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DIVISION ONE STATE OF ARIZONA, Appellee, v. EDWARD ANTHONY PURVIS, Appellant. 1 CA-CR DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court Appeal from the Superior Court in Maricopa County Cause No. CR DT The Honorable Ralph Matthew Hess, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and William Scott Simon, Assistant Attorney General Attorneys for Appellee Phoenix Philip Edward Hantel Attorney at Law By Philip Edward Hantel Attorney for Appellant Phoenix N O R R I S, Judge 1 Edward Anthony Purvis timely appeals his convictions and sentences of one count of bribery of a public servant or party officer and four counts of harassment of a public officer

2 or employee. These convictions arose out of Purvis s efforts to disrupt an investigation by the Arizona Corporation Commission ( ACC into his business activities. 1 Working with his friend at the Chandler Police Department, then Detective Bradley Forward, Purvis obtained confidential criminal history and other personal information on several individuals involved with the investigation. He also filed nonconsensual liens based on meritless admiralty claims against an attorney and an investigator employed by the ACC, a superior court judge who presided over a civil action which arose from the ACC investigation, and the Clerk of the Maricopa County Superior Court (collectively, State Victims. I. Rule 20 Motion for Acquittal A. Quid Pro Quo 2 Purvis first argues the superior court should have granted his motion for judgment of acquittal because the State failed to present substantial evidence of an exchange or quid pro quo to support his conviction of bribery of a public servant or party officer under Arizona Revised Statutes 1 We view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against Purvis. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (

3 ( A.R.S. section (A(1 ( See Ariz. R. Crim. P. 20. In making this argument, Purvis relies on federal case law interpreting the federal bribery statute, 18 United States Code ( U.S.C. section 201(b (2006. United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, (1999 (federal bribery statute requires a specific intent to give or receive something of value in exchange for an official act. 3 A judgment of acquittal is only appropriate if there is no substantial evidence to warrant a conviction. Ariz. R. Crim. P. 20(a; State v. Fulminante, 193 Ariz. 485, 493, 24, 975 P.2d 75, 83 (1999. We review the superior court s denial of a Rule 20 motion for an abuse of discretion. State v. Paris- Sheldon, 214 Ariz. 500, 510, 32, 154 P.3d 1046, 1056 (App We will not reverse the superior court s denial of a motion for a judgment of acquittal or a jury s guilty verdict unless there is a complete absence of probative facts supporting the defendant s conviction. State v. Johnson, 215 Ariz. 28, 29, 2, 156 P.3d 445, 446 (App Although certain statutes cited in this decision were amended after the date of Purvis s offenses, the revisions are immaterial. Thus, we cite to the current version of these statutes. 3

4 4 As an initial matter, the Arizona bribery statute does not incorporate an explicit quid pro quo requirement; it reads as follows: 3 A person commits bribery of a public servant or party officer if with corrupt intent [s]uch person offers, confers or agrees to confer any benefit upon a public servant or party officer with the intent to influence the public servant s or party officer s vote, opinion, judgment, exercise of discretion or other action in his official capacity as a public servant or party officer. A.R.S (A(1. Nevertheless, the statute requires the State to prove the briber acted with corrupt intent to influence the public servant's action in his official capacity as a public servant. In State v. Walker, 185 Ariz. 228, 914 P.2d 1320 (App. 1995, this Court interpreted the corrupt intent element of the bribery statute as having about the same meaning as the word corruptly which, by statute, is defined as import[ing] a wrongful design to acquire or cause some pecuniary or other advantage to the person guilty of the act or omission referred to, or to some other person. Id. at 242, 914 P.2d at 1334 (quoting A.R.S (5 (1989 (current version at A.R.S (8 (Supp Because the quid pro quo requirement asserted by Purvis involves a question of statutory construction, we apply a de novo standard of review. State v. Gallagher, 205 Ariz. 267, 269, 5, 69 P.3d 38, 40 (App

