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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     JASPER IAN WEBSTER, Appellant.

                             No. 1 CA-CR 14-0572
                               FILED 10-29-2015


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201101290
                The Honorable Steven F. Conn, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Christian C. Ackerley, Attorney at Law, Phoenix
By Christian C. Ackerley
Counsel for Appellant
                           STATE v. WEBSTER
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Patricia A. Orozco joined.


P O R T L E Y, Judge:

¶1            Jasper Ian Webster appeals his convictions and sentences for
five counts of sexual conduct with a minor twelve years of age or younger,
one count of molestation of a child, two counts of sexual abuse, and two
counts of aggravated assault with sexual motivation. For the following
reasons, we affirm.

                               DISCUSSION

   A. Consolidation of Cases

              1. Constitutional Claims

¶2            Webster argues that the superior court violated his
confrontation and due process rights, committing structural error, by
refusing to allow him to cross-examine the victims before ruling on the
State’s motion to consolidate. The State sought to consolidate trial of two
charges of sexual abuse of a minor under the age of fifteen and related
charges involving A.M. and A.H. (CR-2011-1290), with trial of eight counts
of sexual conduct with a minor twelve years of age or younger and related
charges involving S.W. (CR-2012-1193). The State argued in part that the
offenses were of the “same or similar character” under Arizona Rules of
Criminal Procedure (“Rule”) 13.3(a)(1) and the evidence of the offenses in
each case was admissible in the other under Arizona Rules of Evidence
(“Rule”) 404(c).

¶3             At the hearing, the superior court informed the parties that it
had reviewed, as agreed, DVDs consisting of interviews with each of the
three victims. However, Webster argued that he “should have the right to
confront these victims” before the court ruled on the motion. The court
stated that if Webster had subpoenaed the victims as witnesses, it would
have granted him a hearing. In the subsequent ruling, the court noted it
had reread State v. LeBrun, 222 Ariz. 183, 213 P.3d 332 (App. 2009), and
realized a misstatement had been made during the hearing, given that
LeBrun stood for the proposition that the court could “deny a defense


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                             STATE v. WEBSTER
                             Decision of the Court
request for any form of an evidentiary hearing.” We review the evidentiary
ruling implicating the Confrontation Clause de novo. State v. Ellison, 213
Ariz. 116, 129, ¶ 42, 140 P.3d 899, 912 (2006).

¶4             Webster was not denied his right to confront the witnesses
against him. “The right to confrontation is basically a trial right.” Barber v.
Page, 390 U.S. 719, 725 (1968); see also Pennsylvania v. Ritchie, 480 U.S. 39, 52-
54 (1987) (right to confrontation is a trial right that does not afford a criminal
defendant a right to pretrial discovery) (plurality decision). Webster’s
confrontation rights were satisfied because he was afforded the opportunity
to cross-examine the victims at trial, on which basis he renewed his motion
to sever. See Kentucky v. Stincer, 482 U.S. 730, 739-45 (1987) (holding that
confrontation rights were satisfied by the opportunity to confront and
examine witnesses against accused at some point during trial).

¶5           Webster summarily argues for the first time on appeal that his
due process rights were violated by his inability to cross-examine the
victims at this pretrial hearing to determine the admissibility of the
evidence. Because he has failed to present “significant arguments,
supported by authority” on his due process claim to the superior court,
Webster has abandoned and waived such claim. See State v. Moody, 208
Ariz. 424, 452 n.9, ¶ 101, 94 P.3d 1119, 1147 n.9 (2004) (quoting State v.
Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989)).

              2. Substantive Ruling

¶6            Webster also argues that the superior court abused its
discretion in joining in one trial the offenses involving A.M. and A.H.
(charged in CR 2011-1290) and those involving S.W. (charged in CR 2012-
1193) because (1) the court did not explicitly state that it had found “by clear
and convincing evidence” that Webster had committed the offenses; (2) the
court relied on evidence outside the record in finding that Webster’s
conduct evidenced an aberrant sexual propensity; and (3) the offenses were
dissimilar based on the age of the victims and the type of sexual offense
alleged.

