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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BART LEWIS HILES, Appellant.

No. 1 CA-CR 16-0588

Appeal from the Superior Court in Maricopa County

No. CR2015-129328-001 DT

The Honorable Gregory S. Como, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Joel M. Glynn 

Counsel for Appellant
STATE v. HILES

Decision of the Court

2

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.

W I N T H R O P, Judge:

¶1 Bart Lewis Hiles (“Appellant”) appeals his conviction and 

sentence for armed robbery. Appellant’s counsel has filed a brief in 

accordance with Smith v. Robbins, 528 U.S. 259 (2000); Anders v. California, 

386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), 

stating he has searched the record on appeal and has found no arguable 

question of law that is not frivolous. Appellant’s counsel therefore requests 

that we review the record for fundamental error. See State v. Clark, 196 Ariz. 

530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating that this court reviews the 

entire record for reversible error). This court granted counsel’s motion to 

allow Appellant to file a supplemental brief in propria persona, and 

Appellant has done so, raising issues that we address.

¶2 We have appellate jurisdiction pursuant to the Arizona 

Constitution, Article 6, Section 9, and Arizona Revised Statutes (“A.R.S.”)

sections 12-120.21(A)(1) (2016), 13-4031 (2010), and 13-4033(A) (2010).

1 

Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY2

¶3 On July 1, 2015, a grand jury issued an indictment charging 

Appellant with Count I, armed robbery, a class two felony, in violation of 

A.R.S. § 13-1904 (2010); Count II, possession or use of dangerous drugs, a 

class four felony, in violation of A.R.S. § 13-3407 (Supp. 2016); and Count 

III, possession of drug paraphernalia, a class six felony, in violation of 

A.R.S. § 13-3415 (2010). The trial court granted Appellant’s motion to sever 

 

1 We cite the current version of all applicable statutes because no 

revisions material to this decision have occurred since the date of the 

offense.

2 We view the facts in the light most favorable to sustaining the verdict 

and resolve all reasonable inferences against Appellant. See State v. Kiper, 

181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994).
STATE v. HILES

Decision of the Court

3

Count I from Counts II and III. The State later filed allegations of historical 

priors, alleging that Appellant had four prior felony convictions for 

sentence enhancement purposes.

¶4 At trial on Count I, the State presented the following 

evidence: Shortly before midnight on June 24, 2015, a male and a female 

entered a convenience store in Mesa. The male had a backpack with bright 

orange straps. Soon thereafter, both the male and female exited the store. 

However, the male, whom the clerk identified at trial as Appellant, 

returned to the store alone, placed a few items on the counter, and asked 

for a bottle of Smirnoff vodka located behind the counter. Once the store 

clerk finished ringing up Appellant’s purchases, Appellant lifted his shirt 

and removed a black handgun from his waistband. Scared, the store clerk

threw the bag at Appellant and said, “[Y]ou can have it.” Appellant said, 

“Yeah, yeah, that’s what I thought,” and walked out the store with the 

items. After watching Appellant leave, the clerk called the police.

¶5 At 12:01 a.m., Mesa police officers Hash and Lavin were 

dispatched to the convenience store. Officer Hash spoke with the clerk and 

viewed the store’s surveillance video to gather a description of the robber. 

At approximately 2:20 a.m., Officer Lavin, who had also viewed the store’s 

surveillance video, conducted an area check near the store and noticed a 

male subject (Appellant) walking beside the road carrying a backpack with 

bright orange straps and wearing clothing similar to that worn by the male 

subject the officer had viewed in the store’s surveillance video. The officer 

drove up next to Appellant, looked at his face, and immediately recognized 

Appellant “as being the subject from the video that [the officer had recently] 

watched.” After arresting Appellant, Officer Lavin searched Appellant’s 

backpack and found a black metal BB handgun, a bottle of Smirnoff vodka, 

and an olive-green hat with a red patch on the front identical to the hat 

worn by the male subject in the store’s surveillance video.

¶6 The jury found Appellant guilty as charged of one count of 

armed robbery. The jury also found the existence of three aggravating 

circumstances for sentencing purposes. Appellant later entered a plea 

agreement, pleading guilty to Count II, possession or use of dangerous 

drugs, in exchange for dismissal of Count III.

