                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

        ERNESTO ALONZO URIARTE-VELAZQUEZ, Appellant.

                             No. 1 CA-CR 14-0857
                               FILED 1-14-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR 2012-161699-005
                   The Honorable Sam J. Myers, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By W. Scott Simon
Counsel for Appellee

Law Office of Nicole Farnum, Phoenix
By Nicole T. Farnum
Counsel for Appellant
                    STATE v. URIARTE-VELAZQUEZ
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Kenton D. Jones and Judge Samuel A. Thumma joined.


S W A N N, Judge:

¶1            Ernesto Alonzo Uriarte-Velazquez (“Defendant”) appeals his
convictions and sentences for burglary in the first degree, kidnapping (three
counts), armed robbery, and aggravated assault (three counts). Defendant
argues that the failure of one of the victims to return for further testimony
after an evening recess deprived him of due process and his right of
compulsory process. Defendant also argues that the resulting inability of
the jury to question this victim constitutes structural error. Finally,
Defendant contends there was insufficient evidence to support one of the
convictions for aggravated assault. For reasons that follow, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Defendant’s convictions stem from a home-invasion robbery
in which a group of masked men armed with handguns broke into a home
occupied by the victims: Husband, Wife, Baby, and Cousin.1 After binding
Husband and Cousin with tape and confining Wife and Baby to a bedroom
at gunpoint, the robbers took Wife’s cell phone and approximately $2,700
in cash. The intruders fled when police responded to a 911 call from Wife,
but were apprehended in the neighborhood around the victims’ home.
Defendant, the get-away driver for the robbers, was taken into custody
following a brief car chase.

¶3             Defendant was indicted on one count of burglary in the first
degree, a class 2 felony and dangerous offense; three counts of kidnapping,
class 2 felonies and dangerous offenses; one count of kidnapping, a class 2
felony and dangerous crime against children; three counts of armed
robbery, class 2 felonies and dangerous offenses; and three counts of
aggravated assault, class 3 felonies and dangerous offenses. At trial, the
court granted judgment of acquittal on the charge of kidnapping Baby, and
the state dismissed one of the armed robbery counts. The jury acquitted
Defendant of one of the two remaining armed robbery counts but found

1      We view the evidence in a light most favorable to sustaining the
verdicts. State v. Nelson, 214 Ariz. 196, 196, ¶ 2 (App. 2007).

                                     2
                    STATE v. URIARTE-VELAZQUEZ
                         Decision of the Court
him guilty of the eight remaining counts as charged. The trial court
imposed concurrent and consecutive presumptive prison terms totaling
eighteen years. Defendant appeals.

                               DISCUSSION

I.     DENIAL OF RIGHTS OF DUE PROCESS AND COMPULSORY
       PROCESS

¶4           Defendant and his two codefendants were tried together. The
evidence presented on the first day of trial included testimony by Husband
and Wife. During direct examination, Husband admitted he was in federal
custody for an immigration violation. He also testified his deportation was
pending, and he was going to be sentenced for his immigration violation
within days.

¶5             Trial recessed for the evening after Defendant and his two
codefendants completed their cross-examination of Husband. The next
morning, Husband did not return to court for the state’s redirect. Counsel
later learned that federal authorities had deported him to Mexico.

¶6               Defendant moved to dismiss or, alternatively, moved for a
mistrial based on Husband’s failure to return to court for further testimony.
Defendant asserted that he intended to recall Husband as a hostile witness
and that Husband’s absence violated his right to compulsory process and
his right to present a complete defense. During arguments on the motion,
however, Defendant conceded that he had not subpoenaed Husband to
testify at trial.

¶7             Defendant argues that the trial court erred in denying his
motion for mistrial, repeating the same arguments raised in the motion. We
review a trial court’s ruling on a motion for mistrial for abuse of discretion.
State v. Roque, 213 Ariz. 193, 224, ¶ 131 (2006). But we review de novo
questions regarding a defendant’s right to compulsory process under the
Sixth Amendment of the Constitution. State v. Sanchez–Equihua, 235 Ariz.
54, 56, ¶ 7 (App. 2014). A mistrial is one of the most dramatic remedies
“and should be granted only when it appears that justice will be thwarted
unless the jury is discharged and a new trial granted.” State v. Adamson, 136
Ariz. 250, 262 (1983).

¶8           “Whether rooted directly in the Due Process Clause of the
Fourteenth Amendment, or in the Compulsory Process or Confrontation
clauses of the Sixth Amendment, the Constitution guarantees criminal
defendants ‘a meaningful opportunity to present a complete defense.’”



