State v. Navarro

THE STATE OF ARIZONA, Appellee, v. MARISELA NAVARRO, Appellant.

No. 2 CA-CR 2017-0161

ARIZONA COURT OF APPEALS DIVISION TWO

November 21, 2018

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NOT FOR PUBLICATION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 Pima County

No. CR20160497001

The Honorable Jane L. Eikleberry, Judge

The Honorable James E. Marner, Judge

AFFIRMED IN PART; VACATED IN PART AND REMANDED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Chief Counsel

By Kathryn A. Damstra, Assistant Attorney General, Tucson

Counsel for Appellee

Joel Feinman, Pima County Public Defender

By David J. Euchner, Assistant Public Defender, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Vásquez authored the decision of the Court, in which Judge Eppich and Chief Judge Eckerstrom concurred.

VÁSQUEZ, Presiding Judge:

¶1 Following a jury trial, Marisela Navarro was convicted of fraudulent schemes and artifices, two counts of theft, and eight counts of forgery. On appeal, she argues the trial court erred in several evidentiary rulings and by failing to provide a requested jury instruction. She also argues the court illegally sentenced her as a repetitive offender and violated her double jeopardy rights by entering two convictions for theft arising from the same scheme. For the following reasons, we vacate the sentences on the fraud and theft counts and remand for resentencing, but otherwise affirm her convictions and remaining sentences.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to upholding the jury's verdicts. State v. Tamplin, 195 Ariz. 246, ¶ 2 (App. 1999). In 2011, Navarro began working for S.B., providing companionship, going grocery shopping for her, and accompanying her to appointments at a rate of nine dollars per hour. In 2012, S.B.'s doctor noted "she was beginning to present with mild cognitive memory loss." He did not think she was capable of understanding her "finances or was able to make medical decisions."

¶3 Navarro stopped working for S.B. in August 2013. Beginning in September, Navarro continued to visit S.B. and collect checks, despite not providing any services. In July and August 2014, Navarro also took several blank checks from S.B.'s home, forging and cashing them. In August 2014, S.B.'s daughter placed a hold on both of S.B.'s bank accounts and alerted the Pima County Sheriff's Department to the thefts and forgeries. Adult Protective Services (APS) also opened an investigation, and Navarro told the APS investigator she had "[written] out several checks and forged [S.B.'s] name." Shortly thereafter, S.B. was hospitalized several times and later died in February 2015.

¶4 A grand jury indicted Navarro for fraudulent schemes and artifices, two counts of theft of a vulnerable adult, eight counts of forgery, and one count of identity theft. The jury convicted Navarro as describedabove.¹ The trial court sentenced Navarro to concurrent sentences, the longest of which is 6.5 years. We have jurisdiction over her appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

F.D.'s testimony

¶5 Navarro first contends several statements F.D. made while testifying were inadmissible hearsay or, alternatively, constituted impermissible lay opinion. However, because she did not object to any of this testimony below, we limit our review to fundamental, prejudicial error. See State v. Escalante, 245 Ariz. 135, ¶ 12 (2018). Navarro bears the burden of proving both that the error was fundamental and that it caused her prejudice. See id. ¶ 21. "Because fundamental error review is a fact-intensive inquiry, the showing necessary to demonstrate prejudice will vary on a case-by-case basis." State v. Valverde, 220 Ariz. 582, ¶ 12 (2009), abrogated on other grounds by Escalante, 245 Ariz. 135, ¶¶ 15-16.

¶6 Navarro contends F.D.'s testimony that S.B. told her Navarro earned nine dollars per hour and that S.B. paid her each day was impermissible hearsay and does not fall within the "residual exception" of Rule 807, Ariz. R. Evid. However, even the erroneous admission of testimony may be harmless, and thus not prejudicial, if it is cumulative to other properly admitted evidence. See State v. Williams, 133 Ariz. 220, 226 (1982); see also State v. Martin, 225 Ariz. 162, ¶ 15 (App. 2010). At trial, Navarro also testified that S.B. initially paid her nine dollars an hour, explaining that S.B. gave her a few raises through July 2014 and, in 2013, began paying her additional lump sums for specific tasks. She also testified that S.B. paid her either every day or every two days. Because F.D.'s testimony was cumulative to Navarro's own testimony, she has not met her burden of demonstrating she was prejudiced by this testimony. See Escalante, 245 Ariz. 135, ¶ 21; see also State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005).