¶7 The trial court found that Appellant had four prior felony 

convictions—including two historical prior felony convictions—for 

sentencing purposes, sentenced Appellant to the presumptive term of 15.75 

years’ imprisonment, and credited Appellant for 412 days of presentence 

incarceration. The court also placed Appellant on probation for three years
STATE v. HILES

Decision of the Court

4

on Count II following his release from the Arizona Department of 

Corrections on Count I. Appellant filed a timely notice of appeal.

ANALYSIS

I. Alleged Ineffective Assistance of Counsel 

¶8 Appellant contends that his trial counsel was “inadequate” 

and “ineffective,” and advised him to not testify in his own defense, despite 

Appellant’s desire to do so. In addition, Appellant contends his counsel 

failed to offer into evidence a store purchase receipt Appellant obtained for 

items “almost identical to” the items he took from the convenience store. 

Appellant’s contentions constitute claims of ineffective assistance of 

counsel.

¶9 We do not address Appellant’s contentions challenging the 

effectiveness of trial counsel on direct appeal, however, because claims of

ineffective assistance of counsel must be brought through Rule 32 

proceedings. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002).

II. Alleged Jury Contamination

¶10 Appellant argues that the trial court erred by not declaring a 

mistrial when a juror saw him handcuffed in the hallway during a lunch 

recess. Appellant maintains that, as a result, the entire jury panel was 

contaminated.

¶11 The facts pertaining to this argument are as follows: On the 

second day of trial (Tuesday, March 1), during the trial court’s lunch break, 

the court was advised that Juror No. 2 had observed Appellant in handcuffs

outside the courtroom. After a brief discussion with the parties, the court 

questioned Juror No. 2 outside the presence of the other jury members 

about the incident. Juror No. 2 advised the court that, although she had 

seen Appellant near the courtroom door, she had not observed any 

handcuffs. She also avowed that she had not spoken to any other jurors 

about the incident. The court noted that Juror No. 2 had already advised 

the court she had a scheduling conflict on Thursday, March 3, and 

suggested to the parties that, “in an abundance of caution to both parties, 

but in this case particularly to the defendant to make sure that he receives 

a fair trial,” Juror No. 2 be excused from further jury service. The court 

noted that the other jurors “would likely think it may be due to [Juror No. 

2’s] scheduling conflict anyways.” Juror No. 2 and counsel for both parties 

agreed to the court’s proposal without objection, and the court excused 

Juror No. 2 from further jury service.
STATE v. HILES

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¶12 Absent any showing of prejudice, the fact that a juror may 

have seen Appellant in restraints outside the courtroom did not deny 

Appellant a fair trial. See State v. Galioto, 126 Ariz. 188, 192, 613 P.2d 852, 

856 (App. 1980); see also State v. Johnson, 147 Ariz. 395, 399, 710 P.2d 1050, 

1054 (1985) (“The question is whether the defendant was prejudiced by 

what the jury saw, not the mere fact that it was seen.” (citation omitted)). 

Although Appellant speculates that he may have been prejudiced, the 

record provides no evidence to support Appellant’s speculation.

¶13 Furthermore, the trial court instructed the jury, as part of its 

preliminary instructions, as follows:

In a civil case, the jurors are permitted to discuss the 

evidence during the trial while the trial progresses. In a 

criminal case like this one, the jurors are not permitted to 

discuss the evidence until all the evidence has been presented 

and the jurors have returned – retired to deliberate on the 

verdict.

You may not discuss the evidence among yourselves 

until you retire to deliberate. You cannot discuss any aspect 

of the case with each other until it is submitted for your 

deliberations at the end of the trial.

We presume that jurors follow jury instructions. State v. LeBlanc, 186 Ariz. 

437, 439, 924 P.2d 441, 443 (1996). Nothing in the record suggests that Juror 

No. 2 did not follow the court’s instructions, and in fact she avowed she 

had not shared any information with the other jurors. Absent evidence to 

the contrary, we cannot agree with Appellant that fundamental error 

occurred through jury contamination.

III. Store Clerk’s Alleged Perjury and Credibility

¶14 Appellant argues that fundamental error occurred because 

the convenience store clerk selected a photograph of someone other than 

Appellant from a photo lineup shortly after the robbery and committed 

perjury by modifying her testimony to fit the prosecutor’s questioning.

Appellant’s claim that the clerk committed perjury and prejudiced 

Appellant is not supported by the record.

