State v. Alejandro
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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 JEROME ALEJANDRO,
Appellant.
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DIVISION ONE
FILED: 09/20/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
1 CA-CR 10-0083
DEPARTMENT D
MEMORANDUM DECISION
(Not for Publication Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2008-107538-001DT
The Honorable Cari A. Harrison, Judge
AFFIRMED
________________________________________________________________
Thomas C. Horne, Attorney General
By
Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
and Angela Kebric, Assistant Attorney General
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
Phoenix
By
Karen M. Noble, Deputy Public Defender
Attorneys for Appellant
________________________________________________________________
G E M M I L L, Judge
¶1
Defendant Frank Alejandro appeals his conviction and
sentences on three counts of aggravated assault.
For reasons
set forth below, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2
On appeal we must view the facts in the light most
favorable to sustaining the jury’s verdicts, and therefore we
resolve all reasonable inferences in support of the verdicts
against Alejandro.
See State v. Vandever, 211 Ariz. 206, 207
n.2, 119 P.3d 473, 474 n.2 (App. 2005).
Evidence at trial
revealed the following facts.
¶3
In
several
the
early
undercover
morning
officers
hours
were
of
February
surveilling
a
including a Verizon Wireless store in Glendale.
1,
shopping
2008,
area
The presence of
the officers at this time and location was based on reports of
several burglaries in the vicinity.
area a high crime area.
sport
utility
other
cars
vehicle
were
in
interest in the SUV.
The police considered the
The undercover officers noticed a white
(“SUV”)
the
containing
area,
and
this
three
piqued
persons.
the
No
officers’
The SUV left the area but returned a few
minutes later and then departed again at high speed.
Shortly
thereafter, the officers were put on notice that a silent alarm
was going off at the Verizon store.
¶4
The undercover officers made a radio call to uniformed
police describing the SUV and its location.
Three uniformed
officers, in three separately marked police cruisers, waited at
2
the police station for the SUV to pass by.
The SUV passed their
location speeding, and without its headlights on.
uniformed
followed
officers
the
turned
SUV.
on
While
their
being
sirens
and
pursued,
the
The three
flashers
SUV
and
entered
a
residential neighborhood, and then one or more people within the
SUV began shooting at the three officers.
their
vehicles
neighborhood
to
avoid
cul-de-sac
occupants had fled.
being
and
shot.
the
The officers slowed
The
officers
SUV
stopped
discovered
in
that
a
the
Officers located the passenger, who was
Alejandro’s brother, and they located Alejandro hiding within a
private residence.
The other occupant got away.
At the scene,
officers located some firearms and shell casings.
Bullet slugs
were also recovered from two residences in the area.
¶5
Alejandro was indicted on one court of burglary of the
Verizon store; one count of unlawful flight from law enforcement
vehicles; one count of criminal trespass; and three counts of
aggravated assault, class 2 felonies.
pled
guilty
to
trespass charges.
out
charges
stipulations.
the
burglary,
Prior to trial, Alejandro
unlawful
flight,
and
criminal
Alejandro attempted to stipulate to the pled-
several
times
but
the
State
refused
the
However, during voir dire, the pleas to the other
charges were read to the jury.
¶6
facts
During
concerning
trial,
undercover
officers
the
surveillance
prior
3
testified
to
the
to
the
burglary.
Detective
G.
testified
about
his
involvement
with
the
investigation and he discussed his participation with a repeat
offender program.
chase
and
Uniformed officers testified about the police
apprehension
of
Alejandro.
Alejandro was apprehended was admitted.
view
a
portion
of
the
Verizon
Testimony
about
where
The jury was allowed to
Wireless
security
recorded the burglary by the three men.
video
that
The State based the
aggravated assault charges on accomplice liability.
¶7
that
As the trial closed, the jury was given an instruction
inserted
elements
the
an
“or”
State
instead
must
of
prove
an
“and”
to
convict
aggravated assaults as class 2 felonies.
when
listing
Alejandro
the
for
The jury convicted
Alejandro on all three counts of aggravated assault, class 2
felonies,
and
found
the
counts
dangerous.
