Opinion
No. 2 CA-CR 2016-0197
05-06-2019
THE STATE OF ARIZONA, Appellee, v. ADAM ABEL CHAVEZ, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee Attorneys for Freedom Law Firm, Chandler By Marc J. Victor 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NOT FOR PUBLICATION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. S1100CR201302293
The Honorable Kevin D. White, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee Attorneys for Freedom Law Firm, Chandler
By Marc J. Victor
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Espinosa concurred. EPPICH, Presiding Judge:
¶1 After a jury trial, Abel Chavez was convicted of first-degree felony murder, armed robbery, kidnapping, aggravated assault, misconduct involving weapons, and unlawful flight from a law enforcement vehicle. He now appeals, arguing the trial court committed several errors requiring a new trial. 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. See State v. Allen, 235 Ariz. 72, ¶ 2 (App. 2014). In 2013, Chavez and M.C. robbed a store after holding the cashier at gunpoint and tying her hands behind her back using zip ties. When the two men had left and the cashier was able to release her hands, she called 9-1-1 to report the robbery.
¶3 As a deputy sheriff was responding to the store, he noticed a car leaving the area at a high speed. The deputy pursued and ultimately rammed the car, immobilizing it. Chavez and M.C. left the car and fled into a nearby field. The deputy fired at the two men, killing M.C. and wounding Chavez, whom the deputy then arrested. A search of the car, which was registered to Chavez's grandparents, revealed two handguns, zip ties, a safe from the store, and a police scanner. After reviewing surveillance video of the armed robbery, law enforcement determined the handgun found in the driver's seat of the car matched the handgun Chavez had used in the robbery.
¶4 Chavez was convicted as described above. The trial court sentenced him to a life term of imprisonment, followed by concurrent and consecutive sentences totaling 43.75 years. We have jurisdiction over Chavez's appeal pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).
Preclusion of Expert Testimony
¶5 Chavez argues the trial court erred by precluding expert testimony that the deputy's use of force was unreasonable. He contends the testimony would have allowed the jury to conclude the deputy's actions were a supervening cause of M.C.'s death, relieving Chavez of liability for felony murder. We review a trial court's evidentiary determinations for an abuse of discretion, and will not reverse its relevancy or admissibility rulings absent a clear abuse of its considerable discretion. State v. Davis, 205 Ariz. 174, ¶ 23 (App. 2002).
Chavez argues we should review the trial court's ruling de novo because it denied him his constitutional right to present a defense. We have previously concluded the application of the rules of evidence alone does not impinge upon that right. See State v. Abdi, 226 Ariz. 361, ¶ 32 (App. 2011); see also State v. Foshay, 239 Ariz. 271, ¶ 36 (App. 2016). Because Chavez's argument is premised upon the court's application of the rules of evidence, and he does not argue the rules were applied in a "mechanistic" way that would violate his right to present a defense, State v. Carlson, 237 Ariz. 381, ¶¶ 36-37 (2015); see also Foshay, 239 Ariz. 271, ¶ 36, we limit our review to whether the rules were properly applied.
¶6 Before trial, the state moved to preclude expert testimony regarding the deputy's use of force. The motion was based on a report issued by Thomas Streed, a psychologist and former detective, which included his opinions that, inter alia, there was "no evidence" that the deputy had been threatened directly when he shot at Chavez and his codefendant and that the deputy "may have been affected by estimator variables that influenced his judgment of the immediate threat he was . . . facing." (Emphasis omitted.)
¶7 The state argued Streed's proposed testimony, which was not apparently based on Pinal County Sheriff's standards, was improper and irrelevant, and contended any probative value was outweighed by the danger of unfair prejudice to the state's case and the potential of the evidence to mislead the jury. The state also argued Chavez had failed to comply with the disclosure requirements of Rule 15.2, Ariz. R. Crim. P. In response, Chavez asserted the proposed evidence was essential to his constitutional right to present a defense, and argued the expert's testimony was relevant and admissible.
