                          NOTICE: NOT FOR PUBLICATION.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, Appellee,

                                        v.

                    COREY DEAN TARPLEY, Appellant.

                             No. 1 CA-CR 15-0811
                              FILED 11-29-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR 2014-127321-001
                 The Honorable M. Scott McCoy, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee

Maricopa County Office of the Legal Advocate, Phoenix
By Consuelo M. Ohanesian
Counsel for Appellant
                          STATE v. TARPLEY
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Samuel A. Thumma joined.


D O W N I E, Judge:

¶1           Corey Dean Tarpley appeals his conviction and sentence for
sale or transportation of narcotic drugs. For the following reasons, we
affirm.

                FACTS AND PROCEDURAL HISTORY

¶2           Acting on information that a person was selling crack
cocaine in the parking lot of a hotel, two undercover police detectives
made contact with Tarpley. One detective followed Tarpley to a hotel
room, where he purchased crack cocaine for $50. Approximately three
weeks later, the detectives again contacted Tarpley in the same hotel
parking lot. On that date, they purchased a gun from Tarpley.1

¶3            Tarpley was indicted on one count of sale or transportation
of narcotic drugs, a class 2 felony, and one count of misconduct involving
weapons, a class 4 felony. The superior court severed the counts for trial
and later dismissed the misconduct involving weapons charge by
stipulation of the parties.

¶4           The jury found Tarpley guilty of sale or transportation of
narcotic drugs and found that he committed the offense for pecuniary
gain. The court determined Tarpley had two historical prior felony
convictions and sentenced him to a mitigated term of 10.5 years’
imprisonment. See Ariz. Rev. Stat. (“A.R.S.”) § 13-703(C), (J).

¶5            Tarpley timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1), 13-4031, -4033(A).




1     The superior court precluded evidence at trial that the item
purchased was a gun.



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                           STATE v. TARPLEY
                           Decision of the Court

                               DISCUSSION

I.     Batson2 Challenge

¶6            Tarpley first challenges the denial of his Batson challenge to
the State’s use of a peremptory strike to remove an African-American man
from the jury panel. We will affirm the superior court’s ruling unless it
was clearly erroneous, as a Batson determination is based “largely upon an
assessment of the prosecutor’s credibility.” State v. Garcia, 224 Ariz. 1, 10,
¶ 22 (2010). A three-step analysis applies to Batson challenges:

       First, the defendant must make a prima facie showing that
       the strike was racially discriminatory. If such a showing is
       made, the burden then switches to the prosecutor to give a
       race-neutral explanation for the strike. Finally, if the
       prosecution offers a facially neutral basis for the strike, the
       trial court must determine whether “the defendant has
       established purposeful discrimination.”

State v. Newell, 212 Ariz. 389, 401, ¶ 53 (2006) (quoting Batson v. Kentucky,
476 U.S. 79, 98 (1986).

¶7            The following exchange occurred between the court and the
prospective juror (“Juror 1”) after the court asked whether any panel
member or their close relatives or friends had been arrested, charged, or
convicted of any crime other than a minor traffic offense:

       THE COURT: . . . Juror number one, was it you or a family
       member or friend who got -- had some charges?

       JUROR: It was a friend.

       ...

       THE COURT: Okay. And what were . . . the charges against
       the friend or the arrest? What was he arrested for?

       JUROR: She. She was arrested for transportation of drugs.
       She was falsely accused of. She got out of, got out of it.

       THE COURT: Okay. So she, your friend, was charged with
       transporting drugs or selling drugs?

2      Batson v. Kentucky, 476 U.S. 79 (1986).



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                    STATE v. TARPLEY
                    Decision of the Court

JUROR: Yes, yes.

THE COURT: And she was ultimately -- were the charges
dismissed, or what happened?

JUROR: Yes, they were dismissed.

THE COURT: The charges were dismissed. Okay. And you
-- I have you down as someone who believes that . . . you as
a juror in this case, would impact your deliberations.

Do you feel like she was treated badly?

JUROR: Yes, I do.

THE COURT: Okay.           And, sir, there’s certainly nothing
wrong with that.

Let me ask you this: Is that something that you might hold
against the State in this case or the other party for any
reason?

JUROR: It’s hard to say.

THE COURT: Hard to say. Can you tell me -- can you
confidently tell me that you could put aside your friend’s
experience or your relationship with your friend, and that
you could put those things aside and decide this case based
solely on the evidence presented here in the courtroom and
the law as given to you by the court?

JUROR: I can try.

