State v. Orozco-Quesada

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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 DIVISION ONE FILED: 10/27/2011 RUTH A. WILLINGHAM, CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) ARMANDO CARLOS OROZCO-QUESADA, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 10-0547 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-181273-001 DT The Honorable Margaret R. Mahoney, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Sharmila Roy Attorney for Appellant Laveen D O W N I E, Judge ¶1 Armando Carlos Orozco-Quesada timely appeals his convictions for kidnapping and theft of credit card or obtaining a credit Revised card by Statutes fraudulent means ( A.R.S. ) in sections violation of and 13-1304 Arizona -2102. Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has searched the record, found no arguable question of law, and asks that we review the record for fundamental error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Orozco-Quesada persona. did not file a supplemental brief in propria On appeal, we view the evidence in the light most favorable to sustaining the convictions. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981). FACTS AND PROCEDURAL HISTORY ¶2 One morning in December 2007, J.L. left his house for work. His wife L.O. followed, carrying their five-year-old son, while two older children remained in the house. J.L. saw Orozco-Quesada and two other men exit a van parked across the street from his house. Orozco-Quesada pointed a gun at J.L., and the men ran toward him. L.O. saw Orozco-Quesada point a gun at J.L. and watched the men struggle before running back into the house. The men forced J.L. to the ground, and Orozco- Quesada pointed the gun at him. J.L. was forced into the van. L.O. watched from the living room window as the van drove away. L.O. called the police, who arrived in marked vehicles and put yellow tape around the house. 2 ¶3 Inside the van, J.L. s hands were bound. Orozco- Quesada told J.L. he would shoot him in the head if J.L. looked at him. J.L. heard the men speak Spanish, which he understood, with a Cuban accent. ¶4 The men took J.L. out of the van and Orozco-Quesada pointed a gun at him as they directed him toward an apartment, where a woman opened the door. hands remained bound. The J.L. was blindfolded and his men took J.L. s wallet, which contained bank cards, identification, and family pictures, and his cell phone. the operation Orozco-Quesada told J.L. he was the boss of and advised J.L. to cooperate or [he] wasn t going to get out of there and threatened to take care of J.L. s family if he did not cooperate. $50,000 for J.L. s release. Orozco-Quesada demanded Orozco-Quesada asked J.L. for his bank card PIN, which J.L. gave him. ¶5 J.L. was able to move his blindfold so he could see. A few hours after his abduction, J.L. saw Orozco-Quesada enter the apartment holding a gun. He was angry and told J.L. he was going to have to kill him because J.L. s house was full of police, and the men were unable to negotiate with L.O. The other men told Orozco-Quesada to wait until night to kill J.L. so they could get rid of him under cover of darkness. Orozco- Quesada asked J.L. what he could do to save his life, and J.L. said he might be able to raise $20,000 by refinancing his house. 3 J.L. began to explain his financial situation and negotiate with Orozco-Quesada. Over the course of the day, J.L. and Orozco- Quesada continued to talk about how much money J.L. could raise. Eventually, Orozco-Quesada agreed to let J.L. go if he dropped $25,000 in a dumpster the next day. Orozco-Quesada gave J.L. specific instructions about the money drop and threatened to kill J.L. s family one by one, starting with his youngest son, if J.L. did not comply. The men drove J.L. to a convenience store, where they released him. ¶6 J.L. agreed to cooperate with the police and dropped a red shoe box wrapped in duct tape at the dumpster in accordance with Orozco-Quesada s men, including instructions. Orozco-Quesada, approached the drop site. Detectives scope out the watched area as three they They watched Orozco-Quesada peek[] over a wall and then jump the wall, pick up the box, and jump back over the wall. A detective followed the men as they walked away and heard Orozco-Quesada say there was no money in the box. The detective ordered the men to get on the ground, but they dropped the opened