Opinion
No. 1 CA-CR 14-0050
12-02-2014
STATE OF ARIZONA, Appellee, v. ARNOLD VICTOR ALANIZ-SILVA, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Eliza C. Ybarra Counsel for Appellee Yuma County Public Defender's Office, Yuma By Edward F. McGee Counsel for Appellant
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Yuma County
No. S1400CR201300055
The Honorable Stephen J. Rouff, Judge Pro Tempore
AFFIRMED AS MODIFIED
COUNSEL Arizona Attorney General's Office, Phoenix
By Eliza C. Ybarra
Counsel for Appellee
Yuma County Public Defender's Office, Yuma
By Edward F. McGee
Counsel for Appellant
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Jon W. Thompson and Judge Kent E. Cattani joined. KESSER, Judge:
¶1 Arnold Victor Alaniz-Silva appeals his conviction for aggravated assault. Alaniz-Silva argues the superior court abused its discretion by: (1) not granting a mistrial after the State impeached one of its witnesses with the witness's prior conviction for attempted aggravated assault; (2) failing to dismiss Alaniz-Silva's conviction for the lesser-included offense of misdemeanor assault; and (3) issuing a formal written judgment of conviction and sentence citing Arizona's domestic violence statute, Arizona Revised Statutes ("A.R.S.") section 13-3601 (2014). For the reasons that follow, we affirm Alaniz-Silva's conviction and sentence, however, we strike the second jury verdict finding Alaniz-Silva guilty of misdemeanor assault, and modify his judgment by striking any reference to A.R.S. § 13-3601.
We cite the current version of the applicable statute because no revisions material to this decision have since occurred.
FACTUAL AND PROCEDURAL HISTORY
¶2 Alaniz-Silva was charged with one count of aggravated assault, a class three felony. As one of his defenses, Alaniz-Silva claimed self-defense.
¶3 S.E. and the victim were standing around and talking for about half an hour before the defendants approached them. S.E. and the victim testified that Alaniz-Silva's co-defendant hit the victim in the back of the head with a large hammer, and then both defendants began to beat the victim while he lay on the ground. Both the victim and S.E. testified that Alaniz-Silva used brass knuckles to beat the victim. Due to loss of consciousness, the victim did not remember any details after the initial few blows. S.E. testified Alaniz-Silva continued to hit and kick the victim while he was on the ground. The victim had injuries to his face and head, including two missing front teeth that were later found on the roof of S.E.'s truck. Both the victim and S.E. identified the defendants, who were brothers, as the men who had attacked the victim.
¶4 After the defendants ran off, S.E. called the police because the victim appeared to have head injuries. S.E. claimed that as the defendants were running away, he also saw the defendants' older brother ("Brother"), who was not a defendant, running past and Brother did not respond to S.E.'s call for help.
¶5 The State called Brother as a witness. After admitting that he was a convicted felon, Brother testified that on the day of the incident he was with the victim at the defendants' mother's house about thirty minutes before the police arrived. He further testified the victim seemed nervous, although Brother was not aware of an argument between the victim and the defendants' mother. The victim helped Brother jump his vehicle, and then left to go to his employer, S.E.'s ranch. Brother claimed he did not see anything and was not there. Brother also testified that when the police were called to the defendants' mother's home, Brother approached Deputy D.V. from behind the deputy's truck. Deputy D.V. testified that Brother approached him from the direction of S.E.'s property.
¶6 Alaniz-Silva testified that the victim was drinking beer and appeared to be intoxicated. S.E. and the victim testified that neither of them had been drinking that day. Deputy D.V. also testified that he did not smell any alcohol on either the victim or S.E. and did not find any beer bottles or cans in the area.
¶7 After Brother's testimony, Alaniz-Silva's co-defendant moved for a mistrial based on prosecutorial misconduct. He argued Brother's testimony was irrelevant and that the State called Brother as a witness merely to impeach the defendants by association with Brother's prior attempted aggravated assault conviction. Alaniz-Silva joined in the motion for mistrial. The trial court denied the motion, finding that the conviction was less than ten years old, and under Arizona Rule of Evidence 609 the State could properly impeach Brother with the unsanitized conviction. The trial court also determined there was no prosecutorial misconduct based on such impeachment.
¶8 The jury convicted Alaniz-Silva of aggravated assault and the lesser included offense of assault. The trial court sentenced Alaniz-Silva to the minimum of five years' imprisonment for aggravated assault with forty-four days of presentence incarceration credit.
¶9 Alaniz-Silva's appeal is timely and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2003) and 13-4033(A)(1) (2010).
