Opinion
No. 2 CA-CR 2015-0185
05-04-2016
THE STATE OF ARIZONA, Appellee, v. FELIPE ZAMORANO URIAS, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Amy M. Thorson, Assistant Attorney General, Tucson Counsel for Appellee Harriette P. Levitt, Tucson 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NOT FOR PUBLICATION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. 31.24.
Appeal from the superior Court in pinal County
No. S1100CR201301477
The Honorable Joseph R. Georgini, Judge
AFFIRMED AS CORRECTED
COUNSEL
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee
Harriette P. Levitt, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Howard authored the decision of the Court, in which Judge Espinosa and Judge Staring concurred.
HOWARD, Presiding Judge:
¶1 Following a jury trial, appellant Felipe Urias was found guilty of manslaughter. On appeal, he contends the trial court abused its discretion by admitting his prior conviction for speeding and his attending Traffic Survival School (TSS), allowing opinion testimony by a lay witness, and erroneously instructing the jury to consider other act evidence for an impermissible purpose. Because we find no error in those rulings, but have discovered several technical errors in the sentencing minute entry, we affirm as corrected.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the conviction. State v. Ortiz, 238 Ariz. 329, ¶ 2, 360 P.3d 125, 129 (App. 2015). In September 2012, Urias and his co-defendant, Erasmo Morales, Jr., were driving separate vehicles eastbound on a rural road in Pinal County. Urias and Morales were travelling approximately sixty miles per hour on a road with a speed limit of fifty miles per hour. J.C. was also driving eastbound on the same road and, in his rear-view mirror, saw Urias drive through an intersection and stop sign without slowing down.
¶3 Urias and Morales caught up with J.C. and, as the three cars approached another intersection with a stop sign, the two men passed J.C. in a no-passing zone. Urias, who was ahead of Morales, "floored" the gas pedal, according to his truck's air bag data, and accelerated through the intersection, still on the wrong side of the road. At that same time, A.A. was traveling northbound on the intersecting road. Urias's truck collided with A.A.'s truck in the intersection, but Morales swerved and avoided the collision. A.A. later died from his injuries.
¶4 The state charged Urias with second-degree murder, and a jury found him guilty of the lesser-included offense of manslaughter. The trial court sentenced him to a mitigated nine-year term of imprisonment. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
Other Act Evidence
¶5 Urias argues the trial court abused its discretion by admitting evidence that he attended TSS. He argues the evidence was not admissible under Rule 404(b), Ariz. R. Evid., and any probative value was outweighed by its prejudicial impact. We review a court's ruling on the admission of other-act evidence for an abuse of discretion. State v. Coghill, 216 Ariz. 578, ¶ 13, 169 P.3d 942, 946 (App. 2007).
¶6 "[E]vidence of prior acts may not be used to prove the defendant's propensity to commit the crime." State v. Van Adams, 194 Ariz. 408, ¶ 20, 984 P.2d 16, 23 (1999). It is, however, admissible if "relevant for any purpose other than showing propensities to act in a certain way." State v. Connor, 215 Ariz. 553, ¶ 32, 161 P.3d 596, 606 (App. 2007); see also Ariz. R. Evid. 404(b). Even if relevant and admissible, other-act evidence must undergo a Rule 403 analysis. State v. Terrazas, 189 Ariz. 580, 583, 944 P.2d 1194, 1197 (1997); Ariz. R. Evid. 403. "Unfair prejudice results if the evidence has an undue tendency to suggest decision on an improper basis, such as emotion, sympathy, or horror." State v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046, 1055 (1997).
¶7 A defendant commits second-degree murder, as relevant here, when, "[u]nder circumstances manifesting extreme indifference to human life, [he] recklessly engages in conduct that creates a grave risk of death and thereby causes the death of another person." A.R.S. § 13-1104(A)(3). Alternatively, he commits manslaughter when he "[r]ecklessly caus[es] the death of another person." A.R.S. § 13-1103(A)(1). As relevant here, "'[r]ecklessly' means" the person was "aware of and consciously disregard[ed] a substantial and unjustifiable risk" of death. A.R.S. § 13-105(10)(c).
