State v. Montoya
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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.
LEROY MONTOYA,
Appellant.
)
)
)
)
)
)
)
)
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1 CA-CR 09-0313
DIVISION ONE
FILED: 09/15/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
DEPARTMENT C
MEMORANDUM DECISION
(Not for Publication –
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Mohave County
Cause No. CR 2007-0058
The Honorable Lee F. Jantzen, III, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By
Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
and Aaron J. Moskowitz, Assistant Attorney General
Attorneys for Appellee
Phoenix
Jill L. Evans, Mohave County Appellate Defender
By
Jill L. Evans
Attorney for Appellant
Kingman
B R O W N, Judge
¶1
Leroy
Montoya
appeals
from
his
convictions
and
sentences for one count each of contracting without a license,
criminal
damage,
fraudulent
schemes
and
participating in a criminal street gang.
artifices,
and
He raises two issues
regarding the trial court’s instructions to the jury, and he
asserts that insufficient evidence supports his convictions for
fraudulent schemes and artifices and participating in a criminal
street
gang.
reversible
Montoya
error
in
further
contends
the
court
admitting
improper
committed
other
act
evidence.
Finally, Montoya argues the prosecutor’s misconduct resulted in
an unfair trial.
For the reasons that follow, we affirm.
BACKGROUND 1
¶2
The victim, E.L., resided in California and owned a
vacation
home
(“1715”).
at
1715
River
Garden
Drive
in
Mohave
County
Montoya, a documented member of the “Mexican Mafia”
prison gang, and his family rented a nearby house at 1721 River
Garden Drive (“1721”) until they were evicted.
In August, 2006,
E.L. went to 1715 to address matters raised in a nuisance notice
he received regarding the property.
¶3
While E.L. was at 1715, he met Montoya who gave him a
business
card
that
indicated
Montoya
1
was
the
co-owner
of
a
We view the evidence in the light most favorable to
sustaining the convictions and resolve all reasonable inferences
against Montoya. State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3,
110 P.3d 1026, 1027 (App. 2005).
2
business named “Quality Homes & Investments.” 2
Montoya offered
to clean up 1715 and perform minor repairs to rectify the issues
raised in the notice.
Montoya
completed
the
E.L. agreed and returned to California.
agreed-upon
repairs,
and
performed
additional work on 1715 as needed and authorized by E.L.
In
mid-September 2006, Montoya informed E.L. that the work on 1715
was completed.
¶4
E.L. paid Montoya a total of $3,500.
Meanwhile, unbeknownst to E.L., Montoya began “renting
out” 1715. 3
E.C. testified that she and her family “rented” 1715
for
days,
a
few
electric service.
but
moved
because
they
could
not
get
any
J.R. also testified that when she and her
family “rented” 1715, the only electricity available was from an
extension cord to a neighboring home.
Montoya’s wife arranged
for electric service to commence December 5, 2006.
¶5
On
investigating
December
a
report
6,
of
2006,
criminal
Officer
damage
at
Harrison
1721 4
when
was
he
2
The business card was identical to the one Montoya used in
a prior construction agreement that formed the basis for a cease
and desist order issued to Montoya by the Arizona Registrar of
Contractors on February 24, 2006, for contracting without a
license.
3
E.L. was aware that Montoya’s “employee,” Randy, was
staying at 1715 for a period of time before November 5, 2006.
4
The damage, discovered by the property manager for 1721,
included a “room” built in the garage, an irreparable garage
door, broken eggs on the floor, broken windows, unhinged doors,
and smashed-in walls.
3
observed Montoya and C.T., a documented gang member, exiting
1715.
Harrison
asked
Montoya
whether
he
lived
at
1715
and
Montoya explained that he did “sometimes” when not living in
California.
While
talking
with
Montoya
at
1715,
Montoya
demanded Harrison leave “his property.”
¶6
Around this time, Sergeant Gillman learned that E.L.
held title to 1715.
He telephoned him in California to inquire
whether anyone was permitted to live there, because “illegal
activity” had been reported at 1715.
and
replied
that
the
house
should
E.L. was “very stunned,”
be
vacant.
With
E.L.’s
authorization, on December 13, 2006, police officers entered the
property and found indicia of people living on the premises,
including a car parked in the backyard that was registered to
Montoya’s wife.
¶7
A
week
later,
police
responded
to
a
report
of
trespassing at 1715 and found a group of five or six teenage
boys in the home, at least some of whom were documented members
of the South Side Boyz (“The Boyz”), a local gang.
learned
that
Montoya
was
“in
charge”
of
1715
and
had
Police
given
permission to the gang members to be there.
