STATE v. GUZMAN

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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. ) ) CARLOS ALBERTO GUZMAN, ) ) Appellant. ) __________________________________) 1 CA-CR 11-0377 DIVISION ONE FILED: 08/09/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yavapai County Cause No. V1300CR201080318 The Honorable Tina R. Ainley, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Division Chief Counsel Joseph T. Maziarz, Section Chief Counsel Liza-Jane Capatos, Assistant Attorney General Criminal Appeals Section Attorneys for Appellee John David Napper Attorney for Appellant Phoenix Prescott W I N T H R O P, Chief Judge ¶1 resulting Carlos Alberto Guzman appeals his convictions and the sentences for robbery, assault, a class one misdemeanor. a class four felony, and Guzman argues the trial court erred by failing to submit the issue of jurisdiction to the jury and by denying his motions for mistrial. For the reasons that follow, we affirm. BACKGROUND 1 ¶2 Guzman s convictions stem from an incident in which he confronted the victim shortly after midnight as the victim was walking along State Route 260 in Camp Verde. The victim testified that Guzman had a knife in his left hand, approached the victim, and demanded money. As Guzman came toward the victim, the victim grabbed Guzman s left wrist with both hands to prevent being stabbed and pulled Guzman toward a nearby gas station in an effort to move into the light where someone might see them and summon help. Guzman punched the victim numerous times with his right hand until the victim blacked out. Before he lost consciousness, the victim observed a car pull into the gas station, and he heard a female voice yell, Carlos, get in the car. Carlos, get in the car. ¶3 When the victim regained consciousness, he had been badly beaten and his wallet, the car, and Guzman were gone. The victim was eventually transported by ambulance to a hospital, and his wallet was subsequently discovered several miles away 1 We review the facts in the light most favorable to sustaining the verdicts and resolve all reasonable inferences against Guzman. See State v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994). 2 along the side of the road, but his driver s license was missing from the wallet. After the victim identified Guzman from a photographic lineup, the police searched Guzman s residence and found the victim s driver s license in Guzman s bedroom. ¶4 At trial, Guzman denied possessing a knife, demanding money, or taking the victim s wallet, and he insinuated that the victim had assaulted him first after he inquired why the victim was walking in the general vicinity of his parents house at such a late hour. ¶5 The jury declined to convict on the charged offenses of armed robbery and aggravated assault and instead found Guzman guilty of the lesser-included offenses of robbery and assault. Guzman admitted the prior felony convictions alleged by the State for sentence enhancement purposes, and the court sentenced him as a repetitive offender with at least two historical prior felony convictions to a slightly aggravated eleven-year prison term on the robbery conviction and a concurrent 180-day jail term on the assault conviction. ¶6 appellate Guzman filed jurisdiction a timely pursuant 3 notice to the of appeal. Arizona We have Constitution, Article 6, Section 9, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (West 2012), 2 13-4031, and 13-4033(A). ANALYSIS A. Jurisdiction ¶7 Before trial, Guzman moved to dismiss the charges, claiming the Yavapai County Superior Court lacked jurisdiction because he is a member of the Yavapai-Apache Nation and the alleged The offenses State Nation, occurred conceded but jurisdiction initiated Guzman maintained over off on the the the is a the Yavapai-Apache member superior charged the court offenses reservation. of Yavapai-Apache had because Following Reservation. an concurrent the offenses evidentiary hearing, the trial court ruled that although there was evidence indicating the encounter ended in the gas station parking lot, which was contradicting on the the reservation, victim s account commenced off the reservation. there that was no evidence the confrontation Accordingly, the court denied the motion. ¶8 During the second day of the four-day trial, Guzman again raised the issue of jurisdiction, arguing it was an issue for the jury to decide. The trial court stated it still had not heard any evidence contradicting its preliminary finding that 2 We cite the current Westlaw version of the applicable statutes because no revisions material to this decision have since occurred. 