Opinion
No. 1 CA-CR 13-0936
02-24-2015
STATE OF ARIZONA, Appellee, v. TERESA TENA NELSON, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Terry M. Crist Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Louise Stark Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAYBE BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2011-15501-001
The Honorable Lisa Ann VandenBerg, Judge Pro Tempore
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Terry M. Crist
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Louise Stark
Counsel for Appellant
MEMORANDUM DECISION
Judge Randall M. Howe, delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Patricia K. Norris joined. HOWE, Judge:
¶1 Teresa Tena Nelson appeals from her conviction of theft in excess of $2,000. She argues that the trial court committed fundamental error by sentencing her to an aggravated sentence and that prosecutorial misconduct resulted in fundamental error that requires reversal of her conviction. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Nelson was charged with theft in excess of $2,000, a class 5 felony (the "theft case"). The indictment was based on evidence that Nelson convinced Clifford S. to let her file his 2010 federal and state income tax returns online and subsequently absconded with the $2,299.15 refunds.
We use the victim's first name to protect his privacy. State v. Maldonado, 206 Ariz. 339, 341 n.1, 78 P.3d 1060, 1062 n.1 (App. 2003).
¶3 Before trial, the court and counsel discussed the relevancy of Clifford's arrest in December 2010 for a DUI (the "DUI case"). The court found that Clifford was arrested for a DUI in December 2010, that he had a hearing date for the DUI case in January 2011, and that those facts were relevant to the theft case. The court also found that Clifford's resulting DUI conviction, however, was irrelevant. The court permitted the State to present evidence that the DUI case was resolved in May 2011 because of the State's concern that it would "look like [Clifford] appeared in court on January 26th and needed the money for that." The court noted that Nelson could question Clifford about costs or fees he incurred "during the time frame from December throughout the allegations here," but not what he was ordered to pay "well after that, months later."
¶4 At trial, Clifford testified that he was arrested for a DUI in December 2010. He denied asking Nelson for money to pay for anything related to his DUI case. Clifford did not testify about his January DUI hearing date, what happened on that date, or if he needed money before February 2011.
¶5 Nelson testified that Clifford was cited for the DUI in late December and had a hearing scheduled for it. But "he actually didn't even go." Nelson did not state a date for the missed hearing. She explained that he "went and the information desk sent him home and said they didn't have his record on file." When Clifford was arrested "for failure to appear," Nelson and Clifford decided he needed an attorney. Nelson testified that she loaned him $2,200 in early February to hire an attorney. Thus, she had Clifford's tax refunds deposited into her bank account because it was based on their "written agreement" that his refunds were repayment for $2,200. Nelson "shredded" the agreement after she received the money because she had "no need to keep it." She admitted that she had a prior felony conviction from 2007 and two prior felony convictions for "false statement, unemployment compensation" from 2006.
¶6 While cross-examining Nelson, the State introduced a release order from April 2011 that appointed counsel for Clifford and ordered him to appear at a pre-trial conference in May 2011. The State then asked Nelson if she had "just testified falsely" because the exhibit showed that "Clifford had a court appointed free lawyer" for his DUI case. Nelson denied the accusation and denied any knowledge that Clifford had been provided an attorney for that case in April.
¶7 In its closing rebuttal argument, the State claimed that it had "caught" Nelson because Clifford had a "free attorney" at the time she claimed he asked her for money. It proceeded to respond to Nelson's defense by presenting a series of events for the DUI case, implying that the "first thing" Clifford received at a court hearing was an attorney:
So the defense has an argument for that. Oh, this free lawyer wasn't appointed until at some later point after she says she loaned him the money. Really? What do we know about that? He's cited. He gets a court appearance when he has to go to court. He shows up at a court, and the Court determines are you indigent or not? That's the first thing they do is decide whether you get a court appointed lawyer. So why would [Clifford], knowing that he's indigent, be going out hiring a lawyer, before he has the determination that he's innocent. He wouldn't.
¶8 The jury found Nelson guilty as charged. It also found that the State proved one aggravating factor—that Nelson had committed the offense while on probation in 2007 (the "probation case")—but not another—that she committed the offense as consideration for receipt or in expectation of the receipt of anything of pecuniary value. The trial court found that Nelson had three prior felony convictions and that "the sentencing range that will be available [was] in category 3, or otherwise known as 13-703J for a Class 5 felony." It also found that because the jury found that Nelson was on probation when she committed the theft, at sentencing, the court was "precluded from imposing a sentence anything less than the presumptive for a Class 5 felony under that category."