¶8
officers;
On January 2, 2007, E.L. entered the home with police
they
observed
a
significant
amount
personal property that did not belong there.
of
damage
and
While they were
there, Montoya arrived with a “group,” including his wife, and
4
proceeded to retrieve items that had been removed and placed on
the street in front of 1715.
¶9
Montoya was taken into custody.
The State charged Montoya with one count of criminal
trespass in the first degree, a class six felony; two counts of
criminal damage (one count each relating to 1715 and 1721), a
class six felony; one count of fraudulent schemes and artifices,
a class two felony; and one count of participating in a criminal
street
gang,
a
class
two
felony.
The
State
later
charged
Montoya with one count of contracting without a license, a class
one
misdemeanor.
The
superior
court
consolidated
the
misdemeanor charge with the other charges for trial.
¶10
and
The jury found Montoya not guilty of criminal trespass
the
criminal
damage
charge
relating
to
1721.
The
returned guilty verdicts on the remaining counts.
sentenced
Montoya
to
thirty
days’
time
jury
The court
served
for
the
misdemeanor conviction and concurrent terms of imprisonment of
four and thirteen years, respectively, for the criminal damage
and
fraud
convictions.
For
the
participating
in
a
criminal
street gang conviction, the court imposed a thirteen-year prison
sentence
to
be
served
consecutively
Montoya timely appealed.
5
to
the
other
sentences.
DISCUSSION
I.
¶11
jury
Jury Instructions
Montoya raises two issues related to the trial court’s
instructions.
The
first
issue
relates
to
the
court’s
instruction regarding the charge of participating in a criminal
street gang, and the second deals with the court’s response to a
question from the jury.
¶12
“The purpose of jury instructions is to inform the
jury of the applicable law in understandable terms.”
Noriega,
187
(citation
Ariz.
282,
omitted).
faultless.”
Id.
284,
“A
928
set
P.2d
of
706,
708
instructions
State v.
(App.
need
1996)
not
be
However, the instructions must not mislead the
jury and “must give the jury an understanding of the issues.”
Id.
that
“It is only when the instructions taken as a whole are such
it
thereby
is
that
instructions.
reasonable
a
case
to
suppose
should
be
the
jury
reversed
would
for
be
error”
misled
in
the
State v. Schrock, 149 Ariz. 433, 440, 719 P.2d
1049, 1056 (1986) (citation omitted).
Ordinarily, we review a
decision to instruct the jury for abuse of discretion.
State v.
Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995) (citation
omitted).
However,
when
a
party
fails
to
object
to
an
instruction either before or at the time it is given, we review
only for fundamental error.
Schrock, 149 Ariz. at 440, 719 P.2d
at 1056 (citation omitted).
6
A.
¶13
Participating in a Criminal Street Gang
Montoya argues the trial court’s instruction for the
crime of participating in a criminal street gang misstated the
law.
As
because
Montoya
attention.
we
failed
to
this
Id.
he
concedes,
To
bring
obtain
review
for
issue
to
relief
fundamental
the
under
trial
error
court’s
fundamental
error
review, Montoya has the burden to show that error occurred, the
error
was
fundamental,
and
that
he
was
prejudiced
thereby.
State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 20-22, 115 P.3d
601, 607-08 (2005) (citations omitted).
¶14
The statute under which Montoya was charged reads, in
relevant part:
Participating in or assisting a criminal
syndicate; leading or participating in a
criminal street gang
A. A person commits
criminal syndicate by:
participating
in
a
1. Intentionally organizing, managing,
directing, supervising or financing a
criminal syndicate with the intent to
promote
or
further
the
criminal
objectives of the syndicate; or
. . .
5. Hiring, engaging or using a minor
for any conduct preparatory to or in
completion of any offense in this
section.
B. A person shall not be convicted pursuant
to subsection A of this section on the basis
of accountability as an accomplice unless he
7
participates in violating
one of the ways specified.
this
section
in
. . .
G. A person who violates subsection A,
paragraph 1, 2, 3 or 4 of this section for
the benefit of, at the direction of or in
association with any criminal street gang,
with the intent to promote, further or
assist any criminal conduct by the gang, is
guilty of a class 2 felony.
. . . .
Ariz. Rev. Stat. (“A.R.S.”) § 13-2308 (2006). 5
¶15
The court instructed:
The crime of participating in a criminal
street
gang
requires
proof
that
the
defendant intentionally organized, managed,
directed or supervised a minor with the
intent to promote or further the criminal
objectives of the gang.
