State v. Garcia

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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. RUSSELL LEE GARCIA, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 04-13-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0468 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yavapai County Cause No. CR20081442 The Honorable Thomas B. Lindberg, Judge AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix John Napper Attorney for Appellant Prescott Russell Lee Garcia Appellant In Propria Persona San Luis B R O W N, Judge ¶1 Russell Lee Garcia appeals his convictions and sentences for one count of aggravated assault on a child less than fifteen years of age, one count of disorderly conduct, and one count of criminal damage. 1 Counsel for Garcia 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). Finding no arguable issues to raise, counsel requests that this court search the record for fundamental error. Garcia was granted the opportunity to file a supplemental brief in propria persona, and he has done so. ¶2 Our obligation in this appeal is to review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). We view the facts in the light most favorable to sustaining the convictions and resolve all reasonable inferences against Garcia. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). Finding no reversible error, we affirm. BACKGROUND ¶3 Garcia was charged with one count of aggravated assault on a child less than fifteen years of age, a class 6 1 Garcia was also charged by indictment with one count of child abuse, a class 4 felony, three additional counts of disorderly conduct, class 1 misdemeanors, and two counts of disobeying a court order, class 2 misdemeanors. He was found not guilty of these charges. 2 felony, in violation of Arizona Revised Statutes ( A.R.S. ) section 13-1204(A) (2010), 2 one count of disorderly conduct, a class 1 misdemeanor, in violation of A.R.S. § 13-2904 (2010), and one count of criminal damage, a class 2 misdemeanor, in violation of A.R.S. § 13-1602 (2010). The following evidence was presented at trial. ¶4 In November 2008, Garcia ( Wife ) and her children. Garcia Garcia then entered grabbed S.S. Garcia cursing against the wall. at with his wife Upon learning that S.S. had S.S. s bedroom and by throat, lifted the ground, and pushed him against the wall. heard living Wife s twelve-year-old son, S.S., overslept and was late for school. overslept, was S.S. and saw began him to yell. off the Wife entered the room, Garcia had him pinned Wife pulled Garcia off S.S. and tried to push Garcia out of the room. Garcia then swung around, raised his arm over his head and swung at S.S. as he sat on the floor next to the nightstand holding his head in his hands. Garcia struck the nightstand, smashing it. ¶5 A jury found Garcia guilty of aggravated assault. In a separate bench trial for the misdemeanor charges, the trial court found Garcia guilty of one count of disorderly conduct and one count of criminal damage. He was sentenced to 3.75 years 2 We cite the current version of the applicable statutes if no revisions material to this decision have since occurred. 3 imprisonment and granted 119 days of presentence incarceration credit. He filed a timely notice of appeal. DISCUSSION ¶6 Garcia raises a number of issues in his supplemental brief. We address each in turn. We consider alleged trial error under the harmless error standard when a defendant objects at trial and thereby preserves an issue for appeal. State v. Henderson, 210 Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005). Fundamental error review, in contrast, applies when a defendant fails to object to alleged trial error. Id. at ¶ 19 (citing State v. Bible, 175 Ariz. 549, 572, 858 P.2d 1152, 1175 (1993)). Fundamental error is error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received (citations omitted). verbal and email incident with evidence under a trial. Id. at ¶ 19 Garcia objected only to the admission of statements S.S.; the fair thus, he we harmless made review error during the and after admission standard. of None of the that the remaining arguments in Garcia s supplemental brief were raised in the trial court, therefore we review those only for fundamental error. ¶7 Garcia first argues that he was unfairly prejudiced by the testimony of the family therapist. 4 He asserts the therapist should not have been permitted to testify because she was not a licensed psychologist and because therapist at the time of trial. she was serving as S.S. s We construe Garcia s assertion as a challenge to the family therapist s qualification as an expert witness and as an objection to the admission of privileged information. ¶8 Under Arizona Rule of Evidence 702, an expert is one who has specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue and may be qualified as an expert based on knowledge, skill, experience, training, or education[.] testimony, the trial court must Before admitting expert determine that the subject matter on which the expert will testify is not one which would fall within the common knowledge of the average juror, will be helpful or necessary to the trier of fact in understanding the issues, and that the witness possesses the qualifications to provide the opinion in question. necessary See Pipher v. Loo, 221 Ariz. 399, 403-04, ¶ 16, 212 P.3d 91, 95-96 (App. 2009). ¶9 Here, the family therapist testified about S.S. s emotional state following the incident at issue, her opinion as to whether he was being truthful in reporting the allegations, her observations regarding S.S. and other family members physical and emotional state following the incident, as well as 5 whether the behaviors exhibited by Garcia during that incident were harmful to S.S. and the family structure. require specialized knowledge of emotional Those factors and behavioral principles and would be helpful to the jury in understanding the impact of Garcia s actions on S.S. and the rest of the family. Prior to eliciting the therapist s opinions on these matters, the State offered evidence, through direct testimony, that the therapist held a bachelor s degree in criminal justice, was a credentialed behavioral health professional, a family and home specialist, therapeutic mentor, and case manager. She also had over thirty years experience working with children