                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                     STATE OF ARIZONA, Respondent,

                                        v.

                FREDRICK ANGUS MILLER, JR., Petitioner.

                         No. 1 CA-CR 13-0352 PRPC
                                FILED 11-13-2014


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2010-104092-001
                 The Honorable Susan M. Brnovich, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Susan L. Luder
Counsel for Respondent

Fredrick Angus Miller, Jr., Florence
Petitioner In Propria Persona



                       MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined.
                             STATE v. MILLER
                            Decision of the Court

B R O W N, Judge:

¶1            Fredrick Angus Miller, Jr. petitions this court for review from
the dismissal of his petition for post-conviction relief. We have considered
the petition for review and, for the reasons stated, grant review and deny
relief.

¶2            A jury convicted Miller of kidnapping, aggravated assault,
robbery and seven counts of sexual assault. The trial court sentenced Miller
to an aggregate term of 87.25 years’ imprisonment and this court affirmed
his convictions and sentences on direct appeal. State v. Miller, 1 CA-CR 11-
0283, 2012 WL 461426, (Ariz. App. Feb. 14, 2012) (mem. decision). Miller
filed a pro se petition for post-conviction relief after his counsel found no
colorable claims for relief. The trial court summarily dismissed the petition
and Miller now seeks review. We have jurisdiction pursuant to Arizona
Rule of Criminal Procedure 32.9(c).

¶3            Miller argues both his trial and appellate counsel were
ineffective. To state a colorable claim of ineffective assistance of counsel, a
defendant must show that counsel’s performance fell below objectively
reasonable standards and that the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). To show
prejudice, a defendant must show that there is a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. Regarding ineffective assistance of
appellate counsel, appellate counsel is not required to “raise every possible
or even meritorious issue on appeal.” State v. Herrera, 183 Ariz. 642, 647,
905 P.2d 1377, 1382 (App. 1995). “Once the issues have been narrowed and
presented, appellate counsel’s waiver of other possible issues binds the
defendant. Absent any evidence that the failure to raise an issue fell below
prevailing professional norms and would have changed the outcome of the
appeal, the claim is not colorable.” State v. Febles, 210 Ariz. 589, 596, ¶ 19,
115 P.3d 629, 636 (App. 2005)(internal citation omitted).

¶4            Miller first argues his trial counsel should have objected to
evidence of the victim’s chastity pursuant to Arizona Revised Statutes
(“A.R.S.”) section 13-1421, otherwise known as “The Arizona Rape Shield
Law.” State v. Gilfillan, 196 Ariz. 396, 400-01, ¶¶ 15-16, 998 P.2d 1069, 1073-
74 (App. 2000). We deny relief on this issue because Miller has failed to
present a colorable claim. Section 13-1421 prohibits the admission of
evidence relating to a victim’s “reputation for chastity and opinion
evidence relating to a victim’s chastity” unless offered for one of five
exceptions. The State offered no such evidence. The victim testified that


                                      2
                             STATE v. MILLER
                            Decision of the Court

when Miller sexually assaulted her, she pleaded with him, “Please don’t do
this. I’m Mormon. I’m a virgin. I don’t want to do it.” The purpose of
A.R.S. § 13-1421 is “to protect victims of rape from being exposed at trial to
harassing or irrelevant questions concerning any past sexual behavior.”
Giflillan, 196 Ariz. at 400-01, ¶ 15, 998 P.2d at 1073-74. It does not prevent
the admission of what the victim told her attacker during a series of sexual
assaults. Trial counsel had no basis to object to the victim's testimony
pursuant to A.R.S. § 13-1421.

¶5            Miller next argues his appellate counsel should have raised
an issue on appeal regarding the admission of evidence that Miller was on
probation when he committed the offenses. The trial court held that
testimony of Miller’s probation officer was admissible in the State’s rebuttal
case to rebut Miller’s claim he was a drug dealer who lived in motels and
who engaged in consensual sex with the victim in exchange for drugs. The
court further held that because the jury already knew Miller had been
convicted of a criminal offense only weeks before the charged offenses, to
further inform the jury that he was on probation as one part of this rebuttal
evidence was not unfairly prejudicial.

¶6            We deny relief on this issue because Miller has failed to state
a colorable claim. The jury already knew Miller had been convicted of a
criminal offense just before he committed the instant offenses. Miller does
not argue appellate counsel should have challenged the admission of
evidence of that conviction. To further inform the jury that Miller was on
probation was not unfairly prejudicial under the circumstances and was not
reversible error. Therefore, appellate counsel’s performance did not fall
below objectively reasonable standards when she failed to challenge the
admission of this evidence on appeal, and Miller suffered no prejudice.

¶7            Finally, Miller argues his appellate counsel was ineffective
when she failed to allege on appeal that the prosecutor engaged in three
instances of prosecutorial vouching. “Two forms of impermissible
prosecutorial vouching exist: (1) when the prosecutor places the prestige of
the government behind its witness, and (2) where the prosecutor suggests
that information not presented to the jury supports the witness’s
testimony.” State v. Bible, 175 Ariz. 549, 601, 858 P.2d 1152, 1204 (1993)
(citation omitted).

¶8            Miller has again failed to state a colorable claim. Miller first
argues the prosecutor should not have argued in closing that the evidence
admitted at trial was consistent with the victim’s initial disclosure to police.
This was not impermissible vouching in any sense. Miller next argues the


                                       3
                            STATE v. MILLER
                           Decision of the Court

prosecutor should not have argued the victim was not a bad person and/or
was not a bad person because she was a Mormon and a virgin. Miller
misrepresents the prosecutor’s argument. The prosecutor told the jury it
could consider those two factors, among many, in its determination of what
kind of person the victim was, and that this determination was an
important part of their consideration of the case. This was not vouching.

¶9             Finally, Miller argues the prosecutor should not have argued
the victim is one of the “good ones.” Miller takes the prosecutor’s statement
out of context. Again, Miller claimed the victim engaged in consensual sex
with him for drugs. The prosecutor merely reiterated how the victim’s
orchestra teacher testified that there were good kids and bad kids, and that
in her experience as a teacher, the victim was one of the “good” ones. To
restate the testimony of a witness in this manner and in this context was not
impermissible vouching.

¶10          Based on the foregoing, we grant review and deny relief.




                                   :gsh




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