State v. Acuna

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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 DIVISION ONE FILED: 09/16/10 RUTH WILLINGHAM, ACTING CLERK BY: JT IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. PASQUAL SOSIMO ACUNA, Appellant. ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 09-0368 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. CR-2008-0072 The Honorable Lee Frank Jantzen, Judge Pro Tempore AFFIRMED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel, Suzanne M. Nicholls, Assistant Attorney General Criminal Appeals/Capital Litigation Section Attorneys for Appellee Mohave County Appellant Defender By Jill L. Evans, Deputy Public Defender Attorneys for Appellant Kingman G E M M I L L, Judge ¶1 Pasqual Sosimo Acuna appeals his convictions and sentences arising out of a confrontation and drive by shooting on December 31, 2007. For the following reasons, we affirm his convictions and sentences. FACTS AND PROCEDURAL HISTORY ¶2 therefrom We view the in the light convictions. facts and most all reasonable favorable to inferences sustaining the State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). ¶3 On December 31, 2007, Monica Alvarado, who was dating Raymundo Mendoza at the time, drove Raymundo and her two children to the home of Gustavo Mendoza, Raymundo s brother. When they arrived, Raymundo walked over to talk to Gustavo. About ten minutes later, another truck arrived. The truck was occupied by Pasqual Acuna ( Appellant ), Billie Acuna, Rosario Acuna, Mercedes Acuna, and Blanca -- all siblings except Blanca, who was a friend. Rosario, Raymundo. got The three brothers, Appellant, Billie, and out of the truck and approached Gustavo and Appellant had a gun, Rosario had a knife, and all three were wearing bandanas over their faces. ¶4 The Acuna brothers confront someone Raquel.1 They asked for Conseulas, and when Raymundo identified about an had come incident to Gustavo s involving house their to sister himself as Conseulas, Billie Acuna took a bat from Gustavo and 1 Testimony indicates that the Acunas initially asked the Mendoza brothers about someone named Jesus Espinoza. When they were told Jesus was not present, they then asked Raymundo if he was Conseulas. 2 chased Raymundo into the desert.2 Billie caught up to Raymundo and swung the bat at him, hitting him in the arm. When Billie ran after Raymundo, both Appellant and Rosario remained standing with Gustavo. Then Appellant shot the gun into the air. After Appellant shot the gun, the Acuna brothers got back into their truck and drove away. ¶5 On the same day, Rachelle Cline and Elizabeth Webster were driving in a truck on the same dirt road that accessed the trailers where Mendozas had approached the confrontation just occurred. Rachelle and between The Elizabeth truck on the Acunas carrying the road; and the the Acunas Blanca was driving and Appellant was sitting in the passenger seat. The Acunas and passed Rachelle and Elizabeth, turned around, approached them again; as the truck passed the second time, Rachelle window and and Elizabeth heard saw a shooting. gun come Rachelle out and of the passenger Elizabeth quickly ducked down and waited in their parked car until the other truck had driven away. They immediately drove to Rachelle s house and reported the incident to the police. ¶6 On January 7, 2008, Appellant unrelated charges during a traffic stop. was arrested on In connection with the events of December 31, 2007, he was charged with three counts of 2 Gustavo was apparently holding a bat because he and his brother were baseball players in Mexico and they were going to practice. 3 aggravated assault on the Mendoza brothers, one count of aggravated assault on Rachelle, one count of aggravated assault on Elizabeth, and one count of drive by shooting. The State filed a motion to hold Appellant without bond, and the court scheduled an evidentiary hearing on the matter. ¶7 The court held the hearing on March 24, 2008. The victims, Raymundo and Gustavo Mendoza, and Appellant s brother, Rosario Acuna, testified at the bond hearing. Gustavo were testimony, Rosario excused however, should be after testifying. defense provided counsel an Before raised attorney Raymundo and the Rosario s issue because he that was an unrepresented minor who would likely incriminate himself through his testimony. Rosario requested an attorney before further questioning and the court continued the hearing until after he had conferred with counsel. ¶8 On June 5, 2008, the court held the remainder of the evidentiary hearing, and Rosario Acuna testified. Rosario was represented by an attorney, who was present at the hearing, and Rosario was subjected to both direct and cross-examination. Upon the evidence