State v. Ramirez

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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. ) ) ANASTACIO JAMES RAMIREZ, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 10-19-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH No. 1 CA-CR 09-0147 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2007-134181-001 DT The Honorable Robert L. Gottsfield, Judge AFFIRMED Terry Goddard, Arizona Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals & Capital Litigation Section And Michael J. Mitchell, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Edith M. Lucero, Deputy Public Defender Attorneys for Appellant Phoenix B R O W N, Judge ¶1 Anastacio James Ramirez ( Ramirez ) appeals from his conviction and sentence for misconduct involving weapons. He challenges the trial court s decision admitting a pen pack in evidence and the court s decision to sua sponte instruct the jury on the inoperable. circumstances in which a weapon is permanently For the following reasons, we affirm. BACKGROUND ¶2 In May 2007, traffic violations. police officers stopped Ramirez for The officers asked him and his passengers to exit the vehicle and Ramirez consented to a search of the car. As one of the officers leaned inside the car to begin the search, he saw a silver handgun tucked in between the two front seats. ¶3 weapon Ramirez was charged with knowingly possessing a deadly as a prohibited possessor conviction from January 12, 2005. and was tried in absentia. based on a prior felony He failed to appear at trial The jury found Ramirez guilty and the trial court issued a bench warrant for his arrest. The court later sentenced Ramirez to ten years imprisonment to be served concurrently with sentences in two other cases. Ramirez filed a timely notice of appeal. 2 DISCUSSION I. Admission of Pen Pack 1 ¶4 Ramirez argues that the trial court erred in allowing a pen pack into evidence because it was unduly prejudicial. review evidentiary rulings for abuse of discretion. We State v. Davolt, 207 Ariz. 191, 208, ¶ 60, 84 P.3d 456, 473 (2004). An abuse of discretion occurs when the reasons given by the court for its action are clearly untenable, amount to a denial of justice. legally incorrect, or State v. Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18 (1983). ¶5 To convict Ramirez of misconduct involving weapons, the State was required to prove he knowingly possessed a deadly weapon as a prohibited possessor in violation of Arizona Revised Statutes ( A.R.S. ) section 13-3102(A)(4) (2010). A prohibited possessor is any person who has been convicted of a felony and whose civil right to possess or carry a gun or firearm has not been restored. A.R.S. § 13-3101(A)(7)(b) (2010). Evidence is relevant if it has the tendency to make a material fact more or less probable. Ariz. R. Evid. 401. 1 Even relevant evidence may Pen pack refers to certain prison records kept in compliance with state law. A.R.S. § 31-221(A) (2010) ( The state department of corrections shall maintain a master record file on each person who is committed to the department[.] ); see State v. Thompson, 166 Ariz. 526, 527, 803 P.2d 937, 938 (App. 1990) (describing some of the contents of the automated summary report pen pack ). 3 be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. ¶6 Prior to jury Ariz. R. Evid. 403. selection, counsel and the court discussed Ramirez s motion in limine to preclude the State from introducing Ramirez s Arizona Department of Corrections ( ADOC ) pen pack. The State argued that admitting the pen pack was necessary to identify Ramirez and to prove he had a prior felony conviction because the sentencing order itself did not contain a legible fingerprint. Defense counsel objected, indicating his concern about the potential prejudice of the ADOC heading at the top of the first page of the pen pack. The State countered that the heading was necessary to prove the pen pack was a document kept in the ordinary course of business and was certified. The State agreed, however, to redact some of the information from the pen pack, including the unrelated prior felony convictions, the nature of the conviction establishing that Ramirez was a prohibited possessor, the amount of time he served in prison, and his parole status. ¶7 pen The court then discussed its inclination to allow the pack, unless the defense is Ramirez was a prohibited possessor. going to stipulate that Defense counsel responded that he could not stipulate to anything without the defendant. A short time later, in support of his contention that trial should not proceed in absentia, 4 defense counsel stated his belief that if Ramirez were present, he would probably stipulate to his prior felony conviction, but without a stipulation, the pen pack has to come in, with all the inherent prejudice of the jury knowing that he went to prison. 