Defendant, Donald James Lucas, was convicted by a jury of two counts of kidnapping, A.R.S. § 13-1304; three counts of sexual assault, A.R.S. § 13-1406; and one count of aggravated assault, A.R.S. § 13-1204. Each offense was of a dangerous nature and committed while defendant was on release from confinement for prior felonies. A.R.S. § 13-604.01. Defendant was sentenced to serve a term of life imprisonment for each offense. Id. Three of the offenses related to one victim, and three related to another. The concurrent sentences for the offenses against the second victim were to run consecutively to those relating to the first victim. A.R.S. § 13-708.
In addition to his appeal to this court, defendant sought post-conviction relief, pursuant to Rule 32, Arizona Rules of Criminal Procedure, 17 A.R.S., in propria persona. Defendant also moved in pro *600 pria persona to expand the record, requesting that he be allowed to file a supplemental brief as well as other pleadings and exhibits. We granted these motions. We have consolidated all these matters and considered defendant’s contentions, as well as those of his attorney, in this opinion. We have jurisdiction pursuant to art. 6 § 5(3) of the Arizona Constitution and A.R.S. §§ 13-4031 and -4035.
We must answer the following questions:
1. Did the trial court improperly refuse to sever counts relating to the first victim from those relating to the second?
2. Did the trial court improperly refuse to grant a directed verdict pursuant to Rule 20, Arizona Rules of Criminal Procedure, 17 A.R.S.?
3. Did the trial judge improperly instruct the jury by:
a. failing to give a justification instruction?
b. failing to instruct the jury sua sponte on unlawful imprisonment as a lesser-included offense of kidnapping and sexual abuse is a lesser-included offense of sexual assault?
c. giving an erroneous instruction on aggravated assault?
4. Did defendant receive effective assistance of counsel?
5. Did the trial court improperly deny the request for relief pursuant to Rule 32?
6. Did the police violate defendant’s Miranda rights?
About 7:30 on the morning of 9 May 1983, defendant entered a bar in downtown Phoenix, Arizona. There he met the first victim, Jeanie B. After a drink and brief conversation, Jeanie accepted a ride from defendant to a restaurant where she could purchase breakfast. Instead, defendant drove to another downtown area bar where he and Jeanie consumed more alcohol. Defendant solicited Jeanie to commit an act of prostitution to which she did not respond. Defendant and Jeanie then drove to a Circle K store where defendant purchased beer. Upon reentering the car, defendant drove into an alley behind the Circle K. There, he started hitting Jeanie and ordered her to perform fellatio upon him as he drove. Jeanie complied after defendant displayed a knife and threatened her with it. Jeanie escaped by removing the ignition key when the car stopped at an intersection. She was later treated at a hospital for bruises, lacerations, one or possibly two broken ribs, and a punctured lung.
Immediately after this incident, defendant hitched a ride to a location on East McDowell Road. At approximately noon, he entered what he though was a bar. The establishment was, however, a club in which women danced nude and which did not serve alcohol. There the defendant met the second victim, Sue H., an employee. During defendant’s stay in the club, Sue danced nude in front of him one or more times, served him lunch, and joined him in drinking soft drinks. Defendant told Sue that his car needed service and asked her to drive him to a junk yard where he could purchase an engine. Sue agreed and they departed together. Along the way, they made several stops, including one at a convenience store where defendant purchased beer. After defendant completed his business at the junk yard, he reentered Sue’s car and they began to drive off. A short distance from the yard, in a desert area, defendant feigned nausea and asked Sue to stop the car. Sue testified that defendant then began to choke her, that he removed the gun she kept in the glove compartment, and that he threatened her with it. Defendant bound and gagged Sue and locked her in the trunk of her car overnight. The next day, before releasing her, he forced her to engage in various sexual acts. She was later treated for numerous bruises and lacerations and a bladder infection. From his convictions and sentences, defendant appeals.
1. SEVERANCE
Defendant contends that the trial court erred in failing to grant his motion to sever *601 the counts involving Jeanie B. from the counts involving Sue H. We do not agree.