shoe box and fled; a foot pursuit ensued. Officers found Orozco-Quesada hiding in a nearby apartment and arrested him. A second suspect was also apprehended ( co- defendant ), but the third man was never found. ¶7 At the police station, Orozco-Quesada was searched. Officers found car keys and duct tape with paper on it in his 4 pockets. Detectives took the keys to the apartment building near the drop site and located a black van by activating the remote car alarm. Officers conducted a warranted search of the van and found a bank receipt on the floor between the driver and passenger seats. Behind an interior quarter panel, officers found a gun holster, magazine, bullets, and J.L. s bank card and ID. They also found a phone bill and passport in the name of co-defendant. ¶8 Orozco-Quesada was indicted for kidnapping, a class 2 dangerous felony (count 1); theft of a credit card or obtaining a credit card by fraudulent means, a class 5 felony (count 2); and fraudulent use of a credit card, a class 6 felony (count 3). The State alleged aggravating circumstances and other factors it planned to use at sentencing. ¶9 J.L. and L.O. viewed a photo lineup. J.L. immediately picked out Orozco-Quesada, but L.O. could not identify anyone. Before trial, Orozco-Quesada requested a hearing State v. Dessureault, 104 Ariz. 380 (1969). argument, the court denied pursuant to After briefing and Orozco-Quesada s request for a Dessureault instruction at trial. ¶10 An eight-day jury trial ensued. numerous law enforcement officers testified. of the State s case-in-chief, 5 J.L., L.O., and At the conclusion Orozco-Quesada moved for a judgment of acquittal Criminal Procedure. ¶11 pursuant to Rule 20, Arizona Rules of The motion was denied. Orozco-Quesada to the drop site in the black van and collecting the shoe box. He denied knowing ransom. about testified or and admitted participating in going the kidnapping and He testified that an uncle who owed him money called one day and said he was ready to pay the debt. The uncle told Orozco-Quesada that co-defendant would pick him up and take him to a dumpster, where he could retrieve some money, take what he was owed, and Orozco-Quesada give the remainder suspected the to money co-defendant. was gleaned Although from illegal activity, he complied with his uncle s instructions. Orozco- Quesada wearing also testified that an unknown third man, glasses, sat in the back of the van. ¶12 The jury convicted Orozco-Quesada on counts 1 and 2, but did not find count 1 to be a dangerous crime. the State had proved two aggravating factors It also found on each count. Orozco-Quesada was sentenced to an aggravated nine-year term of imprisonment offense. 1 on count 1, to run consecutive to a separate The court ordered three years probation for count 2. 1 Because the sentences were consecutive, the trial court appropriately applied Orozco-Quesada s presentence incarceration credit to the first count. See State v. Jackson, 170 Ariz. 89, 94, 821 P.2d 1374, 1379 (App. 1991). 6 DISCUSSION ¶13 We have read and considered the brief submitted by Orozco-Quesada s counsel and have reviewed the entire record. Leon, 104 Ariz. at 300, 451 P.2d at 881. error. the We find no fundamental All of the proceedings were conducted in compliance with Arizona imposed was present at Rules of within the all Criminal instructed. 2 statutory critical represented by counsel. Procedure, phases range. of and the sentence Orozco-Quesada the proceedings was and The jury was properly impaneled and The jury instructions were consistent with the offenses charged. The record reflects no irregularity in the deliberation process. I. Rule 20 Motion ¶14 A judgment of acquittal is appropriate only when there is no substantial evidence to warrant a conviction. Crim. P. 20. Substantial evidence is such Ariz. R. proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant s guilt beyond a reasonable doubt. (1990) State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (citation insufficiency of omitted). the Reversible evidence occurs 2 only error where based there is on a An initial attempt to select a jury was flawed, and a mistrial was granted. Orozco-Quesada moved to dismiss the indictment on double jeopardy grounds, which the trial court denied, and Orozco-Quesada sought special action review by this Court. Although we accepted jurisdiction, we denied relief. 