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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FRANCISCO MANUEL NIEBLAS RODRIGUEZ, Appellant.

No. 1 CA-CR 18-0899

Appeal from the Superior Court in Maricopa County

No. CR2016-160844-001

The Honorable Mark H. Brain, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Casey Ball

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Paul J. Prato

Counsel for Appellant

FILED 1-16-2020
STATE v. RODRIGUEZ

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court, 

in which Judge Lawrence F. Winthrop and Judge Michael J. Brown joined.

C A M P B E L L, Judge:

¶1 Francisco Manuel Nieblas Rodriguez appeals his convictions 

and sentences for multiple counts of armed robbery, aggravated assault, 

kidnapping, and attempted armed robbery. Rodriguez challenges the 

superior court’s denial of his motion to sever, and contends the court erred 

by allowing the victims to remain in the courtroom during each other’s trial 

testimony. For the following reasons, we affirm.

BACKGROUND1

¶2 Based on evidence collected from eight attempted or 

completed robberies at check-cashing businesses, the State charged 

Rodriguez with seven counts of armed robbery, nine counts of aggravated 

assault, seven counts of kidnapping, and two counts of attempted armed 

robbery.2 Before trial, Rodriguez moved to sever the charges. He argued

that each offense should be tried separately because they occurred on eight 

different days over a period of months, were dissimilar in modus operandi, 

and the witness’s description of the suspect differed. He also argued he 

would be denied a fair trial if all nine victims were allowed to testify before 

the same jury. The superior court denied the motion. The court found 

severance was not warranted because the stipulated facts indicated the 

robberies were committed in a similar fashion. Namely, the robberies took 

place at similar places of business by an assailant with a similar description 

at a similar time of the business day with similar victims. The court also 

1 We view the facts in the light most favorable to sustaining the jury’s

verdicts and resolve all reasonable inferences against Rodriguez. State v.

Payne, 233 Ariz. 484, 509, ¶ 93 (2013).

2 The State also charged Rodriguez with one count of misconduct 

involving weapons, which the superior court ultimately dismissed with 

prejudice. 
STATE v. RODRIGUEZ

Decision of the Court

3

found evidence of the incidents would be cross-admissible at separate 

trials.

¶3 As trial began, Rodriguez asked the court to exclude one of 

the victims from the courtroom, and he re-urged his motion to sever. The 

court denied the request to exclude the victim and implicitly denied the 

motion to sever. During the State’s presentation of evidence, Rodriguez 

renewed his severance motion because the victims in the courtroom heard 

one another testify and identify him as the man who committed each 

individual robbery. The court treated the motion to sever as a “motion for 

mistrial and lack of severance,” which it denied.

¶4 The jury found Rodriguez guilty of the 25 charged offenses. 

The superior court sentenced Rodriguez to concurrent prison terms, the 

longest being 33 years. Rodriguez timely appealed.

DISCUSSION

I. The superior court did not err by denying Rodriguez’s motion to

sever. 

¶5 Rodriguez challenges the superior court’s denial of his 

severance motion, arguing the State improperly joined the offenses under 

Arizona Rule of Criminal Procedure 13.3(a). We review the denial of a 

severance motion for an abuse of discretion. State v. Prince, 204 Ariz. 156, 

159, ¶ 13 (2003).

¶6 Multiple offenses may be joined in a complaint if they “are of 

the same or similar character[.]” Ariz. R. Crim. P. 13.3(a)(1). However, the 

court must sever joined offenses if “necessary to promote a fair 

determination of any defendant’s guilt or innocence of any offense.” Ariz. 

R. Crim. P. 13.4(a). Further, a defendant is entitled to severance of right if 

the “offenses [are] joined solely under Rule 13.3(a)(1), unless evidence of 

the other offense or offenses would be admissible if the offenses were tried 

separately.” Ariz. R. Crim. P. 13.4(b).

