Opinion
No. 1 CA-CR 18-0310
05-16-2019
STATE OF ARIZONA, Appellee, v. YOLANDA JOY VARGAS, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Stephen L. Duncan, Attorney at Law, Scottsdale By Stephen L. Duncan 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2017-123921-002
The Honorable Michael D. Gordon, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee Stephen L. Duncan, Attorney at Law, Scottsdale
By Stephen L. Duncan
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge James P. Beene delivered the decision of the Court, in which Judge Michael J. Brown and Judge James B. Morse Jr. joined. BEENE, Judge:
¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969). Yolanda Joy Vargas was convicted of armed robbery. Counsel searched the record on appeal and found no arguable question of law that is not frivolous. Vargas has filed a supplemental brief in propria persona, which the Court has considered. Counsel now asks this Court to search the record for fundamental error. After reviewing the record, we affirm Vargas's conviction and sentence.
FACTS AND PROCEDURAL HISTORY
¶2 In May 2017, two males approached an ice cream truck while a third person waited in a vehicle. This third person, a female, ducked down behind the driver's steering wheel as if trying to hide from view. The first male ordered ice cream "like any other customer," but the second male reached under his shirt and demanded "[g]ive me everything you got. I have a gun." While the ice cream truck driver ("IC driver") did not actually see the gun, she believed the second male had a gun and threw the money bag to him. The first male then grabbed some additional ice cream and both males ran to the waiting-vehicle. The female driver then "sped [the vehicle] backwards down the street."
¶3 The IC driver followed the fleeing vehicle, obtained a partial license plate number, and called 9-1-1, but was told by dispatch to cease her pursuit. Within minutes of the incident, police air surveillance identified and monitored the speeding vehicle. After the vehicle stopped, police officers witnessed a male and a female exit the vehicle and saw the male move to multiple locations. A gun, belt-clip holster, and ice cream wrappers were later located at these locations. Additionally, melted ice cream was later found in the vehicle, which was determined to have been stolen.
¶4 One male and one female were taken into custody, and the female was identified as Vargas. The other male robbery suspect was not present in the vehicle. The IC driver positively identified the male as the person with the gun who had taken the money bag. The IC driver, however, could not identify Vargas as the driver of the getaway vehicle because she never saw her face. The IC driver did see that the getaway driver had long curly brown hair and wore a white shirt. The jury was provided photographs of Vargas that depicted her hair and clothing at the time she was taken into custody.
¶5 Subsequently, Vargas was charged with one count of armed robbery, a Class 2 dangerous felony, and one count of theft of means of transportation, a Class 3 felony. The State also alleged multiple aggravators.
¶6 The jury found Vargas guilty of armed robbery, a Class 2 felony, and found two aggravators—the presence of an accomplice and the commission of the robbery while on release or probation. The jury, however, acquitted Vargas on the theft charge. The court later found that Vargas had a historical prior felony conviction.
¶7 Vargas moved for a judgment of acquittal at the close of the State's case and again at the conclusion of the trial. The court denied each request. See Ariz. R. Crim. P. 20. Vargas then timely moved for a new trial, which was also denied. See Ariz. R. Crim. P. 24.1.
¶8 For the robbery charge, the superior court sentenced Vargas to the presumptive term of 9.25 years in prison.
¶9 We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes sections 12-120.21(A)(1), 13-4031 and -4033(A)(1). Further, we have read and considered counsel's brief, Vargas's supplemental brief, and fully reviewed the record in search of reversible error. See Leon, 104 Ariz. at 300. We view the facts in the light most favorable to sustaining the judgment and resolve all reasonable inferences against Vargas. See State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
DISCUSSION
¶10 The record reflects no fundamental error in pretrial or trial proceedings. Vargas was represented by counsel at all critical stages in the proceedings. The superior court conducted a Donald hearing, and Vargas rejected the State's offer of a plea agreement and exercised her right to a jury trial.
See State v. Donald, 198 Ariz. 406 (App. 2000).
¶11 The jury was properly composed of twelve members and two alternates. Vargas was unanimously convicted, and the record provides no indication of juror bias or misconduct.
¶12 The superior court received a presentence report, accounted for aggravating and mitigating factors, and provided Vargas an opportunity to speak at sentencing. The superior court properly sentenced Vargas to the presumptive, concurrent sentence of 9.25 years in prison.
