Opinion
No. 1 CA-CR 12-0703
03-25-2014
STATE OF ARIZONA, Appellee, v. DAVID QUINTON MELENDEZ, Appellant.
Arizona Attorney General's Office, Phoenix By Craig W. Soland Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Stephen J. Whelihan Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2012-006739-001
The Honorable William L. Brotherton Jr., Judge
CONVICTIONS AND SENTENCES AFFIRMED;
MINUTE ENTRY CORRECTED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Craig W. Soland
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Stephen J. Whelihan
Counsel for Appellant
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined. THOMPSON, Judge:
¶1 Defendant, David Quinton Melendez, appeals from his convictions and sentences on one count of aggravated assault with a deadly weapon and one count of misconduct involving a weapon. He asserts that the trial court erred in denying his motion to sever the charges for trial, in finding that he had a dangerous foreign felony prior for sentencing, and in finding that the foreign felony was a historical felony prior that fell within the requisite time limits. He also asks that we correct the sentencing minute entry in accord with the trial court's oral pronouncement to reflect that the sentence the court imposed on the misconduct with a weapon offense is the presumptive sentence. For reasons set forth below, we affirm defendant's convictions and sentences. We amend the sentencing minute entry order as to the misconduct charge to accord with the trial court's oral pronouncement of sentence.
FACTS AND PROCEDURAL HISTORY
We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against defendant. State v. Vandever, 211 Ariz. 206, 207 n.2, 119 P.3d 473, 474 n.2 (App. 2005).
¶2 On December 4, 2011, defendant got into a verbal altercation with Alex and his friend, Trevor, as the two men were walking in a condominium complex in Tempe. Defendant was driving a white Jaguar, and his girlfriend was a passenger in the car. A security guard parked in his vehicle at the complex heard the loud voices and was about to go over and intervene when he saw the Jaguar drive away. He assumed that whatever had prompted the raised voices had dissipated and he returned to writing his report.
¶3 Less than five minutes later the security guard's attention was drawn by a loud "pop" that he recognized as a gunshot. When the guard looked up he saw a white Jaguar stopped near the same two men, with a person standing outside the car and a "puff of smoke com[ing] from the car door outward towards [Alex's] feet." The security guard saw Alex start "hopping around." As the guard approached the group, defendant got back in the Jaguar and drove to a section of the condominium complex that the security guard knew had no street exit. The guard positioned himself to block the Jaguar and called 911, but the Jaguar "never tried to come back out."
¶4 Initially, Alex thought that the bullet only pierced his cowboy boot but did not injure him. However, while police officers were at the scene, someone noticed blood coming from Alex's boot and Alex discovered that he had suffered a bullet wound to his heel. He was transported to the hospital where he was x-rayed and received stitches.
¶5 Tempe Police Officer Eric Hernandez, a trained crisis negotiator, as well as a police SWAT Team were dispatched to the scene to draw defendant out from his condominium, to which he had retreated with his girlfriend. Defendant called 911 and was patched through to Hernandez, who spoke to both defendant and his girlfriend, and was able to convince defendant to come out after speaking to him for approximately fifteen minutes. Once defendant was in custody at the scene, Hernandez asked him the location of the gun that was "used during this situation." Defendant told Hernandez that he had thrown the gun over a wall that faced his apartment onto a dirt lot. An officer "hopped over [a] fence" to the dirt lot and located a semiautomatic handgun directly west of the target apartment sitting atop the ground at the base of a tree. The gun had a bullet in the chamber and seven .40 caliber rounds in the magazine. Defendant admitted shooting the gun one time at the ground. When Hernandez interviewed him at the jail and asked defendant specifically what caused him to fire the gun, defendant responded that all his life he had been "picked on" and also "they tried to jump me, man."
