Opinion
No. 1 CA-CR 14-0215
12-18-2014
STATE OF ARIZONA, Appellee, v. LINDA ESMERALDA GARCIA-GALVEZ, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Terry M. Crist, III Counsel for Appellee Yuma County Public Defender's Office, Yuma By Edward F. McGee Counsel for Appellant
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Yuma County
No. S1400CR201300909
The Honorable John N. Nelson, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee
Yuma County Public Defender's Office, Yuma
By Edward F. McGee
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Jon W. Thompson delivered the decision of the Court, in which Judge Donn Kessler and Judge Kent E. Cattani joined. THOMPSON, Judge:
¶1 Linda Esmeralda Garcia-Galvez appeals from her conviction and sentence of one count of taking the identity of another person or entity, a class 4 felony. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On August 20, 2013, Garcia was a passenger aboard a shuttle transport van that was stopped at an immigration checkpoint near Yuma, Arizona. As part of the immigration inspection, U.S. Border Patrol Agent R.P. asked Garcia to state her citizenship. In response, Garcia handed him a U.S. passport card with the name Maria E.R. Agent R.P. repeated his question, but Garcia appeared unable to understand him and again pointed to the passport card. Agent R.P. began questioning Garcia in Spanish, and Garcia stated that her name was Maria E.R., her date of birth was Dec. 8, 1993, and her citizenship was "Arizona." Although the information provided by Garcia matched the information on the passport card, Agent R.P. observed that the photo on the passport card was not that of Garcia. Upon questioning her further, Garcia answered that she grew up in "San Luis," but could not remember her home address or the name of the school she had attended.
¶3 A digital scan of Garcia's fingerprints revealed that her name was Linda Esmeralda Garcia-Galvez; her date of birth was January 10, 1991; she was born in Jalisco, Mexico; and she previously applied for a U.S. Visa. Agent R.P. also observed that the photo in the database associated with Garcia's fingerprints was that of Garcia. Border Patrol Agent S.L. examined the passport card provided by Garcia, and determined that it was an authentic, valid U.S. passport card issued to Maria E.R.
¶4 Garcia was indicted on one count of taking the identity of another, and a jury subsequently found her guilty as charged. The superior court imposed a thirty-six month term of unsupervised probation. Garcia filed a timely notice of appeal. This court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), and 13-4033(A)(1) (Supp. 2013).
DISCUSSION
¶5 Garcia argues that the evidence at trial did not support her conviction for taking the identity of another because the State failed to prove that she possessed or used the passport card without the consent of the owner. In reviewing the sufficiency of the evidence at trial, we view the facts in the light most favorable to sustaining the jury's verdict and resolve all inferences against the defendant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). This court looks for "substantial evidence" from the entire record from which "reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt." State v. Cox, 217 Ariz. 353, 357 ¶ 22, 174 P.3d 265, 269 (2007) (citation omitted). "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)); see also State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987) ("[I]t must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury.").
¶6 To prove taking the identity of another, the State must show:
[T]he person knowingly takes, purchases, manufactures, records, possesses or uses any personal identifying information or entity identifying information of another person or entity, including a real or fictitious person or entity, without the consent of that other person or entity, with the intent to obtain or use the other person's or entity's identity for any unlawful purpose or to cause loss to a person or entity whether or not the person or entity actually suffers any economic loss as a result of the offense, or with the intent to obtain or continue employment.A.R.S. § 13-2008(A) (Supp. 2013) (emphasis added).
¶7 Garcia contends that in order to prove the consent element of the offense, the State was obliged to introduce evidence that Maria E.R. affirmatively stated that she did not consent to Garcia's use of her passport. We disagree. Nonconsent of an owner may be established by direct or circumstantial evidence. See State v. Butler, 82 Ariz. 25, 29, 307 P.2d 916, 919 (1957) (holding circumstantial evidence alone may establish nonconsent of owner in theft cases); see also State v. Burton, 144 Ariz. 248, 252, 697 P.2d 331, 335 (1985) (guilt may be proven by circumstantial evidence alone); State v. Lopez, 163 Ariz. 108, 112, 786 P.2d 959, 963 (1990) (finding circumstantial evidence established nonconsent in sexual assault case despite lack of testimony from victim); State v. Romo, 66 Ariz. 174, 187, 185 P.2d 757, 765 (1947) (stating physical condition of victim may establish lack of consent). Here, the jury heard evidence that Garcia presented Maria E.R.'s U.S. passport card to Agent R.P. as evidence of her citizenship; Garcia stated that her name was Maria E.R. and that her birthday matched that on the passport card; and Garcia falsely claimed to be an Arizona resident. See State v. Fulminante, 193 Ariz. 485, 494, ¶ 27, 975 P.2d 75, 84 (1999) (stating that false, misleading, and inconsistent statements made by defendant to police show consciousness of guilt). Given these facts, a reasonable trier of fact could find that Garcia knowingly possessed and used Maria E.R.'s personal information without her consent to unlawfully claim U.S. citizenship.