presented, the court found there was proof evident or presumption great that Appellant had committed aggravated assault on the Mendoza brothers - the counts for which the State sought to hold Appellant without bond. The court also found clear and convincing evidence that Appellant 4 was a danger to the community and no other release conditions could protect the victims. The court ordered Appellant to be held without bond. ¶9 On April 7, 2009, Appellant s trial began. testimony of Gustavo, Raymundo, and Rosario (from The prior the bond hearing) was admitted because the witnesses were unavailable at trial. Gustavo and Raymundo were not able to be subpoenaed by the State prior to the trial, and it was believed that one or both of them had returned to Mexico. The State moved to admit their testimony from the bond hearing pursuant to Arizona Rule of Evidence 804 and Arizona Rule of Criminal Procedure 19.3. Their prior testimony was admitted. Rosario Acuna had been subpoenaed for trial, but he was not present on the first day of the continued trial. In light of the State s unsuccessful attempts to locate him, the court determined he was unavailable and permitted the State to present Rosario s prior testimony over Appellant s objections. ¶10 Appellant was convicted of two counts of disorderly conduct with aggravated a weapon assault (lesser charges included involving offenses victims of the Raymundo and Gustavo Mendoza), one count of aggravated assault on Raymundo Mendoza as an accomplice to Billie Acuna s assault, one count each of aggravated assault on Rachelle Cline and Elizabeth Webster in connection with the drive by shooting, and one count 5 of drive by shooting. Appellant was sentenced to 1.75 years on count one, disorderly conduct, and to 5 years on count two, aggravated assault on Raymundo as an accomplice to Billie Acuna. Counts one and two were to be served concurrently. He was also sentenced to 1.75 years on count three, disorderly conduct, and to 6.5 years on count four, aggravated assault. The sentences for counts three and four were ordered consecutive with count three beginning after completion of the sentence for count two. On count five, aggravated assault, Appellant was sentenced to 6.5 years to run concurrently with the sentence of 8.5 years for count six, drive by shooting. ¶11 Appellant sentences. Statutes timely appeals his convictions and We have jurisdiction pursuant to Arizona Revised ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A) (2010). DISCUSSION I. Confrontation Clause ¶12 Appellant testimony was first admitted in argues that violation Rosario of his Acuna s Sixth prior Amendment rights and resulted in the convictions arising out of the drive by shooting. We review Sixth Amendment admissibility of evidence de novo. challenges to the State v. King, 212 Ariz. 372, 375, ¶ 16, 132 P.3d 311, 314 (App. 2006). The Sixth Amendment bars admission of testimonial statements made by a 6 witness who does not appear witness unavailability and court s of opportunity determinations Appellant s of the opportunity examination for abuse of discretion. for is Crawford v. Washington, 541 U.S. 36, 68 (2004). trial prior the examination. the a unless and review was trial unavailable We there at cross- witness s for cross- State v. Montano, 204 Ariz. 413, 420, ¶ 25, 65 P.3d 61, 68 (2003), supplemented on different grounds by 206 Ariz. 296, 77 P.3d 1246 (2003); State v. Schad, 129 Ariz. 557, 569, 633 P.2d 366, 378 (1981). In addition to viewing the facts in the light most favorable to sustaining the verdict, we take them in the light most favorable to the proponent of the challenged evidence. State v. Alvarez, 213 Ariz. 467, 468, ¶ 3, 143 P.3d 668, 669 (App. 2006). a. Rosario s unavailability ¶13 Former judicial testimony proceeding is made under admissible oath if during the a prior declarant is unavailable and the party against whom the statement is offered was a party in the prior proceeding and opportunity to cross-examine the declarant. 19.3. had the right and Ariz. R. Crim. P. We first consider the trial court s finding that Rosario Acuna was unavailable. ¶14 In accordance with Arizona Rule of Evidence 804(a)(5), a witness is unavailable if the witness is not present at the hearing and the proponent of the statement could not procure the 7 witness s attendance by process or other reasonable means. To determine whether the State used reasonable means, or made a good-faith effort to locate the witness, we inquire whether any leads were not followed that would have been investigated if the State did not have a transcript of the prior testimony. Montano, 204 Ariz. at 420-421, ¶ 26, 65 P.3d at 68-69. The focus of the inquiry is whether the State made a good-faith effort to locate the witness so that he or she could be put under subpoena. State v. Edwards, 136 Ariz. 177, 182, 665 P.2d 59, 64 (1983) (emphasis in original). ¶15 Rosario was subpoenaed to appear for the original trial date, March 23, 2009, and the State sent a letter to Rosario informing subpoenas had him been that the continued trial in was force. postponed The and record the also indicates that Rosario was probably present at a hearing that confirmed the trial date of April 7, 2009.3 When Rosario failed to appear to testify, the court issued a warrant for his arrest. Sergeant McNally spent about three hours searching for Rosario. 