                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                 SAMUEL WAYNE ESTRADA, Appellant.

                             No. 1 CA-CR 14-0386
                               FILED 7-9-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-450249-001
              The Honorable Brian Kaiser, Judge Pro Tem

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kathryn L. Petroff
Counsel for Appellant



                       MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Maurice Portley and Judge Michael J. Brown joined.
                            STATE v. ESTRADA
                            Decision of the Court

G E M M I L L, Judge:

¶1             Samuel Wayne Estrada (hereinafter “Estrada”) appeals his
conviction and sentence for one count of aggravated domestic violence, a
class 5 felony. Estrada’s counsel filed a brief in compliance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), stating
that she has searched the record and found no arguable question of law and
requesting that this court examine the record for reversible error. Estrada
was afforded the opportunity to file a pro se supplemental brief but did not
do so. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). For the
following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            “We view the facts and all reasonable inferences therefrom in
the light most favorable to sustaining the convictions.” State v. Powers, 200
Ariz. 123, 124, ¶ 2 (App. 2001). This court has jurisdiction under Article 6,
Section 9, of the Arizona Constitution and Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031 and 13-4033.1

¶3            On the morning of October 7, 2013, Estrada’s mother, N.E.,
returned home after staying overnight in a hotel because her son, Estrada,
had moved in four days earlier and tended to be messy and noisy. Estrada
had an important appointment later in the day, and N.E. wanted to ensure
he would attend. When Estrada requested that N.E. bring him some vodka,
she acquiesced in order to “kind of brib[e] him” and “convince him that
[she] had come home to take him to [his] appointment.” Estrada finished
the pint of vodka N.E. had brought him and requested more. N.E. refused,
and Estrada became angry with her. An argument ensued, and N.E.
“started to walk out” of the house when she noticed a “change in his face”
that she associated from past experience with aggression.

¶4            The house’s front door opened into the living room, where
N.E. and Estrada had been seated. N.E. stood up to leave and turned her
back to Estrada, who told N.E. she “wasn’t going anywhere.” Estrada then
pushed N.E. forcefully in her upper back, causing N.E. to fall to the ground.
N.E. yelled for assistance from her longtime next-door neighbor, T.F.,
whom she had asked earlier that morning to listen for her voice and look
out for her. Estrada stood over N.E., mocking her calls for help and

1      We cite the current version of applicable statutes because no
revisions material to this decision have occurred since the events in
question.


                                       2
                           STATE v. ESTRADA
                           Decision of the Court

threatening that she “was going to get what was coming to [her].” T.F.
arrived quickly, however, and Estrada opened the door for T.F. and sat
down on a bench on the front porch. T.F. found N.E. still lying on the
ground in the living room. Due to disability, T.F. could only push an
exercise bike over to N.E., which she used to pull herself to her feet. N.E.
sustained a scratch to her knee as well as general soreness throughout her
body.

¶5             At trial, N.E. testified that Estrada had been convicted of
multiple domestic violence offenses prior to the October 7 incident. N.E.
identified certified court documentation from five prior domestic violence
cases naming Estrada as the perpetrator and N.E. as the victim. Estrada
moved to preclude N.E.’s testimony regarding the prior convictions. He
alleged that he was not provided proper notice by the State with regard to
N.E.’s proposed testimony and was not allowed to interview her because
she, as a victim, declined to be interviewed. The court denied the motion,
citing the victim’s bill of rights and reminding Estrada that as long as N.E.
had personal knowledge of the prior domestic violence incidents, the
defense was not entitled to notice of a victim’s specific testimony. The court
excluded one of the five court documents offered by the State, because N.E.
could not provide the necessary foundation.

¶6            At the close of N.E.’s direct testimony, Estrada moved for a
mistrial based on N.E.’s use of three undisclosed police reports to refresh
her memory of the prior domestic violence offenses, N.E.’s inadvertent
reading aloud of the phrase “sentence of imprisonment” while looking at
one of the documents, and the prosecutor’s whispering off the record while
directing N.E.’s attention to certain portions of the documentation. The
court denied Estrada’s motion, ruling: 1) the police reports were not
introduced as evidence and, as a substitute for a continuance, defense
counsel could review them over the weekend; 2) the jurors were given a
limiting instruction to cure N.E.’s use of the phrase “sentence of
imprisonment”; and 3) the prosecutor’s whispering was harmless, but it
was “absolutely not appropriate” and could not be repeated.

