State v. Ortiz-Padilla
| Decision Date | 28 May 2015 |
| Docket Number | No. 2 CA-CR 2014-0188,2 CA-CR 2014-0188 |
| Parties | THE STATE OF ARIZONA, Appellee, v. ALAN ORTIZ-PADILLA, 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.24.
Appeal from the superior Court in santa Cruz County
The Honorable James A. Soto, Judge
AFFIRMED
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee
Law Offices of Charles A. Thomas, P.L.C., Nogales
By Charles A. Thomas
Counsel for Appellant
Judge Howard authored the decision of the Court, in which Judge Vásquez and Judge Brammer1 concurred.
¶1 Following a jury trial, appellant Alan Ortiz-Padilla was convicted of aggravated assault with a deadly weapon and misconduct involving weapons. On appeal, he argues the trial court erred by allowing the state to impeach a defense witness using summaries of incorrectly translated prior statements and failing to declare a mistrial sua sponte thereafter, and by denying his motion for a judgment of acquittal and his motion for new trial.2 For the following reasons, we affirm.
¶2 "We view the facts in the light most favorable to upholding the jury's verdicts." State v. Tucker, 231 Ariz. 125, ¶ 2, 290 P.3d 1248, 1253 (App. 2012). Ortiz-Padilla and his friend, Andy Garcia, confronted S.P. in front of S.P.'s home about a dump truck containing drugs they believed to be located on S.P.'s property.
Claiming to be an agent with the Drug Enforcement Administration, Garcia demanded to search the property. When S.P. refused, the pair entered an apartment across the street, which S.P. knew to be occupied by the sister-in-law of L.P., his brother.
¶3 S.P. called L.P., and L.P. drove to the apartment, where he encountered Ortiz-Padilla and Garcia outside. Ortiz-Padilla threatened to kill L.P. if L.P. called the police, ordering Garcia to bring him a gun from inside the apartment. After Garcia retrieved the gun, L.P. got into his truck and began to call the police, at which point Ortiz-Padilla pointed the gun at L.P.'s head and said he was "going to kill him."
¶4 Ortiz-Padilla was charged with and convicted of the counts described above. The trial court sentenced him to an aggravated term of fifteen years in prison for the aggravated assault count, and a concurrent twelve-year, presumptive term for the weapons misconduct count. We have jurisdiction over this appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
¶5 Ortiz-Padilla first argues the trial court erred by overruling his objection to the state using a summary of an incomplete translation of a recorded jail conversation to impeach one of the witnesses. The translation incorrectly suggested he and the witness had a plan to harm Garcia, who testified on behalf of the state. But he does not cite any legal authority—namely, relevant evidentiary rules and case law interpreting those rules—to support his claim. See Ariz. R. Crim. P. 31.13(c)(1)(vi) (). Thus, he has waived review of this claim. See State v. Pesqueira, 235 Ariz. 470, n.1, 333 P.3d 797, 802 n.1 (App. 2014).
¶6 Ortiz-Padilla next argues the trial court erred by failing to declare a mistrial sua sponte following the state's impeachment using the summary of the incorrect translation. He concedes that he did not ask for a mistrial on these grounds below, and he thereforehas forfeited review of this claim for all but fundamental error.3 See State v. Ellison, 213 Ariz. 116, ¶ 61, 140 P.3d 899, 916 (2006); State v. Laird, 186 Ariz. 203, 207, 920 P.2d 769, 773 (1996) ( ) (citation omitted). Ortiz-Padilla does not argue fundamental error on appeal and thereby has waived review of this claim entirely. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008).
¶7 Moreover, he did not provide this court the transcript of the status conference at which the parties discussed with the trial court the correct translation of the jail call and how to remedy any error that may have occurred due to the state's use of an incorrect translation.4 See State v. Rivera, 168 Ariz. 102, 103, 811 P.2d 354, 355 (App. 1990) (); see also Ariz. R. Crim. P. 31.8(b)(2), (4) (transcripts of status conferences not included in record unless designated for inclusion by party). We presume the missing transcript supports the trial court's decision on whether any error occurred and how to remedy any such error. See State v. Brown, 188 Ariz. 358, 359, 936 P.2d 181, 182 (App. 1997).