¶6 The state charged defendant with Count 1, aggravated assault with a deadly weapon for intentionally, knowingly or recklessly causing a physical injury to Alex, a Class 3 dangerous felony; and Count 2, misconduct involving a weapon as a prohibited possessor, a Class 4 felony. Defendant testified on his own behalf at trial. He testified that the first argument occurred because Alex and Trevor were harassing his girlfriend and making derogatory comments about her and him. Defendant admitted firing the gun at Alex, but claimed that it was in self-defense and that he "had no choice," which is why he fired only one round and only at the ground. When asked to explain the second confrontation with Alex and Trevor and why he returned to the scene, defendant explained that he and his girlfriend were leaving the apartment complex when they encountered a group of "five, six, maybe seven" people, among whom were Alex and Trevor. Alex blocked the front of his car, and Trevor went to the back of his car; and Alex began "slapping down" on the hood of his vehicle. Defendant felt trapped, but instead of locking his doors, he got out of the vehicle to see what was going on. He saw Trevor lift up his shirt to show that he had a gun and Alex reach toward it. At that point, his girlfriend took a gun out of her purse, and defendant grabbed it and shot the gun at a downward angle because he felt his life was in danger.
¶7 The jury found defendant guilty of both offenses as charged, and that the state had proved that the aggravated assault caused physical, emotional or financial harm to the victim. The trial court sentenced defendant to concurrent prison sentences of 12.5 years (aggravated) on Count 1, and 4.5 years (presumptive) on Count 2. Defendant timely appealed. 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) (1992), 13-4031 and 13-4033 (2010).
DISCUSSION
Denial of Motion to Sever Counts for Trial
¶8 Prior to trial, defendant moved to sever Counts 1 and 2 for trial, arguing that the crimes were independent of one another and therefore improperly joined under Arizona Rule of Criminal Procedure 13.3(a), and that evidence of his prohibited possessor status would unfairly prejudice the jury's determination of guilt on the aggravated assault charge. The state countered that the offenses were properly joined because they were based on the same conduct and connected in their commission, and because many of the same witnesses and evidence would overlap to prove each count. Ariz. R. Crim. P. 13.3(a)(2). The trial court held a hearing on defendant's motion. Defense counsel acknowledged that the state would have to introduce the same evidence for both offenses, but argued for severance because "some of it would be prejudicial." The trial court denied the motion to sever.
¶9 Defense counsel renewed his argument prior to opening arguments in order to preserve the issue for appeal under Rule 13.4. As additional support for severance, defense counsel noted that the parties had since stipulated that defendant was a prohibited possessor, which eliminated the need for evidence of defendant's prior felony convictions. He maintained that separating the charges was necessary for a fair determination of guilt or innocence. The state responded that offenses were properly joined because the use of the gun was the crux of both cases, and because the witnesses and the evidence were identical. The state noted that the stipulation reduced the potential for "extra prejudice" because the state would make no mention of the reason for his prohibited possessor status unless defendant took the stand. The trial court again denied the motion to sever and the two offenses were tried together.
¶10 On appeal, defendant argues the trial court abused its discretion by denying his motion for severance and depriving him of a fair determination of his guilt or innocence. We review a trial court's denial of a motion to sever offenses for an abuse of discretion. State v. Garland, 191 Ariz. 213, 216, ¶ 9, 953 P.2d 1266, 1269 (App. 1998). A trial court has broad discretion in such matters, and its decision will not be overturned absent a clear abuse of that discretion. State v. Prince, 204 Ariz. 156, 159, ¶ 13, 61 P.3d 450, 453 (2003). "When a defendant challenges a denial of severance on appeal, he must demonstrate compelling prejudice against which the trial court was unable to protect.' " Id. (citation omitted).
¶11 Rule 13.3(a) provides that two or more offenses may be joined for trial if they:
(1) Are of the same or similar character; orA defendant is entitled, "as of right," to severance of "offenses joined only by virtue of 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).
(2) Are based on the same conduct or are otherwise connected together in their commission; or
(3) Are alleged to have been part of a common scheme or plan.
¶12 Thus, defendants are entitled to sever offenses as of right if they are "only joined by virtue of their same or similar nature; otherwise they may be severed at the trial court's discretion." Garland, 191 Ariz. at 216, ¶ 8, 953 P.2d at 1269. But if the offenses are joined because they are "based on the same conduct or otherwise connected together in their commission" or because they are "part of a common scheme or plan," they need only be severed if it is "necessary to promote a fair determination of the guilt or innocence . . . of any offense." Ariz. R. Crim. P. 13.3(a), 13.4(a), (b).
