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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ANDREW FRANK PADILLA, Appellant.

No. 1 CA-CR 16-0503

Appeal from the Superior Court in Maricopa County

No. CR2015-121231-001

The Honorable James R. Rummage, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Jana Zinman

Counsel for Appellee

Ballecer & Segal, LLP, Phoenix

By Natalee E. Segal

Counsel for Appellant

FILED 12-28-2017
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MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding 

Judge Paul J. McMurdie and Judge Thomas C. Kleinschmidt1 joined.

S W A N N, Judge:

¶1 Andrew Frank Padilla appeals his conviction for robbery. He 

contends that the superior court erred by admitting evidence of an out-ofcourt one-on-one identification. We hold that the identification procedure, 

even if inherently suggestive, was properly admitted. We therefore affirm.

FACTS AND PROCEDURAL HISTORY 

¶2 Padilla was indicted for robbery. Before trial, Padilla filed a 

Dessureault motion to exclude identification of Padilla as the person who 

committed robbery against him.2 Counsel who filed the motion withdrew 

from the case. The motion was then withdrawn at a hearing and Padilla’s

new attorney did not refile it.

¶3 At trial, the state presented evidence of the following facts. In 

the early morning hours of May 9, 2015, D.G. was walking home after a 

night out with friends, where he had “two or three beers.” D.G. testified to 

having a “slight buzz,” but also being “pretty conscious still.”

¶4 Upon nearly reaching his destination, D.G. was approached 

by Padilla on a bicycle. D.G. testified that Padilla followed him for a period 

of time and then suddenly punched him. Padilla punched D.G. four to five 

times in the eye, the nose, and the lip. Padilla then grabbed D.G.’s iPhone

and bag. The bag contained D.G.’s phone charger and other “nick knack 

possessions.” D.G. ran to a nearby house, after which the police were 

called.

¶5 Officers Ullman, McCarley, and Keller were dispatched to 

D.G.’s location. In his statement to the officers, D.G. mentioned his 

 

1 The Honorable Thomas C. Kleinschmidt, Retired Judge of the Court 

of Appeals, Division One, has been authorized to sit in this matter pursuant 

to Article VI, Section 3 of the Arizona Constitution.

2 See State v. Dessureault, 104 Ariz. 380, 383–84 (1969).
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assailant was on a bicycle without a bike light. D.G. described his assailant 

as someone wearing a hat and a dark sweater or jacket.

¶6 Officer Keller verified that D.G. had the “Find My iPhone”

application on his iPhone. The officer accessed the application to locate the 

stolen iPhone, but it was offline. Officer Ullman then transported D.G. to a 

location of his request. Officer Keller checked the application again and 

saw the iPhone was online and indicating a specific location. Both Officers 

Ullman and Keller drove to the location identified in the application and 

found a bicycle in the front yard. Consistent with D.G.’s description, the 

bicycle did not have a bike light.

¶7 As officers approached the home, they noticed a carport with 

a door and silhouettes moving around inside. Padilla exited the home, 

wearing a leather jacket and a hat. Officer Keller testified that the jacket 

had fresh blood on it and Padilla’s hands were “very, very flush.” He also 

testified that Padilla claimed ownership of the bicycle. Officers collected 

Padilla’s jacket as evidence and preserved the blood for testing.

¶8 After searching the home, police found D.G.’s property, 

including his iPhone. Padilla was taken into custody. In addition, officers 

performed a search incident to arrest, finding a lighter, tweezers, a key 

chain, and a wallet belonging to D.G. Within two hours of the crime, Officer 

Ullman contacted D.G. and advised him someone was detained who “may 

or may not be the person that had committed the crime against him.” D.G.

was directed that if he recognized the suspect as the one who committed 

the crime, he would need to tell officers from when and where he knew

him.

¶9 Thereafter, Officer Ullman parked in front of the house where 

Padilla was located and turned his spotlight on. Padilla was placed 

approximately 20 feet in front of the vehicle. The area where Padilla was 

standing was well lit. Officer Ullman testified that D.G. looked at Padilla 

and said, “that’s definitely him.” During the identification, D.G. reported 

to officers that Padilla was not wearing the jacket and the hat that he had

on at the time of the assault.

