Opinion
No. 1 CA-CR 11-0045
01-28-2014
STATE OF ARIZONA, Appellee, v. SYLVESTER VALENZUELA CARPIO, Appellant.
Arizona Attorney General's Office, Phoenix By Linley Wilson Counsel for Appellee Ballecer & Segal, LLP, Phoenix By Natalee Segal Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2007-009026-003 DT
The Honorable Janet E. Barton, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Linley Wilson
Counsel for Appellee
Ballecer & Segal, LLP, Phoenix
By Natalee Segal
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in which Judge Margaret H. Downie and Judge Diane M. Johnsen joined. CATTANI, Judge:
¶1 Sylvester Valenzuela Carpio appeals his convictions of first degree murder and conspiracy to commit first degree murder and the resulting sentences. Carpio argues the evidence presented at trial was insufficient to support his convictions. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 The relevant facts, viewed in the light most favorable to upholding the jury's verdict, are as follows. The victim sold marijuana for Raymond Bianco until sometime in 2004 or 2005. In March 2006, Bianco accused the victim of still owing him money. Soon thereafter, Bianco hired co-defendant Israel Legliu to kill the victim. Bianco provided Legliu with a shotgun and a handgun with which to perform the murder. Legliu explained to Fabian Cordova, who was to serve as driver, that "two girls were going to [] pick the person up and drop him off at a park," and "[t]hen he was just going to get killed."
¶3 On the night of the murder, Legliu picked up Carpio and then Cordova. Carpio allowed Legliu to use his cell phone to communicate with the girls while they drove the victim to the park. The victim was uncomfortable at the park, and the girls again communicated with Legliu (using Carpio's phone) to coordinate going to an alternative park.
¶4 At the second park, as Carpio and Legliu got out of the car, Legliu told Cordova to "take off" when he heard gunfire. Carpio and Legliu then retrieved something from the trunk of the car and proceeded into the park. Meanwhile, the victim arrived at the second park and sat on a bench while the two girls drove away, ostensibly to find a restroom. Moments later, two or three individuals, including Legliu, began shooting at the victim and chased him into a nearby street where he was shot and killed.
¶5 After hearing multiple gunshots from multiple weapons, Cordova drove to pick up Carpio, who was standing in the street holding a shotgun. Cordova picked up Legliu further down the street, where he had chased the victim. The three then drove to a different location to meet Bianco, who gave Legliu money and an assault rifle, and Legliu distributed a portion of the money to both Carpio and Cordova.
¶6 During the investigation, police officers recovered from the scene a component of a shotgun shell and handgun shell casings consistent with the weapons provided by Bianco. A search of Bianco's residence also revealed a handwritten list of Legliu's, Carpio's, and Cordova's names.
¶7 The State charged Carpio with first degree murder and conspiracy to commit first degree murder. Before the joint trial of Carpio and Legliu, the court ordered that inculpatory references to Carpio in Legliu's statements to police be redacted for trial. After a 12-day trial, the jury found Carpio guilty as charged. The court sentenced Carpio to concurrent terms of life imprisonment without the possibility of release for 25 years.
¶8 Carpio timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033.
Absent material revisions after the relevant date, we cite a statute's current version unless otherwise indicated.
DISCUSSION
¶9 Carpio challenges the superior court's denial of his Arizona Rule of Criminal Procedure 20 motion for judgment of acquittal on the conspiracy count and argues that the evidence presented was insufficient to support the jury's findings of guilt on both the conspiracy and the first degree murder counts.
¶10 We review the superior court's denial of a Rule 20 motion de novo, viewing the evidence in the light most favorable to sustaining the jury's verdict. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). A judgment of acquittal is appropriate only "if there is no substantial evidence to warrant a conviction." See Ariz. R. Crim. P. 20(a). Similarly, we will uphold a jury verdict against a claim of insufficient evidence if substantial evidence supports the verdict. State v. Stroud, 209 Ariz. 410, 411, ¶ 6, 103 P.3d 912, 913 (2005).
¶11 "Substantial evidence is that which reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt." State v. Davolt, 207 Ariz. 191, 212, ¶ 87, 84 P.3d 456, 477 (2004). Such evidence may be either direct or circumstantial. See West, 226 Ariz. at 562, ¶ 16, 250 P.3d at 1191. We will reverse on the basis of insufficient evidence only if "there is a complete absence of probative facts to support the conviction," recognizing that the weight of the evidence and the credibility of witnesses are matters for the jury to decide. State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (citation omitted); State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995).
¶12 Carpio first challenges his conviction of conspiracy to commit first degree murder. Conviction of conspiracy requires proof that, "with the intent to promote or aid the commission of an offense, [the defendant] agrees with one or more persons that at least one of them or another person will engage in conduct constituting the offense." A.R.S. § 13-1003(A). An overt act in furtherance of the offense is not required where the object of the conspiracy is murder. Evanchyk v. Stewart, 202 Ariz. 476, 479, ¶ 9, 47 P.3d 1114, 1117 (2002).
