Opinion
No. 2 CA-CR 2016-0278
01-24-2018
THE STATE OF ARIZONA, Appellee, v. RAMIRO PRECIADO, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Jonathan Bass, Assistant Attorney General, Tucson Counsel for Appellee Joel A. Larson, Cochise County Legal Defender, Bisbee 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NOT FOR PUBLICATION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 Cochise County
No. CR201500125
The Honorable John F. Kelliher, Jr., Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Jonathan Bass, Assistant Attorney General, Tucson
Counsel for Appellee Joel A. Larson, Cochise County Legal Defender, Bisbee
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Vásquez concurred. STARING, Presiding Judge:
¶1 Ramiro Preciado was convicted after a jury trial of nine counts of sexual conduct with a minor and three counts of child endangerment. On appeal, he argues the trial court committed reversible error in four respects: denying his motion for mistrial after the state labeled him "sexually compulsive" during its closing; permitting the state to present extrinsic evidence on collateral matters in rebuttal; refusing to admit pertinent medical records; and making jokes and various comments throughout the proceedings. For the reasons that follow, we affirm Preciado's convictions and sentences.
Factual & Procedural Background
¶2 "We view the facts in the light most favorable to sustaining the jury's verdicts." State v. Gunches, 225 Ariz. 22, n.1 (2010). Together with G.J., Preciado fathered two daughters, B.P. and M.P., and two sons, J.P. and D.P. In July 2014, the family moved to Sunsites, Arizona. The next month, G.J. went to Texas for work and did not return until late December. At the time, B.P. was ten, both M.P. and J.P. were eight, and D.P. was six.
¶3 One night in February 2015, G.J. was looking through a phone the children had used while she was in Texas and discovered a video D.P. had taken of his penis. At that point, B.P. told her mother that Preciado had "put his thing in [her] private part." J.P. then told her, "dad was doing bad things to us." M.P. also told G.J., "my dad did something bad to me." Shortly thereafter, while her parents were arguing about the accusations, B.P. called the police and Preciado was arrested.
¶4 Two days later, B.P., M.P., and J.P. were taken to the Southern Arizona Child Advocacy Center (SACAC) for forensic interviews. A grand jury subsequently indicted Preciado for eleven counts of sexual conduct with a minor by engaging in sexual intercourse, five counts of sexual conduct with a minor by engaging in oral sexual contact, and three counts of child endangerment.
Before trial, the state voluntarily dismissed without prejudice one count of sexual conduct with a minor, sexual intercourse and two counts of sexual conduct with a minor, oral sexual contact.
¶5 At trial, B.P. testified that while her mother was in Texas, Preciado engaged in vaginal intercourse with her on three occasions. J.P. testified that during the same period of time his father twice "put his front private in [J.P.'s] back private," once threatening he would kill J.P. with a gun if he would not "be quiet." On two other occasions, Preciado told J.P. to put Preciado's "front private in [J.P.'s] mouth," which he did. M.P. testified that Preciado "put his front privacy on [her] mouth," and on more than one occasion inserted his fingers "in [her] front privacy."
¶6 After the state rested, it conceded it had not presented evidence on three counts of sexual conduct with a minor, sexual intercourse, and one count of sexual conduct with a minor, oral contact, and the trial court dismissed those counts with prejudice. The court, however, denied Preciado's motion for acquittal on the remaining counts, upon which the jury subsequently found him guilty. See Ariz. R. Crim. P. 20.
¶7 The trial court sentenced Preciado to nine consecutive terms of life imprisonment for sexual conduct with a minor and 2.5 years' imprisonment for each of the three counts of child endangerment, with those sentences running concurrent with the life sentences. Preciado appealed and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
Comments Made During State's Closing
¶8 Preciado first argues the trial court erred in denying his motion for a mistrial made in response to the state, on two occasions during closing arguments, referring to him as "sexually compulsive" when discussing his numerous infidelities with another woman. We reverse the denial of a mistrial only upon a showing of a clear abuse of discretion. State v. Newell, 212 Ariz. 389, ¶ 61 (2006).