THE COURT: Okay. And that’s . . . fair. But you say you’d
try. So sounds like you’re not confident; is that fair?

JUROR: Yes, sir.

THE COURT: And I don’t --

JUROR: -- put my differences aside --

THE COURT: I’m sorry. I didn’t hear that.




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                           STATE v. TARPLEY
                           Decision of the Court

      Before I hear from you again, sir, I, I don’t mean to pick on
      you. And I appreciate you’re trying to be candid with me
      here. And remember, there’s no right or wrong answer.

      So what was it you were trying to tell me?

      JUROR: I could put my, try to put my differences aside for
      this case.

      THE COURT: Okay. Are you confident you could do that?

      JUROR: Yes.

      THE COURT: Okay. Thank you, sir.

The State moved to strike Juror 1 for cause. Tarpley objected, arguing the
juror had been rehabilitated. The court denied the State’s motion.

¶8             The State thereafter used a peremptory strike as to Juror 1,
and Tarpley raised a Batson challenge. The court found that Tarpley had
made a prima facie showing of discrimination and asked the State to
respond. The prosecutor voiced concern about Juror 1’s ability to be fair
and impartial. He argued Juror 1 initially indicated he would hold his
friend’s experience “against the State,” then “hemmed and hawed for
some time” before ultimately agreeing he could be fair and impartial. The
State also expressed concern that Juror 1 had not responded to any other
questions posed by the court, which the prosecutor avowed was “another
reason that I use often to strike people.” The court denied the Batson
challenge, finding the State had articulated a race-neutral explanation and
that, although Juror 1 was ultimately rehabilitated, it was not without “a
lot of hesitation on his part.” The court observed that “[k]eeping him on
the jury was not a slam dunk in terms of the rehabilitation.”

¶9             The superior court did not err. Juror 1 expressed uncertainty
when asked whether he would hold his friend’s experience against the
State and again when asked if he could judge the case based solely on the
evidence presented and the law as instructed by the court. He also
corrected himself when stating, “I could put my, try to put my differences
aside for this case.” (Emphasis added.) The court asked if he was
confident he could “do that,” to which the juror responded, “Yes.” Read
in context, it is unclear whether the juror simply meant he was confident
he could try to put his differences aside.




                                     5
                           STATE v. TARPLEY
                           Decision of the Court

¶10           Tarpley concedes that “[o]n their face, without further
analysis, the State’s reasons for striking [the juror] appear to be race-
neutral,” but nevertheless draws comparisons between Juror 1 and others
on the panel who were not stricken when the State exercised its
peremptory strikes. Batson, though, does not require “a comparison
between the jurors who are excused from a panel and all of the other
prospective jurors remaining on the panel.” State v. Castillo, 156 Ariz. 323,
325 (App. 1987). Moreover, the court noted that the difference between
jurors who were not stricken and Juror 1 was “Juror number 1 was on the
fence. And there was significant hesitation on his part.” The court also
observed that, “if I were an attorney, I would be concerned about that.”

¶11           Under the circumstances presented, the superior court did
not err by denying Tarpley’s Batson challenge.

II.    Prior Convictions

¶12           Tarpley also contends the State failed to “follow the proper
procedure for establishing a prior conviction.” We review a trial court’s
determination that a prior conviction constitutes a historical prior felony
conviction de novo as a mixed question of fact and law. State v. Derello, 199
Ariz. 435, 437, ¶ 8 (App. 2001).

¶13           According to Tarpley, “[t]he proper procedure for
establishing a prior conviction is for the state to submit a certified copy of
the conviction and establish that the defendant is the person to whom the
document refers.” But that in fact occurred here.

¶14            Officer Dodd testified that he took Tarpley’s fingerprints,
which were introduced as Exhibit 1. Officer Dodd then requested a
comparison of those fingerprints to Tarpley’s criminal records. Hillary
Sellmeyer conducted the comparison. Sellmeyer testified she compared
the Exhibit 1 prints to “the ten-print record and the priors document”
from Exhibit 2 (the “penitentiary package” or “pen pack”), and they
matched. The certified documents in Exhibit 2 included Tarpley’s
fingerprints, full name, and date of birth.

¶15           Based on the evidence presented, the superior court properly
found the existence of two prior felony convictions. See State v. Solis, 236
Ariz. 242, 248, ¶ 21 (App. 2014) (“[P]en packs alone may be sufficient to
prove prior convictions.”).




                                      6
                  STATE v. TARPLEY
                  Decision of the Court

                     CONCLUSION

¶16   We affirm Tarpley’s conviction and sentence.




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




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