Opinion
No. 2 CA-CR 2012-0407
03-31-2014
THE STATE OF ARIZONA, Appellee, v. JORGE ISMAEL ACOSTA-ALVAREZ, Appellant.
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Alan L. Amann, Assistant Attorney General, Tucson Counsel for Appellee Isabel G. Garcia, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20113286001
The Honorable Javier Chon-Lopez, Judge
The Honorable Deborah Bernini, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Alan L. Amann, Assistant Attorney General, Tucson
Counsel for Appellee
Isabel G. Garcia, Pima County Legal Defender
By Robb P. Holmes, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 After two separate jury trials, Jorge Acosta-Alvarez (Acosta) was convicted of weapons misconduct and three counts of aggravated assault. The trial court sentenced him to concurrent prison terms, the longest of which was 7.5 years. On appeal, Acosta asserts the evidence was insufficient to support his conviction for weapons misconduct and one of the three convictions for aggravated assault and that the trial court should have granted his motions for judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P. He also contends the court erred by failing to preclude the expert testimony of a witness for the state.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the challenged convictions. See, e.g., State v. Sarullo, 219 Ariz. 431, ¶ 2, 199 P.3d 686, 688 (App. 2008). One evening in September 2011, Acosta was involved in a shooting in front of an apartment complex. He was charged with three counts of aggravated assault, two counts of attempted robbery, and one count of weapons misconduct, based on his status as a prohibited possessor. The trial court granted Acosta's motion to sever the weapons misconduct charge. He was tried, convicted, and sentenced as set forth above.
¶3 At the trial that resulted in Acosta's aggravated assault convictions, the state presented testimony by several police officers, two of the three victims identified in the indictment, and the resident of the apartment where a gun was recovered. One of the victims, M.M., testified he had been leaving the apartment complex in his girlfriend J.W.'s sedan, when he saw "a car pull around the corner at a high rate of speed" and "pull[] up . . . on the opposite side of the road." Because one of the occupants in the other car had yelled at him, M.M. got out of J.W.'s vehicle, as did C.C., another victim who had been in the back seat. J.W. remained in the vehicle. The driver of the other car, Acosta, approached M.M. and C.C. on foot with a gun drawn, aiming "back and forth" between M.M. and C.C. When M.M. realized Acosta had a gun, he began "sidestepping" to the front of J.W.'s car. M.M. then pulled out his own weapon and fired three shots at Acosta, who was now standing near the back bumper of J.W.'s car. Acosta returned fire and then ran to the other side of the apartment complex. When M.M. returned to the car, he discovered J.W. had been shot in the back.
¶4 The state also introduced a taped statement in which Acosta admitted firing at M.M. from behind the rear bumper of J.W.'s vehicle. In the course of examining the detective assigned to the case, Mark Cassel, the state sought to elicit expert testimony regarding the likely position of the shooter whose bullet had struck J.W. Acosta moved to preclude such testimony based on the state's failure to disclose the detective as an expert. See Ariz. R. Crim. P. 15.7. The trial court denied the motion, and Cassel testified that in his opinion, the bullet that struck J.W. had been fired from the back of the vehicle. At the close of evidence, Acosta moved for a judgment of acquittal pursuant to Rule 20, arguing, among other things, that the state had failed to present sufficient evidence that he had assaulted C.C. The court denied the motion and the jury found Acosta guilty of all three aggravated assault charges.
¶5 At the trial on the weapons misconduct charge, the state introduced evidence that Acosta had admitted to a police detective that he had possessed a .38 caliber revolver. It did not, however, present any direct evidence that Acosta had possessed the gun, instead presenting general testimony from J.W., who could not identify the shooter who was behind the car. The state also introduced evidence from investigating officers and the resident of the apartment about where the revolver had been found. At the close of evidence, Acosta argued the doctrine of corpus delicti precluded the trial court from considering Acosta's confession and that, without his admission, the state lacked sufficient evidence to prove he had possessed a weapon. The court denied the motion for judgment of acquittal pursuant to Rule 20 and Acosta was found guilty of the charge.