¶9 "[P]rosecutors have wide latitude in presenting their closing arguments to the jury." State v. Jones, 197 Ariz. 290, ¶ 37 (2000). They may "summarize the evidence, make submittals to the jury, urge the jury to draw reasonable inferences from the evidence, and suggest ultimate conclusions." State v. Bible, 175 Ariz. 549, 602 (1993). Prosecutors may also engage in "excessive and emotional language[,] . . . limited by the principle that attorneys are not permitted to introduce or comment upon evidence which has not previously been offered and placed before the jury." State v. Gonzales, 105 Ariz. 434, 437 (1970); but see State v. Comer, 165 Ariz. 413, 426 (1990) (prosecutors enjoy "wide latitude" in closing arguments but may not appeal to jurors' "passions and fears").
¶10 To determine whether a prosecutor made improper remarks during closing argument, we consider: (1) whether the remarks called attention to matters jurors should not consider in reaching their verdict; and (2) the probability the remarks influenced the jury under the circumstances of the particular case. Jones, 197 Ariz. 290, ¶ 37. "To warrant reversal, the prosecutorial misconduct must be 'so pronounced and persistent that it permeates the entire atmosphere of the trial.'" Newell, 212 Ariz. 389, ¶ 61, quoting State v. Lee, 189 Ariz. 608, 616 (1997).
¶11 According to Preciado, the state's use of "sexually compulsive" to describe him "by its very terms suggested to the jury that [he] had a condition or diagnosis which compelled him to commit the [charged] offenses." He further contends the phrase "suggested a scientific correlation between philandering and promiscuity on the one hand, and pedophilia on the other."
¶12 In support of his position, Preciado cites State v. Hardwick, 183 Ariz. 649 (App. 1995), and State v. Coghill, 216 Ariz. 578 (App. 2007). In Hardwick, the state established through cross-examination of the defendant that he had several characteristics in alignment with an unadmitted document titled, "Child Molesters: A Behavioral Analysis." 183 Ariz. at 651-53. The state did not offer any expert testimony on the characteristics described by the document, nor did it lay any foundation to establish that the document was a reliable source on the subject. Id. at 653. In its closing, the state argued to the jury that the defendant had characteristics of pedophilia based on the unadmitted document. Id. We reversed the defendant's conviction, finding "[t]he prosecutor purposefully and repeatedly introduced the damaging contents of this unadmitted and inadmissible document, and then subsequently argued to the jury that Defendant was a child molester based upon the characteristics set forth in the document." Id. at 654.
¶13 Here, although the state posited that based upon Preciado's past promiscuity and infidelities he was sexually compulsive, it did not attempt to tie this character trait to any of the charged offenses. The state only used the phrase in the context of his infidelities and his attempts to conceal his relationship with another woman from G.J.
¶14 In Coghill, the trial court admitted evidence the defendant—alleged to have possessed child pornography—"had possessed, and had admitted having downloaded and copied to disk, adult pornography." 216 Ariz. 578, ¶¶ 3, 12. We reversed, finding that "the trial court . . . overlooked that the adult pornographic nature of some of the computer files was a fact unnecessary to the probative purposes of admitting those files." Id. ¶ 22. Although the evidence was relevant to show the defendant "possessed the requisite ability, knowledge, and opportunity to download material from the internet to his computer hard drive or to copy such material onto compact discs, the content of the material had no relevance and should have been precluded." Id. We also found the evidence inadmissible to support "the theory that a person who downloads adult pornography would be more prone to download child pornography." Id. ¶ 24.
¶15 As the state correctly points out, "this case does not involve the admission of either other act or propensity evidence." Preciado contends, however, that the state's "closing characterized [him] as 'sexually compulsive' in an argument that focused on the number of 'overlapping' children [he had] with two different women, and invited the jury to conclude that consensual adult promiscuity leads to child rape." We disagree.
