Opinion
No. 2 CA-CR 2017-0305
08-30-2018
THE STATE OF ARIZONA, Appellee, v. JUAN MANUEL BARAJAS-CERVANTES, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Mariette S. Ambri, 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NOT FOR PUBLICATION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. 31.19(e). Appeal from the Superior Court in Pinal County
No. S1100CR201602440
The Honorable Steven J. Fuller, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Mariette S. Ambri, Assistant Attorney General, Tucson
Counsel for Appellee Harriette P. Levitt, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:
¶1 Juan Barajas-Cervantes appeals his convictions and sentences for organized retail theft. He argues the trial court erred in denying his motion for sanctions, which stemmed from a discovery violation by the state. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to sustaining the jury's verdicts." State v. Wright, 239 Ariz. 284, ¶ 2 (App. 2016). In September 2016, Barajas-Cervantes and his codefendant, Jose Onate, entered a retail store, where the two filled separate carts with the same merchandise. Barajas-Cervantes went to the point-of-sale, paid for his items, and exited the store. After storing the merchandise in a truck, Barajas-Cervantes returned to the store, where he met Onate. The two men then left the store without paying for the items in Onate's cart.
¶3 A few days later, the two men returned to the store and repeated the same procedure. On this occasion, Barajas-Cervantes also concealed a drill in one of the items he had purchased. The next day, Barajas-Cervantes and Onate returned to the store and returned the stolen merchandise for cash. After a loss-prevention employee reviewed video of the "double dipping" theft, law enforcement was contacted. When Barajas-Cervantes was arrested, he was interviewed by a detective about his involvement in the scheme.
¶4 Six days before trial, it was discovered that a recording of the detective's interview with Barajas-Cervantes had not been timely disclosed. See Ariz. R. Crim. P. 15.1(b)(2), (c)(1) (requiring disclosure of defendant statements thirty days after arraignment). During the recorded interview, Barajas-Cervantes apparently denied involvement with the theft and offered explanations for his conduct. The following day, five days before trial, the state disclosed the recording. Two days prior to trial, Barajas-Cervantes filed a motion for sanctions, asking the trial court to preclude the detective who conducted the interview from testifying, to dismiss the case with prejudice, or to continue the trial date. See Ariz. R. Crim. P. 15.7.
The recorded interview was not included in the record on appeal. It is the appellant's burden to ensure the appellate record contains the necessary items to consider the arguments presented. State v. Olague, 240 Ariz. 475, ¶ 7 (App. 2016). Where the record is incomplete, we will presume the missing portions of the record support the trial court's ruling. State v. Zuck, 134 Ariz. 509, 513 (1982). Although we will not speculate as to the contents of the missing portions of the record, State v. Rivera, 168 Ariz. 102, 103 (App. 1990), the fact that Barajas-Cervantes made statements denying his involvement during the interview is not in dispute.
¶5 The morning of trial, the court heard argument from the parties on the motion for sanctions. The state conceded the discovery violation, and suggested an appropriate sanction would be to preclude the detective from testifying about the contents of the interview. It argued the basic contents of the interview had been disclosed months earlier in a report written by the detective, suggesting the violation was only a "technical" violation of the state's disclosure obligations. It further noted the state had requested the recording earlier in the case, but the detective had not included it with his disclosure to the prosecutor.
¶6 Barajas-Cervantes argued that precluding the interview would not be a sanction to the state, as the contents of the interview included exculpatory statements. In support of his request for dismissal or witness preclusion, he noted the disclosure was at a late stage in the proceedings. Regarding his request for a continuance, he argued he should be entitled to acquire a transcript of the interview, as portions of the recording were difficult to understand, further suggesting the transcript would be necessary for him to evaluate the nature of the late-disclosed evidence, re-interview the detective, and, if necessary, properly cross-examine the detective about the statements in the interview.
¶7 The trial court declined to impose any of Barajas-Cervantes's requested sanctions, noting the disclosure was only "three days late," apparently relying on the state's continuing disclosure obligations under Rule 15.6, Ariz. R. Crim. P. Instead, the court imposed the state's proposed sanction, which precluded the state from introducing evidence of the interview during its case-in-chief, but allowed the state to present evidence of the interview if the defense referred to it on cross-examination. The court additionally noted that it would order the detective to be available for the defense to re-interview based on the parties' review of the late-disclosed recording.
