Opinion
No. 1 CA-CR 14-0308
01-26-2016
STATE OF ARIZONA, Appellee, v. THOMAS DEMELLO, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Michael T. O'Toole Counsel for Appellee The Wood Law Office, Show Low By Ronald D. Wood 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Navajo County
No. S0900CR89000498
The Honorable John N. Lamb, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Michael T. O'Toole
Counsel for Appellee
The Wood Law Office, Show Low
By Ronald D. Wood
Counsel for Appellant
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined.
THOMPSON, Judge:
¶1 Thomas Demello (defendant) appeals from his conviction of driving while under the influence of intoxicating liquor, on a revoked, suspended, and/or cancelled license, and driving with a blood alcohol content of 0.1.% or more by weight, on a revoked, suspended and/or cancelled license, both class five felonies. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In October 1989, the state indicted defendant on one count of driving under the influence of intoxicating liquor on a revoked, suspended, and/or cancelled license, and one count of driving with a blood alcohol content of 0.10% or more on a revoked, suspended, and/or cancelled license. The state also alleged two prior felony convictions, driving under the influence of intoxicating liquor, third offense within sixty months, and burglary. Defendant did not appear at trial and was tried in absentia, resulting in the jury convicting him as charged. The trial court submitted the evidence of the prior convictions to the jury, which found the two alleged prior felony offenses.
¶3 Defendant failed to appear for sentencing, and the trial court issued a warrant for his arrest. Twenty-three years later, defendant was arrested on the outstanding warrant and the sentencing hearing was reset. The trial court sentenced defendant under the repetitive offender provisions to concurrent, mitigated four year prison terms for both counts, with credit for 103 days presentence incarceration.
¶4 Defendant filed a timely notice of appeal. This court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2003), and 13-4033(A)(1) (2010).
DISCUSSION
¶5 Defendant argues that the trial court committed reversible error by finding that the evidence at trial was sufficient to prove that defendant's license was suspended and he had knowledge of that suspension, and defendant had been convicted of two prior felonies. Specifically, defendant contends that because the admitted exhibits from his 1990 jury trial are missing from the record, it is unclear whether sufficient evidence supported his conviction. We disagree.
¶6 In reviewing the sufficiency of the evidence at trial, we view the facts in the light most favorable to sustaining the jury's verdict and resolve all inferences against the defendant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998) (citation omitted). "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)); see also State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987) ("[I]t must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury."). Although the right to appeal includes the right to a complete trial record, the absence of a verbatim record of all proceedings does not automatically require reversal. In re Jorge D., 202 Ariz. 277, 282, ¶ 26, 43 P.3d 605, 610 (App. 2002) (citation omitted). An appellant is responsible for ensuring that the record on appeal contains the necessary documents for the reviewing court, and "[w]hen matters are not included in the record on appeal, the missing portion of the record is presumed to support the decision of the trial court." State v. Mendoza, 181 Ariz. 472, 474, 891 P.2d 939, 941 (App. 1995); State v. Printz, 125 Ariz. 300, 304, 609 P.2d 570, 574 (1980); see also State v. Lujan, 124 Ariz. 365, 370, 604 P.2d 629, 634 (1979) (refusing to "speculate as to [the] exact content" of a requested jury instruction not in the record).
¶7 At trial, the state presented two exhibits pertaining to the status of defendant's license at the time of the offense: defendant's moving violation record, modified to include "the computer printout of the MVD records" (exhibit 1); and defendant's arrest and booking record (exhibit 6). The trial court admitted the exhibits, as modified, without objection. Counsel for defendant discussed exhibit 1, referring to it as defendant's "suspension status" at the time of the offense, and again referred to it during closing argument, asserting that it only indicated that defendant "had a restricted license, suspended in part." The prosecutor challenged defendant's assertion during rebuttal, arguing that exhibit 1 proved that
Defendant's license "has been suspended since 1987." This evidence was submitted to the jury, which convicted defendant of the offenses as charged. Although these exhibits are missing from the record, we presume that the missing portion of the record supports the conviction. See Mendoza, 181 Ariz. at 474, 891 P.2d at 941.
¶8 To the extent defendant also contends that there was insufficient evidence that defendant had knowledge that his license was suspended and that the state failed to prove his two prior felony convictions, he raises such claims for the first time on appeal. Accordingly, defendant has forfeited the right to seek relief on this ground for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005). Defendant cites State v. Masters, 108 Ariz. 189, 192, 494 P.2d 1319, 1322 (1972), to argue that he is not at fault for the missing portions of the record and thus, fundamental error exists and a new trial should be granted.
¶9 In Masters, the court held that where through no fault of the defendant the reporter's transcript is unavailable, and the defendant has shown prima facie fundamental error, a new trial should be granted. Id. However, the court also acknowledged that despite the missing portion of the record, "[a]bsent a showing of reversible error, or at least a credible and unmet allegation of reversible error, we are inclined to hold that the remaining record will suffice to support an affirmation of a verdict and judgment by the trial court." Id. Here, defendant has neither shown that he was not at least partially at fault for the missing exhibits in the record, nor the existence of reversible error.
¶10 Defendant failed to appear for trial and sentencing, and was a fugitive from justice for twenty-three years. We agree with the many jurisdictions that have held that absconding defendants may not be permitted to benefit from such voluntary, unlawful conduct. See e.g. State v. Brenes, 846 A.2d 1211, 1213 (N.H. 2004) ("[C]ourts generally agree that when the records of a defendant's trial have been lost or destroyed while he was a fugitive from justice, neither a new trial nor vacatur of the conviction is warranted."); State v. Verikokides, 925 P.2d 1255, 1256-58 (Utah 1996) (defendant not entitled to new trial where seven-year absence as fugitive resulted in loss of transcript, trial evidence, and exhibits); Bellows v. State, 871 P.2d 340, 343 (Nev. 1994) ("Because appellant's absence led to the loss of his trial transcripts, he may not benefit from his attempt to elude the law."); State v. Brown, 866 P.2d 1172, 1174-75 (N.M. Ct. App. 1993) (upholding denial of new trial where defendant not blameless for lack of transcript when he was fugitive for 13 years). Moreover, the trial court
admitted certified copies of defendant's convictions and sentences in the two alleged prior felony convictions (exhibits 7 and 10), as well as the presentence report for each conviction (exhibits 8 and 9), and the jury subsequently found defendant guilty of both prior offenses. Defendant essentially asks this court to speculate as to whether the missing evidence in the record supported his convictions, which we will not do. See Lujan, 124 Ariz. at 370, 604 P.2d at 634 (refusing to speculate as to the exact content of a missing portion of the record); State v. Zuck, 134 Ariz. 509, 513, 658 P.2d 162, 166 (1982) (stating that matters not included in the record on appeal are presumed to support the conviction). Consequently, we find no reversible error.
CONCLUSION
¶11 For the foregoing reasons, we affirm defendant's convictions.