Opinion
No. 1 CA-CR 12-0389
05-23-2013
STATE OF ARIZONA, Appellee, v. RUBEN GOMEZ VILLEGAS, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee James Haas, Maricopa County Public Defender By Louise Stark, 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(Not for Publication - Rule 111, Rules of the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. CR2011-154731-001 DT
The Honorable Susanna C. Pineda, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix James Haas, Maricopa County Public Defender
By Louise Stark, Deputy Public Defender
Attorneys for Appellant
Phoenix BROWN, Judge ¶1 Ruben Gomez Villegas appeals his convictions and sentences for disorderly conduct and unlawful discharge of a firearm. Counsel for Villegas filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that after searching the record on appeal, she was unable to find any arguable grounds for reversal. Villegas was granted the opportunity to file a supplemental brief in propria persona, and although he has not done so, he has raised several issues through counsel. ¶2 Our obligation is to review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). We view the facts in the light most favorable to sustaining the conviction and resolve all reasonable inferences against Villegas. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). Finding no reversible error, we affirm. ¶3 In October 2011, the State charged Villegas with one count of disorderly conduct, a class 6 dangerous felony and domestic violence offense, in violation of Arizona Revised Statutes ("A.R.S.") sections 13-2904(A)(6) (2013) and A.R.S. § 13-3601(A)(1) (2013) and one count of unlawful discharge of a firearm, a class 6 felony, in violation of A.R.S. § 13-3107(A) (2013). The following evidence was presented at trial. ¶4 Villegas and his girlfriend, R.J., lived together in a house owned by Inez, R.J.'s daughter. Inez's boyfriend, J.J., and several minor children also lived in the home. On the evening of October 21, 2011, Villegas and R.J. had been drinking together at home when they began arguing. J.J. tried to calm Villegas down and told him to leave. R.J.'s minor child, C.J., was present and was scared by the argument. Villegas continued yelling, displayed a revolver, and began waving it around at R.J., J.J., and C.J. Villegas shot the gun and the bullet passed through an exterior wall of the house. Villegas left the home with the gun and J.J. called the police. ¶5 A police officer apprehended Villegas, but no gun was found. Villegas admitted he was angry and found a revolver on top of a dresser but did not know who it belonged to. He also admitted he fired the gun in the air but did not remember what he did with it after the incident. ¶6 A jury found Villegas guilty as charged and the court sentenced him to concurrent presumptive prison terms of 2.25 years for disorderly conduct and one year for unlawful discharge of a firearm. Villegas was credited with 227 days of presentence incarceration. Villegas filed this timely appeal. ¶7 Through counsel, Villegas raises the following issues: (1) the display of revolvers to the jury when no weapon was found; (2) the State's failure to test for gunshot residue at the time of Villegas's arrest; (3) inconsistent witness testimony; and (4) failure to provide all documents to Villegas in Spanish. Because Villegas failed to present these matters to the trial court, we review them for fundamental error only. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) ("Fundamental error review . . . applies when a defendant fails to object to alleged trial error."). ¶8 Villegas questions whether the State should have been allowed to show two revolvers to the jury when no weapon was recovered. During direct examination of Officer Joseph, without objection the court permitted the State to introduce, for "demonstrative purposes only," two revolvers. Because substantial evidence in the record shows Villegas fired a revolver, the State could properly use other such devices to help the jury understand how the use of a revolver, as opposed to a semi-automatic weapon, would explain the lack of shell casings found at the scene and to aid the jury to decide whether a dangerous weapon was involved. See State v. Mays, 7 Ariz. App. 90, 92, 436 P.2d 482, 484 (1968) (holding that a weapon similar to that used to commit the crime may be introduced as illustrative of the weapon which the defendant used to assault his victim). We therefore find no error. ¶9 Villegas suggests the State was required to test his hands for gunshot residue at the time he was arrested to prove he had recently fired a weapon. Villegas could have made this argument during cross-examination of the police officer that arrested him, but he did not do so. A challenge to appropriate defense strategy, like a claim of ineffective assistance of counsel, will not be considered on direct appeal regardless of its merit. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). Furthermore, there was substantial testimony that Villegas shot the gun, including his admission to the arresting officer. ¶10 Villegas next challenges the credibility of witnesses, asserting that J.J. had a motive to lie, R.J. only testified to a portion of what she saw, and there was lack of certainty that the hole in the wall was made by a bullet. It is the function of the jury, however, to weigh the evidence and determine the credibility of witnesses. State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995). We will not disturb a jury's decision if there is substantial evidence to support its verdict. Id. While there was some inconsistent testimony at trial in this case, the jury was in the best position to weigh the evidence and determine the credibility of each witness. See State v. Williams, 209 Ariz. 228, 231, ¶ 6, 99 P.3d 43, 46 (App. 2004) . We therefore conclude there was no error, fundamental or otherwise. ¶11 Finally, Villegas raises the trial court's failure to provide him "all documents in Spanish." The record does not reveal that Villegas requested Spanish-translated documents, nor did Villegas ever assert any such documents were reasonably necessary to his defense. See Calderon-Palomino v. Nichols, 201 Ariz. 419, 422, ¶ 6, 36 P.3d 767, 770 (App. 2001) (finding it was incumbent on defense counsel to identify particular documents for translation that were "likely to yield meaningful input" from the defendant). And, on appeal, Villegas does not make any assertion that he was deprived of his ability to present an effective defense. Id. Moreover, the record indicates Villegas understood English and used it to communicate with some of the officers and with R.J., who does not speak Spanish. Cf. State v. Natividad, 111 Ariz. 191, 194, 526 P.2d 730, 733 (1974) (refusing to vacate conviction when "record disclosed appellants were able to effectively understand and communicate in English"). ¶12 We have searched the entire record for reversible error and find none. All of the proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. The record shows Villegas was present and represented by counsel at all pertinent stages of the proceedings, was afforded the opportunity to speak before sentencing, and the sentence imposed was within statutory limits. Based on the foregoing, we affirm Villegas's convictions and sentences. ¶13 Upon the filing of this decision, counsel shall inform Villegas of the status of the appeal and his options. Defense counsel has no further obligations unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Villegas shall have thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review.
Absent material revisions after the relevant date, we cite a statute's current version.
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MICHAEL J. BROWN, Judge
CONCURRING: _____________
SAMUEL A. THUMMA, Presiding Judge
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DIANE M. JOHNSEN, Judge