State v. Bravo

• Court: Arizona Court of Appeals
• Writing for the Court: ECKERSTROM, Judge
• Decision Date: 08 August 2019
• Docket Number: No. 2 CA-CR 2018-0053,2 CA-CR 2018-0053
• Citation: State v. Bravo, No. 2 CA-CR 2018-0053 (Ariz. App. Aug 08, 2019)
• Parties: THE STATE OF ARIZONA, Appellee, v. KENROY KEAN BRAVO, Appellant.

THE STATE OF ARIZONA, Appellee, v. KENROY KEAN BRAVO, Appellant.

No. 2 CA-CR 2018-0053

ARIZONA COURT OF APPEALS DIVISION TWO

August 8, 2019

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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e).

Appeal from the Superior Court in Pima County

No. CR20170080001

The Honorable Kenneth Lee, Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Chief Counsel

By Amy M. Thorson, Assistant Attorney General, Tucson

Counsel for Appellee

Joel Feinman, Pima County Public Defender

By Sarah L. Mayhew, Assistant Public Defender, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred.

ECKERSTROM, Judge:

¶1 Kenroy Bravo appeals from his convictions and sentences for dangerous unlawful imprisonment and misdemeanor assault, stemming from two incidents of domestic violence in September and October 2016. Bravo argues the trial court: (1) improperly instructed the jury regarding unlawful imprisonment as a lesser-included offense of kidnapping and what constitutes a dangerous offense, and improperly denied his motion for acquittal of that offense; (2) abused its discretion in denying his mistrial motion after the state repeatedly elicited improper propensity evidence; and (3) abused its discretion in both denying a continuance and precluding alibi evidence as a discovery sanction for his untimely disclosure of witnesses. For the reasons that follow, we affirm.

Factual and Procedural Background

¶2 The state charged Bravo with nine counts of domestic violence and sexual assault, stemming from two separate incidents. A jury acquitted him of five of the charged counts, but convicted on two counts of misdemeanor assault and one count of unlawful imprisonment, a lesser-included offense of kidnapping.¹ Additionally, the jury found that the unlawful imprisonment was "a dangerous offense involving the use and/or threatening exhibition of a dangerous instrument to wit a pocket knife."

¶3 We view the evidence in the light most favorable to sustaining the verdict. State v. Cropper, 205 Ariz. 181, ¶ 2 (2003). The state's primary witness at trial was the victim T.L., Bravo's former girlfriend. T.L. testified that the first incident occurred in late September 2016. When T.L. told Bravoshe would not pay the next month's rent for the apartment they shared, he became upset and "started to beat [her]." She tried to run out the door and called for help, but Bravo "drug [her] back into the apartment and slammed the door and continued to kick [her]." Then Bravo punched T.L, which "knocked [her] to the floor," and "kicked [her] in [her] face" and side. At some point, Bravo told T.L. he would take her to the hospital.

¶4 As Bravo and T.L. left the apartment, they noticed a police officer, who was responding to a call from a neighbor who had heard T.L. call for help. Bravo and T.L. got in the car and Bravo sped away. Police eventually located their stopped car, questioned them separately about the incident, and released them. Before questioning Bravo, police performed a Terry² frisk on him, apparently finding no weapons.

¶5 At trial, T.L. originally testified that no part of the September incident involved a weapon. However, in response to later questioning from the state, she testified that Bravo had poked her in the torso with a sharp pocket knife during the September incident and that he did so any time he became upset with her. She also testified that he had "made a mistake" and cut her upper right thigh when she pushed the knife away from her torso.

¶6 The second incident occurred approximately a week later, in early October 2016. T.L. testified that she and Bravo had another disagreement about who would pay rent, this time via text message. After T.L. refused to pay, Bravo told her to "come and get [her] things, to get out of his house." When T.L. arrived, Bravo was there and demanded she hand over her key to the apartment. When she did not immediately do so, he snatched the keys to her car and the apartment from her hand and punched her in the face. As T.L. gathered her belongings, Bravo continued to hit her. She crawled into a hallway closet seeking shelter. Bravo followed her, pulled out his pocket knife, and "started poking" her. T.L. further testified that Bravo commonly carried the knife and that "[a]ny time he would get upset, he would always poke [her] with the knife." Bravo then ordered T.L. to perform oral sex on him. When T.L. refused, he began to "poke [her] on the side with the knife," then pointed it at her face, "slit[ting] [her] hand between [her] thumb and [her] index finger" when she tried to cover her face. Bravo then "stuck the knife to [her] neck" and threatened to chop herhead off if she "thought [she] could just leave him for another man."³ After she repeatedly refused to take her clothes off, Bravo cut them off her body with the knife and forced a gun between her legs, threatening to shoot her if she refused to have sex with him.⁴ T.L. did refuse, and Bravo started beating her again, including kicking her in the back as she lay on the ground. After T.L. said something that angered him, Bravo choked her with both of his hands, and T.L. momentarily lost consciousness.

