Opinion
No. 1 CA-CR 14-0370
06-11-2015
STATE OF ARIZONA, Appellee, v. LUIS LEYVAS SANCHEZ, IV, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Terry M. Crist, III Counsel for Appellee Coconino County Public Defender's Office, Flagstaff By Brad Bransky Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Coconino County
No. S0300CR201300316
The Honorable Mark R. Moran, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee
Coconino County Public Defender's Office, Flagstaff
By Brad Bransky
Counsel for Appellant
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Maurice Portley joined.
THOMPSON:
¶1 Luis Leyvas Sanchez, IV, appeals his conviction and sentence for aggravated assault, a dangerous offense.
FACTS AND PROCEDURAL BACKGROUND
We view the trial evidence in the light most favorable to sustaining the jury's verdicts. See State v. Nelson, 214 Ariz. 196, 196, ¶ 2, 150 P.3d 769, 769 (App. 2007).
¶2 A grand jury indicted Sanchez on one count of attempted first degree murder and one count of aggravated assault using a dangerous instrument.
¶3 The victim's relationship with Sanchez and Andrew Jaurequi, drug dealers and roommates, soured after two drug deals went bad. After exchanging words with the victim one morning on a Flagstaff street, Jaurequi made a call on his cellphone and told his girlfriend to park down the street when she saw Sanchez arrive. Sanchez arrived at the scene within minutes and exited his car wielding a machete. Jaurequi knocked the victim to the ground and held him down before Sanchez slashed the victim's knee, back, and neck, and his face through his ear.
¶4 At trial, Sanchez denied attacking the victim with a machete or even seeing Jaurequi, his girlfriend, or the victim that day. The jury acquitted Sanchez of attempted murder, but convicted him of aggravated assault, a dangerous offense. The superior court found that this was Sanchez's third serious offense and imposed a life sentence with possibility of release after 25 years.
¶5 Sanchez filed a timely notice of appeal, and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A)(1) (2010).
DISCUSSION
Other-acts Evidence
¶6 Sanchez argues that the superior court abused its discretion in granting the state's pretrial motion to admit evidence of the two bad drug deals under Evidence Rule 404(b). The state must first prove that the defendant committed the other act by clear and convincing evidence. State v. Terrazas, 189 Ariz. 580, 584, 944 P.2d 1194, 1198 (1997). A superior court then has discretion to admit other-act evidence if it is offered for a proper purpose under Rule 404(b), its relevance under Rule 402 is not substantially outweighed by the potential for unfair prejudice under Rule 403, and the court provides a limiting instruction if requested under Rule 105. State v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046, 1055 (1997). Evidence of other acts is not admissible to prove character "to show action in conformity therewith," but it may be admissible for other purposes, such as proof of intent, motive, opportunity, or identity. See Ariz. R. Evid. 404(b). Motive is relevant in a murder prosecution. State v. Hargrave, 225 Ariz. 1, 8, ¶ 14, 234 P.3d 569, 576 (2010). "[W]here the existence of premeditation is in issue, evidence of previous quarrels or difficulties between the accused and the victim is admissible." State v. Jeffers, 135 Ariz. 404, 418, 661 P.2d 1105, 1119 (1983).
¶7 The victim testified at the evidentiary hearing that he knew Sanchez and Jaurequi from purchasing drugs from them. About a month before the machete attack, Sanchez, whom the victim knew as "Sauce," and a man the victim knew only as "Junior" came to the victim's house to look at high-end electronics the victim wanted to trade for drugs. An expensive rifle was missing after they left. When the victim confronted Sanchez about the theft, the victim stated that he "was argumentative, um, and I wouldn't say very receptive." The victim's relationship with Jaurequi, whom he knew as "Apples," had soured shrotly before the attack after the victim refused to pay for the drugs he received because Jaurequi returned only three of the four cell phones victim had given him as collateral.
¶8 In ruling the other-acts evidence admissible, the superior court found that Sanchez had not disputed that the other acts took place. The court further found that the two incidents occurred within the month before the machete attack, and the attack "was the culmination of the ongoing dispute between the two." The superior court concluded that these incidents were highly probative on the issue of Sanchez's motive and intent in attacking the victim and that the probative value of the other acts was not substantially outweighed by the danger of unfair prejudice. We review rulings on the admissibility of other-acts evidence for abuse of discretion. Mott, 187 Ariz. at 545, 931 P.2d at 1054.
¶9 We find no such abuse of discretion. We reject Sanchez's argument that the cell phone incident was irrelevant on the ground it did not involve or interest Sanchez, and "there was absolutely no indication that . . . [it] in any way precipitated the attack." The victim testified at the evidentiary hearing that Sanchez had told him that the cell phone incident was one of the conflicts that he and Jaurequi had with the victim preceding, if not precipitating, the attack. Sanchez also told the victim that he had advised Jaurequi "to deal with it," but warned Jaurequi that the two would probably get into a fight, and that the victim was likely to fight back. The record supports the trial court's finding that this incident was relevant to show Sanchez's motive and intent for the machete attack.
