State v. Osuna

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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. ) ) ALEX OSUNA, ) ) Appellant. ) __________________________________) No. 1 CA-CR 10-0686 DEPARTMENT E DIVISION ONE FILED: 05/26/2011 RUTH A. WILLINGHAM, CLERK BY: DLL MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yuma County Cause No. S1400CR200901226 The Honorable Andrew W. Gould, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Michael A. Breeze, Yuma County Public Defender By Edward F. McGee, Deputy Public Defender Attorneys for Appellant Phoenix Yuma Alex Osuna Appellant San Luis S W A N N, Judge ¶1 for Alex Osuna ( Defendant ) timely appeals his conviction aggravated assault in violation of A.R.S. §§ 13-1203, -1204(A)(2). 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 advised us that a thorough search of the record has revealed no arguable question of law, and requests that we review the record for fundamental error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Defendant was given an opportunity to file a supplemental brief in propria persona and did so. FACTS AND PROCEDURAL HISTORY1 ¶2 In 2009, J.H. worked at a fast-food restaurant and occasionally would give Defendant free or discounted food. About 4:30 a.m. on March 3, 2009, J.H. was working the drivethrough window when a truck with three passengers drove up. J.H. saw Defendant sitting in the front passenger seat. When J.H. told Defendant the price of the order, Defendant said he had forgotten his wallet and asked J.H. to hook him up with some food. J.H. shook his head no, closed the window, and walked away. When J.H. later came back to the window he was irritated to see Defendant still sitting there with customers lined up behind him. He told Defendant, If you ain t got the money, get the fuck out of the line so I can help my other 1 We view the evidence in the light most favorable to sustaining the verdicts and resolve all inferences against appellant. State v. Nihiser, 191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997). 2 customers. Defendant looked mad and asked J.H. to repeat his statement. When J.H. did, Defendant threw a steel spark-plug socket at him. J.H. ducked, but the socket hit causing a laceration, bleeding and a big bump. his head, Defendant told him, That s what [you] get for talking shit and left. J.H. went outside to retrieve the socket and saw it had also dented the drive-through window. ¶3 J.H. called the police. Yuma Police Officer Leo Williams was dispatched for an assault call. evidence. He interviewed J.H. and seized the socket for An officer took photographs of J.H. s injuries. Even though officers advised J.H. to go to the hospital, he kept working. Later that day, J.H. described Defendant to a co- worker. The co-worker pointed [Defendant s] house out to Williams. ¶4 house During the evening of March 4, Williams went to that and saw Defendant and another man inside the garage. Three officers approached the residence and spoke to Defendant s sister when she answered the door. While they were talking, Williams heard running through the house and saw Defendant and the other man run out the back door and jump over the back fence. Officers set up a neighborhood perimeter but were unable to locate Defendant. ¶5 Defendant was later indicted aggravated assault, a class 3 felony. 3 by a grand jury for A three-day trial was held. At the conclusion of the state s case, Defendant moved for a judgment of acquittal pursuant to Ariz. R. Crim. P. 20. The motion was denied. After deliberations, the jury found Defendant guilty of aggravated assault and found the offense dangerous. ¶6 years Defendant was sentenced to a mitigated term of five in prison, with 126 days of presentence incarceration credit.2 DISCUSSION ¶7 Defendant and counsel raise several issues in their opening briefs, which we discuss below. We have reviewed the entire record and find no fundamental error. 300, 451 P.2d at 881. Leon, 104 Ariz. at All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentence imposed was within the statutory range. present at all critical represented by counsel. instructed. The offenses charged. jury phases of the Defendant was proceedings and The jury was properly impaneled and instructions were consistent with the The record reflects no irregularity in the deliberation process. 2 Prior to sentencing, Defendant filed a motion for new trial that was later withdrawn. 4 I. RULE 20 MOTION ¶8 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). evidence State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 Reversible occurs only error where based there on is insufficiency a complete probative facts to support the conviction. of absence the of State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). ¶9 A person commits aggravated assault if the person uses a dangerous instrument to intentionally, knowingly or recklessly cause physical -1204(A)(2). physical injury to Physical condition. another. injury A.R.S. § A.R.S. means §§ the 13-1203(A)(1), impairment 13-105(32). A of dangerous instrument is anything that under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or serious physical injury. A.R.S. § 13-105(12). ¶10 The state presented substantial evidence of guilt. ¶11 J.H. testified that he felt something hit his head and saw where the socket bounced to. J.H. testified that the impact caused bleeding, a cut and swelling. 