¶16 As noted above, the state did not directly connect the phrase "sexually compulsive" to the allegations against Preciado. Nor does the phrase "sexually compulsive," by itself, suggest Preciado was capable of committing sexual offenses against his children. Further, to the extent the comments called attention to matters jurors would not be justified in considering, it is improbable that the remarks influenced the jury under the circumstances of this particular case. See Jones, 197 Ariz. 290, ¶ 37. Three of Preciado's children testified against him in vivid detail about the sexual acts he committed against them. Additionally, on direct examination, Preciado testified about his past infidelities and concealment of them, in addition to his past convictions and probation violations. And, Preciado's employer testified "he's not too awful truthful." Under these circumstances, we find it unlikely that the jury was unduly influenced by the prosecutor's use of the phrase "sexually compulsive" during the state's closing argument. Even assuming we were to conclude these comments were improper, which we decline to do, they were not "so pronounced and persistent that [they] permeate[d] the entire atmosphere of the [six-day] trial." Newell, 212 Ariz. 389, ¶ 61, quoting Lee, 189 Ariz. at 616. Accordingly, we find no error in the court's denial of Preciado's motion for a mistrial.
Our decision is further supported by the fact that Preciado did not object to the comments at the time they were made, nor did he ask for any corrective instruction. See Gonzales, 105 Ariz. at 437. "[I]t is the universal rule that if improper statements are made by counsel during the trial it is the duty of opposing counsel to register an objection thereto so that the court may make a correction by proper instruction and, if the offense be sufficiently hurtful, declare a mistrial." Id., quoting State v. Boozer, 80 Ariz. 8, 13 (1955).
Rebuttal Evidence
¶17 Preciado next argues the trial court erred in allowing the state to call H.M., who testified, contrary to Preciado's testimony, that he was not with Preciado the night before he was arrested, and that payment on rent and utilities was in arrears. We review a trial court's rulings on the admission of evidence for an abuse of discretion. State v. Lopez, 234 Ariz. 465, ¶ 19 (App. 2014).
¶18 Rule 608(b), Ariz. R. Evid., prohibits the admission of extrinsic evidence "to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness." "It is well settled that when impeaching a witness regarding an inconsistent fact collateral to the trial issues, the impeaching party is bound by the witness'[s] answer and cannot produce extrinsic evidence to contradict the witness." State v. Hill, 174 Ariz. 313, 325 (1993). Collateral evidence is that which "could not properly be offered for any purpose independent of the contradiction." Id.; see also Pub. Serv. Co. of Okla. v. Bleak, 134 Ariz. 311, 323 (1982) ("[C]ould the fact, as to which error is predicated, have been shown in evidence for any purpose independently of the contradiction?"), quoting State v. McGuire, 113 Ariz. 372, 373 (1976). "The nearly universal rule proscribing impeachment on collateral issues is based on the questionable utility of such evidence and its potential for confusing or distracting the trier of fact." Lopez, 234 Ariz. 465, ¶ 25, quoting State v. Munguia, 137 Ariz. 69, 71 (App. 1983); see also Pub. Serv. Co. of Okla., 134 Ariz. at 323 ("This rule is one of judicial economy."), quoting 1 M. Udall & J. Livermore, Arizona Practice: Law of Evidence § 44, at 76-77 (2d ed. 1982).
¶19 During direct examination, Preciado told the jury that the day before his children began to make allegations against him, he had been out helping his cousin with her car and returned past 2:00 a.m., after spending several hours talking to his employer, H.M. Preciado testified that his late return upset G.J., and her anger persisted into the morning. Then, during cross-examination, he stated that he paid rent every month and timely paid all utility bills.
¶20 In rebuttal, the state called H.M., who testified that the night before his arrest Preciado had arrived at H.M.'s house around 8:00 p.m., borrowed a trailer, left soon after, and returned at 9:00 the next morning. He also testified that at the time of Preciado's arrest, rent payments were six months in arrears and afterwards the community organized collections in order to pay past due utility bills.