. . .
A person commits participating in a criminal
syndicate by, one, intentionally organizing,
managing,
directing,
supervising
or
financing a criminal syndicate with the
intent to promote or further the criminal
objective of the syndicate; or two, hiring,
engaging or using a minor for any conduct
preparatory to or in completion of any
offense in this section.
5
The statute was substantially revised in 2007; we therefore
refer in this decision to the version in effect at the time the
offense was committed.
We cite a statute’s current version if
it has not been materially revised.
State v. Lewis, 226 Ariz.
124, 125 n.1, ¶ 1, 244 P.3d 561, 562 n.1 (2011).
8
The
court
further
instructed,
consistent
with
A.R.S.
§§
13-
on
the
105(8) (2010), -2301(C)(7) (2010):
“Criminal street gang” means an ongoing
formal or informal association of persons
whose members or associates individually or
collectively
engage
in
the
commission,
attempted
commission,
facilitation
or
solicitation of any felony act and who has
at least one individual who is a criminal
street gang member.
“Criminal
syndicate”
means
any
combination
of
persons
or
enterprises
engaging, or having the purpose of engaging,
on a continuing basis, in conduct that
violates any one or more provisions of any
felony statute in this state.
¶16
Montoya’s
central
argument
appears
to
focus
court’s inclusion of the “criminal syndicate” instructions with
the “criminal street gang” instructions. 6
other
confusing,
purported
error,
undeveloped,
but
he
does
and
not
Montoya also makes
repetitive
explain
how
assertions
these
of
“errors”
prejudiced him beyond speculating that the jury “may have” been
misled or “likely” convicted him on an improper basis.
¶17
We find that the instructions conveyed the essential
elements of the offense and did not misstate the applicable law.
See State v. Hoskins, 199 Ariz. 127, 145, ¶ 75, 14 P.3d 997,
1015
(2000)
(reviewing
the
adequacy
6
of
jury
instructions
in
Montoya asserts that the trial court erred when it included
an instruction for the crime of assisting a criminal syndicate,
which was neither charged nor defined as a lesser included
offense.
9
their entirety to determine whether they accurately state the
law).
Although it appears that the instructions also included
superfluous elements that were not required for the offense,
this error benefitted Montoya by suggesting to the jurors that
they
had
to
find
additional
elements
for
a
guilty
verdict.
State v. Sierra-Cervantes, 201 Ariz. 459, 463-64, ¶ 29, 37 P.3d
432, 436-37 (App. 2001) (concluding that because the court’s
error concerning a jury instruction benefitted the Defendant,
reversal
was
not
required).
Even
if
that
the
challenged
instructions were incorrect, Montoya’s speculation regarding any
possible prejudice is insufficient for relief under fundamental
error review.
See State v. Munninger, 213 Ariz. 393, 397, ¶ 14,
142 P.3d 701, 705 (App. 2006) (holding appellant did not meet
burden
of
establishing
prejudice
when
none
appeared
in
the
record and argument was based solely on speculation); see also
State v. Gallegos, 178 Ariz. 1, 11, 870 P.2d 1097, 1107 (1994)
(“Mere speculation that the jury was confused is insufficient to
establish actual jury confusion.”).
B. Response to Jury Question; Mere Presence
¶18
court
During its deliberations, the jury presented the trial
with
the
following
question:
“If
[Montoya]
did
not
physically damage 1715 . . . himself, can he be found guilty
because he did have knowledge and did not inform [E.L.] of the
damage?”
Over Montoya’s objection, the trial court refused to
10
answer the question in the negative and instead referred the
jury
to
the
instructions
with
directions
to
consider
the
evidence.
Montoya argues the court abused its discretion by not
answering
“no”
to
the
jury’s
question.
Asserting
the
State
prosecuted him under an accomplice liability theory on the 1715
criminal damage charge, Montoya also claims the court erred in
refusing to instruct the jury on mere presence.
¶19
Turning
first
to
the
mere
presence
instruction,
Montoya correctly states that, in a prosecution for accomplice
liability based on actual presence, a court must give such an
instruction
when
requested
if
the
evidence
Noriega, 187 Ariz. at 286, 928 P.2d at 710.
however,
has
no
applicability
here
for
two
supports
it.
This directive,
reasons.
