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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 ALBERT KARL HEITZMANN, Appellant.

                             No. 1 CA-CR 18-0136
                                FILED 6-11-2019


           Appeal from the Superior Court in Maricopa County
                       No. CR2017-002847-001 DT
                   The Honorable Dean M. Fink, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant


                       MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.
                           STATE v. HEITZMANN
                            Decision of the Court

W I N T H R O P, Judge:

¶1           Albert Karl Heitzmann appeals his convictions and sentences
for two counts of stalking, arguing insufficient evidence supports each
count. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             We view the facts in the light most favorable to sustaining the
verdicts and resolve all reasonable inferences against Heitzmann. See State
v. Kiper, 181 Ariz. 62, 64 (App. 1994).

¶3            In August 2017, Heitzmann was indicted for one count of
misconduct involving weapons, a class four felony (Count I) and two
counts of stalking, each a class three felony (Counts II and III). The State
later alleged (1) Heitzmann was a repetitive offender and (2) aggravating
circumstances existed. For trial purposes, Count I, the misconduct
involving weapons charge, was severed from Counts II and III, the stalking
charges, and later dismissed without prejudice at sentencing on Counts II
and III.

¶4             At trial, the State presented the following evidence: From
November 2006 to April 2007, J.G., a prosecutor with the Maricopa County
Attorney’s Office (“MCAO”), represented the State in prosecuting a man
named Paul Speer for homicide. Speer had burglarized an apartment and,
while in jail pending trial on the burglary charge, convinced his half-
brother, Brian Womble, to shoot the burglary victims to prevent them from
testifying. See State v. Speer, 221 Ariz. 449, 452-54, ¶¶ 2-19 (2009). At Speer’s
homicide trial, Heitzmann was called as a witness and examined by J.G.

¶5           Just before the Speer trial began, however, MCAO learned
Speer had developed an escape plan involving Heitzmann and Womble
that included assassinating J.G. The threat was investigated, but the
records from the investigation were later purged. After the Speer trial, J.G.
prosecuted Heitzmann.

¶6            In 2012, defense attorney Nathanial Carr, III, represented
Speer in his appeal. After telling Carr that he wanted to help Speer “in any
possible way,” Heitzmann personally dropped off a letter at Carr’s office
that included the phrase, “My plan to assassinate [J.G.].” Heitzmann had
attached to the letter minute entries from Speer’s trial that referenced
Speer’s previous assassination plan. Concerned about another possible
assassination plan, Carr contacted the Arizona State Bar, and after speaking
with a Bar representative, Carr called J.G. and faxed to her the letter he had


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                         STATE v. HEITZMANN
                          Decision of the Court

received from Heitzmann. The letter “unnerved” J.G. Carr had previously
worked with J.G., and this was the first time he had ever seen her show any
signs of nervousness about being a prosecutor.

¶7            J.G. testified she considered the letter a second threat on her
life and was “terrified” by it. She had surveillance cameras installed at her
home, and police began conducting extra patrols in her neighborhood. She
also altered her driving route to work each day, purchased ammunition for
a gun she had acquired after the initial threat on her life, and loaded the
gun to “keep it ready.”

¶8              In June 2012, MCAO Detective Crowe interviewed
Heitzmann, who admitted authoring the letter and attaching the minute
entries. Heitzmann said the assassination plan was Speer’s, and that it
involved Heitzmann and Womble bursting into the courtroom during
Speer’s trial and shooting J.G., the judge, and possibly others, and then
using bolt cutters to help Speer escape. Heitzmann admitted he and
Womble had planned to obtain firearms and bolt cutters to carry out the
plan. According to Detective Crowe, Heitzmann seemed “kind of excited”
in describing the plan, and although Heitzmann later claimed it was “a
joke,” the detective believed Heitzmann seemed sincere when he called the
plan “brilliant.” Heitzmann appeared upset with J.G., stating she had
committed a “fraud” or perjury against him, and although he denied to
Detective Crowe that he wanted to harm her, he also told Detective Crowe
that “shooting her would be too good for her” and that she had plenty to
worry about because when he got all of his items together, he would “come
after her [] big time.” The next day, Detective Crowe searched Heitzmann’s
residence and found an operational firearm and ammunition where
Heitzmann said it would be—in a shed behind his mother’s house.

¶9            A day or two after Carr faxed the letter to J.G., J.G. saw
Heitzmann in the lobby of the building where MCAO is located. J.G.
immediately turned around, went back up the elevator, and notified
security. She testified she thought Heitzmann was going to shoot her. She
later learned from Detective Crowe that Heitzmann possessed a firearm
and a plan involving shooting her.