                                      3
                     STATE v. URIARTE-VELAZQUEZ
                          Decision of the Court
Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citations omitted). “Implicit
within this assurance is the right to offer the testimony of witnesses and to
compel their attendance in order to present to the jury the defendant’s as
well as the prosecution’s version of the facts so that the jury may determine
the truth.” State v. Gilfillan, 196 Ariz. 396, 402, ¶ 19 (App. 2000). This right,
however, is not self-executing; the defendant must exercise this right on his
own behalf. See State v. Russell, 175 Ariz. 529, 535 (App. 1993) (holding no
denial of right to compulsory process where defendant “never invoked the
powers of the court to compel [witness’s] testimony”).

¶9           Defendant had the right and opportunity to subpoena
Husband’s testimony at trial. See State v. Carlos, 199 Ariz. 273, 279, ¶ 22
(App. 2001). But he never did so. He cannot now claim a violation of his
right of compulsory process. See State v. Espinosa, 101 Ariz. 474, 476 (1966).

¶10            We also reject Defendant’s argument that he was denied due
process because Husband failed to return for further questioning.
Defendant and his two codefendants had concluded cross-examination of
Husband before the trial recessed for the evening. Defendant had a full
opportunity to confront this witness against him. The state was the only
party deprived of additional testimony from Husband; Defendant has no
standing to object on behalf of the state that Husband was not present for
its redirect. Therefore, the trial court did not abuse its discretion by denying
the motion for mistrial. See Delaware v. Fensterer, 474 U.S. 15, 22 (1985)
(“[T]he Confrontation Clause is generally satisfied when the defense is
given a full and fair opportunity . . . [for] cross-examination . . . .”).

¶11               The trial court likewise did not abuse its discretion by
refusing to continue the trial until Defendant could locate Husband in
Mexico and make arrangements for his return to Arizona. Continuance of
trials is left to the sound discretion of the trial court, and we will not disturb
the trial court's ruling unless we find a clear abuse of discretion and
resulting prejudice. State v. Amarillas, 141 Ariz. 620, 622 (1984).

¶12           Here, the trial court informed defendants that it denied the
continuance without prejudice, and that the denial could be reconsidered if
the defendants demonstrated that Husband could be returned to Arizona
for further testimony. The defendants were unable to do so. In these
circumstances, we cannot say that the trial court abused its discretion by
denying the continuance. See State v. Blodgette, 121 Ariz. 392, 395 (1979)
(holding no abuse of discretion in denying continuance where defendant
failed to subpoena witness).




                                        4
                      STATE v. URIARTE-VELAZQUEZ
                           Decision of the Court
II.    STRUCTURAL ERROR

¶13           Defendant also argues that Husband’s failure to return for
further testimony constitutes structural error because the jurors had no
opportunity to question him under Ariz. R. Crim. P. 18.6(e). This rule states:

       Jurors shall be instructed that they are permitted to submit to
       the court written questions directed to witnesses or to the
       court; and that opportunity will be given to counsel to object
       to such questions out of the presence of the jury.
       Notwithstanding the foregoing, for good cause the court may
       prohibit or limit the submission of questions to witnesses.

¶14            “Structural error ‘deprive[s] defendants of basic protections
without which a criminal trial cannot reliably serve its function as a vehicle
for determination of guilt or innocence’” and therefore requires automatic
reversal because prejudice is presumed. State v. Valverde, 220 Ariz. 582, 584,
¶ 10 (2009) (citation omitted). Our supreme court has stated that structural
error exists only in extremely limited circumstances. State v. Ring, 204 Ariz.
534, 552, ¶ 46 (2003) (enumerating circumstances of structural error: a trial
judge is biased; a defendant is denied counsel, access to counsel, self-
representation, or a public trial; the reasonable doubt instruction is
defective; or jurors were excluded because of race or views on the death
penalty). Prejudice is inherent in these types of error as they infect “‘the
entire trial process’ from beginning to end.” Id. at 553, ¶ 46 (citation
omitted).

¶15             Jurors’ inability to submit questions to one witness simply
does not amount to structural error. There is nothing inherently prejudicial
in jurors being unable to pose questions to a witness.2 Ariz. R. Crim. P.
18.6(e) is clear that jurors’ ability to ask questions is not absolute, as the trial
court “may prohibit or limit the submission of questions to witnesses.” See
State v. Greer, 190 Ariz. 378, 379 (App. 1997) (noting that the procedure is
“always within the discretion of the trial court”).