First,
Montoya does not point to, nor could we find in the record, any
request for a mere presence instruction. 7
Second, the State did
not argue Montoya’s accomplice liability regarding the damage at
1715 was based on his presence there; rather, the State argued
Montoya was guilty because he provided the means and opportunity
7
And because Montoya does not argue the trial court
committed fundamental error by not instructing the jury on mere
presence, any such argument is waived.
See State v. MorenoMedrano, 218 Ariz. 349, 354, ¶ 17, 185 P.3d 135, 140 (App. 2008)
(declining to review for fundamental error because appellant did
not argue that the trial court committed fundamental error);
State v. Sanchez, 200 Ariz. 163, 166, ¶ 8, 24 P.3d 610, 613
(App. 2001) (finding issue waived because the Defendant failed
to develop argument in his brief).
11
to The Boyz to cause the damage.
See A.R.S. § 13-301(3) (2010)
(defining “accomplice” as one who provides means or opportunity
to another person to commit an offense).
The court’s response to a jury question is reviewed for abuse of
discretion.
See State v. Fernandez, 216 Ariz. 545, 548, ¶ 8,
169 P.3d 641, 644 (App. 2007).
decide
in
exercising
its
instructions were needed.
adequate,
we
cannot
It is for the trial court to
discretion
whether
additional
Because the instructions given were
say
the
court
referring the jury back to them.
abused
its
discretion
See State v. Stevens, 184
Ariz. 411, 413, 909 P.2d 478, 480 (App. 1995).
court
would
question
have
because
erred
had
Montoya
it
could
in
responded
have
“no”
been
Indeed, the
to
found
the
jury’s
guilty
of
damaging 1715 even though he did not himself directly cause the
damage.
Consistent
with
the
State’s
theory
and
the
court’s
instruction on accomplice liability, the jury could have found
Montoya guilty because he provided unauthorized access to 1715,
thereby providing the means and opportunity to cause the damage.
For these reasons, we find no abuse of discretion in the court’s
instructions or response to the jury’s question.
II.
¶20
Sufficiency of the Evidence
supporting
Montoya
his
challenges
convictions
the
for
sufficiency
of
participating
street gang and fraudulent schemes and artifices.
12
in
the
evidence
a
criminal
¶21
Insufficiency of the evidence occurs when “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)
(citation
omitted).
conviction
can
“[e]vidence
wholly
Substantial
be
either
direct
circumstantial
can
evidence
for
circumstantial
or
required
and
support
differing,
yet
reasonable inferences sufficient to defeat a motion for directed
verdict.”
(App.
State v. Anaya, 165 Ariz. 535, 543, 799 P.2d 876, 884
1990).
In
particular,
elements
such
as
intent
agreement may be proven by circumstantial evidence.
and
State v.
Routhier, 137 Ariz. 90, 99, 669 P.2d 68, 77 (1983); State v.
Willoughby,
181
Ariz.
530,
540,
892
P.2d
1319,
1329
(1995).
Finally, the credibility of witnesses is a matter for the jury.
Soto–Fong, 187 Ariz. at 200, 928 P.2d at 624.
A.
¶22
Participating in a Criminal Street Gang
Montoya argues the trial evidence was not sufficient
to show he participated in a criminal street gang in violation
of A.R.S. § 13-2308(A)(1).
Instead, according to Montoya, the
evidence merely demonstrated his “association” with The Boyz.
We reject Montoya’s argument, finding that substantial evidence
supports Montoya’s conviction for participating in a criminal
street gang, as defined supra ¶ 14.
¶23
A
gang
expert
with
the
Bullhead
City
Police
Department, Officer Viles, testified that Montoya’s “X3” chest
13
tattoo symbolized the “Surenos,” an umbrella group of Southern
California Hispanic gangs, and signified Montoya’s allegiance to
the Mexican Mafia.
Viles stated that once in the Mexican Mafia,
a member is “always tied to [the] gang in one way or another[,]”
and
death
is
membership.
to
the
only
way
to
terminate
one’s
Someone who does manage to exit the gang, according
Viles,
testified
generally
would
that
have
the
Montoya’s
“X3”
tattoo
nickname,
removed.
“Big
Dog,”
Viles
also
signifies
a
“leader of a particular gang.”
¶24
Viles also testified that law enforcement observed a
significant increase in violent gang activity amongst The Boyz
in
2006.
During
this
time,
Montoya
associated
with
known
members of The Boyz, who were photographed with him flashing
gang signs and wearing gang clothing.
Montoya admitted that he
would meet with young men who were members of The Boyz and
mentor them.
