Opinion
2 CA-CR 2023-0075
11-06-2024
The State of Arizona, Appellee, v. Robert Jesus Ocano, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee Emily Danies, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20190999001 The Honorable Javier Chon-Lopez, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee
Emily Danies, Tucson Counsel for Appellant
Chief Judge Staring authored the decision of the Court, in which Presiding Judge Gard and Judge Eckerstrom concurred.
MEMORANDUM DECISION
STARING, CHIEF JUDGE
¶1 Robert Ocano appeals from his convictions and sentences for first-degree felony murder and attempted sexual assault. Ocano argues the trial court erred by denying his motion for acquittal and giving an improper flight instruction to the jury. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against Ocano. See State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). In February 2019, L.S.'s husband returned home to their apartment and found L.S. partially unclothed and unconscious, lying on the floor in a pool of blood. He attempted CPR and used a towel to try to stop her bleeding. While he was administering CPR, he heard a toilet flush inside the apartment and saw Ocano exit the bathroom. Ocano approached L.S.'s husband and said, "I'll kill you," before running out of the apartment. L.S.'s husband recognized Ocano because L.S. had invited Ocano, whom she described to her husband as being "homeless," inside for breakfast the previous morning.
¶3 When police arrived at the apartment, L.S.'s husband told them about Ocano being in the apartment the prior morning, and he described him as a "Native American male wearing dark clothing . . . and a blue backpack." Based on this description, police spotted Ocano across the street. As officers approached him, they observed blood stains on his jeans and shoe. He was not wearing the blue backpack at the time, but officers subsequently located it in a trash container down the street.
¶4 L.S.'s injuries proved fatal. Ocano was arrested and charged with first-degree murder, second-degree murder, attempted sexual assault, and robbery. After an eight-day trial, the jury found Ocano guilty of first-degree felony murder, second-degree murder, and attempted sexual assault, but not guilty on the robbery charge. He was sentenced to life imprisonment with the possibility of release after twenty-five years for first-degree felony murder and a consecutive 3.5-year sentence for attempted sexual assault. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033.
Per the state's request, and pursuant to State v. Canion, 199 Ariz. 227 (App. 2000), the trial court vacated Ocano's second-degree murder conviction at sentencing. See 199 Ariz. 227, ¶ 20 (lesser murder charge must be vacated, not merged, in instances where defendant is found guilty of first-degree felony murder and second-degree murder).
Sufficiency of the Evidence
¶5 Ocano argues the trial court erred by denying his Rule 20, Ariz. R. Crim. P., motion for judgment of acquittal because there was insufficient evidence to support the state's theory that he committed attempted sexual assault as the predicate to felony murder. Specifically, Ocano asserts that "there is no evidence that the victim's death was caused in furtherance of the crime of attempted sexual assault."
¶6 Ocano argues that the state must prove he "took concrete steps with the intent of knowingly engaging in sexual intercourse (penetration) or oral sexual contact with the victim, without her consent, and would have completed the act had he been able to." He contends the state did not have evidence of attempted sexual assault because no DNA was found on L.S.'s body and the medical examiner never tested some of the swabs they collected, which Ocano claims could have definitively concluded whether an attempted sexual assault had occurred.
¶7 Alternatively, Ocano argues that, even if there was evidence of an attempted sexual assault, "there is no evidence that the victim's death was caused in furtherance" of the crime. He claims that there were no witnesses to what happened to L.S. and there was no evidence of when L.S.'s clothing may have been removed. Thus, he contends, the state could not prove L.S.'s death was caused by an action taken in furtherance of sexual assault and the trial court erred in denying his Rule 20 motion.
¶8 We review de novo whether sufficient evidence exists to support a conviction. State v. West, 226 Ariz. 559, ¶ 15 (2011). Evidence meets that standard when the state has "presented evidence that 'reasonable persons could accept as sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt.'" State v. MacHardy, 254 Ariz. 231, ¶ 29 (App. 2022) (quoting State v. Spears, 184 Ariz. 277, 290 (1996)).
¶9 Under A.R.S. § 13-1105(A)(2), a person commits first-degree murder if the person commits or attempts to commit a dangerous felony like sexual assault and, in the course of and in furtherance of the offense, causes the death of another person. In State v. Jones, 188 Ariz. 388, 397 (1997), our supreme court clarified that "in furtherance" means any action "taken to facilitate accomplishment of the felony." Section 13-1105 "does not require that the defendant be charged and convicted of the underlying felony," only that the jury "find[s] that the defendant committed or attempted to commit [the felony]." State v. Lacy, 187 Ariz. 340, 350 (1996) (emphasis added).
¶10 A person commits sexual assault by "intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person." A.R.S. § 13-1406(A). Attempted sexual assault requires intentionally performing "any step in a course of conduct planned to culminate in commission of an offense." A.R.S. § 13-1001(A)(2); see also State v. Zaragoza, 135 Ariz. 63, 67 n.2 (1983) (attempted sexual assault occurs when defendant has made "a step toward committing a sexual assault with the intent to complete the offense"). Intent to complete a crime may be proven by circumstantial evidence. See State v. Harm, 236 Ariz. 402, ¶ 13 (App. 2015); State v. Routhier, 137 Ariz. 90, 99 (1983).
¶11 The evidence is sufficient to support the jury's conclusion that Ocano committed attempted sexual assault, and in furtherance of that felony, killed L.S., resulting in the commission of first-degree felony murder. See A.R.S. §§ 13-1406(A), 13-1105(A)(2) , 13-1001(A)(2). At trial, the state presented evidence that L.S. had been hit prior to her death, which caused trauma to her eye and head and left a laceration across the bridge of her nose. She had also been stabbed in the neck, which severed a major blood vessel, causing her death. Although there was no evidence of vaginal bruising, L.S.'s body was found with no clothing on other than her sports bra, which had been "pulled down" to expose her breast. Her pants and underwear had been removed and were found near her feet. A belt, which did not belong to either L.S. or her husband, was lying next to her body. A kitchen knife with blood-like "reddish matter" was also found in the living room of the apartment.