¶15 A person commits perjury by making (1) a false sworn 

statement regarding a material issue, believing it to be false, or (2) a false 

unsworn declaration or statement regarding a material issue that the person 

subscribes as true under penalty of perjury, believing it to be false. A.R.S. 
STATE v. HILES

Decision of the Court

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§ 13-2702 (2010). However, “[c]ontradictions and changes in a witness’s 

testimony alone do not constitute perjury.” Tapia v. Tansy, 926 F.2d 1554, 

1563 (10th Cir. 1991) (citations omitted).

¶16 The following facts apply to Appellant’s argument: Shortly

after the incident, Officer Hash presented the store clerk with a six-photo 

lineup.3 The photo lineup included a picture of Appellant in the No. 3 

position. The clerk quickly eliminated photo numbers 1, 2, 4, and 5, but had 

difficulty differentiating between photo numbers 3 and 6. Ultimately, she 

selected the photograph in the No. 6 position.

¶17 At trial, the clerk identified Appellant as the man who pulled 

the gun on her. She acknowledged she had been shown a photo lineup and 

had selected the photo in the No. 6 position, but explained she had 

struggled to select between photo numbers 3 and 6 because the robber wore 

his hat “kind of low,” and stated she was sure of her identification at trial 

because she remembered Appellant’s facial features and could “see him like 

face-to-face now and I recognize his face.” On cross-examination, defense 

counsel attempted to impeach the clerk’s identification of Appellant by 

challenging her memory of the robbery and highlighting her previous 

selection of the No. 6 photo. On re-direct examination, the prosecutor asked 

the clerk, “So when you pointed out [Appellant at trial], was that based 

upon the fact that that’s the person that you saw that night?” The clerk 

responded affirmatively, stating that she “recognized [Appellant’s] face.” 

The prosecutor later asked, “Did you have any reason to look to see if he 

had any tattoos or piercings?” The clerk responded:

I didn’t even pay that -- when I [saw] the gun, I just 

[saw] a gun and my life. That’s all I [saw]. I didn’t see 

anything else. I [saw] he had a pocket knife about this long 

on his side and I noticed that because he was at the register.

 

3 Officer Hash did not construct the lineup and had not been advised 

which, if any, of the photos was that of Appellant. Appellant argues the 

police should have transported the store clerk to identify him on the night 

of the robbery, ostensibly in a one-man show-up procedure, rather than 

through a six-photo lineup procedure. Generally, however, one-man showup procedures are inherently suggestive, State v. Williams, 144 Ariz. 433, 

439, 698 P.2d 678, 684 (1985), and the lineup procedure used by law 

enforcement in this case does not appear to have been suggestive; 

accordingly, we find no error, much less fundamental, prejudicial error in 

law enforcement’s use of the six-photo lineup employed here.
STATE v. HILES

Decision of the Court

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Other than the tattoos or whatever, I didn’t notice 

anything. I just noticed when he lift[ed] up his shirt and he 

pulled that gun out and I said I’m about to die.

Defense counsel did not object to this testimony, and the prosecutor asked 

no further questions of the store clerk.

¶18 Appellant argues the clerk’s response to the prosecutor’s final 

question constituted perjury because the clerk tailored her answer to the 

prosecutor’s question. Although the clerk’s response arguably contained 

internal inconsistencies and was in part nonresponsive, it did not constitute 

demonstrably false and material misstatements rising to the level of perjury 

and was relevant to the jury’s determination of the clerk’s credibility. The 

jury, as the fact finder, had the exclusive duty to determine the credibility 

of the witness and decide the proper weight to give the testimony of the 

witness. See State v. Cox, 217 Ariz. 353, 357, ¶ 27, 174 P.3d 265, 269 (2007); 

State v. Fimbres, 222 Ariz. 293, 297, ¶ 4, 213 P.3d 1020, 1024 (App. 2009). We 

defer to the fact finder as long as its findings are supported by the record 

and are not clearly erroneous. See State v. Grell, 212 Ariz. 516, 528, ¶ 58, 135 

P.3d 696, 708 (2006). On this record, the clerk’s testimony did not constitute 

perjury, was not fundamental error, and did not prejudice Appellant.

IV. Display of Appellant’s Tattoos

¶19 Appellant contends that the trial court committed reversible 

error by granting the State’s motion for Appellant to display the tattoos on 

his arms to the jury.4 Appellant argues that the requirement of displaying 

his tattoos led the jury to infer the tattoos were prison tattoos and was thus 

prejudicial to him.

¶20 In this case, the tattoos were probative of identity. 

Surveillance video of the robbery showed the suspect’s arms had tattoos on 

the front and back that appeared similar to those on Appellant’s arms. 

