STATE v. TABAK

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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. KEYHAN TABAK, Appellant. 1 CA-CR 11-0421 DIVISION ONE FILED: 04/30/2013 RUTH A. WILLINGHAM, CLERK BY: GH DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-121206-001SE The Honorable Samuel A. Thumma, Judge AFFIRMED Thomas C. Horne, Attorney General By Joseph T. Maziarz Criminal Appeals/Capital Litigation Section and Matthew Binford, Assistant Attorney General Attorneys for Appellee Phoenix The Nolan Law Firm P.L.L.C. By Cari McConeghy Nolan Attorneys for Appellant Phoenix G E M M I L L, Judge ¶1 Keyhan Tabak appeals from his sentences for two counts of aggravated assault. convictions and For the reasons that follow, we affirm his convictions and sentences. BACKGROUND ¶2 We view the evidence in the light most favorable to sustaining the convictions and resolve all reasonable inferences against the Defendant. State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3, 110 P.3d 1026, 1027 (App. 2005). ¶3 Around 11:00 p.m. on April 21, 2010, Tabak chased the victim on foot outside a restaurant in Mesa. into the missed. ¶4 restaurant, Tabak shot at him As the victim ran with a handgun and Tabak ran from the scene. Witnesses EM and her boyfriend CD were preparing to leave the restaurant s parking lot when Tabak fired the shot. As Tabak fled, the couple followed him, and CD called 9-1-1. BH, a patron at the restaurant, heard the shot and followed Tabak on foot. Mesa Police quickly apprehended Tabak nearby and promptly conducted one-on-one identification procedures with the three witnesses. The gun used in The witnesses identified Tabak as the shooter. the shooting was never located, but Tabak stipulated at trial that gunshot residue was found on his hands after the shooting. Other specific details of the shooting and ensuing investigation are discussed below in the context of the issues raised on appeal. ¶5 The State charged Tabak with two counts of aggravated assault, both class three dangerous felonies. on Tabak allegedly pointing the 2 gun at the Count 1 was based victim while he chased him outside the restaurant. the gun at the victim. intentionally imminent put the physical Count 2 was based on firing Both incidents were alleged to have victim injury in in reasonable violation of apprehension Arizona Statutes ( A.R.S. ) section 13-1203(A)(2) (2010). 1 charges were firearm. aggravated based on Tabak s of Revised The assault alleged See A.R.S. § 13-1204(A)(2) (Supp. 2012). used of a The State also alleged both counts were dangerous offenses because they involved the discharge, use, or threatening exhibition of a firearm. See A.R.S. § 13-105(13), (15) (Supp. 2012). ¶6 The jury found Tabak guilty as charged on both counts. Tabak waived his right to a jury trial on the State s alleged aggravating circumstances. found the offenses State proved involved the Based on the evidence, the court beyond a infliction injury. See reasonable or doubt threatened A.R.S. § that infliction 13-701(D)(1) the of serious physical (Supp. 2012). The court also found the State proved the non-statutory aggravating factor that Tabak evaded police and attempted to cover up the crime. social The history court On the other hand, the court found Tabak s and imposed childhood were concurrent, mitigating slightly circumstances. aggravated, terms of twelve years imprisonment for both counts. 1 We cite the current version of statutes when no material revisions have occurred since the events in question. 3 ¶7 to Tabak timely appealed. A.R.S. §§ 12-120.21(A)(1) We have jurisdiction pursuant (2003), 13-4031 (2010) and 13- 4033(A) (2010). DISCUSSION ¶8 in On appeal, Tabak argues that (1) the trial court erred admitting hearsay evidence; (2) the prosecutor committed misconduct that resulted in an unfair trial; (3) the show-up procedure allowing was the unduly State suggestive; to present (4) the expert court testimony erred in regarding identification; (5) the court erred in denying Tabak s motion for acquittal; and (6) the court erred at sentencing in considering an improper aggravating circumstance. I. ¶9 Hearsay Evidence Tabak points to three instances during EM s testimony where the court purportedly erred in allowing hearsay statements into evidence. First, he challenges the following testimony by EM regarding a shell casing that police found at the scene of the shooting: Prosecutor: [W]hen you saw the man on Guadalupe and then you saw the police take him into custody, what was the next thing you did? EM: Went back. They had him on the corner and then they had officers at the restaurant so we went back there. Prosecutor: To the [restaurant]? 