State v. Almos
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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. DOMINIQUE ALMOS, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) 1 CA-CR 09-0172 DIVISION ONE FILED: 02-25-2010 PHILIP G. URRY,CLERK BY: DN DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-150932-001 DT The Honorable F. Pendleton Gaines, Judge AFFIRMED Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Liza-Jane Capatos, Assistant Attorney General Attorneys for Appellee Phoenix Bruce Peterson, Legal Advocate by Francis Gray, Deputy Legal Advocate Attorneys for Appellant Phoenix W E I S B E R G, Judge ¶1 Dominique Almos ("Defendant") appeals from his conviction on one count of theft of a means of transportation, a Class 3 felony. He contends that the trial court abused its discretion by (1) denying his motion for judgment of acquittal and (2) admitting evidence of his tattoos and gang affiliation and making improper comments about that affiliation in front of the jury. Defendant also maintains that the court committed fundamental error when it permitted the prosecutor to comment on his exercise of present evidence. the constitutional right not to testify or For reasons set forth below, we affirm. FACTS 1 AND PROCEDURAL HISTORY ¶2 Defendant was indicated transportation, a Class 3 felony. following. for theft of a means of The evidence at trial was the At the end of the work day on August 12, 2008, Karen C. 2 drove to her home in the vicinity of Baseline and Rural Road in Tempe and parked her dark blue, 2006 Honda Civic in the driveway at approximately 4:30 p.m. Later that evening, her husband moved the Honda into their carport. 1 We view the facts in the light most favorable to sustaining the jury s verdict and resolve all reasonable inferences against Defendant. State v. Vendever, 211 Ariz. 206, 207 n.2, 119 P.3d 473, 474 n.2 (App. 2005). 2 We use the first initial of the victim s last name to protect her privacy as a victim. State v. Maldonado, 206 Ariz. 339, 341 n.1 ¶2, 78 P.3d 1060, 1062 n.1 (App. 2003). 2 ¶3 The following morning, August 13, Karen's realized that the car was missing from their carport. vehicle was taken, the title, registration and husband When the proof of insurance, as well the husband s driver s license, were all in the glove compartment [m]iscellaneous of the Honda. paperwork and junk compartments of the doors. There mail in was also the side The couple reported the vehicle stolen to Tempe Police. ¶4 At approximately 7:00 a.m. on the morning of August 14, Phoenix Police Officer E.B., assigned to the auto theft liaison team, was patrolling in the area of 1130 East Durango Street in Phoenix. He noticed a dark blue Honda Civic parked in the parking lot of an apartment complex at that address. His suspicions were aroused because Hondas or Civics are one of the most commonly stolen vehicles, not only in the State, but the country and because it just didn t fit the apartment complex. The car appeared to be out of place to E.B. because he knew it was a $15,000 to $20,000 vehicle, and, in his experience, the occupants of the apartment complex could ill afford such an expensive vehicle. When the officer ran the Honda s license plate on his computer, he found that it had been reported as stolen. ¶5 Officer E.B. called an undercover Phoenix police unit to undertake surveillance of the vehicle. 3 Within twenty minutes of the unit s setting up, Officer R.B. saw Defendant walking up a driveway towards the Honda. Defendant walked toward the vehicle, turned and went back toward the apartment complex, and then re-emerged with a woman following him. The woman remained in the driveway area while Defendant walked to the Honda, opened the trunk with a key, and removed a bag. Defendant then walked to the driver s side door and opened it with the key. To avoid the necessity of instigating a vehicle pursuit, the officers moved in at that point and arrested Defendant before he actually entered the automobile. ¶6 none The Honda had no visible damage to it and exhibited of the sunglasses usual and four signs CDs of a inside forced the entry. Honda. Police The bag found that Defendant had retrieved from the trunk was on the ground outside of the driver s side door and contained clothing. At trial, Defendant stipulated that all of the items recovered from the car by the police were Defendant s property. ¶7 Officer E.B. contacted the woman who was at the scene with Defendant and interviewed her. She lived in Apartment #2 in the complex, the apartment behind which the Honda was parked. She denied any knowledge of the Honda. After speaking with her, E.B. concluded that she should not be arrested for theft of the Honda. 