5 Williams testified that J.H. sustained a half inch, maybe a little larger bump and a half an inch laceration. On this evidence, a reasonable jury could determine that J.H. sustained physical injury.3 ¶12 J.H. testified that the socket was heavy and made of stainless steel. Williams testified that the socket weighed between three and six ounces and could knock out teeth, put out an eye or break a nose if it hit someone in the face.4 socket was admitted at trial. The On this evidence, a reasonable jury could have found that the socket was a dangerous instrument capable of causing serious physical injury. ¶13 Defendant asserts that the state did not establish his identity as the person who actually threw the socket because there were other passengers in the truck, J.H. was looking down when the socket was thrown, and the state did not admit video tape or the testimony of the other employee who worked that night. J.H. testified that he saw Defendant pull back and start to throw something, so he put his head down to take whatever he was going to throw at me, felt something hit his head, and saw the socket bounce on the ground. On this 3 Contrary to Defendant s assertion otherwise, even a minor injury is sufficient to support aggravated assault as Defendant was charged because A.R.S. §§ 13-1203(A)(1) and -1204(A)(2), require only physical injury. 4 Contrary to Defendant s assertion on appeal, the state never alleged that a deadly weapon was used, offered any evidence of that fact, or instructed the jury on that definition. 6 evidence, a reasonable juror could have determined that Defendant was the one who threw the socket. II. JURY INSTRUCTION ON DANGEROUS INSTRUMENT ¶14 Defendant confused by its contends that instructions and the jury convicted may him have been pursuant to A.R.S. § 13-1204(A)(1) rather than § 13-1204(A)(2) as charged. ¶15 Aggravated including when an assault assault can is occur in committed different using a ways, dangerous instrument pursuant to A.R.S. § 13-1204(A)(2), or when a person commits serious physical injury to another pursuant to § 13-1204(A)(1). ¶16 Here, instrument, Defendant not Defendant for accurately was charged inflicting points serious out, the for using physical state a dangerous injury. alleged As serious physical injury as an aggravating factor to enhance sentencing, but later withdrew that request. The state also told the court it was not pursuing a serious physical injury theory. The state nonetheless did instruct the jury about serious physical injury because instrument. it was necessary to define dangerous See A.R.S. § 13-105(12) ( Dangerous instrument means anything that under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing . . . serious physical injury. ) (emphasis added). 7 ¶17 As Defendant notes, the instruction regarding serious physical injury was submitted separately from the jury s other instructions.5 But the court instructed the jury that the definition should be tied in with the definition of dangerous instrument. instructions The court before they followed its instructions. provided the deliberated. jury We with corrected presume the jury State v. Jeffrey, 203 Ariz. 111, 115, ¶ 18, 50 P.3d 861, 865 (App. 2002). III. WILLITS INSTRUCTION ¶18 Defendant contends the court erred by refusing to give a requested Willits6 instruction regarding the restaurant s video tape from the night of the incident and photographs of J.H. s injuries, neither of which were admitted during trial. ¶19 A Willits instruction permits the jury to draw an inference against the state if the state permits evidence within its control to be destroyed. State v. Broughton, 156 Ariz. 394, 399, 752 P.2d 483, 488 (1988). appropriate, however, if the The instruction is not defendant fails to that the absent evidence would have exonerated him. 5 demonstrate Id. The transcript suggests that it was inadvertently omitted from the court s earlier recitation of the instructions. The state referenced serious physical injury when it defined dangerous instrument during its closing statement. When the state concluded its statement, the court called both counsel to the bench. The court then instructed the jury. 6 State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964). 8 ¶20 Here, the officers never obtained the video, so it was never in the state s possession. The photographs were never provided to defense counsel with the police report. Instead, the state offered the testimony of Williams and J.H., who both described the injuries. Defendant now asserts that the photographs could have shown a minor bump on J.H. s head -not that they would have exonerated him. Under these circumstances, a Willits instruction was not appropriate. IV. INEFFECTIVE ASSISTANCE OF COUNSEL ¶21 Defendant asserts he received ineffective assistance of counsel. Ineffective assistance of counsel claims must be brought in proceedings pursuant to Ariz. R. Crim. P. 32. Any such claims improvidently raised in a direct appeal . . . will not be addressed by appellate courts regardless of their merit. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). V. SERIOUS PHYSICAL INJURY ¶22 Defendant next claims error because the court refused to allow witnesses E.M. and X.P. to testify. ¶23 Defendant did not disclose these persons as testifying witnesses. that On the last day of trial, Defendant told the court defense counsel refused to subpoena his mother, grandmother, and E.M., who Defendant considered very important witnesses. Defendant never told the court he wanted X.P. to testify. 