State v. Acosta-Alvarez
| Decision Date | 31 March 2014 |
| Docket Number | No. 2 CA-CR 2012-0407,2 CA-CR 2012-0407 |
| Parties | THE STATE OF ARIZONA, Appellee, v. JORGE ISMAEL ACOSTA-ALVAREZ, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Javier Chon-Lopez, Judge
The Honorable Deborah Bernini, Judge
AFFIRMED IN PART; VACATED IN PART
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Alan L. Amann, Assistant Attorney General, Tucson
Counsel for Appellee
By Robb P. Holmes, Assistant Legal Defender, Tucson
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred.
¶1 After two separate jury trials, Jorge Acosta-Alvarez (Acosta) was convicted of weapons misconduct and three counts of aggravated assault. The trial court sentenced him to concurrent prison terms, the longest of which was 7.5 years. On appeal, Acosta asserts the evidence was insufficient to support his conviction for weapons misconduct and one of the three convictions for aggravated assault and that the trial court should have granted his motions for judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P. He also contends the court erred by failing to preclude the expert testimony of a witness for the state.
¶2 We view the facts in the light most favorable to sustaining the challenged convictions. See, e.g., State v. Sarullo, 219 Ariz. 431, ¶ 2, 199 P.3d 686, 688 (App. 2008). One evening in September 2011, Acosta was involved in a shooting in front of an apartment complex. He was charged with three counts of aggravated assault, two counts of attempted robbery, and one count of weapons misconduct, based on his status as a prohibited possessor. The trial court granted Acosta's motion to sever the weapons misconduct charge. He was tried, convicted, and sentenced as set forth above.
¶3 At the trial that resulted in Acosta's aggravated assault convictions, the state presented testimony by several police officers, two of the three victims identified in the indictment, and theresident of the apartment where a gun was recovered. One of the victims, M.M., testified he had been leaving the apartment complex in his girlfriend J.W.'s sedan, when he saw "a car pull around the corner at a high rate of speed" and "pull[] up . . . on the opposite side of the road." Because one of the occupants in the other car had yelled at him, M.M. got out of J.W.'s vehicle, as did C.C., another victim who had been in the back seat. J.W. remained in the vehicle. The driver of the other car, Acosta, approached M.M. and C.C. on foot with a gun drawn, aiming "back and forth" between M.M. and C.C. When M.M. realized Acosta had a gun, he began "sidestepping" to the front of J.W.'s car. M.M. then pulled out his own weapon and fired three shots at Acosta, who was now standing near the back bumper of J.W.'s car. Acosta returned fire and then ran to the other side of the apartment complex. When M.M. returned to the car, he discovered J.W. had been shot in the back.
¶4 The state also introduced a taped statement in which Acosta admitted firing at M.M. from behind the rear bumper of J.W.'s vehicle. In the course of examining the detective assigned to the case, Mark Cassel, the state sought to elicit expert testimony regarding the likely position of the shooter whose bullet had struck J.W. Acosta moved to preclude such testimony based on the state's failure to disclose the detective as an expert. See Ariz. R. Crim. P. 15.7. The trial court denied the motion, and Cassel testified that in his opinion, the bullet that struck J.W. had been fired from the back of the vehicle. At the close of evidence, Acosta moved for a judgment of acquittal pursuant to Rule 20, arguing, among other things, that the state had failed to present sufficient evidence that he had assaulted C.C. The court denied the motion and the jury found Acosta guilty of all three aggravated assault charges.
¶5 At the trial on the weapons misconduct charge, the state introduced evidence that Acosta had admitted to a police detective that he had possessed a .38 caliber revolver. It did not, however, present any direct evidence that Acosta had possessed the gun, instead presenting general testimony from J.W., who could not identify the shooter who was behind the car. The state also introduced evidence from investigating officers and the resident of the apartment about where the revolver had been found. At theclose of evidence, Acosta argued the doctrine of corpus delicti precluded the trial court from considering Acosta's confession and that, without his admission, the state lacked sufficient evidence to prove he had possessed a weapon. The court denied the motion for judgment of acquittal pursuant to Rule 20 and Acosta was found guilty of the charge.