¶7           Offenses may be joined when they “[a]re of the same or
similar character.” Ariz. R. Crim. P. 13.3(a)(1). Arizona Rule of Criminal
Procedure 13.4(b) provides for severance as of right when offenses are (1)
joined only because they are of the same or similar character, and (2)
evidence of the other offense or offenses would not be admissible if the
counts were tried separately. Otherwise, the court must sever offenses only
when “necessary to promote a fair determination of the guilt or innocence”
of the defendant. Ariz. R. Crim. P. 13.4(a). We review a trial court’s ruling


                                        3
                            STATE v. WEBSTER
                            Decision of the Court
on a motion to consolidate for abuse of discretion. State v. Prince, 204 Ariz.
156, 159, ¶ 13, 61 P.3d 450, 453 (2003).

¶8             The court did not abuse its discretion. First, the court did not
err in failing to expressly state in its minute entry ruling that it found the
other acts proven “by clear and convincing evidence,” and instead stating
that “the evidence is sufficient to permit the trier of fact to find that the
Defendant committed each of the crimes charged in these cases.” Trial
judges are presumed to know the law and apply it in making their
decisions. State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997).
Webster has failed to rebut this presumption. Nor did the court err by
mentioning and drawing on its 35 years of experience in hearing expert
testimony regarding aberrant sexual propensities. Expert testimony is not
required to admit Rule 404(c) evidence. See Ariz. R. Evid. 404(c) cmt. to
1997 amendment. Rather, as long as there is a “‘reasonable’ basis, by way
of expert testimony or otherwise,” to conclude that the commission of the
other act permits an inference that a defendant’s aberrant sexual propensity
is probative, the evidence is admissible. See id. The court was not required
to discount its knowledge and experience in informing its findings. The
court had a reasonable basis to conclude that Webster’s conduct in
committing each of the sexual offenses against S.W., A.M., and A.H.
evidenced an aberrant sexual propensity to commit the other offenses, and
this court will not reverse on this basis.

¶9             Finally, reasonable evidence supported the court’s conclusion
that the offenses were of the “same or similar character,” and the evidence
of the offenses in each case was admissible in the other under Rule 404(c).
As the court acknowledged in ruling before trial that cross-admissibility of
the evidence would not unfairly prejudice Webster, and in denying his
renewed motion for severance after the State rested, Webster engaged in “a
much greater level of sexual conduct with his daughter [S.W.] over a greater
period of time and at a younger age as compared to acts of touching or
groping older neighborhood girls [A.M. and A.H.] on more isolated
occasions.” The court found, however, that all of the acts occurred within
a relatively short time frame, at Webster’s residence, and involved evidence
of grooming and underage girls. On this record, the court did not abuse its
discretion in consolidating trial of the offenses against A.M. and A.H. with
those against S.W.

   B. Denial of Motion to Continue Trial

¶10          Webster argues that the superior court violated his rights to
due process and the assistance of counsel by refusing to continue trial to
allow him time to adequately prepare for trial and to present his expert


                                      4
                             STATE v. WEBSTER
                             Decision of the Court
witness on suggestibility and false accusations. A trial court must grant a
continuance “only upon a showing that extraordinary circumstances exist
and that delay is indispensable to the interests of justice.” Ariz. R. Crim. P.
8.5(b).    “Whether denying a continuance violates a defendant’s
constitutional rights depends on the facts and circumstances of a particular
case.” State v. Lamar, 205 Ariz. 431, 437, ¶ 28, 72 P.3d 831, 837 (2003). We
review the denial of a motion to continue for an abuse of discretion, “which
we will find only if the defendant demonstrates prejudice.” State v. Forde,
233 Ariz. 543, 555, ¶ 18, 315 P.3d 1200, 1212 (2014) (internal citations
omitted).

