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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   WILLIAM JAMES BUTLER, Appellant.

                             No. 1 CA-CR 14-0193
                                FILED 2-17-2015


           Appeal from the Superior Court in Coconino County
                        No. S0300CR201200827
                 The Honorable Mark R. Moran, Judge

                                  AFFIRMED


                                   COUNSEL

Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee
                            STATE v. BUTLER
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.


P O R T L E Y, Judge:

¶1             William James Butler was convicted of aggravated assault,
resisting arrest, and disorderly conduct. He appeals his convictions and the
resulting sentences, arguing that fundamental error occurred because a
police officer testified and identified the co-defendant who “took a plea
agreement.” For the reasons that follow, we affirm.

                            BACKGROUND1

¶2            Flagstaff Police Corporal Shawn Knott and Officer Robert
Tullis were trying to separate two men who were fighting. Moments later,
Officer Curtis Simpson arrived and saw Butler running towards the
officers.

¶3            Officer Knott attempted to move Butler away from the fight,
but Butler “lunged forward” and “shoved [Officer Tullis in] the chest,”
pushing him backwards, and then punched Officer Tullis. When Officer
Knott grabbed Butler, Officer Knott was hit. Kenneth Chapple then walked
quickly towards Officer Simpson “in an aggressive manner with a puffed
up chest[.]” Officer Simpson pushed Chappel away and told him to stay
back, but Chapple pushed the officer. Officer Simpson then pushed
Chapple against a car to arrest him. Then Isaiah Buck “jump[ed] on [Officer
Simpson’s] back” and put his forearm “around [Simpson’s] face, [and]
appl[ied] pressure backwards.”

¶4          As the officers were attempting to handcuff Buck, Brandon
Chapple, Kenneth’s brother, ran towards the officers and struck one of
them. Eventually, the police arrested all four brawlers.



1 “We view the evidence in the light most favorable to sustaining [the]
convictions and resolve all reasonable inferences against [the defendant].”
State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3, 110 P.3d 1026, 1027 (App. 2005)
(citation omitted).


                                     2
                             STATE v. BUTLER
                            Decision of the Court

¶5             Butler was indicted for two counts of aggravated assault on a
peace officer, one a class five felony and the other a class four felony,
resisting arrest and disorderly conduct. He pled not guilty and, along with
Brandon Chappel and Isiah Buck, who had also been indicted, went to trial.
Although Kenneth Chapple had been indicted, he pled guilty and did not
participate in the trial.

¶6            During the trial, Officer Tullis described the melee and
referred to a “Mr. Chapple.” The prosecutor asked, “Which Chapple? Do
you know?” The officer responded, “I do not recall. He’s not here today.
He was the gentleman that took a plea agreement.” Butler did not object.

¶7            The jury found Butler guilty of the disorderly conduct,
resisting arrest and the class five aggravated assault, but not guilty of the
class four aggravated assault. He was sentenced to thirty days in jail with
nineteen days of presentence incarceration credit, and eighteen months’
probation for aggravated assault and resisting arrest, and time served for
the disorderly conduct. Butler appealed.2 We have jurisdiction under
Arizona Constitution Article VI, Section 9, and Arizona Revised Statutes
sections 12–120.21(A)(1), 13–4031, and –4033(A) (2014).

                               DISCUSSION

¶8          Butler contends that he is entitled to a new trial because
fundamental prejudicial error occurred when the officer testified about
Kenneth Chapple pleading guilty. We disagree.

¶9              It is axiomatic that if two or more defendants are charged with
the same criminal offense, the fact that one has pled guilty is inadmissible
against the other. State v. McDonald, 117 Ariz. 159, 161, 571 P.2d 656, 658
(1977) (citations omitted). Here, the officer identified a Mr. Chapple, and
when the prosecutor sought to clarify which Chapple, the officer stated that
the person was not present because he pled guilty.3 The defense, however,
did not object to the testimony, request the court strike the testimony, ask
for a mistrial, or request a cautionary instruction. Consequently, our review
is limited to fundamental error. See State v. Henderson, 210 Ariz. 561, 567,
¶¶ 19-20, 115 P.3d 601, 607 (2005); see also McDonald, 117 Ariz. at 161, 571


2 Brandon Chapple and Isiah Buck did not appeal their convictions or
sentences.
3 Neither Butler nor the other co-defendants had filed a motion in limine

seeking to preclude any mention of Kenneth Chapple’s plea agreement or
his absence from the courtroom.


