Opinion
2 CA-CV 2024-0033
09-26-2024
THE STATE OF ARIZONA, Appellee, v. VICTOR GOMEZ ESPINOZA, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Michael T. O'Toole, Assistant Attorney General, Phoenix Counsel for Appellee Rosemary Gordon Pánuco, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100CR202201954 The Honorable Jason Holmberg, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Michael T. O'Toole, Assistant Attorney General, Phoenix Counsel for Appellee
Rosemary Gordon Pánuco, Tucson Counsel for Appellant
Presiding Judge O'Neil authored the decision of the Court, in which Judge Vásquez and Judge Kelly concurred.
MEMORANDUM DECISION
O'NEIL, PRESIDING JUDGE
¶1 Victor Gomez Espinoza appeals from his convictions and sentences for two counts of aggravated assault. He challenges the trial court's decision to admit demonstrative evidence that he argues was irrelevant and prejudicial. Finding no error, we affirm.
Background
¶2 We view the facts in the light most favorable to upholding the jury's verdicts. State v. Rose, 246 Ariz. 480, ¶ 3 (App. 2019). In August 2022, Gomez Espinoza was working at a construction site with V.S. Gomez Espinoza approached V.S., "grabbed [him] by the neck," and then took V.S.'s pocket knife. While Gomez Espinoza struggled to open the knife, V.S. ran away. Gomez Espinoza pursued, but V.S. managed to reach his truck unharmed and drove away. He then reported the incident to the police.
¶3 Gomez Espinoza was still holding the knife when a responding officer arrived. He advanced towards the officer, failing to comply with the officer's orders to stop and drop the knife. The officer shot Gomez Espinoza numerous times. After another officer arrived, Gomez Espinoza was detained and later treated for his injuries.
¶4 After a jury trial, Gomez Espinoza was convicted of and sentenced for two counts of aggravated assault under A.R.S. § 13-1204(A)(2). We have jurisdiction over his appeal. See A.R.S. §§ 12-120.21, 13-4031, 13-4033.
Discussion
¶5 Gomez Espinoza argues the trial court erred by allowing the state to introduce evidence of a test conducted on the knife using ballistic soap. We review the court's evidentiary rulings for an abuse of discretion. State v. King, 226 Ariz. 253, ¶ 7 (App. 2011).
¶6 Gomez Espinoza filed a motion in limine to preclude the state from introducing a video of the test and a detective's testimony describing it. The trial court denied the motion. At trial, a detective testified that he had tested the knife by stabbing it into a brick of ballistic soap to determine "how much force was needed to actually penetrate th[e] soap." Over Gomez Espinoza's objections, the court admitted photos portraying the knife lodged into the soap and a video depicting the knife being stabbed into the soap. The detective testified that human flesh is "much softer than the soap." The state then read into evidence a stipulation by the parties that the knife was "capable of causing death or serious physical injury."
¶7 Gomez Espinoza argues this evidence was "not relevant to any contested issue" because, in light of the stipulation, "[t]here was no dispute that the knife here was a dangerous instrument capable of causing serious bodily injury or death." Relying on Volz v. Coleman Co., 155 Ariz. 563, 565 (App. 1986), reversed on other grounds 155 Ariz. 567, 571 (1987), he asserts that the evidence was inadmissible as demonstrative evidence.
¶8 In Volz, the parties disputed whether a certain product was capable of causing the accident underlying the litigation. 155 Ariz. at 56465. The trial court admitted a videotaped experiment demonstrating how the product could malfunction, even though the experiment involved different conditions. Id. at 565. We affirmed the court's admission of the video. Id. We explained that when demonstrative evidence is used to replicate "the litigated event, courts generally insist that conditions in the experiment substantially match the circumstances surrounding that event." Id. But when demonstrative evidence is instead "more in the nature of a demonstration, it is appropriately admitted if it fairly illustrates a disputed trait or characteristic." Id.
