NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

ROBERT RICHARD SPURLING, III, Petitioner.

No. 1 CA-CR 12-0788 PRPC

Petition for Review from the Superior Court in Coconino County

No. CR 2008-0672

The Honorable Joseph J. Lodge, Judge Retired

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Coconino County Attorney’s Office, Flagstaff

By Heather A. Mosher

Counsel for Respondent

White Law Offices, PLLC, Flagstaff

By Wendy F. White

Counsel for Petitioner

MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge Diane M. Johnsen joined.
STATE v. SPURLING

Decision of the Court

2

G E M M I L L, Judge:

¶1 Robert Richard Spurling petitions this court for review of the 

dismissal of his petition for post-conviction relief. We have considered the 

petition for review, and we grant review but deny relief for the following 

reasons.

¶2 A jury convicted Spurling of five counts of child molestation, 

all dangerous crimes against children. The trial court sentenced him to an 

aggregate term of thirty-four years’ imprisonment. This court vacated one 

conviction and affirmed the remaining convictions and sentences on direct 

appeal. State v. Spurling, 1 CA-CR 09-0939, 2011 WL 662629, at *1, ¶20 (Ariz. 

App. Feb. 24, 2011). Our decision did not affect Spurling’s aggregate 

sentence, however. Spurling then petitioned for post-conviction relief. The

trial court found colorable claims for relief and held an evidentiary hearing. 

The court denied relief after the evidentiary hearing and Spurling now 

seeks review. We have jurisdiction pursuant to Arizona Rule of Criminal 

Procedure 32.9(c). 

¶3 In his petition for review, Spurling presents a number of 

claims of ineffective assistance of counsel, all of which allege Spurling’s 

counsel was ineffective when he failed to make various objections over the 

course of the trial. We address only those issues for which Spurling sets 

forth specific claims supported by sufficient argument and citation to both 

legal authority and the record. The claims Spurling does not properly 

support are deemed abandoned and waived. See Ariz. R. Crim. P. 

31.13(c)(1)(vi) (“[A]ppellant’s brief shall include . . . [a]n argument which 

shall contain the contentions of the appellant with respect to the issues 

presented, and the reasons therefor, with citations to the authorities, 

statutes and parts of the record relied on.”); see also State v. Carver, 160 Ariz. 

167, 175, 771 P.2d 1382, 1390 (1989) (“failure to argue a claim usually 

constitutes abandonment and waiver of that claim”) (citations omitted).

¶4 Whether to grant or deny post-conviction relief pursuant to 

Rule 32 is an issue addressed to the trial court’s sound discretion. State v. 

Schrock, 149 Ariz. 433, 441, 719 P.2d 1049, 1057 (1986). To state a colorable 

claim of ineffective assistance of counsel, a defendant must show that 

counsel’s performance fell below objectively reasonable standards and that 

the deficient performance prejudiced the defendant. Strickland v. 

Washington, 466 U.S. 668, 687-88 (1984). To show prejudice, a “defendant 

must show that there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been 

different.” Id. at 694. Strategic choices made after adequate investigation 
STATE v. SPURLING

Decision of the Court

3

of the law and facts “are virtually unchallengeable.” Id. at 690-691. 

”Defense counsel’s determinations of trial strategy, even if later proven 

unsuccessful, are not ineffective assistance of counsel.” State v. Valdez, 160 

Ariz. 9, 14, 770 P.2d 313, 318 (1989). There is a strong presumption that the 

actions of counsel were sound trial strategy under the circumstances 

present at that time. State v. Stone, 151 Ariz. 455, 461, 728 P.2d 674, 680 (App. 

1986). “Nor is every failure to object to an improper question, exhibit, or 

argument worthy of being called ineffective assistance of counsel.” Valdez, 

160 Ariz. at 15, 770 P.2d at 319. “Even the best trial lawyer makes many 

mistakes in every trial. Defendants are not guaranteed perfect counsel, only 

competent counsel.” Id.1

¶5 Spurling first argues his counsel was ineffective when he 

failed to object to the admission of portions of recorded telephone 

conversations. The conversations were between Spurling and his 

girlfriend, T.G, and recorded while he was in jail. Spurling argues his 

girlfriend’s “half” of the conversations was hearsay.

