State v. Lopez

Decision Date22 January 2011
Docket Number2 CA-CR 2006-0036
PartiesTHE STATE OF ARIZONA, Appellee, v. DANIEL AARON LOPEZ, Appellant.
CourtArizona Court of Appeals
MEMORANDUM DECISION

Not for Publication

Rule 111, Rules of

the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

CauseNos. CR-20051252 and CR-20052157 (Consolidated)

Honorable Kenneth Lee, Judge

AFFIRMED IN PART;

REMANDED IN PART

Terry Goddard, Arizona Attorney General

By Randall M. Howe and Jessica L. Quickle

Phoenix

Attorneys for Appellee

Robert J. Hooker, Pima County Public Defender

By Kristine Maish

Tucson

Attorneys for Appellant

HOWARD, Presiding Judge.

¶ After a jury trial, appellantDaniel Lopez was convicted of numerous offenses arising out of a series of attacks on women in Tucson in 2004 and 2005.The trial court sentenced him to a combination of concurrent and consecutive prison terms totaling 119.5 years.On appeal, he argues that the court abused its discretion by denying his motions to sever the charges and try him separately for each victim, and that the evidence was insufficient to support three of the convictions.1Finding the evidence was insufficient to support one aggravated assault conviction, we reduce that conviction to simple assault and remand for resentencing on that conviction only.We otherwise affirm the convictions and sentences.

Severance and Consolidation

¶2Lopez first argues the trial court abused its discretion in failing to sever the counts into separate cases according to victim and in allowing joinder on the basis of the counts being of the "same or similar character."Ariz. R. Crim. P. 13.3(a)(1).The state initially filed two separate indictments against Lopez.The first, No. 20051252, pertained to the assaults of four victims—Heather, Jessica, Kiri, and Amelia—and the second, No. 20052157, pertained to the assaults of three additional victims—Michelle, Danielle, and Desiree.In the second indictment, the state alleged that the convictions anticipated on the offenses charged in the first indictment would constitute historical prior felony convictionsfor sentence-enhancement purposes on the convictions anticipated on the offenses charged in the second indictment.Lopez filed separate motions to sever the counts under each indictment, pursuant to Rule 13.4(a) and (b), Ariz. R. Crim. P., seeking separate trials on offenses related to each victim.The court denied the motion to sever relating to the first indictment, No. 20051252.

¶3 Before the court ruled on the motion to sever relating to the second indictment, No. 20052157, Lopez moved to strike the state's allegations of historical prior felony convictions, or in the alternative, to consolidate all counts under both indictments.In this motion, Lopez stated that consolidation was proper because all counts under both indictments were "'of the same or similar character'" under Rule 13.3(a)(1) and that "'the ends of justice will not be defeated'" by consolidation under Rule 13.3(c).The court subsequently granted Lopez's motion to consolidate and thus implicitly denied his motion to strike the state's allegation of historical prior felony convictions.Lopez was tried for all charges in a single trial.

¶4 At trial, Lopez attempted to renew both motions to sever pursuant to Rule 13.4(c).The court denied the motion as to the charges under the first indictment and further stated that Lopez could not renew any motion as to the charges under the second indictment because he had subsequently moved to consolidate both indictments.Lopez objected and asserted he could still renew his motion to sever the counts under both indictments becausehe had been compelled to move for consolidation by the trial court's prior rulings.The court noted the objection.A.The Second Indictment

¶ On appeal, Lopez argues the trial court erred by "failing to sever the cases" and "allowing joinder... on the basis of 'same or similar character.'"When a party's conduct causes an alleged error at trial, we will not review that party's claim, even for fundamental error.SeeState v. Logan, 200 Ariz. 564, ¶ 9, 30 P.3d 631, 632-33(2001)."[W]e will not find reversible error when the party complaining of it invited the error."Id.

¶ Lopez essentially withdrew his motion to sever the charges in the second indictment before the court had ruled on it.In its stead, Lopez moved for consolidation, informing the court that joinder was appropriate.Yet, Lopez asserted to the trial court that he had not waived the issue of severance because he had effectively been forced to move for consolidation by the court's adverse rulings on the motion to sever regarding the first indictment and the motion to strike the allegations of historical prior felony convictions.But Lopez was not compelled to move for consolidation; he could have requested a ruling on his motion to sever regarding the second indictment and preserved the issue for appeal.He merely attempted one strategy and when that was unsuccessful, moved on to another."Discretionary strategy evidenced by counsel's actions must, at some point, be binding on [the]defendant."State v. Levato, 186 Ariz. 441, 444, 924 P.2d 445, 448(1996).Lopezwas essentially trying to take two contrary positions and preserve both for appeal.But Lopez "cannot have it both ways."Id.He invited any error regarding severance of the offenses in the second indictment when he failed to obtain a ruling on the motion and instead moved to consolidate, and we will not consider this issue as a ground for relief.SeeLogan, 200 Ariz. 564, | 15, 30 P.3d at 633-34.

