State v. Torres
| Decision Date | 09 March 2016 |
| Docket Number | No. 2 CA-CR 2015-0233,2 CA-CR 2015-0233 |
| Parties | THE STATE OF ARIZONA, Appellee, v. JOSE MIGUEL TORRES, 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NOT FOR PUBLICATION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 Paul E. Tang, 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
The Law Offices of Stephanie K. Bond, P.C., Tucson
By Stephanie K. Bond
Counsel for Appellant
Presiding Judge Howard authored the decision of the Court, in which Judge Espinosa and Judge Staring concurred.
¶1 Following a jury trial, Jose Torres was convicted of two counts each of armed robbery and aggravated robbery, and one count each of aggravated assault and kidnapping. On appeal, Torres contends the trial court abused its discretion by denying his motions to sever his trial from his co-defendant's and to sever the offenses, denying his motion for a mistrial, and denying his motion to suppress a victim's pretrial and in-court identification. He also claims the court illegally imposed consecutive sentences on the armed robbery counts. Because we find no error, we affirm.
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts, and we resolve all reasonable inferences against the defendant. State v. Almaguer, 232 Ariz. 190, ¶ 2, 303 P.3d 84, 86 (App. 2013). In the early morning hours of September 21, 2014, D.R. and V.G. were walking home from a concert when two men—Jose Torres and his then-fiancé's brother Francisco Rendon—approached them. The men, armed with guns, demanded D.R. and V.G.'s money, keys, and belongings and also searched their clothing. The men then told D.R. and V.G. to walk away and not look back. D.R. and V.G. saw the two men leave in a black car.
¶3 Approximately ten minutes later and two miles away, A.V. was approached by two men, armed with guns, who demanded her wallet and, after she gave it to them, left in a black car. Shortly thereafter, a black car pulled into a convenience store; Rendon exited and purchased cigarettes using V.G.'s credit card. Later that night, C.L. and L.T. were walking down the street when two men, armed with guns, approached them and ordered them to"[g]et down." One of the men "ripped" L.T.'s purse off of her and "patted down [her] pockets." The other took C.L.'s wallet, keys, and cellphone. The two men told C.L. and L.T. to run.
¶4 At a photographic lineup, D.R. identified Torres as the man who robbed him, and Rendon as the man who robbed V.G. V.G. also identified Rendon in a photographic lineup as the man who robbed her.
¶5 Torres was charged with the armed robbery, aggravated robbery, aggravated assault, and kidnapping of each of the five victims. The trial court denied his motions to sever his trial from Rendon's, and to sever the offenses into separate trials. During the trial, the counts pertaining to A.V. were dismissed with prejudice. A jury found Torres guilty of the armed robbery and aggravated robbery of D.R. and V.G., and the aggravated assault and kidnapping of D.R., and not guilty on the remaining counts. The trial court sentenced Torres to enhanced, consecutive and concurrent terms of imprisonment totaling twenty-one years. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
¶6 Torres appears to argue the trial court erred by denying his pretrial motion to sever the offenses and have a separate trial for each robbery. The state counters, in part, by asserting that Torres cannot show prejudice. We review a ruling on a motion to sever for an abuse of discretion. State v. Murray, 184 Ariz. 9, 25, 906 P.2d 542, 558 (1995).
¶7 Offenses may be joined if they are of the same or similar character. Ariz. R. Crim. P. 13.3(a)(1). But the defendant is entitled to have such joined offenses severed as a matter of right, unless the evidence of the other offenses would be admissible if tried separately. Ariz. R. Crim. P. 13.4(b). The trial court determined that evidence of each offense would be admissible in the trial of the other offenses because the crimes had a sufficiently distinct modus operandi to prove identity and that Torres did not establish that he would be prejudiced.
¶8 "When a defendant challenges a denial of severance on appeal, he 'must demonstrate compelling prejudice against which the trial court was unable to protect.'" Murray, 184 Ariz. at 25, 906 P.2d at 558, quoting State v. Cruz, 137 Ariz. 541, 544, 672 P.2d 470, 473 (1983). Our supreme court has made clear that "a defendant is not prejudiced [by the joinder of offenses] if the jury is (1) instructed to consider each offense separately, and (2) is advised that each offense must be proven beyond a reasonable doubt." State v. Atwood, 171 Ariz. 576, 613, 823 P.2d 593, 630 (1992), overruled on other grounds by State v. Nordstrom, 200 Ariz. 229, ¶ 25, 25 P.3d 717, 729 (2001); see also State v. Prince, 204 Ariz. 156, ¶ 17, 61 P.3d 450, 454 (2003); State v. Comer, 165 Ariz. 413, 419, 799 P.2d 333, 339 (1990). The jury was so instructed in this case. We presume jurors follow their instructions, and Torres has not argued otherwise. See State v. Newell, 212 Ariz. 389, ¶ 68, 132 P.3d 833, 847 (2006).