¶13 Clearly, the offenses in Counts 1 and 2 here were joined for trial because they were "based on the same conduct" and were also "connected together in their commission." Ariz. R. Crim. P. 13.3(b). As the state argued, and defendant conceded, the evidence and the witnesses would have been exactly the same on each count. The possession of the gun was at the core of both the aggravated assault with a deadly weapon charge and the prohibited possession charge, and the two crimes occurred simultaneously, out of the same conduct and actions by defendant, whether or not defendant was the aggressor or acted in self-defense. Therefore, defendant was not entitled to severance as of right in this case and can only establish an abuse of discretion if he can demonstrate that the denial resulted in "compelling prejudice against which the trial court was unable to protect." Prince, 204 Ariz. at 159, ¶ 13, 61 P.3d at 453. That he cannot do.
¶14 The law is well established in Arizona that a defendant is not prejudiced by a denial of severance when the jury is instructed, as it was in this case, that it was to consider each offense separately and advised that the state must prove each separate offense beyond a reasonable doubt. Id. at 160, ¶ 17, 61 P.3d at 454; see also State v. Hausner, 230 Ariz. 60, 75, ¶ 48, 280 P.3d 604, 619 (2012) (defendant cannot show compelling prejudice when trial court instructed the jury to consider each charged offense separately); State v. Lee, 189 Ariz. 590, 600, 944 P.2d 1204, 1214 (1997) (finding no prejudice from denial of severance where evidence would have been admissible at separate trials and court instructed jury to consider each offense separately and that state must prove each element of each separate charge); State v. Comer, 165 Ariz. 413, 419, 799 P.2d 333, 339 (1990) (finding no prejudice from failure to sever offenses where trial judge properly instructed the jury to consider each individual count separately with the evidence presented).
¶15 Contrary to defendant's contention, compelling prejudice did not result merely because the jury learned that he was a prohibited possessor. Defendant contends the unfair prejudice stems from the fact that his status indicated to the jury that he was someone "unfit to possess a gun" because it "opened the way for the danger of a judgment based on that status, rather than the evidence pertaining to the aggravated assault." However, our supreme court specifically rejected a similar "rub-off" argument in State v. Atwood, 171 Ariz. 576, 613, 832 P.2d 593, 630 (1992), (disapproved on other grounds by State v. Nordstrom, 200 Ariz. 229, 25 P.3d 717 (2001)), finding that a trial court's instruction that each charge be considered separately and that each offense be proven beyond a reasonable doubt fulfilled the requirement of protecting against the possibility of prejudice. Juries are presumed to follow a trial court's instructions, State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996), and, other than for defendant's speculations, we find no reason to believe they did otherwise in this case.
We note that while defendant testified and the state could have impeached him with the prior offenses that resulted in his prohibited possessor status, the state did not do so in this case. Thus the jurors were never told why defendant was a prohibited possessor, and defendant's suggestions about what Arizona jurors might or might not have surmised as the reason for his status are wholly speculative. Furthermore, the trial court instructed the jury that it was to determine the facts only from the evidence produced in court, meaning testimony of witnesses and exhibits, and not guess about any fact. We presume that it did so. LeBlanc, 186 Ariz. at 439, 924 P.2d at 443.
¶16 Based on the record before us, we find that the trial court did not abuse its discretion in denying defendant's motion for severance of the offenses for trial. Garland, 191 Ariz. at 216, ¶ 9, 953 P.2d at 1269.
Historical Prior Involving Dangerous Offense
¶17 Pursuant to A.R.S. § 13-704(D) (2010), the trial court sentenced defendant to an aggravated sentence of 12.5 years on the aggravated assault offense (Count 1) based on the finding that defendant had one historical dangerous prior felony conviction committed in Florida in 1998. On appeal, defendant argues that the trial court improperly sentenced him under § 13-704(D), because he claims that the Florida armed burglary prior referenced by the trial court in its sentencing minute entry does not qualify as either a historical prior conviction or a dangerous offense. He argues that we therefore must remand this case for resentencing on Count 1. We do not agree that sentencing under § 13-704(D) was improper, and also find, based on the record, that remand for resentencing or clarification is unnecessary.
¶18 We review de novo a trial court's determination that an out-of-state conviction qualifies as a historical prior felony conviction under Arizona law. State v. Benenati, 203 Ariz. 235, 242, ¶ 23, 52 P.3d 804, 811 (App. 2002). Before imposing an enhanced sentence based on a foreign felony conviction, the sentencing court is required to ascertain that the foreign conviction included "every element that would be required to prove an enumerated Arizona offense." State v. Crawford, 214 Ariz. 129, 131, ¶ 7, 149 P.3d 753, 755 (2007) (citation omitted). The court may consult the charging documents "only to narrow the foreign conviction to a particular subsection of the statute that served as the basis of the foreign conviction," not to establish "the factual nature of the prior conviction." Id. at 132, ¶ 11, 149 P.3d at 756.
