecutorial
vindictiveness, he failed to do so. After several continuances, the superior
court held an evidentiary hearing in August 2015 and consolidated the 2012
and 2014 cases.

¶5           Following a 13-day jury trial in March 2016, the jury found
Westerfield not guilty of the offenses against M.W. (Counts 1 and 2), but
found him guilty of the 13 offenses against M.P. (Counts 3-15). He was
sentenced to 20 years in prison.




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                          STATE v. WESTERFIELD
                            Decision of the Court

¶6          Westerfield timely appealed and we have jurisdiction
pursuant to Arizona Revised Statutes sections 12–120.21(A)(1), 13–4031,
and –4033(A)(1).

                                DISCUSSION

¶7            Westerfield argues that the superior court erred by not
dismissing his case based on prosecutorial vindictiveness.1 He contends
that when he rejected the State’s plea offer in the 2012 case, the “State
decided to punish” him for exercising his constitutional rights, rejecting the
plea offer, and requesting a speedy jury trial by indicting him on the
additional 11 counts in 2014.

¶8              Because Westerfield failed to move for dismissal on that basis
in the superior court, we review his argument only for fundamental,
prejudicial error. See State v. Henderson, 210 Ariz. 561, 568, ¶ 22 (2005).
Thus, Westerfield “bears the burden of establishing both that fundamental
error occurred and that the error caused him prejudice.” Id. Fundamental
error is error that “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.” Id. at ¶ 24.

¶9           Prosecutorial vindictiveness occurs when a prosecutor makes
a decision to file additional charges or seeks an increased punishment
because the defendant exercised a protected legal right. State v. Mieg, 225
Ariz. 445, 447, ¶ 10 (App. 2010). We must distinguish “between the
acceptable vindictive desire to punish [a defendant] for any criminal acts,
and vindictiveness which violates due process.” Id. at 448, ¶ 12 (citation


1      Westerfield also makes a cursory argument that his rights to a
speedy trial were violated. Because he has failed to adequately develop this
argument, however, we deem it waived. See Ariz. R. Crim. P. 31.13(c)(1)(vi)
(opening brief “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.”); State v. Carver, 160
Ariz. 167, 175 (1989) (“[O]pening briefs must present significant arguments,
supported by authority, setting forth an appellant’s position on the issues
raised. Failure to argue a claim usually constitutes abandonment and
waiver of that claim.”). Moreover, the record reflects that Westerfield’s
speedy trial rights were not violated because throughout the proceedings
he requested and was granted at least nine continuances wherein he
“waived applicable time limits.”



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                         STATE v. WESTERFIELD
                           Decision of the Court

and internal quotations omitted). A defendant may show prosecutorial
vindictiveness by proving “actual vindictiveness, i.e., he may prove through
objective evidence that a prosecutor acted in order to punish him for
standing on his legal rights,” or he “may rely on a presumption of
vindictiveness if the circumstances establish a realistic likelihood of
vindictiveness.” Id. at 447-48, ¶ 11 (internal citations and quotations
omitted). “[T]he defendant bears the initial burden of establishing the
appearance of vindictiveness.” State v. Tsosie, 171 Ariz. 683, 685 (App. 1992).
“Thereafter, the burden shifts to the prosecution to show that the decision
to prosecute was justified.” Id. We consider all relevant circumstances in
determining whether to apply a presumption of vindictiveness, Mieg, 225
Ariz. at 448, ¶ 15, keeping in mind that the pretrial decisions of prosecutors
are entitled to “especially deferential” judicial evaluation, Town of Newton
v. Rumery, 480 U.S. 386, 397, n. 7 (1987).

¶10           The case against Westerfield began in early 2012, when
United States Postal Inspector Greg Torbenson was contacted by law
enforcement officers in Alaska advising that M.P., a minor who lived in
Alaska, had been communicating with Westerfield in Arizona. From the
time M.P. was 14 years old, she and Westerfield had been communicating
about having sex and hoped to marry by the time she was 16 years old.
Westerfield was 55 years old and both were aware of each other’s age. Over
the course of their relationship, Westerfield mailed M.P. a cell phone and
various gifts. In his initial investigation, Torbenson retrieved pictures and
accompanying text messages sent on May 13 and 14, 2012 from both M.P.’s
phone and Westerfield’s phone. The pictures were of Westerfield’s
genitalia. He was arrested and indicted in May 2012.