                                      3
                              STATE v. BUTLER
                             Decision of the Court

P.2d at 658 (“[W]hen no cautionary instruction is requested or given, the
facts and circumstances will be examined in order to decide whether the
jury’s verdict was possibly influenced, thereby prejudicing the appellant.”).

¶10           Fundamental error review involves a three-step analysis. See
Henderson, 210 Ariz. at 567, ¶¶ 19-22, 115 P.3d at 607. First, the defendant
must prove error. Id. at 568, ¶ 23, 115 P.3d at 608. Second, the defendant
must prove “that the error complained of goes to the foundation of his case,
takes away a right that is essential to his defense, and is of such magnitude
that he could not have received a fair trial.” Id. at 568, ¶ 24, 115 P.3d at 608
(citation omitted). Finally, the defendant must demonstrate that the error
was prejudicial. Id. at 568, ¶ 26, 115 P.3d at 608.

¶11             Here, although the officer should not have volunteered the
information about the plea agreement when trying to identify Kenneth
Chapple, the State did not ask any question to elicit the statement. The State
did not try to use the statement to suggest that Butler was guilty or
otherwise refer to Kenneth Chapple’s plea agreement. Furthermore, the
State did not refer to the testimony during closing argument. Cf. United
States v. Toner, 173 F.2d 140, 142 (3rd Cir. 1949) (noting that the trial court
erred when it instructed the jury that it could “take into consideration [for
determining the defendant’s guilt] that one of two co-conspirators did
plead guilty and make such use of it as [it] see[s] fit”). Consequently, if the
officer’s statement was error, it was not fundamental error because the State
did not elicit it or attempt to use it for any purpose. See Paige v. United States,
25 A.3d 74, 82-84 (D.C. App. 2011) (concluding that brief mention of co-
defendant’s plea during trial was not plain error where, inter alia, the
prosecutor did not mention the plea during closing argument); see also State
v. Miller, 129 Ariz. 42, 43, 628 P.2d 590, 591 (App. 1981) (holding that an
isolated answer from a witness did not result in fundamental error because
defendant did not object, did not request a jury instruction, and did not
request that the court strike the testimony).

¶12           Moreover, Butler has failed to prove that he suffered any
prejudice. See State v. Munninger, 213 Ariz. 393, 397, ¶ 14, 142 P.3d 701, 705
(App. 2006) (holding that a defendant must affirmatively prove prejudice
and cannot rely on speculation). Despite the fact that the comment about
the co-defendant’s plea was brief and the State did not discuss it further
during trial, Butler argues that the statement was prejudicial, but has not
pointed to anything in the record supporting his argument. In fact, Butler’s
argument is undercut because the jury considered all the evidence,
determined the facts and acquitted him on the more serious class four
aggravated assault charge. See State v. Stuard, 176 Ariz. 589, 600, 863 P.2d


                                        4
                            STATE v. BUTLER
                           Decision of the Court

881, 892 (1993) (reasoning that the defendant failed to prove prejudice
because the jury based their verdicts on the evidence when the jury
acquitted the defendant on some of the charges). And given the testimony
from two officers that Butler assaulted Officer Knott, the evidence of
Butler’s guilt is overwhelming.

¶13            Butler also contends that he was prejudiced because he did
not have the ability to confront Chapple. The Confrontation Clause within
the Sixth Amendment to the United States Constitution, however, was not
implicated by the officer’s comment because the State did not solicit or offer
the statement for its truth. Likewise, after the officer volunteered the
statement, the State did not ask the officer any other questions about
Kenneth Chapple or otherwise use any information related to the guilty
plea for any substantive evidentiary purpose. Consequently, because the
statement was volunteered and not testimonial hearsay that the State was
trying to use against Butler, there was no violation of the Confrontation
Clause. See Crawford v. Washington, 541 U.S. 36, 38 (2004); see also State v.
Womble, 225 Ariz. 91, 96-97, ¶¶ 10-13, 235 P.3d 244, 249-50 (2010) (finding
that police officer’s testimony regarding information from an informant did
not violate the Confrontation Clause where “[t]he testimony was not
offered to prove [the defendant] was involved in the murder. . .”).

                              CONCLUSION

¶14           Based on the foregoing, we affirm Butler’s convictions and
sentences.




                                  :ama




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