Opinion
No. 1 CA-CR 14-0778
11-10-2015
STATE OF ARIZONA, Appellee, v. ROBRINA LENATTE COLE, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Christopher M. DeRose Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Jeffrey L. Force Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR-2013-445655-004
The Honorable Rosa Mroz, Judge
REVERSED AND REMANDED WITH INSTRUCTIONS
COUNSEL Arizona Attorney General's Office, Phoenix
By Christopher M. DeRose
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Donn Kessler delivered the decision of the Court, in which Judge Andrew W. Gould and Judge Patricia K. Norris joined. KESSLER, Judge:
¶1 Robrina Lenatte Cole appeals from the Maricopa County Superior Court's denial of her motion for judgment of acquittal pursuant to Arizona Rule of Criminal Procedure "Rule" 20. For the following reasons, we reverse and remand this matter to the superior court to vacate Cole's conviction and enter a judgment of acquittal.
FACTUAL AND PROCEDURAL HISTORY
¶2 Cole was indicted for misconduct involving weapons under Arizona Revised Statutes ("A.R.S.") section 13-3102(A)(4) (Supp. 2015), to which she plead not guilty. Cole asserted defenses to the charge including lack of a prior conviction.
We cite to the current versions of all statutes unless they were amended after the underlying events in a manner which would affect the result of this appeal.
¶3 At trial, the State called two witnesses to present its case-in-chief, MF of the Phoenix Police Department and AM of the Clerk of Court for Maricopa County. MF testified that she came into contact with Cole on the evening of September 19, 2013, while conducting a separate investigation at the light rail station on 19th Avenue and Montebello in Phoenix. She testified that Cole had a gun in her purse and she removed it for purposes of officer safety.
¶4 The State offered evidence of a minute entry regarding a prior 2011 case as Exhibit 2. MF testified that Exhibit 2 showed a prior felony conviction in case number CR-2011-105280-002. MF identified that in CR-2011-105280-002, the defendant's name was Robrina Cole, with a date of birth of September 17, 1969, the defendant pled guilty to a felony, and was sentenced in 2011.
¶5 The State also offered evidence of an affidavit of a records search conducted in correlation to CR-2011-105280-002, as Exhibit 1. AM identified the affidavit and stated that in CR-2011-105280-002, a search of the court docket was conducted and found no application, or order, for restoration of civil rights for the defendant named Robrina Cole. She also identified Exhibit 2 as a sentencing memorandum which stated that a defendant Cole was charged with a felony conviction. AM testified that she does not know if the information provided in Exhibit 2 (for CR-2011-105280-002) is related to Cole, including whether the fingerprint matches Cole.
¶6 The State rested its case and Cole moved for a judgment of acquittal pursuant to Rule 20(a). Cole argued, in part, that there was no evidence linking her to the prior conviction in CR-2011-105280-002, aside from a matching first and last name.
¶7 The court denied Cole's Rule 20(a) motion on the basis that the same name presented in the prior felony conviction, although circumstantial, was sufficient evidence to submit the case to the jury. Cole was subsequently convicted of misconduct involving weapons, which she timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2003), -2101(A)(1) (Supp. 2015), 13-4031 (2010), and - 4033(A)(1) (2010).
STANDARD OF REVIEW
¶8 On appeal, we review the trial court's decision regarding a Rule 20 motion for judgment of acquittal de novo, "viewing the evidence in a light most favorable to sustaining the verdict." State v. West, 226 Ariz. 559, 562, ¶ 15 (2011) (internal citation omitted).
DISCUSSION
¶9 Cole argues the trial court erred in denying her Rule 20(a) motion for judgment of acquittal because the State did not present substantial evidence that she was a prohibited possessor.
Pursuant to A.R.S. § 13-3102(A)(4), a prohibited possessor must not knowingly possess a deadly weapon. Cole does not contest on appeal the possession of a gun in her purse on September 19, 2013.
¶10 Pursuant to Rule 20(a), "the court shall enter a judgment of acquittal of one or more offenses charged . . . after the evidence on either side is closed, if there is no substantial evidence to warrant a conviction." Substantial evidence can be circumstantial or direct, West, 226 Ariz. at 562, ¶ 16, and is "more than a mere scintilla of evidence," but rather, enough "evidence that reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt," State v. Stroud, 209 Ariz. 410, 411-12, ¶ 6 (2005) (internal quotations omitted). A prohibited possessor is any person "[w]ho has been convicted . . . of a felony . . . and whose civil right to possess or carry a gun or firearm has not been restored." A.R.S. § 13-3101(A)(7)(b) (Supp. 2015). The state is required to "prove [a]ll the elements of the crime charged against [the defendant,] including the fact of the prior conviction." State v. Pennye, 102 Ariz. 207, 208 (1967).
¶11 At the time Cole moved for a judgment of acquittal, the following evidence was before the jury: (1) the defendant's name in the current action is Robrina Cole, (2) Exhibit 1, an affidavit from the Clerk of Court's office of Maricopa County, showing no results for an application, or order, to restore civil rights for the defendant Robrina Cole in CR-2011-105280-002, and (3) Exhibit 2, a sentencing memorandum for CR-2011-105280-002, against a defendant named Robrina Cole with a date of birth of September 17, 1969, who pled guilty to a felony conviction, and was sentenced in 2011.
