Opinion
No. 2 CA-CR 2017-0120
02-21-2019
THE STATE OF ARIZONA, Appellee, v. JOHN JOSEPH MARTINEZ, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee The Nolan Law Firm PLLC, Mesa By Cari McConeghy Nolan and Vicki A.R. Lopez 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NOT FOR PUBLICATION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. S1100CR201503988
The Honorable Kevin D. White, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee The Nolan Law Firm PLLC, Mesa
By Cari McConeghy Nolan and Vicki A.R. Lopez
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Vásquez and Judge Eppich concurred. STARING, Presiding Judge:
¶1 John Joseph Martinez appeals from his convictions and sentences for kidnapping, aggravated assault, influencing a witness, and two counts of threatening or intimidating a witness. He argues the trial court made several evidentiary errors and illegally increased his sentences. For the reasons that follow, we affirm Martinez's convictions and sentences.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all inferences against Martinez. See State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015). In November 2013, A.M. was kidnapped and assaulted by Martinez, D.R., and A.E. A.M.'s wrists and ankles were bound, she was taken from her home, and she and her friend, V.G., were forced into a car by Martinez, D.R., and A.E. While D.R. was driving, Martinez opened the passenger door, and A.M. was either pushed or attempted to jump out of the vehicle. Martinez grabbed her arm and dragged her on the road as the vehicle continued to move. As a result, A.M. suffered severe road rash and sustained injuries from the cords tied around her wrists and ankles.
¶3 Eventually, Martinez released A.M.'s arm, leaving her on the road. He believed she was dead, and A.E. told D.R. to continue driving. But A.M. got up and ran toward an oncoming vehicle. Martinez then chased A.M. on foot, but he did not catch her before the oncoming vehicle stopped and she jumped into it. A.M. told the driver that she had been kidnapped and that her boyfriend was "after her." The driver called 9-1-1 and drove her to a gas station. At the gas station, A.M. told the police she was scared of Martinez, that he was her boyfriend, and that he had tied her up. A.M. was then transported to a hospital, where she told a detective that Martinez had bound her wrists and ankles, taken her from her home against her will, and dragged her outside of the car. A.M.'s injuries were consistent with her statements.
¶4 After A.M. escaped, Martinez told V.G. he was going to take her out of town with him because she had witnessed the incident. Specifically, he told her that if the police questioned her, she was to say that A.M. was high on drugs, that she did not know what A.M. was talking about, and that she and Martinez were in a romantic relationship and were planning to marry. Martinez, V.G., D.R., and A.E. were all arrested later that day. Initially, V.G. was afraid to tell officers about the incident, but she eventually told them Martinez was responsible. Two weeks later, Martinez was indicted for kidnapping A.M., burglarizing her mother's home, assaulting A.M., and threatening or intimidating A.M. and V.G.
¶5 A few months after the incident, A.M. met with Martinez's attorney and told a different story: That D.R. was responsible for the kidnapping and assault, and that Martinez had merely been present and failed to stop D.R. While incarcerated, Martinez instructed a friend, B.H., to tell A.M. he loved her and wanted to marry her. He also planned to have A.M. leave Arizona during his trial so she could not testify. In May 2014, after Martinez was released from custody, he and A.M. married, mistakenly believing that would preclude A.M. from testifying against Martinez.
¶6 Two months after they married, Martinez sent an envelope to A.M.'s mother's house, addressed to A.M. and containing a letter from Martinez and a copy of the marriage certificate. A.M. was neither living with her mother nor Martinez at that time and, according to her mother, "was trying to get away from [Martinez]" and was "hiding." At trial, the state's gang expert testified that he interpreted the letter as a message to A.M. to refrain from testifying against Martinez and from cooperating with the police.
¶7 In 2015, the state charged Martinez with one count each of burglary, kidnapping, aggravated assault, and influencing a witness, and two counts of threatening or intimidating, all in connection with the 2013 kidnapping and assault of A.M. Martinez was accused of committing these offenses as a member of the Arizona Mexican Mafia, a prison gang, and the East Side Mesa Locos, a criminal street gang.
¶8 At trial, the state presented evidence of his membership in both gangs, including multiple Gang Member Identification Cards ("GMIC") that police issued for Martinez from 2007 to 2014, Martinez's tattoos, and evidence that Martinez passed a note in prison in which he affirmed his loyalty to the Arizona Mexican Mafia. Martinez presented evidence that he was assaulted in prison and testified that he was attempting to distance himself from gang affiliations in 2013. He also admitted to being present when A.M. was kidnapped and assaulted, but he denied active involvement and claimed that D.R was responsible.
