                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

               LORENZO EDWARD DELGADO, Appellant.

                             No. 1 CA-CR 13-0179
                              FILED 07-03-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-129647-001
               The Honorable Susanna C. Pineda, Judge

                         AFFIRMED AS MODIFIED


                                   COUNSEL

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

Maricopa County Office of the Legal Advocate, Phoenix
By Frances J. Gray
Counsel for Appellant
                          STATE v. DELGADO
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge Donn Kessler joined.


J O N E S, Judge:

¶1             Defendant Lorenzo Delgado appeals convictions for
aggravated assault and discharging a firearm at a non-residential
structure. Delgado’s defense counsel has searched the record on appeal
and asserts having found no arguable question of law that is not frivolous.
Therefore, in accordance with Anders v. California, 386 U.S. 738 (1967), and
State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel asks this
Court to search the record for fundamental error. Delgado filed a
supplemental brief in propria persona. 1 After reviewing the record, we find
no reversible error. Accordingly, Delgado’s convictions and sentences are
affirmed.

                FACTS 2 AND PROCEDURAL HISTORY

¶2             On the evening of May 22, 2011, Delgado and a friend,
Everrett S., patronized a night club. Eventually, the two men were asked
to leave. Delgado stated, “I’ll be back,” and walked out of the
establishment without further incident, while Everrett S. needed to be
physically escorted from the building by security. Once outside, Delgado
retrieved a gun from his vehicle, placed it in his back pocket, and walked
towards the entrance of the night club. He then told a security guard,
E.D., and the night club manager, “I got something for you. I got
something for you.”          E.D. informed Delgado that the gun was
unnecessary. At this point, Everrett S. approached Delgado and told him
that, in reference to the night club, “They did me dirty,” to which Delgado
responded, “You know what time it is.”



1      Although Delgado’s supplemental brief was untimely, given the
nature of an Anders appeal, we have nonetheless considered its merits.
2      “We view the evidence and all reasonable inferences therefrom in
the light most favorable to sustaining the jury’s verdicts.” State v. Miles,
211 Ariz. 475, 476, ¶ 2, 123 P.3d 669, 670 (App. 2005).



                                     2
                          STATE v. DELGADO
                          Decision of the Court

¶3            The two men then returned to their vehicle; Delgado entered
on the driver’s side and Everrett S. on the passenger side, and began to
drive away. Less than a minute later, E.D., while standing near the night
club’s entrance, noticed the vehicle Delgado and Everrett S. had gotten
into drive past, and a green laser, which he believed was attached to a
gun, being pointed from the vehicle in his direction. Seeing the laser
caused E.D. to remove his own gun from its holster because he believed
he “was going to get shot.” Several gun shots were then fired from that
vehicle, with one striking E.D. in the head, and the vehicle then left the
scene. While being cared for at the scene, E.D. physically described
Delgado as the shooter.

¶4            Several weeks after the incident, the police received
Delgado’s name as a possible suspect. Based upon this information, the
police developed a photo line-up, which was shown to multiple club
employees, as well as E.D., who positively identified Delgado as a
participant in the incident; E.D. specifically identified Delgado as the
person who shot him.

¶5              Consequently, Delgado was indicted on two counts of
attempted reckless second degree murder, charged as class two dangerous
felonies (Counts 1 and 2); two counts of aggravated assault, class three
dangerous felonies (Counts 3 and 4); one count of drive by shooting, a
class two dangerous felony (Count 5); one count of misconduct involving
weapons, a class four dangerous felony (Count 6); and one count of
discharge of a firearm at a structure, a class three dangerous felony (Count
7). 3,4 The State alleged Delgado had prior felony convictions and also
alleged aggravating circumstances in addition to those prior convictions.
Prior to trial, Count 6 was severed from the remaining counts.

¶6            Thereafter, a nine day jury trial commenced on Counts 1-5
and 7 in September 2012. Following the presentation of the State’s case-in-
chief, Delgado moved for acquittal under Arizona Rule of Criminal
Procedure 20 on all counts except Counts 3 and 5. The trial court denied
his motion as to Counts 4 and 7. With respect to Counts 1 and 2, defense

3       Following a remand to the grand jury for a re-determination of
probable cause, a second indictment was issued charging Delgado with
the same crimes as the first indictment.
4       Everrett S. was indicted as Delgado’s co-defendant. His case was
later severed from Delgado’s, and was ultimately resolved through a plea
agreement.