¶12 DNA samples from the belt found near L.S.'s body and the inside waistband of L.S.'s pants were a "very strong" match to Ocano's DNA profile. DNA from the knife blade matched L.S.'s profile, and swabs taken from the handle of the knife resulted in a strong DNA match to Ocano. Additionally, red stains on Ocano's shoes matched L.S.'s profile. See State v. Burns, 237 Ariz. 1, ¶ 73 (2015) (victim's ripped clothing, facial injuries and blood tying victim to defendant among factors in finding reasonable evidence of sexual assault); see also State v. Cartwright, 155 Ariz. 308, 313 (1987) (killing of victim highly probative for lack of consent). Thus, we conclude the record contains sufficient evidence that Ocano killed L.S. in furtherance of attempting to commit sexual assault, and the trial court did not err in denying Ocano's motion for acquittal. See Lacy, 187 Ariz. at 350 (1996); State v. Fulminante, 193 Ariz. 485, ¶ 28 (1999) (evidence sufficient where "jury could have pieced together a web of suspicious circumstances tight enough that a reasonable person could conclude, beyond a reasonable doubt" defendant committed crime). Flight or Concealment Instruction
¶13 Ocano also contends the trial court erred when it gave a flight instruction over his objection that there was no evidence of immediate pursuit or concealment to warrant such an instruction. He argues that the "evidence does not support a reasonable inference that the flight was the result of an immediate pursuit" because no one chased him. And, he maintains there was no evidence of concealment because he was "walking down a public street just a few blocks from the scene of the crime, making no attempt to conceal himself." Further, Ocano asserts "[t]here was nothing incriminating or of evidentiary value whatsoever" inside the backpack, so it being thrown away did not serve as concealment to any crime. We review a trial court's decision to give a jury instruction for an abuse of discretion. State v. Parker, 231 Ariz. 391, ¶ 44 (2013).
¶14 "A party is entitled to an instruction on any theory reasonably supported by the evidence," State v. Rodriguez, 192 Ariz. 58, ¶ 16 (1998), and for the instruction to be deemed proper, the "slightest evidence" is sufficient, State v. King, 225 Ariz. 87, ¶ 14 (2010). A flight instruction requires "evidence of open flight, as upon pursuit, or concealment, and the manner of leaving the scene must reveal a consciousness of guilt." State v. Celaya, 135 Ariz. 248, 256 (1983).
¶15 In determining whether a flight instruction is appropriate, the trial court must ascertain whether the evidence shows a reasonable inference that the flight or attempted flight was "open." State v. Smith, 113 Ariz. 298, 300 (1976). Second, if no "open" flight occurred, "then the evidence must support the inference that the accused utilized the element of concealment or attempted concealment." Id. See State v. Swinburne, 116 Ariz. 403, 414 (1977) (concealment alone sufficient for flight instruction).
¶16 Simply leaving the scene of a crime is not enough to constitute evidence of flight and a guilty conscience. See Celaya, 135 Ariz. at 256. However, consciousness of guilt can be established by "[r]unning from the scene of a crime, rather than walking away." State v. Lujan, 124 Ariz. 365, 371 (1979). And "neither pursuit by law enforcement nor complete concealment is required to support a flight instruction." Parker, 231 Ariz. 391, ¶ 48.
¶17 Evidence of a defendant's attempt to change his appearance or dispose of accessories may constitute concealment, which is sufficient to support a flight instruction. See Swinburne, 116 Ariz. at 414; State v. Salazar, 173 Ariz. 399, 409 (1992) (throwing away shoes after murder showed consciousness of guilt). Further, a defendant's actions in hiding evidence "is conduct which may indicate a consciousness of guilt." State v. Van Alcorn, 136 Ariz. 215, 218 (App. 1983).
¶18 At trial, the state requested a flight instruction be given to the jury, arguing that Ocano's disposing of the backpack was a form of concealment because it made him look different from the description L.S.'s husband gave to police. Ocano objected to the instruction because there was "no[] evidence of flight or concealment," arguing that "[m]erely leaving the crime scene is not tantamount to" flight. The trial court agreed that Ocano did not "leave as a result of immediate pursuit." However, the court concluded that Ocano may have disposed of the backpack to "look[] different on the street," which constituted concealment. "[G]iven the facts," the court granted the state's request for a flight instruction.
¶19 The record contains sufficient evidence supporting the trial court's conclusion that Ocano's disposal of his backpack constituted concealment. L.S.'s husband saw Ocano wearing the backpack when he ran from the apartment and included it in the description he gave to police. Thus, Ocano's actions in disposing of an identifying accessory could reasonably be interpreted as showing consciousness of guilt. See Van Alcorn, 136 Ariz. at 218; Salazar, 173 Ariz. at 409; Swinburne, 116 Ariz. at 414 (evidence of attempted concealment sufficient for flight instruction).
¶20 Moreover, Ocano did not simply leave the apartment after killing L.S. Instead, he threatened to kill L.S.'s husband and ran away from the scene, which openly demonstrated a consciousness of guilt. See Lujan, 124 Ariz. at 371; Parker, 231 Ariz. 391, ¶ 48. This evidence alone would be sufficient for a flight instruction. See State v. Perez, 141 Ariz. 459, 464 (1984) (We will "affirm the trial court's ruling if the result was legally correct for any reason."). Accordingly, the trial court did not err in giving a flight instruction to the jury.
Disposition
¶21 For the foregoing reasons, we affirm Ocano's convictions and sentences.