5 5 Applying and combining the Walker definition of corrupt intent with the other requirements of the bribery statute, to obtain a bribery conviction the State must prove the briber intended to offer or confer a benefit on a public servant to acquire an action by the public servant in his official capacity. Accordingly, the State was required to prove Purvis acted with the requisite corrupt intent, that is, to acquire an advantage, he acted with the intent to influence Forward s action in his official capacity as a public servant. A.R.S (A(1. The State presented substantial evidence Purvis acted with corrupt intent. 6 Forward testified he and Purvis were close friends, and in spring 2005, Purvis told him the ACC was investigating his business. Purvis offered Forward a job helping him out with the ACC investigation. Forward declined the job, but offered to help Purvis in any way he could, saying, look, we re friends, if there s anything I can do for you, let me know, I ll help you out any way I can, but I just can t work for you. 7 A short time later, Purvis asked Forward to conduct background research on the individual who reported Purvis to the ACC. Using a publicly-available internet search engine, Forward conducted the research and delivered the information to Purvis. When Purvis asked for additional information, Forward suggested he could use law enforcement databases. Purvis endorsed this 5

6 proposal and Forward proceeded to run National Crime Information Center ( NCIC and Arizona Department of Transportation Motor Vehicle Division ( MVD checks on the reporting individual. Forward did not have the required law enforcement purpose for accessing this information. See A.R.S (G(1 (Supp In the ensuing months, Purvis asked Forward to obtain criminal background and personal information on other individuals associated with the ACC investigation. Each time Forward delivered information to Purvis, he told Purvis to be very careful, because discovery of the information could cost Forward his job, or his freedom. And each time Purvis responded with offers - offers the jury could reasonably believe were intended to ensure Forward would continue to provide Purvis with the confidential information: Look, I have your back. I ll take care of the information... and worst case scenario, lightning strikes and the department finds out what you did, I have your back. I ll take care of your family. You ll have a job waiting for you at my company. Further, when Forward told Purvis what he (Forward was doing was illegal and he could be charged with crimes, Forward testified Purvis assured him that if I [got] caught he would take care of me by giving me a job and supporting my family and Purvis would provide him a six figure salary. 6

7 9 From this evidence, the jury could conclude beyond a reasonable doubt Purvis offered benefits to Forward to obtain, or acquire Forward s ongoing efforts to obtain confidential information Purvis could use to interfere with the ACC investigation. Fulminante, 193 Ariz. at 493, 24, 975 P.2d at 83 ( [t]he question is whether on the evidence presented, rational factfinders could find guilt beyond a reasonable doubt. As recognized in United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998, the timing of the bribe in relation to the official act for which it is made is irrelevant. Bribes often are paid before the fact, but it is only logical that in certain situations the bribe will not actually be conveyed until the act is done. Id. (quoting United States v. Campbell, 684 F.2d 141, 148 (D.C. Cir Despite Forward s testimony he provided the confidential information to Purvis out of friendship, it was for the jury to weigh the evidence and determine the credibility of the witnesses. State v. Williams, 209 Ariz. 228, 231, 6, 99 P.3d 43, 46 (App Indeed, we note the Arizona statute does not require the State to prove the public servant accepted or was actually corrupted by the offer, or was even aware the offer was made with corrupt intent. See United States v. Johnson, 621 F.2d 1073, 1076 (10th Cir ( [i]t is not necessary to show that the official accepted the bribe... the official does not necessarily even need to be 7

8 aware of the bribe. The superior court did not abuse its discretion in refusing to grant a judgment of acquittal based on Purvis s quid pro quo argument. B. Official Capacity 10 Purvis also argues the superior court should have granted a judgment of acquittal on the bribery charge because Forward was not acting in his official capacity, as required by A.R.S (A(1, when he searched and obtained information from the NCIC and MVD. The record does not reflect Purvis raised this argument at trial, however, and issues raised for the first time on appeal are waived unless they constitute fundamental error. State v. Henderson, 210 Ariz. 561, 563, 1, 115 P.3d 601, 603 ( Even if not waived, this argument is not well taken. At trial, an Arizona Department of Public Safety Access Integrity Unit employee testified Forward logged into the Arizona Criminal Justice Information System ( ACJIS network to access the NCIC and MVD databases. ACJIS is designed exclusively for law enforcement use and its use is strictly 4 For an error to be fundamental, the defendant must show it 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. Henderson, 210 Ariz. at 568, 24, 115 P.3d at 608. If the defendant establishes fundamental error, he then bears the burden to show he was prejudiced by that error. Id. at , 26, 115 P.3d at