¶25
In addition to the evidence showing Montoya was “in
charge” of 1715 and allowed unauthorized access to the property,
E.C. testified that Montoya asked her to buy food for a party,
apparently
at
which
a
violent
jumping-in
ceremony
occurred. 8
E.C. refused, and two days later she was assaulted by members of
The Boyz.
Finally, there was testimony that Randy, Montoya’s
8
According to E.C., Montoya was not at 1715 when the attack
occurred.
14
“employee”
observed
“a
bunch
of
juveniles
.
.
.
[who]
frequent[ed] . . . 1715” vandalizing 1721, the home from which
Montoya and his family had been evicted.
¶26
that
The
Montoya
supervised
criminal
The
foregoing
evidence
intentionally
Boyz
for
objectives,
damage, and assault. 10
the
raises
organized,
purpose
including
reasonable
managed,
of
criminal
promoting
inferences
directed
the
trespass, 9
or
gang’s
criminal
The evidence further raises reasonable
9
Montoya’s acquittal of the criminal trespass charge does
not, as Montoya contends, affect the sufficiency of the evidence
supporting his conviction for participation in a criminal street
gang. Montoya appears to misconstrue “criminal objectives” in §
13-2308 as referencing the criminal activity of the person
accused of violating the statute.
Properly read, the statute
refers to the criminal activity of the criminal syndicate or
gang members who the accused is alleged to be supervising.
Montoya’s apparently related assertion that A.R.S. § 132308(A)(1) required the State to prove Montoya used the juvenile
gang members to themselves organize, manage, direct, supervise,
or finance a criminal syndicate, is without merit. The statute
does not restrict a subject minor’s criminal conduct to the
activities set forth in § 13-2308(A)(1). See A.R.S. § 13-2308(C)
(“A person who violates subsection A, paragraph 1, 2, 3 or 4 of
this section for the benefit of, at the direction of or in
association with any criminal street gang, with the intent to
promote, further or assist any criminal conduct by the gang, is
guilty of a class 2 felony.”) (emphasis added).
Accordingly,
the State correctly construed the statute as imposing criminal
liability on Montoya if he assisted The Boyz in their criminal
trespassing at 1715.
10
Citing State v. Tocco, Montoya asserts that the elements of
“criminal syndicate” require proof that the defendant acts,
knowing or intending that his conduct will further the criminal
objectives of the criminal syndicate, violating any felony
statute of this state on a continuing basis.”
156 Ariz. 110,
115-16, 750 P.2d 868, 873-74 (App. 1986) (internal quotations
15
inferences that this was “for the benefit of, at the direction
of or in association with” The Boyz.
See A.R.S. § 13-2308(G).
Thus, there is not “a complete absence of probative facts to
support the conviction.”
at 624.
Soto–Fong, 187 Ariz. at 200, 928 P.2d
Moreover, we construe all reasonable inferences raised
by the evidence against the defendant.
293, ¶ 3, 110 P.3d at 1027.
for
participating
in
a
Manzanedo, 210 Ariz. at
Consequently, Montoya’s conviction
criminal
street
gang
is
based
on
sufficient evidence.
B.
¶27
Fraudulent Schemes and Artifices
Montoya argues his conviction for fraudulent schemes
and artifices should be reversed because the evidence did not
sufficiently show he received a benefit from his unauthorized
“rental” of 1715.
who,
pursuant
to
See A.R.S. § 13-2310(A) (2010) (“Any person
a
scheme
or
artifice
to
defraud,
knowingly
obtains any benefit by means of false or fraudulent pretenses,
representations, promises or material omissions is guilty of a
class 2 felony.”).
¶28
The
term
“benefit”
means
advantage, present or prospective.”
“anything
of
value
A.R.S. § 13-105(3).
or
This
omitted).
Montoya further states that “continuing basis” means
a series, meaning three or more successive events.
On this
record, we find that reasonable evidence admitted at trial
revealed that criminal trespass, criminal damage, and assault,
in addition to the other offenses discussed at trial, constitute
a series of felonies.
16
broad definition
gain.
encompasses
both
pecuniary
and
non-pecuniary
State v. Henry, 205 Ariz. 229, 233, ¶ 15, 68 P.3d 455,
459 (App. 2003).
¶29
Montoya clearly benefitted from renting 1715.
First,
E.C. testified that a family member paid Montoya rent, which
Montoya refused to return when E.C. requested it back.
Second,
J.R. and G.P. testified that they each gave Montoya $500 for
rent at 1715.