DISCUSSION
I. Impeachment of the State's Witness with Prior Felony Conviction
¶10 Alaniz-Silva argues the court abused its discretion by denying his motion for a mistrial based on the State's impeachment of its witness, Brother, with a prior felony conviction for aggravated assault. We review the trial court's denial of a motion for mistrial for abuse of discretion, and defer to its assessment absent a clear abuse. State v. Saiers, 196 Ariz. 20, 23, ¶ 11, 992 P.2d 612, 615 (App. 1999). In addition, "[w]e review evidentiary rulings for abuse of discretion and defer to the trial court's determination of relevance." State v. Chappell, 225 Ariz. 229, 238, ¶ 28, 236 P.3d 1176, 1185 (2010). We find no reversible error.
¶11 First, Alaniz-Silva argues there was no evidence in the record as to the age of Brother's prior convictions. He maintains the absence of evidence stating the age of Brother's prior conviction should have required: the trial court to proceed under Arizona Rule of Evidence 609(b); the State to give notice or warning to Alaniz-Silva of its intent to impeach; and a threshold determination that the probative value of the conviction substantially outweighed its prejudicial effect. Second, Alaniz-Silva argues the court erred by not sanitizing the conviction. Third, Alaniz-Silva contends that Brother's testimony was not relevant and was simply an attempt by the State to impeach the defendants by association, calling it "prosecutorial misconduct of the first order."
A. Impeachment Under Rule 609 and Sanitizing the Prior Conviction
¶12 Arizona Rule of Evidence 609(a)(1)(A) provides that for impeachment, evidence of a crime that was punishable by imprisonment for more than one year "must be admitted, subject to Rule 403, in . . . a criminal case in which the witness is not a defendant." (Emphasis added.); see State v. Cox, 201 Ariz. 464, 467, ¶ 6, 37 P.3d 437, 440 (App. 2002). Rule 403 allows the exclusion of evidence if its probative value is substantially outweighed by the danger of unfair prejudice. To the extent Rule 609(b) requires that specific facts and circumstances establish that the probative value of a conviction more than ten years old substantially outweighs any prejudice, it is a higher standard and requires advance notice of intent to use the conviction.
¶13 We reject Alaniz-Silva's argument that there was no evidence as to the age of the conviction, thereby subjecting it to the requirements of Rule 609(b). First, there is evidence in the record that the trial court calculated the age of Brother's conviction, and correctly found it to be less than ten years old. Brother's testimony established he was convicted when he was 25 years old and at the time of trial he was 29 years old. This was sufficient evidence for the trial court to find the conviction was within the last ten years. Second, we find no authority for the contention that if a trial court has not made an explicit finding of the age of a former conviction, there is a presumption that the conviction was over ten years old. The trial court correctly applied the Rule 403 balancing test as required by Rule 609(a) without requiring advance notice of the State's intent to use the impeachment evidence.
¶14 Alaniz-Silva's argument that the trial court erred by not making an express finding that the probative value of Brother's conviction outweighed the prejudicial effect to Alaniz-Silva is also without merit. The trial court applied the correct test as required by Rules 609(a) and 403, that evidence be excluded if the probative value was substantially outweighed by unfair prejudice. Although the trial court did not make an explicit finding, when it is clear from the record that the court considered and weighed probative value against potential prejudice, the lack of express findings does not warrant reversal. See State v. Poland, 144 Ariz. 388, 400, 698 P.2d 183, 195 (1985), aff'd, Poland v. Arizona, 476 U.S. 147 (1986) ("Where, however, it is clear from a reading of the record that the probative value has been balanced against the prejudice, a specific finding need not be made."); State v. Beasley, 205 Ariz. 334, 337, ¶ 15, 70 P.3d 463, 466 (App. 2003) (explaining reversal is not warranted based on lack of findings when "it is clear the necessary factors were argued, considered, and balanced by the trial court as part of its ruling"). Here, it is clear that the court considered and weighed the probative value of Brother's conviction against the potential prejudice to Alaniz-Silva because it heard the parties' arguments regarding relevance which included that Brother stated that the victim seemed nervous, but did not mention that he appeared intoxicated. The victim also helped Brother jump his vehicle before heading to S.E.'s ranch. Brother's testimony was relevant to dispute the defendants' claims of justification and the victim's drunkenness. However, Brother also began to refuse to answer the State's questions, prompting the State to impeach him with his prior conviction and to successfully move the court to declare Brother a hostile witness. The court acknowledged the potential prejudice to the defense before denying the motion for mistrial.