¶7            An eight-member jury convicted Estrada of aggravated
domestic violence. Estrada moved for a new trial, arguing that admission
of Exhibits 16–19 identifying N.E. as the victim of Estrada’s prior domestic
violence violated Arizona Rules of Evidence 403 and 404(b). The motion
also asserted prosecutorial misconduct occurred during rebuttal argument
when the State referred to Estrada’s history of domestic violence against
N.E., which, according to Estrada, constituted an inappropriate propensity
argument. The court denied the motion, explaining: 1) Under State v.


                                      3
                             STATE v. ESTRADA
                             Decision of the Court

Ferrero, 229 Ariz. 239, 243, ¶ 20 (2012), if propensity evidence is required to
prove the crime charged, it is not subject to Rule 404 analysis, and
“defendant’s prior convictions are a necessary element of the crime of
aggravated domestic violence”; 2) as to Rule 403, “the evidence is both
relevant and probative” and the prejudice inherent in the nature of the prior
offenses is outweighed because N.E., as the victim, had to “establish[ ] her
personal knowledge of [Estrada’s] convictions represented by the certified
court records”; and 3) the prosecutorial misconduct alleged repeats the
pretrial motions regarding the admission of prior offenses and “[t]he State’s
presentation of evidence through [N.E.] was consistent with the Court’s
rulings on those motions and did not constitute prosecutorial misconduct.”

¶8            A trial on prior convictions was held as part of the sentencing
hearing. The State proved four prior convictions by successfully
introducing an Arizona Department of Corrections’ summary report and
certified minute entries of the convictions, which were read into the record
by N.E. Estrada was sentenced to a slightly mitigated term of four years
imprisonment. He was credited with 228 days of presentence incarceration.

                                DISCUSSION

¶9             Absent a clear abuse of discretion, we will not disturb a trial
court’s decision whether to preclude a witness, grant a mistrial, or deny a
motion for new trial. State v. Moody, 208 Ariz. 424, 456–58, ¶¶ 124, 135
(2004); Desert Palm Surgical Grp., P.L.C. v. Petta, 236 Ariz. 568, 581, ¶ 37 (App.
2015).

¶10           Estrada was charged with aggravated domestic violence,
which requires proof of “a third or subsequent violation of a domestic
violence offense” within eighty-four months of a second domestic violence
offense, defined in A.R.S. § 13-3601(A) as a homicide, assault, kidnapping,
sexual assault, burglary, or other violent act directed toward a closely
associated or related victim. A.R.S. § 13-3601.02. In support of the
admission of Estrada’s prior domestic violence convictions, the State chose
to ask N.E. a series of foundational questions about each conviction. The
trial court appropriately sanitized Estrada’s prior domestic violence
convictions by limiting N.E.’s testimony, although the State was permitted
to establish N.E. as the victim in order to prove her personal knowledge of
the events. Estrada may have preferred a disinterested custodian of records
as the witness to present evidence of prior domestic violence convictions,
but we agree with the trial court that Estrada “cannot dictate the State’s
presentation of its case.” Furthermore, Estrada’s prior convictions were
clearly relevant as necessary elements of the aggravated domestic violence


                                        4
                           STATE v. ESTRADA
                           Decision of the Court

charge. Finally, any previous disclosure violations on the part of the State
were cured by granting a continuance, and the asserted instances of
prosecutorial misconduct were either remedied by appropriate instruction
to the jury or so minor and discrete as to not be prejudicial.

¶11           Having considered defense counsel’s brief and examined the
record for reversible error, see Leon, 104 Ariz. at 300, we find none. The
evidence presented supports the conviction, and the sentence imposed falls
within the range permitted by law. As far as the record reveals, Estrada
was represented by counsel at all stages of the proceedings, and these
proceedings were conducted in compliance with his constitutional and
statutory rights and the Arizona Rules of Criminal Procedure.

¶12           Pursuant to State v. Shattuck, 140 Ariz. 582, 584–85 (1984),
counsel’s obligations in this appeal have ended. Counsel need do no more
than inform Estrada of the disposition of the appeal and his future options,
unless counsel’s review reveals an issue appropriate for submission to the
Arizona Supreme Court by petition for review. Estrada has thirty days
from the date of this decision in which to proceed, if he desires, with a pro
se motion for reconsideration or petition for review.

                              CONCLUSION

¶13          The conviction and sentence are affirmed.




                                 :ama




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