Opinion
No. 2 CA-CR 2017-0062 No. 2 CA-CR 2017-0063 No. 2 CA-CR 2017-0065 (Consolidated)
06-26-2018
THE STATE OF ARIZONA, Appellee, v. CHARLES DOMINGUEZ, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Amy Pignatella Cain, 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NOT FOR PUBLICATION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
Nos. S1100CR201502042, S1100CR201502043, and S1100CR201502044
The Honorable Steven J. Fuller, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Amy Pignatella Cain, 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 Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:
¶1 After a jury trial, Charles Dominguez was convicted of four counts of burglary in the third degree. He filed separate appeals for each of his convictions. We affirmed one of his convictions after his appellate counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530 (App. 1999), asserting she had reviewed the record but found no arguably meritorious issue on appeal. State v. Dominguez, No. 2 CA-CR 2017-0061 (Ariz. App. Dec. 20, 2017) (mem. decision). In his three other appeals, which we have consolidated, he argues the trial court erred by denying his motion to sever, there was insufficient evidence to support his convictions, and he was denied his right against self-incrimination when a recording of his police interview was admitted into evidence. For the following reasons, we affirm.
Dominguez has failed to provide any citation to legal authority regarding the right against self-incrimination, in violation of Rule 31.10(a)(7)(A), Ariz. R. Crim. P. However, in our discretion, we address this argument. See State v. Johnson, 212 Ariz. 425, ¶ 68 (2006).
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). On Monday, August 18, 2014, employees of National Gypsum Mine arrived at their Pinal County worksite to discover it had been burglarized over the weekend. The perpetrators had entered the property by breaking the lock off a gate, and once inside the yard gained entry to the shop through a window. Items taken included hand tools, battery chargers, power tools, copper wire, and a pickup truck. Police were contacted, and during their subsequent investigation they photographed a shoeprint left by the perpetrator.
The pickup truck was later found, stripped, in the desert a few miles from the site. --------
¶3 On Tuesday, September 2, 2014, the day after Labor Day, workers from Ashton Contractors arrived at their Aravaipa construction project to find the site had been burglarized over the long weekend. The tool shed had been opened and various hand, power, and personal tools taken, along with thousands of feet of wiring. The site was crisscrossed with shoeprints from two intruders. Workers followed the shoeprints to the site's fence which had been cut to gain entry. They also discovered wheelbarrow tracks. The Pinal County Sheriff's Office was contacted and deputies responded and took photographs of the shoeprints and wheelbarrow tracks.
¶4 On Monday, September 15, 2014, sheriff's deputies were dispatched to two more burglaries in the back country of Pinal County, at the San Carlos Irrigation Project and Copper Basin Railway. At the San Carlos Irrigation Project, a journeyman lineman, responding to a power outage, discovered a power pole that had been cut down. The perpetrator had gained access to the site by cutting through a fence, and three electrical transformers from the top of the pole had been gutted. An electric meter and a well pump motor were also missing. The same Pinal County detective who had responded to the burglary at Ashton was dispatched to San Carlos, where she discovered tire tracks left by an off-road capable vehicle, and a shoeprint that matched those she had observed at Ashton.
¶5 At Copper Basin Railway, workers had arrived that morning to discover the site had been burglarized during the weekend. A chain which had secured the door to a small building had been cut, and a large number of tools had been taken. In the weeks preceding the burglary, Copper Basin had been experiencing thefts of gasoline, and in response the employees had deployed a number of motion sensitive video cameras around the site. These cameras captured images of two men committing the crime and the truck they were driving, though the quality of the images was too poor to identify either man. In addition, the employees had been brushing the ground to allow them to detect footprints indicating where any intruders were entering the site, thus enabling them to show deputies tire and shoe impressions left by the burglars.
¶6 While examining the shoe impressions, the deputy responding to San Carlos contacted a deputy at Copper Basin and asked whether the perpetrators at that location had left any shoeprints. The two exchanged photographs and determined that the shoe impressions from both scenes matched. Around that time, one of the employees of Copper Basin informed deputies that he recognized the truck in the motion sensitive camera photos by its distinctive tires and body repair work, and had seen it parked in town on his way to work. Local police were notified, who located and conducted a traffic stop of the truck. Dominguez, the driver of the truck, was taken into custody. At the time he was arrested, Dominguez was wearing shoes that matched the impressions from all four burglaries.
