STATE v. PALAFOX

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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. LAURO CORONA PALAFOX, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 2/26/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 11-0501 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-162530-001 The Honorable Samuel A. Thumma, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Michael T. O Toole, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Louise Stark, Deputy Public Defender Attorneys for Appellant Phoenix H O W E, Judge ¶1 and Lauro Corona Palafox appeals his multiple convictions sentences assault, for sexual kidnapping, abuse, and unlawful luring imprisonment, a minor for sexual sexual exploitation. The offenses arose from three separate incidents in which Palafox, while female victim pedestrian driving and his grabbed vehicle, her. In approached two of a the incidents, the seventeen-year-old victims, J.W. and L.B., were able to break free and run away before Palafox could pull them in to the vehicle. In the other incident, Palafox succeeded in pulling twenty-year-old S.G. into his car where he sexually evidence supports assaulted her. Palafox raises two issues on appeal. I. Sufficiency of Evidence ¶2 Palafox first argues insufficient his convictions for kidnapping in Counts 1 and 9. Count 1 is based on an incident that occurred on or about April 19, 2004, involving J.W. Count 9 is based on an incident that occurred on or about September 24, 2009, involving L.B. 1 ¶3 We review claims of insufficient evidence de novo. State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993). We will affirm a jury s verdict if substantial evidence supports it. State v. Cox, 217 Ariz. 353, 357, ¶ 22, 174 P.3d 265, 269 1 The remaining incident, involving S.G., occurred on or about August 14, 2007, and formed the basis for Counts 3 to 8. Before trial, the court denied Palafox s motion to sever and granted the State s motion to admit evidence of the three incidents under Arizona Rule of Evidence 404(c). In doing so, the court made the appropriate findings under Rule 404(c) that evidence of the three offenses would be cross-admissible in the event of separate trials. Palafox does not contest these rulings. 2 (2007). [w]e When addressing construe the a sufficiency evidence in the of evidence light most argument, favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant. State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 inferences that support (1998). the We draw all reasonable verdict, State v. Fulminante, 193 Ariz. 485, 494, ¶ 27, 975 P.2d 75, 84 (1999), and we resolve any conflict in the evidence in favor of sustaining the verdict, State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). We will reverse only if a complete absence of probative facts supports the conviction. State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976). We will not weigh the evidence, because that is the jury s function. Guerra, 161 Ariz. at 293, 778 P.2d at 1189. Finally, credibility determinations are for the jury, not the trial judge or this Court, see State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995), and no distinction exists between circumstantial and direct evidence, State v. Stuard, 176 Ariz. 589, 603, 863 P.2d 881, 895 (1993). ¶4 another physical A person commits kidnapping by knowingly restraining person injury with or the a intent sexual to . offense . on . [i]nflict the victim, death, or to otherwise aid in the commission of a felony[.] A.R.S. § 13- 3 1304(A)(3) (West 2013). 2 In accordance with A.R.S. § 13- 1301(2)(a), the trial court instructed the jury, Restrain means to restrict a person s movements without consent, without legal authority, and in a manner which interferes substantially with such person s liberty, by either moving such person from one place to another or by confining such person. Restraint is without consent if it is accomplished by . . . [p]hysical force, intimidation or deception[.] ¶5 Palafox limits his sufficiency of evidence argument to whether substantial evidence existed that he restrained J.W. and L.B. Specifically, he argues that no trial evidence supports the conclusion that he confined the victims because they were not enclosed, imprisoned, or prevented from movement. 3 We reject this argument. ¶6 J.W. testified that, as she was waiting in a nearby shopping plaza for school to open, Palafox pulled up in a van and said, Let s go . . . get in. Palafox told J.W. he wanted to have sex with her, and when she refused, he grabbed J.W. s right arm through the open door. J.W. screamed, pulled away, and 2 We cite the current version of the applicable statutes because no revisions material to this decision have since occurred. 