¶10 We also reject Sanchez's argument that the state failed to prove that Sanchez had stolen the rifle or that this incident could have supplied a motive for Sanchez to attack the victim. The victim's testimony that the rifle disappeared when Sanchez and Junior were alone in his dwelling was sufficient for the trial court to find that the state proved that Sanchez had stolen the rifle. The victim's testimony that Sanchez told him that this was one of the conflicts that had precipitated the attack supported the trial court's finding that this incident was also relevant to show Sanchez's motive and intent for the attack.
¶11 Finally, we conclude the superior court did not abuse its discretion in finding that any unfair prejudice from the admission of these incidents did not substantially outweigh their probative value. The drug dealing was key to the relationship between the victim and his attacker, and evidence of two drug deals gone bad were significantly probative on the issues of motive and intent for the attack. Unfair prejudice arises only if the evidence "has an undue tendency to suggest decision on an improper basis, such as emotion, sympathy, or horror." Mott, 187 Ariz. at 545, 931 P.2d at 1054. Because both the victim and Sanchez were involved with the drug trade (the victim as buyer and Sanchez as seller), any prejudice from that fact would attach to them both. Moreover, the superior court gave an appropriate limiting instruction to the jury, minimizing any unfair prejudice from the improper use of this evidence. On this basis, we find no abuse of discretion in admitting this evidence.
Coconspirator's Statements
¶12 Sanchez argues that the superior court abused its discretion in admitting Jaurequi's statements to or overheard by his girlfriend about the attack under Evidence Rule 801(d)(2)(E), as nonhearsay statements by a coconspirator. He argues that no independent evidence established the existence of a conspiracy between Sanchez and Jaurequi to attack the victim with a machete, and the evidence instead showed that Sanchez's use of the machete surprised Jaurequi.
¶13 "A coconspirator's statements are admissible 'when it has been shown that a conspiracy exists and the defendant and the declarant are parties to the conspiracy.'" State v. Dunlap, 187 Ariz. 441, 458, 930 P.2d 518, 535 (App. 1996) (quoting State v. White, 168 Ariz. 500, 506, 815 P.2d 869, 875 (1991). Statements "offered against an opposing party" and "made by the party's coconspirator during and in furtherance of the conspiracy" are not hearsay. Ariz. R. Evid. 801(d)(2)(E). For purposes of Rule 801(d)(2)(E), the existence of a conspiracy and a defendant's involvement need only be established by a preponderance of the evidence. Bourjaily v. United States, 483 U.S. 171, 175-76 (1987). A defendant's involvement in a conspiracy may be inferred from circumstantial evidence. See State v. Arredondo, 155 Ariz. 314, 317, 746 P.3d 484, 487 (1987).
¶14 The parties agreed at the pretrial hearing that the superior court could rule on the state's pretrial motion to admit the statements as those of a coconspirator, based on the evidence in the transcripts of interviews submitted with the motions. In her interview, Jaurequi's girlfriend said that Sanchez supplied her with drugs for sale, and Jaurequi acted as Sanchez's runner or delivery boy in the drug business. The day of the machete attack, she was in Jaurequi's car when he and the victim started arguing. Jaurequi called Sanchez on the cell phone and told him, "I just ran into that fool that jacked me . . . I'm just going to f*** this fool up real quick but I need to make sure he doesn't whoop my ass," and told Sanchez where he was. She said Jaurequi told her to drive up the street when she saw Sanchez arrive. She said that right after that, Sanchez drove up.
¶15 The victim said that Sanchez got out of his car wielding a machete, and after Jaurequi knocked the victim to the ground, Sanchez started hacking at the victim with the machete.
¶16 The superior court found that the following evidence demonstrated that Sanchez and Jaurequi conspired to assault the victim: 1) the two men "worked together to sell drugs to the victim"; 2) the victim and Jaurequi had argued within a month of the attack and Jaurequi told Sanchez he had been "jacked" by the victim; 3) Jaurequi had previously told the girlfriend and Sanchez that he wanted to "F*** this fool up," and he repeated this desire to Sanchez over the phone just prior to the assault; and 4) Sanchez appeared at the scene in response to the phone call and together, he and Jaurequi "f***d" the victim up. The superior court further found that "the conspiracy was formulated during the phone call from Jaurequi at the scene to the Defendant." The court accordingly ruled that only those statements during and after the phone call were admissible under the coconspirator exception to the hearsay rules. We review the superior court's decision to admit a coconspirator's statements for abuse of discretion. Dunlap, 187 Ariz. at 458, 930 P.2d at 535.
