Opinion
No. 2 CA-CR 2014-0018
03-25-2015
THE STATE OF ARIZONA, Appellee, v. HORACIO LOMELI, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Jonathan Bass, Assistant Attorney General, Tucson Counsel for Appellee Law Offices of Charles A. Thomas, P.L.C., Nogales By Charles A. Thomas 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NOT FOR PUBLICATION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 Santa Cruz County
No. CR12102
The Honorable James A. Soto, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Jonathan Bass, Assistant Attorney General, Tucson
Counsel for Appellee
Law Offices of Charles A. Thomas, P.L.C., Nogales
By Charles A. Thomas
Counsel for Appellant
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge:
¶1 Following a jury trial, Horacio Lomeli was convicted of one count of conspiracy, one count of money laundering, and six counts of theft. On appeal, he argues the jury's verdicts are against the weight of the evidence, the trial court erred in denying his motion for a new trial and his motion for a judgment of acquittal, he did not receive a fair trial, and the court erred in finding the offenses were "not committed on the same occasion." We affirm.
Factual and Procedural Background
¶2 "'We view the facts and all reasonable inferences therefrom in the light most favorable to upholding the verdicts.'" State v. Molina, 211 Ariz. 130, ¶ 2, 118 P.3d 1094, 1096 (App. 2005), quoting State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999). From 2004 until 2009, Lomeli's wife, Carmen, stole money from her employer, Sierra Seed Company, which included more than $136,000 from checks written out to the company's salespeople that she deposited into her and her husband's joint checking account. The couple used this money to support a lifestyle they otherwise would have been unable to finance on their combined salaries alone. Sierra Seed discovered the couple had been taking money from it after Carmen partially confessed to the company's chief operating officer while threatening to harm the company if it reported her to the authorities.
¶3 Lomeli was indicted on one count of conspiracy, one count of money laundering, one count of fraudulent schemes and artifices, one count of residential mortgage fraud, and six counts of theft under subsections (A)(1) and (A)(2) of A.R.S. § 13-1802. He was convicted of the conspiracy, money laundering, and theft counts. The trial court sentenced him to mitigated, concurrent terms of imprisonment on all but one count, the longest of which were five years, and a term of supervised probation on the remaining count. We have jurisdiction over this appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
The trial court granted Lomeli's Motion for New Finding of Probable Cause with respect to the mortgage fraud count, and the state did not pursue this charge.
Weight of the Evidence
¶4 Lomeli first argues "the jury's verdict[s] on all counts [were] contrary to the weight of the evidence." But he does not cite any legal authority to support this argument. See Ariz. R. Crim. P. 31.13(c)(1)(vi) ("An argument . . . shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on."). Consequently, he has waived this claim. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995).
Motion for New Trial
¶5 Lomeli next argues the trial court erred in denying his motion for new trial because it considered whether sufficient evidence supported the jury's verdicts rather than considering whether the verdicts were contrary to the weight of the evidence. See Ariz. R. Crim. P. 24.1(c)(1). But because he did not timely file his motion, the court lacked jurisdiction to consider it.
¶6 Seven days after the jury returned its verdicts, Lomeli filed his Motion for New Trial / Motion to Toll Time for Briefing. He did not file a supporting memorandum with his motion; his motion stated only his request for a new trial "for the reason that the verdict is contrary to the law or the weight of the evidence, and for any other permissible reason stated in Rule 24.1 which may be suggested after a review of the trial transcripts." In the motion, he asked the trial court to "allow [him] to supplement his motion with a memorandum of points and authorities after such time as the trial transcripts are received by the parties." Lomeli did not file this "supplemental" memorandum of points and authorities until almost four months after the jury returned its verdicts. The court then denied his motion on the merits.