¶13 Through her supplemental brief in propria persona, Vargas claims there is error in the record. Specifically, Vargas asserts issues previously raised at trial: 1) there was error in the jury instructions and insufficient evidence to warrant a conviction; 2) the conviction was contrary to the law or the evidence, and the IC Driver failed to identify Vargas; 3) hearsay was improperly admitted at trial; and 4) the State committed prosecutorial misconduct. Further, Vargas adds a new claim that 5) a lack of venue change resulted in jury bias.
I. The Record Supports the Armed Robbery Conviction.
¶14 Vargas alleges error in the jury instructions and that "the State did not provide substantial evidence of all of the elements of the offense," such that "no rational trier of fact could find guilt beyond a reasonable doubt," which "constitutes as fundamental error." As discussed below, we disagree.
A. The jury was properly instructed.
¶15 The jury was instructed concerning the elements of the crime, burden of proof, presumption of innocence, reasonable doubt, and unanimous verdict.
¶16 The jurors were also instructed on the elements of armed robbery and accomplice liability. Specifically, jurors were instructed that:
The crime of armed robbery requires proof of the following:
1. The defendant took the property of another person; and
2. The taking was from the other person's or person immediate presence; andSee A.R.S. §§ 13-1902, -1904. Further, jurors were instructed:
3. The taking was against the other person's will; and
4. The defendant threatened to use force against any person with the intent to force surrender of the property. . . ; and
5. The defendant or an accomplice in the course of committing the robbery was armed with a deadly weapon or the defendant threatened to use a deadly weapon and the weapon was present and available for use."
"Accomplice" means a person who, with the intent to promote or facilitate the commission of the offense, does any of the following:See A.R.S. §§ 13-301, -303(A).
1. Solicits or commands another person to commit the offense; or
2. Aids, counsels, agrees to aid or attempts to aid another person in planning or committing the offense; or
3. Provides means or opportunity to another person to commit the offense.
A defendant is criminally accountable for the conduct of another person if the defendant is an accomplice of such other person in the commission of the offense . . . .
The State explicitly disclaimed reliance on the use of a simulated weapon, so the jury was not instructed that a simulated weapon can satisfy the elements of armed robbery under A.R.S. § 13-904. --------
¶17 Further, during deliberations, the jury requested clarification regarding the meaning of the accomplice instructions by asking:
Page 8, accomplice says, accomplice means a person with the intent to promote or facilitate the commission. And then it has an ellipse, dot dot dot. Question is: In the sentence[,] does intent apply to facilitate, [and] would an equivalent sentence say intent to promote or intent to facilitate?The superior court and Vargas viewed this question as a "grammar question," and, upon approval by counsel, the court responded with a written response clarifying:
'Accomplice' means a person, who, with the intent to promote the commission of the offense, or with the intent to facilitate the commission of the offense, does any of the following . . . .Thus, the record establishes the jury was properly instructed regarding the elements of armed robbery and accomplice liability.
B. The record supports the sufficiency of the evidence for these elements.
¶18 The Arizona Rules of Criminal Procedure ("Rule") require "the court must enter a judgment of acquittal . . . if there is no substantial evidence to support a conviction." Ariz. R. Crim. P. 20(a)(1). "Substantial evidence . . . is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of [the] defendant's guilt beyond a reasonable doubt." State v. Harm, 236 Ariz. 402, 406, ¶ 11 (App. 2015) (quotation omitted). "Th[is] substantial evidence required to warrant a conviction may be either circumstantial or direct. . . . The probative value of direct and circumstantial evidence is essentially similar, and there is no distinction as to weight assigned to each. A conviction may be sustained on circumstantial evidence alone." State v. Blevins, 128 Ariz. 64, 67 (App. 1981) (citations omitted).
¶19 Additionally, pursuant to Rule 24, the superior court has discretion to grant a new trial in certain circumstances, including "the verdict [being] contrary to law or the weight of the evidence." Ariz. R. Crim. P. 24.1(c)(1). "The judge's duty is essentially to see that there is no miscarriage of justice. If convinced that there has been[,] then it is his duty to set the verdict aside; otherwise not." Cano v. Neill, 12 Ariz. App. 562, 569 (1970) (quotation omitted). Moreover, the court "should not set the verdict aside as against the weight of the evidence merely because, if [it] had acted as trier of the fact, [it] would have reached a different result. . . . And since the credibility of witnesses is peculiarly for the jury[,] it is an invasion of the jury's province to grant a new trial merely because the evidence was sharply in conflict." Id.
