State v. Ochoa

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. JUAN A. OCHOA, Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 08-1076 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2007-005479-002 DT The Honorable George H. Foster, Judge AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Michael O Toole, Assistant Attorney General Attorneys for Appellee Droban & Company PC By Kerrie M. Droban Attorney for Appellant Phoenix Anthem K E S S L E R, Judge ¶1 Juan A. Ochoa was convicted by a jury of first degree burglary, three counts of armed robbery, and four counts of kidnapping. The trial court sentenced Ochoa to concurrent and consecutive prison terms totaling 27.5 years. On appeal, Ochoa contends the trial court erred by admitting evidence of an outof-court identification and denying his motion for judgment of acquittal. ¶2 For reasons that follow, we affirm. The convictions stemmed from a home invasion robbery in which a family was held at gunpoint while their property was taken. Ochoa was one of four suspects apprehended by the police shortly after the robbery. The police brought the victims to where the men were in custody to individually determine whether they were the robbers. One of the victims identified Ochoa as having participated in the robbery. ¶3 Prior to trial, Ochoa moved to suppress the out-of- court identification, claiming it was the result of an unduly suggestive procedure. After hearing testimony from the officers who conducted the identification, the trial court ruled that the identification was sufficiently reliable and denied the motion to suppress. The victim was unable to make an in-court identification of Ochoa at trial, but evidence of the out-ofcourt identification was admitted. DISCUSSION A. ¶4 Admissibility of Identification A criminal defendant is entitled to have a pretrial identification procedure conducted 2 in a fundamentally fair manner so as to not deprive him of a fair trial. State v. Smith, 146 Ariz. 491, 496, 707 P.2d 289, 294 (1985) (citations omitted). unfair "Pretrial implicate Amendment." 189, 192 the identifications due process which clause are of fundamentally the Fourteenth State v. Prion, 203 Ariz. 157, 160, ¶ 14, 52 P.3d (2002) (citations omitted). To have a pretrial identification suppressed on due process grounds, a defendant must prove that the circumstances surrounding the identification were so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." v. Gonzales, 181 Ariz. 502, 509, 892 P.2d 838, 845 State (1995) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). We review a trial court s ruling regarding the fairness of a challenged identification for abuse of discretion. State v. Lehr, 201 Ariz. 509, 520, ¶ 46, 38 P.3d 1172, 1183 (2002). ¶5 The pretrial identification of Ochoa involved one-on- one show-ups of the suspects by each victim.1 identifications are inherently suggestive. Single person State v. Canez, 202 Ariz. 133, 150, ¶ 47, 42 P.3d 564, 581 (2002); see also State v. Williams, 144 Ariz. 433, 439-40, 698 P.2d 678, 684-85 (1985) (holding suggestiveness inherent in one-man show-up). 1 However, While the record is not entirely clear, the identification here appears to have consisted of the four suspects being in the street, the police shining spotlights on each one individually, and each victim separately viewing each suspect. 3 even where the pretrial identification procedure is suggestive, reliable identifications will be admitted. unduly Canez, 202 Ariz. at 150, ¶ 47, 42 P.3d at 581; see also Manson v. Brathwaite, linchpin 432 in U.S. 98, determining 114 the (1977) ( [R]eliability admissibility of is the identification testimony . . . . ). ¶6 In denying the motion to suppress, the trial court found that the identification was sufficiently reliable to be admitted notwithstanding procedure. the use of the one-man show-up We determine reliability of a pretrial identification using the five factors set forth in Neil v. Biggers, 409 U.S. 188 (1972). (1985). State v. Bracy, 145 Ariz. 520, 531, 703 P.2d 464, 475 The Biggers factors include: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness degree of attention, (3) the accuracy of the witness prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Id. at n.6. ¶7 Despite the suggestive procedure used, applying the Biggers factors, the victim s pretrial identification of Ochoa was reliable enough misidentification. to avoid a substantial likelihood of In reaching this conclusion, we note that, while the one-on-one show-up procedure employed by the police 4 was suggestive, there were circumstances that tended to mitigate the suggestiveness. These included the advisement given by the police to the victims prior to having them individually view the suspects to keep an open mind and that simply because they had been stopped by the police did not mean they were involved. In addition, the victims were asked to view four suspects, not just