¶7 "A motion for a new trial shall be made no later than 10 days after the verdict has been rendered." Ariz. R. Crim. P. 24.1(b). If a defendant files a motion for new trial after this ten-day limit, the trial court has no jurisdiction to hear the motion and the motion has no effect. State v. Wagstaff, 161 Ariz. 66, 70, 775 P.2d 1130, 1134 (App. 1988); see also State v. Hill, 85 Ariz. 49, 53, 330 P.2d 1088, 1090 (1958) (criminal rules of procedure with regard to motions for new trial "must be strictly complied with"). And "[l]abeling untimely motions as supplemental does not enable a party to avoid the time restrictions imposed by procedural rules—especially those rules, such as [Rule 24.1(b)], that confer jurisdiction on the trial court." State v. Ring, 200 Ariz. 267, n.4, 25 P.3d 1139, 1149 n.4 (2001), rev'd on other grounds, Ring v. Arizona, 536 U.S. 584 (2002).
¶8 Moreover, motions that are filed within time limits imposed by the rules, but that fail to comply with other basic filing requirements, do not toll filing deadlines. See Butler Prods. Co. v. Roush, 145 Ariz. 32, 34, 699 P.2d 906, 908 (App. 1984). In Butler Products Company, the defendants filed a motion for new trial within the time for filing prescribed by the rules, but the motion did not state the grounds for the request or include a supporting memorandum as required by Rule 59(c), Ariz. R. Civ. P., and former Rule IV(a) of the Uniform Rules of Practice of the Superior Court. Id. at 33, 699 P.2d at 907. The defendants filed a supporting memorandum almost two weeks later but not within the time for filing. Id. This court held that, despite the subsequent supporting memorandum, the initial motion "did not operate to extend the time limits within which to file the motion for new trial" because it did not comply with the other filing requirements set out in the rules. Id. at 34, 699 P.2d at 908.
Although Butler Products Company is a civil case, we treat deadlines for filing a motion for new trial in criminal and civil cases identically. See Hill, 85 Ariz. at 52-53, 330 P.2d at 1090 (finding "no valid reason why" time for filing motion for new trial would be jurisdictional in civil cases but not in criminal cases).
Rule IV(a) of the Uniform Rules of Practice of the Superior Court has been incorporated into Rule 7.1, Ariz. R. Civ. P. See Ariz. R. Civ. P. 7.1 bar committee note.
¶9 Rule 35.1, Ariz. R. Crim. P., states that "all motions . . . shall be accompanied by a brief memorandum stating the specific factual grounds [of the relief requested] and indicating the precise legal points, statutes, and authorities relied upon." Lomeli's Motion for New Trial / Motion to Toll Time for Briefing was not accompanied by a supporting memorandum as required by Rule 35.1, and thereby did not qualify as a proper motion filed within ten days after the jury returned its verdicts. See Butler Prods. Co., 145 Ariz. at 34, 699 P.2d at 908. And his supporting memorandum filed almost four months after the jury returned its verdicts did not cure his deficient filing made within the ten-day time limit. See Ring, 200 Ariz. 267, n.4, 25 P.3d at 1149 n.4; Butler Prods. Co., 145 Ariz. at 34, 699 P.2d at 908.
¶10 Consequently, the trial court did not have jurisdiction to hear his motion for new trial, and his motion had no effect. See Wagstaff, 161 Ariz. at 70, 775 P.2d at 1134. Thus, we do not consider the merits of this motion. See id. at 71, 775 P.2d at 1135.
Motion for Judgment of Acquittal
¶11 Lomeli additionally argues the trial court erred in denying his motion for a judgment of acquittal after finding that the state had presented sufficient evidence to show he knowingly controlled Sierra Seed's funds with the intent to deprive and thus a violated § 13-1802(A)(1). We review a court's denial of a motion for a judgment of acquittal de novo. State v. Gray, 231 Ariz. 374, ¶ 2, 295 P.3d 951, 952 (App. 2013).
We remind counsel that appellate briefs submitted to this court must include the proper standard of review for each claim, supported by citations to authority. See Ariz. R. Crim. P. 31.13(c)(1)(vi) ("With respect to each contention raised on appeal, the proper standard of review on appeal shall be identified, with citations to relevant authority, at the outset of the discussion of that contention."). In his opening brief, Lomeli did not identify the proper standard of review for any of his claims.