Our rules provide in pertinent part: Joinder
a. Offenses. Provided that each is stated in a separate count, 2 or more offenses may be joined in an indictment, information, or complaint, if they:
(1) Are of the same or similar character; or
(2) Are based on the same conduct or are otherwise connected together in their commission; or
(3) Are alleged to have been a part of a common scheme or plan.
******
Rule 13.3, Ariz.R.Crim.P., 17 A.R.S.
We believe that the evidence in this case satisfied each of the tests for joinder in Rule 13.3. The crimes are of the same or similar nature, and connected together in time and location. In addition, they appear to be part of a common scheme or plan. In each episode, defendant befriended a woman in a bar-type establishment and persuaded her to leave with him. Each time they stopped at a convenience store to purchase beer. Furthermore, in both instances, defendant used a weapon to coerce his victim to perform fellatio upon him in an automobile. The second incident followed immediately after the first and both occurred within a period of approximately twenty-four hours. The conduct described was so connected that at the trial of one victim’s counts, the evidence of the other victim’s counts would be admissible. Rule 404(b), Ariz.R.Evid., 17A A.R.S.;
State v. Cruz,
As to defendant's request for severance, our rules provide that counts that have been properly joined may still be severed.
Severance
a. In General. Whenever 2 or more offenses * * * have been joined for trial, and severance of any or all offenses * * is necessary to promote a fair determination of the guilt or innocence of any defendant of any offense, the court may on its own initiative, and shall on motion of a party, order such severance.
Rule 13.4, Ariz.R.Crim.P., 17 A.R.S.
The decision whether to grant a motion for severance is within the sound discretion of the trial court which we will not reverse absent clear abuse.
State v. Gretzler,
We do not believe that the trial court abused its discretion under the facts of the instant case. In
State v. Newman,
2. DIRECTED VERDICT
At the close of the state’s evidence, defendant moved for a directed verdict of acquittal on all charges -and, alternatively, on all allegations of dangerousness pursuant to Rule 20, Arizona Rules of Criminal Procedure, 17 A.R.S. The trial court denied this request and defendant now argues that this denial was in error. We do not agree.
a. Allegations of Dangerousness
In order for defendant to receive an enhanced sentence pursuant to A.R.S. § 13-604.01, the jury must find that the offense committed involved “the use or exhibition of a deadly weapon or dangerous instrument or * * * the intentional or knowing infliction of serious physical injury * *
In the instant case, evidence was sufficient to find that defendant used or exhibited a dangerous instrument as part of his sexual assaults. Jeanie testified that defendant pulled out a knife and told her he would stick it in her heart if she did not perform fellatio upon him. Sue testified that defendant grabbed her while she was driving her car, rummaged through her glove compartment and took her gun out. He then drove her car for a short distance, got out of the car and locked her in the trunk. Additionally, the next morning he took the gun out of the car and had it in his possession before he ordered her to submit to him. Sue never stated that defendant actually pointed the gun at her while ordering her to engage in certain acts. He did, however, show the gun to her just prior to the sexual assaults, thereby “exhibiting” it. Therefore, there was sufficient circumstantial evidence for the jury to find that she felt that she had to submit to avoid being shot, which would satisfy the statutory language that defendant “used” the gun to commit the rape.
A judgment of acquittal shall be granted if there is “no substantial evidence to warrant a conviction.” Rule 20, Ariz.R. Crim.P., 17 A.R.S. We have defined substantial evidence as “ ‘more than a scintilla and is such proof as a reasonable mind would employ to support the conclusion reached.’ ”
See
also,
State v. Clabourne,
b. The Other Charges
We find that, as to all the other charges, there was sufficient evidence to warrant a conviction. There was ample evidence of kidnapping as well as sexual assault. Both victims stated that defendant hit them and a medical expert testified that Jeanie had received serious injuries, including broken ribs and a punctured lung. Additionally, both women stated that they were threatened with weapons and forced to engage in certain sexual activities against their will. Thus, we find more than enough evidence to warrant giving the case to the jury.