¶8 A custodian for the Motor Vehicle Division (MVD) of the Arizona Department of Transportation testified that Urias was notified in December 2011 that he needed to complete TSS or his driver's license would be suspended, and that he completed the course in March 2012. The custodian described TSS as "a refresher course" for safe driving, which addresses topics such as "speeding[,] . . . inattentive[ness] to what you are doing on the road[,] road hazards[,] . . . aggressive driving [and] potential areas that extreme caution should be used." Evidence that Urias had completed a course in driving safety approximately seven months before the incident at issue here was relevant and probative of whether he was "aware of and consciously disregard[ed] a substantial and unjustifiable risk" by failing to stop at the stop sign. See §§ 13-1103(A)(1), 13-1104(A)(3), 13-105(10)(c); see also State v. Woody, 173 Ariz. 561, 563, 845 P.2d 487, 489 (App. 1992).
¶9 Urias argues the reference to TSS by name was unfairly prejudicial and that fact makes this case distinguishable from State v. Salamanca, 233 Ariz. 292, 311 P.3d 1105 (App. 2013), on which the trial court relied. The trial court in Salamanca prohibited the state from "mentioning the words 'driving school' or the reasons [the defendant] took the driving class." Id. ¶ 5. Instead, the court read a statement to the jury that the defendant had "take[n] and pass[ed] a test which covered driver's safety issues" in order to "satisfy Arizona's driver's license requirements." Id. Urias contends the limitation on the reference to driving school makes Salamanca distinguishable from this case and necessarily makes the testimony here unfairly prejudicial. We disagree for two reasons.
¶10 First, the court in Salamanca did not discuss whether the use of the term "driving school" would have been unfairly prejudicial. Id. ¶ 19. Rather, the court was simply stating that the defendant's argument, which was almost identical to Urias's argument in this case, lacked a factual basis because the trial court had precluded any reference to the term "defensive driving school" or the defendant's driving record at trial. Id. The Salamanca court went on to note that, in any event, the evidence was still relevant and minimally prejudicial. Id. ¶¶ 20-21.
¶11 Second, evidence that Urias completed TSS was relevant and probative to his mental state and was not unfairly prejudicial. See Mott, 187 Ariz. at 545, 931 P.2d at 1055. Simply referring to the driving school by name, without any reference to Urias's driving record or the reasons why he took the course, does not show that Urias "is a bad person or has a propensity for committing crimes," State v. McCall, 139 Ariz. 147, 152, 677 P.2d 920, 925 (1983), and thus does not implicate the concerns addressed by Rules 404(b) and 403. Consequently, the differences which Urias relies on between Salamanca and this case are irrelevant and the trial court did not err in admitting the evidence.
¶12 Urias also argues the evidence that he had completed TSS as a "corrective action on his driving privileges" was unfairly prejudicial because it allowed the jury to speculate about his driving record. Below, however, Urias only contended the reference to TSS by name was unfairly prejudicial. He has therefore forfeited this issue on review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005); see also State v. Lopez, 217 Ariz. 433, ¶ 6, 175 P.3d 682, 684 (App. 2008) (failure to object on one ground does not preserve issue for appeal on another ground). Because Urias has not argued on appeal that this testimony constituted fundamental error, and we find no error that can be characterized as such, we do not consider this issue. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008) (fundamental error argument waived if not asserted); see also State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (court will not ignore fundamental error if found).
¶13 Urias additionally contends the admission of his 2012 conviction for speeding in excess of eighty-five miles per hour was not relevant and unfairly prejudicial. "Evidence is relevant 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. The trial court found the 2012 conviction was probative and demonstrated Urias's "knowledge of the risk of speeding," relying on Woody, 173 Ariz. at 563, 845 P.2d at 489.
¶14 In Woody, the defendant had been charged with manslaughter after colliding with the victim's car while having a blood-alcohol content above the legal limit. 173 Ariz. at 562, 845 P.2d at 488. The state sought to introduce evidence of the defendant's nine prior arrests for driving under the influence of intoxicating liquor. Id. The trial court held an evidentiary hearing regarding the circumstances of the previous arrests, and found that one of the convictions was admissible because it was "closer in time to the accident in [that] case and the facts of the incident were relevant to those in [that] case." Id. The appellate court upheld that ruling, concluding "the facts of [the defendant's] prior conviction were sufficiently similar for the jurors reasonably to conclude that as a result of it, [the defendant] was made aware of the risks he posed to others in driving while under the influence." Id. at 563, 845 P.2d at 489.
¶15 Urias argues Woody is distinguishable because the trial court in this case did not conduct an evidentiary hearing on the circumstances of his 2012 conviction. "Thus," he argues, no evidence was presented that established "[his] previous speeding citation demonstrated a reckless indifference to human life so as to support a conviction for [manslaughter]."
