STATE v. SHIVERS

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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 DIVISION ONE FILED: 07/12/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) COREY DEMAR SHIVERS, ) ) Appellant. ) ) __________________________________) 1 CA-CR 10-0975 DEPARMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-130017-001DT The Honorable Timothy J. Ryan, Judge AFFIRMED ________________________________________________________________ Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section And Jeffrey L. Sparks, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender Phoenix By Cory Engle, Deputy Public Defender Attorneys for Appellant ________________________________________________________________ O R O Z C O, Judge ¶1 Corey convictions and Demar the Shivers sentences (Defendant) imposed on one appeals count each his of threatening gang. or intimidating and assisting a criminal street Defendant argues that there was insufficient evidence to support the convictions and that the imposition of sentences constitutes improper double punishment. enhanced For reasons that follow, we affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 A grand jury indicted Defendant on two counts of threatening or intimidating to promote, further or assist in the interest of a criminal street gang and one count of assisting a criminal street gang, each a class 3 felony. The charges stemmed from threatening remarks made by Defendant after being taken into custody by the police following a traffic stop. ¶3 Prior to trial, the State alleged several aggravating and sentence enhancement circumstances, including prior felony convictions and commission of the offenses with the intent to promote, further or assist criminal conduct by a criminal street gang. entered At the close judgment of of evidence acquittal threatening or intimidating. at on trial, one of the the trial court counts of The jury convicted Defendant on the other count of threatening or intimidating and the count of assisting a criminal street gang, and found with respect to each of the convictions that Defendant had intended to promote, further or assist criminal conduct of a criminal street gang. 2 ¶4 At sentencing, the trial court found that Defendant had one prior historical felony conviction and sentenced him as a repetitive offender to concurrent, presumptive 11.5-year terms of imprisonment (A.R.S.) in section defendant to sentencing accordance 13-709.02 mandatory range. with (Supp. terms of Defendant Arizona 2011),1 Revised which confinement timely and appealed. Statutes subjects an a enhanced We have jurisdiction pursuant to A.R.S. §§ 12-120.21.A.1 (2003), 13-4031 (2010) and -4033.A.1 (2010). DISCUSSION Sufficiency of the Evidence ¶5 Defendant argues that there was insufficient evidence to support his convictions. Specifically, Defendant claims that the evidence fails to establish that (1) he was a member of a criminal street gang and (2) he knowingly acted to promote or further a criminal objective of the criminal street gang. review claims of insufficient evidence de novo. We State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993). ¶6 review In considering whether verdicts. claims substantial of insufficient evidence exists to evidence, we support the State v. Scott, 177 Ariz. 131, 138, 865 P.2d 792, 799 (1993); see also Ariz. R. Crim. P. 20(a) (stating court shall 1 We cite the current version of the applicable statute when no revisions material to this decision have since occurred. 3 enter judgment of acquittal if there is no substantial evidence to warrant a conviction ). reasonable persons could Substantial evidence is proof that accept as sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996). In reviewing claims of insufficient evidence, we construe the evidence in the light most favorable to sustaining the jury s verdicts and defendant. resolve all reasonable inferences against the State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction. State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (citation omitted). ¶7 Evidence was presented at trial that Defendant made threatening comments while yelling and cursing at the arresting police officers, including mentioning the names of Lindo Park Crips gang members and associates, telling the officers that they didn t know who [they were] dealing with, and informing them that they were not going to live very much longer. addressing cuz. the officers, Defendant repeatedly used the In term There was testimony that this term is often employed by members of the Crips to identify themselves as gang members and that the officers believed it was being used by Defendant to demonstrate his affiliation with the gang. 4 Defendant also made statements to the officers that he had a pistol and that they only have two weeks. statements led them associates would to try to The officers believe that injure or testified Defendant kill us. that or these his gang Furthermore, Defendant specifically warned the officer who was the victim on the count of threatening or intimidating for which Defendant was convicted that when he sees [the officer] on the street he will knock [the officer s] teeth out and that s how it s done on the