Opinion
2 CA-CR 2024-0020
07-31-2024
The State of Arizona, Appellee, v. Vicky Lynn Saavedra, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Phillip A. Tomas, Assistant Attorney General, Phoenix Counsel for Appellee. The Susser Law Firm PLLC, Chandler By Adam Susser Counsel for Appellant.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2021109968002 The Honorable Sunita Cairo, Judge.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Phillip A. Tomas, Assistant Attorney General, Phoenix Counsel for Appellee.
The Susser Law Firm PLLC, Chandler By Adam Susser Counsel for Appellant.
Presiding Judge O'Neil authored the decision of the Court, in which Judge Vasquez and Judge Kelly concurred.
MEMORANDUM DECISION
O'NEIL, PRESIDING JUDGE.
¶1 Vicky Saavedra and her boyfriend were found in a stolen car. On trial for unlawful use of a means of transportation, Saavedra testified that she did not know the car was stolen. With the trial court's permission, and without objection, the state impeached Saavedra's testimony with remote felony convictions. On appeal, Saavedra claims the court erred by admitting convictions so remote, but she does not claim the error was fundamental. Thus, we affirm.
Background
¶2 We view the facts and draw every reasonable inference in the manner that most favors sustaining the verdict. State v. Miles, 211 Ariz. 475, ¶ 2(App. 2005). In March 2021, Saavedra and her boyfriend were homeless. Both of them were smoking and "getting high" behind a convenience store when a "[r]andom woman walked up to [them] and got high with" them by smoking some of Saavedra's fentanyl. Then the woman gave Saavedra and her boyfriend a car.
¶3 After that, they had been using the car for about a week when a police officer saw the car and ran the license plate. Upon learning the car had been reported stolen, the officer followed it, called for assistance, and initiated a stop at a gas station. Saavedra was riding in the passenger seat while her boyfriend drove. More officers arrived, and one of them interviewed Saavedra.
¶4 Saavedra told the officer that "the keys were just given to her" at no cost by a woman whose name she did not know. She explained that she and her boyfriend "had been living and sleeping in that vehicle since it was given to them," but they planned "to ditch the vehicle and get a vehicle of their own" once they got "stimulus checks." She also admitted that she had considered looking up the vehicle identification number, "but she was afraid if it was stolen there would be evidence on her phone." She later affirmed that "she thought it may be stolen."
¶5 At trial, Saavedra described sharing fentanyl behind the convenience store with an unfamiliar woman named "Danette or Debbie" and thinking "it was odd" that a person would "give[] somebody a car." She testified that the car had other people's belongings inside, and the vehicle registration in the glove box did not match the name of the woman who had given her the car. She also said she "realized there wasn't a title" to the car, and she "worried" that the car may be stolen. But she also stated she did not know the car was stolen, had no reason to know, and did not think she was doing anything wrong by sleeping and riding in the car.
¶6 The state, having previously given notice of its intent to impeach Saavedra's credibility with felony convictions more than ten years old, sought the trial court's permission to impeach Saavedra with five prior felonies from December 2006 and earlier. Saavedra did not object, but she requested to sanitize the prior felonies, "just noting for the record that [she] has prior felony convictions and not get[ting] into the number." The court permitted the state to impeach Saavedra with two of the convictions, directing that "[t]hey will be sanitized." The court found "the probative value of using these specific prior convictions for impeachment outweighs the danger of unfair prejudice."
¶7 During cross-examination, the state asked Saavedra whether she had been convicted of the two unspecified felonies from December 2006. She agreed that she had been. At the end of the trial, the jury found Saavedra guilty of unlawful use of a means of transportation. See A.R.S. § 13-1803(A)(2). The trial court later sentenced her as a repetitive offender to a partially mitigated term of 3.25 years in prison. See A.R.S. § 13-703(J). We have jurisdiction over her appeal. See A.R.S. §§ 12-120.21(A)(1), 134031, 13-4033(A)(1).
Discussion
¶8 Saavedra asserts the trial court abused its discretion by admitting her prior felony convictions under Rule 609(b), Ariz. R. Evid., without an adequate analysis. A court may permit a party to introduce evidence of a conviction more than ten years old, but only if "its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect." Ariz. R. Evid. 609(b)(1). This requires "an on-the-record finding" that identifies the facts supporting the decision. State v. Ennis, 142 Ariz. 311, 317-18 &317 (App. 1984); see also State v. Green, 200 Ariz. 496, ¶ 9 (2001). But see State v. Waller, 235 Ariz. 479, ¶ 40 (App. 2014) (reversal not warranted for lack of findings when "it is clear the necessary factors were argued, considered, and balanced by the trial court as part of its ruling" (quoting State v. Beasley, 205 Ariz. 334, ¶ 15 (App. 2003))). A defendant who does not ask for specific findings, however, "waives any allegation on appeal that the court erred by not making such findings." Waller, 235 Ariz. 479, ¶ 40.
¶9 Saavedra did not object to the state's introduction of her felony convictions. She requested that the trial court "sanitize[]" them and not "get into the number" of convictions. The court accommodated her request by limiting the state to Saavedra's two most recent felonies. Nothing in the record suggests that Saavedra regarded this accommodation as unsatisfactory, much less articulated any grounds to object. Nor did she request findings.
¶10 On appeal, Saavedra does not argue that the introduction of her felony convictions or the lack of findings amounted to fundamental, prejudicial error. See State v. Escalante, 245 Ariz. 135, ¶¶ 1, 21 (2018) (failure to object to trial error forfeits relief absent fundamental error). She has therefore waived the argument. See Ariz. R. Crim. P. 31.10(a)(7)(B); State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008) (failure to argue fundamental error waives claim on appeal), disapproved on other grounds by State v. Vargas, 249 Ariz. 186, ¶¶ 1, 6, 18-21 (2020). Even absent waiver, given the overwhelming evidence of her guilt, Saavedra has demonstrated no prejudice. See State v. Fierro, 254 Ariz. 35, ¶ 21 (2022) (amount of proper evidence supporting verdict relevant to prejudice under fundamental error review); State v. Anderson, 110 Ariz. 238, 241 (1973) (affirming conviction despite fundamental error based on overwhelming evidence).
¶11 It was undisputed at trial that Saavedra rode in a stolen vehicle while her boyfriend drove it. See § 13-1803(A)(2). The sole dispute was whether she knew or had reason to know the car was stolen. See id. Saavedra told police she thought the car was stolen, and a body camera recording of her statements to police was admitted into evidence at trial. She also admitted at trial that she "had a good reason to think the car might be stolen." Her own testimony established that she had ample reason to know her boyfriend's possession of the car was unlawful. See id.
Disposition
¶12 We affirm Saavedra's conviction and sentence.