¶21 Preciado argues the "[p]ayment or nonpayment of the rent and utilities and . . . staying out until 2:00 a.m. were collateral issues," and thus the trial court erred by admitting H.M.'s rebuttal testimony. The state contends, however, that the testimony was necessary to rebut Preciado's defense that G.J., "angry at [Preciado's] infidelity, had persuaded the children to falsely accuse him," by demonstrating that she derived no benefit from reporting the crimes, but, rather, "it put the family in even further dire straits by removing one of the two wage earners."
¶22 As to the testimony concerning the payment of rent and utilities, we agree with the state that it was relevant to rebut Preciado's contention that G.J. had pushed the children to fabricate their testimony. See State v. Burns, 237 Ariz. 1, ¶ 51 (2015). H.M.'s testimony about the financial strain caused by reporting the children's accusations certainly had a tendency to make it less probable G.J. had any motivation to fabricate them. See Ariz. R. Evid. 401, 402.
¶23 Similarly, central to Preciado's argument that G.J. had pressed the children to fabricate the allegations against him was that his late night was the final straw of a relationship turned sour. As a result, the state was entitled to produce evidence disproving that Preciado's claimed catalytic event had occurred.
¶24 Even if the jury considered the evidence for impeachment purposes, "as a general rule, evidence should be received if it is admissible for any purpose, notwithstanding the fact that it may be inadmissible for others." Readenour v. Marion Power Shovel, 149 Ariz. 442, 449 (1986), quoting 1 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 105, at 105-10 (3d ed. 1940). That the jury may consider or apply the evidence improperly "does not in itself provide a reason for exclusion." Id.
Medical Records
¶25 After the children reported their allegations of sexual abuse against Preciado, they were taken to SACAC where Dale Woolridge, M.D., its medical director, examined them. Following the examinations, Woolridge reported his findings, a practice he regularly performed in the ordinary course of his work. At trial, Woolridge indicated that the examinations did not reveal the children to have any physical manifestations of abuse corroborating their allegations. Preciado moved to admit the reports mirroring this testimony, but the court denied his motion, reasoning the reports were hearsay not subject to an exception.
¶26 Preciado argues the trial court erred by refusing to admit medical records generated by Woolridge when he examined the children. The state appears to concede error, but maintains any error was harmless. We review for an abuse of discretion. Lopez, 234 Ariz. 465, ¶ 19.
¶27 Rule 803(6), Ariz. R. Evid., excepts from the general prohibition against hearsay, records "of an act, event, condition, opinion, or diagnosis" if: (A) the record was made contemporaneously to the event; (B) it "was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling"; (C) "making the record was a regular practice of that activity"; (D) the custodian of the record testifies those conditions were present; and (E) the opponent does not show the information lacks trustworthiness. Woolridge testified he made the reports contemporaneously with his examinations, prepared them in the ordinary course of his occupation, and preparing such reports was a regular practice of SACAC. Accordingly, the reports were excepted from the general prohibition against hearsay, and should have been admitted. See State v. Hardy, 112 Ariz. 205, 207 (1975) ("Hospital records are admissible under the 'business records' exception to the hearsay rule.").
¶28 We will not reverse, however, where an error is harmless. See State v. Spreitz, 190 Ariz. 129, 142 (1997). An error is harmless if we conclude, "beyond a reasonable doubt, that the error did not contribute to or affect the verdict." Id., quoting Bible, 175 Ariz. at 588; see also State v. Dann, 205 Ariz. 557, ¶ 44 (2003) (courts will not reverse for erroneous admission of evidence without reasonable probability verdict would have been different without admission). Our inquiry rests on "whether the guilty verdict actually rendered in this trial was surely unattributable to the error." State v. Anthony, 218 Ariz. 439, ¶ 39 (2008), quoting Bible, 175 Ariz. at 588. In addition, when reviewing whether a trial court's erroneous preclusion of defense evidence was harmless, "we look to see whether there was other 'overwhelming' evidence of the defendant's guilt" or whether the evidence "would have been merely cumulative of other evidence in the case." State v. Carlos, 199 Ariz. 273, ¶ 24 (App. 2001), quoting State v. Fuller, 143 Ariz. 571, 574 (1985).