south side. This officer testified that Defendant s reference to the south side meant: I am not only just dealing with him, I am dealing with the south side, I am dealing with his criminal street gang. ¶8 Defendant was convicted of threatening or intimidating in violation of A.R.S. § 13-1202.A.3 (2010) and assisting a criminal street gang in violation of A.R.S. § 13-2321.B (2010). A person commits the offense of threatening or intimidating in violation of § 13-1202.A.3 if the person threatens or intimidates by word or conduct . . . [t]o cause physical injury to another person . . . to promote, further or assist in the interests of . . . a criminal street gang . . . . commits assisting a criminal street gang by A person committing any felony offense, whether completed or preparatory for the benefit of, at the direction of or in association with any criminal street gang. A.R.S. § 13-2321.B. 5 A criminal street gang is defined, in pertinent part, as an association of persons in which members or associates individually or collectively engage in the commission, solicitation of attempted any felony commission, act and that facilitation has at individual who is a criminal street gang member. 105.8 (Supp. 2011). is defined as an least or one A.R.S. § 13- A criminal street gang member, in turn, individual to whom at least two of the following seven criteria indicating gang membership apply: (a) self proclamation, (b) witness testimony or official statement, (c) written or electronic correspondence, (d) paraphernalia or photographs, (e) tattoos, (f) clothing or colors, and (g) any other indicia of gang membership. ¶9 A.R.S. § 13-105.9. Defendant does not dispute that the Lindo Park Crips gang is a criminal street gang with multiple criminal street gang members. His challenge to the sufficiency of the evidence regarding gang membership is limited simply to claiming that the State failed to prove that he is a criminal street gang member as defined in A.R.S. § 13-105.9. argument is that neither of the The problem with Defendant s offenses for which he was convicted requires proof that he be a criminal street gang member. A person can promote, further or assist in the interests of a criminal street gang or commit a felony for the benefit of a criminal street gang without being a member of the criminal street gang. The State 6 did present evidence that Defendant was a member or associate of the Lindo Park Crips, but this was not done to prove his membership as an essential element of the offenses, but rather to establish his motive and intent in threatening the officers, i.e., that the purpose of his conduct was to promote, further or assist in the interests of or was performed for the benefit of the Lindo Park Crips criminal street gang. A.R.S. §§ 13-1202.A.3, -2321.B. Hence, this challenge by Defendant to the sufficiency of the evidence is without merit. ¶10 As part of his first claim of insufficient evidence, Defendant seeks to raise issues regarding the constitutionality of the statutory definition of a criminal street gang member, A.R.S. § 13-105.9. Given that his sufficiency of evidence claim is directed solely at the adequacy of proof of whether he is a criminal street gang member, which the State was not required to establish to convict him of either offense, we need not address his constitutional challenges. We note, however, that in State v. Ochoa, 189 Ariz. 454, 461, 943 P.2d 814, 821 (App. 1997), this court overbreadth considered and instant appeal. authorities to and vagueness rejected claims the raised same by First Amendment Defendant in the Defendant fails to present any arguments or cause this court reconsidered. 7 to believe Ochoa should be ¶11 We further find no merit to Defendant s claim that there was insufficient evidence to establish that his threats were intended to further the interests of the Lindo Park Crips. The State introduced expert testimony regarding the nature of criminal street gangs in general and the Lindo Park Crips in particular. A gang enforcement unit detective testified that the number one rival to any criminal street gang was the police and the first goal of a criminal street gang is to instill fear within the community. The detective explained how Defendant s references to the Lindo Park Crips bolstered his threats and how the context of the threats furthered the interests of the gang by instilling fear. ¶12 jail Moreover, some of Defendant s threats were made at the in front of another known gang member. Testimony was presented that by Defendant doing so, He s advertising the gang and he s further promoting this other gang member. He s inciting him to do other things as well by the mere presence of him being deviant to police while using the terms cuz and south side. He s doing this all to gain more respect and to try and instill fear into the officers. ¶13 Although Defendant never explicitly uttered the words Lindo or Crips in threatening the officers, his reference to known Lindo Park Crips gang members and use of the terms cuz and south side in connection 8 with the threats, which the officers understood to be references to this gang, would permit a reasonable person to conclude that the threats were made to promote, further or assist in the interests