¶12 Lomeli first argues he could not be guilty of the theft charges as an accomplice because the "theft was completed before the checks [to the salesmen] went into the Lomeli joint checking account." But, under § 13-1802(A)(1), a person is guilty of theft if he "[c]ontrols property of another with the intent to deprive the other person of such property." This control often happens after the goods have been stolen. See, e.g., State v. Smith, 171 Ariz. 54, 57, 828 P.2d 778, 781 (App. 1992) (defendant guilty of possessing stolen property when found with stolen wallet and bait money forty-five minutes after robbery and at different location). Similarly, under § 13-1802(A)(2), a person is guilty of theft if he "converts for an unauthorized term or use services or property of another." The inclusion of the phrase "term or use" indicates the legislature's intent that the crime can be of a continuing nature rather than completed in an instant. And, because Lomeli has failed to analyze the statutory language, he has waived any argument to the contrary. See State v. Tarkington, 218 Ariz. 369, n.1, 187 P.3d 94, 95 n.1 (App. 2008) (argument waived if not adequately developed).
¶13 Moreover, even if the thefts had been completed when Carmen stole the funds, Lomeli has failed to address whether the jury could have found his ongoing conduct aided or counseled Carmen in her subsequent, continuing control or unauthorized use of the funds, or could have found he solicited or assisted in planning the thefts. See A.R.S. § 13-301(1), (2) (accomplice "[s]olicits" another to commit offense or "[a]ids" or "counsels" another "in planning or committing" offense). Accordingly, we conclude he has failed to establish that he could not be guilty of theft as an accomplice under either subsections (A)(1) or (A)(2) of § 13-1802.
¶14 Lomeli next argues he cannot be found guilty of theft as a principal under § 13-1802(A)(2) because no evidence showed he had "engaged in embezzlement." But, as we have stated above, Lomeli has failed to demonstrate that he could not have been found guilty under § 13-1802(A)(2) as an accomplice. Therefore, whether he actually "engaged in embezzlement," rather than soliciting, aiding, counseling, or providing means or opportunity to Carmen's acts of embezzlement, is not relevant. See A.R.S. §§ 13-301 through 13-303; State v. McNair, 141 Ariz. 475, 480, 687 P.2d 1230, 1235 (1984) (regarding judgment of guilt, "'law makes no distinction'" between principal and accomplice), quoting Cline v. State, 21 Ariz. 554, 556, 192 P. 1071, 1071 (1920). Additionally, because he could be found guilty under § 13-1802(A)(1), this argument fails to undermine the jury verdicts.
¶15 Lomeli contends, however, that the jury verdicts violate his right to a unanimous verdict under article II, § 23 of the Arizona Constitution because "[e]ven if this Court disagrees with [his] analysis of accomplice liability . . . , there was no substantial evidence that Horacio Lomeli violated . . . § 13-1802(A)(2), either as an accomplice or principal." The record does not show that he objected to the verdict forms, jury instructions, or the insufficiency of the evidence on this ground when he moved for a judgment of acquittal. He therefore has forfeited review of the issue for all but fundamental error. See State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683-84 (App. 2008).
¶16 Under this standard, Lomeli has the burden to show the error was fundamental and that he was prejudiced by any alleged violation of his right to a unanimous verdict. See State v. Henderson 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005) (defendant has burden to show both fundamental error and prejudice); State v. Waller, 235 Ariz. 479, ¶ 34, 333 P.3d 806, 816 (App. 2014) (violation of right to unanimous verdict constitutes fundamental error, but reversal not required unless defendant suffered prejudice). First, as we have concluded above, Lomeli has not demonstrated that the evidence failed to support his conviction under § 13-1802(A)(2). Further, he has not argued fundamental error occurred or that he was prejudiced. Because he has failed to argue the issue properly, it is waived. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008) (lack of argument on fundamental error waives the issue). Thus, we do not consider this argument further.