¶10            After the 2012 threat, J.G. twice testified against Heitzmann.
In her testimony, she expressed her fear that he would follow through on
his assassination plot. Heitzmann was present during her testimony, and
he also testified and admitted writing the letter that contained the phrase,
“My plan to assassinate [J.G.].”




                                     3
                          STATE v. HEITZMANN
                           Decision of the Court

¶11           A court order was put in place that prevented Heitzmann
from having any contact with J.G. and required him to seek permission
before entering any building in the downtown court complex, which
included J.G.’s listed work address at MCAO—301 W. Jefferson. On
January 16, 2014, Heitzmann signed to signify his receipt and
acknowledgement of that three-year order. At no time after the order was
put into place did Heitzmann seek or receive permission to enter MCAO or
the downtown court complex.

¶12           Beginning in August 2015, after he had been ordered not to
have contact with J.G., Heitzmann submitted four notices of claim to J.G.’s
office. Notices of claim need not be personally served. See generally Ariz.
Rev. Stat. (“A.R.S.”) § 12-821.01(A) (requiring that claims be filed “as set
forth in the Arizona rules of civil procedure”). He mailed the first notice of
claim—dated August 14, 2015—to MCAO, which received it on August 15,
2015. He then personally served three more notices of claim on MCAO at
301 W. Jefferson on January 4, February 16, and February 24, 2016.
Appearing at the MCAO office, he requested to personally serve J.G., but
MCAO Detective Ippolito refused the request, explaining it was “out of
protocol” or “out of procedure.” All the notices of claim referred to J.G.
throughout, referenced the assassination plan, and were quite similar.

¶13          According to J.G., the notices of claim brought back
“everything” for her, and she did not feel safe again. She feared Heitzmann
would kill her because he had a gun and had previously written the letter
about the assassination plan. Once again, she began altering her driving
routes and took steps to make sure her burglar alarm and gun worked.

¶14          On September 9, 2016, J.G. went to a courtroom in the
downtown court complex to appear on behalf of a colleague in a criminal
case. When she walked into the courtroom, Heitzmann, who had both a
backpack and a fanny pack, was seated alone on the victims’ side of the
courtroom. J.G. did not look at Heitzmann, “couldn’t believe he was there,”
and had the “same fear” she had before—that he was “there for one reason
and one reason only . . . to kill [her].”

¶15          Another prosecutor who worked with J.G. entered the
courtroom and noticed J.G. appeared “extremely upset.” After J.G. alerted
the other prosecutor that Heitzmann was present, she immediately called
MCAO’s head of investigations.

¶16         Several MCAO law enforcement officers wearing guns and
badges soon arrived and took seats surrounding Heitzmann. At some



                                      4
                          STATE v. HEITZMANN
                           Decision of the Court

point, J.G. spoke with the defense attorney. As J.G. moved beside the
defense attorney, Heitzmann approached and handed the defense attorney
a note. At that, J.G. nearly “jump[ed] out of [her] skin” because Heitzmann
“was within touching distance” of her and she feared for her life. The other
prosecutor described J.G. as “extremely shaken” by this incident.

¶17          When the case was called, J.G. announced her full name to the
court. By this point, Heitzmann had moved to the defendants’ side of the
courtroom, and he remained in the courtroom until J.G. exited. J.G. had
been in the courtroom with Heitzmann present for approximately thirty
minutes, and she left the courtroom escorted by one of the MCAO
detectives.

¶18            Two MCAO detectives followed Heitzmann out of the
courthouse, then spoke with him. Heitzmann stated he had been in the
courtroom because a friend had a matter before the court.                He
acknowledged seeing J.G., but denied initially recognizing her and claimed
he left right after he did so, despite that he stayed in the courtroom after
J.G. announced her name to the court and left only after J.G. left.

¶19            A few days after this incident, courthouse security notified
J.G. that Heitzmann had been stopped from entering the central court
building. Surveillance footage showed Heitzmann at the court building on
both September 9 and 13, 2016. On September 13, 2016, MCAO Detective
Baniszewski received notice Heitzmann had entered the courthouse, but
court security was unable to locate him. Detective Baniszewski personally
notified J.G., who “was shaking” and “in a frenzy.” According to Detective
Baniszewski, J.G. packed up her belongings, began yelling that Heitzmann
“was going to kill her,” and ran out of her office and drove away. J.G. was
so fearful of going to the courthouse that she began limiting her court
appearances. At the time of trial, J.G. stated that she continued to be in fear
for her life because of Heitzmann.