Alejandro
was
sentenced to twenty-one years in prison for each count, to be
served consecutively.
Alejandro timely appeals.
This court has
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 (2010), and 13–4033(A) (2010).
Alejandro raises the following three issues on appeal.
ADMISSIBILITY OF EVIDENCE
¶8
discretion
Alejandro
when
it
contends
allowed
that
the
testimony
trial
from
court
abused
police
its
officers
concerning surveillance of the area near the burglarized Verizon
4
store,
and
testimony
from
a
police
detective
concerning
his
participation in a repeat offender program.
¶9
We review admission of evidence based on whether the
trial court abused its discretion.
State v. Ayala, 178 Ariz.
385, 387, 873 P.2d 1307, 1309 (App. 1994).
will
not
“second
guess
a
trial
An appellate court
court’s
admissibility or relevance of evidence.”
ruling
on
the
State v. Spreitz, 190
Ariz. 129, 146, 945 P.2d 1260, 1277 (1997) (citation omitted).
Surveillance Officers’ Testimony
¶10
Alejandro argues that allowing undercover officers to
testify why they were surveilling the area near the burglary was
impermissible
character
pursuant
Arizona
to
evidence
Rules
of
relating
Evidence
to
prior
404(b)
bad
acts
(“Rule(s)”).
According to Alejandro, this testimony also had potential to
mislead the jury into thinking that he was the one responsible
for the prior burglaries in the area, which he argued would be
unfairly
prejudicial
under
Rule
403.
Alejandro
did
not
specifically argue Rule 404(b) evidence issues at trial; however
both parties do so on appeal.
Presumably because the issue was
not clearly raised at trial, the court made no specific findings
for
admitting
the
surveillance
officer
testimony
under
Rule
404(b). 1
1
Rule 404(b) does not permit admission of prior bad act
evidence to prove the defendant’s character “in order to show
5
¶11
An objection to the undercover surveillance evidence
was made by an oral motion in limine concerning relevance and
prejudicial
effect.
Regarding
the
surveillance
evidence,
counsel for Alejandro argued, “I don’t know if it’s necessary
because the officers that are involved in the assault counts,
they
are
not
surveilling
officers.”
Alejandro
further
specifically argued that “the reason the police were surveilling
the Verizon Wireless store where the burglary happened, . . . is
because there were reports of prior burglaries . . . .
[T]here
was no evidence that the defendant . . . [was] committing the
other burglaries.”
He further argued “this is just another
example of unnecessarily prejudicial evidence.”
The State had
an opportunity to respond to this issue and it also focused on
prejudicial
effect.
As
already
noted,
Alejandro
made
no
specific objection regarding 404(b) or prior bad act evidence at
trial or by motion. 2
action in conformity therewith.”
There are some exceptions;
prior bad act evidence is allowed to show “motive, opportunity,
intent, preparation, plan, knowledge, [and] identity. . . .”
Rule 404(b).
2
We have examined the portion of the transcript referenced by
Alejandro in his opening brief — specifically, the transcript
from April 14, 2009 — and no mention was made of Rule 404(b) or
“prior bad acts.”
It is the responsibility of the parties to
identify the portion or portions of the record upon which they
rely.
See ARCAP 13(a)(2) and (6).
Additionally, our
independent review has not revealed any such argument or
objection by Alejandro based on Rule 404(b) or “prior bad acts.”
6
¶12
Our supreme court has explained that:
A party must make a specific and timely
objection at trial to the admission of
certain evidence in order to preserve that
issue for appeal. A general objection, such
as ‘irrelevance,’ will not be sufficient to
preserve the issue for appeal.
Further, an
objection to the admission of evidence on
one ground will not preserve issues relating
to the admission of that evidence on other
grounds.
State v. Hamilton, 177 Ariz. 403, 408, 868 P.2d 986, 991
(App.
1993)
(internal
citations
omitted).
Alejandro
correctly points out that when “a motion in limine is made
and
ruled
upon,
the
objection
raised
in
that
motion
is
preserved for appeal, despite the absence of a specific
objection at trial.”