¶20 Here, as stated, supra, ¶ 2, a bank bag, cash, and ice cream were taken from the presence of the IC driver, against the driver's will, by the purported possession of a gun, and, further, a weapon was later recovered. This evidence sufficiently supports the elements of armed robbery, supra, ¶ 16.
¶21 Further, testimony provided, supra, ¶¶ 2-3, that a female driver waited in the vehicle during the robbery, hid behind the steering wheel so she would not be seen, and then drove backwards away from the crime at a high rate of speed. A reasonable jury could find that these acts meet the statutory requirements of promoting or facilitating the armed robbery and, further, established knowledge and intent to commit the act, as required, supra, ¶¶ 16-17.
¶22 Moreover, as stated, supra, ¶¶ 2-3, law enforcement witnesses testified that, within minutes of the vehicle leaving the crime scene, police air patrol began surveillance of a speeding vehicle and its male and female occupants, and noted that the male occupant moved to multiple locations from which a gun, a holster, and ice cream wrappers were later recovered. Further, the male occupant was identified by the IC driver as the person who demanded her money and said he possessed a gun, supra, ¶ 2. Furthermore, Vargas was later determined to be the female who exited the vehicle, and the jury was provided with photographs that showed Vargas's hair and clothing on the day of the robbery. Supra, ¶ 4. Thus, the jury was provided with sufficient evidence to determine whether Vargas was the female driver with long curly brown hair who wore a white shirt. Id.
¶23 Based on this evidence, a reasonable jury could have found beyond a reasonable doubt that: (1) an armed robbery was committed, supra, ¶¶ 16, 20; (2) the female driver was an accomplice, supra, ¶¶ 16-17, 21; and (3) Vargas was the female driver, supra, ¶ 22. We will not invade the province of the jury and substitute our opinion when sufficient evidence, even circumstantial evidence, exists in the record to uphold the conviction. Supra, ¶ 23.
II. The Evidence Supports That The Jury's Verdict Was Not Illogical.
¶24 Vargas also claims "the jury did not understand the . . . law as it pertained to the accomplice liability" and that the verdict was "illogical and erroneous." Further, Vargas claims the "State failed to prove that the robbery was ever committed with a deadly weapon, nor that there was ever a weapon actually present at the time of the offense." However, Vargas conflates the requirements of dangerousness and armed robbery.
¶25 Statute provides that "[a] person commits armed robbery if, in the course of committing a robbery . . . such person or an accomplice: 1. [i]s armed with a deadly weapon . . . ; or 2. [u]ses or threatens to use a deadly weapon . . . ." A.R.S. § 13-1904(A)(1), (2). This finding does not require that a weapon be displayed or seen, but it does require the weapon be possessed or accessible. See State v. Snider, 233 Ariz. 243, 246, ¶ 8 (App. 2013); State v. Laughter, 128 Ariz. 264, 268 (App. 1980). Thus, to establish armed robbery, a person, or her accomplice, must possess, use, or threaten to use a deadly weapon.
¶26 However, a dangerous-offense finding requires different elements. The statute defines a "dangerous offense" as "an offense involving the discharge, use or threatening exhibition of a deadly weapon" and "provides an enhanced sentencing scheme for dangerous offenders . . . [and] essentially adds to the underlying offense an element that subjects the defendant to increased penalties." A.R.S. § 13-105(13); State v. Larin, 233 Ariz. 202, 211, ¶ 30 (App. 2013) (citations omitted); see also A.R.S. § 13-704. This enhanced penalty requires more than the possession or threatened use of a deadly weapon as required for armed robbery; but rather dangerous offense requires the actual use, discharge or threatened exhibition of a deadly weapon. Thus, a person could possess a weapon, meeting the requirement of armed robbery, without actually using the weapon, as required for a finding of a dangerous offense.
¶27 Here, the second male in the armed robbery stated, "[g]ive me everything you got. I have a gun," supra, ¶ 2; but no gun was actually seen. Still, a gun was later recovered near the site where Vail was apprehended, supra, ¶ 3, which supports the male's access to or possession of the gun, as required for armed robbery, supra, ¶ 16. Yet, the jury may also have found that because the gun was not exhibited, discharged, or actually used, the State failed to meet the requirements for a dangerous offense, supra, ¶ 26.
