State v. Baltes

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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. DARREN LEE BALTES, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 07/28/2011 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-CR 10-0090 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. CR-2009-00215 The Honorable Rick A. Williams, Judge CONVICTIONS AND SENTENCES AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Jill L. Evans, Mohave County Appellate Defender By Jill L. Evans, Appellate Defender Attorneys for Appellant Kingman Darren Lee Baltes Appellant J O H N S E N, Judge Tucson ¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d conviction on 878 two (1969), counts of following Darren Lee attempted Baltes s second-degree murder, three counts of aggravated assault and one count of burglary in the first degree. Baltes s counsel has searched the record on appeal no and frivolous, error. found and asks arguable us to question search the of law record that for is not fundamental See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Baltes filed a supplemental brief raising several issues, which we address below. After reviewing the entire record, we affirm Baltes s convictions and sentences. FACTS AND PROCEDURAL HISTORY ¶2 Disturbed that L., his long-time romantic partner, had begun a relationship with E., Baltes entered the home in which L. was staying, found her in bed with E., and struck E. in the face. 1 After wrestling with E. for a few minutes, withdrew, walked to his car and retrieved a rifle. Baltes He then re- entered the house and shot E., L. and the owner of the home multiple times. 1 Upon his arrest, he told police, I thought in Upon review, we view the facts in the light most favorable to sustaining the jury s verdicts and resolve all inferences against Baltes. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 Arizona you could shoot the man . . . that was [having sex with] your old lady. ¶3 The jury convicted Baltes of both aggravated assault and attempted second-degree murder with respect to L. and to E. The court imposed concurrent sentences of 7.5 years and 10.5 years, respectively, on the charges involving L., and the same concurrent sentences on the charges involving E., and ordered the two pairs of sentences to run consecutively. imposed another aggravated consecutive assault of the sentence woman who of 9 owned The court also years the for home, the and a concurrent 8-year sentence on the burglary charge. ¶4 to Baltes timely appealed. Article Arizona 6, Revised Section 9, Statutes of We have jurisdiction pursuant the ( A.R.S. ) Arizona Constitution, sections and 12-120.21(A)(1) (2003), 13-4031 (2010) and -4033(A)(1) (2010). 2 DISCUSSION A. ¶5 was Fundamental Error Review. The record reflects Baltes received a fair trial. represented by counsel at all stages of the against him and was present at all critical stages. 3 2 Absent material revisions after the date offense, we cite a statute s current version. 3 of He proceedings The State an alleged Although Baltes was not present at the restitution hearing, his counsel waived his presence. 3 presented direct convict. The jury was properly comprised of 12 members. court properly evidence instructed sufficient the jury to on allow the the jury elements of to The the charges, the State s burden of proof and the necessity of a unanimous verdict. The jury returned a unanimous verdict. The court received and considered a presentence report, addressed its contents during the sentencing hearing and imposed legal sentences on the crimes of which Baltes was convicted. B. Issues Raised by Baltes. ¶6 Baltes first argues the indictment was constitutionally infirm. The original indictment against Baltes alleged three counts of attempted first-degree murder. On October 1, 2009, more than two months prior to trial, the grand jury handed down a new indictment charges. adding Without the objection, aggravated the assault court then and burglary dismissed the original indictment. ¶7 Pursuant to Arizona Rule of Criminal Procedure 13.5(b), absent the defendant s consent, a charge may be amended only to correct mistakes of fact or remedy formal or technical defects. Rule 13.5(b) is prophylactic in nature; its purpose is to ensure the defendant has notice of the charges against him. Freeney, 223 (2009). A Ariz. 110, violation 114, of ¶¶ Rule 4 25-26, 13.5(b), 219 P.3d however, State v. 1039, does 1043 not necessarily infringe on a defendant s Sixth Amendment rights. Id. at ¶ 25. ¶8 Assuming constituted a without violation deciding of that Rule the 13.5(b), new we indictment review for fundamental error because Baltes did not raise this issue prior to this appeal. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental error review requires the defendant to establish that fundamental error occurred and that it caused him prejudice. ¶9 Id. at ¶ 20. Baltes cannot satisfy this standard because there is no indication in the record that the new indictment prejudiced his defense. As noted, the indictment was issued two months before the start of his trial. Moreover, the charges contained in the new indictment stemmed from the same incident that underlay the original indictment. Under the circumstances, the new indictment did not violate Baltes s due-process notice rights. See Freeney, 223 Ariz. at 114, ¶ 27, 219 P.3d at 1043. 4 ¶10 Baltes next asserts that his double-jeopardy rights were violated in that he will be punished twice in connection with his aggravated 4 convictions assault for attempted involving L. and second-degree E. A murder violation of and the To the extent that Baltes means to argue that initialed handwritten entries on the October 1 indictment rendered it constitutionally invalid, we are aware of no authority to support that assertion. 