The state's gang expert explained: "[a] gang member identification card [GMIC] is a physical card that law enforcement, corrections, or jail facilities can use to document their contact with an individual suspected gang member . . . ." Law enforcement also uses GMICs to document whether the individual has admitted to being a gang member or has worn colors associated with a particular gang, as well as other criteria used to assess membership in a criminal street gang.
¶9 A jury convicted Martinez of kidnapping, aggravated assault, influencing a witness, and two counts of threatening or intimidating a witness. The jury also found he threatened or intimidated the witnesses as a member of a criminal street gang, that he committed the kidnapping with an accomplice, and that he caused physical, emotional, or financial harm to A.M. See A.R.S. § 13-1202(A)(1), (B)(2). The trial court found Martinez had prior convictions that made him a category-three repeat offender, and it sentenced him to concurrent and consecutive prison terms totaling twenty-six years. This appeal followed; we have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
Other-Acts Evidence
¶10 Martinez argues the trial court erred in admitting other-acts evidence pursuant to Rule 404(b), Ariz. R. Evid. Specifically, he challenges the admission of: (1) testimony from the state's gang expert about B.H. and her role in assisting Martinez and as a "facilitator" who "move[d] money on behalf of the Arizona Mexican Mafia from the streets onto prison books accounts and jail accounts"; (2) testimony from law enforcement officers that Martinez was a self-proclaimed gang member; (3) testimony from an Arizona Department of Corrections ("ADOC") officer explaining that inmates sometimes tattoo themselves with derogatory phrases about their own gangs in order to be placed in protective custody; and (4) testimony from ADOC officers and the state's gang expert about a note Martinez wrote and passed in prison, in which he confirmed his membership in the Arizona Mexican Mafia. Martinez argues this evidence was unfairly prejudicial and "likely caused a conviction based on the other act evidence as opposed to the actual evidence of any crimes." We review a court's ruling on the admission of evidence for an abuse of discretion. See State v. Cota, 229 Ariz. 136, ¶ 10 (2012).
¶11 Before trial, Martinez asked the trial court to preclude any reference to: (1) his gang affiliation; (2) his previous contact with police; (3) law enforcement's knowledge of his prior convictions; and (4) his previous prison sentences and officers' knowledge of those sentences. Later, the state notified Martinez that it intended to use other-acts evidence pursuant to Rule 404(b), and Martinez objected. After a hearing, the court denied Martinez's request to preclude evidence, but it placed limitations on the state's presentation of other-acts evidence.
¶12 At trial, the state's gang expert, a detective with the Maricopa County Sheriff's Office, testified that officers had created eight GMICs concerning Martinez between 2008 and 2014, and that Martinez was a self-proclaimed member of the East Side Mesa Locos and Arizona Mexican Mafia. The expert based his testimony on "witness testimony or official statement[s], written or electronic correspondence, tattoos, and any other indicia of criminal street gang membership." The gang expert further testified Martinez was in good standing with the Arizona Mexican Mafia and was "113% down for the cause." He also testified that B.H. was a "facilitator" for the Arizona Mexican Mafia.
¶13 A Pinal County deputy sheriff testified that, during a 2014 interview, Martinez admitted to being a member of the East Side Mesa Locos and Arizona Mexican Mafia. Further, two Mesa Police Department detectives testified Martinez was a known member of the East Side Mesa Locos and the department completed a GMIC for Martinez in 2007. Additionally, one of the detectives explained that GMICs are only issued if a person meets at least two of the seven criteria listed in A.R.S. § 13-105(9).
These criteria include: self-proclamation, witness testimony or official statement, written or electronic correspondence, paraphernalia or photographs, tattoos, clothing or colors, and "[a]ny other indicia of street gang membership." A.R.S. § 13-105(9)(a)-(g).
¶14 Concerning inmates tattooing derogatory phrases about their own gangs on themselves in order to be moved to protective custody, a correctional officer testified, "[T]he idea [of derogatory tattoos] was that if the general population saw that tattoo on [an inmate], it would be an immediate . . . threat to [the inmate]. They wouldn't be safe in the general population yard." In prison, Martinez tattooed himself with a derogatory phrase about the Mexican Mafia, and then requested protective custody, but it was denied. The officer also testified that Martinez authored and passed a note in prison that confirmed Martinez's membership with the Arizona Mexican Mafia.