¶8 The trial court granted the state's motion, limiting Chavez's ability to mention Streed's opinion in his opening statement due to the late disclosure, and barring parts of his proposed testimony based on "evidentiary grounds," concluding the evidence was not "relevant to any material issues in the case" and would "confuse . . . or mislead the jury." It barred Streed from offering his opinions about the lack of evidence of direct threat to the deputy and the "estimator variables" which influenced his judgment of the threat he was facing. The court also precluded the expert from testifying about "department policy or standards or best practices in law enforcement and whether the officer's actions and decisions comported with those policies and standards," and "whether in his opinion the officer used excessive force."
¶9 Evidence that has any tendency to make a fact of consequence more or less probable is relevant and generally admissible. See Ariz. R. Evid. 401, 402. Pursuant to Rule 403, Ariz. R. Evid., however, relevant evidence may be excluded if "its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."
¶10 A person commits first-degree, felony murder if "[a]cting either alone or with one or more other persons the person commits or attempts to commit [a predicate felony] and, in the course of and in furtherance of the offense or immediate flight from the offense, the person or another person causes the death of any person." A.R.S. § 13-1105(A)(2). "[W]here the killing 'emanates' from the crime itself, and is a natural and proximate result thereof, it is committed in furtherance of the felony within the meaning of the statute." State v. Lopez, 173 Ariz. 552, 555 (App. 1992). "[T]he proximate cause of a death is a cause which, in natural and continuous sequence, produces the death, and without which the death would not have occurred." State v. Smith, 160 Ariz. 507, 510 (1989).
¶11 Even when a defendant is not the sole cause of the death, the defendant may be liable. See State v. Pesqueira, 235 Ariz. 470, ¶ 23 (App. 2014). We have previously stated:
Where an intervening cause results in the victim's death, the defendant is still responsible if his action "creates the very risk of harm that causes the injury." Likewise, an intervening cause will not relieve a defendant of responsibility "when the defendant's conduct increases the foreseeable risk of a particular harm occurring through . . . a second actor."Id. (citations and quotations omitted) (quoting State v. Slover, 220 Ariz. 239, ¶ 11 (App. 2009)). A defendant may be relieved of liability "if an intervening act is the superseding cause of the victim's death," id., but in the criminal context, "an event is superseding only if unforeseeable and, with benefit of hindsight, abnormal or extraordinary," id. (quoting State v. Bass, 198 Ariz. 571, ¶ 13 (2000)).
¶12 Streed's proposed testimony would only have opined that the deputy could have, or should have, acted differently from a law-enforcement perspective. While such evidence may have been probative to determine whether the deputy acted according to best professional practices, on the record before us, nothing in Streed's opinion shows the deputy's conduct was out of line with his department policies or was otherwise unforeseeable, "abnormal or extraordinary." Id. (quoting Bass, 198 Ariz. 571, ¶ 13). The deputy fired upon the two men, who the deputy believed were armed, after they had fled at high speed and had been involved in a collision with his police vehicle.
¶13 The precluded evidence also raised several concerns under Rule 403. By focusing the jury's inquiry on whether the deputy could have avoided the shooting, rather than whether the shooting was a reasonably foreseeable consequence of the criminal episode, the evidence had significant potential to cause unfair prejudice, confuse the issues, and mislead the jury. Thus, to the extent the expert's testimony was relevant under Rule 401, the trial court acted within its considerable discretion in precluding it pursuant to Rule 403. See State v. Fernane, 185 Ariz. 222, 226 (App. 1995) (trial court has discretion to weigh evidence under Rule 403).
Evidence of Other Acts
¶14 Chavez argues the trial court erred in admitting evidence of a prior incident in which he had fled from police at a high rate of speed before stopping in a residential area and fleeing from the car on foot. In that incident, the car was registered to his grandparents and there was a police scanner in the car. Over Sanchez's objection, the court allowed evidence of the prior incident to be admitted at trial, allowing the state to argue that the prior incident showed Chavez, and not M.C., was the driver of the car in the present offense. We review the admission of evidence of other acts for an abuse of discretion. State v. Gulbrandson, 184 Ariz. 46, 60 (1995). "In deciding whether to admit a prior bad act, the trial court is given broad discretion." State v. Romero, 130 Ariz. 142, 144 (1981).