3 Palafox also argues that, because [t]he contact seems to have lasted mere seconds in each instance[,] he did not restrain the victims for purposes of the kidnapping charges. We summarily reject this argument. Section 13-1304(A)(3) does not include temporal duration as an element of the offense, and Palafox points to no authority imposing such a requirement. 4 Palafox drove off. L.B. testified she was waiting at a bus stop after she left school when Palafox came up in a van, exited the vehicle, and as L.B. crossed the street, pointed to the van and said Palafox ride. grabbed scared, and When her L.B. arm, thought refused saying, [she] and Van, wasn t continued the going walking, van. to was home. go L.B. She jerked [her] arm away and fled. ¶7 This cases. is Palafox sufficient nevertheless evidence of apparently restraint argues in that both neither victim was restrained because he did not confine them, and cites a dictionary defining to confine to mean to enclose within bounds or to shut in or keep in; prevent from leaving a place because notes, to Random House of imprisonment. confine also Dictionary But means of the to as Palafox s limit English or definition restrict. Language 428 (2d The ed. 1987). Confine also means to prevent free outward passage or motion of[.] Webster s Third New International Dictionary 476 (3d ed. 2002). Based on the foregoing testimony, a reasonable juror could conclude that when Palafox forcefully grabbed the victims arms, he restricted or limited their free motion. Accordingly, sufficient evidence supports Palafox s convictions on Counts 1 and 9. II. Jury Instruction: ¶8 Fundamental Error Also relating to the kidnapping convictions in Counts 5 1 and 9, Palafox next contends that the trial court fundamentally erred in sua sponte failing to instruct the jury on the lesser-included offense of unlawful imprisonment on Counts 1 and 9. See State v. Tschilar, 200 Ariz. 427, 437, ¶ 40, 27 P.3d 331, 341 (App. 2001) (holding unlawful imprisonment is a lesser-included however, that imprisonment offense when the instruction of kidnapping). court was inquired warranted The record whether on reflects, an Counts unlawful 1 and 9, Palafox specifically stated it was not: THE COURT: Okay. Let s talk about that for kidnapping, the lesser-included. For Count 1 and Count 9, it seems to me that either the victims were kidnapped or the Defendant attempted to kidnapped [sic] them or they weren t kidnapped.[4] I m hard-pressed for those two victims, victim 1 and 3, to see how unlawful imprisonment would pertain. So if I am overlooking something I want to know. [DEFENSE perfect. ¶9 COUNSEL]: No, Judge, that s In light of Palafox s strategic election to proceed without instructing court s failure to the do jury on unlawful so sua sponte imprisonment, cannot the constitute fundamental error. State v. Sanderson, 182 Ariz. 534, 542-43, 898 P.2d 483, 491-92 (App. 1995) ( When counsel specifically 4 The court instructed the jury on attempted kidnapping for Counts 1 and 9. 6 declines an instruction, no fundamental error is present because the court s failure to instruct does not interfere with the defendant s theory of the case nor does it deny him a right essential to his defense. ). The principle recognized in State v. Vowell, 25 Ariz. App. 404, 405, 544 P.2d 228, 229 (1976), that the giving of a lesser-included offense instruction, sua sponte, could infringe upon the appellant s trial strategy and work to his prejudice, supports our conclusion. 5 CONCLUSION ¶10 For the reasons stated, we affirm Palafox s convictions and sentences. __/s/_____________________________ RANDALL M. HOWE, Judge CONCURRING: __/s/______________________________ PATRICIA K. NORRIS, Presiding Judge _/s/_______________________________ ANDREW W. GOULD, Judge 5 Palafox focuses his jury instruction challenge on the apparent inconsistency in the jury s guilty verdict for the lesser-included offense of unlawful imprisonment for Count 3, a kidnapping charge that pertained to the victim S.G. As Palafox points out, the record reflects that he acted more forcefully in the incident involving S.G. indeed, he was found guilty of sexually assaulting her than he did in the incidents underlying Counts 1 and 9. We reject this argument. To the extent the verdicts are inconsistent, Arizona law permits such verdicts. State v. Garza, 196 Ariz. 210, 212, ¶ 7, 994 P.2d 1025, 1027 (App. 1999) (listing cases). 7

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