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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  CHAD EVERETT BRAXTON, Appellant.

                           No. 1 CA-CR 17-0232
                         No. 1 CA-CR 18-0104 PRPC
                               (Consolidated)
                               FILED 7-19-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-001580-001
               The Honorable Michael D. Gordon, Judge

                           AFFIRMED
                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Appellee

The Hopkins Law Office, P.C., Tucson
By Cedric Martin Hopkins
Counsel for Appellant
                             STATE v. BRAXTON
                             Decision of the Court



                       MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge David D. Weinzweig joined.


M c M U R D I E, Judge:

¶1            Chad Everett Braxton appeals his convictions for two counts
of dangerous assault by a prisoner, four counts of aggravated assault, and
one count of promoting prison contraband, and the resulting sentences.
Braxton’s counsel filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), certifying that, after
a diligent search of the record, he found no arguable question of law that
was not frivolous. Counsel also asked this court to search the record for
arguable issues. See Penson v. Ohio, 488 U.S. 75 (1988); State v. Clark, 196 Ariz.
530, 537, ¶ 30 (App. 1999). Braxton was given the opportunity to file a
supplemental brief, and raised the following issues: (1) sufficiency of the
evidence; (2) failure to disclose material evidence; (3) ineffective assistance
of counsel; (4) improper vouching; (5) multiplicitous convictions and
excessive sentences; (6) violation of due process; and (7) unreliable witness
testimony. Braxton also petitioned this court to review the superior court’s
order dismissing his post-conviction relief (“PCR”) proceeding commenced
pursuant to Arizona Rule of Criminal Procedure 32. We consolidated the
direct appeal with the petition for review from the PCR proceeding. After
reviewing the record, we affirm Braxton’s convictions and sentences; we
also grant review of his petition for review, but deny relief.

              FACTS AND PROCEDURAL BACKGROUND

¶2           On March 6, 2014, while an inmate at Lewis prison in
Buckeye, Braxton attacked a corrections officer by striking her several times
with a netted laundry bag full of rocks. The victim sustained a fractured
nose and orbital bone, as well as significant vision loss in her left eye.

¶3            Braxton was indicted on seven counts, including: two counts
of dangerous or deadly assault by a prisoner, a Class 2 felony; one count of
promoting prison contraband, a Class 2 felony; two counts of aggravated
assault (serious physical injury and deadly weapon or dangerous
instrument), a Class 3 felony; and two counts of aggravated assault
(fractured orbital bone and nose), a Class 4 felony. All seven counts were


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                            STATE v. BRAXTON
                            Decision of the Court

alleged as dangerous offenses and the State alleged multiple aggravating
circumstances including Braxton’s prior felony convictions.

¶4              In October 2014, Braxton was found not competent to stand
trial after a Rule 11 examination. Two months later, after further evaluation,
he was found to be competent. Braxton filed multiple motions throughout
the pretrial proceedings to change counsel, and in December 2014 the
superior court accepted his waiver of his right to counsel, appointed him
advisory counsel, and allowed him to represent himself. However, one year
later, the superior court granted Braxton’s motion to have his advisory
counsel resume representation.

¶5             After another change in counsel, a 16-day jury trial took place
in December 2016 and January 2017. The jury found Braxton guilty as
charged. The jury also found aggravating circumstances on Counts 1, 2, 4,
5, 6, and 7. Specifically, the offenses were found to have: (1) been dangerous;
(2) caused physical, emotional, or financial harm to the victim; (3) involved
the use of a deadly weapon or dangerous instrument during the
commission of the crime; (4) been committed in a brutal, vicious, or violent
manner; and (5) resulted in serious physical injury to the victim. At
sentencing, the court found Braxton had two prior felony convictions and
sentenced him as follows: a maximum term of 28 years’ imprisonment on
Counts 1 and 2, concurrent with Counts 4–7; a presumptive term of 15.75
years’ imprisonment on Count 3, consecutive to all other counts; a
maximum term of 20 years’ imprisonment on Counts 4 and 5 , concurrent
with Counts 1, 2, 6, and 7; and a maximum term of 12 years’ imprisonment
on Counts 6 and 7, concurrent with Counts 1, 2, 4, and 5. Braxton timely
appealed, and we have jurisdiction over the appeal pursuant to Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and
13-4033(A).

¶6            While the appeal was pending, Braxton sought post-
conviction relief, arguing ineffective assistance of counsel for failing to: (1)
present a third-party defense; (2) retest DNA evidence; (3) call specific
witnesses; (4) argue his mental health history as a mitigating factor; and (5)
raise his drug history and intoxication on the day of the incident. The
superior court summarily dismissed the post-conviction relief proceedings.
We have jurisdiction to review the dismissal pursuant to Rule 32.9.