¶7 Arizona Rule of Evidence 404(b) generally precludes the 

admission of “evidence of other crimes, wrongs, or acts . . . to prove the 

character of a person in order to show action in conformity therewith.” But

other-act evidence may be admitted for other purposes, including proving 

the identity of the perpetrator. Ariz. R. Evid. 404(b). “The identity exception 

to [Rule] 404(b) applies if identity is in issue, and if the behavior of the 

accused both on the occasion charged and on some other occasion is 

sufficiently distinctive, then proof that the accused was involved on the 
STATE v. RODRIGUEZ

Decision of the Court

4

other occasion tends to prove his involvement in the crime charged.” State 

v. Goudeau, 239 Ariz. 421, ¶ 58 (2016) (quoting State v. Stuard, 176 Ariz. 589, 

597 (1993)). Although “[t]he pattern and characteristics of the crimes must 

be so unusual and distinctive as to be like a signature,” id. (quoting Stuard, 

176 Ariz. at 597) “identity in every particular is not required. [T]here must 

be similarities between the offenses in those important aspects ‘when 

normally there could be expected to be found differences.’” State v. Roscoe, 

145 Ariz. 212, 216 (1984) (quoting State v. Jackson, 124 Ariz. 202, 204 (1979)). 

Identity was the central issue in this case—Rodriguez asserted he was not 

the robber. Provided the incidents were sufficiently similar, the State could 

properly introduce evidence of the other robberies to prove Rodriguez also 

committed the other offenses even though they occurred on a different date.

¶8 Rodriguez argues the offenses did not share sufficiently 

similar characteristics to permit a joint trial. The superior court disagreed,

as do we.

¶9 When Rodriguez first moved to sever the charges, the parties 

stipulated to a set of facts.

3 Namely—that on eight occasions from April 19 

to December 30, 2016, the assailant approached lone female employees of 

cash-checking stores as they were opening or closing the businesses. 

Brandishing a handgun, the assailant either attempted to or gained entrance

to employee-only areas of the stores and demanded the women open safes 

and registers to get him money. The assailant wore dark, long sleeved 

clothing and a black baseball cap. After several of the robberies, the 

assailant left in a white sedan.4

¶10 The court considered the stipulated facts when denying the 

motion to sever―eight robberies were committed over the course of 

approximately eight months. The robberies all took place at similar cash 

businesses during a time of day when customers were less likely to be 

present. All the victims were women. In each instance a demand for money 

was made while a handgun was brandished as a threat. The assailant wore 

similarly described dark clothing during each incident. To be sure, the

robberies do not share identical characteristics, but such precision is not 

necessary. The robberies all bore sufficient evidentiary similarity to 

implicate a single perpetrator. The superior court did not abuse its 

3 “[W]e consider only the evidence before the court when it ruled on 

the motion to sever.” Goudeau, 239 Ariz. at 444–45, ¶ 60.

4 The trial evidence, with the addition of the nine victims’ in-court 

identifications of Rodriguez, is consistent with the foregoing facts.
STATE v. RODRIGUEZ

Decision of the Court

5

discretion by concluding the charges were properly joined under Rule 

13.4(a)(1).

¶11 Rodriguez nonetheless complains he was entitled to 

severance because the number of charges and the number of victims could 

cause the jury to convict him, not based on the evidence supporting each 

individual count, but on a “criminal propensity” theory, the exact 

circumstance that motivated the preclusion of other acts evidence. Ariz. R. 

Evid. 404(b). We reject this argument. First, for the reasons stated, see supra 

¶ 10, the other-act evidence was admissible under Rule 404(b) to prove 

identity of the assailant from each incident. Further, the superior court 

instructed the jury to consider each count separately from the other counts,

and the prosecutor and defense counsel both reiterated this requirement

during closing arguments. We presume jurors follow the court’s 

instructions. State v. McCurdy, 216 Ariz. 567, 574, ¶ 17 (App. 2007).

II. The superior court properly denied Rodriguez’ request to prohibit 

the victims from hearing each other’s trial testimony.

¶12 Rodriguez argues the superior court committed reversible

error by allowing the victims to observe each other’s trial testimony. 

Rodriguez asserts that by observing other victims identify him as the 

perpetrator, the victims who subsequently testified were influenced by the 

previous identification testimony. Reviewing for an abuse of discretion, we 

reject this argument. State v. Wilson, 185 Ariz. 254, 259 (App. 1995).

¶13 The Victim’s Bill of Rights (“VBR”), Ariz. Const. art. II, 

§ 2.1(12)(C), and statutory implementation act, A.R.S § 13-4401 et. seq., were 

enacted “to provide crime victims with basic rights of respect, protection, 

participation and healing of their ordeals.” Champlin v. Sargeant In & For 

Cty. of Maricopa, 192 Ariz. 371, 375, ¶ 20 (1998) (internal citation omitted).