4 EM: Uh-huh. Then I parked in the same spot, and it turned out that the shell casing was under my car. Prosecutor: At that point was it under your car or was it near the car or? EM: It was under. Prosecutor: I m going to show you Exhibit 1 again. Does that look at all familiar to you? EM: Is that [the] casing? Prosecutor: Does that look like it could be the casing to you? EM: I don t know. I just know that they wouldn t let me leave because they said that it was under my car. Prosecutor: So you just assumed at that point that the bullet was right under your car? EM: That s what they told me. they found it under my - They told me Prosecutor: Is it found over there? that possible Defense counsel: foundation. The Court: Objection. it was Lack of I ll sustain the objection. Prosecutor: Do [sic] you actually ever go look at the casing, touch the casing? EM: No. I don t know anything about guns. I didn t even think about a casing. ¶10 We review only for fundamental error because Tabak failed to object to the line of questioning on hearsay grounds. 5 See State v. Velazquez, 216 Ariz. 300, 309-10, ¶ 37, 166 P.3d 91, 100-01 (2007); see also State v. Henderson, 210 Ariz. 561, 567, ¶ requires 19, 115 P.3d stating the 601, 607 (2005). specific ground A of proper objection objection, specific ground was not apparent from the context. if the State v. Lopez, 217 Ariz. 433, 434-35, ¶ 4, 175 P.3d 682, 683-84 (App. 2008) (quoting Ariz. R. Evid. 103(a)(1)). A general objection or an objection on a ground other than the one asserted to the appellate court does not preserve the issue for appeal. ¶11 has Id. To obtain relief under fundamental error review, Tabak the burden to show that error occurred, fundamental and that he was prejudiced thereby. the error was See Henderson, 210 Ariz. at 567-68, ¶¶ 20-22, 115 P.3d at 607-08. Fundamental error is error that goes to the foundation of [a defendant s] 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. Id. at 568, ¶ 24, 115 P.3d at 608. The showing required to establish prejudice differs from case to case[,] Id. at ¶ 26, but prejudice must be shown in the record and may not be based solely on speculation. State v. Munninger, 213 Ariz. 393, 397, ¶ 14, 142 P.3d 701, 705 (App. 2006). ¶12 otherwise, The in trial court permitting did the not err, testimony 6 fundamentally regarding the or shell casing because the testimony was not hearsay. 2 Hearsay is a statement . . . offeres in evidence to prove the truth of the matter asserted and generally is not admissible as evidence. Ariz. R. Evid. 801(c), 802. evidence to prove the Here, the testimony was not in precise location of the shell casing. Rather, the questioning was in response to EM s initial off-hand comment that the casing turned out to be under her car, a fact that was contrary to photographs of the scene already evidence indicating the casing was behind the car. in Moreover, even if the court erred in allowing the line of questioning, we fail to see how the error rises to the level of fundamental error. That is, this testimony did not go to the foundation of the case, take away an essential right of Tabak s, or deprive him of a fair trial. P.3d at 608. See Henderson, 210 Ariz. at 568, ¶ 24, 115 Also, in light of Tabak s concession at trial that there was a gun at the scene and Officer Wiltrout s testimony that shell casings shoot all over the place after a gunshot, Tabak cannot meet his burden to 2 show that EM s testimony As non-hearsay, admission of the testimony into evidence did not implicate Defendant s confrontation rights under the Sixth Amendment. See Crawford v. Washington, 541 U.S. 36, 53, 59, n.9 (2004) (emphasizing that the Sixth Amendment is primarily concerned with testimonial hearsay, and noting [t]he Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted ); State v. Tucker, 215 Ariz. 298, 315, ¶ 61, 160 P.3d 177, 194 (2007) (testimony that is not admitted to prove its truth is not hearsay and does not violate the Confrontation Clause). 7 prejudiced him. ¶13 Tabak next refers to EM s testimony after she refreshed her recollection by silently reading a police report containing the written statement she gave to officers the night of the shooting. EM testified that what she had just described at trial regarding the incident mirrored her written statement. Tabak argues this testimony was improper hearsay evidence, impermissible vouching and bolstering testimony. ¶14 Because Tabak did not object to the testimony at trial, our review is limited to evaluating whether fundamental error occurred. Even if admission of the testimony was error, it did not go to the foundation of Tabak s case, take away a right essential to his defense, nor was it of such magnitude that his trial was unfair. 24, 115 P.3d at 608. See Henderson, 210 Ariz. at 568, ¶ Tabak fails to affirmatively show how the bolstering testimony prejudiced him in light of the eyewitness testimony and other incriminating evidence at trial. ¶15 Third, and finally, Tabak argues that it was improper for the prosecutor to allow EM to refresh her memory by reviewing a police report. Tabak references a section of the trial questioned where the prosecutor EM as statement to the police officers at the scene. to her verbal After reviewing the transcripts, we discern no error on the use of the police report to refresh EM s memory. 