State v. Caballeros

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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. FRANK ANTHONY CABALLEROS, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 08/26/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CR 09-0418 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-005255-001 DT The Honorable Maria del Mar Verdin, Judge AFFIRMED Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Terry J. Reid, Deputy Public Defender Attorneys for Appellant Phoenix Frank Anthony Caballeros Appellant Phoenix H A L L, Judge ¶1 Frank Anthony Caballeros appeals from his convictions and the sentences imposed. Defendant s appellate counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that, after a diligent search of the record, he was unable to find any arguable grounds for reversal. This court granted defendant an opportunity to file a supplemental brief, which he has done. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). ¶2 We review for fundamental error, error that goes to the foundation of a case or takes from the defendant a right essential to his defense. See State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988). We view the evidence presented in a light most favorable to sustaining the verdict. State v. Cropper, 205 Ariz. 181, 182, ¶ 2, 68 P.3d 407, 408 (2003). Finding no reversible error, we affirm. ¶3 Defendant was charged by indictment with one count of second-degree murder (Count One), a class 1 dangerous felony, in violation of Arizona Revised Statutes (A.R.S.) section 13- 1104(A) (2010); one count of aggravated assault (Count Two), a class 3 felony, in violation of A.R.S. § 13-1204(A) (2010); and one count of misconduct involving weapons (Count Three), a class 4 felony, in violation of A.R.S. § 13-3102(A)(4) (2010). 2 ¶4 The following evidence was presented at trial.1 Defendant shot two guests at a party that started on the evening of November 22, 2007 and lasted into the early morning hours of the following day. B.B. hosted the party in his backyard, which was illuminated by a fire pit in the yard and a light in a nearby alley. Most of the guests at the party were sitting near the fire pit, talking, and laughing, and some were drinking alcoholic beverages. ¶5 with The party was interrupted when defendant began arguing Z.C., another guest at the party. Several witnesses observed that defendant was holding an assault rifle at his side. At the culmination of his argument with Z.C., defendant raised the rifle and shot Z.C. in the chest. Bullet fragments passed through Z.C. s body and hit F.V., who was standing behind him, in the abdomen. to his chest. Z.C. died as a result of the gunshot wound F.V. s injuries required him to have six major surgeries and around fifteen minor surgeries. ¶6 B.B. identified defendant, who he knew by name from living in the same neighborhood, in a photo lineup soon after the incident. The state presented testimony that swabs from a 1 [W]e view the evidence in the light most favorable to sustaining the verdict and resolve all reasonable inferences against the defendant. State v. Latham, 223 Ariz. 70, 72, ¶ 9, 219 P.3d 280, 282 (App. 2009) (quoting State v. Mincey, 141 Ariz. 425, 432, 687 P.2d 1180, 1187 (1984)). 3 beer bottle at the party matched defendant s DNA. Police arrested defendant, and a search warrant served on his home revealed a box of ammunition in his room that was of the same type as the spent shell casing found near Z.C. s body. ¶7 Defendant claimed at trial, through counsel, that although he attended the party where the shooting took place, he was not the shooter. After a seven-day trial, the jury found defendant guilty as charged on all three counts. court found that defendant had one historical The trial prior felony conviction and sentenced him to an aggravated term of 20 years in prison on Count One, an aggravated term of 10 years in prison on Count Two, and a presumptive term of 4.5 years in prison on Count Three, with Counts One and Two to run consecutively and Count Three to run concurrently with Count One. DISCUSSION ¶8 Defendant raises three issues in his supplemental brief, which we address in turn. I. Presumption of Innocence ¶9 Defendant properly instruct first the claims jury in that its the final court failed instructions defendant was presumed innocent until proven guilty. to that Our review of the transcript, however, reveals that the court did instruct the jury on the presumption. The court stated in its final instructions that the State ha[d] the burden of proving the 4 defendant guilty beyond a reasonable doubt and that defendant [wa]s not required to produce evidence of any kind to obtain an acquittal. the Taken together, these instructions properly stated presumption Further, the presumed innocence court by instructions. of law and instructed to be the the burden jury innocent that in on the state. defendant its was preliminary Accordingly, we conclude that the court properly instructed the jury. II. Rule 20 Motions ¶10 Defendant also claims that the trial court erred by denying his Rule 20 motions for judgment of acquittal after the state s case. As we understand his argument, he mainly claims that the fact that several witnesses had been consuming alcohol makes their testimony unreliable. We review the sufficiency of the evidence underlying a conviction only to determine whether substantial evidence supports the verdict. 216 Ariz. Substantial 292, 294, evidence ¶ is 7, 165 such P.3d proof 693, that State v. Sharma, 695 (App. reasonable 2007). persons could accept as adequate and sufficient to support a conclusion of defendant s guilt beyond a reasonable doubt. State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (quotation omitted). 5 A. ¶11 Second-degree Murder A person commits second-degree murder when, without premeditation, he causes the intentionally or knowingly. death of another person A.R.S. § 13-1104(A)(1), (2). A person also commits second-degree murder if he causes the death of another by recklessly engaging in conduct creating a grave risk of death under circumstances indifference to human life. ¶12 manifesting extreme § 13-1104(A)(3). These elements may be established by testimony of a witness who is intoxicated. witness except statute. as Every person is competent to be a otherwise provided Ariz. R. Evid. 601. intoxicated at the time of in these rules or by Even assuming witnesses were the shooting, they would not necessarily be incompetent to testify because the question of competency is within the sound discretion of the trial court. State v. (1983). Jeffers, 135 Ariz. 404, 420, 661 P.2d 1105, 1121 The court did not abuse its discretion by deeming the witnesses competent to testify and submitting the question of their credibility to the jury. ¶13 Further, the state presented substantial evidence to support defendant s conviction. R.V. testified that defendant raised an assault rifle and shot Z.C. at close range. 