                                     3
                           STATE v. DELGADO
                           Decision of the Court

counsel argued, citing State v. Curry, 187 Ariz. 623, 627, 931 P.2d 1133, 1137
(App. 1996), that Arizona does not recognize an offense of “attempted
reckless second degree murder” as the State had charged. In response, the
trial court dismissed Counts 1 and 2 as a matter of law “without
prejudice.” Thereafter, the jury convicted Delgado of Counts 3 and 7, and
further found those offenses to be dangerous offenses. The jury also
found multiple aggravating circumstances for each convicted count. The
jury, however, acquitted Delgado of Counts 4 and 5.

¶7            After the verdict, Delgado renewed his Rule 20 motion as to
Count 7. He also moved for a new trial on Counts 3 and 7. The trial court
denied both motions. Thereafter, in exchange for the State’s agreeing not
to further pursue attempted murder charges, Delgado pleaded guilty to
the severed Count 6. Accordingly, the trial court sentenced Delgado as a
repetitive offender to aggravated sentences of 18 years’ imprisonment for
Counts 3 and 7, and the presumptive sentence of 10 years’ imprisonment
for Count 6; the trial court ordered these sentences to run concurrently,
and awarded Delgado 630 days of presentence incarceration credit. He
then timely appealed his convictions for Counts 3 and 7 and timely
applied for post-conviction relief for Count 6. We have jurisdiction
pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-
4031, and -4033 (A)(1) (2014). 5

                               DISCUSSION

¶8            In his supplemental brief, Delgado raises three issues: (1) the
admission of Everrett S.’s statement, “They did me dirty,” was hearsay
and violated his Sixth Amendment right to confront witnesses against
him; (2) the jury was improperly instructed on Count 7; and (3) the trial
court erred by dismissing Counts 1 and 2 without prejudice. We address
each in turn.

I.     Everrett S.’s Statement

¶9             Prior to trial, Delgado moved to preclude any testimony that
shortly after being expelled from the night club Everrett S. said, “They did
me dirty,” unless Everrett S. testified at trial. The trial court allowed the
statement to come in through other witnesses “to place Mr. Delgado’s
statement [“You know what time it is”] into some form of context.”


5       Absent material revisions after the relevant dates, statutes cited
refer to the current version unless otherwise indicated.



                                      4
                           STATE v. DELGADO
                           Decision of the Court

Further, the court found the statement did not qualify as hearsay because
“it’s not to prove the truth of the matter asserted placed in some form of
context.” Delgado argues the statement was hearsay because Everrett S.
was not called to testify, and therefore its admission violated the
Confrontation Clause of the Sixth Amendment. We disagree.

¶10            Hearsay is “a statement that the declarant does not make
while testifying at the current trial or hearing,” and that “a party offers in
evidence to prove the truth of the matter asserted in the statement.” Ariz.
R. Evid. 801(c)(1)-(2). In this instance, the offered statement made by
Everrett S. was not hearsay, as it was not offered to prove the matter
asserted in that statement – that the night club in fact wronged Everrett S.
State v. Hernandez, 170 Ariz. 301, 306, 823 P.2d 1309, 1314 (App. 1991);
Ariz. R. Evid. 801(c)(1)-(2). Rather, the statement was properly admitted
to place Delgado’s subsequent actions and statements into context. State
v. Fischer, 219 Ariz. 408, 417, ¶ 33, 199 P.3d 663, 672 (App. 2008) (noting a
statement admitted simply to show the statement was made is not
hearsay); see Hernandez, 170 Ariz. at 306, 823 P.2d at 1314 (“Words offered
to prove the effect on the hearer are admissible when they are offered to
show their effect on one whose conduct is at issue.”). As the statement
was non-hearsay, the Confrontation Clause was not violated by its
admission. State v. Rogovich, 188 Ariz. 38, 42, 932 P.2d 794, 798 (1997)
(“Testimony not admitted to prove the truth of the matter asserted by an
out-of-court declarant . . . does not violate the confrontation clause.”).