State v. Burton, 144 Ariz. 248, 250,
697 P.2d 331, 333 (1985) (citation omitted).
However, this
principle is inapplicable here because the objection raised
in the motion was not grounded in Rule 404(b).
Therefore,
we find that the Rule 404(b) issue is waived because it was
not raised at trial.
¶13
Furthermore, even if the Rule 404(b) argument is
deemed preserved, we find no error.
State
that
it
is
not
necessary
to
We agree with the
analyze
the
evidence
under Rule 404(b) because this evidence is intrinsic to the
aggravated
assault
offenses
at
issue.
See
State
v.
Dickens, 187 Ariz. 1, 18 n.7, 926 P.2d 468, 485 n.7 (1996)
7
(citing United States v. Coleman, 78 F.3d 154, 156 (5th
Cir. 1996)).
“Rule 404(b) applies only to extrinsic, not
intrinsic, evidence.”
Id. at 18 n.7, 926 P.2d at 485 n.7
(referencing United States v. Swinton, 75 F.3d 374, 377
(8th Cir. 1996)).
“‘Other act’ evidence is ‘intrinsic’
when evidence of the other act and evidence of the crime
charged
are
‘inextricably
intertwined’
or
both
acts
are
part of a ‘single criminal episode’ or the other acts were
‘necessary preliminaries’ to the crime charged.”
Id. at
18-19 n.7, 926 P.2d at 485-86 n.7 (quoting Coleman, 78 F.3d
at 156); State v. Baldenegro, 188 Ariz. 10, 15-16 (App.
1996).
404(b)
We
conclude,
arguments
inextricably
therefore,
were
that
preserved,
intertwined
and
part
the
of
even
if
events
the
same
the
Rule
here
are
criminal
episode, and thus, intrinsic.
¶14
We next address the preserved Rule 401 and 403
objections.
“‘Relevant’ evidence means evidence having any
tendency
make
to
consequence
to
probable
less
or
evidence.”
the
the
existence
of
determination
probable
any
fact
of
the
than
it
would
was
under
be
that
is
action
without
of
more
the
¶15
Rule 401.
undercover
While
the
officers
area
twice
recognized
surveillance,
the
white
SUV
the
that
Alejandro was driving during the early morning hours when
8
the burglary in question occurred.
Undercover officers saw
the SUV flee the scene at a high rate of speed.
They
provided a description of the SUV to uniformed officers and
uniformed
officers
security alarm.
were
also
alerted
by
the
Verizon
The uniformed officers began pursuing the
white SUV based on the alarm and description.
Alejandro’s
accomplice opened fire on the police from the SUV while
Alejandro
provided
the
evasive
driving.
Thus,
these
earlier facts are relevant to describe the series of events
leading up to and including the aggravated assaults.
¶16
Regarding prejudicial effect, Rule 403 provides:
“Although
relevant,
evidence
may
be
excluded
if
its
probative value is substantially outweighed by the danger
of
unfair
prejudice,
[or]
confusion
of
the
issues.”
Alejandro argued:
The fact that officers had the store area
under
surveillance
because
of
prior
burglaries
in
the
high
crime
area
contributed
nothing
to
the
aggravated
assault
charges
other
than
to
mischaracterize Mr. Alejandro and the others
in the Suburban.
There was no indication
that any of the defendants had been involved
in any prior burglaries in the area.
¶17
Officers’ testified that they were present in the area
where the Verizon store was located “because it had been getting
hit quite a bit with burglaries” and they were “working in an
undercover capacity watching some of the business store fronts.”
9
Alejandro brought out on cross-examination by one officer that
the surveillance team had no knowledge that any burglary was to
take place that morning, nor did they have any knowledge that
Alejandro was involved in the other burglaries in the area.
¶18
Alejandro might have requested a limiting instruction
explaining to the jury that there was no proof that he had
anything
to
do
with
the
previous
burglaries
in
the
area.
