Opinion
No. 2 CA-CR 2013-0452
09-22-2014
THE STATE OF ARIZONA, Appellee, v. NORMAN ADRIAN ALVAREZ, Appellant.
COUNSEL Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Section Chief Counsel, Phoenix Counsel for Appellee Lori J. Lefferts, Pima County Public Defender By Abigail Jensen, Assistant Public Defender, 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Appeal from the superior Court in Pima County
No. CR20123029001
The Honorable Javier Chon-Lopez, Judge
AFFIRMED
COUNSEL Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz, Section Chief Counsel, Phoenix
Counsel for Appellee
Lori J. Lefferts, Pima County Public Defender
By Abigail Jensen, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Brammer concurred. VÁSQUEZ, Judge:
The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶1 After a jury trial, Norman Alvarez was convicted of kidnapping, impersonating a peace officer, two counts of criminal impersonation, and two counts of sexual abuse. The jury also found Alvarez had a sexual motivation for committing the impersonation offenses. See A.R.S. § 13-118. The trial court sentenced him to concurrent prison terms, the longest of which was 2.5 years. On appeal, Alvarez argues the court erred by denying his motion to sever offenses committed on different occasions. We affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining Alvarez's convictions. See State v. Gay, 214 Ariz. 214, ¶ 2, 150 P.3d 787, 790 (App. 2007). This case stems from two separate incidents in May and August 2012. On an early morning in May 2012, A.S. was outside a convenience store in southern Tucson when Alvarez approached her and asked her to perform oral sex on him. She said no and walked away to a nearby bus stop, where Alvarez again asked her the same question and received the same response. Alvarez then told A.S. he was an undercover officer and had solicited her to determine whether she was a prostitute. He asked to see her identification card "to make sure [she did not] have any warrants." After she complied, he used his cell phone as if talking to someone and then informed A.S. that she "ha[d] no warrants" and that "they [had] told him to stay with [her]" because it was late and they were trying to locate a rapist.
¶3 Alvarez and A.S. walked to a nearby park, where they sat on a bench and he searched her purse. He repeatedly asked her to have sex with him and grew angrier each time she said no. When A.S. threatened to call the police, Alvarez stopped. He then asked if she had any weapons on her, to which she responded that she did, in her bra. After A.S. refused to let Alvarez search her, he "pulled down [her] shirt and grabbed [her] boobs." He also tried to "pull down [her] pants." Alvarez then took A.S.'s wallet, cell phone, and prescriptions from her purse and, while walking away, explained "he was going to make sure the prescriptions were valid." However, he never returned. A.S. reported the incident to police, who generated an attempt-to-locate bulletin that included a photographic image of Alvarez taken from the convenience store's video.
¶ 4 On an early morning in August 2012, Alvarez knocked on the front door of T.P.'s apartment in Tucson and identified himself as a bounty hunter. T.P. stepped outside, and Alvarez told her "he was going to take [her] boyfriend to jail because he had warrants." Alvarez had two cell phones and acted as if he was talking to someone, warning T.P. "[he] could get somebody [there] right [away]." When T.P. asked what she needed to do, Alvarez told her the bond was $5,000. She said she did not have that much money, and he offered to take $500. When she said she still could not afford it, Alvarez suggested that she do "something sexual" with him rather than paying. T.P. then went back inside, and Alvarez told her, "you better be back out here in an hour or I'm going to bust in your house."
¶5 In the parking lot of T.P.'s apartment complex, Alvarez approached P.R. as she was seated in her car smoking a cigarette. He told her that he was a bounty hunter and took her car keys out of the ignition. He was holding a knife at his side and told P.R. that someone was watching her and would hurt her if she moved. Alvarez touched her "chest, breasts, and stomach" and tried to kiss her, but P.R. pulled away. She asked Alvarez for his identification, but instead he gave her his cell phone number as proof that he was a bounty hunter. He then left, instructing P.R., "if you move, something is going to happen to you."