9 governed by A.R.S That statute restricts use of ACJIS information within criminal justice agencies to the administration of criminal justice. A.R.S (G(1. 12 Forward logged into ACJIS to obtain confidential criminal and personal information on the people Purvis requested. He was only able to do so as a law enforcement officer. Thus, he was acting in his official capacity when he procured criminal and other information for Purvis and the superior court did not commit fundamental error in not granting a judgment of acquittal on this issue. 5 II. Admission of District Court Order 13 Purvis argues the superior court erred by admitting into evidence a federal district court order granting a motion to dismiss filed by the State Victims and one other defendant of an action Purvis filed under admiralty law because the order was irrelevant to his intent to harass, as required by the harassment statute, A.R.S (B (Supp Under A.R.S (B, a person commits harassment against a 5 Purvis cites Valdes v. United States, 475 F.3d 1319 (10th Cir. 2007, in which the Tenth Circuit held the search of police databases is not an official act, as required by the federal bribery statute. See 18 U.S.C. 201(a(3. The information obtained by law enforcement in Valdes was publicly available and not accessed to retard, conclude, or skew [a police] investigation, [which] is unquestionably conduct prohibited by 201. Valdes, 475 F.3d at 1320, In contrast to Valdes, Forward procured confidential information knowing Purvis s purpose was to disrupt the ACC s investigation. 9

10 public officer or employee if, with intent to harass, the person files a nonconsensual lien against the public officer or employee that fails to comply with the other requirements of the statute. We review a superior court s decision to admit evidence over objection for an abuse of discretion. State v. Smith, 215 Ariz. 221, 228, 20, 159 P.3d 531, 538 ( In March 2005 the ACC initiated an investigation of Purvis s business, and beginning in June 2005, the ACC issued subpoenas to Purvis for production of his business records. In mid-2006 Purvis told Forward he anticipated the investigation would shortly conclude in his favor because he was getting ready to fire bombs at them so that will get them off our back. In early August 2006, in an effort to disrupt the ACC investigation by creating conflicts of interest between himself and the State Victims, Purvis sent meritless admiralty claims to multiple parties, including the State Victims. Later that month, Purvis filed a document entitled Conditional Acceptance in the superior court against both the lawyer and the investigator employed by the ACC. In response, the ACC moved for sanctions against Purvis in the superior court. 15 Purvis s attorney at the time, who was not associated with these claims, explained to Purvis in October 2006 the ACC was asserting his admiralty claims were unwarranted and frivolous and recommended Purvis withdraw the claims. When 10

11 Purvis refused, his attorney asked him to at least withdraw the conditional acceptance aspect of the claims, because otherwise, [t]he ACC will win this. This statement should have alerted Purvis his admiralty claims were meritless. Again, however, Purvis refused, and in November 2006 he proceeded to file $15 million U.C.C. liens against the State Victims in federal court in Colorado. These liens form the basis of Purvis s harassment convictions. 16 Also in November 2006, Purvis filed a Verified Petition for Libel of Review in federal district court in Arizona. The State Victims moved to dismiss this action; the district court granted their motion, stating in its order [p]etitioner s assertion that this Court has admiralty jurisdiction [is] without merit. The district court granted Purvis leave to amend and when he did not file an amended complaint, the district court dismissed Purvis s action with prejudice. 17 At trial, defense counsel argued Purvis acted without the requisite intent to harass because he sought and received the opinion of several employees regarding the validity of the admiralty claims and the associated liens. 6 The federal court 6 Two of Purvis s former employees reported to Purvis the admiralty claim and lien strategy was the right path, and actively encouraged him in the process. In addition, his attorney at the time told Purvis the claims appear[ed] to have 11

12 order was relevant, then, to rebut Purvis s evidence he had subjectively believed the liens had merit. See Ariz. R. Evid. 401 (defining relevant evidence as evidence that has any tendency to make the existence of any fact in dispute more or less probable. Given Purvis s argument and this evidence, the superior court did not abuse its discretion in admitting the federal court order over Purvis s sole objection that it was not relevant to his subjective intent. CONCLUSION 18 For the foregoing reasons, we affirm Purvis s convictions and sentences. /s/ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ SHELDON H. WEISBERG, Judge /s/ MARGARET H. DOWNIE, Judge some basis and some merit to them, though he was not the right guy to go through them and understand them. 12