Further, Appellant’s contention that jurors might have inferred that his 

tattoos were prison tattoos is mere speculation, and “[t]he mere fact that a 

defendant has tattoos is not inherently prejudicial.” State v. Smith, 170 Ariz. 

481, 482, 826 P.2d 344, 345 (App. 1992). Nothing in the record suggests that 

the tattoos gave rise to prejudicial associations in the minds of the jurors.

 

4 Arizona Rule of Criminal Procedure 15.2(a)(8) provides in part for a 

criminal defendant to “[s]ubmit to a reasonable physical or medical 

inspection of his or her body, provided such inspection does not include 

psychiatric or psychological examination.”
STATE v. HILES

Decision of the Court

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 V. Fingerprints and DNA

¶21 Appellant argues that reversible error occurred because the 

police collected no fingerprints or DNA from the crime scene, and a juror 

inquired about such evidence.

¶22 When available, fingerprints and DNA may be used as 

methods of identification, but like other methods of identification, they may 

still be challenged on a foundational basis or through controverting 

evidence. See State v. Bogan, 183 Ariz. 506, 514, 905 P.2d 515, 523 (App. 

1995). Given that it is often impossible to obtain fingerprint and DNA 

samples from public locations, such as the convenience store in this case, 

the investigating officers’ apparent decision to not attempt to collect such 

evidence was wholly appropriate. The presence or absence of such samples 

simply goes to the weight of the evidence, and the weighing of evidence, in 

addition to the drawing of legitimate inferences from the facts, is a function

of the jury. See State v. Reynolds, 108 Ariz. 541, 543, 503 P.2d 369, 371 (1972).5

 VI. Jury Questions During Deliberations

¶23 Appellant also argues that the trial court failed to properly 

answer questions posed by the jury during deliberations concerning the 

evidence of his tattoos.

¶24 After the jury retired to deliberate, a juror question was 

submitted to the court that asked, “Can we see courtroom video?” The 

court advised counsel that “I assume they mean the FTR,”6 and after 

consulting with counsel, the court responded, “Please identify what part(s)

of the courtroom video you are interested in seeing.” The jury responded, 

“Tattoo video [of Appellant’s arms] from yesterday in the courtroom.” The 

court again discussed the matter with counsel, and the prosecutor noted 

that she had viewed the video and “it’s not like a continuance video because 

 

5 Appellant also suggests the State should have sought admission of 

his backpack into evidence rather than photographs of the backpack, but as 

with the lack of fingerprints and DNA evidence, he does not argue how the 

lack of the backpack itself prejudiced him. We find no error, much less 

fundamental, prejudicial error in the State’s decision to not seek admission 

of the backpack.

6 FTR, or “For the Record,” is a digital recording system used to record 

court proceedings, often in lieu of a court reporter. Gersten v. Gersten, 223 

Ariz. 99, 101, ¶ 3, 219 P.3d 309, 311 (App. 2009).
STATE v. HILES

Decision of the Court

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I wasn’t speaking so the camera wasn’t on [Appellant] the entire time. It’s 

basically that blip of [Appellant] that I got the screen shot from and we can 

full [sic] it up on the FTR, but when I viewed it, it’s not what we really saw 

-- like how we saw it in court because nobody was speaking so none of the 

cameras were capturing that.” Defense counsel also objected that playing 

the video would “place undue influence on that again. They already had 

an opportunity to view it and saw it and that’s it.” The court and counsel 

then viewed the video, and the court subsequently noted that “it’s the 

consensus of all of us that -- well, first of all, [the video] doesn’t show the 

complete sequence of [Appellant] displaying the tattoos and I -- my 

personal view of it is it’s not likely to really help [the jury] resolve the case, 

and I think it’s the consensus of everyone that we shouldn’t -- have that 

shown -- have that video clip shown to them.” Both counsel agreed, and 

the court then instructed the jury, “The video will not be shown. You must 

rely on your memories of what you saw.”

¶25 On this record, the trial court’s responses to these and other

juror questions was entirely appropriate. We find no error, much less 

fundamental, prejudicial error in the court’s handling of and responses to 

the jury questions raised during deliberations.

 VII. Alleged Excessive Sentence

¶26 Appellant argues that the trial court erred in finding he had 

four prior felony convictions, including two historical prior felony 

convictions, making him a category three offender for sentencing 

enhancement purposes.7 He maintains three of his four prior felony 

convictions (from crimes committed in 1997 and 1998) “were not 

substantiated or crimes of [the] same nature.” As a result, Appellant claims 

his sentence was improperly enhanced.