¶6 On appeal, Acosta challenges the denials of both his Rule 20 motions based on insufficient evidence. In addition, he renews his argument regarding the state's failure to disclose Cassel as an expert and asserts, for the first time, that the state did not present sufficient evidence to establish his status as a prohibited possessor. We have jurisdiction over this appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
A. Weapons Misconduct Trial
1. Sufficiency of Evidence Regarding Prior Convictions
¶7 Section 13-3102(A)(4), A.R.S., prohibits possession of a deadly weapon by a person who is a "prohibited possessor," and A.R.S. § 13-3101(A)(7)(b) defines "[p]rohibited possessor" as a person "[w]ho has been convicted within or without this state of a felony." Relying on State v. Hauss, 140 Ariz. 230, 681 P.2d 382 (1984), Acosta contends the certified copy of a sentencing minute entry the state introduced and testimony of Acosta's probation officer were insufficient to establish his prior conviction. In response, the state points to several cases in which documents related to the conviction and testimonial identification were found sufficient to establish prior convictions. See State v. Strong, 185 Ariz. 248, 251, 914 P.2d 1340, 1343 (App. 1995); State v. Kinney, 225 Ariz. 550, ¶ 28, 241 P.3d 914, 922 (App. 2010).
¶8 Although "[t]he sufficiency of the evidence is a question of law we review de novo," State v. Snider, 233 Ariz. 243, ¶ 4, 311 P.3d 656, 658 (App. 2013), as noted above, we view the facts in a light most favorable to upholding the verdict, see Kinney, 225 Ariz. 550, ¶ 27, 241 P.3d at 922. We will uphold a conviction so long as there is substantial evidence that "'reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt.'" Kinney, 225 Ariz. 550, ¶ 28, 241 P.3d at 922, quoting State v. Stroud, 209 Ariz. 410, ¶ 6, 103 P.3d 912, 914 (2005). We will not find reversible error unless "'there is a complete absence of probative facts to support [the jury's] conclusion.'" Id., quoting State v. Carlisle, 198 Ariz. 203, ¶ 11, 8 P.3d 391, 394 (App. 2000) (alteration in Kinney).
¶9 To establish a prior conviction, the state must (i) "offer in evidence a certified copy of the conviction" and (ii) "establish the defendant as the person to whom the document refers." State v. Lee, 114 Ariz. 101, 105-06, 559 P.2d 657, 661-62 (1976). In Hauss, our supreme court considered whether testimony alone can establish the fact of a prior conviction for sentencing purposes. 140 Ariz. at 230-31, 681 P.2d at 382-83. The court reiterated the "proper procedure" for establishing prior convictions, as set forth in Lee, but identified two specific exceptions to the requirement that documentary evidence be introduced: when the defendant admits to the conviction while testifying in court or when the state shows "its earnest and diligent attempts to procure the necessary documentation were unsuccessful for reasons beyond its control and that the evidence introduced in its stead is highly reliable." Id. at 231, 681 P.2d at 383. In so holding, the court expressly endorsed the continued use of testimony to prove the identification prong of the Lee test, i.e., the defendant is the person named in the prior conviction document. Id. at 231 n.1, 681 P.2d at 383 n.1.
¶10 Here, the state introduced a certified copy of a signed sentencing minute entry identifying Acosta by name and date of birth and an in-court identification by the probation officer who had been supervising him in that case at the time of his arrest for the August 2011 incident. Acosta seems to argue this evidence was insufficient because the state did not establish one of the two exceptions identified in Hauss. However, as noted above, in that case the state had attempted to prove a prior conviction through testimony alone. Here, the state introduced the certified copy of the minute entry reflecting Acosta's felony conviction, which satisfied the first prong of the Lee test. And, contrary to Acosta's contention on appeal, the probation officer's testimony satisfied the second prong of that test. Id.; see also Strong, 185 Ariz. at 251, 914 P.2d at 1343 (certified copies of documents establishing foreign convictions and identification testimony of parole officer sufficient to support finding for sentence enhancement). Accordingly, the evidence presented at trial was more than sufficient to support the jury's finding on this charge.