¶13 Carpio argues that no direct evidence established that he participated in planning or agreed to commit the murder, that the evidence instead suggested that although he was present and perhaps willing to threaten or assault the victim, he had no intent and made no agreement to commit murder. But the State presented substantial evidence, both direct and circumstantial, from which the jury could reasonably infer the intent and the agreement necessary to support the conspiracy conviction.
¶14 On the way to the park, Carpio, sitting next to Legliu, allowed Legliu to use his cell phone to coordinate where to meet the victim. When they arrived at the second park, before the murder, Carpio was present as Legliu told their driver, Cordova, to "take off" when he heard shots. Both Legliu and Carpio then retrieved something from the trunk, which the jury could reasonably infer to be the handgun and shotgun fired soon thereafter. These circumstances permit the inference that Carpio knew the plan was to kill the victim, not simply threaten him, and that Carpio was a willing, rather than accidental or unwitting, participant.
¶15 A witness saw two or three individuals, including Legliu, shooting at the victim. Given evidence that Cordova remained behind to drive the car, the jury could reasonably infer that Carpio was the second shooter. Indeed, after the shooting, Carpio had a shotgun, consistent with the "one shot 12 gauge" provided by Bianco to be used in the murder and consistent with shotgun shell components recovered from the scene. Moreover, police recovered a list with Legliu's, Cordova's, and Carpio's names from Bianco's residence. Evidence that Carpio accepted payment for the murder after the offense suggests he was part of the agreement beforehand. Accordingly, substantial evidence supported the jury's finding of guilt, and the superior court thus did not err by denying Carpio's motion for judgment of acquittal on the conspiracy count.
¶16 Carpio also argues that the jury's request for "clarification regarding proof of membership in conspiracy" shows a lack of substantial evidence supporting his conspiracy conviction. Carpio does not explain, however, how the jury's request for further explanation of the law has any bearing on the question of sufficiency of the evidence. Moreover, the point is essentially moot because, when the court responded requesting an explanation of the question, the jurors informed the bailiff that they no longer required clarification and rendered a verdict without further question. Carpio is not entitled to relief on this ground.
¶17 Carpio also challenges his conviction of first degree murder. Conviction of first degree premeditated murder requires proof that the defendant caused the death of another, intended or knew that his conduct would cause death, and acted with premeditation. A.R.S. § 13-1105(A)(1). The jury may infer intent to kill from the surrounding circumstances, including the use of a deadly weapon. State v. Harwood, 110 Ariz. 375, 378-79, 519 P.2d 177, 180-81 (1974); see also State v. Quatsling, 24 Ariz. App. 105, 108, 536 P.2d 226, 229 (1975). And the agreement to kill a third person inherent in conspiracy to commit murder satisfies the element of premeditation. See Evanchyk, 202 Ariz. at 479, ¶ 10, 47 P.3d at 1117. Additionally, a defendant is criminally accountable as an accomplice if he aids another person in committing the offense. A.R.S. §§ 13-301, -303.
¶18 Carpio argues he was merely present at the murder scene, and that the evidence at trial was inconsistent with him committing or aiding Legliu in committing the murder. But a witness saw two or three individuals, including Legliu, shooting at the victim. Although this witness did not specifically identify Carpio as one of the shooters, the jury could reasonably infer Carpio participated based on evidence that he accompanied Legliu from the car, Cordova remained with the car, Carpio had the shotgun after the shooting, and that two guns were used, including the shotgun. A different witness testified directly that Carpio had been one of the shooters. Although this second witness was robustly impeached—and, as Carpio notes, the court expressed concerns about this witness's honesty—the jury is the ultimate arbiter of credibility, and we do not reweigh credibility on appeal. See Cid, 181 Ariz. at 500, 892 P.2d at 220.
¶19 In light of the reasonable inference that Carpio was the second shooter, the jury could have inferred the necessary intent to kill from Carpio's use of a deadly weapon. See Harwood, 110 Ariz. at 378-79, 519 P.2d at 180-81. Similarly, the evidence supporting Carpio's agreement to commit the murder—an element of the conspiracy conviction that we now affirm—also provides the requisite evidence of premeditation. See Evanchyk, 202 Ariz. at 479, ¶ 10, 47 P.3d at 1117. Finally, even if Legliu fired the shots that actually killed the victim, Carpio's participation in shooting at the victim is sufficient to sustain his conviction as an accomplice to first degree murder. See A.R.S. §§ 13-301, -303(A)(3).
CONCLUSION
¶20 For the foregoing reasons, we affirm Carpio's convictions and the resulting sentences.