¶29 Here, the precluded reports would have provided no information to the jury that had not already been revealed by Woolridge's testimony. Because the reports were merely cumulative, any error in precluding them was harmless beyond a reasonable doubt. See State ex rel. La Sota v. Ariz. Licensed Beverage Ass'n, 128 Ariz. 515, 523 (1981) ("The exclusion of repetitious or cumulative evidence does not require reversal by an appellate court.").
Trial Court Comments
¶30 Lastly, Preciado argues the trial court's use of "quips, quotes and observations . . . throughout the course of the trial" amounted to structural and fundamental, prejudicial error. He highlights two particular comments in his argument. First, in between B.P. and J.P.'s testimony, the court stated:
We have a brief moment. Let me share with you another pearl of wisdom, if I can find it. It was from Al Capone. I thought you might find that interesting: You can get much further with a kind word and a gun, than you can with a kind word alone.Then, prior to continuing Preciado's direct examination on the second day of his testimony, the court commented:
Because I like to think, and I like to share that process with anyone who would like to join in with me, I have a couple of thoughts for you; not original, not much new under the sun. Frankly, I got them from Dear Abby. I read a lot. I read everything. I read the back of a can, if I don't have anything else to read.
I will—Just for today, I will live through this day only. Just for today, I will be happy.
Just for today, I will accept what is. Just for today, I will improve my mind. Just for today, I will make a conscious effort to be agreeable. Just for today, I will do something positive to improve my health. And finally, just for today I will gather the courage to do what is right and take responsibility for my own words. I offer those to you. I know you can lead the horses to water . . .Preciado did not object to any of the court's comments, or, out of the presence of the jury, ask the court to stop making them. In fact, at one point, Preciado's counsel engaged the court in a lighthearted discussion about one of its jokes.
¶31 Nonetheless, on appeal, Preciado argues that "the parties, the lawyers, victims, jurors, and public are entitled to, and should expect, court proceedings that are conducted in a manner respecting the institutions, traditions, and gravity that court proceedings in general, and jury trials in particular warrant." Despite the trial court's instructions that none of its statements should indicate any opinion it may have had concerning the facts, Preciado urges, "when, as here, the proceedings are infused from the top down with a tone of frivolity, potential damage is done to both the institution and the parties." He thus maintains structural error occurred.
¶32 Preliminarily, we must consider whether these comments resulted in structural error. "[S]tructural errors 'deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence and no criminal punishment may be regarded as fundamentally fair.'" State v. Ring (Ring III), 204 Ariz. 534, ¶ 45 (2003), quoting Neder v. United States, 527 U.S. 1, 8-9 (1999). A finding of structural error requires reversal "regardless of whether an objection is made below or prejudice is found. If error is structural, prejudice is presumed." State v. Valverde, 220 Ariz. 582, ¶ 10 (2009). Error is, however, rarely structural. State v. Henderson, 210 Ariz. 561, ¶ 12 (2005).
¶33 Crucial to determining whether structural error exists is ascertaining whether the alleged error is a "structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." Arizona v. Fulminante, 499 U.S. 279, 310 (1991); see also Henderson, 210 Ariz. 561, ¶ 12 (structural errors "'affect the entire conduct of the trial from beginning to end'" and "taint 'the framework within which the trial proceeds'"), quoting State v. Anderson, 197 Ariz. 314, ¶ 22 (2000). Structural errors broadly fit within three categories: (1) errors affecting rights designed to protect an interest other than protecting the defendant from an erroneous conviction, such as the defendant's right to conduct his own defense; (2) errors where the effect is too hard to measure, such as denying a defendant the right to select his or her own attorney; and, (3) errors always resulting in fundamental unfairness, such as failure to provide an indigent defendant with counsel or failure to give a reasonable-doubt instruction. Weaver v. Massachusetts, ___ U.S. ___, ___, 137 S. Ct. 1899, 1908 (2017). Other examples include:
a biased trial judge, . . . denial of access to criminal defense counsel during an overnight trial recess, . . . exclusion of jurors of the defendant's race from grand jury selection, excusing a juror because of his views on capital punishment, and denial of a public criminal trial.Ring III, 204 Ariz. 534, ¶ 46 (footnotes omitted).