¶15 Martinez argues the trial court abused its discretion by allowing the evidence at issue because it "did not make any relevant fact more or less likely." He further argues that "nothing regarding gang membership and/or other acts that did not relate to the threatening and intimidating charges was relevant or in any way properly admissible." The state counters that the evidence was relevant because the threatening and intimidating charges required it to prove Martinez was a gang member.
¶16 Evidence is relevant and admissible, if "it has any tendency to make a fact more or less probable than it would be without the evidence" and the fact "is of consequence in determining the action." Ariz. R. Evid. 401; see also Ariz. R. Evid. 402. In particular, "[e]vidence of gang affiliation is admissible when it is relevant to a material issue in the case." State v. Jackson, 186 Ariz. 20, 26 (1996). Here, Martinez was charged with two counts of threatening or intimidating a witness in violation of A.R.S. § 13-1202. Under § 13-1202(B), threatening or intimidating is a class six felony if the defendant is a "criminal street gang member," which is defined as a person who meets at least two of the seven criteria in A.R.S. § 13-105(9).
¶17 Thus, Martinez's gang membership was an element of two charges, and the above evidence tended to make Martinez's membership in a gang more probable, was of consequence to the jury's determination, and was therefore relevant and admissible here. See Ariz. R. Evid. 401; Jackson, 186 Ariz. at 26.
¶18 Martinez also argues the trial court erred in admitting irrelevant evidence through questions about: the time frame of Martinez's gang affiliations, his phone calls with an inmate and that inmate's death, letters Martinez wrote to another gang member, the note he passed while in prison, and Martinez's previous parole violations. Because Martinez did not object to this evidence at trial, we review for fundamental error. See State v. Escalante, 245 Ariz. 135, ¶ 12 (2018). Martinez, however, does not argue the admission of this evidence constitutes fundamental error; therefore, his argument is waived. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008) (argument waived where defendant does not argue unpreserved error was fundamental).
A defendant who fails to object at trial forfeits the right to appellate relief unless he can show trial error exists, and that the error went to the foundation of the case, took from him a right essential to his defense, or was so egregious that he could not possibly have received a fair trial. See Escalante, 245 Ariz. 135, ¶ 21. If a defendant can show an error went to the foundation of the case or deprived him of a right essential to his defense, he must also separately show prejudice resulted from the error. Id. If a defendant shows the error was so egregious he could not have received a fair trial, however, he has necessarily shown prejudice and must receive a new trial. Id.
Evidence of ADOC Gang Classification
¶19 Martinez argues the trial court erred in precluding evidence of whether the ADOC has a classification system for gang membership. As noted, we review a trial court's evidentiary rulings for an abuse of discretion. See Cota, 229 Ariz. 136, ¶ 10; see also State v. Davolt, 207 Ariz. 191, ¶ 66 (2004). Martinez also asserts the court's ruling denied him his Sixth Amendment right to confront and cross-examine the state's gang expert. Martinez did not, however, raise any constitutional arguments below. Therefore, we review his Sixth Amendment claim only for fundamental error. See State v. Lopez, 217 Ariz. 433, ¶ 4 (App. 2008) (objection on one ground does not preserve the issue on another ground); see also State v. Bible, 175 Ariz. 549, 572 (1993) (principle that, absent fundamental error, party cannot raise argument on appeal without proper objection below applies to constitutional error).
¶20 As noted, the trial court allowed the state to present evidence of Martinez's membership in the Arizona Mexican Mafia, including testimony from a correctional officer who explained various protocols used in the prison's gang unit. Martinez asked to question the state's gang expert about whether the ADOC has a gang classification system for inmates, and the state objected on the grounds of relevance. The court said it did not know how that information would be relevant and that the question would be precluded "unless [Martinez] can explain some reason why it is probative." Martinez did not attempt to explain why that information was probative or relevant, and the court sustained the state's objection.
¶21 On appeal, Martinez argues the trial court's ruling deprived him of his "entire right to defend against the State's evidence" that he was a gang member. Specifically, he asserts that "the trial court's ruling prevented [him] from presenting critical and necessary information to establish that [he] was not a member" of the Arizona Mexican Mafia. He also argues his rights were violated because he was "certainly entitled to present testimony and/or at least cross-examination of witnesses regarding the fact that [he] was not actually ever validated as a member of the . . . Arizona Mexican Mafia by ADOC." The state argues the court's ruling was proper because Martinez made no offer of proof as to whether ADOC had a classification system for inmate gang membership and "presented no evidence whatsoever" that ADOC had not identified him as a gang member.