2 Counsel testified he 

did not object because in his analysis, there was no basis to object that 

would ultimately succeed and the trial court would eventually admit the 

girlfriend’s portions of the conversations “one way or the other.” The trial 

court, in the post-conviction proceeding, stated that counsel’s performance 

was “almost perfect.” From that finding—though we would have preferred 

more specific findings—we infer that the judge meant that counsel’s 

 

1 Section 13-4238(D), A.R.S., and Arizona Rule of Criminal Procedure 

32.8(d) provide that the court “shall make specific findings of fact, and state 

expressly its conclusions of law relating to each issue presented.” At the 

close of the evidentiary hearing, the trial court stated that defense counsel 

“did nothing wrong” in his representation of Spurling and was “almost 

perfect” at trial. These “findings” and “conclusions” may not fully comply 

with § 13-4238(D) and Rule 32.8(d). On this record, however, we need not 

remand for more specific findings and conclusions because the record is 

sufficient to allow us to perform an appropriate appellate review. 

Additionally, counsel for Spurling has noted in the petition for review that 

remand would serve “no purpose” and that, in the interest of judicial 

economy, we should proceed with our review of the record. We agree and 

have done so.

2 Spurling also argues the testimony was prejudicial, irrelevant, and 

improper opinion. We deem these arguments abandoned and waived. See 

supra ¶ 3.
STATE v. SPURLING

Decision of the Court

4

performance did not fall below objectively reasonable standards, and we 

agree. 

¶6 Regarding the admission of the recordings themselves, we 

deny relief. Spurling’s statements in the recorded conversations are party 

admissions, not hearsay. See Arizona Rule of Evidence 801(d)(2)(A); State 

v. Garza, 216 Ariz. 56, 66, ¶ 41, 163 P.3d 1006, 1016 (2007) (admitting 

defendant’s recorded conversation with a friend as a “party admission 

under Arizona Rule of Evidence 801(d)(2)(A)”). The statements of 

Spurling’s girlfriend on the recording are also not hearsay, because they 

were offered not for the truth of what she said but rather to give context 

and meaning to the recorded statements of Spurling. See United States v. 

Walter, 434 F.3d 30, 33–34 (1st Cir. 2006) (holding that recorded statements 

of a person talking with defendant “had a nonhearsay purpose—namely, 

they were offered not for the truth of the matters asserted, but to provide 

context for the admissions” of defendant); United States v. Boykins, 380 

Fed.Appx. 930, 934 (11th Cir. 2010) (ruling that the confidential informant’s 

recorded statements in conversation with defendant “are not hearsay 

because they were not offered for the truth of the matter asserted”). 

¶7 Spurling additionally argues that T.G.’s testimony about the 

statements in the recordings was inadmissible hearsay. We conclude

counsel’s conduct did not fall below an objective standard of reasonably 

effective assistance when he chose not to object. The recorded statements 

at issue were previously admitted into evidence during testimony by the 

State’s witness without objection and not in error. See State v. Hernandez, 

167 Ariz. 236, 240, 805 P.2d 1057, 1061 (App. 1990) (“[i]n a criminal case, 

hearsay evidence admitted without objection is competent evidence 

admissible for all purposes unless its admission amounts to fundamental 

fairness”); see also supra ¶ 6. 

¶8 For these reasons, we agree with the court that counsel’s 

failure to object to the recorded statements and T.G.’s testimony about those 

statements did not constitute ineffective assistance of counsel. 

¶9 Spurling next argues his counsel was ineffective when he 

failed to object to portions of the State’s cross-examination of a witness. The 

witness interviewed one of the victims and testified regarding that victim’s 

statements and body language during the interview. Spurling identifies 

only one allegedly objectionable question in his petition for review. 

Further, Spurling concedes his counsel objected to that question and that 

the court overruled his objection, holding that the question was appropriate 

as a matter of “wide-open cross-examination.” Because counsel objected to 
STATE v. SPURLING

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the sole question Spurling identifies as objectionable, we deny relief on this 

issue. Although Spurling complains his counsel made no further objections 

to alleged hearsay during the remainder of the cross-examination, he does 

not identify the objectionable testimony. He has therefore failed to provide 

sufficient argument to support these additional claims.

