The State Of Ariz. V. LOPEZ
| Decision Date | 24 June 2010 |
| Docket Number | 2 CA-CR 2009-0225,Cause No. CR200601641 |
| Parties | THE STATE OF ARIZONA, Appellee, v. ARMANDO LOPEZ, Appellant. |
| Court | Arizona Court of Appeals |
Terry Goddard, Arizona Attorney General By Kent E. Cattani and Kathryn A. Damstra Tucson Attorneys for Appellee
Harriette P. Levitt Tucson Attorney for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISIONAPPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY
AFFIRMED
¶1 Armando Lopez appeals from his convictions and sentences for attempted first-degree murder, attempted second-degree murder, and first-degree burglary. Heasserts there was insufficient evidence to support his attempted second-degree murder conviction and the trial court considered improper factors in aggravating his sentences. We affirm.
¶2 On appeal, we view the facts in the light most favorable to sustaining Lopez's convictions and sentences. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). Lopez separated from his wife, R., in May 2006. In early September of that year, R. began dating J., who occasionally spent nights at R.'s home, where she lived with her and Lopez's three-year-old son and her six-year-old daughter from a previous relationship. On one occasion, after Lopez had returned their son to R.'s home, R. noticed that one of the remote-control devices for her garage door was missing. In early September, on a night when J. was staying at R.'s home, Lopez telephoned R. at about 3:00 a.m., demanding to know whose car was parked outside her house. In midSeptember, J.'s car was vandalized while parked outside R.'s house. On another occasion, Lopez telephoned R. and "describe[d to her]... what [she] was doing in [her] own house."
¶3 On September 24, J. and R. returned to R.'s house from a weekend trip and put the children to bed. They locked the home's exterior doors but left the door from the garage unlocked. Early the next morning, J. and R. heard a "light knocking" on the master bedroom door but attributed the noise to R.'s dog. Approximately half an hour later, R. got up and went to her daughter's bedroom to awaken her for school. As herdaughter opened her eyes, she got a "terrified look on her face" and said, When R. turned, she saw Lopez standing behind her, holding a machete, with which he then attacked her, hitting her in the back of her head. She fell to the floor, but Lopez continued to strike her with the machete, wounding her arms, hands, and torso.
¶4 Hearing R. and her daughter screaming, J. ran to the bedroom and saw Lopez "laying into [R.] viciously" with the machete. J. knocked Lopez away from R., and Lopez then struck J. twice on the head with the machete. After a struggle, J. wrested the machete from Lopez and hit him with it. Lopez fled the house through the door to the garage and began to drive away in R.'s car. After the car became "hung up on [a] rock" in the front yard, Lopez fled on foot.
¶5 Law enforcement officers found duct tape and the missing remote-control device in R.'s garage and discovered R.'s telephone line had been cut. Officers arrested Lopez two days later after finding his truck, bearing a license plate from another vehicle, parked at a resort. During a search of Lopez's residence, they found the license plate for Lopez's truck and a receipt showing he recently had purchased a machete and duct tape. Lopez also had attempted to obtain a handgun from a former wife several days before attacking R. and J.
¶6 A grand jury charged Lopez with two counts of attempted first-degree murder and one count of first-degree burglary. The state additionally alleged fourteen aggravating factors and that the charged offenses were dangerous because they involvedthe use of a dangerous weapon the machete and the intentional or knowing infliction of serious injury. After a four-day trial, the jury found Lopez guilty of attempted firstdegree murder of R., attempted second-degree murder of J. as a lesser-included offense of attempted first-degree murder, and first-degree burglary. Additionally, the jury found the offenses were dangerous and the state had proven seven of the alleged aggravating factors. At sentencing, the trial court found an additional aggravating factor that the crimes were "committed in a very cruel manner." The court sentenced Lopez to enhanced, aggravated prison terms of twenty-one years for each conviction, with the sentence for attempted first-degree murder to be served consecutively to Lopez's sentence for attempted second-degree murder and concurrently with his sentence for burglary. This appeal followed.
