State v. Montoya
| Decision Date | 15 September 2011 |
| Docket Number | 1 CA-CR 09-0313 |
| Parties | STATE OF ARIZONA, Appellee, v. LEROY MONTOYA, Appellant. |
| Court | Arizona Court of Appeals |
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
The Honorable Lee F. Jantzen, III, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
and Aaron J. Moskowitz, Assistant Attorney General
Attorneys for Appellee
Phoenix
Jill L. Evans, Mohave County Appellate Defender
By Jill L. Evans
Attorney for Appellant
Kingman
¶1 Leroy Montoya appeals from his convictions and sentences for one count each of contracting without a license,criminal damage, fraudulent schemes and artifices, and participating in a criminal street gang. He raises two issues regarding the trial court's instructions to the jury, and he asserts that insufficient evidence supports his convictions for fraudulent schemes and artifices and participating in a criminal street gang. Montoya further contends the court committed reversible error in admitting improper other act evidence. Finally, Montoya argues the prosecutor's misconduct resulted in an unfair trial. For the reasons that follow, we affirm.
¶2 The victim, E.L., resided in California and owned a vacation home at 1715 River Garden Drive in Mohave County ("1715"). Montoya, a documented member of the "Mexican Mafia" prison gang, and his family rented a nearby house at 1721 River Garden Drive ("1721") until they were evicted. In August, 2006, E.L. went to 1715 to address matters raised in a nuisance notice he received regarding the property.
¶3 While E.L. was at 1715, he met Montoya who gave him a business card that indicated Montoya was the co-owner of abusiness named "Quality Homes & Investments."2 Montoya offered to clean up 1715 and perform minor repairs to rectify the issues raised in the notice. E.L. agreed and returned to California. Montoya completed the agreed-upon repairs, and performed additional work on 1715 as needed and authorized by E.L. In mid-September 2006, Montoya informed E.L. that the work on 1715 was completed. E.L. paid Montoya a total of $3,500.
¶4 Meanwhile, unbeknownst to E.L., Montoya began "renting out" 1715.3 E.C. testified that she and her family "rented" 1715 for a few days, but moved because they could not get any electric service. J.R. also testified that when she and her family "rented" 1715, the only electricity available was from an extension cord to a neighboring home. Montoya's wife arranged for electric service to commence December 5, 2006.
¶5 On December 6, 2006, Officer Harrison was investigating a report of criminal damage at 17214 when heobserved Montoya and C.T., a documented gang member, exiting 1715. Harrison asked Montoya whether he lived at 1715 and Montoya explained that he did "sometimes" when not living in California. While talking with Montoya at 1715, Montoya demanded Harrison leave "his property."
¶6 Around this time, Sergeant Gillman learned that E.L. held title to 1715. He telephoned him in California to inquire whether anyone was permitted to live there, because "illegal activity" had been reported at 1715. E.L. was "very stunned," and replied that the house should be vacant. With E.L.'s authorization, on December 13, 2006, police officers entered the property and found indicia of people living on the premises, including a car parked in the backyard that was registered to Montoya's wife.
¶7 A week later, police responded to a report of trespassing at 1715 and found a group of five or six teenage boys in the home, at least some of whom were documented members of the South Side Boyz ("The Boyz"), a local gang. Police learned that Montoya was "in charge" of 1715 and had given permission to the gang members to be there.
¶8 On January 2, 2007, E.L. entered the home with police officers; they observed a significant amount of damage and personal property that did not belong there. While they were there, Montoya arrived with a "group," including his wife, andproceeded to retrieve items that had been removed and placed on the street in front of 1715. Montoya was taken into custody.
¶9 The State charged Montoya with one count of criminal trespass in the first degree, a class six felony; two counts of criminal damage (one count each relating to 1715 and 1721), a class six felony; one count of fraudulent schemes and artifices, a class two felony; and one count of participating in a criminal street gang, a class two felony. The State later charged Montoya with one count of contracting without a license, a class one misdemeanor. The superior court consolidated the misdemeanor charge with the other charges for trial.
¶10 The jury found Montoya not guilty of criminal trespass and the criminal damage charge relating to 1721. The jury returned guilty verdicts on the remaining counts. The court sentenced Montoya to thirty days' time served for the misdemeanor conviction and concurrent terms of imprisonment of four and thirteen years, respectively, for the criminal damage and fraud convictions. For the participating in a criminal street gang conviction, the court imposed a thirteen-year prison sentence to be served consecutively to the other sentences. Montoya timely appealed.
¶11 Montoya raises two issues related to the trial court's jury instructions. The first issue relates to the court's instruction regarding the charge of participating in a criminal street gang, and the second deals with the court's response to a question from the jury.
¶12 "The purpose of jury instructions is to inform the jury of the applicable law in understandable terms." State v. Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996) (citation omitted). "A set of instructions need not be faultless." Id. However, the instructions must not mislead the jury and "must give the jury an understanding of the issues." Id. "It is only when the instructions taken as a whole are such that it is reasonable to suppose the jury would be misled thereby that a case should be reversed for error" in the instructions. State v. Schrock, 149 Ariz. 433, 440, 719 P.2d 1049, 1056 (1986) (citation omitted). Ordinarily, we review a decision to instruct the jury for abuse of discretion. State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995) (citation omitted). However, when a party fails to object to an instruction either before or at the time it is given, we review only for fundamental error. Schrock, 149 Ariz. at 440, 719 P.2d at 1056 (citation omitted).
¶13 Montoya argues the trial court's instruction for the crime of participating in a criminal street gang misstated the law. As Montoya concedes, we review for fundamental error because he failed to bring this issue to the trial court's attention. Id. To obtain relief under fundamental error review, Montoya has the burden to show that error occurred, the error was fundamental, and that he was prejudiced thereby. State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 20-22, 115 P.3d 601, 607-08 (2005) (citations omitted).
¶14 The statute under which Montoya was charged reads, in relevant part:
Ariz. Rev. Stat. ("A.R.S.") § 13-2308 (2006).5
¶15 The court instructed:
The court further instructed, consistent with A.R.S. §§ 13-105(8) (2010), -2301(C)(7) (2010):
¶16 Montoya's central argument appears to focus on the court's inclusion of the "criminal syndicate" instructions with the "criminal street gang" instructions.6 Montoya also makes other confusing, undeveloped, and repetitive assertions of purported...
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