¶15 Pursuant to Rule 404(b), Ariz. R. Evid., evidence of other acts is admissible for limited purposes, including to establish identity. In admitting evidence of other acts for this purpose, the court must consider whether there are "similarities between the offenses in those important aspects 'when normally there could be expected to be found differences.'" State v. Roscoe, 145 Ariz. 212, 216 (1984) (quoting State v. Jackson, 124 Ariz. 202, 204 (1979)).
¶16 There were sufficient similarities between the two offenses to allow the state to introduce evidence of the prior flight in the present case. In both cases Chavez fled from law enforcement at a high speed after contact, bailed from the car and fled on foot, had a police scanner in the car, and used a car registered to his grandparents. Although fleeing at a high rate of speed and fleeing from a car on foot may be common characteristics of many instances unlawful flight, the remaining similarities between the two offenses—possessing a police scanner and driving a car owned by the same third-party—are not. When considered together, the similarities between the prior flight and the present case tend to establish Chavez's identity as the driver, and provided a sufficient basis for the trial court to admit the prior act evidence pursuant to Rule 404(b). We see no abuse of discretion.
¶17 Furthermore, even had the trial court erred in admitting the other act evidence, the error would be harmless in light of the other evidence placing Chavez behind the wheel. See State v. Leteve, 237 Ariz. 516, ¶ 25 (2015) ("In deciding whether error is harmless, the question 'is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.'" (quoting Sullivan v. Louisiana, 508 U.S. 275, 279 (1993))). The car involved in the pursuit, which was regularly driven by Chavez, was registered to his grandparents. The distance between the steering wheel and driver's seat was more consistent with a person of Chavez's height, rather than his taller accomplice. A gun matching the one Chavez was holding in the store surveillance video was found in the driver's seat. Within a day or two of the incident, Chavez told his girlfriend that he had climbed over the passenger seat to get out of the car. And, in a later conversation, when she explained to him that he was being charged with murder because he was the driver, Chavez did not contradict her. On this record, the verdict would not have been affected by the admission of the other act evidence.
Failure to Sever Offenses
¶18 Chavez contends the trial court erred by failing to sever Chavez's charge for weapons misconduct, relying on State v. Burns, 237 Ariz. 1 (2015). Because Chavez did not move to sever the offense below, we review for fundamental error. See State v. Acuna Valenzuela, 245 Ariz. 197, ¶ 7 (2018).
¶19 In Burns, our supreme court concluded the trial court abused its discretion by denying the defendant's motion to sever a charge for misconduct involving weapons from charges of sexual assault, kidnapping, and first-degree murder. 237 Ariz. 1, ¶¶ 7, 36. The court's analysis heavily relied on the fact that evidence of the defendant's prior felony conviction would not have been admissible in the guilt phase of the trial but for joinder of the weapons misconduct charge. Id. ¶ 35.
¶20 Burns is ultimately distinguishable, however. The defendant in that case moved to sever his case before trial; Chavez did not. See id. ¶ 30. Moreover, Chavez's prior felony conviction was admitted by stipulation as evidence to establish his identity as the driver in the case at bar, and therefore would have been admissible even if the weapons misconduct charge had been severed. For these reasons, Chavez's case is more analogous to Acuna Valenzuela, in which our supreme court rejected the defendant's claim of fundamental error, noting that his prior felony conviction was admissible for another proper purpose at trial. 245 Ariz. 197, ¶¶ 7-10. Although the court was required to sever the offense on its own initiative if it was necessary to promote a fair determination of Chavez's guilt or innocence, see Ariz. R. Crim. P. 13.4(a), it was not required to do so under these facts, see Acuna Valenzuela, 245 Ariz. 197, ¶¶ 9-10. We see no error, fundamental or otherwise, in the court's failure to order severance sua sponte.