¶6 Alvarez then returned to T.P.'s apartment. T.K., T.P.'s boyfriend, who had been asleep when Alvarez had knocked on the door previously, told Alvarez to leave. Alvarez again stated that he was a bounty hunter and was going to take T.K. to jail. T.K. requested identification, which Alvarez did not produce, and T.K. told him to leave. At that point, Alvarez pulled out a knife and swung at T.K., who knocked the knife out of Alvarez's hand. Alvarez ran off saying he was going to call the police. T.K. followed and watched as Alvarez got into P.R.'s car. T.K. threw a rock at the car as it was driving off. T.P. called the police.
¶7 Once inside P.R.'s car, Alvarez instructed P.R. to drive. She drove to the other side of the complex and convinced Alvarez they should go see her brother who lived there. As P.R. walked inside her brother's apartment, she shut the door on Alvarez and told him to leave. P.R. later spoke to the police, who had arrived at the apartment complex in response to the earlier 9-1-1 calls. Based on Alvarez's call to the police, officers obtained an address associated with his cell phone number, went to that address, which happened to be an apartment in the same complex, and located Alvarez, who T.P., T.K., and P.R. all identified.
¶8 During the investigation, an officer thought the events that night "sounded familiar" and he recognized Alvarez from the attempt-to-locate bulletin from the May incident. During the search of Alvarez's apartment, officers found A.S.'s missing cell phone. Based on the incidents in May and August, Alvarez was charged with aggravated assault, two counts of criminal impersonation, two counts of sexual abuse, kidnapping, and impersonating a peace officer. The state alleged that the kidnapping and impersonating offenses were sexually motivated.
¶9 Before trial, Alvarez filed a motion to sever the counts into three trials: one for the offenses involving T.P. and T.K; one for the offenses involving P.R.; and one for the offenses involving A.S. He argued he was entitled to severance of right because "the counts [we]re joined based on mere similarity" and "what little similarity exists d[id] not amount to a 'signature' for the crimes." After hearing argument, the trial court denied the motion, reasoning that Alvarez's "alleged conduct as to each count would be admissible in separate trials" because it was "sufficiently similar as to constitute modus operandi."
¶10 A jury found Alvarez guilty of all the counts—except aggravated assault, for which the trial court declared a mistrial—and found the sexually motivated allegation proven for the impersonating offenses but not kidnapping. In lieu of a retrial on aggravated assault, Alvarez pleaded guilty to disorderly conduct. The court sentenced him as described above, and this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Motion to Sever
¶11 Alvarez argues the trial court erred by denying his motion to sever the May and August offenses. We review a trial court's denial of a motion to sever for an abuse of discretion. State v. Fernane, 185 Ariz. 222, 227, 914 P.2d 1314, 1319 (App. 1995). In so doing, we consider "the evidence before the court at the time the motion was made." State v. Blackman, 201 Ariz. 527, ¶ 39, 38 P.3d 1192, 1202 (App. 2002).
Although Alvarez requested to sever the August offenses involving T.P. and T.K. from those involving P.R. below, he does not reassert this argument on appeal. We therefore do not address it. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) ("Failure to argue a claim on appeal constitutes waiver of that claim.").
--------
¶12 "The joinder and severance rules must be read together." State v. Henderson, 116 Ariz. 310, 316, 569 P.2d 252, 258 (App. 1977). Rule 13.3(a), Ariz. R. Crim. P., provides that two or more offenses may be joined if they: "(1) Are of the same or similar character; or (2) Are based on the same conduct or are otherwise connected together in their commission; or (3) Are alleged to have been a part of a common scheme or plan."
¶13 Rule 13.4, Ariz. R. Crim. P., provides two methods of severance. First, in general, when two or more offenses are joined, "the court may on its own initiative, and shall on motion of a party," order severance if "necessary to promote a fair determination of the guilt or innocence of . . . any offense." Ariz. R. Crim. P. 13.4(a). Second, a defendant is entitled to severance "as of right" for offenses joined because they "[a]re of the same or similar character" under Rule 13.3(a)(1), "unless evidence of the other offense or offenses would be admissible under applicable rules of evidence if the offenses were tried separately." Ariz. R. Crim. P. 13.4(b).
¶14 Alvarez asserts his offenses "were not properly joined" under Rule 13.3(a)(2) or (3) and "the only possible basis for joinder" was Rule 13.3(a)(1). He further argues he was entitled to severance as of right because evidence of the May and August offenses would not have been admissible in separate trials. The state does not dispute that his offenses were joined under Rule 13.3(a)(1) but instead maintains that evidence of the May and August offenses would have been admissible in separate trials.