¶8 We likewise reject Garcia's additional argument that Maria E.R. could have consented to Garcia's use of her passport card for a lawful purpose. While we find substantial circumstantial evidence in the record that Maria E.R. did not consent to Garcia's use of her passport card, we find no evidence in the record that Maria E.R. did, in fact, give her consent to Garcia. See State v. Lopez, 230 Ariz. 15, 17, ¶ 3, 279 P.3d 640, 642 (App. 2012) (stating reversal of a conviction requires a "complete absence of probative facts to support the jury's conclusion) (citations omitted); see also State v. Nash, 143 Ariz. 392, 404, 694 P.2d 222, 234 (1985) (stating that the prosecution does not need to "negate every conceivable hypothesis of innocence when guilt has been established by circumstantial evidence"). Additionally, we note that federal law prohibits any person from willfully and knowingly using, or attempting to use, any passport issued or designed for the use of another, or willfully and knowingly furnishing, disposing of, or delivering a passport to any person for the use of any person other than the person for whose use it was originally issued and designed. 18 U.S.C. § 1544 (2002). Accordingly, Maria E.R.'s passport card is a type of passport that could not lawfully be given to Garcia for her own use as identification. See 22 C.F.R. § 51.3(d) (2007). Sufficient evidence supported the jury's verdict. Jury Instructions
"Passport" is defined as "any travel document issued by competent authority showing the bearer's origin, identity, and nationality if any, which is valid for the admission of the bearer into a foreign country." 8 U.S.C. § 1101(a)(30) (2014); see also 22 C.F.R. § 51.1(d) (2008) ("Passport means a travel document regardless of format issued under the authority of the Secretary of State attesting to the identity and nationality of the bearer.")
"Passport card" is defined as a card "issued to a national of the United States on the same basis as a regular passport. It is valid only for departure from and entry to the United States through land and sea ports of entry between the United States and Mexico, Canada, the Caribbean and Bermuda. It is not a globally interoperable international travel document." 22 C.F.R. § 51.3(d).
--------
¶9 Garcia next contends that the court wrongfully commented on the evidence by instructing the jury that it was not possible for a person to consent to an unlawful act. We review the trial court's decision to give a jury instruction for an abuse of discretion. State v. Johnson, 205 Ariz. 413, 417, ¶ 10, 72 P.3d 343, 347 (App. 2003). We review the legal adequacy of an instruction de novo. State v. Martinez, 218 Ariz. 421, 432, ¶ 49, 189 P.3d 348, 359 (2008). We will not reverse a criminal conviction based on instructional error unless we find that the instructions, taken as a whole, may have misled the jury. See State v. Johnson, 155 Ariz. 23, 26, 745 P.2d 81, 84 (1987); see also Catchings v. City of Glendale, 154 Ariz. 420, 424, 743 P.2d 400, 404 (App. 1987) (noting that a jury verdict will not be overturned because of an improper instruction unless there is substantial doubt as to whether the jury was properly guided in its deliberations).
¶10 The jury submitted the following question during deliberations: "Under the page of 'Taking the Identity of a Person or Entity' . . . is 'Without Consent' need to be proven to meet this law [sic]." Over Garcia's objection, the trial court provided a jury instruction which stated:
'Without the consent of that person' as found in the instruction is not defined in the statute.
The consent of a person for purposes of committing an unlawful act is not a lawful consent.
The state must prove each element of the charged offense beyond a reasonable doubt. You should rely upon the instructions given to you to determine what evidence has been presented to reach your verdict.
¶11 The Arizona Constitution prohibits trial judges from commenting on the evidence presented at trial. See Ariz. Const. art. 6, § 27. "To violate this prohibition, 'the court must express an opinion as to what the evidence proves' or 'interfere with the jury's independent evaluation of that evidence.'" State v. Roque, 213 Ariz. 193, 213, ¶ 66, 141 P.3d 368, 388 (2006) (quoting State v. Rodriguez, 192 Ariz. 58, ¶ 29, 961 P.2d 1006, 1011 (1998)). Here the court did neither. Nothing in the instruction suggested what the court thought the evidence proved. And, contrary to Garcia's contention, the instruction did not interfere with the jury's evaluation of the evidence. The jurors were specifically instructed regarding the elements of the offense, and these instructions clearly left it to the jury to find beyond a reasonable doubt that Garcia had committed each element of the offense. See State v. Navallez, 131 Ariz. 172, 174-75, 639 P.2d 362, 364-65 (App. 1981). Reversal is therefore not warranted on this basis.
CONCLUSION
¶12 For the foregoing reasons, we affirm Garcia's conviction and sentence.