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                            STATE v. BRAXTON
                            Decision of the Court

                               DISCUSSION

I.     Braxton’s Direct Appeal.

¶7           We have read and considered counsel’s brief and have
reviewed the record for any arguable issues. See Leon, 104 Ariz. at 300. We
find none.

¶8             In his supplemental brief, Braxton raises the following issues:
(1) sufficiency of the evidence; (2) failure to disclose material evidence; (3)
ineffective assistance of counsel; 1 (4) improper vouching; (5) multiplicitous
convictions and excessive sentences; (6) violation of due process; and (7)
unreliable witness testimony.

              Sufficient Evidence Supported Braxton’s Convictions.

¶9             Braxton argues the State did not present sufficient evidence to
prove his guilt beyond a reasonable doubt. We review the sufficiency of the
evidence de novo. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). We view the
evidence in the light most favorable to upholding the verdicts and resolve
all conflicts in the evidence against Braxton. See State v. Girdler, 138 Ariz.
482, 488 (1983). We do not reweigh the evidence or determine the credibility
of witnesses. State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004).

¶10            Here the evidence was sufficient to support the jury’s
verdicts. Braxton did not dispute that an assault with a dangerous
instrument occurred or that the victim suffered serious physical injury.
Instead, he submitted a misidentification defense at trial. However, both
the victim and a correctional officer identified Braxton as the attacker at
trial. The victim’s DNA was also found on Braxton’s pants after the assault
took place. Finally, Braxton admitted after the incident that he had been in
possession of the dangerous instrument used in the assault.

              Officer Crum’s Inability to Identify Braxton Was Not
              Exculpatory Evidence.

¶11           Braxton next claims the State withheld exculpatory evidence
in violation of Brady v. Maryland, 373 U.S. 83 (1963). At trial, Department of
Corrections Officer Crum testified the prosecutor showed him the

1      Because ineffective assistance of counsel claims cannot be raised on
direct appeal, State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002), we address these
claims infra, as part of Braxton’s petition for post-conviction relief.



                                      4
                           STATE v. BRAXTON
                           Decision of the Court

surveillance video of the assault before the trial began and asked him if he
could identify the attacker. Crum was unable to do so, and the prosecutor
did not disclose that information to Braxton before trial. Braxton argues this
information was exculpatory, and therefore the State was required to
disclose it under Brady. 2 We disagree.

¶12           “A Brady violation occurs only when the prosecutor, without
regard to good faith or bad faith, withholds evidence that is material to a
defendant’s guilt or punishment.” State v. Arvallo, 232 Ariz. 200, 206, ¶ 36
(App. 2013). “Evidence is ‘material’ for purposes of Brady ‘when there is a
reasonable probability that, had the evidence been disclosed, the result of
the proceeding would have been different.’” State v. Benson, 232 Ariz. 452,
460, ¶ 24 (2013) (quoting Smith v. Cain, 565 U.S. 73, 75 (2012)).

¶13            Crum’s inability to identify the attacker in the surveillance
video was not “material” evidence. Crum was not introduced by the State
as an identification witness. Instead, another Department of Corrections
officer, Officer McClure, testified that he had identified Braxton in the
surveillance video on the day of the assault. The existence of another officer
who could not identify Braxton in the video does not create a reasonable
probability that the jury would have returned a different verdict. Two other
witnesses, the victim and McClure, identified Braxton as the attacker, and
the victim’s DNA was found on Braxton’s pants. Regardless, Braxton was
not prejudiced by the State’s failure to disclose because the jury still
considered Crum’s failure to identify Braxton in the surveillance video after
it came out on cross-examination. See Strickler v. Greene, 527 U.S. 263, 282
(1999) (Brady violations require a finding of prejudice to the defendant).

              The State’s Closing Argument Did Not Constitute Improper
              Vouching.

¶14          Braxton contends the State’s closing argument constituted
improper vouching. Improper prosecutorial vouching occurs when the
prosecutor either places the prestige of the government behind a witness,
or suggests evidence not presented to the jury supports a witness’s
testimony, State v. Vincent, 159 Ariz. 418, 423 (1989), and includes personal



2      Braxton also argues the State violated Brady by failing to disclose the
victim’s intent to identify him during her testimony. Because Brady only
requires the State to disclose evidence favorable to the defendant, this was
not a violation. Brady, 373 U.S. at 87.