Jury Instructions
¶21 Chavez also contends the trial court erred in instructing the jury. We review the court's decision to give or refuse a requested instruction for an abuse of discretion and review de novo whether the jury was properly instructed. See State v. Dann, 220 Ariz. 351, ¶ 51 (2009). When an instruction was not requested below, however, we review for fundamental error. See State v. Edmisten, 220 Ariz. 517, ¶ 11 (App. 2009).
Proximate Cause
¶22 Chavez did not request an instruction on proximate cause below, but argues the trial court committed fundamental error by not so instructing the jury. He contends the instruction was necessary because causation was at issue as to whether he was liable for felony murder.
¶23 The trial court did not commit fundamental error by failing to sua sponte issue a proximate cause instruction. See State v. Mott, 187 Ariz. 536, 546 (1997) (trial court did not err in denying requested proximate cause instruction in felony murder case where causation was at issue). The instruction defining felony murder properly included the elements of the crime, including causation. See id. And the instructions as to first-degree murder, considered in their entirety, adequately reflect the law. See State v. Gallegos, 178 Ariz. 1, 10 (1994). We see no error.
Firearm Inoperability
¶24 During closing arguments, Chavez argued the state was required to prove the firearm used in the criminal episode had been operable to sustain a conviction for certain offenses, and contended the state had failed to present any evidence as to that element of the state's case. The state objected, and requested the court to issue a curative instruction explaining firearm inoperability was an affirmative defense, first requiring Chavez to identify some evidence the firearm was inoperable before the state was required to rebut such an assertion. The court granted the state's request and issued amended final jury instructions, including the following curative instruction:
The State need not present proof of operability of a firearm as an element of an offense involving use of a firearm. The question whether a gun is permanently inoperable is an affirmative defense. This means the burden of proof lies with the defendant and the defendant must present evidence demonstrating the weapon was permanently inoperable at trial. Firearm inoperability is not a defense in this case, and you may not consider any argument regarding operability of the firearm in your deliberations.
Based on this additional instruction I have just read to you, you are to disregard any argument that the State had the burden to prove the handgun at issue was not in a permanently inoperable condition, and any such arguments are stricken from the record. You must now follow the amended final jury instructions and disregard any different instructions that may have been given to you in the original final instructions immediately before the parties began their closing argument.
¶25 Chavez argues our courts have treated the question of inoperability as an affirmative defense originating in common law, see, e.g., State v. Rosthenhausler, 147 Ariz. 486, 490-93 (App. 1985); see also State v. Valles, 162 Ariz. 1, 7 (1989) (citing Rosthenhausler), and that such defenses have been abolished by our legislature, see A.R.S. § 13-103. Indeed, in 1997 our legislature amended § 13-103 to abolish common law affirmative defenses. See Ariz. Sess. Laws 1997, ch. 136, § 3. That statute currently provides: "All common law . . . affirmative defenses are abolished. No conduct or omission constitutes . . . an affirmative defense unless it is . . . an affirmative defense under [title 13] or under another statute or ordinance."
¶26 But § 13-103(B) specifically excludes from its abolition of "affirmative defenses" "any defense that . . . denies an element of the offense charged." Inoperability of a firearm is such a defense. Indeed, our past decisions on this defense, although at times referring to it as an "affirmative defense," were based on statutory language, not common-law defenses—specifically that the statutory term "[f]irearm" in the context of weapons misconduct "does not include a firearm in permanently inoperable condition." A.R.S. § 13-3101(4); see, e.g., Rosthenhausler, 147 Ariz. at 490-93; see also State v. Kelly, 210 Ariz. 460, ¶¶ 10-11 (App. 2005) (statutory exception "not an element of the offense that the state must prove").
