State v. Balbuena
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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.
)
)
SIXTO BALBUENA, JR.,
)
)
Appellant. )
)
1 CA-CR 10-0734
DIVISION ONE
FILED: 09/15/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
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(Not for Publication –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. CR2009-124835-001SE
The Honorable Christopher T. Whitten, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By
Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By
Spencer D. Heffel, Deputy Public Defender
Attorneys for Appellant
Phoenix
W I N T H R O P, Judge
¶1
Sixto
Balbuena,
Jr.
(“Appellant”)
conviction and sentence for second degree murder.
appeals
his
Appellant’s
counsel has filed a brief in accordance with Smith v. Robbins,
528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967);
and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating
that he has searched the record on appeal and found no arguable
question of
law
that
is
not
frivolous.
Appellant’s
counsel
therefore requests that we review the record for fundamental
error.
96
See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89,
(App.
record
1999)
for
Appellant
(stating
reversible
the
that
this
error).
opportunity
to
court
Although
file
a
reviews
this
the
court
supplemental
entire
granted
brief
in
propria persona, he has not done so.
¶2
We have appellate jurisdiction pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and
13-4033(A) (2010).
I.
¶3
Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY 1
On April 17, 2009, a grand jury issued an indictment,
charging Appellant with one count of second degree murder, a
class one
dangerous
felony
in
violation
of
A.R.S.
§
13-1104
(2010). 2
1
We review the facts in the light most favorable to
sustaining the verdict and resolve all reasonable inferences
against Appellant.
See State v. Kiper, 181 Ariz. 62, 64, 887
P.2d 592, 594 (App. 1994).
2
We cite the current version of the applicable statute
because no revisions material to our decision have since
occurred.
2
¶4
At trial, the State presented the following evidence:
At approximately 2:40 a.m. on April 10, 2009, Chandler police
officers responded to a call informing them that a stabbing had
occurred at a Chandler residence.
McGrath
arrived
and
entered
the
Detective Arbizu and Officer
residence.
Officer
McGrath
discovered two people, Appellant and a female, Tamara Hoffman,
sitting in the living room talking.
Officer McGrath asked who
had been stabbed, and Hoffman pointed toward the master bedroom.
The officer proceeded to the bedroom and found the victim, clad
only in boxer shorts, lying on his left side with a severe
abdominal wound.
¶5
Detective
Arbizu
tended
to
the
victim,
and
Officer
McGrath remained in the living room with Appellant and Hoffman.
Officer
McGrath
inquired
who
had
stabbed
Appellant stood up and said, “I did it.”
the
victim,
and
Appellant was arrested
and handcuffed.
¶6
After being arrested, Appellant was transported to the
Chandler police
station,
where
he
was
advised
of
his
rights
pursuant to Miranda, 3 and interviewed by Detective Minor.
During
the interview, Appellant described the events leading up to the
victim’s death.
¶7
Appellant explained that, at the time of the incident,
he was twenty years old and serving as an aircraft mechanic in
3
See Miranda v. Arizona, 384 U.S. 436 (1966).
3
the
United
States
Navy
in
El
Centro,
California.
When
not
stationed on the base at El Centro, he lived with his fiancée,
Hoffman, at her home in Chandler.
Hoffman and Appellant had met
and begun a sexual relationship when she was his teacher at
Marcos de Niza High School in Tempe.
They had continued that
relationship after Appellant’s graduation and purportedly became
engaged approximately eight months before the stabbing incident.
¶8
Appellant had received several days of furlough and
decided to visit Hoffman at her home.
At approximately 10:00
p.m. on April 9, 2009, Appellant telephoned Hoffman to let her
know he was coming home, and he left El Centro.
When he arrived
at Hoffman’s residence in the early morning hours of April 10,
2009, Appellant tried calling Hoffman, but no one answered the
phone.
¶9
When Appellant opened the front door, he heard noises
inside.
The
house
was
dark,
and
as
he
walked
through
the
kitchen, Appellant grabbed a knife, ostensibly for protection.
As he neared the master bedroom, Appellant saw a stranger (the
victim) run toward the bathroom.
Appellant pushed the bathroom
door open, and the stranger punched him.
¶10
Appellant fought with the stranger, threw him to the
ground, and kicked and threw objects at him.
While the stranger
was lying on the bathroom floor, Appellant stabbed him once in
the
stomach.
Appellant
claimed
4
that
he
did
not
intend
to
seriously injure the stranger, but he wanted to send a message
that the stranger should not have been with Appellant’s fiancée.
After
the
stabbing,
Appellant
called
911
to
seek
medical
from
the
Maricopa
assistance for the stranger.
¶11
At
trial,
a
forensic
pathologist
County Medical Examiner’s Office testified that the cause of the
victim’s death was a single stab wound to the abdomen.
The stab
wound was approximately eight inches deep, cutting the victim’s
aorta and causing him to die within minutes.
¶12
court
The jury convicted Appellant as charged.
sentenced
incarceration
credited
Appellant
in
him
the
for
to
a
Arizona
100
mitigated
Department
days
of
term
of
The trial
of
ten years’
Corrections
presentence
and
incarceration.
Appellant filed a timely notice of appeal.
II.
¶13
We
have
reviewed
error and find none.
ANALYSIS
the
entire
record
for
reversible
See Leon, 104 Ariz. at 300, 451 P.2d at
881; Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96.
The evidence
presented at trial was substantial and supports the verdict, and
the sentence was within the statutory limits.
Appellant was
represented by counsel at all stages of the proceedings and was
given the opportunity to speak at sentencing.
were
conducted
in
compliance
with
his
The proceedings
constitutional
statutory rights and the Arizona Rules of Criminal Procedure.
5
and
¶14
After
obligations
appeal
have
filing
pertaining
ended.
of
this
to
decision,
Appellant’s
Counsel
need
do
defense
counsel’s
representation
no
more
in
than
this
inform
Appellant of the status of the appeal and of his future options,
unless
counsel’s
review
reveals
an
issue
appropriate
petition for review to the Arizona Supreme Court.
for
See State v.
Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).
Appellant has thirty days from the date of this decision to
proceed,
if
he
desires,
with
a
pro
per
motion
for
reconsideration or petition for review.
III.
¶15
CONCLUSION
Appellant’s conviction and sentence are affirmed.
____________/S/_________________
LAWRENCE F. WINTHROP, Judge
CONCURRING:
_____________/S/________________
MAURICE PORTLEY, Presiding Judge
_____________/S/________________
PATRICK IRVINE, Judge
6
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