¶7 T.L. eventually ran out the front door, but Bravo caught her as she exited, "took his hand around [her] neck," and "pushed [her] head through the window" next to the door. When Bravo saw that T.L. was bleeding from a cut caused by the shattered glass, he "ran off" and drove away. T.L. then called the police. They arrived and conducted an investigation, taking photographs of T.L.'s body, her cut-up clothing, broken window, and damaged items, many of which were exhibits submitted to the jury during trial.

¶8 The court denied Bravo's post-verdict request for a judgment of acquittal on the dangerous unlawful imprisonment verdict.⁵ The court sentenced him to a 1.5-year prison term for unlawful imprisonment and to time served on the two misdemeanor assault convictions. Bravo timely filed the instant appeal. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Discussion

Unlawful-Imprisonment Conviction

¶9 Bravo challenges his conviction for dangerous unlawful imprisonment on two grounds. First, he argues that as a matter of law, dangerous unlawful imprisonment cannot be a lesser-included offense of kidnapping. He observes that the factor in the dangerousness allegation the jury found proven—the use of a knife—is the same factor that, in this case, distinguishes the lesser-included offense of unlawful imprisonment from the greater charge of kidnapping. Thus, Bravo argues the courterroneously instructed the jury that it could find him guilty of dangerous unlawful imprisonment, leading to an illegal verdict. Second, Bravo argues that even assuming a conviction for dangerous unlawful imprisonment were possible under the law, he was entitled to acquittal on this charge because "[n]o evidence supports the conclusion that [he] used his pocketknife to restrain T.L. when she tried to leave the apartment." As we discuss below, both arguments fail.

Unlawful Imprisonment as a Lesser-Included Offense of Kidnapping

¶10 "We review de novo whether jury instructions correctly state the law." State v. Prince, 226 Ariz. 516, ¶ 77 (2011). We "read the jury instructions as a whole to ensure that the jury receives the information it needs to arrive at a legally correct decision." State ex. rel. Thomas v. Granville, 211 Ariz. 468, ¶ 8 (2005).

¶11 The trial court instructed the jury on the elements of kidnapping, and the verdict form included the following:

The crime of kidnapping domestic violence requires proof that the defendant knowingly restrained another person with the intent to:

1. Inflict physical injury on the person; or

2. Aid in the commission of a felony; or

3. Place the victim in reasonable fear of immediate physical injury to the victim; and

The offense was a domestic violence offense.

(You must unanimously agree on the way or ways in which the kidnapping occurred.)

At Bravo's request, the jury was further instructed that kidnapping "includes the lesser offense of unlawful imprisonment," which the jury could consider if it found Bravo not guilty of kidnapping or could not agree on his guilt. The court also instructed that "[t]he crime of unlawfulimprisonment requires proof that the defendant knowingly restrained another person." With regard to the dangerousness allegation, the court instructed the jury that the state alleged the kidnapping was a dangerous offense because it "involved the use or threatened use of a dangerous instrument: to wit a knife and/or cleaver."⁶

¶12 An offense is dangerous if it involves "the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another person." A.R.S. § 13-105(13). Although kidnapping is not inherently dangerous, State v. Larin, 233 Ariz. 202, n.6 (App. 2018), a knife is considered an inherently dangerous instrument, see State v. Gordon, 161 Ariz. 308, 310 (1989) (knife "inherently dangerous as a matter of law").

¶13 A lesser-included offense instruction is appropriate when a "jury could rationally fail to find the distinguishing element of the greater offense." State v. Detrich, 178 Ariz. 380, 383 (1994) (quoting State v. Noriega, 142 Ariz. 474, 481 (1984)). In other words, the jury must be able to rationally conclude the state proved each element of the lesser-included offense but failed to prove the defendant completed at least one element of the greater offense.

¶14 Here, to find Bravo guilty of unlawful imprisonment, the jury had only to find beyond a reasonable doubt that he "knowingly restrain[ed]" T.L. A.R.S. § 13-1303(A). To find him guilty of kidnapping, the jury...