¶10 Spurling also asserts his counsel was ineffective when he 

failed to object to alleged prosecutorial misconduct. He contends his

counsel should have objected when the prosecutor asked Spurling if it was 

correct that Spurling was testifying that everyone except Spurling was

lying. We reject this argument because, even if we assume that this 

question is objectionable, it did not rise to the level of prosecutorial 

misconduct. See State v. Aguilar, 217 Ariz. 235, 238–39, ¶ 11, 172 P.3d 423, 

426–27 (App. 2007) (prosecutorial misconduct “amounts to intentional 

conduct which the prosecutor knows to be improper and prejudicial, and 

which [the prosecutor] pursues for any improper purpose with indifference 

to a significant resulting danger of mistrial”) (citation omitted). Second,

although defense counsel did not object to this specific question, he did 

eventually object to the line of questioning in which the prosecutor asked 

Spurling if specific witnesses were lying. The court sustained that 

objection. Further, Spurling testified that several witnesses were lying and 

implied other witnesses were lying. Under these circumstances, we 

conclude that the trial court did not abuse its discretion when it denied 

relief on this issue.

¶11 Spurling next argues his counsel failed to object to

prosecutorial misconduct that occurred when the prosecutor asked 

Spurling an allegedly compound and misleading question. That question 

was, “[w]hen you touched [the victim’s] vagina with your hand, after you 

put the dog in her lap, you had a big smile on your face, didn’t you?” We 

reject Spurling’s argument because the question was neither compound nor 

misleading, and asking this question did not constitute prosecutorial 

misconduct. The question made a single inquiry—whether Spurling smiled

at a specific point in time. Finally, Spurling’s counsel testified he did not 

object because he found nothing objectionable about the question. The trial 

court did not abuse its discretion in denying relief on this issue.

¶12 Regarding alleged prosecutorial conduct, we also note that 

Spurling’s counsel testified he believed the jury did not like the prosecutor 

because of his actions in the courtroom. Because of this, he refrained from 

making certain objections in an effort to take advantage of the jury's 

apparent dislike of the prosecutor. This was a matter of trial strategy. 
STATE v. SPURLING

Decision of the Court

6

¶13 Spurling next argues his counsel was ineffective when he 

failed to object to the trial court’s allegedly improper comment on the 

evidence. Comments on the evidence occur when a trial court “expresses 

its opinion to the jury as to what the evidence shows, or when it misinforms 

the jury that a fact has been proven when the fact remains a subject of 

dispute. The Arizona Constitution forbids trial judges from making such 

comments to a jury.” State v. Wolter, 197 Ariz. 190, 193, ¶ 14, 3 P.3d 1110, 

1113 (App. 2000) (internal citation omitted). During closing argument, 

Spurling’s counsel argued the evidence showed one of the victims had been 

coached. The State objected, arguing those facts were not in evidence. The 

trial court responded:

Well, Ladies and Gentlemen of the Jury, there’s been an 

objection to that statement. I’m going to leave that up to you. 

Quite frankly, I don’t remember that testimony, and so I can’t 

really rule on that. You’re going to have to rely on your 

individual memories in regards to what counsel just stated. 

Spurling argues the court’s statement communicated to the jury that the 

court “did not remember that being the evidence.” We deny relief because 

the court’s statement was not an objectionable comment on the evidence. 

The statement communicated that the jury would have to rely on its own 

memory because the court did not remember the testimony. It did not 

communicate that the court disagreed with defense counsel’s interpretation 

of the testimony. The trial court did not make an improper comment on the 

evidence and abuse its discretion when it denied relief on this issue.

¶14 Finally, although the petition for review presents additional 

issues, Spurling did not raise those issues in the petition for post-conviction 

relief he filed with the trial court. A petition for review may not present 

issues not first presented to the trial court. State v. Ramirez, 126 Ariz. 464, 

468, 616 P.2d 924, 928 (App. 1980); Ariz. R. Crim. P. 32.9(c)(1)(ii).

¶15 We grant review but deny relief.