State v. Vega-Orduno

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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. JOSE HUMBERTO VEGA-ORDUNO, Appellant. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 04/12/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 10-0817 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2010-109079-001 SE The Honorable Cari A. Harrison, Judge AFFIRMED Thomas C. Horne, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals Section/Capital Litigation Section Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Karen M. Noble, Deputy Public Defender Attorneys for Appellant J O H N S E N, Judge Phoenix ¶1 Jose aggravated Humberto assault, resulting sentence. a Vega-Orduno Class 3 appeals his dangerous conviction felony, and of the For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 M.A. was driving another woman home at about 4 a.m. one morning. 1 They saw a group of men and pulled over because one of them recognized Vega-Orduno and his brother. gave the men a ride to a second location. The women Vega-Orduno was standing beside the car as they were preparing to leave the second location, and told M.A. to watch out to avoid rolling the car over his foot. With Vega-Orduno back in the car, M.A. drove the group to another location, where the men again exited the car. ¶3 Later, as Vega-Orduno was climbing back into the car, M.A. almost ran over Vega-Orduno s foot. Vega-Orduno became extremely upset and, while seated in the back seat, pulled out a handgun. He pointed the gun at M.A. s head, cocked the gun and told he her was going to kill her. M.A. friend s house, where the men exited the car. then drove to a The women then heard four or five gunshots fired into the back of the car. M.A. testified that although she did not see Vega-Orduno shoot 1 Upon review, we view the facts in the light most favorable to sustaining the jury s verdicts and resolve all inferences against Vega-Orduno. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 at her car, she knew he did because he was the only one with a gun, and she heard Vega-Orduno s brother telling him to stop shooting. ¶4 Vega-Orduno was convicted of three counts of aggravated assault and one count of discharging a firearm at a structure. He timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1), 13-4031 and -4033 (West 2012). 2 DISCUSSION ¶5 to The indictment charged Vega-Orduno with using a gun intentionally imminent physical (West 2012). of his place [M.A.] injury. in See reasonable A.R.S. §§ apprehension 13-1203 and of -1204 Vega-Orduno challenges the superior court s denial motion for judgment of acquittal on the charge of aggravated assault for pointing a gun at M.A. 3 ¶6 Under defendant verdict may if conviction. Arizona move there is for Rule no a of Criminal judgment of substantial Ariz. R. Crim. P. 20(a). Procedure acquittal evidence to 20, before a the warrant a We review the superior court s denial of a Rule 20 motion for abuse of discretion and 2 Absent material revisions after the date offense, we cite a statute s current version. 3 of an alleged Vega-Orduno does not argue for the reversal of his other convictions. 3 will reverse only when there is a complete substantial evidence to support the charges. 199 Ariz. 273, 276, ¶ 7, 17 P.3d 118, absence of State v. Carlos, 121 (App. 2001). Substantial evidence is more than a mere scintilla and is such proof that 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)). Both direct and circumstantial evidence may support a conviction, and [a] conviction may be sustained on circumstantial evidence alone. State v. Blevins, 128 Ariz. 64, 67, 623 P.2d 853, 856 (App. 1981). ¶7 not Vega-Orduno argues that because M.A. testified she was scared reasonable when he pointed apprehension of the gun at imminent required by A.R.S. § 13-1203(A)(2). her, she physical was not injury, in as In support, Vega-Orduno relies on State v. Baldenegro, 188 Ariz. 10, 932 P.2d 275 (App. 1996), for the proposition that the victim s mere presence in a car at which someone fired shots is insufficient by itself to support the conclusion that the victim reasonably apprehended imminent physical injury. ¶8 In Baldenegro, the victim did not testify at trial, and there was no evidence the victim saw the gun before the shooting or reacted in a way that demonstrated she apprehended 4 imminent harm. Id. at 13, 932 P.2d at 278. M.A., by contrast, saw a gun was pointed at her head from the back seat of the car and heard Vega-Orduno threaten her. After she saw the gun, she told Vega-Orduno, If you re going to shoot me, shoot me. day I m going to be dead. Some M.A. also testified that she was not afraid and that she did not think Vega-Orduno was going to shoot her. Asked if she feared for her safety, she said, At the same time yes. At the same time not. . . . going to die. If I m going to die, I m But M.A. also testified that when the gun was pointed at her head, she worried what would happen to her baby if she was killed. And the officer who interviewed M.A. after the shooting testified she told him she was fearful for her safety. Moreover, despite M.A. s bold words in the car, a little while after the shooting occurred she broke down crying and had a hard time speaking. And she testified that when Vega- Orduno to telephoned her later ask her not incident, she thought, [W]hat if you kill me? to report the My baby, where he s going to go? ¶9 To the extent there was contradictory evidence about whether M.A. reasonably apprehended imminent harm as she sat in the front seat of the car while Vega-Orduno pointed his handgun at her from the back seat, we resolve the conflict against VegaOrduno. See State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983). If reasonable minds could differ on the 5 inferences to be drawn from the evidence, judgment of acquittal must be denied. the motion for State v. Sullivan, 205 Ariz. 285, 287, ¶ 6, 69 P.3d 1006, 1008 (App. 2003). ¶10 Moreover, the jury could find M.A. reasonably apprehended imminent injury based on evidence other than her own words. In State v. Garza, 196 Ariz. 210, 211, ¶ 4, 994 P.2d 1025, 1026 (App. 1999), we held that because the trier of fact was able to observe the victim s demeanor as she testified that the defendant because she pointed testified a gun she at was her and concerned threatened for the her, and safety of children playing nearby, the jury had sufficient evidence to infer that she physical injury. was in reasonable apprehension of imminent Here, the jury was able to evaluate M.A. s demeanor as she testified that Vega-Orduno pointed the gun at her head and threatened her. Though M.A. did not unequivocally testify she was fearful while the gun was pointed at her, she testified that she worried about what would happen to her baby if Vega-Orduno killed her, and she later told an officer that she feared for her safety. This was sufficient evidence for the jury to find M.A. was in reasonable apprehension of imminent physical injury when Vega-Orduno pointed the gun at her head. 6 CONCLUSION ¶11 For the foregoing reasons, we affirm Vega-Orduno s convictions and resulting sentences. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ LAWRENCE F. WINTHROP, Chief Judge /s/ PETER B. SWANN, Judge 7

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