¶9 At Nelson's sentencing hearing, the trial court reiterated the jury's finding of guilt for theft and its previous findings of her three prior convictions. Specifically, the court stated it "considered the dates of offense for each of those matters as well as the date of offense in the [theft] matter" and found that "all three [were] historical prior felony convictions for purposes of consideration at sentencing." The court reiterated that it "[would] impose a term pursuant to 13-703J, which [was] category 3, based on two of the prior felony convictions." Based on the jury's finding that Nelson was on probation, the court stated that she was not eligible for anything less than the presumptive term. Additionally, the court noted it "consider[ed] the third prior as some aggravation," "considered all the information [that was] presented," and found "that aggravation [did] outweigh mitigation [that was] presented." Consequently, the court imposed the maximum term of six years, with 65 days of pre-sentence incarceration credit, for the theft case to run consecutively to the probation case. For the probation case, the court revoked Nelson's three-year probation term and imposed the presumptive term of one year's imprisonment, with 66 days of pre-sentence incarceration credit, to run consecutively to the theft case. Nelson timely appealed.
DISCUSSION
1. Aggravated Sentence
¶10 Nelson first argues that the trial court improperly imposed an aggravated sentence based on factors that were not proven to the jury and for which a preponderance of evidence did not support. Imposition of an illegal sentence constitutes fundamental error. State v. Martinez, 226 Ariz. 221, 224 ¶ 17, 245 P.3d 906, 909 (App. 2011). To prevail under fundamental error review, a party must prove that fundamental error occurred and that the error caused her prejudice. State v. Henderson, 210 Ariz. 561, 567 ¶ 20, 115 P.3d 601, 607 (2005). Thus, we must first find that the court committed some error. State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342 (1992). Generally, a sentence is illegal if it is outside the statutory range. State v. House, 169 Ariz. 572, 573, 821 P.2d 233, 234 (App. 1991). When a trial court's consideration of aggravating factors does not result in a sentence greater than that which the court was entitled to impose based on "'the facts reflected in the jury verdict or admitted by the defendant,' the sentence imposed does not violate the Sixth Amendment." State v. Miranda-Cabrera, 209 Ariz. 220, 227 ¶ 32, 99 P.3d 35, 42 (App. 2004) (citation omitted).
¶11 Here, the trial court committed no error in sentencing Nelson. The parties do not dispute that Nelson has three historical prior felony convictions. The parties also do not dispute that she was properly sentenced as a category 3 repetitive offender with two or more historical prior felony convictions. See A.R.S. § 13-703 (C), (J). The record shows that the trial court sentenced Nelson as a category 3 offender based on two of the prior felony convictions. Although the record shows that the court considered Nelson's "third prior as some aggravation," it then stated that it "considered . . . all the information provided" and found that aggravation outweighed mitigation. As Nelson acknowledges in her opening brief, the third prior alone was a "properly found aggravator" that permitted the court to impose a maximum sentence within the range for a category 3 offender without violating the Sixth Amendment. See State v. Martinez, 210 Ariz. 578, 584 ¶ 21, 115 P.3d 618, 624 (2005) (finding of single aggravating factor gives a trial court discretion to impose maximum sentence within statutory sentencing range). Consequently, because the trial court imposed the maximum sentence within the range for a category 3 offender for a class 5 felony, it did not err.
¶12 Nelson nonetheless maintains that the sentence is unlawful because the State urged aggravating factors at sentencing that were either improper or, if proper, were not proven by a preponderance of the evidence. Specifically, she contends that these factors perforce influenced the trial court's decision to impose the aggravated sentence. The court stated that it "considered all the information provided," which it was required to do. See generally A.R.S. § 13-701. The court did not list the factors it relied on or affirmatively reject the State's factors, but it was not required to. See State v. Harrison, 195 Ariz. 1, 4 ¶ 12, 985 P.2d 486, 489 (1999) (providing that a trial court need not recite "a specific litany" or make "formal findings or conclusions"). Moreover, the sentencing transcript provides that the court found that Nelson had three prior felony convictions, and thus, the sentencing range available was a category 3 for a class 5 felony. See id. (providing that the sentencing transcript must sufficiently articulate the reasons for imposing the aggravated sentence). It further found that because the jury found that Nelson was on probation when she committed the theft, the court was precluded from imposing a sentence less than the presumptive for a class 5 felony under category 3. Additionally, a court is "presumed to be able to focus on the relevant sentencing factors" and to set aside any irrelevant, inflammatory, emotional, or otherwise improper factors. State v, Beaty, 158 Ariz. 232, 244, 762 P.2d 519, 531 (1988). Thus, we cannot conclude that the trial court relied on the State's suggested factors when imposing the sentence.
Nelson also takes issue with the finding that she still owed restitution in the probation case that was contained in the "Field Reassessment Offender Screening Tool" portion of a Probation Violation Report. Although she admits that the statement is "technically correct," she argues that the State's "omission" of the fact that she had made some payments when urging the court to find her failure to complete payments to be an aggravating factor was therefore improper. The record does not indicate that the trial court relied on either this document or the fact that Nelson may have still owed restitution in her prior case when imposing the aggravated sentence.