“However, the trial court does not err in failing to give a
limiting instruction if trial counsel does not properly request
[such] an instruction.”
State v. Nordstrom, 200 Ariz. 229, 247,
¶ 51, 25 P.3d 717, 735 (2001) (citations omitted).
The record
reveals that a limiting instruction was discussed with the trial
court during a motion in limine, but Alejandro never requested
nor
presented
a
proposed
limiting
instruction
regarding
the
officers’ testimony to the court.
¶19
explain
Alejandro
The surveillance officers’ testimony was probative to
when
the
and
the
events
white
began,
SUV
were
what
transpired,
involved
in
police chase that led to the aggravated assaults.
the
and
why
subsequent
Any prejudice
concerning a possible link to previous burglaries in the area
and Alejandro was de minimis.
Alejandro had an opportunity for
a limiting instruction that was not exercised.
officers
testified
that
police
had
no
Additionally,
information
connecting
Alejandro with the “high crime area” or any previous burglaries
10
nor did they have any expectation that Alejandro was going to be
involved with any burglary that particular morning.
Therefore,
we find that the trial court did not abuse its discretion by
allowing
the
surveillance
officers’
testimony
because
the
testimony was more probative than prejudicial.
Repeat Offender Program Testimony
¶20
Alejandro moved for a new trial on the basis that the
testimony
by
Detective
testified
during
currently
assigned
G.
initial
to
a
was
prejudicial.
direct
Repeat
examination
Offender
Detective
that
Program.
G.
he
was
In
this
program, Detective G. is responsible for conducting undercover
surveillance and trying to apprehend repeat offenders concerning
property crime.
¶21
This issue must also be addressed through the Rule 403
filter:
“Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, [or] confusion of the issues.”
¶22
The testimony elicited by the State from Detective G.
was preliminary in nature.
The State asked Detective G. to
describe his present position and duties.
After his answer, no
further
the
questions
or
answers
mentioned
Repeat
Offender
Program, and no connection was made between Alejandro and the
Program.
Furthermore,
the
trial
court
offered
to
grant
a
limiting instruction to the effect that Detective G.’s “duties
11
at this time involved what has been called the repeat offender
program, that program was not in existence at the time of this
offense, and his being present at this scene or involved in the
investigation has no involvement with that program or with this
defendant.”
Alejandro refused any limiting instruction and did
not make any further inquiry of the matter on cross-examination.
¶23
Even
if
Detective
G.’s
testimony
about
his
current
duties had limited probative value on the aggravated assault
charges and the potential of unfair prejudice, we find no abuse
of discretion in denying Alejandro’s motion for new trial.
See
State v. Spears, 184 Ariz. 277, 287, 908 P.2d 1062, 1072 (1996).
The trial court is in the best position to assess whether such
testimony warrants the significant relief of a new trial. Id.
We agree that Detective G.’s brief mention of his position with
the
police
department
prejudicial
to
at
Alejandro
time
of
and,
trial
would
significantly,
not
likely
Alejandro
be
was
offered the opportunity for a limiting instruction and could
also have established on cross examination that the detective
did not hold his current position at the time of the events at
issue.
On this record, we find no error.
STIPULATION TO PLED COUNTS
¶24
We review admission of evidence based on whether the
trial court abused its discretion.
P.2d at 1309.
12
Ayala, 178 Ariz. at 387, 873
¶25
Alejandro
contends
that
the
trial
court
abused
its
discretion when it admitted evidence of criminal trespass and
evidence of the burglary of the Verizon store, and especially
the store’s surveillance video and the testimony from undercover
officers.
Alejandro
prejudicial
under
argues
Rule
that
403.
this
evidence
was
unfairly
offered
to
stipulate
Alejandro
several times to the facts of the offenses in which he pled
guilty prior to trial.
¶26
The State declined to stipulate.
Both parties rely on State v. Leonard in which this
court
held
that
“the
state
is
not
required
to
accept
a
stipulation when the prejudicial potential of the evidence is
substantially outweighed by the state’s legitimate need to prove
the facts to which the defendant offers to stipulate.”