¶16 As Urias notes, the state did not present any of the facts surrounding the 2012 citation and the conviction, on its face, shows only his awareness that speeding in excess of eighty-five miles per hour is prohibited. See A.R.S. § 28-701.02(A)(3). It does not show he was aware of any risks posed to others by speeding. Id. Moreover, although Urias was speeding at the time of the collision, the cause of the collision was his failure to stop at a stop sign, not his speed. Consequently, the "facts" of the prior speeding conviction would not permit a jury to reasonably conclude that Urias, "as a result of it, . . . was made aware of the risks he posed to others" by failing to stop at a stop sign. See Woody, 173 Ariz. at 563, 845 P.2d at 489. The evidence was not relevant and therefore was inadmissible pursuant to Rule 404(b). See Ariz. R. Evid. 401.
¶17 The error, however, was harmless beyond a reasonable doubt. See Henderson, 210 Ariz. 561, ¶ 18, 115 P.3d at 607 (preserved trial error reviewed for harmless error). Urias testified he knew
coming "to a full and complete stop" at a stop sign is the "safe, reasonable and prudent" response. J.C. saw Urias, however, drive through a stop sign without stopping or even slowing down when Urias was behind J.C. After Urias passed J.C. approximately seventy-five feet before the intersection, J.C. did not see any brake lights, hear any screeching tires, or see Urias's truck make any evasive maneuvers as he entered the intersection just before the collision.
¶18 Additionally, despite Urias's claim that he attempted to brake, but his brakes failed, a mechanic who inspected his truck found the brakes were working properly at the time of the collision. And the data obtained from the truck's airbag control module showed that, during the five seconds before the collision, Urias had "floored" the gas pedal, was travelling at over sixty miles per hour and, rather than braking, was accelerating just before the collision. Urias's accident reconstruction expert also testified that Urias had failed to stop at the stop sign and the collision site lacked any evidence that Urias attempted to brake before colliding with A.A.'s truck.
¶19 Urias additionally complains that the admittance of the TSS evidence, along with the admission of his conviction for speeding in excess of eighty-five miles per hour, created the inference that he "was a speed demon" and, on the night of the collision, "he must have been driving recklessly as well." But the TSS evidence was properly admitted and the evidence of guilt was overwhelming. Additionally, the jury found him guilty of the lesser included offense of manslaughter, indicating it was not inflamed by this evidence. Accordingly, "we can say, beyond a reasonable doubt, that the error did not contribute to or affect the verdict." State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993); see also §§ 13-1103(A)(1), 13-105(10)(c).
Lay Opinion Testimony
¶20 Urias next argues the trial court erred by allowing J.C. to give opinion testimony that Urias and Morales were "racing" and their driving was "reckless." He contends J.C.'s opinion was "colored by his own paranoia" caused by a previous accident and
was thus not a rationally based perception. See Ariz. R. Evid. 701. He did not object to J.C.'s testimony on these bases below, and we therefore review only for fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607; see also Lopez, 217 Ariz. 433, ¶ 6, 175 P.3d at 684. But Urias has waived this argument on appeal by failing to argue the testimony constituted fundamental, prejudicial error. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d at 140; see also Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d at 650.
¶21 Furthermore, even had Urias not waived this argument, he cannot show he was prejudiced. See Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607. As already discussed above, ample evidence outside of J.C.'s lay opinion testimony on this point supported the jury's verdict in this case. And, as Urias points out, Morales testified they were not racing and both men testified they were not driving near one another. But in view of the overwhelming evidence of Urias's guilt, their testimony would not have created a reasonable doubt. Urias cannot show a reasonable jury could have reached a different result. See Butler, 230 Ariz. 465, ¶ 22, 286 P.3d at 1080-81.
Jury Instruction
¶22 Urias lastly argues the trial court's jury instruction regarding other-act evidence was erroneous because it instructed the jurors to consider such evidence to determine Urias's "awareness and knowledge of the risk" of harm. He contends using other-act evidence to show knowledge of a risk is an improper purpose pursuant to Rule 404(b). We review a court's decision to give a requested jury instruction for an abuse of discretion, but "review de novo whether jury instructions accurately state the law." State v. Fierro, 220 Ariz. 337, ¶ 4, 206 P.3d 786, 787 (App. 2008).