Although Acosta did not raise this specific issue below in his Rule 20 motion, a conviction based on insufficient evidence does not require an objection at trial to preserve the error. See Snider, 233 Ariz. 243, n.4, 311 P.3d at 658 n.4.
Acosta's reliance on State v. Pennye, 102 Ariz. 207, 427 P.2d 525 (1967) is misplaced. There, the state introduced an out-of-state arrest report and judgment of conviction for an individual with the same name as the defendant. Id. at 208, 427 P.2d at 526. Although testimony connected the defendant to the report, no evidence connected him to the judgment. Id. Here, there was testimony directly linking Acosta to the conviction reflected in the minute entry.
2. Corpus Delicti
¶11 Acosta contends the trial court erroneously denied his Rule 20 motion based on the state's failure to establish the corpus delicti of weapons misconduct. See Ariz. R. Crim. P. 20. That common law doctrine prevents a defendant from being convicted "'based upon an uncorroborated confession without independent proof of the corpus delicti, or the body of the crime.'" State v. Rubiano, 214 Ariz. 184, ¶ 6, 150 P.3d 271, 272-73 (App. 2007), quoting State v. Morgan, 204 Ariz. 166, ¶ 15, 61 P.3d 460, 464 (App. 2002). "[T]o establish corpus delicti there must appear some proof of a certain result, and that some one is criminally responsible therefor." State v. Weis, 92 Ariz. 254, 260, 375 P.2d 735, 739 (1962). A defendant's confession may be considered by the fact-finder so long as there is a "reasonable inference" that the corpus declicti exists. State v. Janise, 116 Ariz. 557, 559, 570 P.2d 499, 501 (1977).
¶12 The state maintains Acosta waived this issue below because he "did not claim corpus delicti at trial." However, as Acosta notes on reply, he advanced a Rule 20 motion on this ground before the case was submitted to the jury. To the extent the state implies that Acosta waived this issue by failing to object when his inculpatory statements were admitted into evidence, we disagree. See State v. Gillies, 135 Ariz. 500, 505-06, 662 P.2d 1007, 1012-13 (1983) (defendant's failure to object to introduction of his statements when offered does not waive right to question their admissibility for purpose of proving corpus delicti).
¶13 Acosta urges us to apply an abuse of discretion standard of review in connection with review of a corpus delicti claim, relying on State v. Morris. 215 Ariz. 324, ¶ 33, 160 P.3d 203, 212 (2007) ("We review a ruling on the sufficiency of the evidence of corpus delicti for abuse of discretion."). But our supreme court's recent decision in State v. West would appear to compel de novo review of the trial court's legal determination that the evidence was sufficient to establish corpus delicti and withstand a Rule 20 motion. 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011) (question of sufficiency of evidence "is one of law, subject to de novo review on appeal"). We need not determine which standard governs here, however, because we find no error under either.
¶14 Acosta argues no reasonable inference of weapons misconduct could be drawn because "no evidence indicat[ed] what the second weapon [fired at the scene] might have been" and no "direct evidence" showed he possessed the weapon recovered in C.M.'s apartment. But "'corpus delicti can be established by circumstantial evidence alone.'" State v. Gill, No. 2 CA-CR 20130156, ¶ 5, 2014 WL 843583 (Ariz. Ct. App. Mar. 3, 2014), quoting State v. Butler, 82 Ariz. 25, 29, 307 P.2d 916, 919 (1957). Here, there was sufficient, albeit circumstantial, evidence establishing that Acosta had knowingly possessed a deadly weapon. J.W. testified that shots had been fired by someone other than M.M. and that the others involved in the altercation with M.M. had been standing near a white vehicle before the shots were fired. Shortly thereafter, officers searched a white vehicle that was at the scene and found Acosta's wallet between the driver's seat and door and a Smith & Wesson holster between the center console and the driver's seat. In addition, C.M. testified that shortly after the shooting, she had seen Acosta in her apartment, where a Smith & Wesson revolver was recovered from a closet. Thus, unlike in State v. Nieves, 207 Ariz. 438, 87 P.3d 851 (App. 2004), cited by Acosta, there was independent evidence to corroborate his confession. Accordingly, we find no error in the denial of his Rule 20 motion on this count.