¶22 "When an objection to the introduction of evidence has been sustained, an offer of proof showing the evidence's relevance and admissibility is ordinarily required to assert error on appeal." State v. Towery, 186 Ariz. 168, 179 (1996); Ariz. R. Evid. 103(a)(2). Because counsel ordinarily does not know what a hostile witness will say on cross-examination, the offer-of-proof requirement may be relaxed when the trial court sustains the objection to a question on cross-examination. Towery, 186 Ariz. at 179. Nevertheless, "something more than speculation about possible answers is required to show prejudice. At a minimum, an offer of proof stating with reasonable specificity what the evidence would have shown is required." Id. Although Martinez argues on appeal that the expert's answer to his question about whether the ADOC has a system for classifying gang members would have been relevant to his defense, he made no offer of proof. Indeed, when asked by the trial court to offer any explanation of the question's probativeness, he offered none. On the record before us, we cannot say the trial court abused its discretion.
¶23 As noted, we review Martinez's Sixth Amendment argument for fundamental error. See Lopez, 217 Ariz. 433, ¶ 4; Bible, 175 Ariz. at 572. Martinez, however, does not argue the trial court's ruling was fundamental error. Therefore, his Sixth Amendment argument is waived. See Moreno-Medrano, 218 Ariz. 349, ¶ 17.
Witnesses' Prior Convictions
¶24 Martinez argues the trial court erred in precluding him from impeaching two of the state's witnesses with the nature of their prior criminal convictions. "When reviewing a ruling on the admissibility of prior convictions, this court will overturn the trial court's determination only if it proves to have been a clear abuse of discretion." State v. Green, 200 Ariz. 496, ¶ 7 (2001); see also State v. Bolton, 182 Ariz. 290, 303 (1995). Martinez also argues the court's ruling deprived him of his Sixth Amendment right to confront and cross-examine the witnesses. Because he did not raise it below, we review the Sixth Amendment claim for fundamental error. See Lopez, 217 Ariz. 433, ¶ 4; Bible, 175 Ariz. at 572.
¶25 During trial, the state asked the court to preclude the nature of A.M.'s prior felony convictions under Rule 609, Ariz. R. Evid. Martinez objected and argued A.M.'s conviction for trafficking in stolen property is "a crime of dishonest[y]" but did not provide any details of that offense. The court ruled "the defense can impeach [A.M.] with the fact of the felony convictions," but it precluded mention of the nature of her convictions. The state also asked the court to preclude, under Rule 609, the nature of B.H.'s prior convictions for possession of a forgery device and theft of means of transportation. Martinez objected that possession of a forgery device is "indicative of dishonesty" but did not argue he should be allowed to impeach her with her conviction for theft of means of transportation. The court disagreed and concluded that Rule 609 is "read very narrowly and would not include convictions like possession of a forgery device, burglary, theft, those kinds of things."
¶26 On appeal, Martinez maintains his argument that "both [A.M. and B.H.] had priors that would have impeached their credibility as they involved dishonesty or deceit." The state argues Martinez's claim fails because he did not make an offer of proof as to A.M.'s prior convictions, and because he failed to demonstrate the nature of B.H.'s conviction for possession of a forgery device could be readily determined to prove a dishonest act or untruthful statement.
¶27 Rule 609(a)(2) provides that a party may impeach a witness's character for truthfulness with "any crime regardless of the punishment . . . if the court can readily determine that establishing the elements of the crime required proving—or the witness's admitting—a dishonest act or false statement." In State v. Malloy, our supreme court explained: "the phrase 'dishonesty or false statement' should be construed narrowly to include only those crimes involving some element of deceit, untruthfulness, or falsification." 131 Ariz. 125, 127 (1981). Malloy distinguished between those crimes which connote dishonesty and those "which establish the trait of untruthfulness." Id.; see also State v. Winegardner, 243 Ariz. 482, ¶¶ 6-7, 24-25 (2018) (witness's conviction for shoplifting inadmissible where defendant provided trial court with no information showing offense involved dishonest act or false statement).
¶28 Here, Martinez did not offer any evidence of A.M.'s prior convictions. Thus, the trial court could not readily determine that any of A.M.'s prior convictions involved dishonest acts or false statements. See Winegardner, 243 Ariz. 482, ¶¶ 6-7, 24-25; see also Ariz. R. Evid. 609(a)(2). We cannot say the court abused its discretion by precluding Martinez from impeaching A.M. with the nature of her prior convictions.