4 the encounter commenced off the reservation, but if Guzman had controverting facts that would allow the issue to go to the jury, the court would not forestall him from presenting them. During settlement of jury instructions after the close of evidence, Guzman did not argue there was evidence to support the jury deciding jurisdiction, and he did not object to the lack of instructions on the issue of jurisdiction. ¶9 On appeal, Guzman contends the trial court erred by failing to have the jury decide the issue of jurisdiction. Because Guzman failed to object to the instructions submitted to the jury, our review is limited to fundamental error. See State v. 601, Henderson, (2005). 210 Ariz. 561, 567, ¶ 19, 115 P.3d 607 Under this standard of review, Guzman bears the burden of showing both that fundamental error occurred and that the error caused him prejudice. for fundamental error, we See id. at ¶ 20. first determine When reviewing whether the trial court committed some error, and only if we find error will we consider the prejudicial nature of the unobjected-to . . . in light of the entire record. error State v. Thomas, 130 Ariz. 432, 436, 636 P.2d 1214, 1218 (1981) (citation omitted). ¶10 The jurisdictional issue arises from the fact that the confrontation between Guzman and the victim occurred in an area where Camp Verde borders the Yavapai-Apache Reservation. general rule, Arizona has subject 5 matter As a jurisdiction to prosecute crimes committed within its territorial borders. State v. Verdugo, 183 Ariz. 135, 137, 901 P.2d 1165, 1167 (App. 1995); see also A.R.S. § 13-108(A)(1) (providing jurisdiction over an offense in which [c]onduct constituting any element of the offense . . . occurs within this state ). law preempts state court jurisdiction However, federal over a criminal prosecution when an offense involving an Indian occurs on Indian land. See 18 U.S.C. §§ 1152, 1153. If [the] defendant or the victim is an Indian and the crime was committed within Indian country, as defined by federal statute, then the state superior court has no subject matter jurisdiction to try [the] defendant for the offense. Verdugo, 183 Ariz. at 137, 901 P.2d at 1167 (citing 18 U.S.C. §§ 1152, 1153). ¶11 Guzman does not dispute that the Yavapai County Superior Court has concurrent jurisdiction to try him for the offenses if they began off the reservation regardless of whether they ultimately concluded on the reservation. See State v. Robles, 183 Ariz. 170, 174, 901 P.2d 1200, 1204 (App. 1995) ( In our opinion, 18 U.S.C. sections 1152 and 1153 were intended to bestow exclusive preemptive jurisdiction on the federal courts only when the crime occurs on a federal enclave and when no elements of the crime occur outside that enclave. ). His sole argument on the issue of jurisdiction is that the jury, and not 6 the trial court, should have decided whether the offenses began off the reservation. ¶12 at In the rare case in which jurisdiction is legitimately issue because of contradicting jurisdictional issue of jurisdiction is for the jury. Ariz. 530, 538, 892 P.2d 1319, facts, the State v. Willoughby, 181 1327 (1995). If the jurisdiction facts are undisputed, as in almost all cases, the court may decide the issue. In the absence of evidence contradicting jurisdiction, then, only the issues pertaining to criminality must go to the jury. Id. at 538-39, 892 P.2d at 1327-28 (citations omitted). ¶13 In this case, the record is insufficient for Guzman to meet his burden of showing there is an actual conflict in the evidence regarding where the offenses commenced that would require submitting the issue of jurisdiction to the jury. The victim testified Guzman approached him with a knife and demanded money while he was next to the pump house, which the parties agree and reservation. the evidence indicates is situated off the According to the victim, he pulled Guzman back toward the parking lot of the gas station, which is on the reservation. In contrast, Guzman s testimony regarding the confrontation failed to create a clear factual dispute as to whether the confrontation commenced on or off the reservation. In testifying about where he contacted the victim and where he 7 first punched him, Guzman pointed to locations on Exhibit 14, which was an aerial photograph of the area with the boundary lines for property superimposed on it. parcels and the tribal trust lands No markings are included on Exhibit 14 to indicate where Guzman was pointing during his testimony, and his testimony is entirely