¶20           On August 13, 2017, law enforcement officers recorded a
phone call between Heitzmann and his sister, during which he asked her to
find out if J.G. was married. Detective Baniszewski testified that, as an
investigator, she found the request “troubling” because it showed
Heitzmann was trying to obtain personal identifying information about J.G.

¶21           After the State rested its case-in-chief, Heitzmann moved for
a judgment of acquittal on both counts, see Ariz. R. Crim. P. (“Rule”)
20(a)(1), arguing there was “no testimony that [he] had any intent
whatsoever to put [J.G.] in fear of death.” After a brief argument, the trial



                                      5
                          STATE v. HEITZMANN
                           Decision of the Court

court denied the motion, concluding the State had presented sufficient
circumstantial evidence from which the jury could find intent.

¶22            The jury found Heitzmann guilty of Count II as charged,
unanimously agreeing on the following acts supporting the conviction: (1)
“Sending [the] notice of claim dated 8-14-15”; (2) “Service of notice of claim
at 301 W. Jefferson on 1-4-16”; and (3) “Service of notice of claim at 301 W.
Jefferson on 2-16-16.” As to Count III, the jury found Heitzmann guilty of
the lesser-included offense of stalking based on “causing [the] victim to fear
physical injury,” a class five felony, unanimously agreeing on the following
acts to support the conviction: (1) “9-9-16 Presence at 201 W. Jefferson
Courthouse”; and (2) “9-13-16 Presence at 201 W. Jefferson Courthouse.”
The jury also found proven as aggravating factors for both offenses that (1)
Heitzmann had recently served a prison sentence from 2013 to 2015, and (2)
“[t]here is a need for deterrence with this defendant who has a substantial
criminal history.”

¶23           After determining Heitzmann had two historical prior felony
convictions, the trial court sentenced him as a Category Three repetitive
offender. The court imposed a partially aggravated, less-than-maximum
sentence of fifteen years’ imprisonment for Count II, and a concurrent
maximum sentence of six years’ imprisonment for Count III, while
crediting him for 341 days of pre-sentence incarceration.

¶24           We have jurisdiction over Heitzmann’s timely appeal
pursuant to the Arizona Constitution, Article 6, Section 9, and A.R.S. §§ 12-
120.21(A)(1), 13-4031, and 13-4033(A).

                                ANALYSIS

       I.     Standard of Review and Applicable Law

¶25           We review de novo the sufficiency of the evidence supporting
a conviction and the trial court’s ruling on a motion for judgment of
acquittal. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). A motion for
judgment of acquittal should be granted only “if there is no substantial
evidence to support a conviction.” Ariz. R. Crim. P. 20(a)(1). “Substantial
evidence is that which reasonable persons could accept as sufficient to
support a guilty verdict beyond a reasonable doubt.” State v. Davolt, 207
Ariz. 191, 212, ¶ 87 (2004) (citing Rule 20).

¶26            In a Rule 20 motion, “the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime


                                      6
                             STATE v. HEITZMANN
                              Decision of the Court

beyond a reasonable doubt.” West, 226 Ariz. at 562, ¶ 16 (citations omitted).
“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. Bustamante, 229 Ariz. 256, 258,
¶ 5 (App. 2012) (quoting State v. Arredondo, 155 Ariz. 314, 316 (1987)). “If
reasonable persons may fairly differ as to whether certain evidence
establishes a fact in issue, then such evidence must be considered as
substantial.” Davolt, 207 Ariz. at 212, ¶ 87 (citation omitted).

¶27            In reviewing whether sufficient evidence exists, we consider
both direct and circumstantial evidence, West, 226 Ariz. at 562, ¶ 16,
recognizing that a conviction may rest solely on circumstantial evidence,
State v. Nash, 143 Ariz. 392, 404 (1985); accord State v. Bible, 175 Ariz. 549, 560
n.1 (1993). The State is not required “to negate every conceivable
hypothesis of innocence when guilt has been established by circumstantial
evidence.” Nash, 143 Ariz. at 404 (citation omitted). Further, we resolve all
conflicts in the evidence against Heitzmann. See Bustamante, 229 Ariz. at
258, ¶ 5.

       II.     Substantial Evidence Supporting the Convictions

¶28           The stalking statute, A.R.S. § 13-2923, was amended on
August 6, 2016. See 2016 Ariz. Sess. Laws, ch. 44, § 1 (2d Reg. Sess.). Count
II was based on conduct occurring before August 6, 2016, and Count III was
based on conduct occurring after this date.

