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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Appell ee ,

v.

WILLIAM JAMES BUTLER
, Appellant

.
No. 1 CA

- CR 14

- 0193

Appeal from the Superior Court in Coconino County

No. S0300CR201200827 The Honorable Mark R. Moran
, Judge

AFFIRMED

COUNSEL
Coconino County Public Defender’s Office
, Flagstaff By Brad Bransky Counsel for Appellant

Arizona Attorney General’s Office
, Phoenix By Jana Zinman C ounsel for AppelleeSTATE v. BUTLER Decision of the Court

2 MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.

P O R T L E Y , Judge:

¶1 William James Butler w as convicted of a ggravated a ssault
, r esisting a rrest, and d isorderly conduct

. He appeals his convictions and the resulting sentences
, arguing that fundamental error occurred because a police officer testified and identified the co

- defendant who “took a plea agreement

. ” For the reasons that follow, we affirm.

BACKGROUND 1

¶2 Flagstaff Police Corporal Shawn Knott and Officer Robert Tullis were trying to separate t wo men who were fighting

. Moments later, Officer Curtis Simpson arrived and saw Butler running towards the officers.

¶3 Officer Knott attempted to move Butler away from the fight
, but Butler “lunged forward” and “shoved [ Officer Tullis in] the chest,” pushing him backwards
, and then punched Officer Tullis

. When Officer Knott grabbed Butler
, Officer Knott was hit

. Kenneth Chapple then walked quickly towards Officer Simps on “in an aggressiv e manner with a puffed up chest[.] ” Officer Simpson pushed Chappel away and told him to stay back
, but Chapple pushed the officer. Officer Simpson then pushed Chapple against a car to arrest him

. Then Isaiah Buck “jump[ed] on [ Officer Simpson’s] back” and put his forearm “around [Simpson’s] face, [and] appl[ied] pressure backwards.”

¶4 As the officers were attempting to handcuff Buck, Brandon Chapple , Kenneth’s brother, ran towards the officers and struck one of the m. Eventually, the police arrested all four brawlers.

1 “We view the evidence in the light most favorable to sustaining [the] convictions and resolve all reasonable inferences against [the defendant].” S tate v. Manzanedo, 210 Ariz. 2 92, 293, ¶ 3, 110 P.3d 1026, 1027 (App. 2005) (citation omitted).STATE v. BUTLER Decision of the Court

3 ¶5 Butler was indicted for two counts of aggravated assault on a peace officer, one a class five felony and the other a class four felony, resisting arrest and disorderly conduct. He pled not guilty and, along with Bran don Chappel and Isiah Buck, who had also been indicted, went to trial. Although Ken neth Chapple had been indicted, he pled guilty and did not participate in the trial.

¶6 During the trial, Officer Tullis described the melee and referred to a “ Mr. Chapple

. ” T he prosecutor asked, “Which Chapple? Do you know?” The officer responded, “I do not recall. He’s not here today. He was the gentleman that took a p lea agreement.” Butler did not object.

¶7 The jury found Butler guilty of the disorderly conduct, resist ing arrest and the class five aggravated assault, but not guilty of the class four aggravated assault. He was sentenced to thirty days in jail with nineteen days of presentence incarceration credit, and eighteen months’ probation for aggravated assault an d resisting arrest
, and time served for the disorderly conduct. Butler appealed

. 2 W e have jurisdiction under Arizona Constitution Article VI, Section 9, and Arizona Revised Statutes sections 12

– 120.21(A)(1), 13

– 4031, and

– 4033(A) (2014)

.
DISCUSSION

¶8 Butle r contends that he is entitled to a new trial because fundamental prejudicial error occurred when the officer testified about Kenneth Chapple pleading guilty. We disagree.

¶9 It is axiomatic that if two or more defendants are charged with the same criminal offense, the fact that one has ple d guilty is inadmissible against the other. State v. McDonald , 117 Ariz. 159, 161, 571 P.2d 656, 658 (1977) (citations omitted ). Here, the officer identified a Mr. Chapple
, and when the prosecutor sought to clarify which Chapple, the officer stated that the person was not present because he pled guilty

. 3 The defense, however, did not object to the testimony, request the court strike the testimony, ask for a mistrial
, or request a cautionary instruction. Consequently, ou r review is limited to fundamental error. See State v. Henderson , 210 Ariz. 561, 567, ¶¶ 19

- 20, 115 P.3d 601, 607 (2005); see also McDonald , 117 Ariz. at 161, 571

2 Brandon Chapple and Isiah Buck did not appeal their convictions or
sentences.

3 N either Butler nor the other c o

- defendant s had filed a motion in limine seeking to preclude any mention of K enneth Chapple’s plea agreement or his absence from the courtroom

.STATE v. BUTLER Decision of the Court

4 P.2d at 658 (“ [ W ] hen no cautionary instruction is requested or given, the facts and circumst ances will be examined in order to decide whether the jury ’ s verdict was possibly influenced, thereby prejudicing the appellant.”)