consistent with him indicating that the confrontation with the victim began off the reservation. ¶14 To justify reversal, error cannot be based speculation but must appear affirmatively in the record. on State v. Diaz, 223 Ariz. 358, 361, ¶ 13, 224 P.3d 174, 177 (2010); see also State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991) (holding that to qualify as fundamental error, the error must be clear ); Thomas, 130 Ariz. at 436, 636 P.2d at 1218 ( Before a finding of fundamental error can be made, it must be apparent that error was committed by the trial court in some aspect of the proceedings. ). In this case, we cannot say a genuine dispute exists in the evidence regarding whether the confrontation court and commenced counsel had on the the reservation. opportunity at Both trial the to trial observe precisely where Guzman pointed on Exhibit 14 while testifying about the confrontation, but those locations are not reflected with any specificity in the record on appeal. 3 3 In light of the Of course, a possible explanation for why Guzman failed to raise the issue of jurisdiction during settlement of 8 indefinite nature of Guzman s testimony contained in the record on appeal regarding where the initial confrontation occurred, it is not possible to conclude that the trial court clearly erred in not submitting the issue of jurisdiction to the jury. ¶15 We further find no merit to Guzman s argument that a statement by the victim to the police in reporting the robbery, or testimony by Guzman s friend ( K.C. ), who drove up to the gas station sometime after the initial encounter between Guzman and the victim, create a factual dispute as to jurisdiction. The police officer s testimony that the victim stated the incident happened at the gas station is not inconsistent with, and does not contradict, the victim s additional statements to that same officer or the victim s trial testimony that the encounter started by the pump house and ended in the gas station parking lot. With respect to K.C., she testified that while she was turning into the gas station, she observed Guzman and the victim together in the parking lot of the gas station and saw the victim throw two punches before she observed Guzman hit the victim. She further admitted, however, that she did not know what occurred before her arrival at the gas station. In the absence of a showing of clear error by the trial court in not instructions is that his trial testimony, which included pointing to locations on Exhibit 14, clarified that his confrontation with the victim began off the reservation. 9 submitting the issue of jurisdiction to the jury, Guzman s claim of fundamental error necessarily fails. B. ¶16 Motions for Mistrial Guzman also argues the trial court erred by denying two motions for mistrial based on prejudicial comments by the prosecutor. We will not reverse for prosecutorial misconduct unless (1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury s verdict, thereby denying the defendant a fair trial. State v. Martinez, 218 Ariz. 421, 426, ¶ 15, 189 P.3d 348, 353 (2008) (citations omitted). To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor s misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). In short, our focus is on the fairness of the trial, not the culpability of the prosecutor. State v. Bible, 175 Ariz. 549, 601, 858 P.2d 1152, 1204 (1993) (citations omitted). ¶17 It is well established that [a] declaration of a mistrial is the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted. v. Adamson, 136 Ariz. 250, 262, 10 665 P.2d 972, 984 State (1983) (citation omitted). Deciding whether a prosecutor s improper comments require a mistrial falls within the broad discretion of the trial court, and we will not disturb its decision absent a clear abuse of discretion. 751 P.2d 951, 957 State v. Hansen, 156 Ariz. 291, 297, (1988). We grant the trial court broad discretion in such matters [b]ecause the trial court is in the best position to determine the effect of a prosecutor s comments on a jury. State v. Newell, 212 Ariz. 389, 402, ¶ 61, 132 P.3d 833, 846 (2006) (citations omitted). We will reverse a trial court s decision only if that decision is palpably improper and clearly injurious. State v. Walton, 159 Ariz. 571, 581, 769 P.2d 1017, 1027 (1989) (citation omitted). ¶18 The first motion for mistrial was based on a remark by the prosecutor in regard to a question by defense counsel asking K.C. on redirect examination whether she told the prosecutor that she was not going to lie for anybody. After answered affirmatively, the prosecutor said, Objection. she s lying. 