State v. Moreno, CA-CR
| Decision Date | 17 November 1980 |
| Docket Number | CA-CR |
| Citation | 128 Ariz. 33,623 P.2d 822 |
| Parties | The STATE of Arizona, Appellee, v. Danny Arvizu MORENO, Appellant. 22031. |
| Court | Arizona Court of Appeals |
Appellant was convicted of armed robbery and three counts of aggravated assault, felonies of a dangerous nature, with four prior felony convictions. On appeal he contends (1) it was fundamental error to instruct the jury that physical injury was not an essential element of aggravated assault when one count of the information alleged such injury; (2) improper argument by the prosecutor denied him a fair trial; (3) the evidence was insufficient to prove the prior convictions, and (4) he was denied a fair trial because three jurors saw him in custody of a deputy sheriff. We affirm.
Appellant does not challenge the correctness of the instruction on aggravated assault but argues that it authorized a conviction on one of the counts on a theory not supported by the information. We do not agree. The allegation of causing serious injury was surplusage. The information alleged the use of a deadly weapon, making the assault an aggravated one under A.R.S. § 13-1204(A) (2). 1
The prosecutor's comment about the animosity of one witness, the defense of the plea bargain with another, and the reference to appellant's failure to produce witnesses were not improper. His suggestion that the state had nothing to gain by calling certain witnesses "(i)f Mr. Moreno was not the person" was subject to correction by admonition on proper objection. See State v. Islas, 119 Ariz. 559, 561, 582 P.2d 649, 651 (App.1978). No objection was made. The remark was not so prejudicial as to deny appellant a fair trial.
The certified copy of the "scar sheet" from the records of the Arizona Department of Corrections, used for identification in proving appellant's prior convictions, was properly admitted. See State v. Greer, 118 Ariz. 349, 576 P.2d 1004 (App.1978). Contrary to appellant's assertion, rule 902(4), 17A A.R.S. Rules of Evidence, does not distinguish between "public records" and "official records." Adequacy of the tattoos listed in the exhibit to identify appellant as the person previously convicted was a jury question.
Finally, the record clearly refutes...
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Smith v. State
...constitutional error. Gates v. Zant, 863 F.2d 1492 (11th Cir.1989); Hamrick v. People, 624 P.2d 1320 (Colo.1981); State v. Moreno, 128 Ariz. 33, 623 P.2d 822 (Ct.App.1980); State v. Williams, 48 Or.App. 319, 617 P.2d 629 (1980); State v. Pendergrass, 189 Mont. 127, 615 P.2d 201...
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State v. Risco
...any prejudice, even assuming he was so seen. On this record we find no error, much less reversible error. See State v. Moreno, 128 Ariz. 33, 623 P.2d 822 (App.1980); State v. Galioto, 126 Ariz. 188, 613 P.2d 852 The central issue raised by the state's appeal concerns the authority of the tr......
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State v. Thompson
...the state proposed it was, that is, a record of appellant's prior conviction. The document was properly admitted. State v. Moreno, 128 Ariz. 33, 623 P.2d 822 (App.1980); State v. Greer, 118 Ariz. 349, 576 P.2d 1004 Our review of the record for fundamental error has revealed none. Therefore,......