¶6 On appeal, Acosta challenges the denials of both his Rule 20 motions based on insufficient evidence. In addition, he renews his argument regarding the state's failure to disclose Cassel as an expert and asserts, for the first time, that the state did not present sufficient evidence to establish his status as a prohibited possessor. We have jurisdiction over this appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
¶7 Section 13-3102(A)(4), A.R.S., prohibits possession of a deadly weapon by a person who is a "prohibited possessor," and A.R.S. § 13-3101(A)(7)(b) defines "[p]rohibited possessor" as a person "[w]ho has been convicted within or without this state of a felony." Relying on State v. Hauss, 140 Ariz. 230, 681 P.2d 382 (1984), Acosta contends the certified copy of a sentencing minute entry the state introduced and testimony of Acosta's probation officer were insufficient to establish his prior conviction. In response, the state points to several cases in which documents related to the conviction and testimonial identification were found sufficient to establish prior convictions. See State v. Strong, 185 Ariz. 248, 251, 914 P.2d 1340, 1343 (App. 1995); State v. Kinney, 225 Ariz. 550, ¶ 28, 241 P.3d 914, 922 (App. 2010).
¶8 Although "[t]he sufficiency of the evidence is a question of law we review de novo," State v. Snider, 233 Ariz. 243, ¶ 4, 311 P.3d 656, 658 (App. 2013), as noted above, we view the facts in a light most favorable to upholding the verdict, see Kinney, 225 Ariz. 550, ¶ 27, 241 P.3d at 922. We will uphold a conviction so long as there issubstantial evidence that "'reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt.'" Kinney, 225 Ariz. 550, ¶ 28, 241 P.3d at 922, quoting State v. Stroud, 209 Ariz. 410, ¶ 6, 103 P.3d 912, 914 (2005). We will not find reversible error unless "'there is a complete absence of probative facts to support [the jury's] conclusion.'" Id., quoting State v. Carlisle, 198 Ariz. 203, ¶ 11, 8 P.3d 391, 394 (App. 2000) (alteration in Kinney).
¶9 To establish a prior conviction, the state must (i) "offer in evidence a certified copy of the conviction" and (ii) "establish the defendant as the person to whom the document refers." State v. Lee, 114 Ariz. 101, 105-06, 559 P.2d 657, 661-62 (1976). In Hauss, our supreme court considered whether testimony alone can establish the fact of a prior conviction for sentencing purposes. 140 Ariz. at 230-31, 681 P.2d at 382-83. The court reiterated the "proper procedure" for establishing prior convictions, as set forth in Lee, but identified two specific exceptions to the requirement that documentary evidence be introduced: when the defendant admits to the conviction while testifying in court or when the state shows "its earnest and diligent attempts to procure the necessary documentation were unsuccessful for reasons beyond its control and that the evidence introduced in its stead is highly reliable." Id. at 231, 681 P.2d at 383. In so holding, the court expressly endorsed the continued use of testimony to prove the identification prong of the Lee test, i.e., the defendant is the person named in the prior conviction document. Id. at 231 n.1, 681 P.2d at 383 n.1.
¶10 Here, the state introduced a certified copy of a signed sentencing minute entry identifying Acosta by name and date of birth and an in-court identification by the probation officer who had been supervising him in that case at the time of his arrest for the August 2011 incident. Acosta seems to argue this evidence was insufficient because the state did not establish one of the two exceptions identified in Hauss. However, as noted above, in that case the state had attempted to prove a prior conviction through testimony alone. Here, the state introduced the certified copy of the minute entry reflecting Acosta's felony conviction, which satisfied the first prong of the Lee test. And, contrary to Acosta's contention on appeal, the probation officer's testimony satisfied the secondprong of that test.1 Id.; see also Strong, 185 Ariz. at 251, 914 P.2d at 1343 (). Accordingly, the evidence presented at trial was more than sufficient to support the jury's finding on this charge.2
¶11 Acosta contends the trial court erroneously denied his Rule 20 motion based on the state's failure to establish the corpus delicti of weapons misconduct. See Ariz. R. Crim. P. 20. That common law doctrine prevents a defendant from being convicted "'based upon an uncorroborated confession without independent proof of the corpus delicti, or the body...
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