Opinion
No. 1 CA-CR 19-0305
06-04-2020
STATE OF ARIZONA, Appellee, v. AUSTIN TADEO SALAS, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Nicholaus Podsiadlik Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. CR2018-148433-001
The Honorable Jacki Ireland, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Nicholaus Podsiadlik
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge David D. Weinzweig delivered the decision of the Court, in which Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.
WEINZWEIG, Judge:
¶1 Austin Salas appeals his convictions and sentences for two counts of assault. We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Salas and the victim dated for several years before getting married and then separating. They share four children. Salas lived with his mother in Phoenix and the victim lived with the children in Mesa.
¶3 As relevant here, Salas asked the victim if he could visit the children. Because Salas lacked transportation, the victim picked up Salas and drove him to her apartment. During the night, Salas became paranoid, expressed fear about his mother's safety and contacted the fire department to check on her. Salas asked the victim to drive him back to his mother's apartment, but the victim refused. Just before dawn, Salas was pacing around the apartment holding a kitchen knife when confronted by the victim. Salas turned physical—breaking the victim's phone, grabbing her from behind and threatening her life. Salas also placed the knife to her throat and made a "swiping" or "slashing" motion, which caused a burning sensation on the victim's neck but drew no blood.
¶4 Salas took the victim's car keys and entered the driver's seat of her car. The victim got in from the passenger side and took the keys back. Salas grabbed the victim's shirt, causing her to choke and fall to the ground. He then dragged the victim on the ground, punching and kicking her.
¶5 A witness saw the melee and called police. Salas fled. The victim ran to the witness. She had bloody knees and "blood coming from her mouth." Police arrived, observed the victim's injuries, found Salas and arrested him. Salas said he "messed up," admitting he hit the victim, grabbed her hair and "put a knife to her neck."
¶6 The State charged Salas with aggravated assault, a class three felony, and two counts of assault, both class one misdemeanors and
domestic violence offenses. Jurors acquitted Salas on the felony charge but found him guilty of the misdemeanors and domestic violence assault charges. Salas was sentenced to 180 days in jail, with credit for 180 days of time served, and placed on probation. Salas timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4032(6).
DISCUSSION
¶7 Salas contends the superior court erroneously denied his motion for a new trial after the jury heard inadmissible testimony about his prior incarceration. We review for an abuse of discretion, State v. Jones, 197 Ariz. 290, 304, ¶ 32 (2000), affording great deference to the superior court, State v. Lamar, 205 Ariz. 431, 439, ¶ 40 (2003), and "will not reverse a conviction based on the erroneous admission of evidence without a 'reasonable probability' that the verdict would have been different had the evidence not been admitted," State v. Hoskins, 199 Ariz. 127, 142-43, ¶ 57 (2000) (quoting State v. Atwood, 171 Ariz. 576, 639 (1992), disapproved of on other grounds by State v. Nordstrom, 200 Ariz. 229 (2001).
¶8 Before trial, the court ruled that a sanitized version of Salas' prior convictions could be introduced only as impeachment if Salas took the stand, which he never did. At trial, defense counsel cross-examined the victim about her factual basis to believe that Salas fathered her four children. The victim began to answer: "Well, my four-year-old when [Salas] got out of prison, I was in a . . . ." Defense counsel immediately interrupted and objected. The trial judge did not strike the testimony, however, because she had not heard the word "prison." Defense counsel moved for a mistrial at the recess based on the "extremely prejudicial" reference. The court reread the exchange and denied the motion but offered to provide a curative jury instruction. Salas declined the offer.
¶9 We find no abuse of discretion. On this record, we cannot say a "reasonable probability" exists that the victim's passing reference to Salas being "out of prison" had any impact on the jury's verdict. Indeed, the jury acquitted Salas of the only felony charge. The evidence against Salas on the misdemeanor assault charges was substantial, including his admissions to police. See State v. Herrera, 232 Ariz. 536, 548, ¶ 32 (App. 2013) ("[T]he fact that the jury did not find [the defendant] guilty of all charges suggests it had not been so affected by the evidence of other acts."). And defense counsel immediately objected before the victim completed her sentence. Even then, Salas refused the court's offer to provide a curative instruction. See State v. Herrera, 203 Ariz. 131, 134-35, ¶ 6 (App. 2002) (considering
defendant's rejection of a curative instruction in affirming denial of mistrial).
CONCLUSION
¶10 We affirm.