Denial of a Fair Trial
¶17 Lomeli argues he was denied a fair trial because the state attempted to introduce impeachment evidence in the form of a disciplinary order from the Arizona Department of Public Safety (DPS) during its cross-examination of him that it had not disclosed before trial, and because the state continued questioning him despite an instruction from the trial court to let stand his initial denial of any dishonesty. Although Lomeli correctly observes that a prosecutor is obligated to ensure that defendants receive a fair trial, see State v. Hughes, 193 Ariz. 72, ¶ 33, 969 P.2d 1184, 1192 (1998), he cites no authority to demonstrate how his right to a fair trial has been denied. And he summarily states that the curative instruction given by the court, which specifically instructed the jury that "dishonesty" did not appear in the DPS order, was "simply insufficient" without further explanation or citation to any authority. Consequently, he has not presented sufficient argument for us to review this claim and has waived review of it. See Bolton, 182 Ariz. at 298, 896 P.2d at 838; see also Ariz. R. Crim. P. 31.13(c)(1)(vi).
Sentencing
¶18 Last, Lomeli argues the trial court erred in finding that the offenses for which he has been convicted were not committed on the same occasion and sentencing him as a repetitive offender for all counts except one count of theft. The determination of whether offenses occurred on the same occasion for the purpose of sentence enhancement is a mixed question of law and fact that we review de novo. See State v. Rasul, 216 Ariz. 491, ¶ 20, 167 P.3d 1286, 1291 (App. 2007); see also A.R.S. § 13-703.
Effective December 31, 2008, former A.R.S. § 13-702.02 was repealed, and § 13-703 was amended to govern enhanced sentences for repetitive offenders. 2008 Ariz. Sess. Laws, ch. 301, §§ 25, 28, 120. Even though former § 13-702.02 applies to Lomeli's convictions for the offenses occurring prior to 2009, we refer primarily to § 13-703 because the determination of whether his offenses were "not committed on the same occasion" is not different under either statute. See § 13-703; 1999 Ariz. Sess. Laws, ch. 261, § 10 (former § 13-702.02).
¶19 Section 13-703(B)(1) provides enhanced sentencing ranges for those convicted of "three or more felony offenses that were not committed on the same occasion but that either are consolidated for trial purposes or are not historical prior felony convictions." We look to five different factors "when determining whether offenses were committed on the same occasion: '1) time, 2) place, 3) number of victims, 4) whether the crimes were continuous and uninterrupted, and 5) whether they were directed to the accomplishment of a single criminal objective.'" State v. Flores, 236 Ariz. 33, ¶ 6, 335 P.3d 555, 557 (App. 2014), quoting State v. Kelly, 190 Ariz. 532, ¶ 6, 950 P.2d 1153, 1155 (1997). And this determination can be made by the trial court when the facts necessary to the determination are "inherent in the jury's verdicts." Id. ¶ 5.
¶20 Lomeli contends that all of the offenses were committed on the same occasion because they constituted "a continuous and uninterrupted stream between September of 2004 and May of 2009" and were committed to further a single criminal objective. Yet, Lomeli was convicted of six separate theft offenses, one charge for each of the six calendar years—2004, 2005, 2006, 2007, 2008, and 2009—during which he and his wife took Sierra Seed's money through different checks made out to its salespeople. And, for each of these years, the jury determined distinct and discrete amounts of money the couple took from the company.
¶21 Given the distinct and discrete time periods and amounts of money determined by the jury as part of its verdicts, we conclude the six theft offenses were not continuous and uninterrupted and not committed on the same occasion, even if the thefts were aimed at a single criminal objective. See id. ¶ 9 (finding "no Arizona case concluding that offenses were committed on the same occasion when the crimes were committed on different days, involved different property, or had unrelated victims"). Thus, he was "[a] person . . . convicted of three or more felony offenses that were not committed on the same occasion . . . consolidated for trial purposes," and was properly sentenced as a repetitive offender. § 13-703(B)(1). We conclude the trial court did not err in sentencing him as a repetitive offender on all but one of his convictions.
We note that the trial court could not impose an enhanced sentence on all convictions under former § 13-702.02(A) but only on "the second or subsequent" convictions. See 1999 Ariz. Sess. Laws, ch. 261, § 10.
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Disposition
¶22 For the foregoing reasons, we affirm Lomeli's convictions and sentences.