State v. Moreno

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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. RAUL JOSEPH MORENO, Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 09-0482 DIVISION ONE FILED: 08/31/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-008206-001 DT The Honorable Michael D. Jones, Judge VACATED AND REMANDED WITH INSTRUCTION Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Joseph T. Maziarz, Assistant Attorney General and Alice Jones, a Rule 38(e) Student Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Thomas K. Baird, Deputy Public Defender Attorney for Appellant Phoenix H A L L, Judge ¶1 Raul Joseph Moreno (defendant) appeals from his conviction and sentence for one count of assault, a class one misdemeanor and domestic violence offense. follow, we vacate his conviction and For the reasons that enter a judgment of acquittal. FACTS AND PROCEDURAL BACKGROUND ¶2 In the fall of 2008, defendant, age 35, lived with his elderly parents. Defendant suffers from severe diabetes and is prone to seizures and other medical problems and, as a result, has lived with his parents his entire life other than brief periods in custody. In November 2008, (Father) became ill and was hospitalized. defendant s father Medical personnel informed defendant s mother (Mother) that Father had only one week to live. After receiving this news, Mother, quite distraught, returned home to find some papers to take to the hospital. While Mother looked for the papers in her bedroom closet, defendant entered her room. At some point, while she and defendant were in her bedroom, Mother sustained a cut and bruising to her hand. ¶3 Two days later, Mother and her daughter, Elizabeth, were visiting Father. Elizabeth questioned Mother about her hand injuries and Mother initially refused to discuss it. After more prodding, however, Mother finally disclosed that defendant became angry at her for not bringing Father home, yelled at her, and then came at her, and she fell backward into a door and slammed her hand. Mother asked Elizabeth to contact the police 2 and she did. Two interview Mother. and questioned interview, police came to the hospital to The officers took pictures of Mother s hand her Mother officers about reported her injuries. that defendant During hit the her taped hand too hard with a closed fist. ¶4 On December 11, 2008, defendant was charged by indictment with one count of aggravated domestic violence, a class five felony and a domestic violence offense. On April 10, 2009, the indictment was amended and he was charged with one count of assault, a class one misdemeanor. ¶5 Defendant pled not guilty and the matter proceeded to a one-day bench trial. At trial, Mother testified that she lied when she told the police that defendant had hit her and caused her injuries. She explained that Father wanted to come home to die and that Adult Protective Services would not allow him to return home because of so long as defendant s defendant previous continued conduct. to reside there Accordingly, she reported her injuries to the police so that they would remove defendant from the home. ¶6 Contrary to her statements during the police interview, Mother testified that as she was searching for papers in her bedroom closet, she lost her balance and caught her hand on a sharp corner of the unhinged closet door as she fell. 3 She further testified that defendant was not upset at that time and that they had not been arguing. ¶7 Elizabeth also testified and confirmed that Adult Protective Services had informed Mother that she could not take Father home while defendant lived there. Elizabeth stated that when she had asked Mother how her hand was injured, Mother told her that defendant came at her and that she fell into the closet door as she backed away from him. that, based on Mother s explanation Elizabeth also stated of what happened, she interpreted Mother s statement that defendant came at her as meaning that defendant charged her in an aggressive and intimidating manner. ¶8 After the State s presentation of evidence, defendant moved for a judgment of acquittal pursuant to Arizona Rule of Criminal Procedure 20. The trial court denied the motion and defendant rested. ¶9 The charged. three trial court then found defendant guilty as In doing so, the trial court noted that there were accounts of how Mother sustained her injuries: (1) Elizabeth s version that Mother was physically intimidated by defendant s aggression and fell backward; (2) Mother s version told to police that defendant hit her with a closed fist; and (3) Mother s version relayed at trial that she lost her balance and fell. In