¶29 Further, Martinez cites no argument or authority in support of his assertion that possession of a forgery device and theft of means of transportation "certainly involve dishonesty and deceit." In light of our supreme court's decisions in Malloy and Winegardner, we cannot assume such is the case. Therefore, this argument is waived. See Bolton, 182 Ariz. at 298 ("Failure to argue a claim on appeal constitutes waiver of that claim."); see also Ariz. R. Crim. P. 31.10(a)(7)(A) (appellant's opening brief must contain supporting reasons for contentions with citations of legal authorities).
¶30 In addition, Martinez asserts the trial court's ruling deprived him of his Sixth Amendment right to confront and cross-examine A.M. and B.H. We review for fundamental error because he did not raise that argument at trial. See Bible, 175 Ariz. at 572. Martinez, however, does not argue fundamental error; therefore, his argument is waived. See Moreno-Medrano, 218 Ariz. 349, ¶ 17.
Allowing State's Gang Expert to Remain in Courtroom
¶31 Martinez argues the trial court abused its discretion in allowing the state's gang expert to remain in the courtroom when Martinez presented his defense. He also asserts this amounted to a violation of his right to due process. We review the court's ruling to allow the expert to remain in the courtroom pursuant to Rule 615(c), Ariz. R. Evid., for an abuse of discretion. See State v. Wilson, 185 Ariz. 254, 259 (App. 1995) ("[T]rial court's decision to exclude or permit witnesses under [Rule 615 and Rule 9.3, Ariz. R. Crim. P.] will not be disturbed absent an abuse of discretion.").
¶32 At trial, the state asked the court to exempt its gang expert from being excluded from the courtroom during Martinez's presentation of his case. The state argued the expert should be exempted under Rule 615(c) because if Martinez's witnesses testified about whether he was a gang member, the expert's rebuttal testimony would be essential to the state's case. Further, the state said it would "be happy to make an offer of proof with [the gang expert] as [to] why it's essential that he hears the testimony." Martinez objected, and the court asked:
Can you identify any prejudice in allowing [the gang expert] to be present for that testimony? Because it sounds like there's certainly going to
be testimony elicited from the [ADOC] officials about matters relevant to gang identification. And it sounds by your own admission that your other witnesses may go into areas that touch on issues within the [gang] expert's scope.In response, Martinez's counsel answered: "I just don't think it's necessary for him to be here." The state argued the expert's presence could be essential to the presentation of its case on rebuttal, and the court exempted him under Rule 615(c) "for the purpose of allowing him to hear and potentially rebut any evidence or to expand on any evidence with his expertise that may come to light during [Martinez's witnesses'] testimony." The expert was present for the testimony of Martinez and his witnesses and was later recalled by the state to rebut their testimony that Martinez had been attempting to distance himself from gangs at the time of the charged offenses.
¶33 On appeal, Martinez argues that the gang expert should have been excluded from the courtroom and that the trial court abused its discretion because the state failed to establish why the expert was essential to its case. He asserts: "the State provided no support for any conclusion that it was essential for [the gang expert] to hear the defense witnesses, and his testimony, refuting everything the defendant said on the stand, bears out that there was nothing proper about the occurrence." The state argues the gang expert's "expertise with criminal street gangs, his investigation into the case, and his need to rebut Martinez's denial of membership in the Mexican Mafia was a reasonable, substantiated basis upon which to find him essential to the State's case." The state contends the expert was essential to its case because his testimony rebutted Martinez's evidence disputing his membership in the Arizona Mexican Mafia.
¶34 Rule 615 provides that a court must exclude a witness from the courtroom during the testimony of other witnesses when a party requests it, or may do so on its own. This rule, however, does not authorize excluding "a person whose presence a party shows to be essential to presenting the party's claim or defense." Ariz. R. Evid. 615(c). The purpose of Rule 615 is "to prevent witnesses from 'tailoring' their testimony to that of earlier witnesses and to aid in detecting testimony that is less than candid." Spring v. Bradford, 243 Ariz. 167, ¶ 14 (2017) (quoting United States v. Ell, 718 F.2d 291, 293 (9th Cir. 1983)). This rule applies to both fact and expert witnesses, and expert witnesses are not automatically exempt from exclusion even though they are often deemed "essential" to a party's claim or defense. Id. ¶ 15; see also United States v. Seschillie, 310 F.3d 1208, 1213 (9th Cir. 2002). Under Rule 615, "if a party shows that a person's presence is essential to the presentation of its case, the court lacks authority under the rule to exclude that person from the trial." State v. Williams, 183 Ariz. 368, 380 (1995).