¶11            The superior court continued the trial at the request of
Webster’s original counsel numerous times before the attorney who
defended Webster at trial filed a notice of appearance on November 1, 2013.
The superior court continued the trial date twice at the request of Webster’s
trial counsel before granting a third continuance to June 17, 2014, to allow
defense counsel to hire Dr. Phillip Esplin, as his expert witness. At the
pretrial hearing on the continuance, defense counsel said he would be ready
to try the case on June 17, the firm trial date. Counsel, however, later moved
to continue trial to the end of August, on the ground he had been trial
counsel for only seven months, and was not prepared to adequately defend
Webster at trial. The State objected, and the court denied the motion.

¶12            Less than two weeks before the June 17 trial date, counsel
again sought a continuance, this time to the week of July 21, or later.
Counsel stated that through a series of misplaced assumptions and
miscommunications, he had just now learned that Dr. Esplin, whose
testimony on suggestibility and false accusations was “essential to expose
the inadequacies of the forensic interviews conducted in this case,” was
unavailable to testify at that time. He said Dr. Esplin had conflicts with the
trial dates, and would not have adequate time before then in any case to
review the “465-page CPS file,” the dependency file, interviews with the
victims, and the police report. The State objected, arguing that other
alternatives, including telephonic testimony or choosing another expert,
should be explored first.

¶13              The court denied the continuance, finding that the case “has
been on my calendar for two and a half years, [and] even recognizing that
it’s on, probably, at least the third attorney who has been on this case for,
as I recall, six or seven months, I just don’t think that it is acceptable to delay
the trial in this case for the reasons that have been stated.” Three days later,
a different judge denied Webster’s motion for change of judge (premised
on the denial of the motion to continue), noting that this was “a very old



                                        5
                             STATE v. WEBSTER
                             Decision of the Court
case,” and counsel had avowed to the court in April that he would be ready
for trial on June 17.

¶14             The superior court did not abuse its discretion. Counsel had
seven months to prepare for trial, and his failure to ensure that he was
prepared, or that the expert he had hired six weeks before had sufficient
time to prepare, did not demonstrate extraordinary circumstances
necessary to show that the delay was indispensable to the interests of
justice. See Ariz. R. Crim. P. 8.5(b). Nor has Webster demonstrated that he
was prejudiced by the ruling. See Forde, 233 Ariz. at 555, ¶ 18, 315 P.3d at
1212. The defense expert would not have been allowed to testify as to the
credibility of the victim witnesses. See State v. Tucker, 165 Ariz. 340, 350, 798
P.2d 1349, 1359 (App. 1990) (holding that trial court abused its discretion in
admitting expert testimony as to believability of the victim). And in his
extensive cross-examination of the State’s expert, Webster was able to elicit
testimony similar to the testimony counsel said he planned to elicit from
the defense expert. Under these circumstances, the denial of a continuance
did not violate Webster’s due process rights.

¶15            Webster also argues that the superior court committed
structural error by denying the continuance, because it deprived him of the
assistance of counsel at the most critical stage of his case, and caused him
to “entirely fail[] to subject the case to meaningful adversarial testing.”
Webster concedes that ineffective assistance of counsel claims cannot be
resolved on direct appeal, see State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525,
527 (2002), but argues that his claim alleges a deprivation of counsel under
United States v. Cronic, 466 U.S. 648, 659 (1984). In Cronic, the United States
Supreme Court held that “if counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing, then there has been a
denial of Sixth Amendment rights that makes the adversary process itself
presumptively unreliable.” 466 U.S. at 659. The Court explained that it
“has uniformly found constitutional error without any showing of
prejudice when counsel was either totally absent, or prevented from
assisting the accused during a critical stage of the proceeding.” Id. at n.25.
In Bell v. Cone, the Court clarified that an “attorney’s failure must be
complete.” 535 U.S. 685, 697 (2002) (emphasis added).