on behavioral health issues. Based on the information presented at trial, we find that there was no error in qualifying the family therapist as an expert or in admitting her testimony in that regard. ¶10 We likewise find no error based on privilege. Victims may protect confidential communications with their therapists by asserting a privilege created by statute. A.R.S. § 32-3283(A) (2008); P.M. v. Gould, 212 Ariz. 541, 545, ¶ 15, 136 P.3d 223, 227 (App. 2006). Such a privilege may be waived by the victim either in writing or in court testimony. Here, the family therapist was called A.R.S. § 32-3283(A). as a State witness, presumably with the knowledge and acquiescence of Wife on behalf of herself and her children. In addition, Wife testified as to her family conversations with the 6 therapist regarding the incident at issue; thus, any privilege regarding confidential communications was waived. Further, because only the client may assert or waive the privilege, Garcia lacks any basis to object to such testimony. 457, 459, 533 confidential See Gordon v. Indus. Comm n, 23 Ariz. App. P.2d 1194, communication 1196 belong (1975) to (privilege the client, regarding patient, or person making the communication). ¶11 Garcia next argues that the trial court erred in admitting verbal statements made by him during the incident with S.S. He also contends that the trial court erred in admitting email communications release from jail. he sent to Wife after his arrest and He further asserts that neither the verbal statements nor the emails were relevant and both were unduly prejudicial. ¶12 The State filed a motion in limine requesting a determination by the trial court that the State could admit the verbal statements and emails as admissions of a party opponent and as evidence of Garcia s state of mind, among other things. The court held a hearing on the motion in limine in which it concluded the emails and verbal statements were admissible. Garcia contends the trial court failed to properly weigh the probative value of the statements against effect before accepting them into evidence. 7 their prejudicial He also asserts that the verbal statements constituted impermissible character evidence. ¶13 Our review of the record reveals otherwise. Evidence is relevant if it has any tendency to make a fact of consequence more without the evidence. or less may be than Ariz. R. Evid. 401. relevant evidence is admissible. evidence probable excluded, however, if it Because the trial court is in the would be In general, all Ariz. R. Evid. 402. outweighed by the danger of unfair prejudice. 403. it is Relevant substantially Ariz. R. Evid. best position to balance the probative value of challenged evidence against its potential for unfair prejudice, we grant the trial court broad discretion in making such determinations. State v. Connor, 215 Ariz. 553, 564, ¶ 39, 161 P.3d 596, 607 (App. 2007) (citation omitted). not Furthermore, although evidence that is relevant and unduly other prejudicial crimes, wrongs, is or generally acts is admissible, not evidence admissible to of prove character in conformity with those acts, but may be admitted to prove motive, opportunity, or intent, among other things. Ariz. R. Evid. 404(b); State v. Fish, 222 Ariz. 109, 117, ¶ 20, 213 P.3d 258, 266 (App. 2009). ¶14 The verbal statements made by Garcia during the incident with S.S. were relevant to show Garcia s state of mind and did not unduly prejudice Garcia. During the incident with S.S. Garcia embarked on a tirade of name-calling. 8 He called S.S. a worthless piece of sh*t, a f***ing retard, and a pussy, among other things. to beat [S.S. s] ass. He also stated that he was going The State argued that these statements were admissions of a party opponent, showed Garcia s emotional state at design, the mental interest. time of the feeling), incident and (such constituted as motive, intent, statements against The defense countered that the verbal statements were purely hearsay and as such were inadmissible. ¶15 The State also argued that the emails sent to Wife were relevant to show that Garcia intended to influence Wife s testimony. The emails were sent in violation of a no-contact order included and a long communication in which Garcia referenced bible passages about truthfulness and false witness. Wife testified that she is a religious person and she believed the emails were sent in an attempt to use her faith against her. The defense countered that the emails could be interpreted in more than one way and could not necessarily support a conclusion that Garcia was attempting to influence any testimony. ¶16 The transcript shows that during the hearing on the motion in limine, the court heard from both parties regarding the relevance and admissibility of the statements and concluded that the verbal statements were relevant and admissible and not unduly prejudicial. The court further determined that because mental state is one of the elements of each of the crimes the 9 verbal statements were relevant and admissible to show mental state. In admissible. addition, They the are court somewhat determined probative the about emails the issue are of trying to influence the testimony of one of the witnesses[.] So, I and would find admissible. that they are relevant to that issue Based on the record, we find that the trial court properly weighed the probative value of the statements against any unfair prejudice to Garcia prior to their admission and there was no error in admitting those statements. ¶17 Garcia further argues that the State improperly used leading questions during direct examination of S.S. s younger brother J.S., who was eight years old at the time of trial. is within the trial court s discretion to permit examination of a child witness through leading questions. It direct State v. Jerousek, 121 Ariz. 420, 426, 590 P.2d 1366, 1372 (1979) (citations omitted). Where the questions are not too suggestive or unfair and the evidence is compelling, the use of leading questions although with some child witnesses leading is questions permissible. were used Id. during Here, direct examination of J.S., the State asked non-leading questions for many critical inquiries. its discretion in Thus, the trial court did not abuse permitting leading examination of J.S. 10 questions during direct ¶18 Garcia also argues that statements made