Opinion
No. 2 CA-CR 2017-0190
02-21-2018
THE STATE OF ARIZONA, Appellee, v. JOSE FRANCISCO HARO, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee Mark Larkin, Tumacacori 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Santa Cruz County
No. S1200CR201600133
The Honorable Thomas Fink, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Karen Moody, Assistant Attorney General, Tucson
Counsel for Appellee Mark Larkin, Tumacacori
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Jose Francisco Haro appeals his conviction for aggravated assault, domestic violence by strangulation pursuant to A.R.S. § 13-1204(B). He argues his actions did not meet the statutory definition of aggravated assault, domestic violence because his relationship with the victim occurred so long ago that it would be "absurd" to conclude they had the type of relationship contemplated by the statute. See A.R.S. § 13-3601(A)(6). For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 In July 2016, R. met with Haro to return a phone he had left in her vehicle the previous day. Haro was agitated, behaving with "uncontrolled" and "disorderly conduct," and appeared at first not to recognize R. R. tried to calm Haro, who scratched her forehead and put his hand on her throat. At some point, Haro's mother, who was present, called the police and reported that he was "torturing" a woman.
¶3 A police officer arrived and met briefly with Haro's mother. He heard raised voices and "a slapping sound" coming from the room where Haro and R. were located. The officer entered the room, and noticed marijuana in plain view as he approached Haro. The officer decided to arrest Haro for the marijuana, with the assistance of another officer. Haro actively resisted, attempting to walk away, swinging his arms around, and tucking his arms under his body while lying on his stomach to avoid being handcuffed. R. later told officers that she was in a relationship with Haro as of the night of the incident and that they had an "on and off" relationship that included approximately ten sexual encounters during the twelve-month period beginning approximately August 2014.
¶4 The state charged Haro with resisting arrest, kidnapping, and aggravated assault, domestic violence. The charge for aggravated assault required the state to prove Haro and R. had a current or previous "romantic or sexual relationship." See §§ 13-1204(B), 13-3601(A)(6). The trial court granted Haro's motion for acquittal on the kidnapping charge. Haro also moved for acquittal on the aggravated assault charge. Relying on R.'s trial testimony that she had not been in a romantic or sexual relationship with Haro for many years, Haro argued the domestic relationship element was not met because R. did "not consider herself to be, or to have been, in a romantic or sexual relationship with" him. The trial court denied the motion, concluding testimony concerning R.'s statements to law enforcement officers about a recent relationship with Haro were sufficient to allow the jury to find the relationship element had been met.
¶5 The jury found Haro guilty of resisting arrest and aggravated assault, domestic violence. The trial court concluded it was appropriate to suspend any prison sentence, and imposed concurrent, three-year terms of probation. Haro timely appealed his conviction for aggravated assault, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
¶6 Haro argues on appeal that although he and R. had a past romantic "and likely a sexual" relationship, it would be "absurd" to construe § 13-3601(A)(6) to apply to a relationship that ended many years ago. Generally, we review a trial court's interpretation of a statute de novo. See State v. Jensen, 193 Ariz. 105, ¶ 16 (App. 1998).
¶7 We could resolve this matter by finding waiver due to the failure to present adequate argument on appeal or otherwise meaningfully comply with our procedural rules. See Ariz. R. Crim. P. 31.10(a)(7) (opening brief must identify standard of review and include argument with citation to authority and portions of record relied upon); State v. Carver, 160 Ariz. 167, 175 (1989) (summary identification of claim without argument waives claim on appeal). And, in the trial court, Haro merely argued that the statute was "vague," and did not argue that enforcing it as written would lead to absurd results. We question, but decline to decide, whether this was sufficient to preserve the argument for appeal. See State v. Lopez, 217 Ariz. 433, ¶ 4 (App. 2008) (objection on one ground does not preserve issue on another ground); see also State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005) (fundamental error review when defendant fails to object below); State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008) (waiver for failure to argue fundamental error).
¶8 Addressing the merits of Haro's argument, we conclude he has not established that the statute would lead to absurd results. The legislature's decision to provide protection for former romantic or sexual partners is not an unreasonable policy decision. See State v. Estrada, 201 Ariz. 247, ¶ 17 (2001) (result absurd if "so irrational, unnatural, or inconvenient that it cannot be supposed to have been within the intention of persons with ordinary intelligence and discretion"), quoting Perini Land & Dev. Co. v. Pima County, 170 Ariz. 380, 383 (1992). It is not the province of this court to rewrite the statute. See State v. Sepahi, 206 Ariz. 321, ¶ 16 (2003); State v. Florez, 241 Ariz. 121, n.8 (App. 2016). Haro's mere disagreement with the scope of protection does not establish an absurd result or otherwise entitle him to relief.
And, as the trial court found, there was substantial evidence for the jury to find Haro and R. were in a romantic or sexual relationship around the time of the assault. --------
Disposition
¶9 We affirm Haro's conviction and sentence.