¶11            Even assuming for the sake of argument that the statement
was hearsay, its admission did not violate the Confrontation Clause. As
stated by the U.S. Supreme Court in Crawford v. Washington, 541 U.S. 36
(2004), the Confrontation Clause bars the “admission of testimonial
statements of a witness who did not appear at trial unless he was
unavailable to testify and the defendant had had a prior opportunity for
cross-examination.” Id. at 54-55, 68; see State v. King, 212 Ariz. 372, 376, ¶
19, 132 P.3d 311, 315 (App. 2006). A statement is testimonial if “the
declarant would reasonably expect it to be used prosecutorially or if it was
made under circumstances that would lead an objective witness
reasonably to believe the statement would be available for use at a later
trial.” State v. Parks, 211 Ariz. 19, 27, 116 P.3d 631, 639 (App. 2005). Here,
Everrett S.’s statement was clearly not testimonial, and thus was not
subject to the Confrontation Clause. As such, the trial court did not err in
allowing its admission.




                                      5
                            STATE v. DELGADO
                            Decision of the Court

II.    Jury Instruction

¶12           Delgado next argues the trial court committed error by
giving an erroneous jury instruction. Delgado did not object to the jury
instruction in the trial court, therefore we review for fundamental error.
State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). “To
establish fundamental error, [Delgado] must show that the error
complained of goes to the foundation of his case, takes away a right that is
essential to his defense, and is of such magnitude that he could not have
received a fair trial.” State v. Fierro, 220 Ariz. 337, 340, ¶ 11, 206 P.3d 786,
789 (App. 2008) (quoting Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607).
Delgado must also show the error prejudiced him. Id.

¶13           Count 7 charged Delgado with “discharge of a firearm at a
structure,” pursuant to A.R.S. § 13-1211. That statute provides:

       A.     A person who knowingly discharges a firearm at a
              residential structure is guilty of a class 2 felony.

       B.     A person who knowingly discharges a firearm at a
              nonresidential structure is guilty of a class 3 felony.

A.R.S. § 13-1211.    The jury in this case was given the following jury
instruction:

       The crime of discharging a firearm at a structure requires
       proof of the following:

              1.     The Defendant knowingly discharged a firearm; and

              2.     The discharge was at a nonresidential structure.

       Nonresidential structure means a structure other than a
       residential structure.

       Structure means any building, vehicle or place with four
       sides and a floor that is separately securable by any other
       structure attached to it and that is being used for lodging,
       business or transportation. 6


6      The instruction given tracked the language of Revised Arizona Jury
Instructions (RAJI) Statutory Criminal 12.11 (Discharging a Firearm at a
Structure).



                                       6
                           STATE v. DELGADO
                           Decision of the Court

The jury was also instructed on the definitions of “knowingly” and
“intentionally.”

¶14           Delgado argues the instruction, as given, constitutes
fundamental error in two ways: (1) it does not instruct the jury regarding
the applicable mens rea requirement to the nonresidential structure
element of the crime; and (2) it does not instruct the jury to find the
“location of the structure.” We find no error, fundamental or otherwise.

¶15           As to his first contention, Delgado argues the instruction
allowed the jury to convict him of having knowingly discharged his
weapon without requiring it to also find he fired at what he knew to be a
nonresidential structure. However, the charged crime requires simply
that a person knowingly discharge a firearm at a structure. See A.R.S. §
13-1211(A)-(B). Whether the structure was residential or nonresidential
concerns only the class designation of the offense. See State v. Payne, 233
Ariz. 484, 505-06, ¶¶ 70-73, 314 P.3d 1239, 1260-61 (2013).

