Opinion
2 CA-CR 2021-0032
01-06-2022
The State of Arizona, Appellee, v. Vincent Linarez, Appellant.
Mark Brnovich, Arizona Attorney General Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Robert A. Kerry, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20181370001 The Honorable Deborah Bernini, Judge
COUNSEL
Mark Brnovich, Arizona Attorney General Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee
Robert A. Kerry, Tucson Counsel for Appellant
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Eckerstrom and Judge Espinosa concurred.
MEMORANDUM DECISION
VÁSQUE Z., Chief Judge:.
¶1 Following a jury trial, Vincent Linarez was convicted of possession of a deadly weapon by a prohibited possessor and the trial court sentenced him to a presumptive prison term of ten years. On appeal, Linarez argues the court erred by admitting other-act evidence. For the reasons stated below, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdict. State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015). In March 2018, Linarez was driving his girlfriend, C.H., to the hospital when a Pima County sheriff's deputy stopped the vehicle for traffic violations. During the stop, Linarez and C.H. repeatedly denied that there were firearms in the vehicle. After "determining] that [he] needed to impound [the] vehicle," the deputy conducted an on-scene inventory search and located a loaded handgun in the back pocket of the front passenger seat.
During trial, C.H. testified she did not answer the deputy's questions about the presence of firearms in the vehicle and instead asked him what would happen if she did not give a response.
¶3 The deputy interviewed Linarez and C.H. separately and they gave accounts that contradicted themselves and each other. First, they both denied placing the handgun in the vehicle. C.H. later claimed she had placed the handgun in the vehicle at an earlier date and had forgotten about it. C.H. also initially claimed Linarez had not touched the handgun and then admitted he had but only to load it and move it "from place to place." Linarez claimed he had only loaded the handgun for C.H. and then later admitted he had gone shooting with her and it "was the first time that he shot" that type of handgun. At trial, C.H. testified that Linarez had never fired the handgun, even when they had gone shooting together.
¶4 Following the deputy's questioning, Linarez was arrested and indicted for one count of possession of a deadly weapon by a prohibited possessor. Before trial, Linarez filed a motion in limine seeking to prevent the state from introducing evidence that he had possessed a firearm on any date prior to the date of the traffic stop, which the trial court denied. During trial, Linarez moved to prevent the state from arguing that his possessing or firing C.H.'s handgun weeks before the traffic stop itself constituted the charged offense and the court granted the motion, issuing the following limiting, other-act jury instruction:
During questioning by the deputy, Linarez admitted he previously had been convicted of a felony and his right to possess a firearm had not been restored. See A.R.S. §§ 13-3101(A)(7)(b), 13-3102(A)(4).
Evidence that the defendant may have possessed the gun at an earlier date has been presented. You may consider this act only if you find that the state has proved by clear and convincing evidence that the defendant committed this act. You may only consider this act to establish defendant's knowledge, intent, or absence of mistake or accident on March 19, 2018.
¶5 Following a two-day jury trial, Linarez was found guilty and the trial court sentenced him as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
¶6 Linarez argues the trial court erred by allowing the state to introduce evidence that he had "loaded and shot the firearm at an earlier date not charged in the indictment." He maintains such evidence was improper because it implied he "habitually commits illegal or improper acts" and its prejudicial effect and possibility of confusing the jury outweighed its evidentiary value. We review evidentiary rulings for abuse of discretion. State v. Starks, 251 Ariz. 383, ¶ 5 (App. 2021). However, we review the court's interpretation of evidentiary rules de novo. State v. McCartney, 251 Ariz. 478, ¶ 9 (App. 2021).
We do not address Linarez's argument that the trial court erred in ruling the statements were admissible hearsay under Rule 801(d)(2)(A), Ariz. R. Evid., as he has waived that argument by failing to raise it below and failing to allege fundamental error on appeal. See State v. Starks, 251 Ariz. 383, ¶ 6 (App. 2021).
Linarez also contends his statement about going shooting with C.H. being "the first time that he shot a .45"did not establish he shot the handgun by clear and convincing evidence. We disagree as Linarez's own statement provides clear and convincing evidence that he fired the handgun. See State v. Hausner, 230 Ariz. 60, ¶ 69 (2012) (state must prove defendant committed other acts by clear and convincing evidence).
¶7 As an initial matter, the state argues Linarez has waived his arguments on appeal by inviting error and failing to argue the error was fundamental. The state maintains Linarez invited error by conceding below that the other-act evidence was relevant under Rule 404(b), Ariz. R. Evid., and requesting a jury instruction on the use of other-act evidence that he now challenges. The state further contends Linarez failed to raise these issues below and has waived review on appeal by failing to argue fundamental error.
¶8 The invited-error doctrine exists to prevent "a party from injecting error into the record and then profiting from it on appeal." State v. Robertson, 249 Ariz. 256, ¶ 15 (2020) (quoting State v. Rushing, 243 Ariz. 212, ¶ 14 (2017)). Since the doctrine precludes appellate review even when the error amounts to fundamental, prejudicial error, we are cautious in applying the doctrine "unless it is clear from the facts that the party asserting the error on appeal is responsible for introducing the error into the record." Id. Because the party inviting the error must engage "in affirmative, independent action to create the error or argue in favor of it," we have rejected application of the invited-error doctrine when a party passively acquiesces to the error. Id. ¶¶ 16, 18.