3 Regarding Rosario s knowledge of the new trial date, the judge stated, I believe he was present last week. I thought he was in the back of the courtroom. The judge was likely referring to the status hearing held on April 1, 2009, when the trial date of April 7 was confirmed. This statement was not expressly corroborated by either attorney. We note that even if Rosario was not present at the hearing, a finding of unavailability turns on the State s reasonable efforts to subpoena him and to locate him rather than on proving his actual knowledge of the trial date. See Edwards, 136 Ariz. at 182, 665 P.2d at 64. 8 He searched four different addresses where the Acuna family had been known to stay. At the address where the subpoena had been served, McNally talked with the mother of Rosario s child who said she had not seen Rosario in over a week and did not know where he was. ¶16 finding The of evidence of record unavailability. supports In the addition trial to judge s having been subpoenaed for trial, Rosario was likely present in court at a prior hearing when the trial date was discussed, as noted above. The State pursued available leads in order to locate Rosario after he did not appear. It appears the State was not aware that he would fail to appear to testify until he was absent the day of trial. See Montano, 204 Ariz. at 421, ¶ 29, 65 P.3d at 69 (all legal means need not be exhausted if it does not appear to be necessary, the witness appears likely to testify, or the state s efforts are otherwise reasonable ). Appellant has the burden to show any leads that were not followed, and he has failed to do so. sergeant members should or Id. at ¶ 31. have sought a spoken Appellant s contention that the with forwarding more address neighbors is not and family persuasive. Visiting residences where the Acuna family was known to reside and questioning the occupants they did find are the types of obvious and essential leads the State would pursue if they did not have Rosario s prior testimony. 9 See Edwards, 136 Ariz. at 182, 665 P.2d at 64 (no good-faith search where State did not speak with a known former live-in boyfriend addresses where the witness might be found). or check known The trial court did not abuse its discretion in finding Rosario unavailable. b. Appellant s opportunity to cross-examine ¶17 Arizona Rule of Criminal Procedure 19.3 permits admission of prior recorded testimony of an unavailable witness when the party against whom the testimony is offered was a party at the prior proceeding and had the right and opportunity to cross-examine the witness with a similar interest and motive. Rule 19.3(c) contains as broad an exception to the hearsay rule for prior recorded testimony as the confrontation clause of the sixth amendment 19.3(c) cmt. will presently Under the permit. Ariz. confrontation R. clause, Crim. P. testimonial evidence can only be admitted if the witness is unavailable and if there was a prior opportunity for cross-examination. Crawford, 541 U.S. at 68. ¶18 that We conclude the trial court did not err in finding Appellant Rosario. had Rosario s adequate prior opportunity testimony was to cross-examine taken during an evidentiary hearing to hold Appellant without bond pursuant to A.R.S. § 13-3961(D) (2007). the court presumption must great find that To hold the defendant without bond, that the the person 10 proof is committed evident the or the offense for which the person is charged. Id. At the bond hearing, Appellant was represented by counsel, who took advantage of his opportunity to cross-examine Rosario. See Montano, 204 Ariz. at 422, ¶ 32, 65 P.3d at 70 (finding adequate opportunity to crossexamine even though the preliminary hearing was held only 43 days after counsel was appointed). Appellant s interest and motive to cross-examine Rosario was similar to his interest and motive at trial. ¶19 Appellant examination of argues Rosario that indicates motive at the bond hearing. the he brevity did not of have his cross- a similar He contends the questioning was limited to the actions of the occupants of the other truck, rather than examining Rosario s credibility or motive to