¶15 Rule 609(a)(1)(A) favors admission of prior convictions by requiring that such evidence "must be admitted" against non-defendant witnesses absent a showing of substantial prejudice. (Emphasis added.); see State v. Hatch, 225 Ariz. 409, 412, ¶ 11, 239 P.3d 432, 435 (App. 2010) ("Conviction of a felony is material to a witness's credibility." (citation omitted)). Here, the jury was instructed about the credibility of witnesses and that it may only consider a witness's prior conviction insofar as it relates to the witness's credibility. We presume the jury followed these instructions, thus precluding any prejudice. See State v. Dunlap, 187 Ariz. 441, 461, 930 P.2d 518, 538 (App. 1996).
¶16 Moreover, a defendant who fails to request express findings pursuant to Rule 403 waives that issue on appeal absent fundamental error. See In re Commitment of Jaramillo, 217 Ariz. 460, 465, ¶ 18, 176 P.3d 28, 33 (App. 2008). Here, although the court did not make specific findings "the record sufficiently demonstrates that the necessary factors were argued, considered, and balanced by the trial court as a part of its ruling," id. (internal quotation marks and citation omitted). Even assuming the trial court abused its discretion by admitting the evidence, which it did not, Alaniz-Silva has not demonstrated any prejudice warranting reversal and waived any objections to lack of specific findings.
¶17 We also reject Alaniz-Silva's argument that the prior conviction had to be sanitized. Rule 609(a) does not require a prior conviction be "sanitized" when admitted to impeach a witness's credibility. See State v. Harrison, 195 Ariz. 28, 33, ¶ 23, 985 P.2d 513, 518 (App. 1998). Although Arizona case law has consistently approved of sanitization to limit the risk of prejudice, it is nonetheless a matter within the trial court's discretion. State v. Montano, 204 Ariz. 413, 426, ¶ 66, 65 P.3d 61, 74 (2003), supplemented on different grounds by 206 Ariz. 296, 77 P.3d 1246 (2003). Even though Brother's prior felony conviction was for a similar offense to the one alleged against Alaniz-Silva, the court acted within its discretion to determine the prejudicial effect of Brother's unsanitized conviction did not outweigh its probative value. See State v. Moya, 138 Ariz. 12, 14, 672 P.2d 964, 966 (App. 1983) (holding "though some of the defendant's prior felony convictions were for the same offense," the potential prejudice did not per se outweigh the probative value). Alaniz-Silva's co-defendant argued during the motion for mistrial that the nature of Brother's felony did not bear on the issue of credibility, and therefore it should have been sanitized. The trial court found that the nature of the prior conviction was relevant and did not need to be sanitized. The trial court is vested with "broad discretion in deciding whether to admit evidence of a felony conviction for impeachment purposes." Wilson v. Riley Whittle, Inc., 145 Ariz. 317, 324-25, 701 P.2d 575, 582-83 (App. 1984).
¶18 Even if the conviction should have been sanitized, we find any error harmless, see State v. Bolton, 182 Ariz. 290, 303, 896 P.2d 830, 843 (1995), because the court instructed the jury that Brother's conviction could be considered only in evaluating his believability as a witness, and we presume jurors follow the court's instructions. State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006).
B. Prosecutorial Misconduct
¶19 To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor's misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998) (citation omitted) ("Reversal on the basis of prosecutorial misconduct requires that the conduct be so pronounced and persistent that it permeates the entire atmosphere of the trial."). Alaniz-Silva "must establish that (1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying [him] a fair trial." State v. Dixon, 226 Ariz. 545, 549, ¶ 7, 250 P.3d 1174, 1178 (2011) (internal quotation marks and citation omitted). To determine whether prosecutorial misconduct permeated the entire trial, the court must consider the cumulative effect of the misconduct. Id.
¶20 Alaniz-Silva contends that Brother contributed nothing to the State's case, and that the State's entire purpose in calling him to the stand was to "tar [the defendants] with his brush." Alaniz-Silva claims that this was reversible error because the knowledge that the defendants have a felon as a brother so prejudiced the jury as to make a fair trial impossible. We disagree.
¶21 The trial court found no prosecutorial misconduct and that Brother's testimony was relevant. We find no abuse of discretion. "The test for relevance is whether the offered evidence tends to make the existence of any fact in issue more or less probable." See Ariz. R. Evid. 401; State v. Fulminante, 193 Ariz. 485, 502, ¶ 57, 975 P.2d 75, 92 (1999). "The trial court has considerable discretion in determining the relevance and admissibility of evidence, and we will not disturb its ruling absent a clear abuse of that discretion." State v. Bigger, 227 Ariz. 196, 208, ¶ 42, 254 P.3d 1142, 1154 (App. 2011) (citation omitted). As we note above, the trial court's finding of relevancy of Brother's testimony was not an abuse of discretion.