¶19 The trial court held a hearing on the priors at which the evidence showed that defendant had three prior felony convictions in Florida, all of which occurred on September 13, 1998. These consisted of Count 1, armed burglary of a dwelling; Count 2-4, robbery with a firearm; and Count 5, aggravated assault with a firearm, to which defendant pled nolo contendere. The state agreed to treat the three separate offenses as one dangerous prior felony conviction for sentencing purposes.
¶20 At the hearing, the state presented argument, based on the relevant statutes, that each of the Florida convictions independently qualified as a historical prior felony conviction involving a dangerous offense for purposes of § 13-704(D) because each strictly conformed to analogous Arizona felonies. The state also argued that the dangerous nature of each of the Florida priors was inherent in the crimes themselves because they each involved a firearm. Specifically citing, Benenati, the prosecutor argued that the Florida crime of "robbery with a firearm" strictly conformed to the Arizona crime of "armed robbery." 203 Ariz. at 242 ¶ 26, 52 P.3d at 811. However, the prosecutor also argued that Florida's "aggravated assault with a firearm" offense strictly conformed to Arizona's "aggravated assault" offense, and that Florida's "armed burglary" offense strictly conformed to Arizona's "burglary in the first degree."
The court in Benenati specifically held that the Florida "robbery" offense "strictly conformed" to Arizona's "robbery" offense. In Florida, if, in the course of committing a robbery, the offender carries a "firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment." Florida Statutes Annotated (F.S.A.) § 812.13(2)(a). In Arizona, a person commits "armed" robbery, if, in the course of committing robbery, the person or an accomplice is: (1) armed with a deadly weapon or a simulated deadly weapon, or (2) [u]ses or threatens to use a deadly weapon or dangerous instrument or a simulated deadly weapon. A.R.S. § 13-1904(A)(1), (2) (2010).
In Florida, "assault" is defined as "an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act that creates a well-founded fear in such other person that such violence is imminent." F.S.A. § 784.011(A). "Aggravated assault" is an assault "[w]ith a deadly weapon without intent to kill"or "[w]ith an intent to commit a felony." F.S.A. § 784.021(1)(a), (b). In Arizona, a person commits "assault" by "intentionally placing another person in reasonable apprehension of imminent physical injury." A.R.S. § 13-1203(A)(1) (2010). The offense becomes an "aggravated" assault, if a defendant commits the "assault" while using "a deadly weapon or dangerous instrument." A.R.S. § 13-1204(A)(2) (2010).
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¶21 After taking the matter under advisement, the trial court held that the three prior Florida felony convictions established by the state would equal one prior felony conviction in Arizona, that the state had provided a sufficient showing that there was strict conformity between the foreign felonies and some Arizona felony, and that all three separate Florida offenses qualified as "dangerous" offenses. The trial court took specific notice of the Benenati case, which it had reviewed, and the state's position with regard to the Florida robbery conviction, and stated, "[s]o the court would be moving forward with sentencing of this matter as a dangerous offense with one historical dangerous prior offense."
¶22 The trial court then proceeded to sentence defendant as noted above. Despite the court's findings and its reference to the "robbery with a firearm" conviction, the minute entry sentencing order cites only:
Pursuant to A.R.S. § 13-703 or 13-704, the Court finds that the Defendant has been convicted of the following prior felony offenses:
Armed Burglary, a class 2 dangerous felony committed on 07/16/1997 and convicted on 09/13/1998 in Florida Superior Court cause number 9B-19086CF10B.
¶23 On appeal, defendant takes issue only with the trial court's finding with regard to the Florida armed burglary offense referenced in the minute entry as the supporting prior historical "dangerous" conviction. However, whether or not the armed burglary offense qualifies as a historical prior dangerous felony offense in Arizona is something we need not decide given the trial court's other findings on the record in this case, which also make remand for resentencing unnecessary. See State v. Bowles, 173 Ariz. 214, 216, 842 P.2d 209, 211 (App. 1992) (only if a discrepancy between the oral pronouncement of sentence and the minute entry cannot be resolved by reference to the record is remand for clarification of sentence necessary).