¶27 In any event, we need not resolve whether the trial court correctly described firearm inoperability as an affirmative defense because we uphold the court's action on other grounds. See State v. Perez, 141 Ariz. 459, 464 (1984) ("We are obliged to affirm the trial court's ruling if the result was legally correct for any reason."). Pursuant to Rule 15.2, Ariz. R. Crim. P., a defendant "must provide written notice to the State specifying all defenses the defendant intends to assert at trial." This includes, but is not limited to, defenses of "alibi, insanity, self-defense, defense of others, entrapment, impotency, marriage, insufficiency of a prior conviction, mistaken identity, and good character." Id. "The underlying principle of Rule 15 is adequate notification to the opposition of one's case-in-chief in return for reciprocal discovery so that undue delay and surprise may be avoided at trial by both sides." State v. Lawrence, 112 Ariz. 20, 22 (1975). "If the court finds that a party violated a disclosure obligation under Rule 15, it must order disclosure as necessary and impose an appropriate sanction" unless the court finds the non-compliance was harmless or the non-disclosed information could not have been disclosed earlier and was immediately disclosed upon its discovery. Ariz. R. Crim. P. 15.7. In considering an appropriate sanction, the court "must determine the significance of the information not timely disclosed, the violation's impact on the overall administration of the case, the sanction's impact on the party and the victim, and the stage of the proceedings when the party ultimately made the disclosure." Id. Rule 15.7 sanctions include, but are not limited to, "precluding or limiting . . . an argument supporting or opposing a charge or defense."
¶28 We conclude Chavez violated his disclosure obligations under Rule 15. He did not provide written notice of his intent to raise firearm inoperability as a defense; the only defense raised in his Rule 15 disclosure was "Insufficiency of State's Evidence." Even if Chavez's inoperability defense is arguably a species of insufficiency defense, it does not excuse his failure to disclose the nature of the defense with more particularity. Indeed, alibi and mistaken identity defenses are specifically enumerated in Rule 15.2 and can be described as insufficiency defenses; each argues the state has failed to prove the defendant's identity beyond a reasonable doubt. And prior decisions on the defense of firearm inoperability, requiring the defendant to first present reasonable doubt as to the operability of the firearm, buttress our conclusion that the defense requires pretrial disclosure. See, e.g., Valles, 162 Ariz. at 7 ("Absent reasonable doubt as to the operability of a firearm, the state has no burden to prove the gun was not permanently inoperable.").
¶29 We further conclude preclusion of Chavez's inoperability defense was an appropriate sanction for his nondisclosure. Chavez failed to explain why he did not provide notice of his defense pursuant to Rule 15.2, and the record reflects no reason he could not have done so. The nondisclosure in this case was significant: the state lacked notice it would be required to address an entire theory of defense. Additionally, the timing of the violation made preclusion the only sensible remedy. The first time the defense was raised or mentioned was during Chavez's closing argument, at the end of a lengthy jury trial and long after the state would have been able to evaluate the merits of the defense or conduct any further investigation to rebut it. See Wells v. Fell, 231 Ariz. 525, ¶ 12 (App. 2013) ("[T]rial by ambush is a tactic no longer countenanced in Arizona courts." (quoting Carlton v. Emhardt, 138 Ariz. 353, 355 (App. 1983))).
¶30 The given instruction had the effect of precluding Chavez's inoperability defense, regardless of whether the instruction properly described it as an affirmative defense. Cf. State v. Kelly, 210 Ariz. 460, ¶ 15 (App. 2005) ("We do not characterize the statutory exception to the prohibited possessor statutes for those whose rights have been restored as a true affirmative defense. However, we agree the exception functions similarly to an affirmative defense . . . ." (citation omitted)). Thus, to the extent there was any error in the instruction provided, it was harmless. See Leteve, 237 Ariz. 516, ¶ 25 (error harmless when guilty verdict clearly unattributable to error). Accordingly, the trial court's use of the instruction to preclude consideration of Chavez's inoperability defense was not error.
Burden of Proof
¶31 At trial, the state requested Revised Arizona Jury Instructions ("RAJI") Standard Criminal 5b(1) (3d ed. 2013), which defined the state's burden to prove Chavez's guilt beyond a reasonable doubt, arguing State v. Portillo, 182 Ariz. 592, 596 (1995), indicated it was the preferred instruction. Chavez instead requested RAJI Stand. Crim. 5b(2), which included the state's proposed reasonable doubt instruction, but additionally defined preponderance of the evidence and clear and convincing evidence. The trial court issued RAJI Stand. Crim. 5b(1).