4 K.C. I know Guzman objected to the prosecutor s comment, and 4 Defense counsel s question was in response to an extended series of questions posed to K.C. by the prosecutor on crossexamination. Throughout cross-examination, the prosecutor sought to impeach K.C. with her prior inconsistent statements, and K.C. acknowledged that much of her testimony at trial was inconsistent with or directly contradicted her previous statements to a police detective and her sworn testimony at the September 14, 2010 evidentiary hearing on the motion to dismiss for lack of jurisdiction. Specifically, in response to multiple questions, K.C. conceded that her prior statements were 11 the trial court immediately ordered the comment struck. Later, outside the presence of the jury, Guzman moved for a mistrial. The trial court denied the motion, stating that while I find that it was improper, at this point I m not finding, with the general level of evidence on both sides, that it would materially taint any verdict from the jury or create that level of unfairness as to violate due process. The trial court did agree, however, that a curative instruction directing the jury not to consider the prosecutor s comment would be appropriate, and the court included such an instruction in the final jury instructions. ¶19 It is undisputed that the prosecutor s statement was improper as an expression of personal opinion on the credibility of a witness. See State v. Salcido, 140 Ariz. 342, 344, 681 P.2d 925, 927 (App. 1984) (holding that lawyers are prohibited from expressing personal knowledge of facts unless testifying as a witness). We nevertheless hold that the trial court did not abuse its discretion in denying a mistrial. When the improper comment was made, the trial court immediately ordered it struck. different from what you ve testified to today, inconsistent with what you re telling us today, and completely different from what your story is today. Contradictions and changes in a witness s testimony, however, do not necessarily constitute perjury. Tapia v. Tansy, 926 F.2d 1554, 1563 (10th Cir. 1991). Although K.C. changed her story in multiple ways, she was thoroughly impeached with the changes, and it was for the jury to decide which version to believe. See id. 12 Further, in the final instructions, jurors were told not to consider any matters struck by the trial court and specifically directed not to consider [a]ny personal opinion expressed by any of the attorneys as to a witness [s] veracity. We presume jurors follow their instructions. State v. Prince, 226 Ariz. 516, 1166 537, ¶ 80, 250 P.3d 1145, (2011). Under these circumstances, the trial court did not err in denying the motion for mistrial. See Newell, 212 Ariz. at 403, ¶ 69, 132 P.3d at 847 (holding that a prosecutor s improper comment did not affect the verdict and deny the defendant a fair trial because the objection thereto was sustained, the comment was stricken, and the jury was properly instructed). ¶20 by The second motion for mistrial was made after a remark the prosecutor during rebuttal closing argument. In addressing K.C. s lack of credibility, the prosecutor stated, It s interesting that [defense counsel] didn t address [K.C.] s testimony at all during his 35-plus minutes of closing argument, because even he doesn t believe her. Guzman objected, but the trial court overruled the objection and later denied a motion for mistrial, ruling that the remark did not rise to the level of misconduct. Guzman argues the remark was improper because the was prosecutor arguing his 13 personal belief about what defense counsel thought and insinuating that defense counsel had knowingly presented false testimony. 5 ¶21 The prosecutor has an obligation to seek justice, not merely a conviction, and must methods to obtain a conviction. refrain the impropriety of using improper Hughes, 193 Ariz. at 80, ¶ 33, 969 P.2d at 1192 (citations omitted). recognized from Our supreme court has argument integrity or honesty of opposing counsel. that impugns the Id. at 86, ¶ 59, 969 P.2d at 1198 (citations omitted); accord State v. Gonzales, 105 Ariz. 434, 436, 466 P.2d 388, 390 (1970). ¶22 We find nothing improper about the first part of the prosecutor s statement, interesting that in [defense which the counsel] prosecutor didn t noted, address It s [K.C.] s testimony at all during his 35-plus minutes of closing argument . . . . 