4 ¶8 After the arrest, Officer E.B. contacted the victim to return the car key that Defendant had in his possession to her. The victim had recently moved to Tempe, and the key Defendant had used was a missing master key to the vehicle at trial that had present any apparently been lost during the move. ¶9 Defendant witnesses. did not testify or Defendant simply argued that, based on the evidence presented, the State had failed to prove beyond a reasonable doubt that he knew that the vehicle was stolen. The jury found Defendant guilty of the offense as charged. ¶10 At sentencing on February 25, 2009, the trial court found that the State had proven that Defendant had two prior felony convictions for sentence enhancement purposes. The court then sentenced Defendant to an enhanced, presumptive terms of imprisonment of 11.25 years. court has jurisdiction Defendant timely appealed. pursuant to the Arizona This Constitution, Article 6, Section 9, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1)(2003), 13-4031 and 13-4033 (2001). DISCUSSION Denial of Rule 20 Motion/Sufficiency of the Evidence ¶11 The State charged Defendant with theft of a means of transportation, alleging that Defendant controlled the victim s Honda without lawful authority while knowing or having reason to know that the property was 5 stolen. See A.R.S. § 13- 1814(A)(5) (Supp. 2009). At the close of the State s evidence, Defendant moved for a judgment of acquittal, arguing that there was no testimony regarding [defendant] knowing that the vehicle was stolen, nor was there sufficient evidence to show that he should have known. The trial court denied the motion. Although the court acknowledged that this was an unusual case, it concluded that there was enough substantial evidence to support a jury verdict. ¶12 On appeal, Defendant argues that the trial court abused its discretion when it denied his motion because the State failed to produce any evidence to show that Defendant knew or should have known the Honda was stolen. We find no abuse of discretion. ¶13 Rule 20 requires a trial court to enter a judgment of acquittal before a verdict is rendered if substantial evidence to warrant a conviction. P. 20. judgment there is no Ariz. R. Crim. We review a trial court s denial of a Rule 20 motion for of acquittal for an abuse of discretion and will reverse only if no substantial evidence supports the conviction. State v. Henry, 205 Ariz. 229, 232, ¶ 11, 68 P.3d 455, 458 (App. 2003)(citation omitted). If reasonable minds can differ on the inferences to be drawn from the evidence, a trial court must submit a case to the jury. Id. 6 ¶14 Substantial evidence may be either circumstantial or direct, and is evidence that a reasonable jury may accept as sufficient to infer guilt beyond a reasonable doubt. Id. Furthermore, it is well established that a conviction may be sustained on circumstantial evidence alone. State v. Blevins, 128 Ariz. 64, 67, 623 P.2d 853, 856 (App. 1981). ¶15 Defendant maintains that there was no evidence from which the jury could have legitimately deduced that he knew or should have known that the Honda was stolen. Defendant bases his argument on the fact that the evidence showed that the Honda was undamaged and that he had a master key, as well as the lack of any evidence that he tampered with or altered the title or other documents in the glove compartment or that he or the woman with him at the apartment complex lacked the means to purchase the vehicle. ¶16 It is true that this case is unusual, as the trial judge remarked. As defense counsel brought out at trial, it does not have any of the customary indices of illegal possession often associated steering columns with vehicle and/or theft broken cases, windows or such a as cracked Defendant in possession of Slim Jims or other devices frequently used to gain unlawful access to a vehicle. However, that does not detract from the evidence that the jury did have in this case from which, even if circumstantial, the jury could have inferred 7 beyond a reasonable doubt that Defendant knew or should have known the car was stolen. ¶17 First, we note that the State requested an instruction that [p]roof of possession of recently stolen property, unless satisfactorily explained, may give rise to an inference that the person in possession . . . was aware of a risk that it had been stolen or in some way participated in its theft. 13-2305(1) (2001). The trial court refused See A.R.S. § to give the instruction because it considered the time between the theft and Defendant s arrest to be too far away in this case. We, however, believe the State was entitled to such an instruction. ¶18 Although the precise time the car was stolen was not known, the evidence at trial established that the theft occurred after the car was placed in the carport on the night of August 12 and before the victim s husband noted its absence in the early morning of August 13. While the police only observed Defendant exercising control over the vehicle at approximately 7:00 a.m. on the morning of August 14, the evidence permitted an inference that Defendant had controlled the vehicle prior to that time, as indicated by his clothing stored in the trunk and his other personal belongings located in its interior, including the CD located inside the car radio. ¶19 Nevertheless, even if we were to calculate the timing as the court did--from the night of the 12th to the morning of 8 the 14th--that instruction. time lapse did not preclude giving the The instruction