Ariz. 1, 8, 725 P.2d 493, 500 (App. 1986).
151
A trial court must
perform a Rule 403 balancing to determine final admissibility of
the evidence, however.
stipulate
to
two
Id.
prior
In Leonard, the defendant wanted to
driving
under
the
charges out of the presence of the jury.
499.
was
influence
(“DUI”)
Id. at 7, 725 P.2d at
The State’s purpose for denying the stipulation in Leonard
perceived,
hastily
on
conclude
that
that
record,
‘if
he’s
as
encouraging
done
it
the
before,
now[,] ’” regarding Leonard’s current DUI charge.
“jury
he’s
to
guilty
Id. at 8, 725
P.2d at 500.
¶27
Alejandro wanted the State to stipulate to the facts
13
of
the
unlawful
flight
charge,
criminal trespass charge.
the
burglary
charge,
and
the
All three of these accepted pleas
included details relevant to, and probative of, the aggravated
assault charges.
Those three pleas were entered and the jury
was already on notice of Alejandro’s pleas from voir dire and
opening statements.
Thus, unlike the situation in Leonard, here
there was minimal prejudicial effect because the jury already
knew that this event started with burglary at point A and moved
rapidly to criminal trespass at point D.
included
undercover
surveillance
at
the
The entire episode
location
of
the
burglary, identification of the get-away vehicle, notification
of the actual burglary, notification by undercover officers to
uniformed officers describing the vehicle, the ensuing chase and
unlawful flight, the firing upon the pursuing police officers —
the issue at trial, and finally the apprehension of Alejandro in
a neighborhood home where he had no permission to be.
¶28
If
there
had
been
no
undercover
surveillance
the
morning of the burglary, it is unlikely that there would have
been flight from marked police cars followed by shooting.
The
purpose of the shots and aggravated assaults was, presumably, to
escape or avoid capture and prosecution.
Once Alejandro stopped
the SUV, he subsequently hid from police in a home.
One of the
State’s primary theories of the case was that all of the events
were connected and integral to explain and prove the aggravated
14
assaults.
The
trial
court
balanced
the
theory
and
evidence
against the prejudicial effect and admitted the evidence.
There
was no unfair “done it before, he’s guilty now” prejudice (as in
Leonard) because the details that begin and end this series of
events are material to the State’s case.
was
not
required
to
accept
the
Accordingly, the State
stipulations
proposed
by
Alejandro, and therefore there was no error by the trial court.
JURY INSTRUCTIONS
¶29
On appeal, Alejandro points out an error in the jury
instructions given by the court to guide the jury in determining
if he committed class 2 aggravated assaults.
But Alejandro did
not object at trial to this error in the instructions.
As a
result, he has waived appellate review except for fundamental
error.
See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115
P.3d 601, 607 (2005).
claim
that
fundamental
the
error,
In order for Alejandro to prevail in his
trial
he
court’s
must
prove
instructions
that
a
fundamental
occurred and that the error caused him prejudice.
(holding
that
defendant
carries
the
burden
constituted
of
error
Id. at ¶ 20
persuasion
to
prevent reversal on appeal for matters that are correctable at
the trial level).
An error is fundamental when it is “clear,
egregious, and curable only via a new trial.”
State v. Gendron,
168 Ariz. 153, 155, 812 P.2d 626, 628 (1991).
¶30
A proper instruction defining the elements of class 2
15
aggravated assault would have stated that the jury must find
that the defendant committed actual simple assault under A.R.S.
§ 13–1203A(2) (2010) 3 (“Intentionally placing another person in
reasonable apprehension of imminent physical injury,”) and that
the
defendant
both
(1)
used
a
deadly
weapon
or
dangerous
instrument and (2) knew or had reason to know that the person
assaulted was a peace officer.
and (C) (2010).
See A.R.S. § 13–1204(A)(2), (8),
Instead, the trial court instructed the jury as
follows:
The crime of aggravated
proof of the following:
assault
requires
1. The defendant committed an assault; and
2. The assault was aggravated by at
one of the following factors:
least
The defendant used a deadly weapon or
dangerous instrument, or the defendant knew
or had reason to know that the person
assaulted was a peace officer or someone
summoned and directed by a peace officer
performing official duties.
