Opinion
No. 2 CA-CR 2016-0385
06-08-2018
THE STATE OF ARIZONA, Appellee, v. MANUEL MARTINEZ, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee Rosemary Gordon Pánuco, 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pinal County
No. S1100CR201201533
The Honorable Kevin D. White, Judge
AFFIRMED IN PART; VACATED IN PART AND REMANDED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee Rosemary Gordon Pánuco, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Judge Espinosa and Judge Brearcliffe concurred. EPPICH, Judge:
¶1 Manuel Martinez appeals his convictions and sentences stemming from five residential burglaries. He challenges the trial court's decision not to sever charges related to the different locations. For the reasons that follow, we affirm in part, vacate in part, and remand the case for further proceedings.
Martinez was charged with nine counts. Two of the counts were dismissed at the close of the state's case. Martinez was convicted of the remaining charges.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to sustaining the jury's verdicts." State v. Wright, 239 Ariz. 284, ¶ 2 (App. 2016). In reviewing the trial court's denial of a severance motion, we consider "the evidence before the court at the time the motion was made." State v. Vasquez, 233 Ariz. 302, ¶ 8 (App. 2013), quoting State v. Blackman, 201 Ariz. 527, ¶ 39 (App. 2002). The crimes took place over the course of six weeks within a four-to-five-mile radius in Casa Grande. All five of the break-ins were somewhat similar. In each case, entry was gained by kicking an exterior door. All of the entries occurred during the day on a weekday. No residents were present at the time of the break-ins. No electronic items were taken from the homes. Shoe prints were found at each location; however, at three of the locations the impressions were made by Nike or Skechers brand shoes "of the same size, of the same general type," whereas the other two were made by Converse brand shoes. At two of the locations, Martinez was seen driving a brown or tan car near the crime scenes close in time to the break-ins. Nothing was taken from some of the homes. Jewelry was taken from others. A gun was stolen from one.
The state correctly notes that its written response to Martinez's second motion to sever is not contained in the record on appeal. It is the appellant's duty to ensure the record contains the material to which he takes exception. State v. Zuck, 134 Ariz. 509, 512-13 (1982). When the record on appeal is incomplete, we presume the missing portions of a record support the trial court's ruling. Id. at 513. And we will not speculate as to the contents of the missing portions of the record. State v. Rivera, 168 Ariz. 102, 103 (App. 1990). However, the failure to provide the missing portion of a record does not necessarily prevent full appellate review of an appellant's claim. See, e.g., State v. Geeslin, 223 Ariz. 553, ¶ 10 (2010). The transcript for the hearing on the second motion, as well as the trial court's notes, which were referred to during the court's ruling and included in the record, provide the factual and legal bases for the court's ruling. Moreover, we are obliged to affirm the court's ruling if it is legally correct for any reason, not only those reasons alluded to in the arguments of counsel and the court's ruling. State v. Perez, 141 Ariz. 459, 464 (1984). Accordingly, we conclude the missing response does not prevent review of this claim.
When he was arrested, Martinez was wearing Converse shoes that were "a match" to the prints at the two homes. There was no evidence he owned or possessed Nikes or Skechers.
¶3 Charges arising from each of the burglaries were joined in the same indictment. Before trial, Martinez filed a motion to sever pursuant to Rule 13.4, Ariz. R. Crim. P., arguing he was entitled to severance because the offenses were "inadmissible prior or subsequent bad acts to each other." The trial court denied his motion. Martinez filed a motion to reconsider, which the court denied as well, agreeing with the state that evidence of the separate offenses would be cross-admissible under Rule 404(b), Ariz. R. Evid., to prove modus operandi. Martinez did not renew his motion for severance at trial. He was convicted of seven offenses relating to the home entries and sentenced accordingly. This appeal followed.
¶4 Martinez argues that the court abused its discretion in denying his motions for severance and that the failure to sever the offenses constituted fundamental error affecting his due process right to a fair trial. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).
Severance
¶5 Rule 13.3(a)(1) allows offenses of the same or similar character to be joined in an indictment, information, or complaint. A defendant is entitled to severance of offenses joined under Rule 13.3(a)(1) unless evidence of the other offense or offenses would be admissible under the rules of evidence if the offenses were tried separately. Ariz. R. Crim. P. 13.4(b).
¶6 Rule 404(b), Ariz. R. Evid., allows for the admission of evidence of other acts for limited purposes, including to show modus operandi. Evidence admitted for this purpose need not be identical in every respect, but "there must be similarities between the offenses in those important aspects 'when normally there could be expected to be found differences.'" State v. Stuard, 176 Ariz. 589, 597 (1993), quoting State v. Roscoe, 145 Ariz. 212, 217 (1984).
¶7 Because Martinez did not renew his motion to sever during trial, we review only for fundamental error. Ariz. R. Crim. P. 13.4(c); State v. Gutierrez, 240 Ariz. 460, ¶ 12 (App. 2016). In order to establish fundamental error, Martinez must show error that went to the foundation of the case, took away a right essential to his defense, and was of such a magnitude that he could not have received a fair trial. State v. Henderson, 210 Ariz. 561, ¶ 24 (2005).
