State v. Armenta

THE STATE OF ARIZONA, Appellee, v. ANTHONY VIDAL ARMENTA, Appellant.

No. 2 CA-CR 2018-0164

ARIZONA COURT OF APPEALS DIVISION TWO

September 27, 2019

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NOT FOR PUBLICATION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. 31.19(e).

Appeal from the Superior Court in Pinal County

No. S1100CR201601767

The Honorable Kevin D. White, Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Chief Counsel

By Amy M. Thorson, Assistant Attorney General, Tucson

Counsel for Appellee

Rosemary Gordon Pánuco, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Staring authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred.

STARING, Presiding Judge:

¶1 Anthony Armenta appeals his conviction for participating in a criminal street gang. For the reasons that follow, we affirm Armenta's conviction and sentence.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the jury's verdict and resolve all inferences against Armenta. See State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015). In 2010, while Armenta was incarcerated, he attempted to mail an envelope, which was intercepted by officers of the Arizona Department of Corrections (DOC) and placed in his security-threat-group (STG) file.¹ The envelope was addressed to U.M. and contained three handwritten letters: one was not addressed to anyone specifically, one was addressed to A.M., and one to J.

¶3 The first letter, which was not addressed to anyone specifically, was signed "Anthony" and instructed the intended recipient to send the other letters addressed to A.M. and J. The letter also included A.M.'s DOC inmate number and said "one goes to Jay." A detective testified that A.M. was a member of the Arizona Mexican Mafia (AMM), a prison gang.

¶4 The letter to A.M. said Armenta had arrived in Tucson because of B.U., instructed A.M. to "[k]eep this nombre [name] in mind," and described B.U. as a "xixa rata," which is AMM slang for "snitch" or "rat." The letter was dated February 1, 2010, and was not signed, but the handwriting matched the other letters in the envelope, which were signed "Anthony," and other documents with Armenta's handwriting.

¶5 The letter to J. was dated February 10, 2010, and included references to the Aztec sun god, an important symbol to the AMM, andinstructed J. to give a message to someone else. This letter was signed "Anthony" and included Armenta's nickname, "Azcatl."

¶6 Based on the letters, the state charged Armenta with one count of participating in a criminal street gang by "intentionally organizing, managing, directing, supervising or financing a criminal street gang with the intent to promote or further the criminal objectives of the criminal street gang" in violation of A.R.S. § 13-2321(A)(1).² During his five-day trial, the state presented testimony from multiple law enforcement officers and experts showing Armenta's affiliation with the AMM and the Vario Guadalupe Locos (VGL), a criminal street gang, testimony that Armenta had written the letters, and the actual letters themselves.

¶7 Following a jury trial, Armenta was convicted of participating in a criminal street gang, and this appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Discussion

¶8 On appeal, Armenta argues: (1) there was insufficient evidence to support his conviction of participating in a criminal street gang; (2) the trial court's refusal to question each juror about whether they had seen a newspaper article that linked Armenta to the murder of B.U. deprived him of his Sixth and Fourteenth Amendment rights to an impartial jury; and (3) the court erred in admitting various documents and a photo of Armenta's VGL tattoo.

Sufficiency of Evidence

¶9 Sufficiency of the evidence is a question of law we review de novo, Felix, 237 Ariz. 280, ¶ 30, and we will reverse "only if no substantial evidence supports the conviction," State v. Fimbres, 222 Ariz. 293, ¶ 4 (App. 2009) (quoting State v. Pena, 209 Ariz. 503, ¶ 7 (App. 2005)). "Substantial evidence is proof that reasonable persons could accept as sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." State v. Spears, 184 Ariz. 277, 290 (1996). "Sufficient evidence may be comprised of both direct and circumstantial evidence and be substantial enough for a reasonable person to determine that it supports a verdict of guilt beyond a reasonable doubt." Felix, 237 Ariz. 280, ¶ 30 (citation omitted). "If reasonable persons could differ on whether theevidence establishes a fact at issue, that evidence is substantial." State v. Garfield, 208 Ariz. 275, ¶ 6 (App. 2004).