2 The court later determined that the pen pack, with redactions as suggested by the State, would be admitted. ¶8 We conclude that the trial court did not err allowing the State to introduce the pen pack in evidence. in As we have previously recognized, State v. Rangel, 12 Ariz. App. 172, 175, 468 P.2d 623, 626 (App. 1970), the State may properly rely on prison records to meet its burden of proving a prior conviction: The prison record admitted here has the secretary s certification and contains nothing which the secretary is not required to keep. It includes a photo of the defendant, his fingerprints, and a history of his distinguishing marks, all of which go to accurately describing him. The prison record also includes copies of . . . judgment and commitment records as well as . . . prior convictions. We therefore conclude proof of [a] defendant s prior convictions can be based on a prison secretary s certification . . . of those convictions. 2 Ramirez did not attend the trial and therefore he could not stipulate to his status as a prohibited possessor. The State argues, however, that Appellant s counsel could have stipulated on his behalf, citing State v. Allen, 223 Ariz. 125, 126, ¶ 9, 220 P.3d 245, 246 (2009). We disagree that Allen would permit such a stipulation by counsel without informed consent, as a defendant s admission of a prior conviction must be knowing and voluntary. See id. at 129, ¶ 18, 220 P.3d at 249. 5 Id. (citation omitted); accord State v. Robles, 213 Ariz. 268, 273, ¶ 17, 141 P.3d 748, 753 (App. 2006) (ADOC records showing prior convictions accompanied by testimony that linked the records to the defendant constituted sufficient proof); State v. Black, 16 Ariz. App. 587, 588, 494 P.2d 1332, 1333-34 (1972) (certified copy of fingerprint card in state prison records sufficient to show prior convictions). ¶9 As in Rangel, admission of the pen pack here was for identification purposes and to prove an element of the crime. The State was required to prove that Ramirez was the person who was driving the car in which the weapon was located and that he was a prohibited possessor. As such, the trial court could not preclude the jury from hearing evidence that identified Ramirez and established Geschwind, 136 his prior Ariz. 360, felony 363, conviction. 666 P.2d See 460, State 463 v. (1983) (concluding that when a prior conviction is an element of the crime charged, it must be proven by the prosecution and the evidence related thereto cannot be precluded as irrelevant or unfairly prejudicial ). The ADOC heading on the first page of the pen pack was part of an official record required to be maintained by that agency. The trial court properly redacted unnecessary details from the document, but allowed the heading to remain as a source identifier. 6 Ramirez would have had the option of seeking a stipulation to prevent the need for providing the pen pack to the jury; however, he failed to appear for trial and thus he has no legitimate complaint that he was prejudiced by introducing the the pen State s efforts pack. to Therefore, prove we its find case by no abuse of discretion. II. Jury Instructions ¶10 Proving that a firearm is permanently inoperable is a statutory and possession. firearm in affirmative defense to a charge of prohibited A.R.S. § 13-3101(A)(4) ( Firearm does not include a permanently inoperable condition. ); State v. Berryman, 178 Ariz. 617, 621, 875 P.2d 850, 854 (App. 1994) (permanent inoperability is an affirmative defense). raised the defense and elicited testimony Ramirez concerning the inoperability of the weapon. ¶11 At the close of evidence, the trial court sua sponte proposed two jury instructions relating to whether a weapon is permanently inoperable. After discussion court gave Instruction 19-B as follows: with counsel, the [A] [d]isassembled or broken weapon is not permanently inoperable if it can be made operable readily with reasonable replaceable effective repair. parts preparation, or including accomplishment of addition a of quickly The court also gave Instruction 19-C, which 7 stated that [a] weapon with a missing but replaceable firing pin is only temporarily, not permanently inoperable. ¶12 Ramirez argues that the trial court erred in giving 19-B and 19-C because they impermissibly restricted the meaning of permanently inoperable and therefore invaded the province of the jury. We review de novo whether instructions to the jury properly state the law. State v. Johnson, 212 Ariz. 425, 431, ¶ 15, 133 P.3d 735, 741 (2006). We generally review the court s decision to give a particular jury instruction for an abuse of discretion. 