¶32 On appeal, Chavez renews his assertion that RAJI Stand. Crim. 5b(2) should have been given, arguing the trial court abused its discretion and committed structural error affecting his right to due process. He contends that without the instruction defining clear and convincing evidence, the jury would have been unable to properly evaluate the other acts evidence admitted at trial—which the jury was instructed it could only consider if it found the state had proved the other acts by clear and convincing evidence.
In passing, Chavez also suggests the state improperly argued the jury must be "firmly convinced" of Chavez's guilt during summation. But this language is consistent with both the given and requested jury instructions defining the state's burden of proof beyond a reasonable doubt, and the language of those instructions has been approved by our supreme court. See Portillo, 182 Ariz. at 596. To the extent he suggests the state misstated its burden, this argument is without merit. And to the extent he suggests the jury relied on this definition to consider the evidence of Chavez's prior flight, such error would have benefitted Chavez by requiring the state to prove the prior acts to a higher standard—rendering any error harmless. See Leteve, 237 Ariz. 516, ¶ 25 (error harmless when guilty verdict clearly unattributable to error). In any event, Chavez's argument is unavailing.
¶33 The state correctly notes our supreme court has approved of an unmodified Portillo instruction, see, e.g., Dann, 220 Ariz. 351, ¶ 65, and this court has disapproved of modifications to the language of the instruction, see State v. Sullivan, 205 Ariz. 285, ¶ 20 (App. 2003). To the extent Chavez contends the instruction failed to correctly define the state's ultimate burden of proof, his argument is without merit.
¶34 As to the court's failure to give an instruction defining the clear and convincing standard, there was no error, structural or otherwise. Although the court must find clear and convincing evidence that the defendant committed the other act in order for it to be admitted, see State v. Terrazas, 189 Ariz. 580, 584 (1997) (adopting clear and convincing standard), Chavez has not cited any authority, nor are we aware of any, requiring the jury be instructed it has an independent obligation to apply that standard in order to consider the evidence. In other words, Terrazas set out a test for admissibility—and nothing more.
Revised Arizona Jury Instructions Standard Criminal 26A (3d ed. 2013), which was given in this case, directs jurors that they may consider other act evidence only if proven by the state by clear and convincing evidence. However, the only source cited for that portion of the instruction is Terrazas. Moreover, as noted in the Preface to the revised instructions, they are promulgated by a committee of the State Bar and are no longer approved by the Arizona Supreme Court, except in the context of appellate cases. --------
¶35 Moreover, even had the court erred in failing to define the clear and convincing standard, we cannot agree with Chavez that the error would be structural, but only, at most, harmless. "[S]tructural errors 'deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.'" State v. Ring, 204 Ariz. 534, ¶ 45 (2003) (quoting Neder v. United States, 527 U.S. 1, 8-9 (1999)). Errors are considered structural only "when they 'affect the entire conduct of the trial from beginning to end,' and thus taint 'the framework within which the trial proceeds.'" State v. Henderson, 210 Ariz. 561, ¶ 12 (2005) (quoting State v. Anderson, 197 Ariz. 314, ¶ 22 (2000)); see also Ring, 204 Ariz. 534, ¶ 46 (providing examples of structural error). In the limited instances where structural error occurs, "we automatically reverse the guilty verdict entered." Ring, 204 Ariz. 534, ¶ 45.
¶36 Chavez has cited no authority, and we are aware of none, finding structural error for the trial court's failure to define the term clear and convincing evidence in a criminal case. And we are unpersuaded by Chavez's reliance on case law finding structural error based on defective reasonable doubt instructions. See, e.g., Sullivan v. Louisiana, 508 U.S. 275 (1993). The state's burden of proof beyond a reasonable doubt is the framework through which all evidence in a criminal trial must be viewed. See id. at 281.
