IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) ) Appeal from the Superior Court in Maricopa County

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1 NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c; ARCAP 28(c; Ariz. R. Crim. P IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. ALBERT KARL HEITZMANN, Appellant. No. 1 CA-CR DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court Appeal from the Superior Court in Maricopa County Cause No. CR DT The Honorable Rosa Mroz, Judge CONVICTIONS AND SENTENCES AFFIRMED PART AND REVERSED IN PART Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section And W. Scott Simon, Assistant Attorney General Attorneys for Appellee Theresa M. Armendarez, P.L.C. By Theresa M. Armendarez Attorney for Appellant Albert Karl Heitzmann Appellant Phoenix Phoenix Florence J O H N S E N, Judge

2 1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967, and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969, following Albert Karl Heitzmann s conviction on December 12, 2007, of two counts of misconduct involving weapons, Class 6 felonies; one count of attempted tampering with a witness, a Class 1 misdemeanor; and one count of perjury, a Class 4 felony. Heitzmann s counsel has searched the record on appeal and found no arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000; Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App Heitzmann was given the opportunity to file a supplemental brief and did so on March 30, Counsel now asks this court to search the record for fundamental error. After reviewing the entire record, we affirm Heitzmann s convictions and sentences for attempted tampering with a witness and perjury but reverse his convictions and sentences for misconduct involving weapons. FACTS AND PROCEDURAL HISTORY 2 In the mid-to-late 1990s, Heitzmann was a teacher in the Arizona Department of Juvenile Corrections; during that 1 Heitzmann s attorney filed a motion asking us to accept an approximately 50-page addendum to Heitzmann s initial five-page supplemental brief. This court denied the motion on the ground that the addendum was unnecessary. Nevertheless, as this is an Anders appeal, we have reviewed the entire record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at

3 time, he met a young man named Paul Speer. 2 Speer lived with Heitzmann from December 2001 until February 2002, and Speer s half brother, Brian Womble, moved in with Heitzmann in January Speer was arrested and charged in connection with a burglary committed on March 14, Sometime before 4:56 a.m. on the morning of May 25, 2002, while Speer was incarcerated in the Maricopa County Jail, the victims of the burglary were shot; one of them died as a result of his injuries. Soon after, a jailhouse snitch told the police to investigate Womble in connection with the shootings. 4 After listening to a series of phone calls Speer made from jail to Womble at Heitzmann s apartment, the police arrested Womble on June 21, 2002 and executed a search warrant on Heitzmann s apartment. The police also interviewed Heitzmann, who admitted he had been holding two guns for Womble in his safe deposit box and had returned both guns to Womble about a month ago. The police later reviewed the sign-in sheet for Heitzmann s safe deposit box and confirmed that Heitzmann accessed the box on May 17, Upon review, we view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against Heitzmann. State v. Fontes, 195 Ariz. 229, 230, 2, 986 P.2d 897, 898 (App

4 5 Speer and Womble were charged in the shootings. On November 9, 2006, Heitzmann sent a letter to James Winters, a friend of Speer and Womble who also was incarcerated. The letter stated: If anyone asks you what you were doing on the night of May , 2002, it is important that you remember. So let me remind you. At about 8:00 to 9:00 that evening, you were on the sofa crying and talking about killing yourself.... I gently persuaded you not to because killing yourself would attract the police, and make a big mess. By midnight, you were crashed out on the sofa, drunk on 151 Bacardi. I got up at about 4:30 in the morning, and you were still unconscious. You were not up and about till about 9:00 the following morning. So, if anyone asks what you were doing when those people were shot, you were asleep on the sofa, and Brian [Womble] was asleep on the living room floor... 6 Heitzmann testified at Speer s trial and provided an alibi for Womble the night of the murder. 3 Specifically, Heitzmann testified that Womble was in his apartment when Heitzmann went to sleep at 9:30 p.m. the night of the shooting, that he saw Womble again when he woke up briefly around midnight and that Womble was asleep in the living room when Heitzmann woke up to feed the birds around 4:30 a.m. the morning of the shooting. Nevertheless, Heitzmann admitted that he held two 3 The trials of Speer and Womble were severed because Speer s defense, that Womble committed the murder on his own without any influence from Speer, was antagonistic to Womble s defense. Eventually, however, Speer decided to change his defense to the alibi defense provided by Heitzmann. 4