3. JURY INSTRUCTIONS
Defendant raises three arguments with respect to the jury instructions. He argues that the court should have given his requested justification charge. He further contends that the trial court erred in failing to instruct, sua sponte, on the crime of unlawful imprisonment as a lesser included offense of kidnapping, and sexual abuse as a lesser included offense of sexual assault. Defendant also contends the court should *603 have given a different explanation of aggravated assault,
a. The Justification Instruction
At trial, defendant took the stand and testified that he had met Jeanie in a bar and had offered to give her $100 if she would spend the day with him. He stated that they left the bar and began to drive around. According to him, she wanted to go to a friend’s house to buy some heroin and when he refused she became violent, almost causing a car accident. He slammed on the brakes and she flew against the dash board, injuring herself. After a further struggle, he ordered her to leave the car.
Defendant then went on to explain that he went to Johnny O’s nightclub where he met Sue. He told her what happened with Jeanie and she agreed to help him find her and to have intercourse with him for $200. They left the bar and searched for Jeanie. When they were unable to find her, they then drove to northern Phoenix and engaged in sexual relations. Defendant stated that when she refused to go back into town to continue looking for Jeanie, he told her he wasn’t going to pay her. She then pulled out a gun, which he was able to grab from her. In order to protect himself, he locked her in the trunk overnight. When he let her out, the next morning, she apologized and the two of them drove back into town.
Defendant contends that he requested a justification instruction, based upon the facts of the case which defendant maintains would justify or excuse his conduct in this case. This request was apparently denied. Upon review of the record on appeal, however, we are unable to find this request. Assuming arguendo that the issue had been properly preserved, we find that a trial court could correctly deny the request.
A defendant is entitled to. an instruction on any theory of the case reasonably supported by the evidence.
State v. Shumway,
b. Lesser-included Offenses
Defendant also argues that the trial court erred in failing, sua sponte, to instruct the jury that unlawful imprisonment is a lesser-included offense of kidnapping and that sexual abuse is a lesser-included offense of sexual assault. We do not agree.
Recently, our court of appeals discussed the standard of review to be used when no request for an instruction on a lesser-included offense has been made. It stated:
[A] failure to instruct, absent a request, should be examined to determine if fundamental error has occurred. Fundamental error is error of such dimensions that it cannot be said it is possible for a defendant to have had a fair trial. * * * Reversal is required because the error went to the very foundation of his theory *604 of the ease and took away a right essential to his defense.
State v. Flores,
Unlawful imprisonment is a lesser-included offense of kidnapping.
State v. Caudillo,
Defendant next alleges that the jury should have been instructed on sexual abuse as a lesser-included offense of sexual assault. Again while we agree that sexual abuse can be a lesser-included offense of sexual assault,
State v. Wise,
In the case of Sue, defendant stated that he had engaged in consensual intercourse. Thus, under the evidence presented, he was either guilty of sexual assault or not guilty at all; an instruction on the lesser-included offense of sexual abuse was not mandated under the facts in this case. As to Jeanie, defendant denies any sexual contact occurred between them. It may well be that had the defendant so requested, the trial court would have been justified in giving an instruction of sexual abuse as a lesser-included offense of sexual assault. The lack of such an instruction, however, did not deprive defendant of his claimed defense. Therefore, it was not fundamental error to fail to instruct sua sponte on the lesser-included offense. Flores, supra. We find no error.
c. Aggravated Assault Instruction
Defendant argues, additionally, that the trial court improperly defined the crime of aggravated assault. The judge gave the following instruction:
The crime of aggravated assault requires proof that the defendant intentionally, knowingly or recklessly caused serious physical injury to another person; or that the defendant intentionally, knowingly or recklessly caused physical injury to another person while using a deadly weapon or dangerous instrument.
Defendant objected to this charge, arguing that there was insufficient evidence to support the last half of the explanation, i.e. the “using a deadly weapon” portion. Defendant renews this objection and argues additionally that it was error to give this instruction because defendant was not formally charged in this manner.