We note that our analysis of this argument was significantly hampered by the state's failure to consistently cite to the record in the argument section of its answering brief. See Ariz. R. Crim. P.
31.13(c)(1)(vi) and (c)(2).
Acosta also relies on State v. Wright, 888 P.2d 1214 (Wash. Ct. App. 1995), in which police recovered a gun near where the defendant had been standing with another man. Id. at 1217. After determining that all other independent evidence applied with equal force to both men, the court nevertheless found the corpus delicti rule satisfied, citing Wright's false statement to one of the investigating officers, and stating, "It is . . . logical to infer that a person will attempt to mislead an officer if he is engaged in what he knows is criminal activity." Id. at 1219. Likewise here, Acosta's initial denial of any part in the altercation supports the inference that he was the individual involved in the shooting.
B. Aggravated Assault Trial
1. Motion to Preclude Expert Testimony
¶15 Acosta next claims the trial court abused its discretion by denying his motion to preclude Detective Cassel from testifying as an expert. Although the state timely disclosed Cassel as a witness, it did not designate him as an expert pursuant to Rule 15.1(b)(4), Ariz. R. Crim P. That rule requires disclosure of "[t]he names and addresses of experts who have personally examined . . . evidence in the particular case, together with the results of physical examinations and of scientific tests, experiments or comparisons that have been completed." Ariz. R. Crim. P. 15.1(b)(4). Acosta contends the state's failure to specifically identify Cassel as a ballistics expert "left [Acosta] unprepared and unable to rebut Cassel's claim that the bullet trajectory was consistent with being fired from . . . [Acosta's] location." He also challenges the court's conclusion that any prejudice resulting from the late disclosure could be alleviated through cross-examination, arguing that disclosure of expert witnesses is intended to "allow the opposing party an opportunity to prepare for cross-examination" and that "[w]ithout . . . such allowances for trial preparation, cross-examination becomes an exercise in futility."
¶16 The state responds that it "had not intended to elicit [bullet] trajectory testimony from Cassel until [Acosta] raised the issue at trial by cross-examining [another detective] about [his] inability to testify regarding the trajectory of the bullet that struck J.W." The state also maintains that, even if the trial court's denial of sanctions constituted error, Acosta's argument would nevertheless fail because he cannot establish prejudice.
¶17 When ruling on a motion for disclosure-related sanctions, the trial court "shall impose any sanction it finds appropriate, unless the court finds that the failure to comply was harmless or that the information could not have been disclosed earlier even with due diligence and the information was disclosed immediately upon its discovery." Ariz. R. Crim. P. 15.7. The court "'should seek to apply sanctions that affect the evidence at trial and the merits of the case as little as possible.'" State v. Roque, 213 Ariz. 193, ¶ 50, 141 P.3d, 368, 385 (2006), quoting State v. Fisher, 141 Ariz. 227, 246, 686 P.2d 750, 769 (1984). We review such a ruling for abuse of discretion. State v. Martinez-Villareal, 145 Ariz. 441, 448, 702 P.2d 670, 677 (1985). And to establish an abuse of discretion, an appellant must demonstrate prejudice from the nondisclosure. Id.
¶18 Because we conclude any failure to disclose Cassel as an expert was harmless, see Ariz. R. Crim. P. 15.7, we find no abuse of discretion here. Acosta does not contend he was unaware of the state's theory that J.W. had been shot from behind. Rather he suggests that, had Cassel been disclosed as an expert, he would have "questioned [him] on the topic during the pretrial interview, conducted any pertinent research and investigation . . . and then . . . made an informed decision about whether to cross-examine any of the witnesses on that topic or whether to call his own expert." But by the time Cassel testified, the state already had introduced uncontroverted evidence showing that the bullet that struck J.W. came from behind the car. Both J.W. and M.M. testified J.W. was shot in the back while seated in M.M.'s car, and M.M. identified a photograph of the wound in J.W.'s back. J.W. also confirmed she was facing forward in her seat during the altercation. Acosta had advance notice of this testimony and incentive to cross-examine these witnesses, as well as supply any expert testimony to contradict their statements prior to the admission of Cassel's testimony regarding trajectory. Given the weight of the undisputed evidence, we conclude that the state's failure to identify Cassel as an expert was harmless. See State v. Shearer, 164 Ariz. 329, 340, 793 P.2d 86, 97 (App. 1989) (inadmissible evidence harmless when cumulative to and consistent with other trial testimony). Consequently, there was no abuse of discretion by the trial court.