¶35 Here, the trial court correctly found the state's gang expert was essential. Two of the charged offenses included an element of gang membership. Thus, the state was required to prove Martinez was a member of a gang. Because the state was required to prove this, its gang expert was essential to its case—especially to rebut testimony from Martinez and his witnesses, who said he was attempting to distance himself from gang affiliations in 2013. The court did not abuse its discretion.
¶36 To the extent Martinez argues the trial court violated his constitutional rights, we review for fundamental error because he did not object on that basis at trial. See Lopez, 217 Ariz. 433, ¶ 4; Bible, 175 Ariz. at 572. Martinez, however, does not argue fundamental error; therefore, his argument is waived. See Moreno-Medrano, 218 Ariz. 349, ¶ 17.
Impeachment of Martinez with Prior Convictions
¶37 Martinez argues the trial court improperly admitted evidence of his prior convictions pursuant to Rule 609, Ariz. R. Evid. Determinations about whether evidence of prior convictions are admissible are within a trial court's discretion, and we will not disturb such rulings absent an abuse. Bolton, 182 Ariz. at 303.
¶38 Before trial, the state filed allegations of Martinez's prior convictions. During a Rule 609 hearing, the state sought to impeach Martinez with the fact that he has prior felony convictions, but not with the nature of the convictions. The state asked to be allowed to amend its request, depending on the testimony elicited from Martinez's witnesses. The trial court granted the state's request after finding that all of the convictions occurred within ten years and explained: "the probative value of each of the convictions outweighs the danger of prejudicial effect."
¶39 Later at trial, Martinez conceded that the door had "probably" been opened for testimony about the nature of his prior conviction that involved one of his witnesses. After hearing argument on the issue, the trial court decided to admit Martinez's prior convictions of threatening and intimidating a witness, influencing a witness, participating in a criminal street gang, disorderly conduct, and two counts of prohibited possession, pursuant to Rule 404(b)—not Rule 609.
¶40 On appeal, Martinez argues that "it is not clear" the state met its burden of proof in the Rule 609 hearing and that "the record does not establish that the trial court sufficiently considered and ruled in an on-the-record determination that the probative value of each conviction when considered against the allegations in this case, outweighed the prejudicial effect." Specifically, he challenges the admission of evidence regarding the nature of his prior convictions related to two witnesses: B.H. and J.W. He further asserts that the state "showed absolutely no proper purpose for the use of the unsanitized prior convictions" and shifted the burden of establishing unfair prejudice.
¶41 Although Martinez argues the trial court erred in admitting his prior convictions under Rule 609, the court admitted the convictions as other-acts evidence pursuant to Rule 404(b). Thus, there is no Rule 609 ruling from which he can appeal. We review the admission of other-acts evidence for an abuse of discretion. See State v. Hulsey, 243 Ariz. 367, ¶ 38 (2018). Martinez, however, does not argue the court erred in admitting the convictions under Rule 404(b). Therefore, this argument is waived. See Bolton, 182 Ariz. at 298.
Rule 609(a)(1)(B), Ariz. R. Evid., generally provides that evidence of a felony conviction "must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant."
State's Rebuttal of Martinez's Fact Witnesses
¶42 Martinez argues the trial court erred in allowing two of the state's witnesses, a correctional officer and its gang expert, to testify that Martinez and D.R. had given untruthful testimony. Ordinarily, "[w]e review the admission of evidence for abuse of discretion." State v. Payne, 233 Ariz. 484, ¶ 56 (2013).
¶43 During trial, the state asked the correctional officer whether there was "any evidence that [D.R.] set up this kidnapping to then set up [Martinez]," and he answered: "No. There's no truth to that whatsoever." Martinez did not object. The following exchange took place between the state and the gang expert on rebuttal examination:
State: I believe you just mentioned it, but how did that phone call and the manipulation that was go[i]ng on in that phone call relate to the July 2014
letter where the defendant is referencing the upcoming court dates?Martinez did not object to this testimony.
Expert: The defendant, John Martinez, has already established what he expects from [A.M.], the victim, with this phone call and other phone calls. And he has maintained contact with her to maintain control of her.