is permissive in nature and simply provides that the evidence may give rise to an inference and permits the jury to exercise its common sense. Although the court did not instruct the jury accordingly, the State, without objection, argued the inference to the jury in its closing arguments. The evidence supports the State s arguments and the jury have could properly considered this inference in its deliberations. ¶20 Furthermore, the evidence established that Defendant had access to the interior of the vehicle and that the vehicle contained legal documents in the glove compartment as well as papers and junk mail in the side door areas that would have borne the victims names and addresses. circumstantial, was sufficient evidence The evidence, while from which the jury could have inferred Defendant knew or should have known that the Honda was stolen. The trial court Blevins, 128 Ariz. at 67, 623 P.2d at 856. did not abuse its discretion in denying Defendant s Rule 20 motion. Admission of Eastside ¶21 The CD that was located inside the car s radio had the insignia of a marijuana leaf on it as well as the word Eastside written on it in black permanent marker. trial, Defendant moved to preclude 9 evidence of Prior to the word Eastside at trial, arguing that it was irrelevant to proving the charge and unduly prejudicial involvement in gang activity. because it suggested his Defendant pointed out he was stipulating to the fact that the CDs belonged to him. The State simply argued that it planned to elicit testimony about the word Eastside written on the CD, but that it did not intend to elicit testimony as to what that might mean, if anything. ¶22 The trial court precluded any evidence regarding possession of a pipe found in the car and about gang activity. The court viewed testimony regarding the word Eastside, if that s all it is, with no reference to gang, gang activity to be innocuous. It therefore ruled that the State could have its witness say just Eastside and leave it at that. informed defense counsel that she could have It also a limiting instruction if she requested one. ¶23 E.B. At trial, the State elicited testimony from Officer that the CD he found in the car radio Eastside written on it in permanent marker. had the word Over Defendant s 403 objection, the court also permitted the State to elicit the testimony that E.B. observed that insignia of E.S. on his right bicep. E.B. for the record, what are the Defendant had the When the State next asked initials of Eastside, Defendant objected; and the trial court sustained the objection, stating: I think the jury can figure it out for itself. 10 ¶24 On abused its appeal, Defendant discretion, not contends only by that the permitting trial the court State to elicit evidence about the word Eastside, but also by allowing the State to elicit testimony that his tattoo was the insignia of E.S. on his bicep. According to Defendant the sole reason for introducing this evidence was to allow the State to argue that Defendant acted in conformity with his purported gang affiliation by stealing or possessing a car he knew was stolen. ¶25 We view a trial court s rulings on the admission or exclusion of evidence for an abuse of discretion. State v. Tankersley, 191 Ariz. 359, 369, 956 P.2d 486, 496 (1998). We will not reverse a trial court s rulings concerning issues of relevance and admissibility absent a clear abuse of discretion. State v. Alatorre, 191 Ariz. 208, 211, 953 P.2d 1261, 1264 (App. 1998). ¶26 Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Ariz. R. Evid. 401. Relevant evidence, while generally admissible, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. State v. Connor, 215 Ariz. 553, 564 ¶ 39, 161 P.3d 596, 607 (App. 2007); Ariz. R. Evid. 402, 403. Evidence is unfairly prejudicial only when it has an undue tendency to 11 suggest a decision on sympathy, or horror. at 607. an improper basis such as emotion, Connor, 215 Ariz. at 553, ¶ 39, 161 P.3d A trial court is in the best position to balance the probative value of challenged evidence against its potential for unfair prejudice, and thus has broad discretion in making its decisions. ¶27 Id. We find no abuse of discretion here. Our review of the record shows that the State merely used the evidence of the word and of Defendant s tattoo to argue in its rebuttal closing that those pieces of evidence puts him to the CDs inside that car . . . [t]hat s his stuff in there . . . [h]e didn t just come across that car. The State never used the information to allege any gang affiliation or even to hint that Eastside may have been a gang and Defendant a member of it, let alone that Defendant acted in conformity with 3 gang membership to steal the vehicle. ¶28 It is true that Defendant stipulated that the CDs in the car were his and that the State could simply have used that stipulation authority. to argue that he controlled the car without However, it is also true that there was no evidence of driving in this case; Defendant was only seen removing his 3 Defendant raises his Rule 404(a) character evidence objection for the first time on appeal. In the absence of any showing of fundamental error, he has forfeited this argument on appeal by his failure to raise it below. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). For the reasons stated above, we find no error, let alone fundamental error, and need not address this further. 12 property from the car. Therefore, tying Defendant through his tattoo to the CD tended to show Defendant may have actually played the CD at some point during the use of the vehicle. This evidence countered any suggestion that Defendant might not have controlled the vehicle and/or controlled it long enough to have become aware that it was stolen. State s argument concerning It also reinforced the inferences to be drawn from possession of recently stolen property because it obviously put Defendant s morning. use The of the trial car court at some time did not abuse earlier its than that discretion in permitting the testimony in this case and no improper use of the evidence by the State. Tankersley, 191 Ariz. at 369, 956 P.2d at 496. ¶29 Defendant also argues for the first time on appeal that the trial court s statement that the jury can figure it out for itself was an improper comment on the evidence that encouraged the jury to speculate that the letters E.S. are the initials of Eastside [and that] therefore Defendant was a member of the Eastside gang. The trial court s statement only indicated to the jury that it could decide for itself whether the E.S. on Defendant s bicep correlated to Eastside written on the CD, thereby identifying it as his property. there was absolutely no evidence of any gang Because membership or affiliation or any indication in the record that any of the 13 jurors even identified Eastside as a gang, we find no merit to this argument. Comment on Defendant s Fifth Amendment Rights ¶30 Defendant argues that the State improperly commented on his constitutional rights not to testify or present evidence and thereby shifted the burden of proof to him when it argued in rebuttal closing that, [t]here is not a shred of evidence that [Defendant] did not know or have reason to know the car was stolen. Defendant acknowledges that he failed to raise this objection below. That means that, in order to prevail, he must establish that fundamental error occurred and that it caused him prejudice in his case. 115 P.3d at 607. Henderson, 210 Ariz. at 567, ¶¶ 19-20, Before we engage in fundamental analysis, we must first find that some error occurred. 568, ¶ 22, 115 P.3d at 608. error Id. at Our review reveals that no error occurred, let alone fundamental error. ¶31 The prosecutor made the statement to which Defendant objects during the following portion of his argument in rebuttal closing: There is not a shred of evidence that [Defendant] did not know or have reason to know the car was stolen. The evidence, the testimony, the testimony in itself is evidence. That s what people see. If you have surveillance, if you had audio/video recording of an incident, then maybe you get a conviction? Not even then do you get a conviction. You might need somebody to 14 actually look inside the mind of somebody to tell you what they were thinking; did they [know] something, did they intend to do something; did they mean it. Even then we don t know. You would need a mind reader to get inside to know what a person is thinking. Also in your instruction, is the intent inference [sic]. In order to prove knowingly, if you can infer a person s intent, that will also prove knowingly; and how do you get to their intent? From the surrounding circumstances; that s part of your instructions. How do you know he controlled the vehicle, knowingly controlled the vehicle? It s not just know or have reason to know that the car was stolen; it s knowingly controlled that vehicle. How did he know? You look at the surrounding circumstances. . . . Taken in commenting context, on it is Defendant s clear that failure the to prosecutor testify or was not present witnesses, nor attempting to impermissibly shift the burden of proof. Instead, the prosecutor was countering defense counsel s arguments that the State had produced no evidence that Defendant controlled the car or knew that it was stolen and her statement that the first person who approaches that vehicle is the person who gets arrested and stands before you today as the accused in this case . . . [a]nd that s all we know. By its comment, the State was clearly addressing the problems it faced with the circumstantial nature of the evidence in this case. 15 ¶32 Prosecutors arguments to a jury. are given wide latitude in presenting State v. Velazquez, 216 Ariz. 300, 311, ¶ 48, 166 P.3d 91, 102 (2007). The statement Defendant objects to on appeal was well within the ambit of argument at trial. CONCLUSION ¶33 For reasons stated above, we affirm Defendant s conviction and sentence. /S/____________________________________ SHELDON H. WEISBERG, Presiding Judge CONCURRING: _/S/__________________________________ PHILIP HALL, Judge /S/_________________________________ JOHN C. GEMMILL, Judge 16
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