Opinion
No. 1 CA-CR 19-0531
03-09-2021
STATE OF ARIZONA, Appellee, v. RYAN EDWARD BERMEA, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Eric Knobloch Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Dawnese Hustad 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2018-148818-001
The Honorable Jennifer C. Ryann-Touhill, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Eric Knobloch
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Dawnese Hustad
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in which Judge Randall M. Howe and Judge Maria Elena Cruz joined.
PERKINS, Judge:
¶1 Ryan Edward Bermea appeals his conviction and sentence for one count of threatening or intimidating to further the interests of a criminal street gang. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In August 2018, Bermea arrived at a daycare facility to pick up his children. As he arrived, Bermea observed an older student brandishing a stick and approaching his children. Bermea exited his vehicle and began yelling at the student.
¶3 A teacher who worked at the daycare facility followed Bermea's children to the front office, where she witnessed Bermea "yelling aggressively" at another daycare employee. The teacher attempted to interject several times but Bermea demanded the teacher not interrupt him.
¶4 Bermea eventually left the office, pointing at himself and directing the teacher to, "[l]ook at [him]." When the teacher looked, Bermea pointed to a tattoo of the number thirteen on his head and asked, "[d]o you see these numbers: 1-3? I didn't get those for nothing. Watch your back."
¶5 The State charged Bermea with one count of threatening or intimidating "by word or conduct . . . to cause physical injury to [the teacher] . . . in order to promote, further or assist in the interests of . . . a criminal street gang," and one count of assisting a criminal street gang, both class 3 felonies. See A.R.S. §§ 13-1202(A)(3), -2321(B). The State later alleged aggravating circumstances, including a statutory sentence enhancer for "committing any felony offense with the intent to promote, further or assist any criminal conduct by a criminal street gang." See A.R.S. § 13-714.
¶6 At trial, several law enforcement officers testified to prior interactions with Bermea involving his gang affiliations. In particular, a gang detective testified to the significance of Bermea pointing to his tattoo of the number thirteen. According to the detective, "[Bermea] intended to
promote and further" gang activity when he pointed to the tattoo, because he knew the tattoo had meaning.
¶7 The superior court entered a directed verdict in Bermea's favor on the assisting a criminal street gang charge. But the jury found Bermea guilty of threatening or intimidating to further the interests of a criminal street gang.
¶8 Before the aggravation phase, defense counsel and the prosecutor agreed neither party would present evidence during the aggravation proceedings. But after the prosecutor argued, defense counsel informed the prosecutor and trial judge that "[c]ompletely unbeknownst" to him until that moment, Bermea wanted to testify. The prosecutor objected, arguing the parties agreed not to present any evidence during the aggravation proceedings and, if they had, the prosecutor may have changed the nature of his presentation. The trial judge denied Bermea's request to testify and the jury found both aggravating circumstances proven beyond a reasonable doubt.
¶9 The superior court sentenced Bermea to the minimum term of seven years. Bermea timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
DISCUSSION
¶10 Bermea raises two issues on appeal. He argues: (1) the superior court improperly allowed the detective to testify to Bermea's mental state during the commission of the crime and (2) the superior court erred by denying his request to testify during the aggravation phase.
I. Expert Testimony
¶11 Bermea contends the superior court improperly allowed the detective to testify to Bermea's mental state during the commission of the crime. See Ariz. R. Evid. 704(B). Specifically, Bermea challenges three statements.
¶12 First, the detective opined that by directing the teacher's attention to his tattoo of the number thirteen, "[Bermea] intended to promote and further" criminal gangs. Second, the detective explained, "[t]here is a reason why [Bermea] pointed to [his tattoo]. He knows that [it] has meaning." Third, the detective testified "[t]here was no other reason for
[Bermea] pointing to that specific tattoo," other than its affiliation with criminal street gangs.
¶13 We generally review the admission of expert testimony for an abuse of discretion. See State v. Bernstein, 237 Ariz. 226, 228, ¶ 9 (2015). Because Bermea did not object to the expert's testimony at trial, he must show the court abused its discretion by not striking the testimony sua sponte and that this error "was both fundamental and prejudicial." See State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018).
¶14 Bermea cannot meet his burden because any error in allowing the detective's testimony was harmless. See State v. Sosnowicz, 229 Ariz. 90, 98, ¶ 27 (App. 2012) (when testimony is erroneously admitted, we will affirm the verdict if the error was harmless). An error is harmless if it appears beyond a reasonable doubt that the error did not contribute to the verdict obtained. State v. Dann, 205 Ariz. 557, 565, ¶ 18 (2003).
¶15 The identified portions of the detective's testimony were harmless because they were cumulative to Bermea's own admissions. And the statements amounted to a brief exchange in the course of a seven-day trial. Aside from the detective, the jury heard testimony from three other law enforcement officers who documented Bermea's gang affiliations on numerous occasions. The teacher and another daycare employee who personally experienced the altercation with Bermea also testified. Importantly, the detective testified that Bermea admitted he pointed to his tattoo knowing "[it] scares the hell out of people." And uncontroverted evidence established that Bermea obtained the tattoo for the purpose of identifying himself as a member of a particular gang. All of the evidence presented about Bermea's conduct thus supported a conclusion that he intended to intimidate or threaten, and he specifically tied his intimidation or threat to his gang affiliations. The detective's testimony simply added to the otherwise consistent record of evidence establishing Bermea's intent.
II. Aggravation Phase
¶16 Bermea further argues the superior court deprived him of his right to testify. His counsel did not object to the court's denial of Bermea's request to testify. We generally review claims not raised at trial for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). But we need not evaluate whether the superior court erred under this standard. Even assuming error, Bermea cannot establish the denial of his request to testify prejudiced him. See id. at ¶ 20. To establish prejudice, Bermea must prove that, absent the alleged error, there is a reasonable probability that he
could have received a different verdict or sentence. See Escalante, 245 Ariz. at 144, ¶ 29.
¶17 Bermea's conviction under § 13-1202(A)(3) qualifies as a felony offense committed with the "intent to promote, further or assist . . . a criminal street" gang. See A.R.S. § 13-714; see also State v. Harm, 236 Ariz. 402, 409, ¶ 26 (App. 2015). The minimum sentence for a class 3 felony committed with this intent is seven years' imprisonment—the sentence Bermea received. See A.R.S. §§ 13-702(D), -714. The superior court imposed the minimum sentence and the jury's determination at the aggravation phase did not negatively impact his sentence.
¶18 At oral argument, defense counsel argued for the first time that Bermea's inability to testify tainted the jury's aggravation verdict. Although the parties referred to the statutory sentence enhancer as an aggravating circumstance, defense counsel essentially argued that Bermea suffered prejudice because sentence enhancement precluded his probation eligibility. See A.R.S. § 13-714. In response, the State argued the jury's underlying conviction implicitly established the enhancement. Even assuming, without deciding, the statutory sentence enhancer required a distinct element from Bermea's underlying conviction, contra Harm, 236 Ariz. at 408, ¶ 21 (a conviction for threatening or intimidating includes the identical element that makes the § 13-714 statutory sentence enhancer applicable), the parties did not brief this issue. We therefore do not address it. See State v. Edmisten, 220 Ariz. 517, 523-24, ¶ 19 (App. 2009) ("[A]rguments raised for the first time at oral argument are generally waived.").
CONCLUSION
¶19 We affirm because Bermea failed to establish prejudice resulting from the alleged errors he asserts.