STATE v. RAYOS

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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. ) ) GABRIEL MARTIN RAYOS, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 03/28/2013 RUTH A. WILLINGHAM, CLERK BY: GH No. 1 CA-CR 12-0308 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-111299-001 The Honorable Jeanne M. Garcia, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division and Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Phoenix Droban & Company, PC by Kerrie M. Droban Attorneys for Appellant Anthem G E M M I L L, Presiding Judge ¶1 Gabriel Martin Rayos appeals his convictions sentences for first-degree murder and aggravated assault. argues the trial court erred in admitting a letter and Rayos without proper foundation and in allowing the prosecution to amend the indictment mid-trial to change its theory of aggravated assault. For the reasons that follow, we affirm. ¶2 A grand jury indicted Rayos on charges of first-degree murder of Armando L. and aggravated assault causing physical injury to Jose V. The charges arise from a shooting at about 2:30 a.m. in the parking lot of a west Phoenix strip club. 1 The evidence at trial showed that Rayos fired a gun at Armando eight times, killing him, and then, while struggling with Jose, pointed the gun at him, causing Jose to fear being shot. ¶3 Rayos testified that he shot Armando because he heard someone yell, [h]e s got a gun, and he saw Armando reach under his shirt. He denied intentionally pointing the gun at Jose. The jury convicted Rayos of first-degree murder and aggravated assault. The judge sentenced him to life with possibility of parole after twenty-five years on the murder conviction and to fifteen years on the aggravated assault conviction, to be served consecutively. Rayos filed a timely notice of appeal. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2003), 134031 (2010), and 13-4033(A)(1) (2010). 1 The indictment also charged Rayos with misconduct involving weapons, an offense severed for trial from the murder and assault charges. Rayos subsequently pled guilty to the misconduct charge, and the judge sentenced him to ten years on that offense, to be served concurrently with the other sentences in this case. 2 ¶4 Rayos argues that the trial court erred in admitting a copy of a letter witnesses. he purportedly authored threatening The letter, found in a trash can outside Rayos s jail cell, was signed with his nickname, Droopy. suggested that Armando s ex-wife, an The letter eyewitness, could be persuaded to change her statement and testify that Rayos was not the shooter; that Jose should be located on Facebook because he is snitching like crazy ; that a third witness, Ashley, could be paid to change her testimony My family will pitch in for that ; and that a fourth witness, Selena, needed to testify that the murder weapon, the gun with the brown handle, was not his gun. was A detention officer testified that he believed that Rayos trying to pass the letter to another inmate, who had motion to requested that the trash can be brought to his cell. ¶5 The trial court denied Rayos s pretrial preclude admission of the copy, reasoning that the contents of the letter itself supplied sufficient foundation. court admitted a redacted copy of the letter At trial, the following the detention officer s testimony that he copied the letter after discovering it in the trash can outside Rayos s jail cell the handwriting analyst s testimony that similarities and between known samples of Rayos s handwriting and the copy of the letter led him to conclude that Rayos had probably authored it. 3 ¶6 Rayos argues that the State had not foundation for the admission of the letter. laid adequate He claims that no one witnessed him putting the letter in the trash can. He further to argues that because the prison officials failed preserve the original letter, the handwriting expert had to work with a poor copy that left him probably authored the letter. opining only that Rayos Under these circumstances, he argues, Rule 1003 of the Arizona Rules of Evidence precluded admission of the copy, because there was a genuine question as to the original [letter s] authenticity and other circumstances supporting its admissibility were suspect. ¶7 Adequate sufficient proponent to support claims substance, foundation finding is, it a such internal characteristics of the R. party sufficient the by by item evidence is appearance, or taken Evid. provided that as item, Ariz. laid be patterns, circumstances. has may other together 901(a), foundation the contents, distinctive with (b)(4). for what the all the Whether admission a of evidence is within the sound discretion of the trial court, and we will not disturb its ruling absent a clear abuse of that discretion. State v. George, 206 Ariz. 436, 446, ¶ 28, 79 P.3d 1050, 1060 (App. 2003). ¶8 admitting We find the no letter. abuse The of discretion signature 4 on by the the court letter, in the circumstances of its discovery, its content, and the handwriting expert s opinion that Rayos probably authored it constituted persuasive evidence that Rayos had written the letter. The fact that the letter was a poor copy of the original, limiting to some extent the handwriting expert s ability to compare it with Rayos s writing, went to the weight of the evidence, not its admissibility. 1060. See George, 206 Ariz. at 446, ¶ 31, 79 P.3d at Moreover, stand that he Rayos had in conceivable problem failed raise to subsequently admitted fact the with any written foundation. genuine the letter, Rayos question on curing has, about witness in the any short, letter s authenticity or identify any circumstances that persuade us that it was unfair to admit the copy. that the trial court did not On this issue, we conclude abuse its discretion and no erred by reversible error occurred. ¶9 Rayos also argues that the trial court permitting the prosecution to amend the indictment mid-trial to change the theory of assault. After the State rested, the State moved to amend the indictment to change the aggravated assault charge from causing physical injury to Jose, to causing Jose reasonable apprehension of imminent physical injury. Over Rayos s objection, the court granted the motion finding that Rayos had notice that this was the type of aggravated assault the State alleged and intended to prove. 5 ¶10 The State concedes that the court violated Rule 13.5(b) of the Arizona Rules of Criminal Procedure in amending the aggravated assault offense mid-trial from physical injury assault to reasonable apprehension assault. Because Rayos objected to the amendment, to avoid reversal the State must show that the error was harmless beyond a reasonable doubt. State v. Freeney, 223 Ariz. 110, 114, ¶ 26, 219 P.3d 1039, 1043 (2009). In determining whether the litigation whether amendment strategy, witnesses or argument. the error somehow was harmless, trial prejudice[d] preparation, the we look at defendant s examination of State v. Lehr, 227 Ariz. 140, 154, ¶ 70, 254 P.3d 379, 393 (2011) (quoting Freeney, 223 Ariz. at 115, ¶ 28, 219 P.3d at 1044). ¶11 The State has met its burden in this case to prove the error was harmless. Rayos had actual notice that the State was alleging and intending to prove reasonable apprehension assault long before trial: in the case-management plan filed by the State ten months before trial, during the settlement conference four months before trial, and from the statements filed in the month before trial. State s pretrial During voir dire, the State s pretrial statement alleging reasonable apprehension assault was read to the prospective jurors, and the judge later noted that this was with [defense counsel s] consent. In her opening statement, moreover, the prosecutor told the jury that 6 the evidence would show that the defendant committed aggravated assault when he pointed the handgun at the face of Jose [], placing him in fear that he, too, would be shot. After the judge allowed the amendment, Rayos did not request a recess or a continuance to allow him to prepare a new defense, nor did he ask to recall Jose to cross-examine him on the reasonable apprehension assault charge. ¶12 On appeal, Rayos fails to identify any way in which the amendment actually prejudiced his litigation strategy, trial preparation, examination of witnesses, or argument. On this record, we find that the State has met its burden to show that the amendment to change the theory of assault was harmless affirm Rayos s beyond a reasonable doubt. ¶13 For the foregoing reasons, we convictions and sentences. /s/ ___________________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: /s/ ____________________________________ JON W. THOMPSON, Judge /s/ ____________________________________ DONN KESSLER, Judge 7

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