               A. Count II

¶29            To prove Count II, stalking involving the notices of claim, the
State had to prove Heitzmann “intentionally or knowingly engage[d] in a
course of conduct that [wa]s directed toward another person and [] that
conduct . . . [w]ould cause a reasonable person to fear death of that person
. . . and that person in fact fear[ed] death of that person.” A.R.S. § 13-
2923(A)(2) (West 2015). For Counts II and III, “[i]ntentionally” “means,
with respect to a result or to conduct described by a statute defining an
offense, that a person’s objective is to cause that result or to engage in that
conduct.” A.R.S. § 13-105(10)(a). “‘Knowingly’ means, with respect to
conduct or a circumstance described by a statute defining an offense, that a
person is aware or believes that the person’s conduct is of that nature or
that the circumstance exists. It does not require any knowledge of the
unlawfulness of the act or omission.” A.R.S. § 13-105(10)(b). For Count II,
“[c]ourse of conduct” was statutorily defined in relevant part as
“[m]aintaining visual or physical proximity to a specific person or directing



                                        7
                          STATE v. HEITZMANN
                           Decision of the Court

verbal, written or other threats, whether express or implied, to a specific
person on two or more occasions over a period of time, however short.”
A.R.S. § 13-2923(C)(1)(a)(i) (West 2015).

¶30           As to Count II, Heitzmann notes the State was required to
prove he directed an express or implied threat at J.G., and argues he did not
directly threaten her with death but merely referenced the previous
assassination plot originated by Speer to provide context to his notices of
claim.

¶31           The jury found that Heitzmann mailing the notice of claim on
August 14, 2015, and personally serving the notices of claim on January 4
and February 16, 2016, were the occasions for the course of conduct that
constituted stalking as alleged in Count II. Given the full history between
Heitzmann and J.G., as recounted above, the jury could reasonably agree
from the evidence that these notices of claim were express or implied
threats to J.G. that would cause a reasonable person—and in fact caused
J.G.—to fear death. See A.R.S. § 13-2923(A)(2), (C)(1)(a)(i) (West 2015).

¶32            The notices of claim did more than inform MCAO of a civil
claim—they repeatedly referenced J.G. and the previous assassination plot.
Heitzmann knew there was a court order in place that prohibited him from
contacting J.G. or entering her place of employment—MCAO at 301 W.
Jefferson—without permission. Nevertheless, he entered the MCAO office
without permission to personally serve the January 4 and February 16 claim
notices and, while there, asked to serve J.G. in person. He did so after he
had heard J.G. testify in another case that she feared he would follow
through on the assassination plan. Detective Ippolito testified it was rare
for someone to serve the same notice more than once; in fact, it was the first
time he could recall that ever happening, and Heitzmann delivered
essentially identical notices of claim four times. The jury could reasonably
find there was no reason for him to personally serve the notices of claim
except to try to intimidate J.G. and cause her to fear death.

¶33            Moreover, J.G. testified she feared Heitzmann would kill her
and he could follow through on the plot because he owned a firearm. The
jury could find this fear was reasonable considering, inter alia, the
assassination plan originated with Speer, who had already been prosecuted
for first-degree murder; Heitzmann knew about the assassination plan and
admitted he and Womble had planned to obtain firearms and bolt cutters
to follow through with it; and Heitzmann owned a firearm and
ammunition.




                                      8
                          STATE v. HEITZMANN
                           Decision of the Court

¶34           Further, although Heitzmann claimed he had no intent to
harm J.G., the jury was not compelled to accept his contention or believe his
statements to MCAO detectives. See State v. Pieck, 111 Ariz. 318, 320 (1974).
As the trial court recognized, it was for the jury to weigh the evidence,
determine witnesses’ credibility, and ascertain Heitzmann’s intent, see id.;
State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004), and there was
substantial evidence from which the jury could conclude Heitzmann
intentionally or knowingly directed threats to J.G. that would cause a
reasonable person—and did cause her—to fear death.

              B. Count III

¶35             To prove the lesser-included stalking offense found by the
jury as Count III, the State had to prove Heitzmann “intentionally or
knowingly engage[d] in a course of conduct that [wa]s directed toward
another person and [] that conduct cause[d] the victim to [s]uffer emotional
distress or reasonably fear” physical injury. A.R.S. § 13-2923(A)(1)(b)(i)
(West 2016). For this offense, “[c]ourse of conduct” “[m]eans directly or
indirectly, in person or through one or more third persons or by any other
means, to . . . [m]aintain visual or physical proximity to a specific person or
direct verbal, written or other threats, whether express or implied, to a
specific person on two or more occasions over a period of time, however
short.” A.R.S. § 13-2923(D)(1)(a)(i) (West 2016).