Such evidence distinguishes this case from one in which the court found a violation of Rule 15.1(a)(3) for nondisclosure of a mental health expert on a "critical issue," but did not find an abuse of discretion because the defendant had refused the court's offer to continue the trial. Roque, 213 Ariz. 193, ¶¶ 48-49, 141 P.3d at 385.
Acosta's claim that the trial court should have "at least offered the defense a short continuance or a recess to interview the expert," is unpersuasive in light of his failure to request either remedial measure.
2. Sufficiency of Evidence of Aggravated Assault
¶19 Acosta further argues, as he did below, that the state failed to establish the elements of aggravated assault as against C.C. Although he acknowledges "some authority for the proposition that . . . apprehension may be proved circumstantially," he nevertheless contends that without C.C.'s testimony, the state lacked sufficient evidence that he was placed in "reasonable apprehension of physical injury," as required by A.R.S. §§ 13-1203(A)(2) and 13-1204(A)(2). In response, the state points to evidence of C.C.'s actions during the incident, arguing it was sufficient for the jury to infer reasonable apprehension. We review a claim of insufficient evidence de novo. Snider, 233 Ariz. 243, ¶ 4, 311 P.3d at 658.
¶20 Acosta's argument is contrary to our decision in State v. Baldenegro, 188 Ariz. 10, 932 P.2d 275 (App. 1996), where we upheld an aggravated assault conviction based solely on testimony that, "when the shooting began, [the victim] braked his car so abruptly that he and his passengers pitched forward to the floor." Id. at 13, 932 P.2d at 278. We contrasted this testimony with the absence of any evidence that another alleged victim "saw a gun pointed at him or at the car," or "reacted to the shooting by trying to maneuver to avoid getting shot," concluding that this second victim's "mere presence" at the scene was insufficient to sustain an assault conviction. Id. at 13-14, 932 P.2d at 278-79.
¶21 Here, the state did more than establish C.C.'s "mere presence." Indeed, M.M. testified that C.C. had warned him Acosta had a gun, thereby establishing C.C. was aware of the threat of physical injury. In addition, M.M. stated that at one point during the altercation, Acosta "proceeded towards my . . . brother [, C.C.,] . . . pointing the gun towards [him], and then my brother like trips and falls back on the ground as he is backing up." This statement demonstrates that, like the victim in Baldenegro, C.C. reacted to the shooting "by trying to maneuver to avoid getting shot." Accordingly, reasonable persons could find the state's evidence of reasonable apprehension sufficient to support a guilty verdict on this charge. See Kinney, 225 Ariz. 550, ¶ 28, 241 P.3d at 922.
Criminal Restitution Order
¶22 Finally, we address an issue that was neither raised below nor briefed on appeal. Specifically, at the time of Acosta's sentencings, the trial court entered orders reducing "all fines, fees, assessments and/or restitution" to criminal restitution orders (CROs). Because the imposition of a CRO prior to the expiration of a defendant's sentence constitutes fundamental, reversible error, State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910 (App. 2013), those portions of the trial court's sentencing orders cannot stand.
Section 13-805, A.R.S., has since been amended to permit the entry of CROs for the unpaid balance of any court-ordered restitution. See 2012 Ariz. Sess. Laws, ch. 269, § 1; State v. Cota, 681 Ariz. Adv. Rep. 7, ¶ 1 (Ct. App. Feb. 25, 2014).
Disposition
¶23 Pursuant to the foregoing, Acosta's convictions and sentences are affirmed except for the CROs, which are hereby vacated.