during the State s closing argument were both an attempt to bolster the credibility of the State s [Garcia s] propensity for witnesses being and a designed bad person to show thereby constituting impermissible character evidence. He contends that the the statements at issue materially affected therefore denied him due process and a fair trial. ¶19 verdict and We disagree. It is black letter law that it is improper for a prosecutor to vouch for a witness. Bible, 175 Ariz. at 601, 858 P.2d at 1204 (citation omitted). Two forms of impermissible prosecutorial vouching exist: (1) when the prosecutor places the prestige of the government behind its witness, and (2) where the prosecutor suggests that information not presented to the jury supports the witness s testimony. In addition, a lawyer is prohibited from asserting personal knowledge of facts in issue before the tribunal unless he testifies as a witness. Id. However, [w]ide latitude . . . is given in closing arguments, and counsel may comment on evidence and argue all reasonable inferences therefrom. State v. Dumaine, 162 Ariz. 392, 402, 783 P.2d 1184, 1194 (1989) (citation omitted). ¶20 State Garcia contends that several statements made by the during expressions of closing the arguments prosecutor s including: 11 constitute opinion improper regarding personal witnesses, [F]orgive [Wife] for not grabbing a camera[.] Forgive her for not noticing what shape [S.S.] was in, with red marks on him . . . as she is in shock as she testified and as her counselor testified about what had just happened to her family. . . . Was [S.S.] lying? Is [S.S.] lying to you? [The family therapist] said that that boy was in such a state of trauma when he came in, that she could see he wasn t thinking about anything but what happened to him. . . . [S.S.] wasn t lying that morning. And [the family therapist] testified that [S.S.] is just not one of these kids that is a habitual liar. . . . [T]he basic story remains the same it s the story that was relayed to [the family therapist] in the office[.] . . . [B]ut what rings loud and clear is what both of these boys said happened that morning[.] . . . There is sufficient evidence in this case. There is no reasonable doubt. There is sufficient evidence for you to be firmly convinced that [Garcia] committed child abuse and aggravated assault[.] We are not persuaded that the State was vouching for any of its witnesses with government nor these any comments. suggestion Neither that 12 the prestige information not of the presented would support the witnesses testimony is reflected in the statements Garcia finds objectionable. ¶21 Our review of the transcript likewise reveals that nothing was said by the State that could be construed as an improper comment regarding Garcia s character. The State reiterated Garcia s admission that he d gone over the boundary with S.S. and commented that the common theme in all of [Garcia s] discussions . . . about this little boy[] [is that S.S.] needs a good beating[.] There s no question about it. character evidence. He wanted to hit that kid. These comments do not amount to Moreover, the trial court instructed the jury what the lawyers say in closing arguments is not evidence. We presume jurors follow the trial court s instructions. State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996). Thus, we find no error in permitting the statements made by the State during closing arguments and reject Garcia s claim that the inclusion of such statements denied him due process or a fair trial. ¶22 Garcia also asserts that he was denied a fair trial due to the cumulative effect of the State s misconduct. In order to constitute fundamental error, the prosecutor s comment had to be so egregious as to deprive the defendant of a fair trial, and to render the resulting conviction a denial of due process. State v. Van Den Berg, 164 Ariz. 192, 196, 791 P.2d 13 1075, 1079 (App. 1990) (citation omitted); see also State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998) (prosecutorial misconduct must so infect[] the trial with unfairness as to make the resulting conviction a denial of due process ) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). ¶23 Garcia fails to point to any specific conduct on the part of the State to support his contention of cumulative effect of misconduct. cumulative We effect assume of intended State s the he use to of assert leading that the questions, statements made during closing arguments, and alleged vouching for witnesses credibility underlie his contentions here. Because we have found nothing improper regarding the State s conduct with respect to these matters, we cannot find that Garcia was denied a fair trial on this basis. ¶24 The final arguments Garcia makes are based on his claim of ineffective assistance of counsel, which must be filed under Arizona Rule of Criminal Procedure 32. improvidently raised in a direct appeal . Any such claims . . will not be addressed by appellate courts regardless of their merit. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 Therefore, we do not address them here. 14 P.3d 525, 527 (2002). CONCLUSION ¶25 We have read and considered counsel s and Garcia s briefs, and we have reviewed the entire record for fundamental error. none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. All of the proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. by We find counsel at all stages of the Garcia was represented proceedings, the jury was properly instructed, and the evidence supports the conviction. He was given the opportunity to speak before sentencing, and the sentence imposed was within statutory limits. ¶26 Upon filing this decision, counsel shall inform Garcia of the status of the appeal and his options. Defense counsel has no further obligations, unless, upon review, counsel finds 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, 156-57 (1984). days from the date of this decision Garcia shall have thirty to proceed, if he so desires, with a pro per motion for reconsideration or petition for review. 15 ¶27 Accordingly, we affirm Garcia s convictions and sentences. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ ______________________________ PATRICK IRVINE, Presiding Judge /s/ ______________________________ DONN KESSLER, Judge 16

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