7 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). In the case at bar, the State presented substantial evidence of guilt. A. Count 1 ¶15 found The jury found Orozco-Quesada guilty of kidnapping and that offense the involved State the proved two infliction aggravating or threatened factors: infliction serious physical injury and the presence of accomplices. person commits kidnapping by knowingly the restraining of A another person with the intent to . . . [h]old the victim for ransom. A.R.S. § 13-1304(A)(1). ¶16 point J.L. and L.O. testified that J.L. was abducted at gun by Orozco-Quesada blindfolded and bound and for two other approximately men, 12 who held hours. him J.L. testified he had numerous opportunities to see Orozco-Quesada before being blindfolded surreptitiously testified he and adjust blindfold. recognized his after Orozco-Quesada s voice as the person who kidnapped [him]. he was able Additionally, voice as the to J.L. same He further testified that Orozco-Quesada was the self-described boss, who pointed the gun at him and threatened to shoot him in the head and to take care of his family if J.L. did not comply with his ransom demand. J.L. also described the on-going negotiations to let 8 [him] live after Orozco-Quesada angrily announced he would kill him, and their ultimate agreement that J.L. would pay $25,000 for his release. Based on the evidence presented, reasonable jurors could have found Orozco-Quesada guilty of kidnapping. B. ¶17 Count 2 The jury found Orozco-Quesada guilty of theft of a credit card or obtaining a credit card by fraudulent means and also found two aggravating factors: the offense was committed for pecuniary gain and involved an accomplice. A person commits theft of a credit card or obtaining a credit card by fraudulent means if the person . . . [c]ontrols a credit card without the cardholder s or issuer s consent through theft or theft by extortion. A.R.S. § 13-2102(A)(1); see also A.R.S. §§ 13-1802(A)(1) (a person commits theft by controll[ing] property of another property ), with intent 13-1804 (a to deprive person the commits other theft person by of such extortion by knowingly obtaining property by threatening to cause physical injury to anyone). ¶18 J.L. testified that the men took his wallet, which contained bank cards, and Orozco-Quesada demanded his debit card PIN access number. left the apartment He further testified that Orozco-Quesada after obtaining J.L. s credit cards. Officers testified there were nine attempts to withdraw money using J.L. s debit card and three attempts to use his credit 9 card during the time J.L. was held captive. J.L. s credit card and an ATM receipt showing a withdrawal from his account were found in the van. Orozco-Quesada possessed the van key and admitted he was a passenger in it. J.L. specifically testified he did not give permission for the men to take or use his bank card. ¶19 At depicting trial, persons the State wearing introduced sunglasses during the hours he was held captive. using surveillance J.L. s photos bank cards Two pairs of sunglasses were found in the van, and one pair at the apartment patio where Orozco-Quesada was taken into custody. Orozco-Quesada wore sunglasses when he picked up the shoe box, and he testified the third person in the van was wearing glasses. a reasonable trier of fact could find Given these facts, that Orozco-Quesada intended to control the bank cards without J.L. s consent. To the extent conflicting evidence was presented, and discrepancies in J.L. s and L.O. s accounts were brought out at trial, it is the jury s function to weigh the evidence as a whole, to resolve any inconsistencies therein, and then to determine whether or not a reasonable doubt exists. State v. Money, 110 Ariz. 18, 25, 514 P.2d 1014, 1021 (1973). CONCLUSION ¶20 Counsel s We affirm Orozco-Quesada s obligations pertaining 10 conviction to and sentence. Orozco-Quesada s representation in this appeal have ended. Counsel need do nothing more than inform Orozco-Quesada of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584- 85, 684 P.2d 154, 156-57 (1984). Orozco-Quesada shall have thirty On the court s own motion, days from the date of this decision to proceed, if he desires, with an in propria persona motion for reconsideration or petition for review. /s/ MARGARET H. DOWNIE, Presiding Judge CONCURRING: /s/ PETER B. SWANN, Judge /s/ DONN KESSLER, Judge 11

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