State v. Juarez
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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.
ANTHONY PATRICK JUAREZ,
Appellant.
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1 CA-CR 10-0808
DIVISION ONE
FILED: 09/06/2011
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(Not for Publication –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. CR2010-115020-003DT
The Honorable Lisa Ann Vandenberg, Judge Pro Tempore
AFFIRMED
Thomas C. Horne, Arizona Attorney General
by
Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
and Myles A. Braccio, Assistant Attorney General
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
by Terry J. Adams, Deputy Public Defender
Attorneys for Appellant
Phoenix
B A R K E R, Judge
¶1
Anthony
Patrick
Juarez
(“Juarez”)
appeals
his
conviction for one count of taking the identity of another, a
class
three
felony,
convictions.
He
with
argues
two
that
prior
the
historical
trial
court
felony
abused
its
discretion in admitting evidence of prior bad acts, in violation
of Arizona Rules of Evidence 404(b) and 403.
For the reasons
that follow, we find no reversible error and affirm.
Background
¶2
While
residence
fleeing
in
the
conducting
West
an
Phoenix,
residence
in
a
ongoing
police
investigation
officers
“[f]rantic”
and
of
observed
“scared”
a
Juarez
manner.
After asking him why he was fleeing, the police officers asked
Juarez
for
identification.
Juarez
replied
that
his
identification was in his wallet, which police officers removed
and opened.
They found identification information for at least
four individuals besides Juarez inside Juarez’s wallet.
Juarez
would eventually be tried for taking the identity of three of
these individuals: Fredrick Douglass, Brandon Moore, and Charles
Sutton.
Among
individuals
Moore’s
was
name,
the
identifying
information
one
Visa
Tax
which
was
Turbo
missing
card,
its
for
these
issued
in
activation
three
Brandon
sticker
(the
“Moore Turbo Tax card”).
¶3
birth
The
information
certificate,
a
for
Social
a
fourth
Security
2
individual
card,
and
included
a
a
driver’s
license belonging to a woman named Mindy Linns (“the Mindy Linns
documents”).
¶4
A
“nervous”
and
“uncomfortable”
Juarez
initially
claimed that he found the documents containing other people’s
information “in the street,” and that he “didn’t know any of
these people.”
Juarez “later stated that the Turbo Tax Visa
card was mailed to what is a vacant home next door to his, was
accidentally
placed
in
his
children and given to him.
mailbox,”
and
was
opened
by
his
When Officer Kim asked Juarez if he
knew Mindy Linns, Juarez said that Mindy was his girlfriend and
that she knew he had her stuff.
After Officer Kim said that he
would like to contact Mindy Linns, Juarez “admitted that he lied
earlier and that he didn’t know Mindy Linns or any of the people
whose identifying information [we] found in his wallet.”
¶5
Police officers also found two Turbo Tax Visa cards
(the “Turbo Tax cards”) in the residence.
not
to
have
been
activated
because,
as
These cards appeared
one
police
officer
testified, “the stickers [were] still attached,” and “generally
speaking, when the stickers are still attached that means they
have not been activated.”
¶6
At trial, Douglass, Moore, and Sutton all testified
that they had not given Juarez permission to use any identifying
information, and in fact, had never met him before.
3
¶7
The jury found Juarez guilty of aggravated taking the
identity of another.
Juarez filed a timely notice of appeal.
We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona
sections
Constitution,
and
12-120.21(A)(1)
Arizona
Revised
(2003),
Statutes
13-4031
(2001)
(“A.R.S.”)
and
13-
4033(A)(1) (Supp. 2008).
Discussion
¶8
Juarez argues that testimony relating to the Turbo Tax
cards and Mindy Linns violated Rules 404(b) and 403.
A trial
court has considerable discretion in ruling on the admissibility
of evidence, and we will not reverse such a ruling absent a
clear abuse of discretion or misapplication of the law.
State
v. Hensley, 142 Ariz. 598, 602, 691 P.2d 689, 693 (1984); Conant
v. Whitney, 190 Ariz. 290, 292, 947 P.2d 864, 866 (App. 1997).
“An ‘abuse of discretion’ is discretion manifestly unreasonable,
or exercised on untenable grounds, or for untenable reasons.”
Torres v. N. Am. Van Lines, Inc., 135 Ariz. 35, 40, 658 P.2d
835, 840 (App. 1983). “[T]hat the circumstances could justify a
different conclusion than that reached by the [trial court] does
not warrant the [appellate] court in substituting its judgment
for that of the [trial court].
A difference in judicial opinion
is not synonymous with ‘abuse of discretion.’”
Quigley v. City
Court, 132 Ariz. 35, 37, 643 P.2d 738, 740 (App. 1982).
4
1.
The Turbo Tax Cards
A.