¶9 Contrary to Gomez Espinoza's argument, our conclusion in Volz does not imply that demonstrative evidence is admissible only when an opposing party actively contests the trait or characteristic the evidence is designed to illustrate. Id.; see also Rayner v. Stauffer Chem. Co., 120 Ariz. 328, 332 (App. 1978) (demonstrative evidence is relevant to show "general traits" of material involved in controversy). "In general, 'demonstrative evidence is relevant if it illustrates or explains testimony ....'" King, 226 Ariz. 253, ¶ 7 (quoting State v. Luzanilla, 176 Ariz. 397, 405 (App. 1993), vacated in part on other grounds, 179 Ariz. 391, 400 (1994)); see also State v. LaGrand, 153 Ariz. 21, 31 (1987) ("The touchstone of admissibility of any exhibit is relevance.").
¶10 Here, notwithstanding the stipulation, the state bore the burden to prove that the knife was a dangerous instrument by demonstrating that it was "readily capable of causing death or serious physical injury." A.R.S. § 13-105(12); see also A.R.S. §§ 13-1204(A)(2), 131203; State v. Goudeau, 239 Ariz. 421, ¶ 154 (2016) ("[T]he prosecution's burden to prove every element of the crime is not relieved by a defendant's tactical decision not to contest an essential element of the offense." (quoting Estelle v. McGuire, 502 U.S. 62, 69 (1991))). The knife's capacity to cause serious physical injury was an element of the crime and was therefore necessarily a matter in dispute, notwithstanding the stipulation. As with any other evidence, the jury was free to either accept the stipulation or reject it, and the test was relevant to a necessary element of the offense. See Ariz. R. Evid. 401 ("Evidence is relevant if . . . it has any tendency to make a fact [of consequence] more or less probable than it would be without the evidence ...."); see also Ariz. R. Evid. 402 ("Relevant evidence is admissible" unless otherwise precluded by the federal or state constitution, or an applicable statute or rule).
¶11 Gomez Espinoza nonetheless argues the evidence was unfairly prejudicial because he did not actually stab the victims, and "needlessly cumulative" given the other evidence demonstrating that the knife was a dangerous instrument. The trial court "may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice . . . or needlessly presenting cumulative evidence." Ariz. R. Evid. 403. We rely "heavily" on a trial court's Rule 403 balancing and defer "extensively" to its determination. State v. Gomez, 250 Ariz. 518, ¶ 15 (2021); see also State v. Harrison, 195 Ariz. 28, ¶ 21 (App. 1998) (we view evidence in "light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect." (quoting State v. Castro, 163 Ariz. 465, 473 (App. 1989)), approved 195 Ariz. 1, ¶ 17 (1999). The court did not abuse its discretion in admitting the evidence here. Gomez, 250 Ariz. 518, ¶ 15.
To the extent Gomez Espinoza argues the trial court erred in admitting the evidence without an express finding that the probative value was not substantially outweighed by unfair prejudice, we reject this argument. See State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 33 (App. 2013) (affirming "implicit determination" that evidence permissible under Rule 403).
¶12 The limited purpose of the ballistic-soap test was made clear to the jury. The detective testified that the video was intended "to give a good demonstrative of how much force it took to actually penetrate that ballistic soap." Further, Gomez Espinoza has not shown that the evidence suggested he had actually stabbed one of the victims or that it otherwise unfairly prejudiced him. See State v. Schurz, 176 Ariz. 46, 52 (1993) (explaining unfair prejudice means "undue tendency to suggest decision on an improper basis" (quoting Fed.R.Evid. 403, advisory committee note)). V.S. testified that he was not cut by the knife, and the responding officer testified that he "personally never saw [Gomez Espinoza] try to stab anybody." Both parties reiterated during their closing arguments that no one was stabbed.
¶13 Nor was the evidence needlessly cumulative. The responding officer testified that during the incident, he had thought the knife was "going to cause serious bodily injury or death to [him]," but there was no evidence that he had knowledge of the broken tip at the time. Although the detective testified that he had investigated other cases with similar "smaller-bladed objects" where individuals were "seriously injured," the ballistic-soap test demonstrated that the knife could cause such injury even with a broken tip.
Disposition
¶14 We affirm Gomez Espinoza's convictions and sentences.