¶7 As to the other testimony Navarro challenges, she likewise has not explained how the statements prejudiced her. She summarily states the "errors were clear and egregious . . . because they were so numerous and because they were so obvious." By failing to argue how these additional alleged errors prejudiced her, she has failed to meet her burdenof demonstrating fundamental, prejudicial error.² See Escalante, 245 Ariz. 135, ¶ 21. To the extent she implies the sheer number of claimed errors establishes prejudice, we do not recognize the doctrine of cumulative error except in the context of prosecutorial misconduct. See State v. Hughes, 193 Ariz. 72, ¶ 25 (1998); see also State v. Parker, 231 Ariz. 391, ¶ 81 (2013).

Involuntariness

¶8 Navarro next contends the trial court "abused its discretion in refusing a jury instruction on [the] voluntariness of . . . Navarro's statements" to the APS investigator.³ "We review a court's refusal to give a requested jury instruction for an abuse of discretion, but consider de novo whether the instructions given were legally sufficient when viewed as a whole." State v. Causbie, 241 Ariz. 173, ¶ 15 (App. 2016) (footnote omitted).

¶9 During her testimony, the APS investigator quoted Navarro as saying about her forgery of some of S.B.'s checks: "I know that was wrong, what will happen to me?" While settling the final jury instructions, Navarro requested an instruction directing the jurors that they may "not consider any statements made . . . to a law enforcement officer unless you determine beyond a reasonable doubt that the defendant made the statements voluntarily." Rev. Ariz. Jury Instr. Stand. Crim. 6 (4th ed. 2018).⁴ That instruction also provides a list of factors to consider in determining whether the statements were made voluntarily. Id.¶10 Navarro stated:

My concern is the statement to the [APS investigator]. I guess she's like an administrative officer, so she's not technically a law enforcement officer. But I think in order to give that statement—and maybe this is more appropriate[ly] dealt with in arguments. But certainly there would have to be a finding that it was a voluntary statement and she understood it and all of that.

The trial court denied Navarro's request, finding the instruction did not "apply to that investigator because she's not law enforcement."

¶11 Navarro argues the trial court erred by only considering the fact that the APS investigator "is not a law enforcement officer per se" and "by ending the inquiry at that point." She contends the court "should have considered whether [Navarro] would have perceived [the investigator] as '. . . an administrative officer' or as a law enforcement officer." She does not, however, cite any legal authority for the proposition that giving the instruction hinges on the defendant's subjective perception, nor can we find any. Cf. State v. Fulminante, 161 Ariz. 237, 241, 243-44 (1988) (failure to instruct jury paid inmate informant tasked with questioning defendant was "law enforcement officer" when evidence of coercion present constituted error); State v. Lucero, 223 Ariz. 129, ¶¶ 2-4, 15 (App. 2009) (United States Army Criminal Investigations Division sergeant interrogating defendant on behalf of local police was "law enforcement" for purposes of instruction). Based on this alone, we could deem the issue waived. See State v. Martin, 225 Ariz. 162, n.6 (App. 2010).

¶12 Even if the issue were not waived, however, no error occurred. To the extent Navarro argues the APS investigator should be viewed like the paid informant in Fulminante, we disagree. In Fulminante, the inmate informant was paid by law enforcement and specifically directed to get information from the defendant. 161 Ariz. at 243-44. The informant did so by offering the defendant protection from "physical harm at the hands of other inmates." Id. at 243.

¶13 In this case, the APS investigator was working on behalf of her agency—not law enforcement—to determine if Navarro had exploited S.B., and, if the investigator substantiated those claims, her agency wouldplace Navarro's name on a public registry. The investigator's "primary focus" was "to make sure that [vulnerable adults] are safe, that they're not being exploited, neglected or abused." This is not comparable to a paid informant using coercion and the threat of physical harm to gain information at law enforcement's behest.

¶14 But even if the APS investigator could be considered a law enforcement agent, after she identified herself, Navarro responded that she was comfortable speaking with her. See State v. Newell, 212 Ariz. 389, ¶ 39 (2006) (statement involuntary when "given the totality of the circumstances, the defendant's will was overborne"); see also State v. Winters, 27 Ariz. App. 508, 511 (1976) ("A statement induced by fraud or trickery is not made involuntary unless there is additional evidence indicating that the defendant's will was overborne or that the confession was false or unreliable."). Navarro's reliance on Fulminante is...