Finally, Montoya obtained a non-pecuniary benefit
when he “allowed” fellow gang members to use 1715 as a place to
stay and store their personal belongings.
¶30
The
obtained
a
foregoing
benefit
is
by
substantial
evidence
fraudulently
renting
that
Montoya
out
1715.
Accordingly, sufficient evidence supports Montoya’s fraudulent
schemes and artifices conviction.
III. Evidentiary Rulings
¶31
Montoya challenges two of the trial court’s rulings
admitting
testimony
into
evidence.
He
first
argues
that
evidence of a gang member being stabbed outside 1715 on December
9, 2006, was irrelevant and unduly prejudicial.
On the same
bases,
of
Montoya
also
challenges
the
admissibility
evidence
regarding the contracting without a license allegation, and he
contends this evidence constituted improper prior act evidence.
¶32
We
admissibility
review
of
a
evidence
superior
for
court’s
abuse
17
of
rulings
discretion.
on
the
State
v.
Tucker, 215 Ariz. 298, 313, ¶ 58, 160 P.3d 177, 192 (2007)
(citation omitted).
reasons
given
by
“An abuse of discretion occurs when the
the
court
for
its
decision
are
clearly
untenable, legally incorrect, or amount to a denial of justice.”
State v. Childress, 222 Ariz. 334, 338, ¶ 9, 214 P.3d 422, 426
(App. 2009) (citation omitted).
¶33
To be admissible, evidence must be relevant, and all
relevant evidence is admissible except as otherwise provided by
law.
Ariz. R. Evid. 402.
tendency
to
make
the
Evidence is relevant “if it has any
existence
of
any
fact
that
is
of
consequence more or less probable than it would be without the
evidence.”
State v. Oliver, 158 Ariz. 22, 28, 760 P.2d 1071,
1077 (1988) (citation omitted).
not particularly high.”
Id.
“This standard of relevance is
The evidence need not support a
finding of an ultimate fact; “it is enough if the evidence, if
admitted,
would
render
the
desired
inference
more
probable.”
State v. Paxson, 203 Ariz. 38, 41-42, ¶ 17, 49 P.3d 310, 313-14
(App. 2002) (citation omitted).
¶34
“if
Evidence
its
probative
that
is
value
otherwise
is
danger of unfair prejudice.”
relevant
substantially
is
inadmissible
outweighed
Ariz. R. Evid. 403.
by
the
“Evidence is
unfairly prejudicial only if it has an undue tendency to suggest
a decision on an improper basis, such as emotion, sympathy or
horror.”
State v. Gulbrandson, 184 Ariz. 46, 61, 906 P.2d 579,
18
594 (1995).
Because “[t]he trial court is in the best position
to balance the probative value of challenged evidence against
its potential for unfair prejudice,” it has broad discretion in
deciding whether to exclude evidence as unfairly prejudicial.
State v. Harrison, 195 Ariz. 28, 33, ¶ 21, 985 P.2d 513, 518
(App. 1998), aff'd, 195 Ariz. 1, 985 P.2d 486 (1999).
¶35
“It is only when the evidence is likely to be used for
an impermissible purpose that it can be excluded for prejudice.”
Morris K. Udall et al., Arizona Practice: Law of Evidence § 82,
at 168 (3d ed. 1991).
acts
is
admissible
purpose,
such
as
Under Rule 404(b), “[e]vidence of prior
if
relevant
to
prove
and
motive,
admitted
for
a
opportunity,
proper
intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.”
State v. Beasley, 205 Ariz. 334, 337, ¶ 14, 70 P.2d
463, 466 (App. 2003).
Such evidence is not admissible “to prove
the defendant's propensity to commit the crime.”
State v. Van
Adams, 194 Ariz. 408, 415, ¶ 20, 984 P.2d 16, 23 (1999).
A.
¶36
The Stabbing
Over
Montoya’s
relevance
objection,
Officer
Trebes
testified that on December 9, 2006, he responded to a stabbing
at 1715.
In front of the residence, Trebes and another officer
found “a bunch of broken beer bottles, blood drops all over the
ground, and . . . a knife that [they] believed was involved in
the case.”
At the hospital, Trebes talked with “Mr. Mejia,” a
19
juvenile member of The Boyz, who said he sustained his severe
injuries by falling over a fence.
Mejia did not cooperate “at
all” in the investigation.
¶37
Montoya maintains the above testimony should have been
precluded on relevance grounds because “there was no connection
made to [Montoya], or even to any of the other alleged members
of The Boyz.
1715[.]”
