Opinion
No. 2 CA-CR 2018-0187
02-27-2019
THE STATE OF ARIZONA, Appellee, v. ARTIDORO CORRALES GAXIOLA, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Alexander M. Taber, Assistant Attorney General, Tucson Counsel for Appellee Michael Villarreal, Florence 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NOT FOR PUBLICATION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. S1100CR201701938
The Honorable Joseph R. Georgini, Judge
AFFIRMED
COUNSEL
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Alexander M. Taber, Assistant Attorney General, Tucson
Counsel for Appellee
Michael Villarreal, Florence
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 Artidoro Gaxiola appeals from his conviction of promoting prison contraband that is a deadly weapon or dangerous instrument. He argues there was insufficient evidence from which the jury could conclude the sharpened toothbrush he had admitted possessing was a deadly weapon or dangerous instrument. We affirm.
¶2 We view the evidence in the light most favorable to sustaining the jury's verdict. State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015). Gaxiola, an inmate in a county adult detention center, was seen in June 2017 on a surveillance camera recording concealing a sharpened toothbrush in exercise equipment in the recreation yard. When interviewed, Gaxiola admitted the toothbrush was his. He claimed that he intended to use the toothbrush "to put an incision in his penis . . . so that he can insert a bead." After a two-day trial, the jury found Gaxiola guilty of promoting prison contraband constituting a deadly weapon or dangerous instrument. The trial court sentenced him to an eight-year prison term. This appeal followed.
¶3 Relevant here, a person commits the crime of promoting prison contraband by "knowingly making, obtaining or possessing contraband while being confined in a correctional facility." A.R.S. § 13-2505(A)(3). Contraband includes "any . . . deadly weapon, dangerous instrument, . . . or other article whose use or possession would endanger the safety, security or preservation of order in a correctional facility." A.R.S. § 13-2501(1). Possession of contraband that "is a deadly weapon [or] dangerous instrument" is a class two felony. § 13-2505(G). A "[d]eadly weapon" is "anything designed for lethal use," A.R.S. § 13-105(15), while a "[d]angerous instrument" is "anything that under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or serious physical injury," § 13-105(12).
¶4 As we understand his argument, Gaxiola contends that, because he told the investigating detective that he had intended to use the sharpened toothbrush to make an incision in his penis to insert a bead, and there was no other evidence suggesting how he intended to use the item, the jury could not conclude it was a deadly weapon or dangerous instrument. But, the jury was free to reject his assertion that he intended to use the toothbrush for body modification, particularly in light of evidence suggesting the item would have been a poor tool for the procedure Gaxiola had described. Cf. State v. Lowery, 230 Ariz. 536, ¶ 6 (App. 2012). And, in light of the appearance of the sharpened toothbrush, evidence that it could cause serious injury if used as a weapon, and that in correctional facilities such items were regularly created for use as a weapon, the jury readily could conclude the sharpened toothbrush was a deadly weapon or dangerous instrument.
¶5 We affirm Gaxiola's conviction and sentence.