¶36           As to Count III, Heitzmann argues that on September 9, 2016,
he had no way of knowing J.G. would appear in the courtroom he entered
to support a friend appearing for a court matter. He argues J.G.’s name was
not on the court calendar, he did not recognize her when he approached the
defense attorney, he had no way of leaving the courtroom without going
near her, and he did not follow or directly contact her. He further argues
that on September 13, 2016, although he violated a court order, he did not
encounter or come within visual or physical proximity of J.G. Accordingly,
he maintains the evidence was insufficient to show he intentionally or
knowingly engaged in a course of conduct directed toward J.G. that would
cause a reasonable person to fear for her safety. Heitzmann made this same
general argument before the jury, which was in the best position to weigh
the evidence and assess his credibility. See Williams, 209 Ariz. at 231, ¶ 6.

¶37           The jury found Heitzmann guilty on Count III based on his
presence at the courthouse on September 9 and 13, 2016. On September 9,
2016, even though J.G. was not listed on the court calendar that day, she
announced her name when the case was called. According to several
prosecution witnesses, J.G. has a unique voice and distinct appearance.


                                      9
                          STATE v. HEITZMANN
                           Decision of the Court

Heitzmann remained in the courtroom near her for approximately thirty
minutes and only left after she left. Heitzmann knew there was a court
order in place forbidding him from contacting J.G. and requiring him to
seek permission to enter the courthouse, which he did not do. The jury
could reasonably infer from the evidence that Heitzmann waited to pass
the note to the defense attorney until that attorney was near J.G. in order to
scare J.G. and cause her to suffer emotional distress or reasonably fear
physical injury, especially since he did this after he had heard J.G. express
her fear of him following through on the assassination plan.

¶38           Further, it was reasonable for J.G. to fear Heitzmann could
physically injure her because the prior assassination plan involved shooting
her in a courtroom; she knew Heitzmann owned a firearm; Heitzmann was
carrying both a fanny pack and backpack that day; and persons can bypass
security by following a badged employee into the building located at 301
W. Jefferson, which has a bridge to the courthouse.

¶39           Thus, the jury could conclude Heitzmann intentionally or
knowingly maintained visual or physical proximity to J.G. during the thirty
minutes in the courtroom and this reasonably caused J.G. to suffer
emotional distress or fear physical injury. See A.R.S. § 13-2923(A)(1)(b)(i),
(D)(1)(a)(i) (West 2016). Further, the jury also could have concluded
Heitzmann directed an implicit threat at J.G. by approaching her in the
courtroom, and that his doing so caused J.G. to suffer emotional distress or
fear physical injury. See id.

¶40            On September 13, 2016, Heitzmann again entered the central
court building in violation of the court order, after MCAO detectives had
followed him out on September 9, 2016. As Detective Baniszewski
explained at trial, Heitzmann’s behavior had escalated—from mailing a
notice of claim, to personally delivering several notices of claim, to being in
the courthouse and seeing J.G. in person, to approaching within a few feet
of her in the courtroom, to going back to the courthouse only days after
seeing her in court. Heitzmann also continued to try to seek personal
information about J.G. The jury could reasonably infer from this evidence
that Heitzmann intentionally or knowingly went to the courthouse as an
implicit threat to J.G., see A.R.S. § 13-2923(A)(1)(b)(i), (D)(1)(a)(i) (West
2016), and/or that he was in physical proximity of J.G. when he was in the
courthouse where she worked, where he had seen her just four days earlier
at the same location, and where the court order prohibited him from
entering without permission, see id. And it was reasonable for J.G. to fear
physical injury based on the prior assassination plan that involved



                                      10
                          STATE v. HEITZMANN
                           Decision of the Court

Heitzmann entering a courtroom and shooting J.G., Heitzmann’s
ownership of a firearm and ammunition, and the escalation of his behavior.

¶41            Although Heitzmann provided alternative explanations and
claimed he had been at the courthouse for other reasons, it was for the jury
to weigh the evidence. See State v. Clemons, 110 Ariz. 555, 556-57 (1974).
Even if he had come to the courtroom for other reasons on September 9,
2016, he remained in the courtroom for approximately thirty minutes after
J.G. entered, and the jury could reasonably infer he took advantage of the
opportunity to threaten J.G. by remaining in the courtroom and walking
close to her. And the jury could conclude he returned on September 13,
2016, intending to implicitly threaten J.G. again. His explanations did not
negate the State’s evidence or require a directed verdict but instead made
his intent an issue for the jury to resolve. See State v. Manzanedo, 210 Ariz.
292, 293, ¶ 3 (App. 2005). Accordingly, substantial evidence supports
Count III as well.

                              CONCLUSION

¶42           Heitzmann’s convictions and sentences are affirmed.




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




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