¶16            Moreover, Arizona is among a minority of jurisdictions with
court rules that specifically allow juror questions in criminal trials. See
Kristen L. Sweat, Note, Juror Questioning of Witnesses in Criminal Trials: The
“Jury’s Still Out” in Illinois, 2014 U. Ill. L. Rev. 271, 285-86 (2014). In the

2      Indeed, the rule explicitly allowing jurors’ questions to witnesses did
not exist in Arizona courts until 1995. See Ariz. R. Crim. P. 18.6(e), cmt. to
1995 Amendment. Though this practice is a sound enhancement to trials in
our courts, it is not an essential component of constitutional due process.

                                         5
                     STATE v. URIARTE-VELAZQUEZ
                          Decision of the Court
majority of jurisdictions, jurors may only question witnesses at the
discretion of the court. Mitchell J. Frank, The Jury Wants to Take the Podium—
But Even With the Authority to Do So, Can It? An Interdisciplinary Examination
of Jurors’ Questioning of Witnesses at Trial, 38 Am. J. Trial Advoc. 1, 8 (2014).
If jurors’ inability to pose questions to witnesses were structural error, all
convictions from courts where jurors were not permitted to ask questions
to witnesses would be called into question. We therefore reject Defendant’s
argument that Husband’s failure to return to trial for jury questions
constitutes structural error.

III.   SUFFICIENCY OF EVIDENCE

¶17           Defendant argues there was insufficient evidence to support
the conviction for aggravated assault against Cousin. We review claims of
insufficient evidence de novo, viewing the evidence in the light most
favorable to upholding the verdict. State v. Chappell, 225 Ariz. 229, 233 n.1,
¶ 2 (2010).

¶18           Defendant was charged with aggravated assault against
Cousin in violation of A.R.S. §§ 13-1203(A)(2) and -1204(A)(2). To support
a conviction on this count, the state had to prove that Defendant
intentionally placed Cousin in reasonable apprehension of imminent
physical injury using a firearm, a deadly weapon, or dangerous instrument.
Defendant argues the evidence was insufficient to sustain the state’s burden
because it presented no eyewitness testimony demonstrating that
Defendant or his codefendants committed aggravated assault against
Cousin with a weapon or dangerous instrument. We disagree.

¶19            Our review of insufficient-evidence claims is limited to
whether substantial evidence supports the verdicts. State v. Scott, 177 Ariz.
131, 138 (1993); see also Ariz. R. Crim. P. 20(a) (requiring trial court to enter
judgment of acquittal “if there is no substantial evidence to warrant a
conviction”). “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). Substantial
evidence may be direct or circumstantial, and “the probative value of the
evidence is not reduced simply because it is circumstantial.” State v. Anaya,
165 Ariz. 535, 543 (App. 1990). We will reverse a conviction for insufficient
evidence only if “there is a complete absence of probative facts to support
[the jury’s] conclusion.” State v. Mauro, 159 Ariz. 186, 206 (1988).

¶20         Although Cousin did not testify at trial, Husband and Wife’s
testimony was sufficient to support the guilty verdict for aggravated assault
on Cousin. To be guilty of aggravated assault, Defendant or an accomplice


                                       6
                    STATE v. URIARTE-VELAZQUEZ
                         Decision of the Court
“need only intentionally act using a deadly weapon or dangerous
instrument so that the victim is placed in reasonable apprehension of
imminent physical injury”; the victim does not need to testify to actual
fright, but rather “[e]ither direct or circumstantial evidence may prove the
victim’s apprehension.” State v. Wood, 180 Ariz. 53, 66 (1994) (citation
omitted).

¶21           Here, the jury could find, based on the evidence, that
Defendant’s accomplices, wearing masks and armed with handguns and
knives, burst into the home where Cousin resided. Husband testified that
the intruders approached him and Cousin. They then blindfolded
Husband, threatened him with a knife, forced him to the ground, and
bound him with tape. Because he was blindfolded, Husband could not say
exactly what the intruders did to Cousin. But Wife testified that, while she
was being held at gunpoint in another room, she heard both Husband and
Cousin yelling that the intruders were hurting them. After the intruders
fled, Wife found Cousin bound on the floor, and she removed the tape from
his hands and feet. The jury could reasonably conclude from the totality of
this evidence that the intruders restrained Cousin just like Husband. And
because the intruders had guns and knives, they placed him in reasonable
apprehension of imminent physical injury if he resisted. A jury could find
beyond a reasonable doubt that Defendant was guilty of aggravated assault
against Cousin.

                             CONCLUSION

¶22          For the foregoing reasons, we affirm Defendant’s convictions
and sentences.




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