¶10 At trial, D.G. could not identify Padilla in court, but testified 

about his changes in appearance such as longer hair and glasses. Officers 

Ullman and Keller independently identified Padilla, and Officer Ullman 

confirmed that he looked different than he had during the initial 

identification at the time of the crime. Another witness, a forensic scientist 

with the City of Phoenix Police Department Crime Laboratory, testified that 
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the blood on Padilla’s jacket contained DNA that matched the sample D.G.

gave to police.

¶11 Padilla moved for a directed verdict under Ariz. R. Crim. P. 

20. The court denied the motion. The jury convicted Padilla of robbery and 

the court sentenced him to the presumptive term of 10 years’ imprisonment. 

Padilla timely appeals.

DISCUSSION

¶12 Padilla’s sole contention on appeal is that the superior court 

erred by admitting evidence of the out-of-court one-on-one identification. 

He did not object to the evidence at trial, and a defendant’s failure to raise 

an objection to identification at trial forfeits the right to seek relief for all but 

fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 

(2005).

¶13 To obtain relief under fundamental error review, the 

defendant has the burden to show that error occurred, the error was 

fundamental, and it prejudiced him. Id. at 567–68, ¶¶ 20–22. Fundamental 

error is error going to the foundation of the case, taking a right essential to 

his defense, and that is of such magnitude that the defendant is deprived of 

a fair trial. Id. at 567, ¶ 20. We will not presume prejudice where none 

appears affirmatively in the record. See State v. Trostle, 191 Ariz. 4, 11 (1997); 

State v. Munninger, 213 Ariz. 393, 397, ¶ 14 (App. 2006).

¶14 Our supreme court has held that one-man-show-up 

identifications are inherently suggestive. State v. Williams, 144 Ariz. 433, 

439 (1985). However, a defendant’s due process rights are not violated by 

the admission of testimony regarding suggestive and unnecessary 

identification, so long as the evidence “possesses sufficient aspects of 

reliability.” Id.; Manson v. Brathwaite, 432 U.S. 98, 106 (1977). A reliable oneman-show-up identification may be admissible at trial because it enables 

the police to either identify the potential culprit due to the witness’s fresh 

mental picture of him or her, or release an innocent person and continue 

the search before the culprit escapes detection. State v. Gastelo,

111 Ariz. 459, 461 (1975).

¶15 An unduly suggestive identification will be screened for 

reliability under the factors articulated by the Supreme Court in Neil v. 

Biggers, 409 U.S. 188, 199–200 (1972). The following factors are considered:

(1) the amount of time elapsed between the observation and 

the identification; (2) the accuracy of the description given by 
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the witness before the show up; (3) the degree of the witness’ 

certainty as to the accuracy of the identification; (4) the 

witness’ opportunity to view the culprit at the time of the 

crime; and (5) the witness’ degree of attention at the time of 

the crime.

State v. McLoughlin, 133 Ariz. 458, 462 (1982). Further, Arizona courts have

consistently held that a one-man-show-up is not improper if it is conducted 

near the time of the crime or at the scene of the crime. Gastelo, 111 Ariz. at 

461; see State v. Dixon, 153 Ariz. 151, 155 (1987) (identification valid even if 

a “few hours” passed beforehand); see State v. McCall, 139 Ariz. 147, 155

(1983) (the passing of 14 days before identification is not “so late as to be per 

se unreliable”).

¶16 We do not attribute any error, much less fundamental error,

to the admission of the one-on-one identification procedure in this case. 

Officer Ullman proceeded with his decision to perform a one-on-one 

identification after verifying that he was within the two-hour time frame 

generally accepted by enforcement officers and courts. Before the 

identification, D.G. described his assailant as someone wearing a black 

jacket and hat and riding on a bicycle without a light. Upon performing the 

one-on-one identification, which was done in ample lighting, D.G. 

identified Padilla with complete certainty, clearly stating “that’s definitely 

him.” During the identification, D.G. mentioned that Padilla was not 

wearing the jacket and the hat he had initially observed. D.G. testified that 

he was “conscious” at the time of the crime, allowing him to view Padilla 

and to do so with a high degree of attention.

¶17 Moreover, while not dispositive of the admissibility of the 

identification, the state presented evidence that D.G.’s iPhone was found 

using its transmitted location, which pinpointed the iPhone to the house 

where Padilla was found. And officers found other property belonging to 

D.G. on Padilla’s person. In these circumstances, any hypothetical error 

associated with the admission of the on-scene identification was not 

prejudicial to Padilla.
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CONCLUSION

¶18 For the foregoing reasons, we affirm Padilla’s conviction and 

sentence.