¶23 Over Urias's objections, the trial court instructed the jury as follows:
Evidence of other acts as to [Urias] has been presented. You may consider these acts only if you find that the State has proved by clear and convincing evidence that he committed these acts. You may
consider these acts to establish his awareness and knowledge of the risk. You must not consider these acts to determine his character or character trait, or to determine that he acted in conformity with his character or character trait and therefore committed the charged offense.
Urias asserts this instruction "went beyond the standard [Revised Arizona Jury Instructions] limiting instruction" for Rule 404(b) evidence. He thus appears to contend it instructed the jury to consider the evidence for an improper purpose.
¶24 The recommended instruction provides a suggested list of acceptable purposes for which a jury can consider other act evidence. State Bar of Arizona, Revised Arizona Jury Instructions (Criminal) Std. 26A (2015). That instruction mirrors the text of the rule itself and does not include awareness or knowledge of a risk. Id.; Ariz. R. Evid. 404(b). The instruction also, however, states the list "is not exhaustive. The trial court should include in the instruction the specific relevant purpose or purposes for which the evidence was admitted." State Bar of Arizona, Revised Arizona Jury Instructions (Criminal) Std. 26A (2015); see also State v. Fish, 222 Ariz. 109, ¶ 42, 213 P.3d 258, 271 (App. 2009) (Rule 404(b)'s list of proper non-propensity purposes for which other-act evidence admissible not exclusive).
¶25 The definitions of both second-degree murder and manslaughter include the fact that the defendant was aware of and disregarded a substantial and unjustifiable risk of death. §§ 13-1103, 13-1104(A)(3). A defendant's awareness of a risk of harm is a legitimate non-propensity purpose and was relevant to the charge here. See Woody, 173 Ariz. at 563, 845 P.2d at 489. This instruction therefore accurately stated the law.
¶26 Urias additionally argues the instruction was not supported by the evidence because his speeding conviction and attendance at TSS do not support a finding that he was aware of a risk of harm. See State v. Speers, 209 Ariz. 125, ¶ 27, 98 P.3d 560, 567 (App. 2004) (error to instruct jury on issue not supported by
evidence). He did not object to the instruction on these grounds below, and has therefore forfeited review for all but fundamental, prejudicial error. State v. Juarez-Orci, 236 Ariz. 520, ¶ 11, 342 P.3d 856, 859 (App. 2015); Lopez, 217 Ariz. 433, ¶ 6, 175 P.3d at 684. He has again failed to argue this error was fundamental and prejudicial, and has thus waived it for review. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d at 140; see also Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d at 650. Even if not waived, however, this argument is effectively identical to Urias's previous argument that those pieces of evidence should not have been admitted pursuant to Rule 404(b), which we have already addressed.
Sentencing Minute Entry
¶27 In our review of the record, we have discovered several technical errors in the trial court's sentencing minute entry. Although it correctly declares that Urias had been convicted of "Manslaughter," the minute entry refers to A.R.S. § 13-1104(A)(3), which is the statute for second-degree murder. Section 13-1103 is the appropriate citation for manslaughter. Additionally, the minute entry refers to A.R.S. § 13-702, which delineates the sentencing ranges for non-dangerous, non-repetitive offenders. Urias's conviction, however, was considered a dangerous offense based on a finding by the jury. The applicable sentencing range therefore is found in A.R.S. § 13-704. The sentencing minute entry also states the offense is "dangerous pursuant to A.R.S. § 13-604." Prior to 2008, § 13-604 was the correct statute for sentencing ranges for dangerous offenses. 2007 Ariz. Sess. Laws, ch. 248, § 1; 2008 Ariz. Sess. Laws, ch. 301, §§ 15, 28. In 2008, however, the legislature repealed that statute and replaced it with § 13-704. 2008 Ariz. Sess. Laws, ch. 301, §§ 15, 28.
¶28 Despite these errors, the record shows the trial court properly sentenced Urias pursuant to the range for manslaughter, a class 2 felony, as a dangerous offense pursuant to § 13-704. We correct the sentencing minute entry to replace the citation to "13-1104(A)(3)" with "13-1103," the citation to "13-702" with "13-704," and the citation to "13-604" with "13-704." See State v. Brown, 236 Ariz. 508, ¶ 7, 342 P.3d 844, 845 (App. 2015).
Disposition
¶29 For the foregoing reasons, we affirm Urias's conviction and sentence as corrected.