¶24 It is clear from the transcript of the sentencing hearing that the trial court also found the Florida "robbery with a firearm" and the "aggravated assault with a firearm" convictions strictly conform to the analogous Arizona felonies of "armed robbery," A.R.S. § 13-1904(A)(1), (2), and aggravated assault with a deadly weapon, A.R.S. § 13-1204(A)(2). Contrary to defendant's arguments, either of these convictions would also qualify as historical prior "dangerous" felony convictions for § 13-704(D) purposes. Benenati supports the trial court's conclusion that the robbery charge conforms. The fact that defendant and/or his co-defendant "carried a firearm" thus "putting [the victim] in fear" makes that offense equivalent to our armed robbery and also inherently "dangerous." See 203 Ariz. at 242, ¶ 26, 52 P.3d at 811; see also A.R.S. § 13-105(13) (2010) ("'Dangerous offense' means an offense involving the discharge, use or threatening exhibition of a deadly weapon."). Likewise, the Florida aggravated assault with a firearm conviction, which notes that defendant and his co-defendant "did brandish a firearm" at the victim "which created a well-founded fear . . . that violence was imminent" comports with the Arizona aggravated assault with a weapon offense. Thus, both offenses satisfy A.R.S. § 13-704(D)'s requirement that a historical prior conviction constitute a "dangerous offense" since each one necessarily involved "the discharge, use, or threatening exhibition of a deadly weapon."
¶25 Since it is patently clear from the trial court's comments at sentencing that the court intended to sentence defendant as a dangerous offender with one historical prior dangerous offense, and since at least one of defendant's prior Florida felony convictions properly supports that result pursuant to A.R.S. § 13-704(D), remand for clarification or resentencing is not required. We therefore affirm the trial court's sentence on Count 1, aggravated assault. See, e.g., State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (we affirm the court's ruling if it is legally correct for any reason).
Historical Prior Felony Conviction/Count 2
¶26 On Count 2, misconduct involving a weapon, the trial court sentenced defendant under A.R.S. § 13-703(I) (2010), which requires one prior historical felony conviction. Defendant argues that he was improperly sentenced as a repeat offender with a prior historical felony conviction because the Florida armed burglary conviction from 1998 does not fall within the five-year requirement of current A.R.S. § 13-105(22)(3) and is also not a "dangerous" offense pursuant to A.R.S. § 13-105(22)(f) because it did not involve the "discharge, use, or threatening exhibition of a deadly weapon."
¶27 As discussed above, regardless of whether the Florida armed burglary conviction qualifies as an historical prior dangerous felony conviction in this case, either defendant's Florida aggravated assault or his robbery with a firearm does, as the trial court correctly concluded. Therefore either one may form the basis for the enhanced sentence in this count because a dangerous felony under either the current version of A.R.S. § 13-105, which defendant cites, or the version of § 13-105 that actually applied when defendant committed the present offenses eliminates the five-year time limit for a prior "dangerous" offense. A.R.S. § 13-105(22)(a)(ii), (c) (2011).
¶28 In accordance with our review of the record as stated more fully above, we find that the trial court did not err in sentencing defendant as a repeat offender with one prior historical felony conviction. Remand for clarification is also not necessary on Count 2. Perez, 141 Ariz. at 464, 687 P.2d at 1219 (we affirm the court's ruling if it is legally correct for any reason).
Modification of Sentence on Count 2
¶29 At sentencing, the trial court categorized Count 2 as a "repetitive offense, being a non-dangerous offense with one prior," and stated that it was imposing the presumptive sentence of 4.5 years for a Class 4 felony. Both the state and defendant agree that the minute entry incorrectly denotes the sentence imposed as "aggravated." Furthermore, both agree that the actual sentence imposed is the presumptive sentence for a Class 4 felony for a "category two repetitive offender." A.R.S. § 13-703(I). In accordance with our authority pursuant to A.R.S. § 13-4037 (2010), we modify the trial court's October 19, 2012, minute entry sentencing order to show that the sentence imposed on Count 2 is the presumptive sentence.
CONCLUSION
¶30 For the foregoing reasons, we affirm defendant's convictions and the sentences imposed for each. We modify the minute entry sentencing order for Count 2 to correctly reflect that the sentence imposed is the "presumptive" sentence.