¶37 The impact of the purported error was limited to the jury's consideration of Chavez's prior flight from law enforcement to establish his identity as the driver in the present case. Thus, in order to conclude the verdict was affected by the alleged error, we would have to conclude the jury could have found the evidence of Chavez's prior flight was not clear and convincing, such that the jury would have disregarded it. See Leteve, 237 Ariz. 516, ¶ 25 (error harmless when guilty verdict clearly unattributable to error). Such a conclusion is not supported by the evidence here, where the deputy who had arrested Chavez for the prior offense testified to the circumstances surrounding the offense, and, more importantly, the conviction stemming from its commission was admitted by stipulation. Moreover, as noted above, the remaining evidence that Chavez was the driver in this case was sufficiently strong so as to render any consideration of the other act evidence harmless in any event.
Failure to Declare a Mistrial
¶38 Chavez next contends the trial court erred by not declaring a mistrial sua sponte. He argues that manifest necessity required a mistrial after defense counsel was discredited by the court's curative instruction defining firearm inoperability as an affirmative defense. "A declaration of mistrial is the most dramatic remedy for trial error and is appropriate only when justice will be thwarted if the current jury is allowed to consider the case." State v. Lamar, 205 Ariz. 431, ¶ 40 (2003) (quoting State v. Nordstrom, 200 Ariz. 229, ¶ 68 (2001)). Because Chavez did not request a mistrial below, we review for fundamental error. See State v. Escalante, 245 Ariz. 135, ¶ 1 (2018); see also Henderson, 210 Ariz. 561, ¶¶ 19-20. Chavez has not established such error here.
¶39 Chavez has cited no authority, and we are aware of none, requiring a court to sua sponte declare a mistrial due to the perceived tactical errors of trial counsel—although the trial court arguably could have granted one on that basis. See Jones v. Kiger, 194 Ariz. 523, ¶ 12 (App. 1999). And we are not persuaded that justice was thwarted here absent the dramatic remedy of a mistrial. Any prejudice caused by Chavez's closing argument and the resulting curative instruction was effectively remedied when the court allowed him the opportunity to make additional closing argument; Chavez's decision not to take advantage of that remedy does not change its adequacy. We see no error, fundamental or otherwise, in the court's decision.
Motion for Judgment of Acquittal
¶40 Chavez argues the trial court erred in denying his motion for judgment of acquittal because the state "failed to present any evidence Chavez, or an accomplice, possessed an operable firearm." We review the sufficiency of evidence to sustain a conviction de novo, and will reverse a conviction only if no substantial evidence supports it. See State v. West, 226 Ariz. 559, ¶¶ 15-16, 19 (2011).
¶41 Witness testimony, surveillance footage, and the recovery of firearms inside the vehicle used in the robbery established that Chavez and M.C. possessed firearms. And as discussed above, the trial court properly precluded Chavez's firearm-inoperability defense. This argument is without merit.
Additional Claims
¶42 Chavez additionally contends the trial court erred by not recording bench conferences, allowing counsel to waive Chavez's presence for a pretrial hearing, and allowing the admission of certain evidence. But these claims were not raised below, and Chavez has not argued these errors constitute fundamental, prejudicial error on appeal. Accordingly, Chavez has waived his right to review of these claims, and, seeing no patent fundamental error, we decline to consider them further. See State v. Moreno-Medrano, 218 Ariz. 349, ¶¶ 16-17 (App. 2008) (waiver for failure to object below and argue fundamental error on appeal); see also State v. Holder, 155 Ariz. 83, 85-86 (1987) (fundamental error review of constitutional claim waived).
¶43 In his Statement of Issues in the opening brief on appeal Chavez also claims that each of the purported trial errors deprived him of his rights to due process and a fair trial. Based upon our above resolution of the issues, we reject these arguments. Chavez also claims that the errors deprived him of his right to an impartial jury. However, because he fails to develop this argument, we do not address it. See State v. Bolton, 182 Ariz. 290, 298 (1995) (insufficient argument waives claim on appeal).
Disposition
¶44 For all of the foregoing reasons, Chavez's convictions and sentences are affirmed.