8 ¶16 Once it is established that a witness s memory has failed, Rule 612 permits the use [of] a writing to refresh memory for the purpose of testifying. State v. Ortega, 220 Ariz. 320, 330, ¶33, 206 P.3d 769, 779 (App. 2008). under Rule 612 the writing is neither read in Because evidence nor admitted as an exhibit, [a]ll that is necessary is that it appears that the writing or object serves independent recollection of the witness. to revive the State v. Hall, 18 Ariz. App. 593, 596, 504 P.2d 534, 537 (1972). A witness may refresh her recollection with any document regardless of how or by whom it was created. Kinsey v. State, 49 Ariz. 201, 214, 65 P.2d 1141, 1147 (1937). ¶17 Although EM did not testify explicitly that her memory failed regarding her verbal statement to the police, she could only remember giving answers to general questions. EM agreed that looking at the police report might refresh her memory as to her verbal testified statement. that it After did refresh reviewing her the she Afterward memory. statement she testified, not as to contents of the report, but to her own recollection of the events. Accordingly, we conclude the trial court did not err in allowing the use of the police report to refresh EM s recollection. ¶18 Tabak also complains here that as a result of reviewing the police report, EM s testimony was inadmissible 9 double hearsay. Tabak, however, does not clearly articulate what testimony he objects to as being erroneously admitted on hearsay grounds. Without testimonial evidence to evaluate, we cannot properly conduct fundamental error review. find no abuse of discretion by the court in We therefore regard to the admission of this evidence. II. Prosecutorial Misconduct ¶19 Officer Russell testified, over hearsay objection, that he interviewed CD, and CD wrote in his statement that his positive identification guaranteed. of Tabak as the shooter was Officer Russell also testified that CD said he observed what appeared to be one male chasing another and CD definitely saw a black handgun. by eliciting misconduct the responses warranting from reversal. amounted to improper vouching. Officer Russell s testimony was Tabak argues the prosecutor, Officer He Russell, contends the engaged in testimony Tabak also appears to argue inadmissible hearsay, and therefore, the prosecutor engaged in misconduct by presenting this testimony. ¶20 We review for fundamental error because Tabak did not object at trial to the prosecutor s questions on the basis of prosecutorial misconduct. See Lopez, 217 at 434-35, ¶ 4, 175 P.3d at 683-84 (noting that an objection on another ground does not preserve issue for appeal). 10 To gain relief, Tabak must prove error occurred, the prejudiced by the error. error was fundamental, and he was Henderson, 210 Ariz. at 568, ¶¶ 23-26, 115 P.3d at 608. ¶21 A defendant seeking reversal of a conviction for prosecutorial misconduct must establish that (1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury s denying [the] defendant a fair trial. Ariz. 545, 549, ¶ 7, 250 P.3d verdict, thereby State v. Dixon, 226 1174, 1178 citation omitted and quotations omitted). (2011) (internal In addition, reversal is only required if misconduct is so pronounced and persistent that it permeates the entire atmosphere of the trial. State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998) (quotation omitted). ¶22 Tabak indicating the does not point prosecutor conduct. Tabak does prosecutor that improperly challenge is only to not a to anything intentionally identify any bolsters particular in engaged comments a of in made record improper by the instead, the questioning. In witness; line the asking Officer Russell about his conversation, the prosecutor neither placed the prestige of the government behind the officer s testimony nor suggested the existence of additional evidence not presented to the jury. See State v. Doerr, 193 Ariz. 56, 62, ¶ 24, 969 P.2d 1168, 1174 (1998). 