¶16            Even assuming error, that error was harmless. An error in a
jury instruction is harmless if it appears, beyond a reasonable doubt, that
the error did not contribute to the jury’s verdict, and a review of the entire
trial record demonstrates “every fact necessary to establish every element
of the offense beyond a reasonable doubt.” State v. Dann, 205 Ariz. 557,
565, ¶ 18, 74 P.3d 231, 239 (2003) (citing Rose v. Clark, 478, U.S. 570, 581
(1986)). In its review of the record, “the reviewing court must determine
‘whether the record contains evidence that could rationally lead to a
contrary finding with respect to the omitted element. If the answer to that
question is no, holding the error harmless does not reflect a denigration of
the constitutional rights involved.’” Id. (quoting Neder v. United States, 527
U.S. 1, 19 (1999)).

¶17           The evidence at trial demonstrated Delgado had a gun on
his person; a firearm, with the aid of a laser, was aimed in the direction of
the night club’s entrance from the vehicle driven by Delgado; Delgado
had just frequented the night club and knew it to be a nonresidential
structure; and multiple gunshots were fired at the entrance of the night
club from the vehicle. There was also testimony that Delgado owned a
gun with a laser attached to it. Therefore, the record demonstrates beyond
a reasonable doubt that any error in the jury instruction did not affect
Delgado’s verdict. Id. at 239-40, ¶ 19, 75 P.3d at 565-66.

¶18           Moreover, Delgado’s defense at trial rendered the jury
instruction less significant as his defense did not revolve around a



                                      7
                           STATE v. DELGADO
                           Decision of the Court

mistaken discharge or a misunderstanding of the nature of the structure,
but upon his unrelenting assertion that he was not the shooter. See Dann,
205 Ariz. at 565 n.3, ¶ 19, 74 P.3d at 239 n.3.

¶19           Next, Delgado argues the trial court failed to instruct the
jury it had to find the structure he fired upon was actually located at the
address specified in the indictment. See State v. Rivera, 226 Ariz. 325, 327-
29, ¶¶ 4-9, 247 P.3d 560, 562-64 (App. 2011). However, the specific
address of the structure is not an element of the crime, and the State was
therefore not required to provide testimony as to its specific address. See
A.R.S. § 13-1211.

¶20           Further, to the extent Delgado argues there was insufficient
evidence for the jury to find he knowingly discharged his weapon at the
night club, we disagree. In reviewing sufficiency of the evidence, we view
the evidence presented at trial to determine whether substantial evidence
supports the jury’s verdict, and do so while “viewing the facts in the light
most favorable to sustaining the jury verdict.” State v. Cox, 217 Ariz. 353,
357, ¶22, 174 P.3d 265, 269 (2007). As previously mentioned, the record
demonstrates multiple gun shots were fired from the vehicle driven by
Delgado, and that E.D. was struck by one of the gun shots while he was
standing directly outside of the entrance to the night club. His wounding
could not have occurred had the firearm not been discharged at the night
club. Further, Delgado employed a laser to help aim the weapon, and that
laser was pointed directly at the entrance of the night club, further
illustrating he knowingly fired it at the club’s entrance. Therefore, the
evidence was sufficient to allow a reasonable jury to find Delgado had
committed the charged offense. Id. (“The relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.”) (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)).

¶21         Therefore, we find the jury instruction did not constitute
fundamental, reversible error, and further find sufficient evidence
supported Delgado’s conviction on Count 7.

III.   Dismissal of Counts 1 and 2 without Prejudice

¶22          Counts 1 and 2, as charged, indicated Delgado had
attempted to commit reckless second degree murder. As noted by
Delgado in his Rule 20 motion, such a crime does not exist under Arizona
law. Curry, 187 Ariz. at 627, 931 P.2d at 137. Recognizing that to be the



                                     8
                            STATE v. DELGADO
                            Decision of the Court

case, the trial court, relying upon State v. Sanders, elected to dismiss those
counts without prejudice rather than grant Delgado’s Rule 20 motion for
acquittal. After trial, and in exchange for Delgado’s plea agreement on
Count 6, the State agreed it would not pursue attempted murder charges
against Delgado. Delgado argues the trial court erred by dismissing
Counts 1 and 2 without prejudice, rather than “with prejudice,” thereby
allowing the State to later use them as leverage in the plea negotiations,
because jeopardy had attached. 7 We review de novo a question of double
jeopardy. State v. Siddle, 202 Ariz. 512, 515, ¶ 7, 47 P.3d 1150, 1153 (App.
2002).