                                      5
                             STATE v. BRAXTON
                             Decision of the Court

assurances of a witness’s truthfulness, State v. Dunlap, 187 Ariz. 441, 462
(App. 1996).

¶15           First, Braxton challenges several statements made by the State
during closing argument that suggested certain witnesses’ testimony was
uncontradicted. When discussing the credibility of several witnesses, the
State argued no one had testified that any of the witnesses “got it wrong.”
However, these statements by the prosecutor do not personally assure the
witnesses’ truthfulness, but instead point out a lack of impeaching evidence
presented to the jury. Such argument is proper.

¶16           Additionally, during closing the State argued:

       [W]hen the defense has the facts on their side they argue the
       facts. When they have the law on their side, they argue the
       law. When they have nothing, they attack the investigation
       and the victims. This is exactly what’s going on here, because
       they have nothing.

Braxton argues this statement constituted improper vouching by the
prosecutor. We disagree. The prosecutor commented on the evidence
presented at trial, an acceptable tactic, and did not vouch for any witness’s
testimony or refer to any evidence outside the record.

              The Superior Court Did Not Impose Multiplicitous
              Sentences and Braxton’s Sentences Did Not Violate the
              Eighth Amendment.

¶17          Braxton argues the State charged multiplicitous offenses in
violation of the Double Jeopardy Clause and that his sentence was
“excessive” such that it violated his Eighth Amendment rights.

¶18           The Double Jeopardy Clause of the Fifth and Fourteenth
Amendments “protects against multiple punishment for the same offense.”
Ohio v. Johnson, 467 U.S. 493, 498 (1984); see also Lemke v. Rayes, 213 Ariz. 232,
236, ¶ 10 (App. 2006). Braxton submits his convictions are multiplicitous
because they arise out of a single incident. But, Arizona does not take a
“single incident” approach to double jeopardy. See, e.g., Anderjeski v. City
Court of Mesa, 135 Ariz. 549, 550 (1983). Multiple convictions are
permissible, even if they arise from the same conduct, if the sentences
imposed are concurrent. Id. at 551. Because the superior court imposed
concurrent sentences on all the convictions stemming from the assault, no
constitutional violation occurred. The only consecutive sentence imposed



                                        6
                            STATE v. BRAXTON
                            Decision of the Court

was on Count 3 for promoting prison contraband, which was conduct
separate and distinct from the assault.

¶19            The Eighth Amendment protects against “cruel and unusual
punishments.” U.S. Const. amend. VIII. This court is “extremely
circumspect” in our review of Eighth Amendment claims and only in
“exceedingly rare” circumstances will a sentence to a term of years be held
to violate the Eighth Amendment. State v. Berger, 212 Ariz. 473, 475, 477,
¶¶ 10, 17 (2006). “A trial court has broad discretion in sentencing and, if the
sentence imposed is within the statutory limits, we will not disturb the
sentence unless there is a clear abuse of discretion.” State v. Ward, 200 Ariz.
387, 389, ¶ 5 (App. 2001). Because Braxton’s sentences fall within the range
prescribed by law, with proper credit given for presentence incarceration,
we find no such abuse of discretion in this case.

              Braxton Was Not Deprived of Due Process.

¶20            Braxton also claims he was deprived of due process of law
because the State introduced his prior statements at trial by having them
read aloud to the jury. Braxton contends the lack of context or voice
inflection rendered those statements inaccurate. However, Braxton
provides no supporting citations to any legal authorities to support his
argument. See Ariz. R. Crim. P. 31.10(a)(7)(A). Furthermore, Braxton failed
to object to the admission of the statements at trial.

¶21          We find Braxton was not deprived of due process. Braxton
was either present or waived his presence at all stages of the proceedings.
The record reflects the superior court afforded Braxton all his constitutional
and statutory rights, and the proceedings were conducted in accordance
with the Arizona Rules of Criminal Procedure.

              The Jury Assesses Credibility of the Witnesses.

¶22            Finally, Braxton contends the State presented witnesses that
were not “reliable.” Braxton challenges the testimony of the DNA experts,
the victim, and the correctional officers who testified at trial. However,
“[n]o rule is better established than that the credibility of the witnesses and
the weight and value to be given to their testimony are questions
exclusively for the jury.” State v. Clemons, 110 Ariz. 555, 556–57 (1974).
Braxton’s trial counsel vigorously cross-examined all the State’s witnesses
and the jury made a determination based on the evidence presented.