11 We are not persuaded that Tabak was prejudiced by the questioning. Although CD did not identify Tabak in court, CD testified that he was sure he identified the right person at the scene of the crime when police presented Tabak to the witnesses. Furthermore, even if Officer Russell s statements regarding CD were hearsay, the questioning of Officer Russell was not so egregious as to deprive Tabak of a fair trial. See State v. Hernandez, 170 Ariz. 301, 307, 823 P.2d 1309, 1315 (App. 1991). We cannot say the prosecutor s questioning in this case rose to the level of fundamental, prejudicial error necessary to reverse Tabak s convictions. III. Show-Up Procedure ¶23 Tabak argues that the show-up identification procedures used by the police the night of the incident were unduly suggestive and therefore violated his due process rights. Tabak did not raise this argument at normally review for fundamental error. argue on appeal that the court trial. Therefore, we Tabak, however, does not committed fundamental error. Thus, he has waived this issue and we do not address it. See State v. Moreno-Medrano, 218 Ariz. 349, 354, ¶¶ 16-17, 185 P.3d 135, 140 (App. 2008) (declining to review for fundamental error when appellant failed to raise claim in trial court and failed on appeal to address whether alleged error was fundamental); see also State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 12 (1989) (holding constitutes that the abandonment failure and to waiver argue of such a claim claim) usually (citations omitted). IV. Expert Testimony: ¶24 the Identification Tabak claims the court fundamentally erred in allowing State to utilize[] the police officers as experts discuss that the show-up identification was proper[.] officers involved in testified that the they witnesses were identification trained to to Several of conduct Tabak show-up identifications in a non-suggestive manner when a suspect is apprehended soon after an alleged crime was committed. further testified that, when witnesses memories They are still fresh, a show-up procedure is preferred to waiting until later to conduct a live or photo line-up. On the issue of memory, an officer opined the more recent the better. ¶25 We disagree with Tabak s contention that the officers testimony regarding memory amounted to improper expert testimony. Rather, the testimony merely recounted the commonly understood notion that memory about a specific incident deteriorates over time, thus providing support for conducting show-up Further, training identifications the officers regarding identifications. soon were when after a entitled and how suspect to is testify to apprehended. about conduct their show-up This testimony assisted the jury to understand 13 why the police employed show-up procedures in this case. Ariz. R. Evid. 702. 3 See The test of whether a person is an expert is whether a jury can receive help on a particular subject from the witness. State v. Davolt, 207 Ariz. 191, 210, ¶ 70, 84 P.3d 456, 475 (2004). The officers did not opine that the show- up procedures they used passed constitutional muster relative to Tabak s due process rights. in failing stricken. V. ¶26 chief 3 to intervene Accordingly, the court did not err sua sponte and order the testimony No error, fundamental or otherwise, occurred. 4 Rule 20 Tabak moved at the conclusion of the State s case in for a judgment of acquittal with respect to Count 1 Rule 702, as applicable at the time of trial, stated: If . . . specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. 4 Defendant also establish prejudice. cannot meet his burden to affirmatively The court instructed the jury: Expert opinion testimony should be judged just as any other testimony. You are now bound by it. You may accept it or reject it in whole or in part, and you should give it as much credibility and weight as you think it deserves, considering the witness' qualifications and experience, the reasons given for the opinions and all the other evidence. 14 pursuant to Arizona Rule of Criminal Procedure 20. denied the motion. The court Tabak argues the court erred in denying his motion because there was no evidence of the gun being pointed at [the victim] or that he was actually placed in reasonable apprehension separate and apart from the evidence that a gun was discharged towards him for 1203(A)(2), -1204(A)(2). ¶27 Count 2. See A.R.S. §§ 13- We disagree. We review de novo a trial court s denial of a Rule 20 motion. State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993). A motion for judgment of acquittal must be granted when there is no substantial evidence Ariz. R. Crim. P. 20(a). to warrant a conviction. Substantial evidence is evidence that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant s guilt beyond a reasonable doubt. State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). ¶28 Contrary assault statues to Tabak s apply apprehension, we have circumstantial evidence a argument subjective held may that prove the that standard the to [e]ither victim s aggravated a victim s direct or apprehension. State v. Wood, 180 Ariz. 53, 66, 881 P.2d 1158, 1171 (1994); see also State v. Angle, 149 Ariz. 499, 504, 720 P.2d 100, 105 (App. 1985) (noting the state need not present testimony from the victim that he or she was actually afraid; rather, the element 15 can be established by circumstantial evidence), vacated in part on other grounds, 149 Ariz. 478, 720 P.2d 79 (1986). ¶29 case There to is prove sufficient the circumstantial victim s reasonable evidence in this apprehension. EM testified that, before she heard a gunshot, she observed