State v. Sagasta
| Decision Date | 30 December 2016 |
| Docket Number | No. 2 CA-CR 2015-0251,2 CA-CR 2015-0251 |
| Parties | THE STATE OF ARIZONA, Appellee, v. ROBERT GODOY SAGASTA, 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NOT FOR PUBLICATION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 Pima County
The Honorable Kenneth Lee, Judge
The Honorable Deborah Bernini, Judge
AFFIRMED
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Mariette S. Ambri, Assistant Attorney General, Tucson
Counsel for Appellee
Steven R. Sonenberg, Pima County Public Defender
By Erin K. Sutherland, Assistant Public Defender, Tucson
Counsel for Appellant
Judge Espinosa authored the decision of the Court, in which Presiding Judge Howard and Judge Staring concurred.
¶1 After a jury trial, Robert Sagasta was found guilty of possession of a dangerous drug and possession of drug paraphernalia. He was sentenced as a category three, repetitive offender to mitigated, concurrent prison terms, the longer of which was six years. On appeal, he contends the trial court erred by allowing a surveillance video to be presented to the jury and that hearsay statements resulted in fundamental error prejudicing his defense. For the reasons that follow, we affirm.
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts. State v. Tucker, 205 Ariz. 157, n.1, 68 P.3d 110, 113 n.1 (2003). In October 2013, Desert Diamond Casino custodian A.F. found a "little baggie" with "crystal stuff in it" outside the casino's entrance while policing the area. She immediately informed casino security who contacted the Tohono O'odham Police Department ("TOPD"). While waiting for TOPD officers to arrive, security personnel contacted the casino "surveillance team" to determine how the baggie got there. After a casino surveillance supervisor reviewed security video footage, it was determined that an individual, later identified as Sagasta, had dropped the baggie as he was entering the casino.
¶3 The casino provided law enforcement a copy of video footage showing Sagasta dropping the suspected drugs as he entered the casino, but did not provide footage of casino personnel finding the dropped object or the time which had elapsed between the two events. Although the surveillance supervisor had reviewed the intervening footage and concluded that no one else touched thebaggie, he acknowledged that the failure to include "all the coverage" was a "mistake." When questioned by a TOPD officer, Sagasta denied the baggie was his.
¶4 After the baggie's contents tested positive for methamphetamine, Sagasta was charged with possession of a dangerous drug and possession of drug paraphernalia. He was tried in absentia, and the video footage provided to TOPD was played for the jury. Sagasta was found guilty on both charges, and sentenced as described above. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
¶5 Before trial, Sagasta moved to preclude the surveillance video, arguing it was irrelevant and misleading because it only showed Sagasta dropping a small white object on the ground and not the time that had elapsed between his entering the casino and a similar object being discovered in the same area by casino personnel. The trial court denied the motion, but granted a Willits instruction regarding the missing portion of the video.1 Sagasta renews his arguments on appeal, and raises for the first time a claim that the video "violated the rule of completeness." In reviewing the trial court's pre-trial ruling on evidentiary issues, we consider only the evidence presented at the hearing, and will defer to any factual findings made. State v. Kjolsrud, 239 Ariz. 319, ¶ 8, 371 P.3d 647, 650 (App. 2016). We review a ruling on the admissibility of evidence for an abuse of discretion. State v. Aguilar, 209 Ariz. 40, ¶ 29, 97 P.3d 865, 874 (2004).
¶6 In essence, it appears Sagasta's pre-trial motion stemmed from a misunderstanding of the evidence against him. Although his motion to preclude claimed that "[n]o witness w[ould] testify that they saw a continuous feed of recording at any time thatwould demonstrate that what [A.F.] found is the same as what was dropped by Mr. Sagasta," the state responded that the surveillance supervisor had in fact reviewed all the relevant surveillance footage, and would testify "the item located by [A.F.] was the item dropped by [Sagasta]."