5 guns for Womble in his safe deposit box and gave the guns back to Womble when he asked for them in May In order to establish that Heitzmann lacked a motive to lie about the alibi he provided, Speers attorney asked Heitzmann about his relationship with Speer. The following exchange took place: [SPEER S ATTORNEY:] In fact, Paul Speer, you don t even consider Paul Speer a friend of yours, do you? [HEITZMANN:] Not anymore. [SPEER S ATTORNEY:] You ve had a falling out that s gone on for several years; is that a fair statement? [HEITZMANN:] Yes. Heitzmann went on to say that while he no longer had personal feelings for Speer, he was concerned about him (and Womble being convicted falsely. 8 In spite of Heitzmann s alibi testimony, Speer and Womble both were convicted of first-degree murder and other related charges. Heitzmann later was indicted on two counts of misconduct involving weapons, for giving the two guns to Womble; one count of attempted tampering with a witness, for the letter he sent to Winters; and one count of perjury, for lying about whether he remained friends with Speer. 9 At Heitzmann s trial, the State played for the jury a videotape of his June 21, 2002, interview with police, during which Heitzmann admitted to holding two guns for Womble in his 5

6 safe deposit box and returning the guns to Womble, admitted to speaking with Womble s probation officer and stated that the incident in which Winters was drunk on his couch with a gun threatening to shoot himself happened the day before the interview rather than on May 24, as he had claimed in his letter to Winters. The State also played numerous tapes of jail phone calls between Heitzman and Speer, Womble and various others, during which Heitzmann agreed to give Womble the guns, told Speer he wanted to give him a hug when he saw him in court and admitted he made a big mistake sending the letter to Winters. In addition, the transcript of Heitzmann s testimony at Speer s trial was read into evidence. The jury, therefore, learned that during his testimony in the earlier trial, Heitzmann again had admitted giving the guns to Womble, said that his memory of [Winters] sleeping on the sofa [at 4:30 a.m. on May 25] was a false memory and stated under oath that he and Speer no longer were friends. 10 Prior to sending the case to the jury, and out of the presence of the jury, the court found the allegedly perjurious statement to be material, as required by Franzi v. Superior Court, 139 Ariz. 556, 562, 679 P.2d 1043, 1049 (1984. The jury found Heitzmann guilty on all four charges. The court sentenced Heitzmann to concurrent, presumptive one-year terms of imprisonment on the two counts of misconduct involving weapons 6

7 and a consecutive, presumptive two-and-a-half-year term on the perjury count and suspended sentence and placed Heitzmann on a two-year term of probation on the count of attempted tampering with a witness, to be served upon his discharge from prison. 11 Heitzmann timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. sections (A(1 (2003, (2001 and -4033(A(1 (Supp DISCUSSION A. Fundamental Error Analysis. 12 The record reflects Heitzmann received a fair trial. He was represented by counsel at all stages of the proceedings against him and was present at all critical stages. The State presented both direct and circumstantial evidence sufficient to allow the jury to convict Heitzmann on the charges of attempted tampering with a witness and perjury. The jury was properly comprised of eight members with two alternates. The court properly instructed the jury on the elements of the charges, the State s burden of proof and the necessity of a unanimous verdict. The jury returned a unanimous verdict, which was confirmed by juror polling. The court received and considered a presentence report and addressed its contents during the 7

8 sentencing hearing and imposed legal sentences on the charges arising out of the crimes of which Heitzmann was convicted. 13 After reviewing the record, we ordered the parties to brief the issue of whether the State presented sufficient evidence to prove Heitzmann was guilty of misconduct involving weapons. See Penson v. Ohio, 488 U.S. 75 (1988. Specifically, we asked for briefing on the question of whether there was sufficient evidence for the jury to find, beyond a reasonable doubt, that Heitzmann knew Womble was on probation for a felony offense at the time Heitzmann returned the guns to him. 14 A person commits misconduct involving weapons by knowingly... [s]elling or transferring a deadly weapon to a prohibited possessor. A.R.S (A(5 (Supp For these purposes, prohibited possessor is defined by statute as one [w]ho is at the time of possession serving a term of probation pursuant to... a felony offense. A.R.S (A(7(d (Supp (emphasis added. 4 The phrase pursuant to... a felony offense was added by the legislature in Ariz. Sess. Laws, ch. 143, 1 (2d Reg. Sess.. According to the final Senate fact sheet, the revision was made to clarify that the statute [a]llows those on 4 Although these statutes were amended after the date of Heitzmann s offense, the revisions are immaterial to the disposition of this appeal. Thus, we cite to the current published version of the statutes. 8