9 ¶24 Over the state s objection, the court delayed trial to allow mother and grandmother to testify but sustained the objection to E.M. because his testimony would be cumulative.7 See Ariz. R. Evid. 403 ( Although relevant, evidence may be excluded . . . if by needless its probative considerations presentation of of value undue is substantially delay, cumulative waste outweighed of or State evidence. ); time, v. Verive, 128 Ariz. 570, 576, 627 P.2d 721, 727 (App. 1981) ( To reject relevant evidence on the basis of unfair prejudice and cumulativeness is within the discretion of the trial court. ). ¶25 he Here, Defendant told the court E.M. would testify that was present the night the officers residence and saw Defendant in the garage. tell the jury that Defendant was not went to Defendant s E.M. was expected to present that night testimony Defendant s mother was also expected to give. counsel was concern[ed] about putting E.M. on -- Defense the stand because he was a person of interest in another criminal matter 7 When Defendant s mother was unable to appear due to work constraints, the court allowed her to testify telephonically. In a civil case, appearance by telephone is an appropriate alternative to personal appearance. Ariz. Dep t of Econ. Sec. v. Valentine, 190 Ariz. 107, 110, 945 P.2d 828, 831 (App. 1997). See also Ariz. R. Civ. P. 43(f) ( In all trials the testimony of witnesses shall be taken orally in open court . . . . ); T.W.M. Custom Framing v. Indus. Comm'n of Ariz., 198 Ariz. 41, 48, ¶ 22, 6 P.3d 745, 752 (App. 2000) ( [T]he telephonic medium preserves paralinguistic features such as pitch, intonation, and pauses that may assist [the fact-finder] in making determinations of credibility. ). 10 involving Defendant. E.M. s testimony The state also strenuously objected to because the state had not been provided sufficient identifying information to determine whether E.M. had a criminal history and the defense had never disclosed him as a witness. ¶26 On this record we find no error, especially fundamental error, in the court s decision to preclude E.M. s testimony. VI. CONTAMINATED EVIDENCE ¶27 Defendant next asserts the court erred by allowing the socket to be admitted even though it was contaminated when J.H. picked it up. He contends that more physical proof could have been obtained if proper procedures were taken. ¶28 Defendant s conclusion that the socket was contaminated goes to the weight of the evidence, which is a question for the jury. See State v. Gonzales, 181 Ariz. 502, 511, 892 P.2d 838, 847 (1995) (finding defendant s argument that evidence gathered seven days later was contaminated goes to its weight, not its admissibility); R & M Oxford Constr., Inc. v. Smith, 172 Ariz. 241, 247, 836 P.2d 454, 460 (App. 1992) ( Conflicts of evidence are within the sole province of the trier of fact, as is the weight of the reasonable inferences to be drawn therefrom. ). 11 evidence and the ¶29 Here, the state disclosed that it would use the socket at trial, so that Defendant could have tested it himself. See Ariz. R. Crim. P. 15.1(e) (requiring the prosecutor to make available to the defendant for examination and testing [a]ny specific items listed in its disclosure statement). J.H. testified that he saw where the socket bounced to after it was thrown, and that he went outside and picked [the socket] up and placed it on the counter for the police. He later gave it to Williams, who testified that he placed the socket in an evidence envelope and followed normal procedures and chain of custody. The state offered the socket at trial and Williams testified that it was objection. what [he] seized. It was admitted without Williams was cross-examined. VII. INABILITY TO CROSS-EXAMINE WITNESS ¶30 Defendant asserts his Sixth Amendment right to cross- examine his accusers was infringed because the state did not present the co-worker who gave Williams his address.8 ¶31 The Sixth Amendment gives an accused a constitutional right to confront a witness who makes a testimonial statement against the accused. 116 P.3d 631, 637 State v. Parks, 211 Ariz. 19, 25, ¶ 30, (App. 2005). 8 It applies to witnesses He also asserts that the court erred in admitting the coworker s hearsay statements, but the record demonstrates that no statement attributed to the co-worker was admitted. 12 against the testimony. accused -- Testimony, in in other turn, words, is those typically who [a] bear solemn declaration or affirmation made for the purpose of establishing or proving some fact. ¶32 Here, the Id. at 25, ¶ 27, 116 P.3d at 637. co-worker did not accuse Defendant of anything, she only provided the address of a person who fit the description J.H. gave her. J.H. and Williams testified how they identified Defendant as the person who threw the socket, and they were both cross-examined. 13 CONCLUSION ¶33 We affirm Defendant s conviction and sentence. Counsel s obligations pertaining to Defendant s representation in this appeal have ended. Counsel need do nothing more than inform Defendant 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). On the court s own motion, Defendant shall have thirty days from the date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review. /s/ ___________________________________ PETER B. SWANN, Presiding Judge CONCURRING: /s/ ____________________________________ PATRICK IRVINE, Judge /s/ ____________________________________ MAURICE PORTLEY, Judge 14

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