¶15 In determining whether evidence of other offenses would be admissible in separate trials pursuant to Rule 13.4(b), the court must consider Rule 404(b), Ariz. R. Evid. State v. Ives, 187 Ariz. 102, 106, 927 P.2d 762, 766 (1996). Rule 404(b) generally provides that "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Such evidence "may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Ariz. R. Evid. 404(b). Identity may be proved by showing a "distinctive modus operandi." State v. Latino, 25 Ariz. App. 66, 70, 540 P.2d 1285, 1289 (1975). In such circumstances, there must "'be a high degree of similarity between the offenses and an element of uniqueness in the method of commit[t]ing the crimes so as to give grounds for the inference that the crimes are committed by the same person.'" Id., quoting State v. Hernandez, 7 Ariz. App. 200, 204, 437 P.2d 952, 956 (1968).
¶ 16 Here, the trial court did not abuse its discretion in finding the similarities between the May and August offenses sufficiently distinctive to show the identity of the assailant. See Fernane, 185 Ariz. at 227, 914 P.2d at 1319. Most notably, in all of the offenses, Alvarez posed as law enforcement—either a bounty hunter or an undercover officer. See State v. Akins, 94 Ariz. 263, 266, 383 P.2d 180, 182-83 (1963) ("Similarities between offenses . . . must be in those important aspects where normally there could be expected to be found differences."). He used these apparent positions of authority to take advantage of the female victims, either soliciting sexual acts or touching them in a sexual manner. This similarity provides the "element of uniqueness" required by Latino, 25 Ariz. App. at 70, 540 P.2d at 1289. Additionally, in each incident, Alvarez used a cell phone to assist with his law enforcement façade, and he had exhibited a knife during each offense. In talking with T.P. and A.S., Alvarez also discussed the victims "ha[ving] warrants." Indeed, the reason the May and August offenses were connected initially was because an investigating officer thought they "sounded familiar."
¶17 As Alvarez points out, there are some differences in the offenses. The May incident occurred outside a convenience store and then at a bus stop, while the August incident occurred at an apartment complex. But the two incidents nonetheless occurred in the same area of town in the early morning hours. And the locations appear to be a matter of convenience—Alvarez had driven to the convenience store and lived in the apartment complex. Moreover, although there was a single male victim, T.K., he does not appear to have been the target; rather, Alvarez hoped T.P. would do "something sexual" in exchange for T.K.'s alleged bond. The dissimilarities therefore are minimal in comparison to the similarities. See State v. Lehr, 227 Ariz. 140, ¶ 21, 254 P.3d 379, 386 (2011) ("Acts need not be perfectly similar in order for evidence of them to be admitted under Rule 404."). Thus, assuming the offenses were joined under Rule 13.3(a)(1), Alvarez was not entitled to severance as of right because the offenses would have been cross-admissible in separate trials under Rule 13.4(b).
¶18 Furthermore, we cannot say the trial court abused its discretion by denying Alvarez's motion for severance to the extent it was based on Rule 13.4(a). See Fernane, 185 Ariz. at 227, 914 P.2d at 1319. To challenge the denial of a severance under that rule, "a defendant 'must demonstrate compelling prejudice against which the trial court was unable to protect.'" State v. Miller, 234 Ariz. 31, ¶ 18, 316 P.3d 1219, 1226 (2013), quoting State v. Prince, 204 Ariz. 156, ¶ 13, 61 P.3d 450, 453 (2003). But Alvarez cannot show compelling prejudice because the court instructed the jurors to "decide each count separately on the evidence with the law applicable to it, uninfluenced by [their] decision on any other count" and further explained the state bore the burden of proving "each element of each charge beyond a reasonable doubt." See id.; State v. Comer, 165 Ariz. 413, 419, 799 P.2d 333, 339 (1990); see also State v. Velazquez, 216 Ariz. 300, ¶ 50, 166 P.3d 91, 103 (2007) ("[W]e presume that jurors follow their instructions.").
Disposition
¶19 We affirm Alvarez's convictions and sentences.