9 probation for a misdemeanor to possess a firearm.... Senate Fact Sheet, S.B. 1316, 44th Leg., 2d Reg. Sess. (Ariz Therefore, proof that the defendant knew the individual receiving the deadly weapon was on probation is not enough; under the statute, the State also must prove the defendant knew the recipient of the deadly weapon was on probation for a felony conviction. 5 Consistent with the statute, the court properly instructed the jury in this case that [p]rohibited possessor means any person who at the time of the possession [is] serving a term of probation pursuant to a [conviction] for a felony offense. 15 At trial, the State introduced evidence that on November 29, 2000, Heitzmann paid a $100 bond for Womble s release after he was arrested on a burglary charge. Also in evidence was a minute entry showing that the bond was exonerated on February 7, 2001, after Womble pled guilty to a felony and was placed on a three-year term of probation. Additionally, as mentioned, the jury heard Heitzmann admit to have spoken with Womble s probation officer. 16 The evidence before the jury thus showed (1 Womble had been arrested and charged with burglary, (2 Heitzmann knew Womble had been arrested, (3 Heitzmann posted Womble s bond, 5 The State does not argue that under A.R.S (A(5 and -3101(A(7(d, one need not know the recipient of the weapon is a prohibited possessor to be convicted of the crime. 9

10 (4 Womble pled guilty to a felony and was placed on probation, (5 Womble s bond was exonerated, and (6 Heitzmann knew Womble was on probation shortly before he gave Womble the guns. Nothing in the record, however, established that Heitzmann knew at the time he gave Womble the guns that Womble had been found guilty of a felony or that he knew Womble was on probation for a felony conviction. 17 In support of its contention that because Heitzmann posted Womble s bond, he must have known Womble was charged with a felony, the State in its supplemental brief points to Exhibit 30, a document titled Notice of Deposit with the Court, which evidenced Heitzmann s deposit of the bond. Although the referenced exhibit contains an entry stating Womble was charged with Burg 2nd Deg, nothing in the document states that the charged offense was a felony and in any event, the document does not bear Heitzmann s signature. Moreover, even if it might be argued that Heitzmann saw the document and knew that Burg 2nd Deg constituted a Class 6 felony, there is no evidence that Heitzmann knew that Womble s subsequent conviction, after a plea agreement, was based on the charged felony and not on a lesserincluded or other offense. The State further argues the jury heard evidence that Heitzmann had spoken to Womble s probation officer, but it does not contend the probation officer disclosed 10

11 to Heitzmann the offense for which Womble had been assigned probation. 18 A conviction based on insufficient evidence is fundamental error. State v. Stroud, 209 Ariz. 410, 412 n.2, 6, 103 P.3d 912, 914 n.2 (2005. Because a defendant charged under these circumstances may be convicted of misconduct involving a weapon only upon proof that he knew the individual receiving the weapon had been convicted of a felony, and no such proof was offered at trial, we must reverse Heitzmann s convictions and sentences on the two charges of misconduct involving weapons. B. Issues Identified by Heitzmann for Review. 19 In his pro per supplemental brief, Heitzmann argues the State s suggestion that he desired a sexual relationship with Speer was insufficient to establish a motive to commit perjury and the State s theory of prosecution was flawed with respect to the evidence that Heitzmann knowingly suggested Winters testify falsely. 6 We consider each argument in turn. 6 By claiming that certain information was withheld from his jury, Heitzmann also seems to suggest that his counsel was ineffective. We simply note that claims of ineffective assistance of counsel are not properly raised on direct appeal; rather, such claims should be raised in a motion for postconviction relief under Arizona Rule of Criminal Procedure 32. See State v. Geotis, 187 Ariz. 521, 524, 930 P.2d 1324, 1327 (App

