Opinion
No. 2 CA-CR 2016-0163
12-29-2017
THE STATE OF ARIZONA, Appellee, v. ERIC ALAN REYNOSO, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee The Nolan Law Firm, P.L.L.C., Mesa By Cari McConeghy Nolan 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NOT FOR PUBLICATION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 Pima County
No. CR20142246001
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee The Nolan Law Firm, P.L.L.C., Mesa
By Cari McConeghy Nolan
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 After a jury trial, Eric Reynoso was convicted of first-degree burglary and sentenced to a presumptive prison term of 9.25 years. On appeal, he argues the trial court erred by failing to sua sponte excuse a potential juror for cause, allowing an in-court identification based on an "unduly suggestive show-up," and denying his motions for a mistrial and judgment of acquittal. For the reasons stated below, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to affirming Reynoso's conviction. See State v. Musgrove, 223 Ariz. 164, ¶ 2 (App. 2009). In May 2014, C.H. arrived home to find that someone had broken into his house. He immediately noticed that his laptop computer was missing and that "a lot of stuff had been gone through." Upon entering his bedroom, C.H. also realized that his shotgun and hiking backpack were gone. As he called 9-1-1, C.H. saw two males at the park across the street. C.H. described the men to the operator, explaining that one of them was sitting on some exercise equipment while the other jumped over the wall into a neighbor's yard.
¶3 When the first officer arrived, he saw a yellow pickup truck parked in the alley near C.H.'s home. Because he suspected that the truck belonged to the burglars and that they would soon return, the officer parked his car out of sight and watched. Shortly thereafter, the officer saw two males coming down the alley. When the officer gave commands for the men to stop, one—later identified as Marco Chavez—"froze," but the other—Reynoso—was "on top of a wall to another residence looking like he was getting ready to jump into that backyard." Officers detained both men. C.H. identified Reynoso as the person he had seen jump over his neighbor's wall and Chavez as the one who had been sitting on the exercise equipment.
¶4 During a search of the yellow pickup truck, officers found C.H.'s backpack, which contained his laptop and shotgun. Also inside the truck, officers found a cell phone containing "selfies" of Reynoso and a photograph of the truck. Chavez confessed that he and Reynoso "had broken into a house," with Chavez serving as the "lookout."
¶5 A grand jury indicted Reynoso for one count of burglary in the first degree. He was convicted as charged and sentenced as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Chavez was similarly indicted but pled guilty to facilitation to commit burglary in the first degree.
Reynoso's jury trial occurred in May 2015. He was arrested pursuant to a bench warrant in September 2015 and was sentenced in April 2016. Although this delay normally would prevent Reynoso from filing an appeal, see A.R.S. § 13-4033(C), it does not appear from the record that he was given notice he would forfeit this right by voluntarily delaying sentencing for more than ninety days. The delay in sentencing, therefore, does not prevent Reynoso from exercising his right to appeal. See State v. Bolding, 227 Ariz. 82, ¶ 20 (App. 2011).
Potential Juror
¶6 Reynoso first argues the trial court erred by failing to sua sponte excuse a potential juror for cause based on the juror's connections to the neighborhood in which the offense occurred. However, as the state points out, because Reynoso did not challenge the juror below, he has forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005). Furthermore, because Reynoso does not argue on appeal that the error is fundamental, the argument is waived. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008).
¶7 In his reply brief, Reynoso nevertheless contends the argument is not waived because it is "a constitutional error that the trial court had a duty to properly resolve sua sponte, thereby not requiring the defense to raise the issue first." But the "waiver principle applies to alleged constitutional issues, as well as to nonconstitutional issues." State v. Bolton, 182 Ariz. 290, 297 (1995). Contrary to Reynoso's suggestion, our treatment of this argument as waived does not mean we "simply ignore" the issue. Indeed, we will not ignore fundamental error if we find it. State v. Fernandez, 216 Ariz. 545, ¶ 32 (App. 2007). However, based on the record before us—particularly the fact that this potential juror did not sit on the panel—no such error occurred here. Cf. State v. Martinez, 218 Ariz. 421, ¶ 35 (2008) (no reversible error in failing to strike potential juror for cause where juror did not participate in deliberations and defendant does not claim other jurors who participated should have been struck for cause).
In-Court Identification
¶8 Reynoso next asserts that his "due process rights were violated" because the "identification of [him] at trial" was based on an "unduly suggestive show-up." Again, however, Reynoso failed to raise this issue below. It is therefore forfeited absent fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20. Moreover, because Reynoso does not argue on appeal that the error is fundamental, and because we find no such error, the argument is waived. See Moreno-Medrano, 218 Ariz. 349, ¶ 17; see also Fernandez, 216 Ariz. 545, ¶ 32.