 

7 The State presented evidence and the court found that Appellant had 

the following prior felony convictions: (1) disorderly conduct, a class six 

felony, committed on January 6, 1997; (2) theft, a class four felony, 

committed on February 25, 1997; (3) attempted theft, a class four felony, 

committed on June 8, 1998; and (4) disorderly conduct, a class six felony, 

committed on October 7, 2012. The court found that the 1998 and 2012 

crimes were historical prior felony convictions. Appellant does not 

challenge the court’s finding that the State proved the 2012 crime qualified 

as a historical prior felony conviction.
STATE v. HILES

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¶27 Appellant first contends that three of the prior felony 

convictions brought forth by the State were not “substantiated” through a 

fingerprint comparison.

¶28 The State must prove a defendant’s historical prior felonies by 

clear and convincing evidence. State v. Cons, 208 Ariz. 409, 415, ¶ 15, 94 

P.3d 609, 615 (App. 2004). In doing so, the State must prove both that (1) 

the defendant in the present case and the one convicted in the prior case are 

the same person, and (2) there was a prior conviction. State v. Nash, 143 

Ariz. 392, 403, 694 P.2d 222, 233 (1985). In the absence of the admission of 

a defendant, the State may prove a prior conviction with extrinsic evidence, 

such as a certified copy of a judgment of conviction or minute entry, expert 

comparison of a fingerprint card with a fingerprint on the sentencing 

minute entry, testimony of witnesses, or photographs of the defendant. See, 

e.g., id.

¶29 Here, the court found that the allegation of the 2012 prior 

felony conviction was proved through a fingerprint comparison and the 

other prior convictions were proved through other extrinsic evidence:

The defense is correct that the fingerprints have only 

been matched up to the November 2012 disorderly conduct 

offense to the current fingerprints.

I think the better practice would be for the State to have 

done a fingerprint analysis as to all of the four priors. 

However, I think there’s sufficient evidence to conclude . . . 

that the three other priors are also for [Appellant] and the 

names and the date of births on all the prior minute entries 

match [Appellant’s acknowledged name and date of birth]. 

His name is a somewhat unusual name and I think for that 

reason as well, it’s proof . . . .

In addition, the information is contained in the pen 

pack Exhibit 2, which lists all of these same offenses as being 

committed by [Appellant] with the same DOC number. And 

for all those reasons, it’s my conclusion that the prior felonies 

have been proven as stated on the record.

We find no fundamental, prejudicial error, in the court’s determination that 

the State properly proved the existence of the three prior felony convictions.

¶30 Further, nothing required that Appellant’s prior felony 

convictions be of the same “nature” as his most current felony conviction
STATE v. HILES

Decision of the Court

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for sentencing enhancement purposes. Appellant had two prior felony 

convictions for the 1997 crimes, and therefore the conviction for the 1998 

crime operated as a historical prior felony conviction for enhancement 

purposes. See A.R.S. § 13-105(22)(d) (Supp. 2016). Further, because the 

conviction for the 2012 crime also qualified as a historical prior felony 

conviction, Appellant had two historical prior felony convictions, and the 

trial court correctly determined Appellant was a category three repetitive 

offender. See A.R.S. § 13-703(C) (Supp. 2016). Accordingly, we reject 

Appellant’s argument that the trial court erred in sentencing Appellant as 

a category three offender under A.R.S. § 13-703(J).

VIII. Other Issues

¶31 We have reviewed the entire record for reversible error and 

find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537, 

¶ 30, 2 P.3d at 96. The evidence presented at trial was substantial and 

supports the verdict. Appellant was represented by counsel at all stages of 

the proceedings and was given the opportunity to speak at sentencing. The 

proceedings were conducted in compliance with his constitutional and 

statutory rights and the Arizona Rules of Criminal Procedure.

¶32 After filing of this decision, defense counsel’s obligations 

pertaining to Appellant’s representation in this appeal have ended. 

Counsel need do no more than inform Appellant of the status of the appeal 

and of his future options, unless counsel’s review reveals an issue 

appropriate for petition for review to the Arizona Supreme Court. See State 

v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant has 

thirty days from the date of this decision to proceed, if he desires, with a pro 

per motion for reconsideration or petition for review.

CONCLUSION

¶33 Appellant’s conviction and sentence are affirmed.