State v. Romero

• Decision Date: 28 July 2014
• Docket Number: No. 2 CA-CR 2013-0027,2 CA-CR 2013-0027
• Citation: State v. Romero, No. 2 CA-CR 2013-0027 (Ariz. App. Jul 28, 2014)
• Parties: THE STATE OF ARIZONA, Appellee, v. FRANK ALEXANDER ROMERO, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee, v. FRANK ALEXANDER ROMERO, Appellant.

No. 2 CA-CR 2013-0027

ARIZONA COURT OF APPEALS DIVISION TWO

July 28, 2014

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.NOT FOR PUBLICATION SeeAriz. R. Sup. Ct. 111(c);Ariz. R. Crim. P. 31.24.

Appeal from the superior Court in Pima County

No. CR20102112001

The Honorable Christopher C. Browning, Judge

AFFIRMED AS MODIFIED

COUNSEL

Thomas C. Horne, Arizona Attorney GeneralJoseph T. Maziarz, Section Chief Counsel, Phoenix By Jonathan Bass, Assistant Attorney General, Tucson Counsel for Appellee

Lori J. Lefferts, Pima County Public Defender ByMichael J. Miller, Assistant Public Defender, Tucson Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred.

KELLY, Presiding Judge:

¶1Frank Romero appeals from his convictions and sentences for one count of first-degree murder and two counts of sexual assault.He claims the trial court erred by permitting the state to amend the indictment, granting its motion to exclude evidence, denying his motion for mistrial and his requests for recross-examination of witnesses, commenting on the evidence, and disallowing credit for time served on his concurrent sentences.For the following reasons, we affirm Romero's convictions but modify the court's sentencing order to reflect credit for presentence incarceration on count two of the indictment.

Factual and Procedural Background

¶2We view the facts in the light most favorable to upholding Romero's convictions and sentences.SeeState v. Becerra, 231 Ariz. 200, ¶ 2, 291 P.3d 994, 996(App.2013).On the morning of June 10, 2010, the naked body of S.S. was discovered in a softball field at Freedom Park in Tucson.She appeared to have been beaten, vaginally and anally sexually assaulted, and strangled.The medical examiner (ME) who performed the autopsy determined that S.S. had died of blunt force and asphyxial injuries.Her death was ruled a homicide.

¶3The night before her death, S.S. and Romero were together at R.G.'s house near Freedom Park, along with Romero's brother N.J.Upon coming home, R.G. found S.S. and Romero undressed and intoxicated in her bed; she believed they were having sexual relations.R.G. became angry and ordered the two out of her house.S.S. got dressed and left, and Romero left shortly after.N.J. stayed at the house for about thirty minutes and then left.

¶4Later that night, S.S. called her roommate A.A. and asked him to walk with her to their apartment near Freedom Park.A.A. met S.S., whom he described as "extremely intoxicated," and helped her to their apartment complex.Because neither had the electronic card that allowed them to open the gate into the complex, A.A. climbed the fence near the back of the property and opened the front gate from inside.When he returned a "minute or two" later to the spot where he had left S.S., she was gone.

¶5At around 2:30 the same morning, Romero visited his friend J.R. at her apartment near S.S.'s apartment and Freedom Park.J.R. believed Romero was intoxicated, and he stayed for only ten or fifteen minutes.J.R. went to bed shortly thereafter and Romero headed "towards Freedom Park."Romero was wearing a Beavis and Butthead T-shirt, white Lugz sneakers, a large silver watch, and a red hooded sweatshirt that J.R. had given him.

¶6S.S.'s body was found by a passerby in Freedom Park later that morning.While investigating at the park, police officers found Romero washing his hands in a nearby drinking fountain.Romero told officers he had been sleeping in the park, indicating a place around 150 yards from where S.S.'s body had been found.After stopping Romero from washing his hands, officers noted what appeared to be blood on his hands, legs, and shoes.

¶7While collecting evidence from Romero's person, officers observed that Romero appeared to have feces on his penis.DNA¹ testing of samples taken from Romero revealed that he had S.S.'s blood and DNA on his shoes and sock.The results were inconclusive as to the samples taken from Romero's hands, but S.S. was a major contributor to the DNA found on the drinking fountain handle where Romero had been washing.His sperm or DNA was found on S.S.'s neck, breasts, external genitalia, vagina, and anus.His DNA was also a partial match to samples found on S.S.'s hands.N.J. and A.A. were excluded as possible contributors for all samples tested.