¶9 Moreover, Torres contends he was prejudiced because the convenience store evidence was admitted against him but was only relevant to the theft of a credit card charge against Rendon. Torres's argument, however, pertains to the denial of the motion to sever defendants, not the motion to sever offenses. Furthermore, the counts related to A.V. were dismissed with prejudice and Torres was acquitted of any involvement of the robberies of C.L. and L.T. Torres thus has not demonstrated a "'compelling prejudice against which the trial court was unable to protect.'" Murray, 184 Ariz. at 25, 906 P.2d at 558, quoting Cruz, 137 Ariz. at 544, 672 P.2d at 473.
¶10 Torres next argues the trial court erred in denying his motion to sever his trial from that of Rendon. We review a court's denial of a motion to sever the trials of co-defendants for an abuse of discretion, "in light of the evidence before the court at the time the motion was made." State v. Blackman, 201 Ariz. 527, ¶ 39, 38 P.3d 1192, 1202 (App. 2002).
¶11 Torres argues the trial court erred by denying his motion to sever pursuant to Rule 13.3(b), Ariz. R. Crim. P., because Rendon was charged with two more offenses than Torres and, it appears, because the charges against Torres and Rendon were notpart of "a common conspiracy, scheme or plan." Torres did not present any arguments related to Rule 13.3(b) to the court, either in his motions or at the hearing. Consequently, he has forfeited review of the issue for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). And because he has failed to argue such error occurred in his opening brief, the issue is waived. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008); see also State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (); State v. Ruggiero, 211 Ariz. 262, n.2, 120 P.3d 690, 695 n.2 (App. 2005) ().
¶12 Torres next argues his motion to sever the trials should have been granted pursuant to Rule 13.4(a), Ariz. R. Crim. P. He contends the evidence admitted against Rendon facially incriminated him, "had a harmful rub-off effect," and prejudiced him by the significant disparity in the amount of evidence introduced against Rendon as opposed to Torres.
¶13 Rule 13.4(a) provides that the trial court shall grant a motion to sever a trial when severance "is necessary to promote a fair determination of the guilt or innocence of any defendant of any offense." "The burden rests on the defendant to demonstrate that the court's failure to sever caused 'compelling prejudice against which the trial court was unable to protect.'" State v. Tucker, 231 Ariz. 125, ¶ 40, 290 P.3d 1248, 1264 (App. 2012), quoting Murray, 184 Ariz. at 25, 906 P.2d at 558. "Prejudice occurs when (1) evidence admitted against one defendant is facially incriminating to the other defendant, (2) evidence admitted against one defendant has a harmful rub-off effect on the other defendant, (3) there is significant disparity in the amount of evidence introduced against the defendants, or (4) co-defendants present antagonistic, mutually exclusive defenses or a defense that is harmful to the co-defendant." Murray, 184 Ariz. at 25, 906 P.2d at 558.
¶14 As to the first two Murray factors, Torres contends a surveillance video from a convenience store taken shortly after the robberies of D.R., V.G., and A.V., which showed Rendon arriving in a black car similar to one owned by his sister—and Torres's then-fiancé—and using one of V.G.'s credit cards was facially incriminating and would have a harmful rub-off effect on him.1 The surveillance video was taken approximately twenty minutes after D.R. and V.G. were robbed, and ten minutes after A.V. was robbed. D.R. and V.G.'s robbery was approximately two miles away from A.V.'s robbery, which was approximately two miles from the convenience store where the surveillance video was taken.
¶15 D.R. and V.G. described the two men as Hispanic males, A.V. described one as Hispanic and the other as Hispanic or Native American, and all three stated one assailant was taller than the other. D.R. identified Torres in a photographic lineup as the man who robbed him, and both D.R. and V.G. identified Rendon in a photographic lineup as the man who...
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