¶8 With the exception of the charges arising out of the burglaries on Jahns Place (Counts 5, 6 & 7) and Rodeo Road (Count 2), where Martinez was seen driving a brown or tan car, the trial court erred in denying the motion to sever. Although the offenses bore certain similarities, notably, they were all "door-kick" daytime residential burglaries when residents were absent, those similarities are not so unique as to give rise to the inference that they were likely committed by the same person. See State v. Latino, 25 Ariz. App. 66, 70 (1975). Similarly, leaving behind electronics in favor of taking smaller, more concealable and presumably less traceable items, such as jewelry, does not rise to the level of what could be described as a signature crime. See State v. Hughes, 189 Ariz. 62, 68 (1997) (to establish identity through evidence of other acts, circumstances surrounding other acts must be sufficiently similar as to be like a signature). Even when considered together, these similarities "characterize many crimes without any other connection," and we have previously concluded such similarities are an insufficient basis to refuse severance. State v. Garland, 191 Ariz. 213, ¶ 12 (App. 1998). We therefore conclude the trial court erred in denying the motion to sever.
The state argues that evidence of each of the burglaries is cross-admissible to rebut the testimony of Martinez's brother, Steven Alonso, who claimed responsibility for the offenses. In essence, the state contends that because eyewitnesses identified Martinez with respect to two of the scenes, and Alonso's testimony suggests that a single perpetrator committed all of the offenses, the charges relating to all of the locations were properly joined, an argument that we reject as unpersuasive. We also note that Alonso only claimed responsibility for three of the break-ins.
¶9 Identity was the only disputed issue at trial. Martinez's brother testified he had committed at least some of the offenses, and he gave descriptions that were consistent with details of the crimes, including a description of an encounter one of the victims had with the intruder as he was leaving her residence. The trial court's error in failing to sever Counts 1, 4, and 8 went to the core of Martinez's false-identification defense and was of such magnitude as to constitute fundamental error.
Counts 3 and 9 should have been severed as well, however those counts were dismissed at the close of the state's case.
¶10 In order for Martinez to prevail, it is not enough that he establish fundamental error. He must also demonstrate resulting prejudice. Henderson, 210 Ariz. 561, ¶ 20. "Fundamental error review involves a fact-intensive inquiry, and the showing required to establish prejudice therefore differs from case to case." Id. ¶ 26. And "the prejudicial nature of the . . . error must be evaluated in light of the entire record." State v. Thomas, 130 Ariz. 432, 436 (1981). The error in this case involved the denial of severance, so Martinez "must demonstrate compelling prejudice against which the trial court was unable to protect." State v. Goudeau, 239 Ariz. 421, ¶ 67 (2016), quoting State v. Murray, 184 Ariz. 9, 25 (1995). Because the trial court's error resulted in the admission of otherwise inadmissible evidence, we look to the effect of that evidence on the jury's verdict. See Thomas, 130 Ariz. at 436 (fundamental error mandating reversal occurs when it appears the error "contribute[d] to or substantially affecte[d] the verdict").
¶11 With respect to Count 1, the break-in was captured on video, which was played for the jury. The person depicted was similar in profile to Martinez and had a scar similar to his. As to Count 8, police recovered a baseball cap from the backyard of the residence. Most of the DNA found on the cap matched Martinez. As to those counts, the independent evidence of identification made it highly unlikely that the admission of evidence relating to the other offenses would have affected the jury's verdict. See id. Moreover, the jury was properly instructed to consider the evidence for each offense separately. See Goudeau, 239 Ariz. 421, ¶ 67; State v. Comer, 165 Ariz. 413, 419 (1990) (minimal possibility of juror confusion when instructed to consider counts separately and evidence separate and distinct for each count). We presume the jury followed the court's instructions. State v. Martinez, 230 Ariz. 208, ¶ 40 (2012).
Deoxyribonucleic acid.
¶12 As to Judi Drive (Count 4), however, other than the presence of a Converse shoe print, there was no evidence to tie Martinez to the crime. The state never presented expert testimony to establish the footprints found at the crime scene for Count 4 were an exact match to the shoes Martinez was arrested in. Instead, the strongest evidence of identification based on the shoe print came from a police detective who testified the shoe print found at the crime scene was "consistent" with the print of the shoes Martinez was arrested in. The detective also testified, however, that a new pair of shoes would have left a "similar" print.
In light of this testimony, we see little probative value in the detective's later lay opinion that the shoeprint at the scene matched Martinez's shoes. --------
¶13 Particularly when viewed in light of the entire record, see Thomas, 130 Ariz. at 436, which presented substantial evidence of identification as to the other burglaries, the evidence of other acts resulted in compelling prejudice as to Count 4. And, given the scant evidence of identification offered in support of that offense, we cannot say the other acts evidence did not contribute to or substantially affect the jury's verdict, see id., notwithstanding our general presumption of limiting instruction efficacy, see Martinez, 230 Ariz. 208, ¶ 40. Accordingly, we conclude that Martinez has established both fundamental error and prejudice as to that offense.
Disposition
¶14 For the foregoing reasons, we vacate Martinez's conviction and sentence on Count 4 and remand to the trial court for any further proceedings. In all other respects, Martinez's convictions and sentences are affirmed.