¶8 Ortiz-Padilla also argues the trial court erred by denying his motion for a judgment of acquittal on the aggravated assault count. But he does not challenge the sufficiency of the evidence supporting the conviction. See Ariz. R. Crim. P. 20(a); State v. West, 226 Ariz. 559, ¶ 19, 250 P.3d 1188, 1192 (2011) (). Rather, he contends the court erred by allowing the state to amend the charging document to remove S.P. as a victim. "We review for an abuse of discretion a court's decision to permit the amendment of an indictment." See State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 16, 312 P.3d 123, 128 (App. 2013).
¶9 The state initiated the case by filing an information that alleged Ortiz-Padilla "committed aggravated assault . . . using a deadly weapon . . . , to wit: a handgun, on [S.P.] and [L.P.]." At the conclusion of the state's case-in-chief, Ortiz-Padilla moved the court for a judgment of acquittal on this count because the count listed both S.P. and L.P. as victims and the state had failed to present sufficient evidence that he had threatened S.P. with the gun or placed S.P. "in reasonable apprehension of imminent physical injury." A.R.S. § 13-1203(A)(2); see A.R.S. § 13-1204(A). The state conceded it had not produced sufficient evidence S.P. was a victim of the assault and moved to amend the information to strike the allegation concerning S.P. Over Ortiz-Padilla's objection, the trial court granted the motion to amend the information and denied the Rule 20 motion as to the amended count. Ortiz-Padilla later renewed his Rule 20 motion, which the court again denied.
¶10 A charging document may be amended to conform to the evidence at trial so long as it does not change the nature of the offense, such as by altering the elements of the charged offense, or otherwise prejudice the defendant. Buccheri-Bianca, 233 Ariz. 324, ¶ 17, 312 P.3d at 128. Ortiz-Padilla concedes the amendment did not change the nature of the aggravated assault count but contends the amendment prejudiced his case because, until that point, S.P. had been treated as a victim with the right to refuse a pretrial interview. See Ariz. Const. art. II, § 2.1(A)(1)(5) (); A.R.S. § 13-4433(A) (same); Ariz. R. Crim. P. 39(b)(11) (same).
¶11 But Ortiz-Padilla does not explain adequately how the lack of a pretrial interview was prejudice that resulted from the trial court's decision to allow the amendment to the indictment. See Buccheri-Bianca, 233 Ariz. 324, ¶ 17, 312 P.3d at 128; see also State v. Inzunza, 234 Ariz. 78, ¶ 28, 316 P.3d 1266, 1274 (App. 2014) (). S.P.'s status as a victim throughout the case, not the court's decision to allow the amendment, caused the lack of the interview. Ortiz-Padilla briefly contends the state's decision to include S.P. as a victim in the information was not in "good faith" and speculates that its intent "was to deny the defense a pre-trial interview of a critical witness." But he does not cite any relevant authority and does not explain why the state did not have probable cause to believe S.P. was a victim at the time it filed the information. See A.R.S. §§ 13-4401(6), (19), 13-4402(A). Neither does he cite any evidence in the record to support his speculation as to the state's motives. Further, he does not analyze Rules 15.3 and 39, Ariz. R. Crim. P., to demonstrate when, if ever, he could have compelled an interview or deposition of S.P. but for the amendment to the indictment. Thus, he has waived the issue for lack of sufficient argument. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995).
¶12 Furthermore, his claim that the lack of a pretrial interview hindered his ability to cross-examine S.P. regarding S.P.'s influence on the testimony of other witnesses is unavailing. He does not explain what he would have discovered in a pretrial interview to expose S.P.'s influence on others' testimony. And the record shows that Ortiz-Padilla was able to examine witnesses effectively concerning this alleged influence. For example, he called one of S.P.'s sisters-in-law to testify for the sole purpose of showing that S.P. drafted her written statement to the police about the incident. And he cross-examined S.P. about drafting the statement. He also asked L.P. whether L.P. had discussed testimony with S.P. and if S.P. had instructed L.P. on how to testify regarding certain facts.
Consequently, his claim that the lack of a pretrial interview harmed his defense is not supported by the record.5
¶13 In sum,...
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