¶11          Shortly thereafter, Torbenson executed search warrants for
Westerfield’s cell phone providers. In Westerfield’s Sprint account,
Torbenson discovered additional pictures that were not on Westerfield’s
phone when he was first indicted in May 2012. The additional pictures
exchanged between Westerfield and M.P. depicted Westerfield’s genitalia
and a naked M.P., focusing on her genitalia. Graphic sexual text messages
accompanied the pictures. The pictures and text messages were sent and
received on dates different than those in the first indictment. In July 2012,
Torbenson prepared and submitted a supplemental report recommending
further charges based upon the newly discovered evidence from the Sprint
account. That evidence served as the basis for the second indictment in May
2014.

¶12          As early as February 2013, nine months after the first
indictment, Westerfield was aware that the State intended to file additional


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                         STATE v. WESTERFIELD
                           Decision of the Court

charges against him. At a February 14, 2013 status conference, the parties
discussed the need for a risk assessment, possible trial dates, and “other
pending charges.” At that time, the parties were “seeking a global
disposition” of the charges contained in the first indictment as well as any
possible charges stemming from Torbenson’s supplemental report.
Westerfield was out-of-custody and present at the hearing. At a May 20,
2014 Final Trial Management Conference on the first indictment,
Westerfield was present and rejected the State’s plea offer. The prosecutor
and defense counsel then discussed the potential for interviewing the two
victims, M.W. and M.P., and announced that they were “ready to proceed
to trial.” The court affirmed the “Firm Trial Date of June 3, 2014.” Nine
days later, the State indicted Westerfield on the additional 11 counts.

¶13           The parties had open plea negotiations up until the trial
management conference on May 20, 2014. At that conference, Westerfield
rejected the plea offer on the record and the State then moved forward to
indict on the additional 11 charges. Westerfield contends that he had
previously rejected the plea offer and conveyed that to the State. Thus, he
argues because the State had knowledge of the facts forming the grounds
for the second indictment for two years, the State’s motive for the second
indictment was to compel him to give up his right to a jury trial.

¶14           Westerfield’s arguments are without merit.                When
Westerfield was first indicted in May 2012, the State had not yet discovered
the pictures and text messages exchanged between Westerfield and M.P.
from February to April 2012. Torbenson’s subsequent investigation
uncovered new evidence for which Westerfield was legitimately subject to
prosecution. See United States v. Goodwin, 457 U.S. 368, 382 (1982) (“[T]he
initial charges filed by a prosecutor may not reflect the extent to which an
individual is legitimately subject to prosecution.”).          Furthermore,
Westerfield was aware of the possibility of additional charges during plea
negotiations and although the State was ready to proceed to trial on the first
indictment, both sides were seeking a resolution of all possible charges.
Simply because Westerfield rejected the pre-trial plea offer and additional
charges were filed does not establish a presumption of vindictiveness. The
State’s willingness to resolve both cases before obtaining the second
indictment reflects an offer to forego additional charges in exchange for
Westerfield’s agreement to forego trial and save the State the time and
expense of further investigation and a trial. The State was prepared to
proceed to trial on the first case before obtaining the second indictment,
contradicting Westerfield’s claim that the second indictment was the result
of vindictiveness or a desire to punish. See id. at 384 (“The possibility that
a prosecutor would respond to a defendant’s pretrial demand for a jury trial


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                         STATE v. WESTERFIELD
                           Decision of the Court

by bringing charges not in the public interest that could be explained only
as a penalty imposed on the defendant is so unlikely that a presumption of
vindictiveness certainly is not warranted.”).

¶15          Thus, Westerfield has failed to prove error, much less
fundamental, prejudicial error, by the superior court’s refusal to dismiss his
case based on prosecutorial vindictiveness.

                              CONCLUSION

¶16          Based on the foregoing, we affirm Westerfield’s convictions
and sentences.




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




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