State v. Cabrera-Somosa

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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. 31.34 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. JOSE ABEL CABRERA-SOMOSA, Appellant. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 09/14/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CR 09-0271 DEPARTMENT S MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-006195-001 DT The Honorable Peter J. Cahill, Judge AFFIRMED IN PART, REVERSED IN PART Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Sarah E. Heckathorne, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Eleanor S. Terpstra, Deputy Public Defender Attorneys for Appellant Phoenix T I M M E R, Chief Judge ¶1 Jose Abel Cabrera-Somosa appeals his conviction and sentence for misconduct involving weapons, a class four felony. He argues the trial court erred because the State failed to present State sufficient confesses agree. evidence error, to and support for the the conviction. reasons that The follow, we We therefore reverse the conviction and sentence for misconduct involving weapons resulting sentences for and affirm attempted the convictions first-degree murder and and aggravated assault. ¶2 On October 14, 2007, Cabrera-Somosa was driving his truck when Phoenix Police Officer B.G. stopped him for running a stop sign. As B.G. approached the driver-side window, he saw that Cabrera-Somosa had a pistol in his right hand. Before B.G. could react, Cabrera-Somosa shot B.G. in the chest and then sped from the scene. Cabrera-Somosa was later apprehended and charged with attempted first-degree murder of a law enforcement officer, a class two dangerous felony (count one), aggravated assault, a class two dangerous felony (count two), and misconduct involving weapons, a class four felony (count three). A jury convicted Cabrera-Somosa on all counts, and the trial court sentenced imprisonment for him to attempted an aggravated first-degree term murder, of an 20 years aggravated term of 14 years imprisonment for aggravated assault, and a presumptive term involving weapons. of 2.5 years imprisonment for misconduct The court ordered the sentences for counts one and three to run concurrently while the sentence for count 2 two was to be served consecutively. This timely appeal followed. DISCUSSION ¶3 Cabrera-Somosa argues the trial court erred by convicting and sentencing him for misconduct involving weapons because the State failed to present any evidence that the firearm or ammunition used in the shooting had an interstate or foreign commerce nexus. that Cabrera-Somosa s The State confesses error, responding conviction for misconduct involving weapons should be reversed because the State failed to present sufficient evidence to prove Cabrera-Somosa possessed a firearm or ammunition This court determine with an reviews whether interstate claims of or foreign insufficient substantial evidence commerce evidence supports nexus. only the to jury s verdict, and in doing so, we view the facts in the light most favorable to upholding the verdict. State v. Cox, 217 Ariz. 353, 357, ¶ 22, 174 P.3d 265, 269 (2007) (citing State v. Roque, 213 Ariz. 193, Insufficiency of 218, ¶ evidence 93, 141 results P.3d in 368, reversible 393 (2006)). error only where there is a complete absence of probative facts to support the conviction. State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). 3 ¶4 Misconduct involving weapons is defined in Revised Statutes ( A.R.S. ) section 13-3102 (2010). 1 Arizona The jury found Cabrera-Somosa guilty of misconduct involving weapons on the basis that of possession he deadly 3102(A)(4). [w]ho is section a a was a or Prohibited prohibited 922(g)(5). . prohibited prohibited . weapon. possessor possessor . possessor means under A.R.S. § 18 any in knowing A.R.S. person United § . States 13-3101(A)(6)(e) 13. . Code (Supp. 2007). ¶5 Section 922(g)(5) of the United States Code states that it is a crime for any person . . . who, being an alien . . . [and] is illegally or unlawfully in the United States . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition[,] or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. 18 U.S.C. § 922(g)(5) (2005). A.R.S. § definition This court has held that because 13-3101(A)(6)(e) adopted by referencing specifically the prohibited possessor subsection(g)(5), both the requirement that the individual be in the country illegally and the requirement that the firearm or ammunition involved have 1 We cite to the current version of the applicable statute because no subsequent revisions material to this decision have occurred. 4 an interstate or foreign commerce nexus must be proven by the State. State ex rel. Thomas v. Contes, 216 Ariz. 525, 528, ¶ 8, 169 P.3d 115, 118 (App. 2007). ¶6 The State presented sufficient evidence Cabrera-Somosa was in the United States illegally. to prove We agree with Cabrera-Somosa and the State, however, that the State did not provide sufficient evidence that the weapon used in this shooting had a nexus to interstate or foreign commerce. Neither party references any evidence presented to support this element of the misconduct involving weapons offense, nor are we unaware of such evidence. As a result, there was a complete absence of probative facts to support the [misconduct involving weapons] conviction. Soto-Fong, 187 Ariz. at 200, 928 P.2d at 624. Because court evidence, the we reverse based this conviction Cabrera-Somosa s for misconduct involving weapons. on conviction insufficient and sentence Economy v. Frohme, 13 Ariz. App. 117, 118, 474 P.2d 836, 837 (1970) (holding it is the duty of the court to set aside a verdict against a defendant that is not supported by sufficient evidence). We affirm Cabrera- Somosa s remaining convictions and sentences. /s/ Ann A. Scott Timmer, Chief Judge CONCURRING: /s/ Maurice Portley, Judge /s/ Patricia A. Orozco, Judge 5

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