We disagree with the trial court's conclusion that the recording referred to in the detective's report, disclosed six months prior to trial, was only disclosed three days late, as it should have been disclosed much earlier in the proceedings. See Ariz. R. Crim. P. 15.1(b)(2), (c)(1) (supplemental disclosure requirements); Carpenter v. Superior Court, 176 Ariz. 486, 490 (App. 1993) (items subject to mandatory disclosure in possession of investigating agency deemed in possession of prosecutor for purposes of disclosure rule). Nevertheless, as explained below, the sanction imposed by the court complied with the requirements of Rule 15.7. --------
¶8 During trial, Barajas-Cervantes introduced evidence of the interview to show he had denied involvement in the scheme and had cooperated with the investigation, ultimately arguing he was merely present while Onate stole merchandise. The state subsequently elicited evidence from the interview, including that Barajas-Cervantes appeared evasive and that he may have been feigning his inability to speak English, the latter of which the state argued showed Barajas-Cervantes's consciousness of guilt.
¶9 After a three-day trial, the jury found Barajas-Cervantes guilty of two counts of organized retail theft. The trial court sentenced him to concurrent, six-year terms of imprisonment for each count. We have jurisdiction to consider Barajas-Cervantes's timely appeal pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).
Discussion
¶10 Barajas-Cervantes argues the sanction imposed by the trial court on his motion for sanctions, "was no sanction to the State at all" and essentially was to his detriment. He asserts the court should have granted his request for a continuance to obtain a transcript of the recorded interview. "Whether to impose a sanction for late disclosure and which sanction to impose are discretionary decisions left to the trial court; we will not disturb those decisions absent an abuse of discretion." State v. Moody, 208 Ariz. 424, ¶ 114 (2004). Barajas-Cervantes has not established such abuse here.
¶11 Pursuant to Rule 15.7(b), when a party has violated its disclosure obligations, with two exceptions that do not apply here, the trial court must impose an appropriate sanction for the violation. In considering an appropriate sanction for late disclosure, the court "must determine the significance of the information not timely disclosed, the violation's impact on the overall administration of the case, the sanction's impact on the party and the victim, and the stage of the proceedings when the party ultimately made the disclosure." Ariz. R. Crim. P. 15.7(c). Pursuant to the rule, available sanctions include, but are not limited to, restricting or precluding evidence, dismissal, or a continuance. Id. While the court has the discretion to employ whatever sanction it deems most appropriate, the sanction imposed should be proportionate to the harm caused by the late disclosure, and should seek to cure the harm caused to the maximum extent possible. State v. Ramos, 239 Ariz. 501, ¶ 9 (App. 2016).
¶12 The trial court's ruling demonstrates the court considered the factors required by Rule 15.7. The nature of the late disclosed evidence was cumulative to what had already been disclosed, as the detective had detailed the contents of the interview in his report. See Ariz. R. Crim. P. 15.7(c); see also State v. Zuck, 134 Ariz. 509, 513 (1982) (missing portions of record on appeal presumed to support court's ruling). Thus, the court could properly have concluded the late disclosure had a minimal impact on the overall administration of the case, and would have had a minimal impact on Barajas-Cervantes's ability to present a defense. See Ariz. R. Crim. P. 15.7(c). Because the court heard argument on the motion for sanctions the morning of trial, it was also aware of the stage in the proceedings at which the information was disclosed. See id.
¶13 Moreover, the trial court's sanction effectively cured any potential harm caused by the late disclosure. See Ramos, 239 Ariz. 501, ¶ 9. Assuming the defense had not opened the door to evidence of the interview on cross-examination, the sanction would have prevented the state from using the inculpatory portions of the interview to its advantage. While Barajas-Cervantes may have preferred a different sanction, he cites to no authority, and we are aware of none, which would have required the court to impose one of the sanctions he requested. Indeed, the decision of which sanction to impose lies within the sound discretion of the trial court, see Moody, 208 Ariz. 424, ¶ 114, which we cannot conclude was abused here.
Disposition
¶14 Barajas-Cervantes's convictions and sentences are affirmed.