STATE v. MOLINA

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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. CHRISTIAN JESUS MOLINA, Appellant. ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 9/19/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0339 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-006257-001 The Honorable Michael D. Jones, Judge AFFIRMED Thomas C. Horne, Attorney General by Joseph T. Maziarz, Section Chief Counsel, Criminal Appeals Section and Myles A. Braccio, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Joel M. Glynn, Deputy Public Defender Attorneys for Appellant Phoenix T H U M M A, Judge ¶1 Christian Jesus Molina appeals from a restitution order arising out of his assault conviction. Finding no error on the limited record provided, the restitution order is affirmed. FACTS AND PROCEDURAL HISTORY ¶2 Molina Following and his the beating and were co-defendants resulting charged death with of G.G., aggravated assault (causing serious physical injury ), a Class 3 dangerous felony. 1 The jury was instructed on aggravated assault, the lesser included offense of assault (causing physical injury ) and accomplice liability. The jury did not find Molina guilty of aggravated assault as a principal or an accomplice, but found him guilty of the lesser included offense of assault, a class 2 misdemeanor. Molina was placed on probation for one year and does not appeal from his conviction or probation grant. ¶3 At testified a about restitution expenses hearing, totaling G.G. s surviving $43,227.95 that the sister family incurred as a result of G.G. s injuries and death. According to Molina s coming brief, to and that request from court represented appearances; expenses incurred attending [G.G. s] funeral; automobile tune-ups and tires; restaurant expenses; and 1 Initials are used to protect the victim s privacy. State v. Maldonado, 206 Ariz. 339, 341 n.1, 78 P.3d 1060, 1062 n.1 (App. 2003). One co-defendant also was charged with first degree murder of G.G. and aggravated assault of J.C. arising out of the same incident. 2 lost wages for family members attending Although ledgers documenting these received at restitution hearing, the court expenses no hearings. apparently such were exhibits were argument, the provided on appeal. ¶4 After receiving evidence and hearing superior court ordered Molina to pay $41,921.51 in restitution, jointly and severally with his co-defendants. The court found that amount was necessary and reasonable and must be ordered by the court pursuant to A.R.S. § 13-603(C). The court stated medical evidence at trial (which was not provided on appeal) established that G.G. suffered severe, life-threatening injuries . . . [that] were contributing factors to his death, and that these injuries were due to the concerted actions of Molina and his co-defendants during the assault. ¶5 Molina timely appeals from the order of restitution; this court has 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(A)(2013). 2 DISCUSSION ¶6 This court reviews a restitution award for an abuse of discretion, viewing all facts and reasonable inferences in the light most favorable to sustaining the award. State v. Slover, 2 Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated. 3 220 Ariz. 239, 242, ¶ 4, 204 P.3d 1088, 1091 (App. 2009); State v. Lewis, 222 Ariz. 321, 323, ¶ 2, 214 P.3d 409, 411 (App. 2009). Where, as here, the appellate record is incomplete, missing portions of the record will be presumed to support the action of the trial court. State v. Zuck, 134 Ariz. 509, 513, 658 P.2d 162, 166 (1982). ¶7 determined In he finding Molina physically guilty injured of G.G. assault, Based on the the jury evidence received, the superior court found Molina acted in concert with his co-defendants in assaulting G.G., and that while one of the co-defendants later shot G.G., the assault in which Molina participated inflicted severe, life-threatening injuries . . . [that] were contributing factors to [G.G. s] death. ¶8 The fact that Molina was not convicted of aggravated assault does not preclude a restitution award resulting from the victim s injuries suffered during or as a result of the assault. [R]estitution is not an element of the offense nor punishment exacted by the state. It . . . does not require proof beyond a reasonable doubt. The determination of the amount of restitution is part of the sentencing function of the court and is bound by different rules than the adjudication of guilt. State v. Fancher, 169 Ariz. 266, 268, 818 P.2d 251, 253 (App. 1991) (citation omitted). 4 ¶9 the Molina failed to provide transcripts or exhibits from trial or restitution hearing that he argues refute the superior court s findings. Although claiming the court ordered him to pay restitution for funeral expenses, these gaps in the record preclude any real analysis of that claim. Therefore, the court s findings are presumed to be supported by the record. See Zuck, 134 Ariz. at 513, 658 P.2d at 166. Moreover, in holding Molina responsible considered both for Molina s restitution, individual the criminal court conduct properly and his criminal conduct undertaken in concert with others. Lewis, 222 Ariz. at 327, ¶ 18, 214 P.3d at 415. On this record, Molina has shown no abuse of discretion. CONCLUSION ¶10 The superior court s restitution order is affirmed. /S/_______________________________ SAMUEL A. THUMMA, Presiding Judge CONCURRING: /S/_____________________________ JON W. THOMPSON, Judge /S/_____________________________ KENT E. CATTANI, Judge 5

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