one person, and not all of the suspects were identified by the victims as having participated in the robbery. ¶8 Turning to the reliability of the identification of Ochoa, the victim had the opportunity to observe Ochoa two separate times the evening of the robbery -- first when Ochoa initially came to the home to inquire about a vehicle parked in front, and later when he and the others burst into the home with guns and ordered everyone to the floor. Moreover, being a victim rather than a mere witness to the home invasion, this victim s attention would clearly have been drawn to the armed men ordering the victims around. See State v. Hooper, 145 Ariz. 538, 544, 703 P.2d 482, 488 (1985) (citation omitted) (finding out-of-court identification reliable where victim was not [just a] casual observer of defendant, but rather her attention was focused on the suspect ). ¶9 While the victim did not provide much of a description of Ochoa to the police prior to the identification, the absence of a description does not preclude an identification from being 5 reliable. See Williams, 144 Ariz. at 440, 698 P.2d at 685 (finding identification reliable even though no description of perpetrator victim, provided however, prior did to describe show-up Ochoa identification). as wearing white The gloves during the robbery and that description was confirmed by the police locating one white glove outside the getaway vehicle and a second glove inside the vehicle. Finally, the victim made an unequivocal identification of Ochoa less than two hours after the robbery. physical Indeed, the victim had an instant emotional and reaction identifying him. the to seeing Ochoa and began sobbing while Considering the totality of the circumstances, out-of-court identification bore sufficient indicia of reliability so that its admission did not violate Ochoa s due process rights. Thus, the trial court did not abuse its discretion in admitting the identification. B. ¶10 Sufficiency of Evidence Ochoa also maintains that his convictions should be reversed for insufficient evidence. Ochoa does not contend the evidence at trial was insufficient to establish the elements of the charged offenses. Instead, his challenge focuses solely on the issue of identification. Specifically, he argues that the State failed to meet its burden of proving he participated in the robbery. We review a claim of insufficient evidence de novo, the viewing evidence in 6 a light most favorable to upholding the verdicts. State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993) (citation omitted). ¶11 review In considering a claim of insufficient evidence, our is limited to support the verdicts. whether substantial evidence exists to State v. Scott, 177 Ariz. 131, 138, 865 P.2d 792, 799 (1993) (citation omitted); see also Arizona Rules of Criminal Procedure 20(a) (directing that trial court shall enter judgment of acquittal if there is no substantial evidence to warrant a conviction ). that reasonable Substantial evidence is such proof persons could accept as adequate and sufficient to support a conclusion of defendant s guilt beyond a reasonable doubt. State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980)). insufficient evidence it To set aside a jury verdict for must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury. State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). ¶12 Here, there was evidence that a victim made a positive out-of-court identification of Ochoa as one of the robbers. Although this victim was unable to identify Ochoa at trial, this does not eliminate the evidentiary value of the out-of-court identification. Once a finding has been made that an out-of- court identification is admissible, the weight of that evidence 7 then becomes a jury question. State v. Campbell, 146 Ariz. 415, 417, 706 P.2d 741, 743 (App. 1985) (citation omitted); see also State v. Skelton, 129 Ariz. 181, 183, 629 P.2d 1017, 1019 (App. 1981) (noting victim s inability to make in-court identification affects only the weight to be given to the identification and not the admissibility ). The arguments made by Ochoa challenging the credibility of the identification are matters for the jury, not this court. See State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995) ( The finder-of-fact, not the appellate court, credibility including of the weighs the evidence witnesses. ). Given out-of-court the and determines evidence identification, the the at trial, jury could reasonably find that Ochoa was guilty of the robbery and related offenses beyond a reasonable doubt. evidence exists to support the Accordingly, substantial trial court's denial of the motion for judgment of acquittal. CONCLUSION ¶13 For the forgoing reasons, we affirm convictions and sentences. /S/ DONN KESSLER, Judge CONCURRING: /S/ PATRICK IRVINE, Presiding Judge /S/ MICHAEL J. BROWN, Judge 8 Ochoa s

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