State v. Anton
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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.
DARYL EDWARD ANTON,
Appellant.
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No.
DIVISION ONE
FILED: 09/20/2011
RUTH A. WILLINGHAM,
CLERK
BY: GH
1 CA-CR 10-0560
DEPARTMENT E
MEMORANDUM DECISION
(Not for Publication –
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2009-121098-001 SE
The Honorable Lisa M. Roberts, Judge Pro Tempore
AFFIRMED
Thomas C. Horne, Attorney General
By Joseph T. Maziarz, Assistant Attorney General
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By Spencer D. Heffel, Deputy Public Defender
Attorneys for Appellant
Phoenix
J O H N S E N, Judge
¶1
Daryl
Edward
Anton
appeals
his
conviction
robbery, a Class 2 felony, and the resulting sentence.
reasons that follow, we affirm.
of
armed
For the
FACTS AND PROCEDURAL HISTORY
¶2
The meat manager at a Mesa grocery store noticed Anton
and another man “throwing food into a grocery basket at random.” 1
Suspecting the two men were shoplifting, the meat manager and
the store manager followed as they left the store without paying
for the groceries.
In the parking lot, they saw Anton putting
the groceries into a white car.
As Anton got into the car, one
of the managers grabbed his wrist and told him he was “under
arrest for shoplifting.”
the
car
handgun.
seat
and
pull
This prompted Anton to reach beneath
out
what
the
manager
believed
was
a
When Anton lifted the weapon, it hit the steering
wheel and fell down to the floor.
Anton then yelled to his
companion, “Strap him man, strap him.” 2
The companion lifted up
his shirt “as if he was going to reach in for something,” at
which
point
the
manager
backed
away
quickly
and
let
the
shoplifters leave.
¶3
Approximately 15 minutes later, the police located the
white car parked in an apartment complex less than a mile away.
The officer saw two men who matched the descriptions of the
1
Upon review, we view the facts in the light most favorable
to sustaining the jury’s verdict and resolve all inferences
against Rodriguez.
State v. Fontes, 195 Ariz. 229, 230, ¶ 2,
986 P.2d 897, 898 (App. 1998).
2
An officer testified that the phrase “strap him” is “street
slang or lingo that’s used to refer to someone having a gun,
being strapped with a gun or weapon.
Typically refers to
someone having a gun in their waistband.”
2
shoplifters standing in an open garage near a maroon car.
While
waiting for backup, the responding officers watched Anton as he
“seemed to be getting a little antsy.”
A few minutes later,
Anton left the garage and closed the door behind him, at which
point the police arrested him and the other man.
After securing
the suspects, the police searched the maroon car; in the trunk
they found a gun case containing two handguns and a camouflaged
assault rifle.
¶4
Before
evidence
of
evidence
linked
trial,
the
guns
the
Anton
found
guns
to
moved
in
the
the
in
limine
maroon
crime.
car,
The
to
preclude
arguing
superior
no
court
denied Anton’s motion, and a police officer testified that the
trunk of the maroon car contained “an open rifle box, an AR15
style camouflage rifle” and two pistols.
A photograph of the
guns lying in the trunk of the car also was admitted.
The jury
convicted Anton of one count of armed robbery; he was sentenced
to a term of 15.75 years.
¶5
to
Anton 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). 3
3
Absent material revisions after the date
offense, we cite a statute’s current version.
3
of
an
alleged
DISCUSSION
¶6
The superior court’s decision to admit evidence will
not be disturbed on appeal absent a clear abuse of discretion.
State v. Hensley, 142 Ariz. 598, 602, 691 P.2d 689, 693 (1984).
The court “abuses its discretion when it misapplies the law or
predicates
its
decision
upon
irrational
bases.”
State
v.
Fields, 196 Ariz. 580, 582, ¶ 4, 2 P.3d 670, 672 (App. 1999)
(quoting Blazek v. Superior Court, 177 Ariz. 535, 537, 869 P.2d
509, 511 (App. 1994)).
¶7
Anton argues the superior court abused its discretion
by admitting evidence of the guns found in the maroon car.
He
contends the guns were not relevant to the charge against him
because they were found in a car that undisputedly was not used
in the robbery.
The State argues the guns were relevant because
the jury could reasonably infer that Anton or his accomplice put
one or more of the guns in the maroon car after using them in
the robbery.
¶8
We hold the guns were relevant to the charged crime
because the jury could conclude Anton and his accomplice used
them in the crime.
“When the relevancy of evidence depends upon
the fulfillment of a condition of fact, the court shall admit it
upon, or may admit it subject to, the introduction of evidence
sufficient
condition.”
to
support
Ariz.
R.
a
finding
Evid.
of
the
fulfillment
of
104(b).
In
determining
whether
4
the
evidence
of
a
conditional
fact
pursuant
to
Rule
104(b)
sufficiently supports the relevancy of other evidence, we ask
“whether evidence in the record . . . would permit a reasonable
person to believe” the conditional fact exists.
State v. Plew,
155 Ariz. 44, 50, 745 P.2d 102, 108 (1987) (quoting State v.
LaGrand, 153 Ariz. 21, 28, 734 P.2d 563, 570 (1987)); see also
State ex. rel. McDougall v. Superior Court, 172 Ariz. 153, 156,
835 P.2d 485, 488 (App. 1992).
¶9
In Plew, the defendant claimed he shot the victim in
self-defense
because
the
victim
had
aggressive after ingesting cocaine.
at 106.
call
an
become
hostile
and
155 Ariz. at 48, 745 P.2d
The superior court refused to allow the defendant to
expert
witness
to
testify
that
cocaine
intoxication
often makes people aggressive and able to sustain severe bodily
injuries without feeling pain.
