STATE v. GUZMAN

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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. LILIANA GOMEZ GUZMAN, Appellant. 1 CA-CR 11-0358 DIVISION ONE FILED: 10/04/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-122810-001DT The Honorable Julie P. Newell, Commissioner AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Matthew H. Binford, Assistant Attorney General Attorneys for Appellee Theresa M. Armendarez, P.L.C. By Theresa M. Armendarez Attorney for Appellant Phoenix Manteo, NC N O R R I S, Judge ¶1 Liliana Gomez Guzman ( Guzman ) timely appeals her convictions and sentences for theft and false reporting to law enforcement. She argues, first, insufficient evidence supports her convictions; second, the superior court improperly precluded relevant evidence; and third, the superior court should have instructed the Revised jury Statutes transportation. with on each the definition ( A.R.S. ), of title owner 28, in Arizona regulating For the reasons discussed below, we disagree argument and affirm Guzman s convictions and sentences. FACTS AND PROCEDURAL BACKGROUND ¶2 On May 21, 2009, S. bought a Honda from Guzman for $2,600 in cash. Guzman gave S. a certificate of title, which bore Guzman s name and notarized signature as the seller. S. did not fill in his name or sign the title as the buyer, and he did not register the Honda with the Arizona Motor Vehicles Division ( MVD ). Honda. On July 19, 2009, Guzman called S. about the According to Guzman, she asked S. if he was interested in purchasing the Honda; according to S., she called to ask whether he had registered the Honda. ¶3 In early October 2009, Guzman received a photo radar ticket showing the Honda had been involved in a September 23, 2009 traffic violation. On October 6, 2009, Guzman reported to police the Honda had been stolen. ¶4 On November 4, 2009, after determining the Honda had been reported stolen, police stopped S. while he was driving. Police arrested S. and impounded the Honda. 2 S. told police Guzman had sold him the Honda in May and gave them the original certificate of title. Meanwhile, Guzman -- using a duplicate certificate of title she had obtained from the MVD on July 23, 2009 -- retrieved the Honda from police impound and resold it for $1,000. DISCUSSION I. Sufficiency of Evidence ¶5 Guzman first argues insufficient evidence supports the jury verdicts. ¶6 We disagree. Our review is limited to whether substantial evidence supports the verdicts. P.2d 792, 799 (1993). State v. Scott, 177 Ariz. 131, 138, 865 Substantial evidence is proof reasonable 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)). We view the evidence in the light most favorable to sustaining the jury verdict inferences against Guzman. and resolve all reasonable State v. Greene, 192 Ariz. 431, 436- 37, ¶ 12, 967 P.2d 106, 111-12 (1998). ¶7 prove To convict Guzman of theft, the State was required to that without lawful authority, Guzman knowingly [o]btain[ed] . . . property of another by . . . any material misrepresentation with intent to deprive the other person of 3 such property. Guzman of false A.R.S. § 13-1802(A)(3) reporting, the State (2009). was To required convict to prove Guzman knowingly ma[d]e to a law enforcement agency . . . a false, fraudulent or unfounded report or statement or . . . knowingly misrepresent[ed] a fact for the purpose of interfering with the orderly operation misleading a peace officer. ¶8 of a law enforcement agency or A.R.S. § 13-2907.01(A) (2009). Here, the evidence substantially supported a finding Guzman intended to deprive S. of the Honda by knowingly misrepresenting to police the Honda had been stolen and she was the owner. The State presented substantial evidence Guzman had sold the Honda to S. by giving him the signed and notarized certificate of title. By falsely reporting the Honda stolen, misrepresenting she was the owner to obtain a duplicate title, retrieving it from impound, and reselling it, Guzman exhibited the requisite intent to deprive S. of his property. ¶9 The State also presented substantial evidence showing Guzman knowingly misrepresented to police the Honda was stolen to mislead them into retrieving it so she could resell it. Although Guzman testified she did not sell the Honda to S. and argued S. unlawfully possessed the Honda when police stopped him, the jury was free to discount her testimony. See State v. Hernandez, 191 Ariz. 553, 557, ¶ 11, 959 P.2d 810, 814 (1998) (jury determines credibility of testimony). 4 II. Preclusion of Evidence ¶10 Guzman also argues the superior court improperly precluded relevant testimonial evidence that would have shown she went to the MVD on July 23, 2009 to file a Deed Insurance Certificate, which would have certified she was still the owner of the Honda. Thus, first, Guzman argues the superior court should have allowed her to cross-examine a police officer about the certificate, and second, the court Guzman to testify on redirect about it. should have allowed We recognize, as Guzman argues, this testimony would have disputed S. s testimony and substantiated her testimony that she still owned the Honda and had not sold it to S. Nevertheless, the court did not abuse its discretion in refusing to admit this evidence. ¶11 to First, the record reflects Guzman withdrew her request cross-examine the police officer about the certificate. Thus, she has waived this argument on appeal, absent fundamental error, which she has not argued. See State v. Shlionsky, 184 Ariz. 631, 632-33, 911 P.2d 637, 638-39 (App. 1996) (withdrawal of request to present evidence is waiver); State v. Castro, 163 Ariz. 465, 475, 788 P.2d 1216, 1226 (App. 1989) (party waives issue by renouncing Ariz. 349, 354, ¶¶ objection); 16-17, 185 State P.3d v. Moreno-Medrano, 135, 140 (App. 218 2008) (declining review for fundamental error when appellant failed to raise that argument). 5 ¶12 Second, contrary to Guzman s argument on appeal -- that the superior court barred her testimony on the certificate on relevance grounds -- the record reflects the court barred her testimony because it would have been outside the scope of her testimony on cross-examination. Because Guzman has not addressed the actual basis for the superior court s ruling and also has not argued the court committed fundamental error by precluding her testimony, she has also waived this argument on appeal. See supra ¶ 11. III. Jury Instruction ¶13 Finally, Guzman argues the superior court should have instructed the jury on the definition of owner in A.R.S. § 28101(40) (2012). This statute defines owner as [a] person who holds the legal title of a vehicle. The superior court did not, in however, abuse requested instruction. its discretion refusing Guzman s State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995) (decision to refuse jury instruction is within superior court s discretion and will not be reversed absent a clear abuse of discretion). ¶14 The crime of theft refers to property of another, which the court properly defined for the jury. an element of theft. Further, we agree with Owner is not the superior court s observation that providing the jury with the definition of owner as set forth in A.R.S. 6 § 28-101(40) could have confused it. Thus, for these reasons the court properly refused Guzman s requested instruction. CONCLUSION ¶15 For the reasons discussed above, we affirm Guzman s convictions and sentences. /s/ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ DIANE M. JOHNSEN, Judge /s/ JON W. THOMPSON, Judge 7

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