lie. Although Appellant s case strategy may have motivated him to limit his cross-examination at the bond hearing, his interest in refuting the prosecution s proof offense was similar his to that he interest prosecution s evidence at trial. had in committed rebutting the the See Schad, 129 Ariz. at 569, 633 P.2d at 378 (defendant had opportunity and similar motive to cross-examine at suppression hearing where the voluntariness but the issue at trial was guilt). issue was For these reasons, we affirm the trial court s finding that Appellant had an opportunity to cross-examine Rosario and a similar motive to do so. 11 ¶20 had Because Rosario was unavailable at trial and Appellant an hearing, opportunity admission to cross-examine of his prior him testimony confrontation clause and with our rules. at 68. at the preliminary complied with the See Crawford, 541 U.S. We find no error in the court s admission of Rosario s prior testimony, and we affirm his convictions and sentences arising out of the drive by shooting. II. Accomplice Liability ¶21 Appellant also challenges the sufficiency of the evidence to support his conviction for aggravated assault as an accomplice to Billie baseball bat. Acuna s assault on Raymundo with the We review a court s denial of a Rule 20 motion for acquittal for an abuse of discretion. State v. Latham, 223 Ariz. 70, 72, ¶ 9, 219 P.3d 280, 282 (App. 2009). Viewing the evidence in the light most favorable to sustaining the verdict and resolving all inferences against the defendant, we determine whether there was substantial evidence to support each element of the offense. Id. ¶22 Appellant Raymundo via was accomplice convicted liability. of aggravated The statute assault determining accomplice liability in relevant part provides: B. If causing a particular result is an element of an offense, a person who acts with the kind of culpability with respect to the result that is sufficient for the commission of the offense is guilty of that 12 on offense if: . . . 2. The person aids, counsels, agrees to aid or attempts to aid another person in planning or engaging in the conduct causing such result. A.R.S. § 13-303(B)(2) (2001). that an accomplice is In 2002, our supreme court ruled criminally accountable only for the offenses he intended to aid or aided in planning or committing.4 State v. Phillips, 202 Ariz. 427, 436, ¶ 37, 46 P.3d 1048, 1057 (2002), supplemented on different grounds by 205 Ariz. 145, 67 P.3d 1228 (2003). The accomplice s criminal liability depends on the intent of the one charged as an accomplice, rather than the intent of the main actor. State v. Wall, 212 Ariz. 1, 5, ¶ 20, 126 P.3d 148, 152 (2006); see also State v. Garnica, 209 Ariz. 96, 102, ¶ 28, 98 P.3d 207, 213 (App. 2004) ( [T]he intent requirement applies to the offense that is charged rather than simply an offense for which a defendant may be criminally accountable. ) (Emphases in original). Appellant must have knowingly aided 4 Thus, under Phillips, or intended to aid his In 2008, the legislature amended A.R.S. § 13-303 to broaden accomplice liability. The statute now holds an accomplice liable for any offense that is the natural and probable or reasonably foreseeable consequence of the offense for which the person was an accomplice. A.R.S. § 13-303(A)(3) (2010). This statutory language went into effect on September 26, 2008. Thus, for offenses that occurred between May 24, 2002, and September 26, 2008, accomplice liability applies only for offenses the defendant intended to aid or actually aided. 13 brother in assaulting Raymundo with the baseball bat. ¶23 Appellant and his brothers arrived at the Mendozas residence to confront Consuelas regarding an incident with their sister. All three were wearing bandanas over their faces. Appellant was armed with a gun, and Rosario had a knife. During the confrontation between the Acuna brothers and the Mendoza brothers, Billie Acuna took the bat from Gustavo and assaulted Raymundo with (Raymundo) support it. and for Additionally, Appellant s his wearing of intent a bandana his conviction for the jury reasonably could to the confront as a Consuelas mask provide assault on Raymundo. infer that Appellant aided Billie s assault on Raymundo by holding a gun. Raymundo s arm was injured, and the bat constitutes a dangerous instrument. Therefore, all elements of aggravated assault are supported by sufficient evidence and we affirm Appellant s conviction. CONCLUSION ¶24 For the reasons above, Appellant s convictions and sentences are affirmed. ____/s/___________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: ____/s/_______________________ MICHAEL J. BROWN, Judge _/s/_________________________ PHILIP HALL, Judge 14

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