¶7 In a post-arrest interview, Dominguez confessed to the Copper Basin burglary, and admitted to recently committing at least three other burglaries in the area. He was subsequently transported to his home, where he voluntarily assisted deputies as they executed a search warrant. During this videotaped walk-through, Dominguez identified numerous stolen items, many of which were later identified by employees of National Gypsum, Ashton, and Copper Basin, as having been taken during those respective burglaries.
¶8 Dominguez was subsequently charged as described above. Though the four cases were initially consolidated on the state's motion without objection from Dominguez, he later filed a motion to sever. The court denied his motion, and the four cases were tried together. The jury found Dominguez guilty of all four counts, and he was sentenced to concurrent prison terms, the longest of which was 4.5 years. These timely appeals followed. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).
Discussion
¶9 Dominguez first argues the trial court erred by denying his motion to sever counts. We generally review the denial of a motion to sever for an abuse of discretion, see State v. Murray, 184 Ariz. 9, 25 (1995), however, because Dominguez failed to renew his severance motion during trial, we review for fundamental error only. See Ariz. R. Crim. P. 13.4(c); State v. Laird, 186 Ariz. 203, 206 (1996). To prevail under the fundamental error standard of review, a defendant must show that fundamental error exists and that he suffered prejudice. State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005).
¶10 Multiple offenses may be joined in a complaint if they "are of the same or similar character," "are based on the same conduct or are otherwise connected together in their commission," or "are alleged to have been a part of a common scheme or plan." Ariz. R. Crim. P. 13.3(a). However, the court must sever joined offenses if "necessary to promote a fair determination of any defendant's guilt or innocence of any offense." Ariz. R. Crim. P. 13.4(a). Further, a defendant is entitled to severance of right if the "offenses [are] joined solely under Rule 13.3(a)(1), unless evidence of the other offense or offenses would be admissible if the offenses were tried separately." Ariz. R. Crim. P. 13.4(b).
¶11 Rule 404(b), Ariz. R. Evid., generally precludes the admission of "evidence of other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith." However, other-act evidence may be admitted for other purposes, including proving the identity of the perpetrator of the charged offense. Id. "The identity exception to [Rule] 404(b) applies if identity is in issue, and if the behavior of the accused both on the occasion charged and on some other occasion is sufficiently distinctive, then proof that the accused was involved on the other occasion tends to prove his involvement in the crime charged." State v. Goudeau, 239 Ariz. 421, ¶ 58 (2016), quoting State v. Stuard, 176 Ariz. 589, 597 (1993). Although "[t]he pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature," id., quoting Stuard, 176 Ariz. at 597, "identity in every particular is not required, there must be 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). As Dominguez has conceded, identity was the only disputed issue in these cases. Thus, provided the crimes were sufficiently similar, the state could properly introduce other-act evidence to prove that Dominguez committed them.
¶12 In reviewing whether the other-act evidence would have been cross-admissible under Rule 404(b), "we consider only the evidence before the court when it ruled on the motion to sever." Goudeau, 239 Ariz. 421, ¶ 60. Based on the charging documents, the state's motion to consolidate, Dominguez's motion to sever, and the state's response to that motion (the only evidence available at the time of the court's ruling), we find no fundamental error in the court's denial of the motion to sever.
¶13 The evidence before the trial court at the time of its ruling was that all four burglaries had been committed on weekends in a one-month period at industrial sites in the same area of the back country of Pinal County. Dominguez was arrested while driving the truck photographed at Copper Basin and wearing shoes which matched shoeprints from all four burglaries. During a post-arrest interview, he confessed to the Copper Basin burglary and made admissions regarding the commission of the other burglaries in the area. And during a voluntary walk-through of his house, Dominguez pointed out numerous stolen items, and victims from National Gypsum, Ashton, and Copper Basin were able to identify many of those items as having been taken during those respective burglaries.
¶14 This evidence supports a finding that such evidence would have been cross-admissible under Rule 404(b) on the issue of identity. All the burglaries bore a sufficient evidentiary connection to one another to implicate Dominguez as the perpetrator. Viewed together, the other-act evidence from each burglary was admissible to prove identity for all offenses.