¶16            Here, the record fails to establish that Webster’s lawyer’s
claimed lack of preparation for trial and inability to call his expert witness
resulted in either a deprivation of the assistance of counsel or a complete
failure to subject the case to meaningful adversarial testing. As previously
noted, see ¶ 14, supra, counsel vigorously cross-examined the State’s expert
on the topics on which Webster’s expert would have testified. Counsel also
cross-examined other witnesses called by the State, presented testimony of


                                        6
                            STATE v. WEBSTER
                            Decision of the Court
several witnesses called on Webster’s behalf to challenge the victims’
accounts, and provided a closing argument on Webster’s behalf. Webster,
as a result, has failed to demonstrate the deprivation of counsel that would
warrant reversing his convictions. See State v. Kiles, 222 Ariz. 25, 34, ¶¶ 41-
42, 213 P.3d 174, 183 (2009) (rejecting claim of complete deprivation of
counsel under Cronic, reasoning “[t]he most that can be said is that there
were delays [in appointment of counsel] and allegations of poor
professional conduct.”); State v. Glassel, 211 Ariz. 33, 51, ¶¶ 62–64, 116 P.3d
1193, 1211 (2005) (rejecting Cronic claim on record showing that defense
counsel presented arguments and evidence, but no witnesses, in
mitigation).

   C. Failure to Sanitize Prior Conviction

¶17            Webster argues that the superior court abused its discretion
in failing to preclude any mention of the nature of the felony of which his
wife had been convicted, allowing jurors to infer that her child abuse
conviction was related to the offenses for which Webster was being tried.
We disagree.

¶18              The State informed the court and defense counsel the first day
of trial that it intended to elicit testimony that the conviction “arises out of
this event,” but not any greater detail. The court advised counsel that it
would assume they had reached a stipulation on this issue unless informed
otherwise before the testimony. The State subsequently asked Webster’s
wife if she had been convicted of felony child abuse, and she responded
affirmatively. Counsel objected, however, when the State attempted to ask
her, “And is that for the —.” At a bench conference, the court ruled the
question was permissible, and the State could also ask Webster’s wife if her
conviction arose out of this incident, but nothing more. The State did not
ask the witness any more questions about her conviction.

¶19           We review evidentiary rulings for abuse of discretion,
deferring to the superior court’s determination of relevance. State v.
Chappell, 225 Ariz. 229, 238, ¶ 28, 236 P.3d 1176, 1185 (2010). Arizona Rule
of Evidence (“Rule”) 609(a)(1)(A) provides that evidence of a crime
punishable by imprisonment of more than one year must be admitted for
impeachment of a non-defendant witness in a criminal case, subject to Rule
403. Rule 609(a) does not require the prior conviction being used to
impeach a witness to be sanitized. State v. Harrison, 195 Ariz. 28, 33, ¶ 23,
985 P.2d 513, 518 (App. 1998). The trial court, however, can exercise its
discretion in determining whether to sanitize a felony conviction. State v.
Montano, 204 Ariz. 413, 426, ¶ 66, 65 P.3d 61, 74 (2003). As a result, we
cannot say the court abused its discretion in failing to preclude any


                                       7
                             STATE v. WEBSTER
                             Decision of the Court
reference to the nature of the wife’s prior conviction for impeachment
purposes.

¶20           Moreover, and for the sake of argument, any error was
harmless because the court properly instructed the jury that prior felony
convictions could be considered in evaluating the credibility of the witness,
but not to prove the witness had bad character, or a disposition to commit
crimes. We presume the jurors followed the instruction in the absence of
evidence to the contrary. See State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132
P.3d 833, 847 (2006). Consequently, any error in admitting the nature of
Webster’s wife’s felony conviction “did not contribute to or affect the
verdict or sentence,” and accordingly was harmless. See State v. Henderson,
210 Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005).

   D. Denial of Rule 20 Motion on Counts 11-13

¶21             Webster argues that the superior court erred by denying his
motion for judgment of acquittal on Counts 11-13 because S.W. was not
residing at the Webster home during the dates those offenses were alleged
to have been committed, on or between August 16 and September 25, 2012.
We review the sufficiency of the evidence to support a conviction or the
denial of judgment of acquittal de novo. State v. West, 226 Ariz. 559, 562,
¶15, 250 P.3d 1188, 1191 (2011). We resolve all conflicts in the evidence
against defendant. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307
(1983). Credibility of the witnesses is an issue for the jury, not this court.
See State v. Dickens, 187 Ariz. 1, 21, 926 P.2d 468, 488 (1996), abrogated on other
grounds by State v. Ferrero, 229 Ariz. 239, 242-43, ¶¶ 15-20, 274 P.3d 509, 512-
13 (2012). “[W]hen reasonable minds may differ on inferences drawn from
the facts, the case must be submitted to the jury, and the trial [court] has no
discretion to enter a judgment of acquittal.” West, 226 Ariz. at 563, ¶ 18, 250
P.3d at 1192 (citations and internal punctuation omitted).