Pertinent Facts
¶9
Tax
Juarez was not charged with regard to the two Turbo
cards
(with
residence.
stickers
attached)
that
were
found
in
the
Prior to trial, Juarez moved in limine to preclude
the State from introducing evidence of these cards.
The court
granted this motion; however, it noted that
my ruling does not preclude the State from
making a request when it’s their opportunity
to present rebuttal evidence as to the Court
reconsidering the appropriateness of that
evidence or testimony in rebuttal.
But I
won’t make a ruling on rebuttal at this
point without hearing the State’s case and
defense.
But I will just warn defense that
at this point it certainly seems plausible
that the State will be able to make an
argument that depending on the defense, that
that evidence may be admissible as rebuttal.
¶10
At
trial,
while
Juarez’s
counsel
was
questioning
Juarez’s daughter about her knowledge of the Moore Turbo Tax
card, the daughter testified that she saw her younger brother
run to the mailbox, rip open the envelopes, hold the card, and
give the card to another Juarez child who ultimately gave the
card to Juarez.
During cross-examination, she said that she did
not see a sticker on top of the Turbo Tax card, which provides a
number to call to activate the card.
¶11
Outside the presence of the jury, the State requested
that it be allowed to introduce rebuttal evidence regarding the
two Turbo Tax cards found in the home in order to compare these
5
cards (with the activation stickers attached) to the Moore Turbo
Tax
card
(with
the
activation
sticker
removed).
The
State
argued that the fact that the activation sticker was removed
demonstrated Juarez’s intent to use the card.
objection,
the
court
granted
the
request,
Over Juarez’s
provided
that
testimony was limited to the facts that the cards were found in
the residence and that their activation stickers were intact.
¶12
The
State
then
presented
testimony
from
a
police
officer that he found the two Turbo Tax cards in the residence
and that the cards had not been activated because the stickers
were
still
attached.
The
State
also
called
another
police
officer who testified that, in comparison, the Moore Turbo Tax
card, which was found on Juarez, had been activated because its
activation sticker was removed.
B.
¶13
Admissibility Under Rule 404(b)
Rule
404(b)
prohibits
admitting
evidence
of
other
crimes, wrongs, or acts “to prove the character of a person in
order to show action in conformity therewith.”
404(b).
However, such evidence may “be admissible for other
purposes,” such as “intent.”
relevant
purpose
should
Id.
45,
provides
56
(1984)
that
(“[T]here
testimony
Evidence admissible for any
generally
inadmissible for other purposes.
U.S.
Ariz. R. Evid.
be
admitted,
even
if
See United States v. Abel, 469
is
no
rule
admissible
for
6
of
one
evidence
purpose
which
and
inadmissible
for
another
purpose
is
thereby
rendered
inadmissible; quite the contrary is the case.”).
¶14
Here, Juarez did not respond to the State’s assertion
that the Turbo Tax cards were used to establish intent.
After
reviewing the transcript, it is clear that the two Turbo Tax
cards
were
not
used
to
argue
that
Juarez
had
used
other
identities besides the three for which he was on trial or to
suggest that he had engaged in other crimes or bad acts.
Nor
were they used to suggest that he had a propensity to commit
such
crimes
or
acts;
they
were
simply
used
as
a
basis
for
comparison to the Moore Turbo Tax card found in his wallet.
¶15
Once Juarez’s daughter testified that the Moore Turbo
Tax card lacked an activation sticker when her younger brothers
retrieved it from the mail and gave it to Juarez, the State
became entitled to rebut this testimony.
It was well within the
court’s discretion to allow the State to rebut this testimony
with
testimony
residence
that
contained
the
two
Turbo
activation
Tax
stickers.
cards
found
The
lack
in
of
the
an
activation sticker on the Moore Turbo Tax card demonstrated that
Juarez intended to use this card.
Given that using evidence to
establish
express
intent
is
one
of
the
exceptions
to
Rule
404(b), Juarez’s arguments fail.
¶16
Juarez relies on State v. Woods, 121 Ariz. 187, 589
P.2d 430 (1979), but that reliance is misplaced.
7
In Woods,
police
officers
observed
the
defendant
leaving
a
department
store in a suspicious manner that suggested he might be carrying
something inside the jacket he was wearing.
P.2d at 431.
The officers followed the defendant to a van.
at 188, 589 P.2d at 431.
Id.
They eventually stopped the van and
discovered several stolen items inside.
431.
Id. at 188, 589
Id. at 188, 589 P.2d at
One of the items in the van was an iron that had the
department store tag attached to it.
431.
Id. at 188, 589 P.2d at
After investigating, the officers learned that the iron
had a display tag on it, meaning that it was on display and
would not have been sold unless the store had no others in
stock.