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2. Prosecutorial Misconduct
¶13 Nelson alleges several instances of prosecutorial misconduct during closing argument when the State: (1) falsely accused her of lying about lending Clifford money by deliberately misleading the jury regarding his court dates; (2) intentionally reinforced its argument that she was lying by referring to her prior felonies as "false swearing"; and (3) prejudiced her by referring to her current offense as a "felony." Because Nelson did not raise these objections to the trial court, we review only for fundamental error. Henderson, 210 Ariz. at 567 ¶¶ 19-20, 115 P.3d at 607.
¶14 "[P]rosecutors are granted wide latitude in presenting their closing arguments to the jury." State v. Jones, 197 Ariz. 290, 305 ¶ 37, 4 P.3d 345, 360 (2000). To determine whether a prosecutor's remarks are improper, we consider whether they called to the jury's attention matters it would not be justified in considering, and the probability, under the circumstances, that it was influenced by the remarks. Id. "[A] defendant must demonstrate that the prosecutor's misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process." State v. Morris, 215 Ariz. 324, 335 ¶ 46, 160 P.3d 203, 214 (2007) (citation and internal quotation marks omitted). "Prosecutorial misconduct constitutes reversible error only if (1) misconduct exists and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying defendant a fair trial." Id.
¶15 Nelson argues that although the State knew that Clifford was appointed an attorney in April 2011 for the DUI case, it nonetheless lied during rebuttal about the timing of Clifford's DUI court date to mislead the jury about whether he needed a loan to hire an attorney. When responding to Nelson's argument that the "free lawyer wasn't appointed until at some later point after she [said] she loaned [Clifford] the money," the State stated that the progression of events was as follows: Clifford was cited; he got a court hearing; he showed up; the court determined if he was indigent; and "the first thing they do [was] decide whether [he got] a court appointed lawyer." But by presenting the series of events in this manner—without indicating the missed hearing that the State knew about and implying that the "first thing" Clifford got was an attorney—the State attempted to mislead the jury. The court and counsel were aware that Clifford was charged with a DUI in December 2010, that he had a court hearing that he missed in January 2011, and that he was appointed an attorney for that case in April 2011. Not all of this information was presented to the jury, however. The evidence presented to the jury did not show if or when Clifford was appointed an attorney for the DUI case. Although the State introduced a release order from April 2011 with three case numbers, claiming that it was for the DUI case, the State presented no other evidence to the jury connecting that release order to the DUI case. Moreover, other than Nelson's testimony regarding a missed hearing for the DUI case, the parties presented no other evidence related to the DUI court proceedings to the jury. Consequently, because the State's remark was an attempt to mislead the jury, the State's conduct was improper.
¶16 But regardless of the State's improper remark, Nelson was able to fully present her defense to the jury such that she was not prejudiced. The jury was aware that Clifford was arrested in December 2010. Whether Clifford had a court appearance that he missed between December 2010 and February 2011 was a factual question for the jury to determine. The jury was also aware that at a court appearance in April, the trial court appointed Clifford an attorney. Whether the attorney was for the DUI case was another factual question for the jury. Moreover, the jury instruction informed the jury that counsel's arguments were not evidence and in making its decision, it should consider only the available evidence. Consequently, because Nelson was able to fully present her defense, the State's remark did not prejudice her.
¶17 Nelson next argues that the State deliberately "exaggerat[ed] and embellish[ed]" her priors as "false swearing," thereby undercutting her credibility. But Nelson admitted twice at trial—and the jury was aware—that her prior convictions were for "false statement." Although in its rebuttal the State reminded the jury that Nelson had two prior convictions for "false swearing, unemployment compensation," this appears to have been an inadvertent misstatement. Of the numerous times the State mentioned Nelson's prior convictions, it only used "false swearing" once. Moreover, the State's overall argument was not based on false "swearing," but on the general inference that Nelson's prior offenses involving falsity called into question her credibility. Because it was a single statement, it did not "so infect[] the trial with unfairness as to make the resulting conviction a denial of due process." State v. Newell, 212 Ariz. 389, 402 ¶ 60, 132 P.3d 833, 846 (2006).
¶18 Nelson argues finally that she was prejudiced because the State improperly drew the jury's attention to her theft offense being a felony "in the guise of" giving the jury the reason for the different verdict forms with different monetary values. We disagree. In its closing argument, the State stated that "because the class of felony" depended on "what the dollar amount was," the jury would see different verdict forms with different dollar amounts. Contrary to Nelson's argument, the State was within its purview in referring to her theft charge as a felony. The jury already knew that the charge was a felony because the bailiff read the indictment to it. Consequently, Nelson has not established error, much less the fundamental error, necessary for reversal.
CONCLUSION
¶19 For the foregoing reasons, we affirm Nelson's conviction and sentence.