of or for the benefit of the Lindo Park Crips. On this record, it cannot be said that there was a complete absence of probative facts to support the jury s finding that Defendant s threats were intended to further the interests of a criminal street gang. See Soto-Fong, 187 Ariz. at 200, 928 P.2d at 624. Sentence Enhancement ¶14 the Based on the jury s finding that Defendant committed offenses with the intent to promote, further or assist criminal conduct by a criminal street gang, the trial court imposed enhanced sentences pursuant to A.R.S. § 13-709.02, which provides: A person who is convicted of committing any felony offense with the intent to promote, further or assist any criminal conduct by a criminal street gang shall not be eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as authorized by § 31-233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to § 411604.07 or the sentence is commuted. The presumptive, minimum and maximum sentence for the offense shall be increased by three years if the offense is a class 4, 5 or 6 felony or shall be increased by five years if the offense is a class 2 or 3 felony. The additional sentence imposed pursuant to this section is in addition to any enhanced 9 sentence that may be applicable. added.) ¶15 (Emphasis Defendant contends the enhanced sentences imposed by the trial court pursuant to this provision violates A.R.S. § 13 116 (2010), Arizona s double punishment statute. states: An act or omission which is made This statute punishable in different ways by different sections of the laws may be punished under both, concurrent. but in no event A.R.S. § 13 116. may sentences be other than According to Defendant, because intent to assist a criminal street gang is an essential element of both of his offenses, our statutory bar against double punishment for the same act prohibits use of this same element to enhance his sentences under § 13 709.02. Defendant failed to raise this issue in the trial court, and therefore our review of this claim is limited to fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). ¶16 Contrary to Defendant s contention, § 13-116 has no application to sentencing enhancements. Ariz. 576, 580, 898 P.2d 954, 958 State v. Greene, 182 (1995). In Greene, our supreme court rejected a challenge to use of a dangerousness finding that was a necessary element of an offense to enhance multiple offenses, reasoning in part that [t]he prohibition against double punishment in § 13 116 was not designed to cover sentence enhancement. Id.; see also State v. Lee, 189 Ariz. 10 608, 620, 944 P.2d 1222, 1234 (1997) ( The legislature may establish a sentencing scheme in which an element of a crime could also be used for enhancement and aggravation purposes. ); State v. Garcia, 176 Ariz. 231, 234, 860 P.2d 498, 501 (App. 1993) (rejecting claim that use of element of underlying offense to enhance punishment violates § 13 116 and guarantees against double jeopardy). ¶17 Greene relied on State v. Rodriguez, 126 Ariz. 104, 612 P.2d 1067 (App. 1980), for the proposition that § 13-116 does not apply to sentence enhancements. 580, 898 P.2d at 958. punishment statute Greene, 182 Ariz. at In Rodriguez, we reasoned that the double did not apply to sentencing enhancements increasing the punishment for aggravated assault when a gun was used because aggravated assault could be committed without use of a gun. 126 Ariz. at 107, 612 P.2d at 1070. Although Rodriguez could be read as limiting non-applicability of the double punishment statute only to sentencing enhancements that contain additional elements to the foundational crime, the later language from our supreme court in Greene is not limited in this fashion. See Greene, 182 Ariz. at 580, 898 P.2d at 958. ¶18 Even if our double punishment statute did generally apply to sentence enhancements, § 13 709.02 evinces the legislature's intent that the special sentencing enhancements provided by this statute be cumulative. 11 [W]here a special statute deals with the same subject as a general statute, the special statute will control. 456, 616 P.2d enhancement additional addition 914, 916 provision sentence to any (App. at 1980). issue imposed enhanced State v. Weiner, 126 Ariz. 454, Here, the specifically pursuant sentence A.R.S. § 13 709.02 (emphasis added). to that states: this may sentence section be The is in applicable. This language makes plain that the legislature was aware that an enhanced sentence would be applicable when a defendant was assisting a criminal street gang and chose to enhance those sentences further by imposing punishment in addition to any enhanced sentence that may be applicable. Id. Given its specific nature, this enhancement provision overrides the more general double-punishment statute. See Weiner, 126 Ariz. at 456, 616 P.2d at 916. There was no error, fundamental or otherwise, in the imposition of enhanced sentences pursuant to A.R.S. § 13 709.02. CONCLUSION ¶19 For the above reasons, we affirm the convictions and resulting sentences. /S/ ___________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: /S/ ___________________________ PHILIP HALL, Judge /S/ ______________________________ JOHN C. GEMMILL, Judge 12

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