*605 As to this last claim, we note that the language used by the trial court came directly from the indictment. Defendant’s claim, therefore, must fail. We also believe there was sufficient evidence to warrant giving the last half of the instruction, both as to Jeanie and Sue.
Defendant particularly objected to the instruction as it applied to Jeanie. Defendant was indicted for “intentionally, knowingly or recklessly [causing] physical injury to Jeanie * * *, using a deadly weapon or dangerous instrument, to wit [a] knife * * *.” A knife is a deadly weapon for purposes of A.R.S. § 13-1204,
State v. Garcia,
4. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant claims that he was denied his constitutional right to effective assistance of counsel. U.S. Const, amend VI. He argues that “counsel was deficient for not arguing for the use of Jeanie’s prior convictions; for failing to object to the improprieties of the prosecutor’s closing remarks; and for failing to request lesser-included offense instructions on kidnapping and sexual assault.” Defendant further contends that counsel did not cross-examine the witnesses properly. We do not agree.
Recently, the United States Supreme Court set forth the standard against which claims of ineffective assistance of counsel are measured:
A convicted defendant’s claim' that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. .
Strickland v. Washington,
As to defendant’s claim that his counsel should have requested lesser-included instructions, we have already stated that failure to give such instructions did not deprive defendant of a fair trial. See discussion supra. Thus, assuming trial counsel should have requested such instructions, defendant is unable to satisfy the second prong of the Strickland test.
Defendant argues also that failure to request the use of certain prior convictions to impeach Jeanie was evidence of inadequate assistance. Jeanie had a twenty-three year old burglary conviction and several other misdemeanor convictions that were over ten years old. Defense counsel conceded that these convictions were inadmissible for impeachment purposes. We do not find this concession improper. Under Rule 609, Arizona Rules of Evidence, 17A A.R.S., evidence of prior convictions is admissible for the purpose of attacking a witness’ credibility. However, pursuant to Rule 609(b),
“[e]vidence of a conviction * * * is not admissible if a period of more than ten years has elapsed since the date of the *606 conviction * * * unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.”
Convictions that are remote in time are looked upon with disfavor because “[a]s felony convictions become older they have increasingly less probative value on credibility.” M. Udall & J. Livermore,
Arizona Practice, Laws of Evidence
§ 47 at 90 (2nd ed. 1982). Thus, had defense counsel requested that he be allowed to use these convictions, his motion would have almost certainly been denied. We cannot fault defense counsel for failing to make an essentially futile request.
See State v. Borbon,
Defendant also points to trial counsel’s failure to object to the state’s rebuttal closing argument. After defendant’s summation, the prosecutor commented that defendant’s testimony was a “snow job.” The prosecutor then tried to rebut defense counsel’s comments on the credibility of Jeanie and Sue.
We have read the closing arguments of both the defense and the state and we do not believe defendant was deprived of a fair trial. As we have stated, counsel is allowed great latitude in closing arguments, even to the extent of making emotional statements.
State v. Marvin,
Lastly, defendant contends that defense counsel failed to adequately impeach Jeanie and Sue. Upon review of the record, however, we find that counsel did an adequate job, well within the prevailing standards for the profession. Nash, supra. We find no error.
5. RULE 32
In addition to the issues raised on direct appeal, defendant filed a petition for post-conviction relief in superior court raising two claims. He maintained that he was denied effective assistance of counsel and that he was interrogated in violation of his fifth amendment right against self-incrimination. The trial court denied relief after an evidentiary hearing. We have reviewed the record and find that the trial court acted properly. As previously noted, we find counsel’s representation was effective. We also agree that defendant’s fifth amendment rights were not violated.
6. MIRANDA CLAIM
Defendant was arrested in Winslow, Arizona. Shortly before his arrest, he had sustained bruises and lacerations in a barroom fight. He concedes that he was advised of his rights pursuant to
Miranda v. Arizona,
Assuming
arguendo
that defendant’s statements were in the nature of a confession, we still find no error. Although confessions are presumed involuntary, the state can, by a preponderance of the evidence, overcome this presumption.
State v. Hein,
Affirmed.