1205 See generally Bible, 175 Ariz. at 602, 858 P.2d at ( [D]uring closing arguments counsel may summarize the evidence, make submittals to the jury, urge the jury to draw reasonable inferences from the evidence, and suggest ultimate conclusions. (citations omitted)); see also State v. Jones, 197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360 (2000) ( [P]rosecutors have wide latitude in presenting their closing arguments to the 5 Attorneys have a duty not to knowingly encourage or present false testimony. See Ariz. R. Sup. Ct. 42, ER 3.3(a)(3). An attorney generally may, however, call witnesses whose reliability and veracity is suspect. See State v. Ferrari, 112 Ariz. 324, 334, 541 P.2d 921, 931 (1975). 14 jury. ); accord State v. Comer, 165 Ariz. 413, 426, 799 P.2d 333, 346 (1990). It was entirely appropriate for the prosecutor to attack K.C. s credibility and urge the jury not to believe her testimony, and the above-referenced statement by the prosecutor merely addressed and highlighted what had (or more precisely, had not) occurred during defense counsel s argument that counsel had failed to discuss the testimony of one of his witnesses. ¶23 We do, however, find improper the second part of the statement, in which the prosecutor concluded because even he doesn t believe her. defense remark counsel with personal In support of his motion for a mistrial, argued the that, prosecutor s beliefs, the motion given the previous should be interplay statement of as granted. this to The his trial court rejected defense counsel s argument, indicating that in its view the remark constituted an acknowledgement that even defense counsel had ultimately recognized K.C. s testimony, when considered trial, in lacked the context of credibility. 6 all We the agree evidence with presented defense at counsel, however, that given the prosecutor s previous statement that he knew K.C. was lying, this remark 6 appeared to impugn the The court specifically noted that even Guzman in his trial testimony acknowledged that some of the things said by that witness were inconsistent with what he was saying and were not what occurred. 15 integrity or honesty of defense counsel, see Hughes, 193 Ariz. at 86, ¶ 59, 969 P.2d at 1198, because the jury may reasonably have interpreted stating, that the remark defense we conclude suggesting, counsel testimony through K.C. record, as knowingly if not directly presented false Nevertheless, after viewing the entire that the trial court did not abuse its discretion in denying a mistrial for this remark. ¶24 A prosecutor s reversal unless a improper reasonable comments will likelihood not exists misconduct could have affected the jury s verdict. Ariz. at Further, 403, ¶ improper 67, 132 P.3d comments at must 847 be In this case, although Guzman s the Newell, 212 serious affected the defendant s right to a fair trial. omitted). that (citation so require omitted). that they Id. (citation objection was overruled, the trial court instructed the jury as part of the standard jury instructions that it must not be influenced by sympathy or prejudice, it must determine the facts only from the evidence produced in court, arguments was not evidence. and anything said in closing As we have recognized, jurors are presumed to follow their instructions. 537, ¶ 80, 250 P.3d at 1166. Prince, 226 Ariz. at Moreover, K.C. s testimony was likely of minimal, if any, benefit to Guzman because it largely contradicted Guzman s own testimony. In fact, while testifying, Guzman attempted in several instances to distance himself from 16 K.C. s statements, which if believed might have Guzman s liability for robbery as an accomplice. established Finally, the evidence as a whole overwhelmingly established Guzman s guilt, and despite the fact that the prosecutor s remark was improper, when viewed in context of the entire trial, it was not so prejudicial as to deprive Guzman of his right to a fair trial. See Newell, 212 Ariz. at 403-04, ¶ 70, 132 P.3d at 847-48. ¶25 the In light of the testimony presented, and given that trial court was in the best position to gauge how the prosecutor s remark might be construed by the jury, we find no abuse of discretion in the court s ruling that the remark did not warrant a mistrial. See State v. Ferguson, 149 Ariz. 200, 212, 717 P.2d 879, 891 (1986). Accordingly, we hold that there was no error in the denial of the motion for mistrial. CONCLUSION ¶26 Guzman s convictions and sentences are affirmed. _____________/S/_________________ LAWRENCE F. WINTHROP, Chief Judge CONCURRING: ______________/S/__________________ MAURICE PORTLEY, Presiding Judge _____________/S/___________________ PATRICIA K. NORRIS, Judge 17

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