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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

Counsel for Appellee
STATE 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 was convicted of aggravated assault,

resisting arrest, and disorderly 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.

BACKGROUND1

¶2 Flagstaff Police Corporal Shawn Knott and Officer Robert 

Tullis were trying to separate two 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 Simpson “in an aggressive 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 

them. 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].” 

State v. Manzanedo, 210 Ariz. 292, 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 

Brandon Chappel and Isiah Buck, who had also been indicted, went to trial. 

Although Kenneth 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.” The 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 plea agreement.” Butler did not object.

¶7 The jury found Butler guilty of the disorderly conduct, 

resisting 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 and resisting arrest, and time served for 

the disorderly conduct. Butler appealed.

2 We 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 Butler 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 pled 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, orrequest a cautionary instruction. Consequently, our 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 Neither Butler nor the other co-defendants had filed a motion in limine 

seeking to preclude any mention of Kenneth 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 circumstances 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. First, 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 prejudicial. Id. at 568, ¶ 26, 115 P.3d at 608. 

¶11 Here, although the officer should not have volunteered the 

information about the plea agreement when trying to identify Kenneth 

Chapple, the 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, the 

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 not 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 codefendant’s plea during trial was not plain error where, inter 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 not object, did not request a jury instruction, and did not 

request that the court 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) (holding 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 further 

during trial, Butler argues that the statement was prejudicial, but has not 

pointed to anything in the record supporting his argument. In fact, Butler’s

argument is undercut because the jury considered all the evidence, 

determined the facts and acquitted him on the more serious class four 

aggravated assault charge. See State v. Stuard, 176 Ariz. 589, 600, 863 P.2d 
STATE v. BUTLER

Decision of the Court

5

881, 892 (1993) (reasoning that the defendant failed to prove prejudice 

because the jury based their verdicts on the evidence when the jury 

acquitted the defendant on some of the charges). And 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 Confrontation Clause 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 not testimonial hearsay that the State was 

trying to use against Butler, there was no violation of the Confrontation 

Clause. See Crawford v. Washington, 541 U.S. 36, 38 (2004); see also State v. 

Womble, 225 Ariz. 91, 96-97, ¶¶ 10-13, 235 P.3d 244, 249-50 (2010) (finding

that police officer’s testimony regarding information from an informant did 

not violate the Confrontation Clause 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.