The State did not present evidence of the middle name of the Robrina Cole in CR-2011-105280-002. However, even an unusual matching first, middle, and last name, is insufficient to establish identity for the purpose of proving a prior conviction. See Pennye, 102 Ariz. at 208; see also State v. Terrell, 156 Ariz. 499, 503 (App. 1988), superseded by statute on other grounds, A.R.S. § 13-604, as recognized in State v. Cons, 208 Ariz. 409 (App. 2004). --------
¶12 The only evidence connecting the Robrina Cole in the current action to the prior conviction in CR-2011-105280-002 was a matching first and last name. A matching name alone is insufficient evidence of identity for purposes of proving a prior conviction. See Pennye, 102 Ariz. at 208 ("[T]he mere identity of a name on an exemplified copy of a prior conviction and the defendant's name, is not sufficient evidence to rebut the presumption of innocence . . . ."); see also State v. Terrell, 156 Ariz. 499, 503 (App. 1988), superseded by statute on other grounds, A.R.S. § 13-604, as recognized in State v. Cons, 208 Ariz. 409 (App. 2004) (stating an unusual name, physical presence within Maricopa or Pinal County, and a similar description to the previously convicted party is insufficient to prove identity). A matching name is a mere scintilla of evidence, and is not sufficient on its own to support the denial of a Rule 20(a) motion for judgment of acquittal.
¶13 There are several ways the State could establish a prior conviction, the most preferred being a match of fingerprints. State v. Robles, 213 Ariz. 268, 273, ¶ 16 (App. 2006); see also, e.g., State v. Baca, 102 Ariz. 83, 87 (1967) (stating a certified copy of the defendant's record, photograph, and fingerprint card is sufficient evidence of a prior conviction); State v. McCurdy, 216 Ariz. 567, 573, ¶ 15 (App. 2007) (stating evidence of the same name, date of birth, and signature is sufficient evidence of a prior conviction); State v. Van Adams, 194 Ariz. 408, 419, ¶ 37 (1999) (stating evidence of a matching name, date of birth, social security number, description, and trial witness identification is sufficient evidence of a prior conviction). Exhibit 2 contained the fingerprint of the defendant Robrina Cole in CR-2011-105280-002 which the State could have matched to Cole in the present action. The State could have also identified Cole's date of birth to match the date of birth of the defendant in CR-2011-105280-002. However, a matching first and last name alone, are insufficient to establish a prior conviction.
¶14 The State argues there was evidence of the defendant's date of birth in CR-2011-105280-002, and thus, a reasonable inference could be made that Cole is approximately the same age. See State v. Pirela, 65 P.3d 307 (Utah Ct. App. 2003). In Pirela, the State had presented evidence of a matching first and uncommon last name between Pirela to the defendant of the prior conviction, and the defendant's date of birth in the prior conviction. Pirela, 65 P.3d at 310, 313, ¶¶ 8, 29. Pirela also testified on his own behalf, thus, having the opportunity to allege he was not the same individual as the defendant in the prior conviction. Pirela, 65 P.3d at 313, ¶ 29. Under Utah law, an uncommon matching name is sufficient prima facie evidence of identity for purposes of proving a prior conviction. See State v. Aime, 220 P. 704, 708 (Utah 1923); State v. Bruno, 256 P. 109, 110 (Utah 1927). Therefore, a matching name, and an inference of similar age, as well as the opportunity to rebut the prior conviction is adequate evidence to affirm the verdict.
¶15 Pirela is not controlling and is distinguishable from the facts here. In Arizona, a matching name alone is inadequate to satisfy the burden of proving a prior conviction. Pennye, 102 Ariz. at 208. Additionally, a suggested inference of similar age is too tenuous on top of an already inadequate ground, to support the assertion of substantial evidence presented in this case. Furthermore, Cole did not testify on her own behalf at trial, making this case inapposite to the standards asserted in Pirela.
¶16 The State also contends that the evidence of a "geographic nexus," a "chronological tie," and the matching names of Cole to the defendant in CR-2011-105280-002, support the denial of Cole's Rule 20(a) motion for judgment of acquittal. The State argues that the evidence presented demonstrated a "geographic nexus" between Cole and the defendant in CR-2011-105280-002, as both crimes occurred in Maricopa County. See Hollander v. State, 418 P.2d 804, 804 (Nev. 1966) (matching first and unusual last names, along with an exemplified copy of a conviction in Nevada, is "sufficient to justify the jury's conviction."). The State also argues the probative presence of a "chronological tie" between Cole and the defendant in CR-2011-105280-002, as both crimes occurred within a three year time period. The inadequacy of a matching name, coupled with the occurrence of two crimes in a county containing approximately four million people, within a three year time period, is unavailing to support the assertion of substantial evidence identifying a prior conviction to Cole presented in this case. See Pennye, 102 Ariz. at 208; U.S. Census Bureau, State & County QuickFacts (2014), http://quickfacts.census.gov/qfd/states/04/04013.html. We are not persuaded by the State's arguments.
¶17 The record is devoid of sufficient evidence to connect Cole in the present action to the defendant in CR-2011-105280-002. Thus, the State did not carry its burden to prove Cole was convicted of a prior felony and the trial court erred in denying Cole's Rule 20(a) motion for judgment of acquittal. The denial of Cole's Rule 20(a) motion and subsequent conviction are not supported by sufficient evidence, and thus, violate due process. In re Winship, 397 U.S. 358, 364 (1970).
CONCLUSION
¶18 For the foregoing reasons, we reverse and remand this matter. On remand, the superior court is instructed to vacate the conviction and to enter an acquittal pursuant to Rule 20(a).