6 Even though R.V. had been drinking,2 the jury could have reasonably determined that his recounted perception accurate despite his intoxication. 420, 661 P.2d at 1121. A.F., of the events was See Jeffers, 135 Ariz. at R.C., S.J., and B.B. also testified that they saw defendant at the party with an assault rifle at his side arguing with Z.C. shortly before hearing the shot. The state provided further corroboration by showing that investigators found a shell casing at the scene of the same variety as the military-grade ammunition found in a search of defendant s room. Accordingly, the state presented substantial evidence that could allow a reasonable jury to find defendant guilty of second-degree murder. B. ¶14 A Aggravated Assault person intentionally, injury to commits knowingly another or person, aggravated recklessly A.R.S. special circumstances. § include causing physical serious § assault causes 13-1203, 13-1204(A). injury These to when he any physical under certain circumstances another, § 13- 1204(A)(1), and using a deadly weapon or dangerous instrument. § 13-1204(A)(2). 2 R.V. admitted to drinking four or five Bud Light beers in the six hours leading up to the party and one during the party itself. Police never tested R.V. s blood-alcohol content, as they did with other witnesses, because he rode with his brother, F.V., to the hospital. 7 ¶15 The defendant s state presented commission of an substantial aggravated evidence assault. of Bullet fragments from the same bullet defendant shot at Z.C. passed through him reasonably and have hit F.V. found in either the abdomen. The that defendant acted jury could recklessly with regard to injuring F.V. by shooting Z.C. at close range with an assault rifle or that defendant s intent to shoot Z.C. transferred to F.V. s injury that was caused by the same act. A.R.S. § 13-203(B)(1) (2010); see also State v. Henley, 141 Ariz. 465, 467, 687 P.2d 1220, 1222 (1984) (holding that intent was transferred when a defendant fired one bullet and injured two persons, supporting two assault convictions), abrogated on other grounds by State v. Soliz, 223 Ariz. 116, 219 P.3d 1045 (2009). ¶16 The state also presented substantial evidence that F.V. s injury was a serious physical injury ; that is, that the injury create[d] a reasonable risk of death, or . . . cause[d] serious and permanent disfigurement, serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb. A.R.S. § 13-105(38) (2010). F.V. testified that he passed in and out of consciousness after the shooting and that the shooting led to six major surgeries and at least fifteen minor ones. Accordingly, the trial court did not 8 err in denying defendant s motion for judgment of acquittal on the aggravated assault charge. C. ¶17 A Misconduct with Weapons person commits misconduct with weapons when he knowingly possesses a deadly weapon or prohibited weapon if he is a prohibited possessor. A.R.S. § 13-3102(A)(4). A person becomes a prohibited possessor if he has been convicted of a felony and his right to possess a firearm has not been restored. § 13-3101(A)(7)(b). ¶18 At trial, defendant stipulated that: (1) he was convicted of a felony on December 15, 2006; (2) he was placed on supervised probation officer was J.C. for two years; and (3) his probation Defendant also stipulated that, if called, J.C. would have testified that defendant was not allowed to possess any firearms as a condition of his probation, and that he had not had his right to possess firearms restored. A.R.S. § 13-904(A)(5) (2010) (suspending a convicted See felon s right to possess a firearm); § 13-905(B) (allowing restoration of rights upon discharge from probation). As mentioned in ¶ 13, supra, B.B., A.F., R.C., S.J., and R.V. all testified that they saw defendant at the party with an assault rifle on November 23, 2007, while he was still on probation. In combination with the stipulation, this testimony constitutes substantial evidence of 9 defendant s guilt. Thus, the trial court did not err in denying defendant s Rule 20 motion. III. Alleged Use of Perjured Testimony ¶19 Finally, defendant alleges that the state knowingly solicited false testimony at trial. Specifically, defendant claims that several witnesses testimony that they heard only one shot at the party differs from their statements immediately after the incident to police that they heard two shots, and argues that this amounts to perjury. Thus, defendant s claim actually amounts to an attack on these witnesses credibility. Defense counsel pointed out these inconsistencies at trial to raise this credibility issue, and the issue was correctly left to the jury. P.3d 1020, appellate See State v. Fimbres, 222 Ariz. 293, 297, ¶ 4, 213 1024 court, (App. 2009) weighs ( The the finder-of-fact, evidence the determines and not the credibility of witnesses. (quoting State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995))). inconsistencies between prior statements The mere presence of and trial testimony does not itself prove that the testimony at trial was false. Accordingly, we reject defendant s claim. CONCLUSION ¶20 We have read and considered counsel s brief and have searched the entire record for reversible error. Ariz. at 300, 451 P.2d at 881. 10 We find none. See Leon, 104 All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Defendant was given an opportunity to speak before sentencing, and the sentence imposed was within statutory limits. ¶21 After obligations appeal have the pertaining ended. filing to of this defendant s Counsel need decision, counsel s representation do no more than in this inform defendant of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 15657 (1984). Defendant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. Accordingly, defendant s convictions and sentences are affirmed. _/s/______________________________ PHILIP HALL, Judge CONCURRING: /s/ DIANE M. JOHNSEN, Presiding Judge . /s/ PATRICK IRVINE, Judge . 11

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