¶15 Dominguez also asserts that the evidence was insufficient to support each of his three challenged convictions for burglary in the third degree, which is defined as "[e]ntering or remaining unlawfully in or on a nonresidential structure or in a fenced commercial yard . . . with the intent to commit any theft . . . therein." A.R.S. § 13-1506(A)(1). "Th[e] question of sufficiency of the evidence is one of law, subject to de novo review." State v. West, 226 Ariz. 559, ¶ 15 (2011). In determining whether the evidence was sufficient to support a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. ¶ 16, quoting State v. Mathers, 165 Ariz. 64, 66 (1990). We draw no distinction between direct and circumstantial evidence, and will not set aside the verdict unless it "clearly appear[s] that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury." State v. Bustamante, 229 Ariz. 256, ¶ 5 (App. 2012), quoting State v. Arredondo, 155 Ariz. 314, 316 (1987).
¶16 We conclude the evidence was sufficient to support the convictions. Dominguez was identified as the perpetrator of the National Gypsum and Ashton Contractors burglaries by his admissions to committing four burglaries with an accomplice; and shoe impressions found at both scenes which matched each other, the shoes he was wearing at the time of his arrest, and shoeprints from the Copper Basin burglary, which Dominguez confessed to committing. Database searches revealed that he had recently pawned or sold copper wire on more than one occasion; and items stolen during the burglaries were not only recovered from inside his home, but identified by him as stolen in the videotaped walk-through shown to the jury.
¶17 Similar evidence presented at trial identified Dominguez as the perpetrator of the San Carlos Burglary: in addition to his unspecific admission that he committed four burglaries, Dominguez specifically admitted taking "brass" from a transformer; admitted to "enter[ing] the part where the transformer was at"; and shoe impressions left at the scene matched the shoes he was wearing at the time of his arrest and shoeprints from the Copper Basin burglary, which Dominguez confessed to committing. Additionally, tire impressions were found at the scene which matched those found at Copper Basin and the truck he was driving when arrested.
¶18 Dominguez next argues he suffered fundamental, prejudicial error when his police interview was played for the jury, "because there was evidence that he invoked his right to an attorney." The Fifth and Fourteenth Amendments to the United States Constitution provide that a suspect has a right against self-incrimination. Malloy v. Hogan, 378 U.S. 1, 6, 10-11 (1964). This right includes the right to counsel during a custodial interrogation. See Miranda v. Arizona, 384 U.S. 436, 478-79 (1966). If a suspect requests counsel, "the interrogation must cease until an attorney is present." Id. at 474; see also Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); State v. Newell, 212 Ariz. 389, ¶ 24 (2006). However, "a statement that might be a request for an attorney" is insufficient, and "law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney." Davis v. United States, 512 U.S. 452, 461 (1994); accord Newell, 212 Ariz. 389, ¶ 25. Thus, "[i]f [a] suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him." Davis, 512 U.S. at 461-62.
¶19 In the instant case, no error, much less fundamental prejudicial error, occurred, because Dominguez did not unequivocally invoke the right to counsel. After the detective gave him the warning required by Miranda, Dominguez acknowledged that he understood those rights, and the following exchange occurred:
Detective: Knowing these rights do you wish to talk to me? . . . It's about . . .
Dominguez: Yeah I would like to talk to you because I don't have nothing to hide . . .
Detective: Okay.
Dominguez: . . . but if I need a lawyer I would like a lawyer if I am going to need one?
Detective: That, I can't . . . give you that. Either you make a decision to talk to me, I can tell you right now, everything I have, I'm one hundred percent convinced you are the person, so now if you want to tell me your side, this is the opportunity, but I can't . . .
Dominguez: Decides to? Decides to what? That's what I am trying to, that's what I want to know, decides to what?
Detective: If you decide to talk to me or not. I already have what I need, I have other people's statements and so forth, so it's up to you. And that is why, when I read you those rights and asked you "do you understand?," and you said "yes." Now I just need to know: do you wish to talk to me about those, about the investigation?The detective then proceeded with the interview. Dominguez did not request that the questioning stop, or otherwise invoke the right to counsel, until the interview concluded, when he asked, "Can I still get a lawyer?" to which the detective answered, "Absolutely."
Dominguez: Okay. I wish to talk to you, but I can stop at any time right?
Detective: Yeah, you can stop at any time, absolutely. That's part of your rights.
¶20 As discussed in Davis, "when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney." Id. at 461. That was the procedure followed by the detective in this case. Even then, Dominguez did not request an attorney, and the detective was thus under no obligation to end the interview. We find no error in admitting the interview into evidence.
Disposition
¶21 Dominguez's convictions and sentences are affirmed.