Opinion
1 CA-CR 11-0796
04-16-2013
STATE OF ARIZONA, Appellee, v. STEPHANIE ROSE RAMIREZ, Appellant.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Acting Chief Counsel Criminal Appeals/Capital Litigation Division Matthew H. Binford, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Kathryn L. Petroff, Deputy Public Defender Attorneys 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 DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-006194-003
The Honorable Randall H. Warner, Judge
AFFIRMED IN PART; VACATED IN PART
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz, Acting Chief Counsel
Criminal Appeals/Capital Litigation Division
Matthew H. Binford, Assistant Attorney General
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
By Kathryn L. Petroff, Deputy Public Defender
Attorneys for Appellant
Phoenix OROZCO, Judge ¶1 Stephanie Rose Ramirez (Defendant) appeals her convictions and sentences for second degree murder and two counts of conspiracy to commit aggravated assault. The sole issue raised on appeal is whether the trial court erred by admitting evidence that one of her co-conspirators and accomplices had been to prison. For the reasons that follow, we affirm Defendant's convictions and sentences for second degree murder and one count of conspiracy to commit aggravated assault. We vacate the conviction and the sentence imposed on the second count of conspiracy because multiple convictions for a single offense constitute a double jeopardy violation.
FACTS AND PROCEDURAL HISTORY
We view the evidence presented at trial in the light most favorable to sustaining the convictions. State v. Cropper, 205 Ariz. 181, 182, ¶ 2, 68 P.3d 407, 408 (2003).
¶2 On the evening of July 24, 2009, several adults and children gathered at the victim's home. The adults were drinking and the children were playing video games. An altercation occurred between the victim's eight-year-old son and the fourteen-year-old twin sons of Defendant's brother. When someone told the victim that his son was crying, the victim became angry with one of the twins and threw a full can of beer, striking the boy in the head. ¶3 Neither of the twins' parents had been at the party. When Connie R., the twins' mother, learned of the incident, she and her sister went to the victim's home to confront him about his conduct. The victim's wife, however, convinced Connie R. and her sister to leave by telling them that they should discuss the incident the next day when they were all sober. ¶4 Later that evening, Defendant telephoned Connie R. to find out what happened. When told what had occurred, Defendant became upset and stated, "[F]__ that[.] [N]o one's going to hit my f__ing nephew." In a follow-up call between the two, Connie R. informed Defendant that everything was okay and would be taken care of the next day. Defendant responded by telling Connie R. "we will be over there in a little while." ¶5 A short time later, Defendant knocked on Connie R.'s door. When Connie R. opened her door to let Defendant in, she observed Defendant's vehicle drive off. Connie R. asked Defendant who was in her vehicle and was told, "[M]y boyfriend and your babies' daddy" -- Defendant's brother -- "and he's upset." After Defendant entered her home, Connie R. attempted to close her door, but Defendant requested that it be left open. ¶6 Shortly after Defendant's arrival at Connie R.'s house, the victim was shot and killed in his backyard. Connie R. was sitting on her couch and Defendant was standing near the open front door when they heard the gunshots. When Connie R. asked what happened, Defendant told her, "[D]on't worry about it; they probably shot at his car or they shot in the air." Other remarks by Defendant to Connie R. that evening included, "He got what he deserved" and "[D]on't say anything." ¶7 Following the shooting, Defendant's vehicle raced past Connie R.'s home without stopping to pick up Defendant. The vehicle was stopped by the police shortly after the shooting several miles from the victim's house. The police took gunshot residue samples from the hands of both Defendant's brother and her boyfriend, and the samples were subsequently determined to be positive for gunshot residue. No weapon was found in the vehicle, but there was a holster for a mid to small frame semiautomatic handgun in the backseat. One of the police officers who conducted the traffic stop testified that the holster would hold "any caliber from a .380 . . . to a slim frame .45 A.C.P. style." The State's firearms examiner subsequently testified that a .380 caliber round was used to kill the victim. ¶8 Defendant was indicted on one count of second degree murder, a class 1 felony and dangerous offense; and two counts of conspiracy to commit aggravated assault, each a class 3 felony and dangerous offense, in connection with the killing of the victim. After a trial to a jury, Defendant was found guilty on all three counts as charged. The trial court sentenced her to three concurrent prisons terms, the longest being twelve years for the second degree murder conviction. ¶9 Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 (2003), 13-4031 (2010), and -4033.A.1 (2010).