We construe the victims’ rights statutes “liberally to preserve and protect 

the rights to which victims are entitled.” A.R.S. § 13-4418. Victims’ rights 

arise on the defendant’s arrest or formal charging and continue to be 

enforceable “until the final disposition of the charges, including acquittal or 

dismissal of the charges, all post-conviction release and relief proceedings 

and the discharge of all criminal proceedings relating to restitution.” A.R.S. 

§ 13-4402 (emphasis added); State v. Leonardo, ex rel. Cty. of Pima, 226 Ariz. 

593, 594, ¶ 5 (App. 2011). Victims have a right to remain in the courtroom 

under the VBR. A.R.S. § 13-4420. This right is not limited by joinder of 

counts. See generally Ariz. Const. art. II, § 2.1(12)(C); A.R.S § 13-4401 et. seq.

Until final disposition of the charges, each victim maintains the right to be 

present. Leonardo, 226 Ariz. at 594, ¶ 5.
STATE v. RODRIGUEZ

Decision of the Court

6

¶14 As defense counsel conceded at trial, the victims “unlike other 

witnesses, . . . have a right to watch the trial.” Ariz. Const. art. II § 2.1(A)(3) 

(“To preserve and protect victims’ rights to justice and due process, a victim 

of a crime has a right . . . [t]o be present at . . . all criminal proceedings where 

the defendant has the right to be present.”); A.R.S. § 13-4420 (“The victim 

has the right to be present throughout all criminal proceedings in which the 

defendant has the right to be present.”); Ariz. R. Crim. P. 9.3(a) (noting a 

crime victim is an exception to the trial court’s authority to exclude 

prospective witnesses from the courtroom during opening statements and 

other witnesses’ testimony). 

¶15 Further, the superior court did not prevent Rodriguez from

presenting the issue of victim influence to the jury. In fact, defense counsel 

implied during closing arguments that the victims’ identification of 

Rodriguez was influenced by their observations of other victims identifying 

him during the trial. The jurors, in fulfilling their proper role to determine 

the credibility and weight to be afforded testimony, State v. Toney, 113 Ariz. 

404, 408 (1976), apparently did not find counsel’s argument sufficiently 

persuasive.

¶16 Rodriguez contends State v. Nichols held that a crime victims’

rights are “specific to the crime committed against the named victim.” 

Thus, the eight victims should only have been allowed to remain in the 

courtroom while evidence of the crime in which they were a victim was 

being presented. See 224 Ariz. 569, 574, ¶ 22 (App. 2010). However, that

proposition was not relevant to the holding in that case. In Nichols, this 

court concluded that, although a person against whom an offense is

committed while they are in custody does not enjoy victim status under the 

VBR, a victim’s rights “are not thereafter lost if the victim subsequently 

should be in custody for an unrelated offense.” Nichols, 224 Ariz. at 574, 

¶ 22 (internal quotations omitted). The language Rodriguez cites was part 

of our holding in in State v. Stauffer. 203 Ariz. 551, 555, ¶ 9 (App. 2002). In 

that case, we addressed the rights of victims who are called pursuant to 

404(c) for the purpose of proving a defendant’s sexual propensity in a later 

prosecution for a similar offense. We concluded that the victim of a prior 

charged offense retains the right to decline a pretrial interview but does not 

enjoy every right available under the VBR, including the right to participate 

in the later prosecution’s proceedings. 203 Ariz. at 555. We also concluded 

that victim’s rights arise upon the arrest or charging of a defendant for the 

offense in which the witness claims victim status. A.R.S. § 13-77012(A). 

Neither Nichols nor Stauffer are applicable to the issues in this case. Id.; 

Nichols, 224 Ariz. at 574, ¶ 22.
STATE v. RODRIGUEZ

Decision of the Court

7

¶17 Here we address whether different victims of similar 

offenses, tried simultaneously, have the right to be present during the entire 

trial. For the reasons set forth above, we determine they do. The superior 

court did not abuse its discretion by allowing the victims to observe each 

other’s trial testimony. 

CONCLUSION

¶18 For the foregoing reasons, we affirm.