¶22 Furthermore, even if admission of Brother's testimony and felony conviction was improper, the cumulative effect of that misconduct did not deny Alaniz-Silva a fair trial, given the weight of the other evidence. See State v. Bass, 198 Ariz. 571, 580, ¶ 39, 12 P.3d 796, 805 (2000) ("[E]rroneously admitted evidence is harmless in a criminal case only when the reviewing court is satisfied beyond a reasonable doubt that the error did not impact the verdict."). Both S.E. and the victim identified the defendants, and both testified that the victim was attacked without provocation. See supra ¶ 3. Only Alaniz-Silva testified that the victim had been drinking; S.E., the victim, and Deputy D.V. all testified to the contrary. See supra ¶ 6. Finally, Alaniz-Silva claimed that he only hit the victim in self-defense, but the extent of the victim's injuries—including two missing teeth—could reasonably have persuaded the jury otherwise. See supra ¶ 3.
¶23 Accordingly, we find that there was no prosecutorial misconduct in presenting Brother's testimony, and that it was proper to impeach him with his prior felony conviction. II. Failure to Dismiss Conviction of Lesser Included Offense
¶24 Alaniz-Silva argues that the jury found him guilty of both aggravated assault and a lesser included offense of misdemeanor assault, and the trial court never struck the lesser included conviction, thus violating double jeopardy principles. The State contends that Alaniz-Silva was charged with only one count of aggravated assault and although the jury should not have returned guilty verdicts for that charge and the lesser included offense, Alaniz-Silva never asked the trial court to strike the second verdict and the court never entered sentence on misdemeanor assault. Thus, the State contends there was no double jeopardy violation because the conviction occurs only at sentencing. Alternatively, the State does not object to this Court striking the second jury verdict as a clerical error although it argues such errors should be corrected in the trial court by post-trial motion.
¶25 We agree with the State that there was no double jeopardy violation. The judgment of conviction and sentence occur at the time of oral pronouncement in open court. Ariz. R. Crim. P. 26.16(a). The trial court entered judgment and sentence only for the single count of aggravated assault. The court properly treated the lesser-included offense as having merged with the greater offense, effectively treating the second jury form as mere surplusage. See United States v. McCaleb, 552 F.3d 1053, 1058 (9th Cir. 2009) (explaining in circumstances where a jury finds a defendant guilty of both a charged count and its lesser-included offense, a trial court "may treat the guilty verdict on the lesser-included offense as surplusage"); State v. Stuart, 168 Ariz. 83, 87, 811 P.2d 335, 339 (App. 1990) ("The jury's verdict on the lesser-included offense constituted mere surplusage to the verdicts returned . . . ."). Although merely surplusage, because the State does not object to our striking the second verdict form, we strike it to clarify the record. III. Final Judgment Incorrectly Citing to A.R.S. § 13-3601
¶26 Alaniz-Silva and the State agree the superior court erred in the judgment by referring to A.R.S. § 13-3601, dealing with domestic violence offenses. The parties agree the reference was erroneous because the State had withdrawn the allegation of a domestic violence offense prior to trial. Neither party contends the reference affected the sentence imposed. The parties disagree whether we should modify the conviction to delete this clerical error or remand this issue to the trial court to modify the judgment.
¶27 Generally, the proper procedure to correct this clerical error would be for Alaniz-Silva to file a post-trial motion with the trial court. See Ariz. R. Crim. P. 24.4 ("Clerical mistakes in judgments . . . may be corrected by the court at any time after such notice, if any, as the court orders."); State v. Chavarria, 116 Ariz. 401, 402, 569 P.2d 831, 832 (1977) ("When a party believes that there is a clerical error in the record, the proper procedure is to bring a motion in the trial court under [Ariz. R. Crim. P.] 24.4, so that the trial court may determine if in fact there is an error in the record and, if so, order the error corrected."). However, we have authority to "modify the action of the lower court and issue any necessary and appropriate orders." Ariz. R. Crim. P. 31.17(b); see also id. at cmt. ("Section (b) is meant to encompass the powers granted by [A.R.S. § 13-4036] . . . and includes . . . modifying . . . any order made by the lower court . . . ."); A.R.S. § 13-4036 (2010) (permitting appellate court to modify judgment "or make any order which is consistent with the justice and the rights of the state and the defendant").
¶28 There is no need to remand the case to have the superior court correct an agreed-upon clerical error. Accordingly, we modify the judgment by striking reference to A.R.S. § 13-3601.
CONCLUSION
¶29 For the reasons stated, we affirm Alaniz-Silva's conviction and sentence for aggravated assault. However, we strike the second jury verdict finding him guilty of misdemeanor assault, and strike any reference to A.R.S. § 13-3601 in the judgment.