¶9 In this case, we cannot say Linarez invited the alleged error - admission of statements about his prior use of the handgun. In his first motion in limine, he argued the statements were inadmissible other-act evidence under Rule 404(b), not relevant pursuant to Rule 402, Ariz. R. Evid., and prejudicial under Rule 403, Ariz. R. Evid. During trial, Linarez filed a second motion to preclude the state from arguing that the evidence he had gone shooting and had loaded the magazine before the date of the offense constituted the crime charged. And he requested the court to instruct the jury that it could only consider the other-act evidence in the context of establishing his knowledge or intent. Defense counsel's concession regarding the probative value of the other-act evidence does not amount to invited error, given that he had already sought unsuccessfully to have that evidence excluded and arguably was now seeking to limit its impact. See State v. Williams, 133 Ariz. 220, 224 (1982) ("[A] party should not necessarily lose his right to appeal a ruling because he alters his strategy in response to a trial court's finding against him." (quoting State v. Ellerson, 125 Ariz. 249, 251 (1980))). Moreover, we cannot say Linarez failed to raise these issues below as his first motion in limine was sufficient to preserve them for appeal. See State v. Duran, 233 Ariz. 310, ¶ 7 (2013) ("[A] defendant preserves for appeal any issues raised in a motion in limine and ruled upon without the need for further objection at trial.").
¶10 Linarez argues Rule 404(b) precludes the admission of statements about his prior use of the handgun because any relevance is limited to proving his familiarity with the handgun, not his "knowing possession of it" on the day of the traffic stop. We disagree. Although Rule 404(b)(1) generally bars the use of evidence involving "other crimes, wrongs, or acts" to establish propensity to commit the crime at issue, Rule 404(b)(2) does allow such evidence to be admitted to establish "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
¶11 The statements Linarez sought to exclude indicate he had handled the handgun in the past by loading and firing it. Although none of that evidence directly established Linarez knew the handgun was in the vehicle at the time of the traffic stop, it does establish that he knew C.H. owned a handgun, and that he was familiar with it and had handled it. In denying Linarez's motion in limine before trial, the trial court stated it did not find the evidence "to be a 404(b) other act," even though it later granted Linarez's request for a jury instruction on the limited use of other-act evidence. The state suggests the court initially considered the evidence to be intrinsic evidence and argues the evidence could be intrinsic because it is evidence of Linarez's ongoing dominion or control over the handgun necessary to establish his constructive possession of it. But we need not decide whether this evidence was intrinsic to the charged offense because we conclude it is admissible as other-act evidence under Rule 404(b). That evidence established Linarez's knowledge of C.H.'s handgun as well as opportunity and absence of mistake or accident. See State v. James, 242 Ariz. 126, ¶ 28 (App. 2017) ("[W]e may affirm an evidentiary ruling on any basis supported by the record.").
¶12 Linarez also maintains evidence that he had handled and fired C.H.'s handgun previously was unfairly prejudicial under Rule 403. Even relevant, other-act evidence may be excluded under Rule 403 if its probative value is "substantially outweighed by its potential for unfair prejudice." State v. Terrazas, 189 Ariz. 580, 583 (1997) (quoting State v. Atwood, 171 Ariz. 576, 638 (1992)). While Linarez raised this issue below in his motion in limine, the trial court never made an explicit ruling on this issue when it denied his motion. Nonetheless, no explicit finding is required if it is clear from the record that the "necessary factors were argued, considered, and balanced by the trial court." State v. Beasley, 205 Ariz. 334, ¶ 15 (App. 2003); see also State v. Bolton, 182 Ariz. 290, 305 (1995) (although trial court did not expressly enter a Rule 403 finding, analysis under Rule 403 is inherent in court's ruling).
Linarez also contends this case is similar to United States v. Thomas, 321 F.3d 627 (7th Cir. 2003), where evidence that a defendant had a tattoo of a gun was inadmissible and unduly prejudicial under Rule 403, Fed. R. Evid., because its only purpose was to improperly show the defendant had a propensity to possess guns. Id. at 631-32. This case is distinguishable from Thomas as the other-act evidence here is much more probative, showing Linarez did not merely possess an image of a gun, but that he had previously handled, loaded, and fired C.H.'s handgun.
¶13 In his motion in limine, Linarez argued admissibility of other-act evidence is governed by Rule 403 in addition to Rule 404(b). During trial, in re-urging his motion to preclude the other-act evidence, Linarez noted that "the probative value is outweighed by the undue prejudice" and expressed concern that evidence he had used the handgun on an earlier date would be misused by the jury to find him guilty of possession on that date rather than the date of the traffic stop. The court responded that it would not permit the state to argue Linarez's prior possession of the handgun, by itself, meant he was guilty of possession at the time of the traffic stop but would allow the state to argue that his prior possession established his knowledge of the handgun as well as his credibility. The court's response implies that it balanced the probative value of the other-act evidence against the risk of undue prejudice by limiting its use.
¶14 Linarez requested and the trial court gave a limiting jury instruction on other-act evidence. See Ariz. R. Evid. 105. Because we presume jurors follow their instructions, see State v. Vargas, 251 Ariz. 157, ¶ 17 (App. 2021), any prejudice is mitigated by the court's instruction that the jury could consider Linarez's previous involvement with the handgun only for the limited proper purposes under Rule 404(b). See State v. Villalobos, 225 Ariz. 74, ¶ 20 (2010). To the extent Linarez suggests the jury instruction was improper because it "only called attention to the testimony" at issue, any such error was invited, because Linarez had asked for the instruction after arguing this was improper other-act evidence. See Robertson, 249 Ariz. 256, ¶¶ 15-16. And even had Linarez not invited error, he provides no binding authority to support his argument. See Ariz. R. Crim. P. 31.10(a); State v. West, 238 Ariz. 482, n.10 (App. 2015) ("An opening brief . . . must set forth specific claims, present sufficient argument supported by legal authority, and include citations to the record.").
Disposition
¶15 For the foregoing reasons, we affirm Linarez's conviction and sentence.