DISCUSSION
A. Other Act Evidence ¶10 Defendant contends the trial court erred in admitting evidence that her brother had been in prison. She argues that this was prejudicial character evidence that violated Arizona Rule of Evidence 404(b). Rule 404(b) precludes evidence of other acts "to prove the character of a person in order to show action in conformity therewith." We review a trial court's ruling on the admissibility of other act evidence for abuse of discretion. State v. Villalobos, 225 Ariz. 74, 80, ¶ 18, 235 P.3d 227, 233 (2010). ¶11 As an initial matter, we reject the State's argument that the trial court erred by analyzing the admissibility of the other act evidence under Rule 404(b). Relying on State v. Bloomer, 156 Ariz. 276, 751 P.2d 592 (App. 1987), the State asserts this rule only governs the admission of evidence of acts by defendants, not those of other persons. Without citation to any authority, the Bloomer court expressed a belief that Rule 404(b) applied only to other acts of defendants. Id. at 280, 751 P.2d at 596. Subsequent to Bloomer, however, our supreme court held that the "rule applies to other acts of third persons as well as to those of defendants." State v. Tankersley, 191 Ariz. 359, 369, ¶ 39, 956 P.2d 486, 496 (1998), abrogated by State v. Machado, 226 Ariz. 281, 246 P.3d 632 (2011); see also State v. Fish, 222 Ariz. 109, 123, ¶ 42, 213 P.3d 258, 272 (App. 2009) (citing Tankersley and concluding that Rule 404(b) "applies to prior acts of . . . third parties"). ¶12 In State v. Machado, 226 Ariz. 281, 283-84, ¶¶ 14-16, 246 P.3d 632, 634-35 (2011), our supreme court narrowed its broad statement regarding the application of Rule 404(b) in Tankersley. It held that admission of third-party culpability evidence offered by the defendant is governed by the standards of Arizona Rules of Evidence 401, 402, and 403, rather than Rule 404(b), because the purpose of Rule 404(b) is to protect defendants from unfair use of propensity evidence. Id. Here, in contrast with the situation in Machado, the issue involves the admission of other act evidence pertaining to a charged co-conspirator and alleged accomplice offered by the State against Defendant. Under these circumstances, we hold that there was no error by the trial court in addressing the admissibility of the other act evidence under Rule 404(b). See United States v. Lucas, 357 F.3d 599, 611-15 (6th Cir. 2004) (Rosen, J., concurring) (distinguishing other act evidence offered by defendant from that offered against defendant) (cited with approval in Machado, 226 Ariz. at 283, ¶ 14, 246 P.3d at 634). ¶13 Turning to the merits of Defendant's argument, we hold that there was no abuse of discretion by the trial court in admitting evidence that Defendant's brother had been in prison. Although Rule 404(b) precludes evidence of other crimes, wrongs or acts to prove the character of a person, it explicitly provides such evidence may be admissible "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Other act evidence is admissible if (1) the evidence is admitted for a proper purpose; (2) the evidence is relevant; (3) the evidence is not unfairly prejudicial; and (4) the trial court gives an appropriate limiting instruction upon request. State v. Lee, 189 Ariz. 590, 599, 944 P.2d 1204, 1213 (1997). ¶14 The evidence that Defendant's brother had been in prison was introduced for a proper, non-character purpose. It was not offered to establish that Defendant's brother acted in conformity with prior conduct, but rather to prove Defendant's state of mind. Defendant's state of mind was a material issue at trial because to convict on the charge of second degree murder, the State was required to prove that Defendant "knowingly" engaged in conduct that would cause death or serious physical injury to the victim. A.R.S. § 13-1104.A.2 (2010). ¶15 Second, the evidence was relevant. Evidence is relevant if it has any tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Ariz. R. Evid. 401. The evidence that Defendant's brother had been in prison was relevant as it had a tendency to make it more likely that Defendant acted "knowingly" in regards to causing death or serious physical injury to the victim because she conspired with a person she had reason to believe would engage in criminal conduct. ¶16 There is no merit to Defendant's contention that the other act evidence was not relevant to her state of mind because there was no evidence presented regarding the specific nature of the conduct leading to her brother's imprisonment. It is true that the evidence would have been more probative of Defendant's state of mind if the State had been permitted to establish that her brother had been convicted of aggravated assault. Even absent the particulars of the conviction, however, the trial court could still reasonably view