There was only a tenuous connection made to . . .
Montoya
prejudicial,
further
since
this
violence that was tied to
contends
“[t]he
evidence
was
evidence
the
only
was
highly
incident
of
. . . 1715 . . . and which the jury
likely inferred was gang activity.”
¶38
Montoya’s assertions are not supported by the record.
Montoya testified that Mejia was one of the young men (who were
members of The Boyz) he had met with in Bullhead City, and
Officer Trebes testified the scene of the stabbing was “in front
of 1715.”
Montoya
and
Thus, the stabbing was sufficiently “connected” to
1715.
Further,
the
stabbing
was
not
incident” of possible gang-related violence at 1715.
20
the
“only
The record
shows a violent gang initiation ritual occurred there on or near
the same date. 11
Accordingly, we find no abuse of discretion in
admitting evidence of the December 2009 stabbing.
B.
¶39
of
Contracting Without a License
Montoya argues the court improperly allowed evidence
prior
license,
allegations
and
he
against
challenges
him
the
for
contracting
admissibility
of
without
an
a
Arizona
Registrar of Contractors cease and desist order related to those
previous
allegations. 12
Montoya
claims
the
evidence
was
irrelevant bad character evidence, and unfairly prejudicial.
¶40
of
prior
allegations of contracting without a license—allegations
that
involved
We
the
reject
same
Montoya’s
business
argument.
card
Montoya
Evidence
gave
to
E.L.—was
relevant to show that Montoya knew his contracting with E.L. was
unlawful.
therefore,
The
evidence
evidence
of
the
was
not
prior
unduly
allegations
prejudicial,
was
and
admissible.
See Ariz. R. Evid. 404(b) (Evidence of prior acts is admissible
11
Montoya does not explain how, if the stabbing were the only
gang-related
incidence
of
violence
at
1715,
its
unfair
prejudicial effect substantially outweighed its probative value.
See Ariz. R. Evid. 403.
12
Montoya also summarily asserts that the contracting without
a license charge in this case should not have been consolidated
with the other charges. Because he does not provide substantive
argument regarding this purported error, we do not address this
issue. See State v. Sanchez, 200 Ariz. 163, 166, ¶ 8, 24 P.3d
610, 613 (App. 2001) (holding that defendant waived issue that
he failed to develop in his brief).
21
if relevant and admitted for a proper purpose “such as to prove
. . . knowledge, . . . or absence of mistake or accident.”).
IV. Prosecutorial Misconduct
¶41
Finally, Montoya argues his trial was unfair and he
was entitled to a mistrial because the prosecutor engaged in
misconduct
during
opening
statements,
improperly
questioned
witnesses on the stand, and misstated the law and referred to
matters not in evidence during closing arguments.
¶42
“Because the trial court is in the best position to
determine whether an attorney's remarks require a mistrial, we
will not disturb its judgment absent an abuse of discretion.”
Tucker,
215
omitted).
of
“(1)
exists
319,
prosecutorial
misconduct
that
verdict,
at
¶
88, 160
P.3d
at
198
(citation
To succeed on a mistrial motion based on alleged
instances
that
Ariz.
the
thereby
misconduct,
exists
misconduct
denying
and
(2)
could
defendant
a
a
must
reasonable
have
a
defendant
affected
fair
show
likelihood
the
trial.”
jury’s
State
v.
Morris, 215 Ariz. 324, 335, ¶ 46, 160 P.3d 203, 214 (2007)
(quotations omitted).
To warrant reversal, “[t]he misconduct
must
and
be
so
pronounced
persistent
that
it
permeates
the
entire atmosphere of the trial’” Id. (quotations omitted).
As
for instances of misconduct to which Montoya did not object at
trial, we review only for fundamental error.
State v. Lamar,
205 Ariz. 431, 441, ¶ 50, 72 P.3d 831, 841 (2003).
22
A.
¶43
Opening Statements
After
opening
statements
concluded,
Montoya
unsuccessfully moved for a mistrial based on the prosecutor’s
forecast during his opening that the jury would hear evidence of
criminal conduct by The Boyz, including incidents where two gang
members were shot.