Although C.H. identified Reynoso at a showup on the day of the burglary, he did not identify Reynoso at trial. Instead, the first officer at the scene identified Reynoso, who did not appear at trial, in a photograph, "as the guy who was on the wall."
As part of this argument, Reynoso contends that the showup was "unreliable" because it occurred "three to four hours" after C.H. had observed Reynoso at the park. However, this is refuted by C.H.'s testimony clarifying that the showup had occurred earlier, coupled with an officer's testimony that the showup was actually ten to fifteen minutes after C.H.'s initial observation. See Musgrove, 223 Ariz. 164, ¶ 2 (facts viewed in light most favorable to affirming conviction).
Motions for a Mistrial
¶9 Reynoso next contends the trial court erred by denying his motions for a mistrial based on the admission of evidence that had been previously precluded. We review for an abuse of discretion the denial of a motion for a mistrial. State v. Almaguer, 232 Ariz. 190, ¶ 29 (App. 2013).
¶10 Before trial, Reynoso filed a motion in limine to preclude any testimony regarding another alleged burglary in the same neighborhood. The other alleged burglary involved a neighbor's house, the backyard of which C.H. had seen Reynoso jump into from the park. Police found signs that the house had been broken into, but nothing obvious was stolen, and, according to Chavez, Reynoso did not take anything from that house. The homeowner was out of town at the time, and the state never sought to indict Reynoso for this incident.
Reynoso filed multiple motions in limine on the eve of trial, and, as a result, the court precluded evidence that Reynoso had shown Chavez 300 pounds of marijuana, was a member of a California gang, and had threatened Chavez on social media. However, as we understand Reynoso's argument, both motions for a mistrial were based on purported violations of the motion in limine regarding the burglary.
We additionally note that none of the motions in limine is part of our record on appeal. See State v. Zuck, 134 Ariz. 509, 51213 (1982) ("It is the duty of counsel who raise objections on appeal to see that the record before us contains the material to which they take exception."). "[T]he missing portion of the record will be presumed to support the decision of the trial court." State v. Rivera, 168 Ariz. 102, 103 (App. 1990).
¶11 In response, the state argued that evidence of this other alleged burglary was admissible to show Reynoso's modus operandi and to corroborate Chavez's testimony. Treating the evidence as other-act evidence under Rule 404(b), Ariz. R. Evid., the trial court precluded the state from "introducing evidence of a burglary that allegedly occurred in the neighbor's yard," explaining:
The state filed a related notice of intent to introduce other-act evidence under Rule 404(b). That evidence consisted of testimony that Reynoso had attempted to enter another home and had removed a video camera from that home. At trial, however, the state conceded that it did not need to introduce evidence of the missing camera, and the court precluded it.
[Given] that [Chavez] has received a benefit from providing information and that there's no physical or forensic evidence indicating that . . . Reynoso went into the home, only that he was in the yard, the Court finds that there's not clear and convincing evidence that that crime occurred and, furthermore, that the probative value does not outweigh the danger of unfair prejudice.However, the court further ordered that the witnesses could testify they had seen Reynoso jump over the wall into the neighbor's yard, just not that he did so "to commit a burglary."
¶12 During direct examination, the prosecutor asked Chavez, "What was the first story that you told the officer that day?" Chavez explained that "[his] story" was they were "playing football at the park," Reynoso "had kicked it out really far," and Reynoso had jumped over the wall "to see if the football was there." When the prosecutor asked Chavez why he had told the police that story, Chavez answered, "Because . . . that was the story that [Reynoso] had told me to say." Defense counsel objected, and the trial court sustained the objection. Outside the presence of the jury, defense counsel moved for a mistrial because the court had "granted the motion in limine." The court denied the motion for a mistrial, finding that "the violation of the Court's order d[id] not prejudice . . . Reynoso."
¶13 Later, in response to a jury question, the trial court asked Chavez, "[W]hen you were sitting in the park . . . and being the lookout, . . . did you actually see [Reynoso] go into the home?" Chavez responded, "The first home or the second home?" The court clarified, "Just the one we're talking about." After Chavez responded affirmatively, he was dismissed as a witness, and defense counsel moved for a mistrial. The court denied the motion, explaining, "I think that it can easily be interpreted both ways, one, that [Reynoso] went into another house, or, two, that he was talking about when [Reynoso] jumped over the wall in the other yard."