B.The First Indictment

¶ As noted above, when Lopez renewed his motion to sever pursuant to Rule 13.4(c), the trial court acknowledged and denied his motion as to the charges under the first indictment.Because this motion was made and denied before Lopez moved to consolidate, and was renewed at trial, we conclude that Lopez preserved his claim regarding severance of the charges under the first indictment.

¶ The trial judge denied the motion to sever regarding the first indictment in a detailed minute entry finding the attacks on the four victims were "of the same or similar character and the evidence of each incident [was] admissible under Rule 404(b)[, Ariz. R. Evid.,] to show identity in the trial of the other incidents."Lopez contends the attacks were not of the same or similar character and the evidence would not have been admissible had he received separate trials for each incident.

We review a trial court's decision to deny severance for an abuse of discretion.State v. Prion, 203 Ariz. 157, ¶ 28, 52 P.3d 189, 194(2002).Similarly, we review a court's decision to admit evidence pursuant to Rule 404(b) for an abuse of discretion.State v. VanAdams, 194 Ariz. 408, ¶ 20, 984 P.2d 16, 23(1999).Generally, when offenses are joined pursuant to Rule 13.3(a)(1), Ariz. R. Crim. P., for being of the "same or similar character,"the defendant is entitled to severance as a matter of right "unless evidence of the other... offenses would be admissible under applicable rules of evidence if the offenses were tried separately."Ariz. R. Crim. P. 13.4(b);see alsoState v. Ives, 187 Ariz. 102, 106, 927 P.2d 762, 766(1996).And, even if a court errs in deeming offenses to be of the "same or similar character," when the evidence is cross-admissible as to each offense, it is unlikely the defendant can show prejudice.SeeState v. Johnson, 212 Ariz. 425, 10-11, 133 P.3d 735, 739-40, cert. denied, _U.S._, 127 S. Ct. 559(2006).

¶10 Generally, evidence of other acts is not admissible to prove the defendant has the propensity or bad character necessary to commit a crime.State v. Roscoe, 145 Ariz. 212, 216, 700 P.2d 1312, 1316(1984).But evidence of other acts may be admissible to show, inter alia, the identity of the perpetrator.State v. Stuard, 176 Ariz. 589, 597, 863 P.2d 881, 889(1993).Under the identity exception, "'if the behavior of the accused both on the occasion charged and on some other occasion is sufficiently distinctive, then proof that the accused was involved on the other occasion tends to prove his involvement in the crime charged.'"Id., quoting Morris K. Udall et al., Arizona Law of Evidence § 84, at 18384(3d ed. 1991).The modus operandi of the offenses must be "'so unusual and distinctive as to be like a signature.'"Roscoe, 145 Ariz. at 217, 700 P.2d at 1317, quotingMcCormick on Evidence § 190, at 560(3d ed. 1984).And there must be similarities between theoffenses where one might normally expect to find differences.Id.But our supreme court has also observed:

"Absolute identity in every detail cannot be expected.Where an overwhelming number of significant similarities exist, the evidence of the prior act may be admitted."The term "overwhelming" does not require a mechanical count of the similarities but, rather, a qualitative evaluation.Are the two crimes so similar, unusual, and distinctive that the trial judge could reasonably find that they bear the same signature?If so, the evidence may be admissible and any dissimilarities go to its weight.

State v. Bible, 175 Ariz. 549, 576, 858 P.2d 1152, 1179(1993), quotingRoscoe, 145 Ariz. at 218, 700 P.2d at 1318(citation omitted).The identity exception is applied to sex offenses "where an adequate foundation is made showing that the prior offense was not too remote in time, was similar to the offense charged and was committed with a person similar to the prosecuting witness in the case being tried."Roscoe, 145 Ariz. at 217, 700 P.2d at 1317.

¶ Here, numerous similarities support application of the identity exception.The four attacks took place within a ten-month period.All four victims—Heather, Jessica, Kiri, and Amelia—were female students at the same university.The victims were all in their early to mid-twenties, apparently single, and they all lived with roommates.The assailant was a stranger to all four victims.The attacks all took...

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