¶7 At the hearing on Sagasta's motion to preclude the video, the supervisor explained he had begun his review of the video from the time he "g[o]t a call from security," "back to when the item was first dropped." When asked if he had "start[ed] from when it[ was] located by either security or [A.F.], where it[ was] located, [and] follow[ed] it back in time from that point," the supervisor responded, "[y]es, sir." And when confronted with an allegedly inconsistent statement made during an interview with defense counsel, the supervisor said he "should have been a little more clear," but stated he "did the review of the drugs." The court then asked some clarifying questions, and the witness indicated that although he did not "recall the exact casino personnel who picked up the drugs," he did watch the video backwards from the time he received the call until he saw when the item was dropped. Sagasta nonetheless argued that "missing" video had "apparent exculpatory value," based on his claim he was not the person who dropped the drugs. The trial court rejected that argument and permitted the surveillance video to be played at trial.
¶8 On appeal, Sagasta renews his claim that the "partial video" was not relevant as "there was no evidence presented that the object that appeared at [Sagasta]'s foot as he entered the casino was the same object discovered by [A.F.]." Under Rule 401, Ariz. R. Evid., evidence is relevant if it has any tendency to make a fact of consequence more or less probable. And a trial court has considerable discretion in determining the relevance and admissibility of evidence, which we will not disturb absent a clear abuse of that discretion. State v. Bigger, 227 Ariz. 196, ¶ 42, 254 P.3d 1142, 1154 (App. 2011). In this case, the surveillance supervisor testified he had backtracked through the extended surveillance footage, did not see anyone tampering with the object, nor did he see anyone else walk by that specific location. On this evidence,there was no error in the trial court's determination that the surveillance video was relevant.
¶9 Sagasta next argues the trial court erred in admitting the video because it "likely misled the jury." Although relevant evidence may be excluded "if its probative value is substantially outweighed" by a danger of misleading or confusing the jury, Ariz. R. Evid. 403, no misleading evidence was presented in this case. Sagasta asserts "the video in question has no . . . direct line of proof" linking him to the drugs. But he discounts the surveillance supervisor's testimony that he had reviewed the surveillance footage and observed a casino employee picking up the baggie twenty to thirty minutes after he saw it dropped by Sagasta. Because the supervisor's testimony provides an adequate link such that the probative value of the video substantially outweighed any danger of misleading the jury, there was no violation of Rule 403.2
¶10 Finally, for the first time on appeal, Sagasta contends the partial video violated the rule of completeness, causing "unfair prejudice that outweighed any probative value." A suppression argument raised for the first time on appeal is reviewed only for fundamental error. State v. Newell, 212 Ariz. 389, ¶ 34, 132 P.3d 833, 842 (2006). Under Rule 106, Ariz. R. Evid., if a party introduces part of a recorded statement, "an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time." In support of his argument that violation of the rule requires suppression, Sagasta relies on State v. Steinle, 237 Ariz. 531, ¶¶ 2-3, 16, 354 P.3d 408, 409, 411 (App. 2015), which upheld the trial court's exclusion, on Rule 106 grounds, of an excerpt of a video that purportedly showed the defendant stabbing the victim. Thatopinion, however, was vacated by our supreme court,3 which noted that Rule 106 is a rule of inclusion, not exclusion, and does not "direct the exclusion of evidence in any circumstance." State v. Steinle, 239 Ariz. 415, ¶ 10, 372 P.3d 939, 942 (2016).
¶11 Moreover, although Sagasta argues in his Opening Brief that "[t]he facts presented in this case are exactly like the facts presented in Steinle," his Reply Brief distinguishes Steinle, observing that the state was responsible for the failure to preserve the video in its entirety in that case. Here, based on evidence that the casino typically retained surveillance video for seven days, Sagasta argues that law enforcement "had time to request the missing footage but failed to do so for [an] unsatisfactory reason."
¶12 Sagasta acknowledges that "Rule 106 clearly no longer per se warrants preclusion of a cropped video under Steinle," but suggests "the sanction of preclusion . . . may still be applicable" when the Rule is violated by the government's own conduct. In support, Sagasta likens his case to United States v. Yevakpor, a decision in which a federal district court precluded a partial video of a border stop after government agents selected only incriminating footage and deleted the rest, knowing the footage would be used in prosecuting the case. 419 F. Supp. 2d 242, 244, 246-47, 251 (N.D.N.Y. 2006). But Yevakpor is inapposite. The surveillance video here was recorded by the casino, not the government, and the failure...
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