5 prohibition against reversible error. double jeopardy constitutes fundamental, See State v. Price, 218 Ariz. 311, 313, ¶ 4, 183 P.3d 1279, 1281 (App. 2008). ¶11 To the extent that the aggravated assault and attempted second-degree murder convictions involving either of the victims were based on the same act, the superior court properly imposed concurrent rather than consecutive sentences for each pair of crimes. See A.R.S. § 13-116 (2010). Therefore, contrary to Baltes s argument, he will be punished just once, not twice, for the acts he committed against each of the victims. extent that Baltes means rights are violated by to the argue that consecutive his To the double-jeopardy sentences the court imposed in connection with each pair of crimes, that argument also is unfounded. See State v. Gordon, 161 Ariz. 308, 313, 778 P.2d 1204, 1209 (1989) (single act that harms multiple victims may be punished by consecutive sentences). ¶12 Nor violated by against L. were the and Baltes s pair E., of rights convictions respectively. against double arising Double from jeopardy jeopardy his is acts not implicated when each of two offenses contains an element not contained in the other. State v. Sanders, 205 Ariz. 208, 222, ¶ 65, 68 P.3d 434, 448 (App. 2003) (citing United States v. Dixon, 509 U.S. 688, 696 (1993)). 6 Attempted second-degree murder requires a person to intentionally or knowingly engage in a course another. the of conduct planned to culminate in A.R.S. §§ 13-1001 (2010), -1104 (2010). indictment, aggravated assault requires the death of As charged in a person to intentionally, knowingly or recklessly cause physical injury to another using a deadly weapon or dangerous instrument. A.R.S. §§ 13-1203(A)(1) (2010), -1204(A)(2) (2010). ¶13 him To the extent that Baltes argues it was impossible for to commit attempted second-degree murder committing aggravated assault, we disagree. without also Baltes could have been convicted of attempted second-degree murder for the acts he committed that were aimed at carrying out the attacks on L. and E., but prior to actually inflicting the injuries on which the aggravated assault convictions were based. ¶14 Next, Baltes contends that because he was acquitted of attempted murder in connection with the shooting of the owner of the home, there was insufficient evidence to support the jury s guilty verdict as to the other attempted second-degree murder charges. The record does not support this assertion. testified he intentionally shot all three victims. Baltes This is sufficient evidence to support the two attempted second-degree murder convictions. Furthermore, consistency between the verdicts on the several counts of an indictment is unnecessary. 7 State v. Zakhar, 105 Ariz. 31, 32, 459 P.2d 83, 84 (1969). Inconsistency within the verdicts may reflect a number factors, such as jury-room compromises or leniency. of Id.; see also State v. DiGiulio, 172 Ariz. 156, 162, 835 P.2d 488, 494 (App. 1992) ( There is no constitutional requirement that verdicts be consistent. ). ¶15 Baltes further argues the court denied him a viable defense arising from the fact that his long-time relationship with L. created a common-law marriage, which he seems to argue gave him Baltes s the right argument to to shoot be E. that (and/or his L.). inability We to construe assert the existence of a common-law marriage prejudiced him in that he was not permitted to give the jury a full justification for why he shot his wife and her lover. ¶16 This argument has no merit. common-law marriages. See A.R.S. Arizona does not recognize § 25-111 (2007); Smith v. Mangum, 155 Ariz. 448, 450 n.1, 747 P.2d 609, 611 (App. 1987). Even so, Baltes was not denied the opportunity to present L. as his wife. His defense counsel consistently referred to L. as Baltes s wife. The jury heard evidence that L. and Baltes had a 19-year relationship; that they had a child together; that they cohabitated; that they split bills and had joint bank accounts; 8 and that they generally conducted themselves as if they were married. ¶17 Baltes also argues he received an unconstitutionally enhanced sentence because he could not have known the rules being applied assault. to enhance Ignorance criminal liability. of his the sentence law, on Count however, is 7 no aggravated defense to A.R.S. § 13-204 (2010); State v. Soltero, 205 Ariz. 378, 380, ¶¶ 7-8, 71 P.3d 370, 372 (App. 2003). ¶18 Baltes further contends it consecutive sentences for his crimes. Procedure 26.13, multiple offenses otherwise. 1301, 1308 however, allows unless the was error to impose Arizona Rule of Criminal consecutive judge sentences expressly for directs See State v. Girdler, 138 Ariz. 482, 489, 675 P.2d (1983) (decision to impose consecutive sentences rests with the discretion of the superior court). ¶19 Finally, Baltes argues that the evidence was insufficient to prove his intent to commit aggravated assault with a deadly weapon and that [t]here was no evidence to prove attempted murder by premeditation. Baltes was convicted of attempted second-degree murder; premeditation is not an element of this offense. contains See A.R.S. § 13-1104. sufficient evidence to aggravated assault. 9 prove Moreover, the record his intent to commit CONCLUSION ¶20 We have reviewed the entire record for reversible error and find none. ¶21 See Leon, 104 Ariz. at 300, 451 P.2d at 881. After the filing of this decision, defense counsel s obligations in this appeal have ended. Defense counsel need do no more than inform Baltes of the outcome of this appeal and his future options, unless, upon review, counsel finds an issue appropriate for submission petition for review. to the Arizona Supreme Court by See State v. Shattuck, 140 Ariz. 582, 584- 85, 684 P.2d 154, 156-57 (1984). On the court s own motion, Baltes has 30 days from the date of this decision to proceed, if he wishes, with a pro per motion for reconsideration. Baltes has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ MARGARET H. DOWNIE, Judge /s/ JON W. THOMPSON, Judge 10

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