¶23             Delgado did not raise the double jeopardy issue in the trial
court; therefore, our review is for fundamental error. Henderson, 210 Ariz.
at 567, ¶ 19, 115 P.3d at 607. If found, a violation of the double jeopardy
clause does constitute fundamental error. State v. Cooney, 233 Ariz. 335,
339-40, ¶ 11, 312 P.3d 134, 138-39 (App. 2013).

¶24            Even assuming Delgado’s assertion that jeopardy attached to
the dismissed counts, his argument is without merit as the double
jeopardy clause would not have prevented the State from bringing new,
legitimate charges of attempted second degree murder against Delgado.
Double jeopardy protects an individual, following an acquittal of an
offense, from being charged a second time with the same offense. Siddle,
202 Ariz. at 516, ¶ 8, 47 P.3d at 1154. It likewise prevents an individual
from being charged with a greater or lesser offense of the acquitted
offense. See State v. Price, 218 Ariz. 311, 313, ¶ 5, 183 P.3d 1279, 1281 (App.
2008). In this instance, the non-existent and non-chargeable offense of
“attempted reckless second degree murder” would be neither the same
offense as an appropriate attempted second degree murder charge nor a
lesser included offense. See Siddle, 202 Ariz. at 516, ¶ 10, 47 P.3d at 1154
(“Distinct statutory provisions constitute the same offense if they are
comprised of the same elements. If ‘each provision requires proof of an
additional fact that the other does not,’ they are not the same offense.”)
(quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)); State v. Wall,
126 Ariz. 1, 3, ¶ 4, 126 P.3d 148, 150 (2006) (“An offense is ’lesser included’
when the ‘greater offense cannot be committed without necessarily

7       “The double jeopardy clause of the Fifth Amendment protects a
criminal defendant from multiple prosecutions for the same offense.”
State v. Minnitt, 203 Ariz. 431, 437, ¶ 27, 55 P.3d 774, 780 (2002); U.S. Const.
amend. V. The analogous clause in Arizona Constitution provides the
same protection. Ariz. Const. art. 2, § 10.



                                       9
                           STATE v. DELGADO
                           Decision of the Court

committing the lesser offense.’”) (citing State v. Dugan, 126 Ariz. 194, 195,
608 P.2d 771, 772 (1980)). It would create a logical and legal non-sequitur to
find that bringing a charge that did not exist and could not be charged in
the first instance triggers double jeopardy, thereby preventing a legitimate
charge being brought later. Therefore, the State was not prevented from
pursuing legally appropriate attempted second degree murder charges
against Delgado.

¶25           Therefore, we find no double jeopardy violation and no
resultant fundamental error.

                              CONCLUSION

¶26            After reviewing the entire record for reversible error, we
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. All of the
proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure.       So far as the record reveals, Delgado was
represented by counsel at all stages of the proceedings and was present at
all critical stages. There was sufficient evidence for the jury to find
Delgado committed the offenses, and the sentences imposed were within
the statutory limits.

¶27           We have, however, noted an error in the sentencing minute
entry. The sentencing minute entry ordered Delgado to “submit to DNA
testing for law enforcement identification purposes” and also to “pay the
applicable fee for the cost of [DNA] testing in accordance with A.R.S. § 13-
610.” A.R.S. § 13-610, however, does not authorize the trial court to order
a convicted person to pay for the cost of that DNA testing. State v. Reyes,
232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39, (App. 2013). Therefore, we vacate
that portion of the sentencing minute entry which requires Delgado to do
so.    Accordingly, we affirm Delgado’s convictions and sentences as
modified.

¶28           After the filing of this decision, defense counsel’s obligations
pertaining to Delgado’s representation in this appeal have ended. Defense
counsel need do no more than inform Delgado of the outcome of this
appeal and his future options, unless, upon review, counsel finds an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).

¶29          Delgado has 30 days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. See
Ariz. R. Crim. P. 31.19(a). Upon the court’s own motion, we also grant



                                     10
                          STATE v. DELGADO
                          Decision of the Court

Delgado 30 days from the date of this decision to file an in propria persona
motion for reconsideration.




                             :gsh




                                    11