So that letter, which were to set trial dates, was simply a message from the defendant to [A.M.] that this is when you don't show up to court.
State: Defendant testified earlier that he put the trial dates on the envelope because they are expected to show up for the court date, implying that the victim is also expected to show up for the court date. Is that true?
Expert: I think, initially, the defendant advised that they weren't even trial dates, that it was hearing dates. But no, that's not true.
State: Is the victim ever required to come to a regular court date?
Expert: No.
¶44 On appeal, Martinez argues the correctional officer and the gang expert "had the esteem of being considered experts" and that the trial court erred in allowing them to testify that Martinez and his witnesses had not testified truthfully. Specifically, he argues that the above testimony amounts to "attacks" on the truthfulness of Martinez and D.R., and that these "attacks impinge upon ultimate issues to be decided by the jury." Martinez further asserts that this testimony "demolished" his case and that, because of this testimony, he "ha[d] no hope" of the jury following the jury instructions. He contends this amounts to "error of fundamental proportion."
¶45 Because Martinez did not object at trial, we review only for fundamental error. See Escalante, 245 Ariz. 135, ¶¶ 12, 21. "Before we may engage in a fundamental error analysis, however, we must first find that the trial court committed some error." State v. Lavers, 168 Ariz. 376, 385 (1991). And, "[i]f it is determined that error occurred, the prejudicial nature of the unobjected-to error must be evaluated in light of the entire record." State v. Thomas, 130 Ariz. 432, 436 (1981).
¶46 A witness may not opine as to the truthfulness of another witness's testimony. See State v. Reimer, 189 Ariz. 239, 241 (App. 1997). A witness may, however, opine on the ultimate issue when it is "rationally based on the witness's perception" and "helpful to clearly understanding the witness's testimony or to determining a fact in issue." Ariz. R. Evid. 701; see also State v. Doerr, 193 Ariz. 56, ¶ 26 (1998). Officers may also give their reasoning for not believing a defendant's story. See Doerr, 193 Ariz. 56, ¶¶ 26-28; State v. Martinez, 230 Ariz. 382, ¶¶ 12-13 (App. 2012) (officer's testimony that he did not believe defendant's statements necessary to explain why police did not pursue particular investigation).
¶47 The correctional officer's testimony about whether there was any evidence of D.R. framing Martinez for the kidnapping cannot be read in isolation. This testimony came after A.M. blamed D.R. for the kidnapping. Before the officer was asked whether there was any evidence that D.R. set up the kidnapping, the state asked several questions about D.R.'s involvement and her role with the police as an informant. The question was not improper and was necessary to explain why the police continued to investigate and why Martinez was charged. We find no error, fundamental or otherwise.
¶48 Similarly, Martinez argues the gang expert opined about the truthfulness of Martinez's testimony. The state asserts that the expert did not opine on Martinez's truthfulness, but rather "the more reasonable interpretation of his testimony is that victims are not required to appear at all hearings in a case." Under that interpretation, the state argues the testimony was proper. We agree.
¶49 The state's question was about whether Martinez included trial dates in the letter to A.M. to imply that she should not attend the court date. The expert's full answer to that question was: "I think, initially, [Martinez] advised that they weren't even trial dates, that it was hearing dates. But no, that's not true." In context, the jury could reasonably believe the expert's answer that "no, that's not true" was his opinion about whether the victim is required to appear in court—not about whether Martinez was telling the truth. As noted by the state, use of the word "true" does not transform the expert's observation of the evidence into an opinion about Martinez's testimony. Thus, we find no error.
Sentencing
¶50 Martinez argues the trial court illegally enhanced his sentences by: (1) finding that prior convictions made him a category three repeat offender; and (2) finding inappropriate aggravators.
Prior Convictions
¶51 Section 13-703(C), A.R.S., provides: "a person shall be sentenced as a category three repetitive offender if the person is at least eighteen years of age or has been tried as an adult and stands convicted of a felony and has two or more historical prior felony convictions." "[P]rior convictions for sentence enhancement purposes must be established by clear and convincing evidence," State v. Cons, 208 Ariz. 409, ¶ 15 (App. 2004), and it is sufficient if the defendant admits the alleged prior convictions during his testimony at trial, Ariz. R. Crim. P. 17.6; State v. Whitney, 159 Ariz. 476, 485 (1989). "A trial court's determination that a prior conviction constitutes an historical prior felony conviction for purposes of sentence enhancement involves a mixed question of law and fact," which we review de novo. State v. Derello, 199 Ariz. 435, ¶ 8 (App. 2001).