Id. at 189-90, 589 P.2d at 432-33.
called
a
security
officer
from
the
At trial, the State
department
store
who
testified that she had visited the store and found it wellstocked with similar irons.
Id. at 189-90, 589 P.2d at 432-33.
The State used this evidence to suggest to the jury that the
defendant had stolen the iron, although it was unable to prove
that the iron had actually been stolen.
Id. at 190, 589 P.2d at
433.
¶17
Tax
Here, in contrast, the State did not admit the Turbo
cards
Rather,
the
to
suggest
State
used
that
the
Juarez
had
evidence
stolen
only
to
these
cards.
establish,
by
comparison, that the Moore Turbo Tax card had been activated and
there was an intent to use it.
Because the two Turbo Tax cards
8
were used only in a limited manner, to show intent with regard
to Moore’s card, the court’s decision to admit them for this
purpose did not violate Rule 404(b).
C.
¶18
Admissibility Under Rule 403
Under Rule 403, relevant evidence “may be excluded if
its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.”
403.
Ariz. R. Evid.
Relevant evidence has “any tendency to make the existence
of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without
the evidence.”
¶19
Ariz. R. Evid. 401.
The two Turbo Tax cards were relevant because they
showed that such cards have an activation sticker that must be
removed to activate the cards.
Juarez argues that the prejudice
created by the Turbo Tax cards far outweighed their relevance.
However, once Juarez opened the door by introducing testimony
that Moore’s Turbo Tax card lacked an activation sticker when
Juarez
received
it,
the
court
admitting contrary evidence.
possibility
of
the
jury
was
within
its
discretion
in
This is so even if there was a
inferring
Juarez
had
inappropriately
obtained other cards for which he was not being charged.
Juarez
could have requested a limiting instruction, but did not.
9
We
have
already
determined
that
the
relevance
of
the
testimony
about the Turbo Tax cards was to establish intent and that it
therefore did not violate Rule 404(b).
¶20
To the extent that Juarez suggests that the timing of
admission
was
unfairly
prejudicial
because
the
court
had
previously ruled that such evidence should be excluded, this
argument fails because the trial court plainly reserved judgment
on the admissibility of such evidence for rebuttal purposes.
Even if the court had not reserved judgment on this issue, it
was certainly within the court’s discretion to adapt its prior
ruling to changed circumstances.
State v. Martinez, 127 Ariz.
444, 447, 622 P.2d 3, 6 (1980) (“The fact that the trial court
previously ruled the evidence was inadmissible as prejudicial,
does not mean the prejudice continues to outweigh its probative
value throughout the trial.”).
¶21
Thus, Juarez’s claim that the trial court abused its
discretion in admitting the Turbo Tax cards fails.
2.
The Mindy Linns Evidence
A.
Pertinent Facts
¶22
On the first day of trial, Juarez requested a ruling
to preclude the State from entering the Mindy Linns documents
into
evidence.
listed
her
as
Juarez
a
argued
witness,
she
that
since
would
not
the
be
State
able
to
had
not
testify
regarding lack of consent, and the testimony of a police officer
10
regarding this subject would be hearsay.
precluded
such
evidence
from
being
The court agreed and
introduced;
however,
the
court also noted that it was “not making a ruling with regards
to whether or not the door would be opened and rebuttal evidence
would be appropriate.”
¶23
During trial, Juarez cross-examined Officer Kim about
whether he had done any investigation to verify Juarez’s story
about how he had come to be in possession of the identification
documents belonging to other individuals.
The precise line of
questioning was as follows:
[Juarez’s counsel]: Did you conduct any
investigation to try to find out if there
were
any
witnesses
who
could
support
[Juarez’s story]?
[Officer Kim]: I did not.
Q:
What is your role in this case, are you
the agent?
A:
Yes, I am.
...
Q:
So
the
decisions
made
in
the
investigation of this case are ultimately up
to you, correct?
A:
Correct.
Q:
In
you?
other
words,
the
buck
stops
with
A:
Correct.
Q:
to
So decisions as to whether to attempt
locate
and
identify
and
interview
11
witnesses, ultimately,
you, correct?
A:
redirect,
the
asked
Officer
resides
with
Agreed.
On
¶24
that
questions
and
State
Kim
referred
back
whether
to
Juarez
these
had
ever
volunteered a name of any individual who could corroborate his
story.
When Officer Kim replied affirmatively, Juarez’s counsel
objected.
The court held a discussion at the bench out of the
hearing of both the jury and the court reporter and ultimately
permitted
Officer
Kim
to
answer
the
question.
Officer
Kim
explained that Juarez had volunteered the name of Mindy Linns.