¶17 We find no abuse of discretion in the admission of Jaurequi's statements as those made by a coconspirator during and in furtherance of the conspiracy. First, we reject Sanchez's argument that there was no proof independent of the statements in the phone call that there was any conspiracy, as required under Ariz. R. Evid. 801(d)(2)(E). See Dunlap, 187 Ariz. at 458, 930 P.2d at 535 ("The statement must be considered but does not by itself establish . . . the existence of the conspiracy or participation in it under (E)"). The evidence that Sanchez showed up at the scene within minutes of Jaurequi's phone call and that the two immediately launched a coordinated attack on the victim — Jaurequi pulling him to the ground and Sanchez slashing him with a machete — was more than sufficient to show that the two conspired to attack the victim. Nor does Sanchez's recitation of isolated statements suggesting that Jaurequi at first argued with Sanchez about the need for the attack, and that Jaurequi was not aware that Sanchez would bring a machete to the attack, persuade us that the court abused its discretion in concluding that the two formed a conspiracy to attack the victim. All that is necessary for a conspiracy is an agreement to commit "any felony upon the person of another" "with the intent to promote or aid the commission" of such felony. A.R.S. § 13-1003(A) (2010). The evidence that Sanchez showed up and coordinated the attack on the victim with Jaurequi was sufficient to demonstrate the existence of the conspiracy, and to admit the statements that were made by Jaurequi to, or within hearing of, his girlfriend pertaining to the attack and escape.
Prior Consistent Statements
¶18 Sanchez argues that the superior court abused its discretion in allowing the prosecutor to elicit testimony from Jaurequi's girlfriend that she had told a relative shortly after the incident that Sanchez had attacked the victim with a machete.
¶19 The state filed a motion before trial to admit this and other prior consistent statements under Evidence Rule 801(d)(1)(B) to rebut any attempt by Sanchez to imply that this witness had recently fabricated her testimony because she had entered a plea agreement to reduced charges..] Sanchez objected, arguing that Jaurequi's girlfriend had a motive to lie immediately after the attack to protect herself from prosecution. The superior court deferred ruling on the motion, asking that it be raised at trial if and when the issue became relevant.
¶20 At trial, on cross-examination by defense counsel, Jaurequi's girlfriend confirmed that she had told the relative shortly after the attack that she had lost a "torch that was used for cleaning or burning evidence." She also confirmed that she had asked this relative, "Well, doesn't like blood fade away on high temperatures on like a knife or something?" On further questioning by defense counsel, she agreed that she initially had been charged as an accomplice to the attack, and, as a result of the plea deal, depending in part on her testimony, the state might be able to get her probation.
¶21 Without objection, on re-direct, the prosecutor elicited testimony from Jaurequi's girlfriend that she had no idea that the relative was recording the conversation, but she had told her that she knew that Jaurequi had not attacked the victim with a machete, but that Sanchez had.
¶22 Because the trial court did not rule on the state's motion before trial, and Sanchez did not object to the challenged testimony at trial, we review for fundamental error only. See State v. Garcia-Quintana, 234 Ariz. 267, 269, ¶ 5, 321 P.3d 432, 434 (App. 2014). Sanchez accordingly bears the burden of establishing that the court erred, the error was fundamental in nature, and that he was prejudiced thereby. State v. Henderson, 210 Ariz. 561, 568, ¶ 22, 115 P.3d 601, 608 (2005). Error is fundamental when it goes to the foundation of the defendant's case, takes from him a right essential to his defense, and is error of such magnitude that he could not possibly have received a fair trial. Id. at 567, ¶ 19, 115 P.3d at 607. To prove prejudice, defendant must show that a reasonable jury or judge could have reached a different result absent the error. Id. at 569, ¶ 27, 115 P.3d at 609.
¶23 Sanchez has failed to meet his burden on fundamental error review. The statement was admissible to rebut the improper inference raised by defense counsel's cross-examination, which opened the door to the prosecutor's follow-up questions. See State v. Garcia, 133 Ariz. 522, 526, 652 P.2d 1045, 1049 (1982) (finding no error when a party "open[s] the door" to later, otherwise objectionable testimony); see also State v. Granados, 235 Ariz. 321, 328-29, ¶ 31, 332 P.3d 68, 75-76 (App. 2014) ("[W]hen defense counsel causes an improper inference to arise through cross-examination, the defendant cannot claim error occurred when the state rebuts that assertion with contrary proof, even whether the proof is hearsay.") (citations and internal quotations omitted). Because defense counsel elicited testimony about a portion of this conversation that appeared to implicate Jaurequi in use of the machete, the trial court did not err in failing to sua sponte strike the witness's clarification on re-direct that she had told the relative that she knew that it was Sanchez, not Jaurequi, who used the machete. See id.
¶24 Moreover, even assuming admission of this testimony was somehow error, Sanchez has failed to meet his burden to show that it was fundamental, prejudicial error. This statement was cumulative of other evidence, including the victim's testimony, that it was Sanchez, not Jaurequi, who had slashed him with the machete. Jaurequi's girlfriend had already testified that when Jaurequi returned to the car from the attack, she did not see a machete or any blood. On this record, her "credibility as a witness did not hinge on these prior consistent statements." See State v. Jones, 197 Ariz. 290, 300, ¶ 18, 4 P.3d 345, 355 (2000) (holding that erroneous admission of prior consistent statements did not warrant reversal because of the absence of impact on the witness's credibility). We decline to reverse on this basis.
CONCLUSION
¶25 For the foregoing reasons, we affirm Sanchez's conviction and sentence.