¶8Officers found a black Beavis and Butthead T-shirt near S.S.'s body which tested positive for S.S.'s DNA and blood.They found a broken silver watch like the one Romero always wore, which also tested positive for S.S.'s DNA.The white Lugz shoes Romero was wearing matched footprints found near S.S.'s body, which had been left the night of her murder.The DNA of both Romero and S.S. matched blood spots leading from the dugout of the field to where S.S.'s body was found.Drag marks were found between the dugout and S.S.'s body, and S.S. had scrapes on her back consistent with being dragged.

¶9Following a jury trial, Romero was convicted of all counts.The trial court sentenced him to a term of imprisonment of natural life for the murder and to presumptive, consecutive terms of seven years each for the sexual assaults to be served concurrently with the sentence for murder.Romero timely appealed.

Amending the Indictment

¶10Romero first argues the trial court violated Rule 13.5, Ariz. R. Crim. P., by granting the state's motion to amend the indictment.We review for an abuse of discretion a court's decision to permit the amendment of an indictment.State v. Johnson, 198 Ariz. 245, ¶ 4, 8 P.3d 1159, 1161(App.2000).

¶11Romero originally was charged with committing two counts of sexual assault by "inserting his penis" into the victim's vulva and anus without consent in violation of A.R.S. § 13-1406.Approximately eight weeks before trial, the state moved to amend the indictment to remove the allegation that the sexual assaults had been committed with a penis.²Romero objected, urging theamendment was improper and forced him to change his theory of defense.The trial court granted the state's motion, concluding the amendment was "consistent with Rule 13 . . . as well as the common law of this state."In so doing, the court determined that Romero had "failed to articulate any specific prejudice which would inure to him, were the Court to allow amendment" and that it was "unable to find any prejudice on its own."

¶12On appeal, Romero contends the trial court improperly granted the motion to amend, and thereby denied him notice of the offenses with which he was charged.He argues he was prejudiced by the amendment because he had expert testimony the injury "was likely caused by an object rather than a penis," which would have helped him establish a third-party culpability defense.Specifically he maintains that N.J., who also was at R.G.'s house with S.S., had a police-style baton, and was therefore the more likely perpetrator of the sexual assaults.

¶13 Rule 13.5(b) permits an indictment to be amended "only to correct mistakes of fact or remedy formal or technical defects, unless the defendant consents to the amendment."A defect is considered formal or technical when its amendment does not change the nature of the offense or otherwise prejudice the defendant.State v. Bruce, 125 Ariz. 421, 423, 610 P.2d 55, 57(1980).Rule 13.5(b) does not authorize an amendment that alters the elements of the charged offense.State v. Freeney, 223 Ariz. 110, ¶¶ 17, 20, 219 P.3d 1039, 1042(2009).

¶14In this case, Romero was charged with a violation of § 13-1406(A), which provides that "[a] person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person."Sexual intercourse is defined as "penetration into the penis, vulva or anus by any part of the body or by any object or masturbatory contact with the penis or vulva."A.R.S. § 13-1401(3).Because § 13-1406 does not require the state to specify whether the alleged assault was committed with a body part or an instrument, the removal of this allegation from the indictment did not change the nature of the offense or alter one of its elements.SeeState v. Buccheri-Bianca, 233 Ariz. 324, ¶ 19, 312 P.3d 123, 129(App.2013)(amending indictment regarding location of conduct did not changenature of offense when location was not element of offense).We therefore conclude the trial court did not abuse its discretion in granting the state's motion to amend.SeeJohnson, 198 Ariz. 245, ¶ 4, 8 P.3d at 1161.

¶15Even were we to agree with Romero that the amendment here did change the elements of the charged offense, however, we would find any such error harmless.SeeState v. Lehr, 227 Ariz. 140, ¶ 70, 254 P.3d 379(2011)(amendment error harmless unless "the amendment somehow prejudices the defendant's 'litigation strategy, trial preparation, examination of witnesses, or argument'"), quotingFreeney, 223 Ariz. 110, ¶ 28, 219 P.3d at 1044.Romero's third-party culpability defense was designed to create a likelihood that someone other than Romero committed the crimes.It was an "all or nothing" defense that he did not commit the acts at all.Romero does not claim he sought to present a defense establishing he did not or could not have committed the assault with the instrument originally alleged by the state(a penis).

¶16Romero concedes the amendment"did not affect his defense theory in general," but claims it "greatly impaired his ability to prove that defense to the jury."Although it may have been easier to prove he had not committed the sexual assaults with his penis, his defense strategy that someone else committed the crimes with an object did not change; he thus was not prejudiced by the amendment.SeeFreeney, 223 Ariz. 110, ¶ 28, 219 P.3d at 1044(defend...