¶25
The State asked Officer Kim whether he had found any
information
relating
to
Mindy
Linns
in
the
wallet,
and
he
replied, over Juarez’s objection, that the wallet contained her
driver’s license, Social Security number, and birth certificate.
¶26
Responding
to
the
State’s
questions,
Officer
Kim
explained that when he had asked Juarez whether he knew Mindy
Linns, Juarez had initially claimed that she was his girlfriend.
After Officer Kim told Juarez that he would like to contact
Linns, Juarez “admitted that he lied earlier and that he didn’t
know
Mindy
Linns
or
any
of
the
people
whose
information [Officer Kim] found in his wallet.”
12
identifying
¶27
Later that evening, after excusing the jury, the court
explained
why
it
had
allowed
the
State
to
ask
questions
regarding Mindy Linns and her documents:
When
Officer
Kim
was
testifying,
defense
counsel
objected
to
the
State
inquiring
about
the
defendant
providing
information on a person that could confirm
his story.
And at the bench, the Court
found
that
defense
counsel,
in
crossexamination, had opened the door to that
information.
And over defense counsel’s
objection, the Court did allow the State to
continue to inquire with regards to the
information when testified to by Officer Kim
with regards to Mindy Linns.
Then counsel for the State asked to
approach and requested to be able to admit
documents that were referenced in Officer
Kim’s testimony with regards to Mindy Linns.
And the Court sustained defense counsel’s
objection,
those
were
still
overly
prejudicial.
B.
Admissibility Under Rule 403
¶28
Analyzing the Mindy Linns evidence under Rule 403, we
find that Juarez opened the door to this evidence and that any
prejudice created by the evidence was self-inflicted.
initially
ruled
that
the
Mindy
Linns
evidence
The court
would
not
be
admitted; however, it clearly reserved ruling on the evidence
for rebuttal purposes.
Juarez could have avoided the disclosure
of the evidence by not asking Officer Kim questions designed to
cast doubt on his diligence or thoroughness.
asked
these
questions,
Juarez
13
opened
the
However, once he
door
to
further
inquiries on this subject.
“[W]hen an attorney ‘opens the door’
to otherwise irrelevant evidence, another party may comment or
respond with comments on the same subject, in the trial court’s
discretion.”
State v. Roberts, 144 Ariz. 572, 575, 698 P.2d
1291, 1294 (App. 1985); see also State v. Woratzeck, 134 Ariz.
452, 454, 657 P.2d 865, 867 (Ariz. 1983) (“When counsel opens
the whole field of inquiry, he cannot assign its fruits as error
on appeal.”).
C.
¶29
Admissibility Under Rule 404(b)
Because Juarez did not raise the argument that the
Mindy Linns evidence violated Rule 404(b) below, he waived this
argument on appeal.
“‘Absent fundamental error, if evidence is
objected to on one ground in the trial court and admitted over
that
objection,
other
appeal are waived.’”
grounds
raised
for
the
first
time
on
State v. Moody, 208 Ariz. 424, 462, ¶ 120,
94 P.3d 1119, 1150 (2004) (quoting State v. Neal, 143 Ariz. 93,
100, 692 P.2d 272, 279 (1984)).
error
committed
nevertheless,
by
in
the
the
Juarez does not argue that any
trial
court
interest
of
was
“fundamental
administering
error”;
justice,
we
address this issue.
¶30
“Fundamental error is error of such dimensions that it
cannot be said it is possible for a defendant to have had a fair
trial.”
(1977).
State v. Smith, 114 Ariz. 415, 420, 561 P.2d 739, 744
In
deciding
whether
an
14
error
is
fundamental,
the
defendant must show that the error goes to the “foundation of
his case, takes away a right that is essential to his defense,
and is of such magnitude that he could not have received a fair
trial.”
State v. Henderson, 210 Ariz. 561, 568, ¶ 24, 115 P.3d
601, 608 (2005).
Defendant has the burden to show prejudice.
Id.
¶31
Here,
no
such
error
occurred.
The
Mindy
Linns
evidence was admitted because Juarez “opened the door” to this
evidence
as
explained
above.
This
was
not
error,
logical application of a black-letter legal principle.
it had been error, such error would be harmless.
before
it
independent
identifying
information
consent.
proof
of
that
three
Juarez
but
Even if
The jury had
possessed
individuals
the
without
the
their
Given that Juarez has failed to show how the Mindy
Linns evidence violated Rule 403 or was fundamental error, we
find no error in its admission.
Conclusion
¶32
For
the
foregoing
reasons,
we
affirm
Juarez’s
conviction and sentence.
/s/
_____________________________
DANIEL A. BARKER, Judge
CONCURRING:
/s/
_________________________________
JON W. THOMPSON, Presiding Judge
15
/s/
_____________________________
ANN A. SCOTT TIMMER, Judge
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