104,
106-07.
The
supreme
Id. at 46, 48-49, 745 P.2d at
court
reversed,
concluding
that
testimony that the victim was under the influence of cocaine at
the time of the shooting (the conditional fact) sufficiently
supported
admission
of
the
behavioral
effects
of
cocaine
evidence).
Id. at 50, 745 P.2d at 108.
¶10
In
the
same
expert’s
on
fashion,
testimony
the
user
regarding
the
(the
relevant
notwithstanding
Anton’s
assertions that the State offered no evidence linking him to the
guns in the maroon car, one of the store managers testified
5
Anton pulled what looked like a gun from beneath the seat of the
car in the store parking lot.
Moreover, in the 15 minutes
between the robbery and the officer’s arrival at the apartment
complex, Anton had time to transfer a gun or guns used in the
robbery
from
responding
the
white
officer
car
to
testified
the
maroon
that
Anton
vehicle,
was
aware
and
one
of
the
officer’s presence at the apartment complex and attempted to
conceal the guns by closing the garage door.
¶11
Based
on
this
evidence,
a
reasonable
juror
could
believe Anton used a gun or guns in the robbery and attempted to
hide them by placing them in the maroon vehicle after the crime.
See Plew, 155 Ariz. at 49, 745 P.2d at 107.
regarding
the
existence
of
guns
at
the
That is, testimony
robbery
sufficiently
supported the conditional fact (Anton used a gun to commit the
robbery)
relevant.
that
made
evidence
of
the
guns
in
the
maroon
car
Accordingly, the superior court did not abuse its
discretion by concluding evidence of the guns in the maroon car
were relevant to the charge against Anton.
See Ariz. R. Evid.
104(b); Plew, 155 Ariz. at 50, 745 P.2d at 108; see also State
v.
Gonzales,
181
Ariz.
502,
511,
892
P.2d
838,
847
(1995)
(discrepancy in evidence goes to the weight of the evidence not
its admissibility). 4
4
Although the store manager testified the suspect pulled a
handgun and not a rifle, Anton did not specifically ask the
6
¶12
Anton cites People v. Henderson, 129 Cal. Rptr. 844
(App.
1976),
unconnected
for
to
the
the
proposition
charged
crime
that
are
evidence
not
of
weapons
admissible.
The
defendant in Henderson was convicted of assault with a deadly
weapon; the appellate court held evidence of a gun not used in
the crime “leads logically only to an inference that defendant
is
the
kind
of
person
who
surrounds
himself
with
deadly
weapons — a fact of no relevant consequence to determination of
the guilt or innocence of the defendant.”
Id. at 851.
In that
case, there was no contention that the gun at issue was used in
the charged offense.
Id. at 850.
By contrast, as we have
explained, the evidence in this case gave rise to an inference
that a gun or guns found in the maroon car were used in the
grocery robbery. 5
court to exclude evidence of the rifle found in the trunk of the
maroon car.
Instead, his oral motion in limine addressed the
general topic of “the weapons” found in the trunk.
On appeal,
he does not suggest that the superior court should have treated
evidence of the rifle found in the trunk of the maroon car any
differently than it treated evidence of the handguns found
there.
5
Anton also cites State v. Poland, 132 Ariz. 269, 281, 645
P.2d 784, 796 (1982), People v. Archer, 99 Cal. Rptr. 2d 230,
238 (App. 2000), Fortt v. State, 767 A.2d 799, 805 (Del. 2001),
and Commonwealth v. Robinson, 721 A.2d 344, 351 (Pa. 1998).
But
in none of these cases was the evidence at issue linked to the
crime.
Poland, 132 Ariz. at 281, 645 P.2d at 796 (weapon
inadmissible because the prosecution did not connect weapon to
the crime); Archer, 99 Cal. Rptr. 2d at 238 (knives not linked
to crime were not admissible); Fortt, 767 A.2d at 805 (admission
of gun was error due to lack of “satisfactory predicate
7
¶13
Anton’s Rule 403 argument likewise fails.
Under Rule
403, relevant “evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice.”
Ariz. R. Evid. 403.
not
linked
to
prejudicial.
Anton contends that because the guns were
him,
admission
of
the
evidence
was
overly
As discussed above, however, the jury reasonably
could find that Anton used a gun or guns found in the maroon car
to rob the grocery store.
at 107.
See Plew, 155 Ariz. at 49, 745 P.2d
Accordingly, admission of the evidence did not violate
Rule 403.
¶14
To the extent that Anton argues the State’s evidence
did not specifically connect the assault rifle with the crime,
we conclude that the testimony of the victim and the police
officers,
combined
precludes
us
with
from
probability
that
evidence
of
the
Hoskins,
199
discovery
holding
the
verdict
assault
Ariz.
the
127,
that
would
rifle
not
142-43,
¶
the
two
there
was
a
have
been
been
57,
of
handguns,
reasonable
different
admitted.
14
P.3d
997,
State
had
v.
1012-13
(2000) (“We will not reverse a conviction based on the erroneous
admission of evidence without a ‘reasonable probability’ that
the verdict would have been different had the evidence not been
admitted.”) (citation omitted).
testimonial or other evidentiary link”); Robinson, 727 A.2d at
351 (photo of defendant with gun not relevant because gun was
not one of the four possible makes used in the murder).
8
CONCLUSION
¶15
For
the
reasons
stated
above,
we
affirm
Anton’s
conviction and sentence.
/s/
DIANE M. JOHNSEN, Presiding Judge
CONCURRING:
/s/
PATRICIA A. OROZCO, Judge
/s/
PHILIP HALL, Judge
9
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