12 1. The State presented sufficient evidence for the jury to find Heitzmann committed perjury. 20 Heitzmann argues that the State never actually accused [him] of denying that Speer murdered [the victim], an argument that suggests Heitzmann fails to understand the basis for his perjury conviction. Nevertheless, in contending there was no basis for the State s assertion that he perjured himself out of a desire for a sexual relationship with Speer, Heitzmann seems to argue the State presented insufficient evidence of a motive for perjury. 7 Because the jury did not need to find Heitzmann desired a sexual relationship with Speer to find he committed perjury when he said he and Speer were no longer friends, we reject Heitzmann s argument. 21 In support of the perjury count, the State did not introduce statements the State did introduce statements made by Heitzmann suggesting he desired a sexual relationship with Speer. The evidence also showed, however, that Heitzmann visited Speer in jail many times between August 2002 and January 2007 and each time identified himself as a friend of Speer, Heitzmann attended some of Speer s court hearings as an 7 There is no motive element to the crime of perjury; perjury is making... [a] false sworn statement in regard to a material issue, believing it to be false. A.R.S (A(1 (2001. Evidence that Speer desired a sexual relationship with Speer supported the State s contention that Heitzmann committed perjury when he said he and Speer were no longer friends. 12

13 observer, Heitzmann helped Speer make three-way telephone calls when Speer called him from jail, even though Heitzmann knew that was against jail rules, and the day after Heitzmann testified at Speer s trial, he had a conversation with Speer in which he asked Speer how he performed as a witness and told Speer he wanted to give him a hug when he saw Speer enter the courtroom. In short, there was an abundance of evidence sufficient for the jury to find Heitzmann knowingly made a false sworn statement, A.R.S (A(1 (2001, when he testified he and Speer were no longer friends. 2. The State presented sufficient evidence to find Heitzmann committed attempted tampering with a witness. 22 Heitzmann also argues that the State s attempt to prove Winters was not drinking at Heitzmann s apartment on May 24, 2002, was logically flawed. We take Heitzmann s argument to be that the State presented insufficient evidence to show he attempted to knowingly induce [Winters to]... [t]estify falsely. A.R.S (A(2 ( Heitzmann s letter to Winters did not just instruct him to say he was drinking at Heitzmann s apartment on May 24; it specifically told Winters to say he was on the sofa crying and talking about killing himself, that [b]y midnight he was crashed out on the sofa, drunk on 151 Bacardi and that Womble was asleep on the living room floor when those people were 13

14 shot. The jury heard Heitzmann say in his interview with police that, to the contrary, the incident with Winters sitting on the couch, crying and talking about killing himself happened on June 20, not on the night of the shooting. The court also heard Heitzmann s testimony from Speer s trial, during which he said that he was going to have to retract [his] story about [the incident] happening on May 24, that his memory of the event was a false memory and that the event happened on whether he did the thing with the gun, apparently, that happened on June 20th. In effect, Heitzmann admitted the story he told Winters to testify to was false. For this reason, we hold there was sufficient evidence before the jury for it to find Heitzmann committed attempted tampering with a witness when he sent the letter to Winters. 8 CONCLUSION 24 We have reviewed the entire record for reversible error and, for the reasons set forth above, conclude that we must reverse Heitzmann s convictions and resulting sentences on the two charges of misconduct involving weapons. However, we affirm Heitzmann s convictions on the charges of perjury and attempted witness tampering and the resulting sentences. 8 In his supplemental brief, Heitzmann also raised arguments pertaining to the weapons charges on which he was convicted. Because we have reversed those convictions, we do not address those arguments. 14

15 25 After the filing of this decision, defense counsel s obligations pertaining to Heitzmann s representation in this appeal have ended. Defense counsel need do no more than inform Heitzmann of the outcome of this appeal and his future options, unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, , 684 P.2d 154, (1984. Heitzmann has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review. On the court s own motion, he has 30 days to proceed, if he wishes, with a pro per motion for reconsideration. CONCURRING: /s/ DIANE M. JOHNSEN, Presiding Judge /s/ LAWRENCE F. WINTHROP, Judge /s/ PATRICIA K. NORRIS, Judge 15