343, 347 State v. Johnson, 205 Ariz. 413, 417, ¶ 10, 72 P.3d (App. 2003). We review the adequacy of jury instructions in their entirety to determine if they accurately reflect the law. State v. Hoskins, 199 Ariz. 127, 145, ¶ 75, 14 P.3d 997, 1015 (2000). ¶13 B, Because Ramirez did not object to jury instruction 19we review error only. the giving that instruction for fundamental See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). establishing of that the Ramirez therefore bears the burden of trial court erred, that the error fundamental, and that the error caused him prejudice. was Id. at 568, ¶ 22, 115 P.3d at 608. ¶14 The language of 19-B is quoted almost verbatim from State v. Young, 192 Ariz. 303, 306-07, ¶ 11, 965 P.2d 37, 40-41 (App. 1998). The definition of permanently inoperable, however, 8 was not an issue we considered in Young. Instead, we addressed whether the evidence presented at trial was sufficient to uphold the jury s determination that the weapon was not permanently inoperable. Id. at 307, ¶ 14, 965 P.2d at 41. need not decide here whether 19-B In any event, we accurately defined permanently inoperable, because Ramirez has not shown he was prejudiced by the trial court s decision to give that instruction. ¶15 The only evidence presented concerning operability came from defense expert John Knell, a forensic scientist with the Phoenix examined the Police Department. handgun in Knell question and testified that it that was he had obviously missing the safety lever, firing pin, firing spring, and grip panels. He explained that a firing pin strikes the back of the cartridge, hits the primer, and initiates the cartridge firing, meaning that without a firing pin, the gun would not fire. By the design of this particular gun, a firing spring would also be necessary, or even a firing pin would be useless. He further opined that this type of gun could probably be made to fire with a missing safety lever after some manipulation of the parts. Knell stated that the gun will not fire in its current state. On cross-examination, however, he acknowledged that although the gun was not capable of firing currently, it s not permanently 9 inoperable. He further explained that in order for a firearm to be permanently inoperable, it s not repairable. ¶16 Consistent with the instructions given at trial, Ramirez had the burden of proving by a preponderance of the evidence that the gun was permanently inoperable. 192 Ariz. at 307, ¶ 16, 965 P.2d at 41. See Young, Not only did he fail to meet that burden, the evidence presented on the issue leads to only one reasonable repaired and was conclusion that therefore not the gun permanently could have been inoperable. See State v. Fisher, 126 Ariz. 50, 50-51, 612 P.2d 506, 506-07 (App. 1980) (upholding conviction because trial testimony provided that gun could easily be made operable with insertion of firing pin or even a nail); State v. Spratt, 126 Ariz. 184, 186, 613 P.2d 848, 850 (App. 1980) (affirming conviction based on court s finding that temporarily a missing inoperable). pin rendered Thus, to the weapon, the extent at most, any error occurred, it was not fundamental. ¶17 With regard to 19-C, also taken from Young, Ramirez s counsel did object at trial, arguing that the language in question was not the holding of Young and that the instruction invaded the province of the jury. 19-C, We agree that the language of which focused only on the absence of a firing pin, may have been misleading to the jury because the jury heard evidence that the weapon was missing 10 several additional parts. Therefore, the court s instruction directing the jury s attention solely to the missing firing pin was not an accurate reflection of the facts. See State v. Doerr, 193 Ariz. 56, 64, ¶ 35, 969 P.2d 1168, 1177 (1998) ( A trial court should instruct on any theory reasonably supported by evidence. ) (internal quotation and citation omitted). ¶18 Assuming the trial court erred in giving 19-C, however, we will nonetheless affirm if the error was harmless. Error is harmless if we can say, beyond a reasonable doubt, that the error did not contribute to or affect the verdict. State v. Anthony, 218 Ariz. 439, 446, ¶ 39, 189 P.3d 366, 373 (2008) (quoting State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993)). The State has the burden of convincing us that any error was harmless. Id. We can determine that an error is harmless when the evidence against a defendant is so overwhelming that any reasonable jury could only have reached one conclusion. Id. at ¶ 41. Based on the overwhelming evidence presented by Knell that the gun was not permanently inoperable, we find that the trial court s decision to give 19-C did not affect the jury s verdict and therefore the error was harmless beyond a reasonable doubt. 11 CONCLUSION ¶19 Based on the foregoing, we affirm Ramirez s conviction and sentence. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ __________________________________ DIANE M. JOHNSEN, Presiding Judge /s/ __________________________________ JOHN C. GEMMILL, Judge 12

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