¶14 On appeal, Reynoso maintains the trial court erred by denying the motions for a mistrial. He reasons that, because the court had "decided prior to trial that the evidence at issue was not established by clear and convincing evidence" and "nothing had changed" to affect that finding, the court "had no basis to . . . allow the material to be admitted and to not grant a mistrial." Reynoso also contends the evidence was "extremely unfairly prejudicial" because Chavez effectively "told the jury that [Reynoso] was a liar" and "committ[ed] a string of burglaries."
¶15 When a witness "unexpectedly volunteers information, the trial court must decide whether a remedy short of mistrial will cure the error." State v. Jones, 197 Ariz. 290, ¶ 32 (2000). Declaring a mistrial "is the most dramatic remedy for trial error" and should be done "only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted." State v. Murray, 184 Ariz. 9, 35 (1995), quoting State v. Adamson, 136 Ariz. 250, 262 (1983). "[W]e will not reverse a conviction based on the erroneous admission of evidence without a reasonable probability that the verdict would have been different had the evidence not been admitted." Almaguer, 232 Ariz. 190, ¶ 29, quoting State v. Hoskins, 199 Ariz. 127, ¶ 57 (2000).
¶16 As to the first motion for a mistrial, which was based on Chavez's statement that Reynoso had told him to tell police they were playing football, we question whether Chavez violated the trial court's order precluding evidence of another alleged burglary. Telling the jury Reynoso "was a liar," as Reynoso characterizes it, is not the same as telling the jury Reynoso committed another burglary. Moreover, we fail to see how this evidence constitutes another "crime[], wrong[], or act[]," which is inadmissible under Rule 404(b)—the rule on which the court relied in precluding evidence of another burglary. See State v. Hargrave, 225 Ariz. 1, ¶ 10 (2010) (other-act evidence not admissible to show defendant is bad person or has propensity for committing crimes). Assuming Chavez did not violate the order, the court did not err in denying the motion for a mistrial. Cf. State v. Dann, 205 Ariz. 557, ¶¶ 43-46 (2003) (discussing motion for mistrial based on improper statement made in contravention of prosecutor's instructions).
¶17 Even assuming Chavez did violate the trial court's order, we cannot say the court abused its discretion in denying the motion for a mistrial. See Almaguer, 232 Ariz. 190, ¶ 29. Defense counsel immediately objected after Chavez stated that Reynoso had told him to tell police the football story, and the court sustained the objection. The court also instructed the jury, "If I sustain a lawyer's objection to a question, you're to disregard the question and any answer that might have been given." We presume the jury follows the court's instructions. State v. Newell, 212 Ariz. 389, ¶ 68 (2006). Accordingly, "we see no reasonable probability the verdict was affected by the statement." Almaguer, 232 Ariz. 190, ¶ 29.
¶18 As to the second motion for a mistrial, which was based on Chavez asking the trial court if it meant "[t]he first home or the second home," we agree with the court's determination that the jury could have interpreted it multiple ways. The jury heard testimony from C.H. that Reynoso had jumped over the wall into a neighbor's yard, and the jurors could have thought Chavez was referring to this yard and not necessarily a second burglary. The court was in the best position to evaluate Chavez's question in the context of the trial as a whole and to assess its potential effect on the jury. See Dann, 205 Ariz. 557, ¶ 46. We thus cannot say the court abused its discretion in denying the motion for a mistrial. See Almaguer, 232 Ariz. 190, ¶ 29. As we noted above, Chavez's question arose from one posed by a juror. Thus, contrary to Reynoso's suggestion, we cannot fault the prosecutor for the "presentation of the already precluded testimony."
¶19 In addition, any error in the admission of Chavez's question was harmless given the overwhelming evidence of Reynoso's guilt. See Hoskins, 199 Ariz. 127, ¶ 58. C.H. observed Reynoso jumping over the wall into his neighbor's yard while he was on the telephone with a 9-1-1 operator reporting the burglary. Shortly thereafter, an officer saw Reynoso and Chavez in the alley near C.H.'s home, and Reynoso was straddling the wall as if he was going to jump into another yard. Perhaps most notably, however, Chavez testified that he and Reynoso had "br[oken] into a house," and C.H.'s missing belongings were found behind the driver's seat of a truck Reynoso was driving. Thus, based on this evidence, "there exists no reasonable probability that the verdict" would have been different. Id.
Motion for a Judgment of Acquittal
¶20 Reynoso lastly contends the trial court erred by denying his motion for a judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P. We review de novo the denial of a motion for a judgment of acquittal. State v. West, 226 Ariz. 559, ¶ 15 (2011). In doing so, we view the evidence in the light most favorable to sustaining the jury's verdict and resolve all inferences against the defendant. State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015).