from her driver s seat Tabak chasing the victim past the passenger side of her car. Although EM could not see a gun because of her obstructed view, she testified she saw Tabak s arm was raised and somebody else saw the gun. 5 EM also heard Tabak say Remember me, mother ------ just before he fired the gun. The fact the victim was running away from Tabak, who was by some reports pointing a gun at the victim and making threatening comments, is substantial evidence that Tabak used a firearm to intentionally imminent place physical the victim injury. in We reasonable therefore apprehension conclude there of was substantial evidence to support a finding of guilt on Count 1. VI. ¶30 the Sentencing: Statutory Aggravating Circumstance Finally, Tabak argues the court improperly considered threatened aggravating infliction sentencing of serious factor physical because it injury was as an already encompassed in the convictions, in violation of A.R.S. § 13-701 (D)(1). 5 Whether Defendant testimony. did a court not properly object 16 to, considered or move to an aggravating strike, this factor when sentencing a defendant presents a legal question that we review de novo. State v. Alvarez, 205 Ariz. 110, 113, ¶ 6, 67 P.3d 706, 709 (App. 2003). ¶31 the Under A.R.S. § 13-701(D)(1), the court shall consider threatened aggravating infliction factor unless of serious this physical circumstance is injury an as an essential element of the offense: D. For the purpose of determining the sentence pursuant to subsection C of this section, the trier of fact shall determine and the court shall consider the following aggravating circumstances . . . : 1. Infliction or threatened infliction of serious physical injury, except if this circumstance is an essential element of the offense of conviction or has been utilized to enhance the range of punishment under § 13-704. (Emphasis added). If threatened infliction of serious physical injury is an essential element of the charged offense, the court cannot use this factor to aggravate the sentence. See State v. Pena, 209 Ariz. 503, 506-07, ¶ 14, 104 P.3d 873, 876-77 (App. 2005) (confirming it is improper to use infliction of serious physical injury as an aggravator when defendant was convicted of aggravated assault based on serious physical injury). ¶32 Tabak assault. the was charged with two counts of aggravated Both of the underlying assault charges were based on victim s apprehension of 17 imminent physical injury in accordance A.R.S. with §§ A.R.S. § 13-1203(A)(2) 13-1203(A)(2). and In accordance 12-1304(A)(2), the jury with was instructed that the essential elements for each count included: 1) The defendant intentionally put another person in reasonable apprehension of imminent physical injury, and 2) The defendant used a deadly weapon. The jury convicted Tabak on both charges and found the offenses to be dangerous because his actions involved the use of a firearm. See A.R.S. § 13-105(13), (15). ¶33 The State argues that although the jury was required to find that Tabak placed the victim in apprehension of imminent physical injury, the jury was not required to find that he threatened serious physical injury. (Emphasis added). Therefore, the State argues, Tabak s threatened infliction of serious physical injury was not an essential element of the aggravated assault offenses and could be considered by the court as an aggravating factor. ¶34 Our We agree. legislature has separately defined physical injury and serious physical injury in A.R.S. § 13-105(33) and -105(39), respectively. 6 These phrases are not the same. 6 A.R.S. § 13-105 provides in pertinent part: In this title, unless the context otherwise requires: . . . 18 The assault charges against Tabak required proof of the victim s reasonable apprehension of imminent physical injury. Proof of the threatened infliction of serious physical injury is not an essential element of these assault offenses. The fact that Tabak s conduct accomplished both the placing of the victim in apprehension of imminent physical injury and the threatening of serious physical injury makes the threat of serious physical injury an essential element of these assault offenses. ¶35 We conclude, therefore, that the trial court did not err in considering this aggravating circumstance in sentencing. CONCLUSION ¶36 Defendant s convictions and sentences are affirmed. /s/ _________________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: /s/ ____________________________ MARGARET H. DOWNIE, Judge /s/ _________________________________ LAWRENCE F. WINTHROP, Chief Judge 33. Physical injury means the impairment of physical condition. . . . 39. Serious physical injury includes physical injury that creates a reasonable risk of death, or that causes serious and permanent disfigurement, serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb. 19

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