                                      7
                             STATE v. BRAXTON
                             Decision of the Court

II.    Braxton’s Petition for Post-Conviction Relief.

¶23             We next address Braxton’s petition for post-conviction relief
pursuant to Rule 32. Absent an abuse of discretion or error of law, this court
will not disturb a superior court’s ruling on a petition for post-conviction
relief. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). It is the petitioner’s
burden to show that the superior court abused its discretion. See State v.
Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011).

¶24            On review, Bradley reasserts his ineffective assistance of
counsel claims regarding his trial counsel’s failure to retest DNA evidence,
interview and call additional witnesses, and present his mental health and
substance abuse history as mitigating evidence. However, Bradley does not
reassert the claim that his trial counsel should have pursued a third-party
defense, and therefore we do not consider that claim. See Ariz. R. Crim. P.
32.9(c)(4)(D) (failure to raise an issue in the petition on review “constitutes
a waiver of appellate review of that issue”).

¶25            To state a colorable claim of ineffective assistance of counsel,
a petitioner must show counsel’s performance fell below objectively
reasonable standards and that the deficient performance prejudiced the
petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Nash,
143 Ariz. 392, 397 (1985). Counsel’s performance must fall outside the
acceptable “range of competence” and fail to meet “an objective standard
of reasonableness.” Strickland, 466 U.S. at 687–88.

¶26            Braxton first argues his trial counsel should have tested or
retested certain DNA evidence. Braxton’s trial counsel was given the
opportunity to retest DNA evidence before trial, but elected not to do so.
Braxton also did not request DNA testing post-trial under Rule 32.12.
Regarding the evidence that was not tested, Braxton’s trial counsel elected
to argue at trial that the lack of testing was part of a failure by the State to
properly investigate the incident. To the extent Braxton disagreed with that
strategy, such a disagreement does not amount to ineffective assistance of
counsel. See State v. Meeker, 143 Ariz. 256, 260 (1984) (disagreement over trial
strategy will not amount to ineffective assistance of counsel if the conduct
has a reasoned basis).

¶27          Braxton also asserts his trial counsel failed to interview or call
important witnesses. Braxton argues his trial counsel should have called
Lieutenant Lunka, a correctional officer on duty during the incident whose
testimony Braxton claims would have contradicted that of McClure.
However, Braxton provides no details about what Lunka would testify to,



                                        8
                            STATE v. BRAXTON
                            Decision of the Court

or how it would impeach McClure’s identification at trial. Furthermore, his
attorney at trial cross-examined McClure regarding the identification and
even commented on Lunka’s absence at trial. This indicates a difference in
trial strategy rather than a failure of counsel to investigate Lunka’s potential
testimony. See Meeker, 143 Ariz. at 260; see also Nash, 143 Ariz. at 398 (there
is a “strong presumption” that counsel’s conduct was appropriate trial
strategy under the circumstances).

¶28            Braxton also contends his trial counsel should have called the
K9 officers who apprehended him on the day of the incident and the Native
American inmates whom he was found with at that time. Braxton claims
the K9 officers would have testified that they “cleared” him of having any
of the victim’s blood or DNA on his person. He claims the Native American
inmates would have testified that Braxton was with them at the time of the
assault. However, the evidence presented at trial belies such potential
testimony. In Braxton’s prior statements, he admitted he was inside the
building at the time of the assault and saw the victim shortly after the
assault took place. He then walked outside to where the Native American
inmates were exercising. In addition, Braxton’s pants were tested after the
assault and found to contain the victim’s DNA. Accordingly, Braxton was
not prejudiced by trial counsel’s failure to call these witnesses.

¶29            Finally, Braxton claims his trial counsel failed to present
mitigating evidence in the form of his mental health history. This claim is
also not supported by the evidence. The superior court conducted Rule 11
proceedings before trial and determined that Braxton was competent to
stand trial. Braxton has not presented any additional psychiatric evidence
regarding his mental health history than that presented during the Rule 11
proceeding. See Ariz. R. Crim. P. 32.5(d) (“The defendant must attach to the
petition any affidavits, records, or other evidence currently available to the
defendant supporting the petition’s allegations.”).




                                       9
                           STATE v. BRAXTON
                           Decision of the Court

                              CONCLUSION

¶30             Braxton’s convictions and sentences are affirmed. After the
filing of this decision, defense counsel’s obligations pertaining to Braxton’s
representation in this appeal will end after informing Braxton of the
outcome of this appeal and his future options, unless counsel’s review
reveals an issue appropriate for submission to the Arizona Supreme Court
by petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984).
Furthermore, we grant review of his petition but deny relief.




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




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