¶10 Armenta argues there was insufficient evidence to support his conviction because "[t]here was no evidence that [he] was ever a full-fledged member of the AMM. It was unclear what [his] status was with AMM on February 1, 2010, the date the alleged crime was committed." He further contends that he "didn't have either the authority or ability to" organize, manage, direct, or supervise the gang's activities. Armenta further contends that "[w]ithout proof of this essential element," there was insufficient evidence to convict him. He also asserts "the 2010 letter was nothing more than passing along information" and "was not giving an order or directing anyone to do anything," and that passing along information does not meet "the common definition" of organizing, managing, directing, or supervising a criminal street gang.

¶11 The state counters that § 13-2321(A)(1) does not require the state to prove that a person who organizes, manages, directs, or supervises a criminal street gang necessarily has the authority to give orders or direction to others. The state also argues "the plain language of the statute does not even require any showing that the person was a member of the criminal street gang." Finally, the state asserts that because § 13-2321(A)(1) does not define the terms "organize," "manage," "direct," or "supervise," this court should give those words their ordinary meanings, and under the ordinary meanings, Armenta's actions satisfy § 13-2321(A)(1).³ We agree.

¶12 We review issues of statutory interpretation de novo and "[w]hen the statute's plain language is clear, we will not resort to other methods of statutory interpretation, 'such as the context of the statute, its historical background, its effects and consequences, and the spirit and purpose of the law.'" State v. Hernandez, 246 Ariz. 407, ¶¶ 8, 12 (App. 2019) (quoting State v. Gray, 227 Ariz. 424, ¶ 5 (App. 2011)). In relevant part, § 13-2321(A)(1) provides: "A person commits participating in a criminal street gang by . . . [i]ntentionally organizing, managing, directing, supervising or financing a criminal street gang with the intent to promote or further the criminal objectives of the criminal street gang." Contrary to Armenta's argument, the statute does not require the defendant to have the authority to organize, manage, direct, or supervise the gang activity. See § 13-2321(A)(1). And although Armenta appears to admit he is an AMM member, as the state argues, the statute does not require a person to be a member of a gang in order to participate in it. Therefore, Armenta's argument that he could not be guilty of participating in a criminal street gang because he did not have the authority to organize, manage, direct, or supervise the gang fails as a matter of law.

¶13 Because the statute does not define the terms "organizing," "managing," "directing," or "supervising," we give those words their ordinary meaning. See A.R.S. § 1-213 ("Words and phrases shall be construed according to the common and approved use of the language."); see also State v. Cox, 217 Ariz. 353, ¶ 20 (2007) ("In the absence of statutory definitions, we give words their ordinary meaning."). Specifically, the ordinary meaning of "direct" is to "manage or regulate the business or affairs of . . . To give an order to; command . . . To indicate the intended recipient on (a letter, for example) . . . To give commands or directions." American Heritage Dictionary 511 (5th ed. 2011).

¶14 Viewing the evidence in the light most favorable to sustaining the jury's verdict and resolving all reasonable inferences against Armenta, see Felix, 237 Ariz. 280, ¶ 30, there was sufficient evidence to convict him of participating in a criminal street gang by directing its activities. The letter to A.M. stated: "Keep this nombre in mind. This levas is from home [B.U.] xixa rata." At trial, the state's gang expert explained that "levas" was slang for "bitch," that "xixa rata" is AMM slang for "rat" or "snitch," and that Armenta's letter was informing A.M. that B.U. had snitched. The gang expert also testified that being called a "levas" is the "ultimate disrespect" and that when the AMM identifies someone as a snitch, "they would target that individual to be killed." Thus, a reasonable jury could have found Armenta directed gang activity by telling A.M.—a validated AMM member—to keep a snitch's name in mind.

¶15 Although J. was never identified at trial, the letter addressed to him directed him to give a message to someone else and included Armenta's nickname. And, the unaddressed letter was in the envelope addressed to U.M. and presumably intended for her, as it stated: "I got a few letters that need to get to these fellas. It's very appreciated!" Based on these letters, reasonable jurors could have found that Armenta had directed, ordered, or commanded U.M. to send the other letters or that he had indicated the intended recipients of his letters, A.M. and J., in his letter to U.M., thus directing gang activities under § 13-2321(A)(1). See American Heritage Dictionary 511 (5th ed. 2011). Therefore, the letters were substantial and sufficient...