¶7 Lopez first asserts there was insufficient evidence to support his conviction for attempted second-degree murder of J. When addressing a challenge to the sufficiency of the evidence, we view the facts in the light most favorable to sustaining the verdict and resolve all inferences against the defendant. State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996). "To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury." State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987); see also Ariz. R. Crim. P. 20(a) (). It is the jury's function to weigh all of the evidence and to assess witness credibility. State v. Reynolds, 108 Ariz. 541, 543, 503 P.2d 369, 371 (1972); State v. Williams, 209 Ariz. 228, f 6, 99 P.3d 43, 46 (App. 2004).
¶8 Lopez argues that, although he "was armed with a weapon at the time of his confrontation with [J.], there is no evidence that he actually attempted to murder [him]." This argument is meritless. "The offense of attempted second-degree murder requires proof that the defendant intended or knew that his conduct would cause death." State v. Ontiveros, 206 Ariz. 539, f 14, 81 P.3d 330, 333 (App. 2003); see also A.R.S. §§ 13-1001, 13-1104. Lopez intentionally struck J. twice on the head with a machete. A jury readily could conclude from this evidence that Lopez had intended to kill J. See State v. Bearup, 221 Ariz. 163, f 16, 211 P.3d 684, 688 (2009) ( ), quoting State v. Routhier, 137 Ariz. 90, 99, 669 P.2d 68, 77 (1983); Ontiveros, 206 Ariz. 539, f 16, 81 P.3d at 333 ().
¶9 In a related argument, Lopez notes that second-degree murder may be committed by reckless conduct. See § 13-1104(A)(3). Thus, he reasons, because "[a]ttempt involves an act of deliberation" and "[o]ne cannot both be reckless and deliberate at the same time," "the crime of attempt cannot be sustained because one cannot attempt to act recklessly." He asserts the jury might have found him guilty ofattempted second-degree murder by basing its verdict improperly on reckless conduct because "[t]he jury did not make any finding of how [he] attempted to commit" seconddegree murder.
¶10 Lopez is correct that "there is no offense of attempted second-degree murder based on reckless conduct." Ontiveros, 206 Ariz. 539, f 14, 81 P.3d at 333. But he overlooks that the jury was not instructed that it could find him guilty of seconddegree murder based on his reckless conduct. Instead, the trial court correctly instructed the jury only on intentional and knowing second-degree murder, and we presume the jury followed those instructions.1 See State v. Morris, 215 Ariz. 324, f 55, 160 P.3d 203, 216 (2007). Thus, there is no basis for concluding the jury found Lopez guilty of attempted second-degree murder based on reckless conduct.
¶11 Lopez next contends the trial court aggravated his sentences improperly by relying on invalid aggravating factors. The state had alleged fourteen aggravatingfactors, seven of which the jury found the state had proven beyond a reasonable doubt. Three of those seven are variations of enumerated aggravating factors in A.R.S. § 13-702(C).2 The jury found:
1. The offense(s) caused emotional or financial harm to the victim(s).
2. The offense(s) involved lying in wait for the victim(s).
3. The offense(s) was an act of domestic violence committed in the presence of a minor child.
See § 13-702(C)(9) (), (17) (lying in wait for victim during commission of any felony), (18) (domestic violence in presence of child). The other four aggravating factors found by the jury "[t]he offense(s) involved multiple victims in a single incident," "[t]he defendant evaded police," "[t]he defendant left the scene of the crime," and "[t]he defendant did not seek medical help for the victim(s)" are not specifically enumerated in § 13-702(C). Rather, they fall within the "catch-all" provision of § 13-702(C)(24), which permits a trial court to consider "[a]ny other factor that the state alleges is relevant to the defendant's character or background or to the nature or circumstances of the crime."
¶12 Because Lopez did not object below either to these findings or to the trial court's imposition of an aggravated sentence, we review only for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ff 19-20, 115 P.3d 601, 607 (2005). The imposition of an illegal sentence, however, constitutes fundamental error. State v. Zinsmeyer, 222 Ariz. 612, f 26, 219 P.3d 1069, 1080 (App. 2009). We address Lopez's offense-specific claims before evaluating his...
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