¶44
denying
The
trial
Montoya’s
court
did
mistrial
not
abuse
motion,
its
because
discretion
the
in
prosecutor’s
comments, even if improper, were not so prejudicial as to deny
Montoya
a
statement,
fair
he
trial.
referred
During
to
the
defense
counsel’s
prosecutor’s
opening
statements
and
informed the jury it would hear no evidence that Montoya was
involved
with
those
crimes,
crimes you will hear about.”
and
stated,
“Those
are
not
the
Defense counsel’s statements, in
conjunction with the court’s instructions that the jury was to
consider
only
statements
the
evidence
of
the
attorneys
potential prejudice.
presented
were
to
not
it
and
evidence,
that
the
cured
any
See State v. Bowie, 119 Ariz. 336, 339-40,
580 P.2d 1190, 1193-94 (1978) (“Any possible prejudice from the
opening
statement
was
overcome
by
the
court’s
cautionary
instructions that evidence did not come from the attorneys and
that the verdict must be determined only by reference to the
evidence . . . .”).
23
B.
¶45
Questioning Witnesses
While questioning one of the officers who accompanied
E.L. to 1715 when Montoya was arrested, the prosecutor asked the
court
if
Montoya
he
could
ask
subsequently
the
witness
how
for
mistrial,
moved
a
Montoya
left
1715.
arguing
the
prosecutor’s question implied that Montoya left 1715 in a patrol
car.
The court denied the motion.
¶46
The
Montoya’s
court
request
acted
for
a
within
its
mistrial
discretion
because
the
in
denying
prosecutor’s
request to the court for permission to ask a question of a
witness
was
not
improper.
Further,
even
assuming
the
jury
inferred from the question that Montoya left 1715 in a patrol
car, we fail to see how this prejudiced Montoya.
Other admitted
evidence clearly showed that Montoya left 1715 in a patrol car
because he was under arrest.
¶47
court
Montoya
sustained
also
points
objections
to
to
several
the
instances
prosecutor’s
where
questions
the
of
various witnesses and argues prosecutorial misconduct occurred.
We disagree that questions successfully objected to constitute
misconduct or that Montoya was prejudiced, especially in light
of the court’s instruction to the jury to disregard any question
and answer for which the court sustained an objection. See State
v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006)
(stating jurors are presumed to follow instructions); State v.
24
Murray, 184 Ariz. 9, 34−35, 906 P.2d 542, 567−68 (1995) (holding
that
defendant
suffered
no
demonstrable
prejudice
from
a
witness’s comment which implied that the defendants were in jail
after
being
arrested).
Consequently,
we
find
no
reversible
error.
C.
¶48
Closing Arguments
Montoya
highlights
several
comments
made
by
the
prosecutor during closing arguments that allegedly referred to
matters not in evidence and misstated the law.
Montoya did not
object to these statements or otherwise bring them to the trial
court’s attention; therefore we review for fundamental error.
Lamar, 205 Ariz. at 441, ¶ 50, 72 P.3d at 841.
¶49
We find that no fundamental error occurred.
Montoya’s
assertion
that
the
prosecutor
“insinuated”
First,
he
had
evidence of Montoya’s guilt but could not present it because
witnesses were too intimidated to testify is not supported by
the
record.
The
record
instead
reveals
that
the
prosecutor
challenged the credibility of testimony by witnesses who did
testify but were arguably afraid to directly implicate Montoya.
The prosecutor
did
not
engage
in
misconduct
by
referring
to
testimony that was not in evidence.
¶50
Montoya next argues that A.R.S. § 13-2308(B) prohibits
a conviction based on accomplice liability, thus the prosecutor
improperly argued Montoya was guilty as an accomplice for “all
25
of the crimes . . . imputed to the gang.”
construes the statute and the record.
Montoya incorrectly
Section 13-2308(B) does
not bar accomplice liability in all cases; rather, it prohibits
a
conviction
based
on
accomplice
liability,
“unless
[the
accused] participate[d] in violating this section in one of the
ways specified.”
not
argue
Montoya
A.R.S. § 13-2308(B).
was
guilty
of
the
The prosecutor also did
crimes
“imputed
to
the
gang.” Indeed, the prosecutor specifically stated Montoya was
not on trial for committing those offenses.
¶51
Montoya also contends the prosecutor misstated the law
by arguing Montoya’s guilt could be based on his using a minor
to commit any offense in the criminal code.
We have already
determined that the State’s position was correct regarding this
element of the offense of participating in a criminal street
gang.
No misconduct occurred on this basis.
26
CONCLUSION
¶52
For the foregoing reasons, Montoya’s convictions and
sentences are affirmed.
/s/
_________________________________
MICHAEL J. BROWN, Judge
CONCURRING:
/s/
___________________________________
MAURICE PORTLEY, Presiding Judge
/s/
___________________________________
MARGARET H. DOWNIE, Judge
27
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