the evidence as having some tendency to prove that Defendant acted "knowingly" in causing injury to the victim by conspiring with a person generally disposed to criminal acts. See State v. Oliver, 158 Ariz. 22, 28, 760 P.2d 1071, 1077 (1988) (holding standard of relevance for admission of evidence "is not particularly high"). ¶17 There is likewise no merit to Defendant's argument that the fact that her brother had been in prison was not relevant to her state of mind because there was no proof she was aware of this fact. As the trial court noted in deciding to admit the other act evidence, it is certainly reasonable to infer that a sister who is close to her brother knows if he has been in prison. ¶18 Third, the trial court acted well within its broad discretion in ruling that the probative value of the other act evidence was not substantially outweighed by the danger of unfair prejudice. See State v. Harrison, 195 Ariz. 28, 33, ¶ 21, 985 P.2d 513, 518 (App. 1998) ("The trial court is in the best position to balance the probative value of challenged evidence against its potential for unfair prejudice. Thus, it has broad discretion in deciding the admissibility."), aff'd, 195 Ariz. 1, 985 P.2d 486 (1999). Evidence is unfairly prejudicial if it "has an undue tendency to suggest [a] decision on an improper basis, such as emotion, sympathy, or horror." State v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046, 1055 (1997). In the present case, because the evidence concerned Defendant's brother rather than Defendant, the trial court could reasonably find the evidence did not pose a significant risk of unfair prejudice to Defendant. ¶19 Finally, the trial court informed Defendant that a limiting instruction would be given if requested, but Defendant did not request one. On this record, there was no error by the trial court in ruling that the other act evidence was admissible under Rule 404(b).
Absent material revisions after the relevant date, we cite a statute's current version.
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B. Multiple Conspiracy Convictions ¶20 In our review of the record, we have determined that one of the two convictions for conspiracy must be vacated. The State presented evidence of a single conspiracy to commit aggravated assault against one victim. Even though the evidence supports a finding that the conspiracy involved the commission of two differing types of aggravated assault, "[a] person who conspires to commit a number of offenses is guilty of only one conspiracy if the multiple offenses are the object of the same agreement or relationship and the degree of the conspiracy shall be determined by the most serious offense conspired to." A.R.S. § 13-1003.C (2010). ¶21 An indictment is multiplicitous when a single offense is charged in multiple counts. Merlina v. Jejna, 208 Ariz. 1, 4, ¶ 12, 90 P.3d 202, 205 (App. 2004). The double jeopardy clauses of the Arizona and United States Constitutions prohibit the imposition of multiple convictions and punishments for the same offense. Lemke v. Rayes, 213 Ariz. 232, 236, ¶ 10, 141 P.3d 407, 411 (App. 2006). When a defendant is convicted on multiplicitous charges, the appropriate remedy is to dismiss all but one of the convictions and impose a single sentence. State v. Jones, 185 Ariz. 403, 407-08, 916 P.2d 1119, 1123-24 (App. 1995); see also State v. Brown, 217 Ariz. 617, 621, ¶ 13, 177 P.3d 878, 882 (App. 2008) ("[W]hen a defendant is convicted more than once for the same offense, his double jeopardy rights are violated even when . . . he receives concurrent sentences."). ¶22 Both of the conspiracy to commit aggravated assault counts were class 3 felonies and dangerous offenses, and the trial court imposed 7.5 year prison terms on each count. Given that neither offense is more serious than the other, we vacate the conviction and the sentence imposed on Count 5, the second of the two counts. See State v. Powers, 200 Ariz. 123, 127, ¶ 16, 23 P.3d 668, 672 (App.), approved, 200 Ariz. 363, 26 P.3d 1134 (2001).
CONCLUSION
¶23 For the foregoing reasons, we affirm Defendant's convictions and sentences for second degree murder and one count of conspiracy to commit aggravated assault. We further vacate the conviction and the sentence imposed on the second charge of conspiracy alleged in Count 5 of the indictment.
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PATRICIA A. OROZCO, Presiding Judge
CONCURRING: ______________
PETER B. SWANN, Judge
______________
ROBERT C. HOUSER, Judge Pro Tempore*
*The Honorable Robert C. Houser, Jr., Judge (Retired) of the Maricopa County Superior Court, is authorized by the Chief Justice of the Arizona Supreme Court to participate in the disposition of this appeal pursuant to Article 6, Section 3, of the Arizona Constitution and A.R.S. §§ 12-145 to -147 (2003).