¶28 Indeed, the superior court's ruling on Vargas's motion supports this premise. The superior court stated:
Notably, the armed-robbery instruction did not technically require that the gun be used---under a plausible reading of that instruction. The jury was told that armed robbery required the threatened use of a gun and only that the gun be "present and available for use." Thus, the jury may well have found the evidence that the gun was located at the arrest scene sufficiently demonstrated that the firearm was present and available for use, but not actually used.Thus, the record supports the jury's finding that the robbery was committed with a deadly weapon.
III. The Statements Were Properly Admitted Because They Were Not Hearsay.
¶29 Vargas also claims the IC Driver "uttered other statements that were hearsay, but admitted over objection." During cross-examination, Vargas questioned the IC Driver on the issue of suspect identity, and, after repeated questioning on the IC Driver's view of the person's bodily features, Vargas asked: "Ever see anything identifiable about that person at all?" The IC Driver then responded, "No. [But t]he man in the red did say 'babe' and 'mommy'" in reference to the person. Vargas immediately objected to this statement as hearsay and requested the statement be stricken from the record.
¶30 In general, an out-of-court statement offered to prove the truth of the matter asserted is inadmissible unless grounded in a hearsay exception. Ariz. R. Evid. 801(c), 802. Here, the statement was offered by the witness to explain why she identified a person as female. The statement was not made to prove the truth that the driver actually was female. Thus, the statement was not hearsay. The superior court properly admitted statements despite the hearsay objection.
IV. The Record Does Not Support Claims of Prosecutorial Misconduct.
¶31 Vargas claims the State committed prosecutorial misconduct during closing arguments by "repeatedly ma[king] reference to facts that were not admitted into evidence during trial, and mis[stating] evidence and testimony of the witnesses," but Vargas fails to provide examples or cite to the record. See Ariz. R. Crim. P. 31.10.
¶32 Vargas's claims appear to be quoted from the previously-denied motion for new trial, which contended the State erred by stating what Vargas "knew" and that the victim "had to be 'telling the truth,'" and by "referenc[ing] the 'conspiracy theory' . . . [and] call[ing] attention to matters that were not relevant to the verdicts [or charging]." This claim similarly fails because Vargas fails to cite to the record.
¶33 We presume that because Vargas cites to the motion for new trial, she intends to raise the same issues. While the record does reveal statements of "conspiracy theories" and knowledge in closing arguments, these references relate to the theft charge, of which Vargas was acquitted, and not to the armed robbery charge, which is the subject of this appeal. On review, the record fails to support the misconduct claim.
V. A Venue Challenge on Appeal Is Untimely and The Record Reveals No Evidence of Improper Influence.
¶34 Finally, Vargas raises, in propria persona, an additional claim of jury bias "due to public exposure," "broadcast[] on all local news channels and [publicity] on the internet."
¶35 Rule 10.3(a) provides that a party is entitled to a venue change if the party "cannot have a fair and impartial trial." Ariz. R. Crim. P. 10.3(a). Further, Rule 10.3(c) requires that the "party seeking to change the place of trial must file a motion seeking that relief. The motion must be filed before trial . . . ." Ariz. R. Crim. P. 10.3(c).
¶36 The record shows jurors were asked during voir dire if "anyone [had] ever seen or read or heard anything about this case or [had] heard anyone express any opinion about this case?" No juror indicated an affirmative response to this question. Further, once impaneled, jurors were instructed that "Arizona law prohibits a juror from receiving evidence not properly admitted at trial . . . [, from] consult[ing] any source such as a newspaper, . . . television, radio or the Internet for information," and that jurors are "to avoid . . . media representatives about anything until the case is over . . . ."
¶37 Vargas fails to provide any evidence that jurors ignored these instructions, saw publicity regarding the case, or were influenced by information outside the record. Further, Vargas raises the claim for the first time in appellate supplemental briefing, thus, the challenge is untimely and not preserved. See Ariz. R. Crim. P. 10.3(c). The record fails to support improper juror influence. The court did not err by continuing with trial without a change of venue.
CONCLUSION
¶38 For the foregoing reasons, we affirm Vargas's conviction and sentence. Upon the filing of this decision, defense counsel shall inform Vargas of the status of the appeal and of her future options. Counsel has no further obligations unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Vargas shall have 30 days from the date of this decision to proceed, if she desires, with a propria persona motion for reconsideration or petition for review.