¶52 Before trial, the state alleged that Martinez had nine prior felony convictions. On appeal, he argues that the state did not meet its burden in proving his prior convictions. During his trial testimony, however, Martinez affirmatively admitted to three of them: (1) threatening and intimidating; (2) influencing a witness; and (3) participating in a criminal street gang. These offenses were committed within the five years preceding the offenses at issue here, and, therefore, constitute historical prior felony convictions. See A.R.S. §§ 13-105(22)(b)-(d), 13-1202, 13-2802, 13-2321. Because Martinez admitted to two or more prior felony convictions, the trial court properly found he is a category three repeat offender.
Aggravating Factors
¶53 Martinez argues it was fundamental error for the trial court to consider the following improper aggravating factors: the victim impact statement written by A.M.'s mother, who was the victim of one of the charges for which Martinez was not found guilty; Martinez's extensive criminal history; and his involvement with the Arizona Mexican Mafia. He asserts that "there is reason to believe that the sentence may have been different" had the court not considered these factors. The state counters that the court did not consider these allegedly improper aggravating factors and only considered "the nature of Martinez's prior convictions and the physical harm to A.M. as aggravating factors."
¶54 We review sentencing determinations for an abuse of discretion, Davolt, 207 Ariz. 191, ¶ 112, and will not disturb a sentence within the statutory range absent an abuse of discretion, State v. Hernandez, 231 Ariz. 353, ¶ 3 (App. 2013). "And we will find such an abuse of discretion 'only if the court acted arbitrarily or capriciously or failed to adequately investigate the facts relevant to sentencing.'" Id. (quoting State v. Cazares, 205 Ariz. 425, ¶ 6 (App. 2003)).
¶55 The jury found two aggravating factors: (1) Martinez committed the offenses with an accomplice; and (2) Martinez caused physical, emotional, or financial harm to A.M. The trial court acknowledged the jury's findings and noted that it had considered the physical harm to A.M. and Martinez's criminal history, which indicate the underlying incident in this case "is not some isolated occurrence, not a bad day, but sadly a persistent pattern for this kind of conduct." After "[b]alancing the mitigating circumstances and the aggravating circumstances in this case," the court sentenced Martinez to concurrent and consecutive prison terms totaling twenty-six years.
¶56 In pronouncing Martinez's sentence, the trial court did not indicate that it considered the allegedly improper aggravating factors that Martinez asserts. As noted, it only addressed the physical harm to A.M. and his criminal history. Further, assuming without concluding the court did consider the factors cited by Martinez, it did not err. Included in Arizona's aggravating factors for sentencing is: "Any other factor that the state alleges is relevant to the defendant's character or background or to the nature or circumstances of the crime." A.R.S. § 13-701(D)(27). Our supreme court has described § 13-701(D)(27) as a "catch-all" aggravator and has held that a trial court can use § 13-701(D)(27) "to impose a sentence up to the statutory maximum as long as a properly found specifically enumerated aggravating factor made the defendant eligible for a sentence greater than the presumptive." State v. Bonfiglio, 231 Ariz. 371, ¶¶ 8, 10 (2013). Once a trial court identifies one of the aggravating factors listed in A.R.S. § 13-701(D)(1)-(26), "it may rely on the 'catch-all' aggravator provision in [§ 13-701(D)(27)] to increase the sentence even if the court does not expressly use the specific statutory aggravator as a basis for increasing the sentence." Id. ¶ 1; see also State v. Schmidt, 220 Ariz. 563, ¶¶ 10-11 (2009).
We cite the current version of the applicable statute because no revisions material to this decision have occurred since Martinez committed these offenses. --------
¶57 Here, the jury found two enumerated aggravating factors: the presence of an accomplice, § 13-701(D)(4), and physical, emotional, or financial harm to A.M., § 13-701(D)(9). Thus, there were two properly found, specifically enumerated aggravating factors that made Martinez eligible for a sentence greater than the presumptive term. Although the trial court indicated that it only relied on the aggravators found by the jury, it did not need to expressly rely on the "catch-all" aggravator to consider the statement from A.M.'s mother, Martinez's criminal history, or his membership in the Arizona Mexican Mafia, as the sentence imposed was already authorized by the jury's findings. See § 13-701(D)(27). We find no error.
Disposition
¶58 For the foregoing reasons, we affirm Martinez's convictions and sentences.