¶21 A trial court "shall enter a judgment of acquittal . . . if there is no substantial evidence to warrant a conviction." Ariz. R. Crim. P. 20(a). "Substantial evidence is such proof that 'reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.'" State v. Sharma, 216 Ariz. 292, ¶ 7 (App. 2007), quoting State v. Mathers, 165 Ariz. 64, 67 (1990). "If reasonable [persons] may fairly differ as to whether certain evidence establishes a fact in issue, then such evidence must be considered as substantial." State v. Davolt, 207 Ariz. 191, ¶ 87 (2004), quoting State v. Rodriguez, 186 Ariz. 240, 245 (1996) (alteration in Rodriguez). Substantial evidence may be direct or circumstantial. State v. Pena, 209 Ariz. 503, ¶ 7 (App. 2005).
¶22 A person commits burglary in the first degree if such person "enter[s] or remain[s] unlawfully in or on a residential structure with the intent to commit any theft or any felony therein" and "knowingly possesses explosives, a deadly weapon or a dangerous instrument in the course of committing any theft or any felony." A.R.S. §§ 13-1507(A), 13-1508(A). "'In the course of committing' means any acts that are performed by an intruder from the moment of entry to and including flight from the scene of a crime." A.R.S. § 13-1501(7).
¶23 Reynoso contends the trial court erred in denying his motion for a judgment of acquittal because "there is absolutely no evidence that [he] sufficiently possessed the gun as required pursuant to the burglary statute." He maintains that § 13-1508 applies only "when someone is brandishing a weapon during a burglary, not when someone steals a gun in a bag with no evidence of his knowingly possessing for purposes of using it in the theft." We disagree.
Reynoso did not request a judgment of acquittal on this basis before the trial court; rather, he argued that the state "didn't do any . . . fingerprint analysis on the gun." Accordingly, the argument on appeal is waived for all but fundamental, prejudicial error. See State v. Rhome, 235 Ariz. 459, ¶ 4 (App. 2014). However, because a conviction based on insufficient evidence constitutes such error, we nonetheless address the argument. See id. --------
¶24 In State v. Befford, 148 Ariz. 508, 509-10 (1986), our supreme court determined that the defendant "was not 'armed' with a deadly weapon as that term is used in . . . § 13-1508(A)," when he "stole a gun, as part of his loot, during the course of the burglary." However, as this court later recognized, the legislature amended § 13-1508(A) in 1988 "to eliminate the 'armed with' requirement and replace it with 'knowingly possess,'" which demonstrated the legislature's disapproval of Befford. State v. Tabor, 184 Ariz. 119, 120 (App. 1995). Consequently, in Tabor, we upheld the defendant's first-degree burglary conviction when he possessed a pistol, a pellet rifle, and Ninja swords taken as loot during the burglary. Id.
¶25 This case is similar to Tabor. Chavez testified that Reynoso had broken into C.H.'s house while Chavez served as a lookout. When Reynoso came out of C.H.'s house, he was carrying a bag that contained a shotgun. Chavez said Reynoso had pulled the shotgun out of the bag twice to show it to him before leaving it behind the driver's seat of the truck. C.H. identified the bag and shotgun as his. C.H. also testified that he kept his shotgun "on the top end of his closet," explaining that it "was not in plain view." Substantial evidence thus shows Reynoso "knowingly possesse[d]" C.H.'s shotgun in the course of committing a felony. § 13-1508(A).
¶26 Reynoso additionally argues, "There was no evidence that the gun was in working order, or that [he] knew it was a deadly weapon." However, "[a]bsent reasonable doubt as to the operability of a firearm, the state has no burden to prove the gun was not permanently inoperable." State v. Valles, 162 Ariz. 1, 7 (1989). Moreover, Chavez testified that he thought the gun was loaded because it had casings. A detective similarly testified that the gun was loaded. Accordingly, the jury could infer that Reynoso knew the shotgun was a deadly weapon. See Pena, 209 Ariz. 503, ¶ 7.
¶27 As described above, the evidence of Reynoso's guilt was overwhelming. See State v. Anthony, 218 Ariz. 439, ¶ 41 (2008) (standard for overwhelming evidence considerably more stringent than standard for sufficient evidence). The trial court therefore did not err in denying the motion for a judgment of acquittal. See West, 226 Ariz. 559, ¶ 15.
Disposition
¶28 For the reasons stated above, we affirm Reynoso's conviction and sentence.