¶34 Preciado does not argue the trial court's comments amounted to any of the errors delineated above. At most, the comments made by the court would fall under the umbrella of judicial bias. But Preciado has not alleged any bias, nor that any bias was "based on the judge's 'direct, personal, substantial pecuniary interest' or other strong personal interest in the outcome of the case." State v. Granados, 235 Ariz. 321, ¶ 12 (App. 2014), quoting Tumey v. Ohio, 273 U.S. 510, 523 (1927). "Other types of bias, such as 'personal bias or prejudice, would not be a sufficient basis for imposing a constitutional requirement under the Due Process Clause' and thus do not require structural error review." Id. ¶ 11, quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 877 (2009) (alterations omitted). Accordingly, Preciado is not entitled to relief on the basis of structural error. See id. ¶ 12.
¶35 Moreover, because Preciado did not object below, we review only for fundamental, prejudicial error. Henderson, 210 Ariz. 561, ¶¶ 19-20. Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." Id. ¶ 19, quoting State v. Hunter, 142 Ariz. 88, 90 (1984).
¶36 Generally, judges must remain impartial and avoid any appearance of partiality. Bible, 175 Ariz. at 595. "A trial judge must also refrain from taking any action calculated to influence the jury or likely to prejudice the defendant." Id. It is error for a judge to make remarks in the presence of the jury "indicating his opinion as to the credibility or lack of credibility of a witness." State v. Garcia, 138 Ariz. 211, 217 (App. 1983). It is also error for a judge to express an opinion "as to what the evidence proves." State v. Barnes, 124 Ariz. 586, 590 (1980). "Statements by the judge that are neither an improper comment to the jury nor prejudicial to the defendant do not constitute error." State v. Williams, 113 Ariz. 14, 16 (1976); see also State v. Barr, 183 Ariz. 434, 442 (App. 1995) ("A claim of improper judicial remarks must be evaluated according to the circumstances of each case.").
¶37 Preciado does not assert that the trial court commented on the evidence or the credibility or lack of credibility of the witnesses. Rather, he argues "[t]he court[']s jokes, comments and questions as a whole violated" Canons 1.2 and 2.8 of the Code of Judicial Conduct, Ariz. R. Sup. Ct. 81. According to him, the comments, specifically the quotes from Al Capone and Dear Abby, "manifested potential partiality against [him]," and "call[] into question the Court's impartiality and such joking does not promote public confidence in the integrity of the judiciary." He concludes the remarks deprived him of a right essential to his defense, specifically, "a solemn atmosphere in which all participants and spectators, as well as the general public, are left with a sense that these proceedings, as well as past and future proceedings, were handled with the seriousness, respect and dignity that the Canons themselves are designed to protect."
Canon 1.2 provides, "A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety." Ariz. R. Sup. Ct. 81, Canon 1.2. Canon 2.8 provides, in part, "A judge shall require order and decorum in proceedings before the court," and, "A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity." Ariz. R. Sup. Ct. 81, Canon 2.8 (A)-(B). --------
¶38 We certainly recognize the importance of solemnity in criminal trials and we would urge trial judges to exercise caution concerning attempts to employ humor, given the risk they will either be misunderstood as oblique comments on the evidence, or as reflecting a lack of sensitivity to the gravity of the proceedings. In this instance, however, we conclude the content of the comments did not denigrate a particular party or an attorney. See People v. Monterroso, 101 P.3d 956, 970 (Cal. 2004) (courts should refrain from humor that might denigrate a party or attorney). Nor has Preciado established a connection between the remarks and any issue at trial. In sum, he has identified neither a concrete violation of the Code of Judicial Conduct nor any possible resulting prejudice.
Disposition
¶39 For the foregoing reasons, we affirm Preciado's convictions and sentences.