Court of Appeals of Arizona, First Division, Department B
Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2010-006294-001 The Honorable Daniel G. Martin, Judge
Thomas C. Horne, Attorney General Phoenix by Joseph T. Maziarz, Acting Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee.
James J. Haas, Maricopa County Public Defender Phoenix by Thomas K. Baird, Deputy Public Defender Attorneys for Appellant.
MAURICE PORTLEY, Presiding Judge.
¶1 Defendant Aaron Washington appeals his convictions and sentences for kidnapping, sexual abuse, and child molestation. He contends the trial court erred by stating on record that the victim had identified him and rejecting his claim of prosecutorial misconduct. Finding no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Washington was indicted for two counts of kidnapping, three counts of sexual abuse, and one count of child molestation following his attack of two teenage girls. At trial, both victims testified about their attacks and positively identified Washington as their assailant. The jury found him guilty of the three counts related to R.F. but acquitted him of the remaining counts related to D.J. After sentencing, Washington appealed.
¶3 Washington contends the court erred by stating that R.F. had identified him as her assailant during trial. He contends that his shirt was a different color. Because Washington failed to object at trial, we review his claim for fundamental prejudicial error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005).
¶4 Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." Id. "To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice." Id. at ¶ 20.
¶5 Here, there is nothing in the record to indicate that the court erred by stating that the record reflected that R.F. had identified the defendant during trial. R.F. testified where Washington was sitting, what type of shirt he was wearing, and that his shirt was greenish. The court observed and heard her testimony and noted, without objection, that the record would reflect she had identified Washington, regardless of how she perceived the precise color of his shirt.
¶6 The jury was also listening and watching R.F. and was free to find that R.F. had identified Washington by his shirt or its hue, or to reject her identification. Any potential deficiency in R.F.'s ability to identify Washington properly goes to credibility, which is a question for the jury. See State v. Myers, 117 Ariz. 79, 84-85, 570 P.2d 1252, 1257-58 (1977). Because there is ...