attempting to reconcile these different accounts 4 with the physical evidence, the trial court found Elizabeth s testimony extremely credible and consistent with the physical evidence. ¶10 The trial court then sentenced defendant to six months of incarceration with presentence incarceration credit of 164 days. Defendant timely appealed, and we have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2003), 13-4031, and -4033(A)(1) (2010). DISCUSSION ¶11 Defendant contends that the evidence presented at trial was insufficient to support the crime for which he was convicted, class one misdemeanor assault. Although he frames the issue as a challenge to the trial court s denial of his Rule 20 motion, the thrust of his argument is one of insufficiency of the evidence, namely, that the underlying facts, as determined by the trial court, do knowingly injured Mother. not support the conclusion that he We accordingly construe his argument on appeal more generally as insufficiency of the evidence to support the conviction, which we review for fundamental error. See State v. Stroud, 209 Ariz. 410, 412 n.2, ¶ 6, 103 P.3d 912, 914 n.2 (2005). ¶12 To set aside a [] verdict for insufficient evidence, it must clearly appear that upon no hypothesis whatever is there 5 sufficient evidence to support the conviction. State Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). v. It is [] fundamental error to convict a person of a crime when the evidence does not support the conviction. Id. at 412 n.2, ¶ 6, 103 P.3d at 914 n.2. ¶13 To that assault, misdemeanor prove defendant the State was committed required class show to one that defendant intentionally or knowingly caused physical injury to Mother. See A.R.S. § 13-1203(A)(1), -1203(B) (2010). Thus, the State had to demonstrate that either defendant s objective was to injure Mother or that he was aware or believed that his conduct would injure Mother. See A.R.S. § 13-105(10)(a)(b) (2010) (defining intentionally and knowingly ). ¶14 In her police interview, Mother defendant struck her with a closed fist. Mother testified that defendant aggressively toward her. and fell. after never reported that At trial, however, hit her or acted Instead, she simply lost her balance Elizabeth, on the other hand, testified that two days Mother disclosed that defendant had come at her and she had fallen backward. The trial was court sustained her specifically hand found injuries that she Elizabeth s account extremely credible and consistent with the nature of Mother s injuries. It is the role of the fact-finder to determine the credibility of the witnesses and resolve any conflicts in the 6 evidence, and we therefore defer to the trial court s assessment here. State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995). ¶15 After receiving the evidence at trial, the court concluded that defendant s physical movement toward his mother was a knowing activity . . . [that] clearly resulted in the injury to Mother. The trial court then found defendant guilty because he knowingly cause[d] physical injury to Mother. ¶16 The underlying facts as determined by the trial court, however, do not satisfy the elements of class one misdemeanor assault. Elizabeth specifically testified that, according to Mother s account to her, defendant made no physical contact with Mother. Although defendant s intimidating approach toward Mother was a knowing activity, absent any physical contact, there is no substantial evidence to support the trial court s conclusion that defendant believed or was aware that his aggressive advance alone would cause Mother to fall backward and strike her hand against an unhinged closet door. Defendant may have disregarded a substantial and unjustifiable risk that such a result may occur, see A.R.S. § 13-105(10)(c) (defining recklessly ), but the credible evidence, as determined by the trial court, does not support the conclusion that he believed it would happen. Thus, the trial court fundamentally erred by finding defendant guilty of class one misdemeanor assault. 7 CONCLUSION ¶17 Because our decision is based on the insufficiency of the evidence, double jeopardy principles bar retrial. See State v. Ortiz, 120 Ariz. 384, 586 P.2d 633 (1978); see also Peak v. Acuna, 203 Ariz. 83, 85, ¶ 8, 50 P.3d 833, 835 (2002) ( When a conviction is reversed for insufficiency of the evidence, the reversal is, in effect, an implied acquittal of the charges. ). Therefore, we vacate the conviction and remand for entry of judgment of acquittal. /s/ PHILIP HALL, Judge CONCURRING: /s/ MICHAEL J. BROWN, Presiding Judge /s/ JOHN C. GEMMILL, Judge 8

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