¶22           The evidence was sufficient. S.W. testified that conduct of the
nature charged in Counts 11, 12, and 13 occurred after she started third
grade. S.W.’s mother testified that S.W. was removed from the home
sometime in August, possibly August 15, in the afternoon, after she had
gone to school that morning. And Webster called a caseworker for the
Department of Child Safety, who testified that S.W. was removed from the
Webster residence on August 16, 2012. During deliberations, the jury sent
a note to the court demonstrating that it was aware of the potential
discrepancy with the date these counts were allegedly committed, stating
that “our notes show [S.W.] was removed from the home on August 16,
2012,” the first date in the range of dates that Counts 11, 12, and 13 were
alleged to have been committed. The court responded to the jury’s question


                                        8
                            STATE v. WEBSTER
                            Decision of the Court
on when precisely S.W. was removed from the home by directing it to rely
on “your collective recollection.” The jury could have found that the
caseworker’s testimony on the date was not credible, or that Webster
engaged in the charged conduct on that date, either before S.W. went to
school or after she returned home, or both times, but before she was
removed from the family residence. Based on the record, the court did not
err by denying judgment of acquittal, because a reasonable jury could have
found beyond a reasonable doubt that Webster committed these offenses.

   E. Denial of Willits Instruction

¶23           Webster argues that the superior court abused its discretion
by denying his motion for an instruction under State v. Willits, 96 Ariz. 184,
393 P.2d 274 (1964), based on the failure of the detective to preserve the
recording of an interview of a key witness, who denied the detective’s claim
that the witness had said that Webster’s conduct with girls was “a little
inappropriate.” The detective testified he was unable to download
anything from his digital recorder, possibly because the room where he
recorded the interview was “very large and open and echoey.” The court
denied the request to give instruction, finding that the detective had not lost
the recording, because it “was never capable of being produced.”

¶24           The Willits instruction allows the jury to draw an inference
from the State’s destruction of material evidence that the lost or destroyed
evidence would be unfavorable to the State. State v. Fulminante, 193 Ariz.
485, 503, ¶ 62, 975 P.2d 75, 93 (1999). A defendant is entitled to a Willits
instruction upon proving that “(1) the state failed to preserve material and
reasonably accessible evidence that could have had a tendency to exonerate
the accused, and (2) there was resulting prejudice.” State v. Glissendorf, 235
Ariz. 147, 150, ¶ 8, 329 P.3d 1049, 1052 (2014) (citations omitted). We review
the denial of a Willits instruction for abuse of discretion. Id. at ¶ 7.

¶25            Webster relies on sheer speculation that the recording was in
fact “reasonably accessible” and could have been “preserved” by an IT
specialist. A defendant is not entitled to a Willits instruction if a law
enforcement officer failed, for unknown reasons, in his attempt to record a
witness interview. See State v. Murray, 184 Ariz. 9, 33, 906 P.2d 542, 566
(1995) (defendant is not entitled to a Willits instruction “merely because a
more exhaustive investigation could have been made.”); State v. Willcoxson,
156 Ariz. 343, 346, 751 P.2d 1385, 1388 (App. 1987) (“failure to pursue every
lead or gather every conceivable bit of physical evidence” does not require
Willits instruction). As a result, the court did not abuse its discretion in
denying the instruction.



                                      9
                         STATE v. WEBSTER
                         Decision of the Court
                            CONCLUSION

¶26          Based on the foregoing, we affirm Webster’s convictions and
sentences.




                                :ama




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