(emphasis added).
¶31
The State concedes that the trial court erred in this
instruction.
We agree.
This error is regrettable and evidently
overlooked by the court, the prosecutor, and defense counsel.
An instructional error like this may be a fundamental error.
3
We cite to the current version
because no revisions material to
occurred.
16
of the applicable statute
this decision have since
But
we
because,
need
on
not
decide
record,
this
whether
we
the
conclude
error
that
was
fundamental
Alejandro
cannot
demonstrate the prejudice required to warrant reversal of his
convictions, even assuming that fundamental error occurred.
¶32
Determining prejudice under fundamental error review
is a highly fact-based inquiry that the court analyzes on a
case-by-case basis.
at 608.
Henderson, 210 Ariz. at 568, ¶ 26, 115 P.3d
Alejandro must show that a reasonable jury could have
reached a different result had the alleged error in the jury
instruction not occurred.
609.
See id. at 569, ¶ 27, 115 P.3d at
“Jury instructions must be viewed in their entirety when
determining whether they adequately reflect the law.”
State v.
Gallegos, 178 Ariz. 1, 10, 870 P.2d 1097, 1106 (1994) (citing
State v. Haas, 138 Ariz. 413, 425, 675 P.2d 673, 685 (1983)).
¶33
Alejandro argues that it is possible that the jury
determined
only
simple
instruction
permits
aggravating
elements.
assault
conviction
On
occurred
with
these
only
because
facts,
one
of
however,
the
“or”
the
we
two
cannot
conceive that a reasonable jury could fail to find either of the
two elements of (1) use of a deadly weapon and (2) shots fired
at police officers.
¶34
The evidence was overwhelming that shots were fired at
the officers or their patrol cars.
We do not think a reasonable
jury could find that a deadly weapon was not used.
17
The jury
knew from the beginning of trial that Alejandro had pled guilty
to burglary and unlawful flight from a law enforcement vehicle.
Alejandro’s plea of guilty to unlawful flight demonstrates his
knowledge
that
Additionally,
at
the
least
one
officers
police
testified
officer
that
was
their
pursuing.
lights
and
sirens were activated, and Alejandro drove the SUV in an obvious
effort to get away.
find
that
We do not think a reasonable jury could
Alejandro
did
not
know
that
the
people
and
cars
pursuing them and being shot at by his accomplice were police
officers and their patrol cars.
instructional
error
reversible error.
might
be
On a different record, this
fundamental,
prejudicial,
and
But on these facts we do not believe that
Alejandro has demonstrated any prejudice from the error.
¶35
Finally,
we
address
Alejandro’s
regarding his defense of mere presence.
related
argument
Alejandro argued mere
presence while driving the SUV and that he was not doing the
shooting at police officers or otherwise.
defined
mere
presence
as
follows:
The jury instructions
“[t]he
fact
that
the
defendant may have been present or knew that a crime was being
committed does not in and of itself make the defendant guilty of
the crime charged.”
after
proper
liability.
The key here is that the jury determined,
instruction,
that
Alejandro
had
accomplice
He was guilty of the aggravated assaults even though
he was the driver and not the actual shooter.
18
His speeding away
and
evasion
assaults.
of
marked
police
vehicles
was
integral
with
the
The error in the jury instruction defining aggravated
assault did not impact Alejandro’s defense that he was merely
present during an assault and not the actual person committing
the assault.
Therefore, we find no reversible error based on
the interaction of the mere presence defense with Alejandro’s
accomplice liability and the instructional error.
CONCLUSION
¶36
For the foregoing reasons, Alejandro’s convictions and
sentences are affirmed.
___/s/____________________________
JOHN C. GEMMILL, Judge
CONCURRING:
___/s/_____________________________
PETER B. SWANN, Presiding Judge
___/s/_____________________________
JON W. THOMPSON, Judge
19
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