. ¶10 Fundamental error review involves a three

- step analysis. See Henderson , 210 Ariz. at 567, ¶¶ 19

- 22, 115 P.3d at 607. Firs t, the defendant
must prove error. Id. at 568, ¶ 23, 115 P.3d at 608. Second, the defendant must prove “that the error complained of goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial.” Id . at 568, ¶ 24, 115 P.3d at 608 (citation omitted)

. Finally, the defendant must demonstrate that the error

was prejudic ial. Id . at 568, ¶ 26, 115 P.3d at 608.

¶11 Here, although the of ficer should not have volunteered the information about the p lea agreement when trying to identify Kenneth Chapple
, t he State did not ask any question to elicit the statement. The State did not try to use the statement to suggest that Butler was guilty or otherwise refer to Kenneth Chapple’s plea agreement

. Furthermore , t he State did not refer to the testimony during closing argument. Cf. United States v. Toner

, 173 F.2d 140, 142 (3rd Cir. 1949) ( noting that the trial court erred when it instructed the jury that it could “take into consideration [for determining the defendant’s guilt] that one of two co

- conspirators did plead guilty and make such use of it as [it] see[s] fit”). Consequently, if the officer’s statement was error, it was no t fundamental error because the State did not elicit it or attempt to use it for any purpose. See Paige v. United States
, 25 A.3d 74, 82

- 84 (D.C. App. 2011) (concluding that brief mention of co

defenda nt’s plea during trial was not plain error where
, inte r alia
, the prosecutor did not mention the plea during closing argument) ; see also State v. Miller , 129 Ariz. 42, 43, 628 P.2d 590, 591 (App. 1981) ( holding that an isolated answer from a witness did not result in fundamental error because defendant did no t object, did not request a jury instruction, and did not request that the cou rt strike the testimony).

¶12 Moreover, Butler has failed to prove that he suffered any prejudice. See State v. Munninger , 213 Ariz. 393, 397, ¶ 14, 142 P.3d 701, 705 (App. 2006) ( h olding that a defendant must affirmatively prove prejudice and cannot rely on speculation). Despite the fact that the comment about the co

- defendant’s plea was brief and the State did not discuss it fu r ther during trial, Butler argues that the statement was prejudicial , but has not pointed to anything in the record support ing his argument. In fact, Butler’s argument is undercut because the jur y considered all the evidence, determined the facts and acquitted him on the more serious class four aggravated a ssault charge

. See State v. Stuard , 176 Ariz. 589, 600, 863 P.2dSTATE v. BUTLER Decision of the Court

5 881, 892 (1993) ( reasoning that the defendant failed to prove prejudice because the jury base d their verdicts on the evidence when the jury acquitted the defendant on some of the charges )

. A nd given the testimony from two officers that Butler assaulted Officer Knott, the evidence of Butler’s guilt is overwhelming.

¶13 Butler also contends that he was prejudiced because he did not have the ability to confront Chapple. The C onfrontation C lau se within the Sixth Amendment to the United States Constitution, however, was not implicated by the officer’s comment because the State did not solicit or offer the statement for its truth

. Likewise, after the officer volunteered the statement, the State did not ask the officer any other questions about Kenneth Chapple or otherwise use any information related to the guilty plea for any substantive evidentiary purpose. Consequently, because the
statement was volunteered and no t testimonial hearsay that th e State was trying to use against Butler, there was no violation of the C onfrontation C lause

. See Crawford v. Washington , 541 U.S. 36, 38 (2004) ; see also State v. Womble , 225 Ariz. 91, 96

- 97, ¶¶ 1 0

- 13, 235 P.3d 244, 249

- 50 (2010) ( finding that police of ficer’s testimony regarding information from an informant did not violate the Confrontation C lause where “[t]he testimony was not offered to prove [the defendant] was involved in the murder

. . . ”)

.
CONCLUSION

¶14 Based on the foregoing, we affirm Butler’s convictions and
sentences.