State v. Soto
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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. FRANCISCO JAVIER SOTO, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 03/25/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 08-1007 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court of Maricopa County Cause No. CR2006-162380-001 SE The Honorable Pamela D. Svoboda, Judge Pro Tem AFFIRMED IN PART; REMANDED IN PART Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals Section and Michael T. O'Toole, Assistant Attorney General Attorneys for Appellee Phoenix Chad Pajerski And Neal W. Bassett Attorneys for Appellant Phoenix Phoenix T H O M P S O N, Judge ¶1 Francisco Javier Soto (defendant) appeals his convictions and sentences for two counts of aggravated driving under the influence and one count of forgery. For the following reasons, we affirm in part and remand in part. ¶2 A jury found defendant guilty of two counts of aggravated driving under the influence and one count of forgery. The trial court found that defendant had two prior felony convictions and sentenced defendant to the presumptive sentence of ten years' imprisonment on each count. The sentences were to run concurrently, and defendant received credit for sixty-nine days of presentence incarceration. reimbursement of $100. ¶3 erred On by "exhibit" asserts evidence not appeal, that Defendant appealed. defendant allowing during the defendant's defendant without The trial court also ordered asserts jury view closing could proper to that not the his trial father argument. introduce foundation, the court as The an state demonstrative trial court has discretion in how it conducts a trial, and the jury had the opportunity to view defendant's father during closing argument because he was seated in the courtroom. Defendant's defense was that it was his father, and not defendant, who was driving the vehicle when defendant was arrested. Defendant's father testified at trial that it was he, and not defendant, who drove the vehicle and was arrested on the date in question. ¶4 According to defendant, the state can point out relevant aspects of a defendant's appearance or voice to the 2 jury. In addition, defendant argues that a person's appearance is non-testimonial, so the state can point out the defendant to the jury even if the defendant does not testify. Defendant further asserts that, during the presentation of evidence, a party can point out a witness's appearance. According to defendant, a party should also be able to do so during closing argument. Although defendant cites Schmerber v. California, 384 U.S. 757, 763-64 (1966), and Washington v. United States, 881 A.2d 575, 580-83 (App. D.C. 2005), for the proposition that having a non-testifying defendant appear before the jury is nontestimonial and does not constitute "new evidence," these cases are distinguishable because they dealt with pointing out a defendant's appearance to the jury, not that of a testifying witness. ¶5 During his testimony, defendant's brother was shown a picture of his father and described his physical characteristics to the jury. therefore had similarities Moreover, Defendant's the opportunity between the father trial defendant court and allowed also to his testified. discern The any father at defendant's physical that father present in the courtroom during closing argument. jury time. to be The trial court told defense counsel that he could remind the jury of what defendant's father looked like. The trial court, however, sustained the state's objection to defense counsel pointing at 3 defendant's father during closing argument or having defendant's father stand in front of the jury while going over the testimony presented. Nothing, however, prevented defense counsel from describing defendant's father's physical attributes to the jury. The trial court did not err in not allowing defendant to present his father to the jury during closing argument. ¶6 Defendant improperly imposed further an argues "unidentified" that the trial $100 reimbursement court fee. The presentence report recommended such a fee, which the trial court imposed on influence counts. fee. one of the aggravated driving under the Defendant admittedly did not object to the We remand to the trial court so that it can clarify the nature of the $100 reimbursement fee imposed. ¶7 For the foregoing reasons, we affirm defendant's convictions and sentences but remand for the trial court to clarify the nature of the $100 reimbursement fee. __/s/_________________ JON W. THOMPSON, Judge CONCURRING: __/s/______________________________ PATRICIA A. OROZCO, Presiding Judge __/s/______________________________ DIANE M. JOHNSEN, Judge 4
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