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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  GABRIEL JOHN SANCHEZ, Appellant.

                             No. 1 CA-CR 14-0373
                               FILED 8-4-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-003526-002
                The Honorable Dawn M. Bergin, Judge

                                  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. SANCHEZ
                           Decision of the Court

G E M M I L L, Judge:

¶1            Gabriel John Sanchez appeals his conviction and sentence for
one count of aggravated assault, a class 5 felony. Sanchez’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. Sanchez 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). On May 13, 2013, Detention Officer T. was
working laundry duty with his partner, Officer A., at the Fourth Avenue
Jail in Phoenix. Officer T. alerted to multiple inmates huddled together on
the second floor walkway, whereupon he saw one inmate bend down and
pick up “something white or beige.” Officer T. suspected the item was a
weapon or other form of contraband so he and Officer A. went to the
inmate’s cell to investigate. After Officer A. signaled to the officer in the
tower to open the cell door, Officer T. requested twice that the inmate open
his left hand. The inmate, standing inside the cell doorway, gave no
response and started to walk away from Officer T. After initially turning
away, the inmate turned back and punched Officer T. in the face with a
closed fist. At trial, Officer T. identified the inmate as Gabriel Sanchez.

¶3             After being struck, Officers T. and A. entered the cell to
contain Sanchez. As they were putting Sanchez in handcuffs, Sanchez’s
cellmate “jumped up and started punching [Officer A.] on the side of the
face.” The officers used pepper spray to defend themselves and were
eventually able to place both inmates in custody. Sanchez’s cellmate was
later identified as Jonathan Fields, who is African-American and taller than
Sanchez, who is Hispanic.

¶4            There were discrepancies in the Incident and Disciplinary
Action Reports as to the two inmates’ identities and respective roles in the
altercation. The Incident Report was offered but not admitted into
evidence; the parties stipulated to admission of the Disciplinary Action
Reports. As part of the administrative proceedings levied against Sanchez
and Fields, the Disciplinary Action Reports identify Fields as the original



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                            STATE v. SANCHEZ
                            Decision of the Court

assailant of Officer T., though the Incident Report and witness testimony
positively identify Sanchez as the inmate who initially punched Officer T.

¶5            Prior to trial, Sanchez filed a motion to dismiss based on the
State’s untimely disclosure of exculpatory evidence—the Disciplinary
Reports. The trial court granted Sanchez’s motion in part, explaining that
“the State clearly violated its disclosure obligations” pursuant to Arizona
Rule of Criminal Procedure 15.1. But it also explained that “the Court must
impose a sanction proportionate to the harm caused . . . and that sanction
should affect the merits of the case as little as possible.” Accordingly,
Sanchez was able to introduce the exculpatory Disciplinary Reports at trial
and the jury was informed that the reports had been untimely disclosed.

¶6             Following the State’s case in chief, Sanchez moved for a
directed verdict pursuant to Rule 20. His position was “that reasonable
minds could come to one conclusion,” given that “all the reports say that it
was Fields that hit [Officer T.].” The trial court denied the motion, declaring
the discrepancies between the Disciplinary Reports and the testimony to be
“a classic case of facts for the jury to decide.”

¶7           The eight-member jury convicted Sanchez of aggravated
assault. A trial on prior convictions was held as part of the sentencing
hearing, and Sanchez stipulated to two prior felony convictions. He was
sentenced to a presumptive term of five years’ imprisonment to run
consecutively to his release from three prior 2011 convictions. Sanchez was
credited with 264 days of presentence incarceration.

¶8            Sanchez appealed his conviction and sentence. 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.

                               DISCUSSION

¶9             Sanctions for non-disclosure will be reviewed for an abuse of
discretion, though a trial court’s denial of a Rule 20 motion for acquittal is
reviewed de novo. State v. Armstrong, 208 Ariz. 345, 353–54, ¶ 40 (2004);
State v. Bon, 236 Ariz. 249, 251, ¶ 5 (App. 2014).

¶10         We discern no abuse of discretion in the trial court’s rulings
regarding the State’s disclosure obligations and sanction. The Deputy
County Attorney made a good faith effort to obtain the requested records



                                       3
                              STATE v. SANCHEZ
                              Decision of the Court

from the detention division of the Maricopa County Sheriff’s Office, and the
appropriate sanction must be proportionate to the prejudice placed upon
Sanchez. Jimenez v. Chavez, 234 Ariz. 448, 452, ¶¶ 17–18 (App. 2014).
Admitting the exculpatory Disciplinary Reports into evidence and
stipulating to the State’s late disclosure of those reports was well within the
court’s discretion as a proportionate cure for any prejudice suffered by
Sanchez.

¶11             The trial court also appropriately denied Sanchez’s Rule 20
motion for acquittal, as we agree that the contrast between the Disciplinary
Reports and the detention officers’ testimony at trial was a “classic case of
facts for the jury to decide.” “[A] directed verdict should not be granted if
the evidence is such that reasonable minds may differ on the inferences to
be drawn therefrom.” State v. Paoletto, 133 Ariz. 412, 416 (App. 1982). A
directed verdict of acquittal is not required simply because an inference of
innocence exists. State v. Ortiz, 9 Ariz. App. 116, 118 (App. 1969). Here, the
detention officers testified they observed Sanchez striking Officer T., and
there was testimony as to possible administrative error in preparing the
conflicting Disciplinary Reports. The jury verdict is supported by
substantial evidence.

¶12           Sanchez, through his counsel, also “asserts that the jurors
were prejudiced in favor of police witnesses.” “Because the trial court
observes firsthand a juror’s demeanor and credibility,” we will not set aside
that court’s assessment of a juror’s fairness and impartiality absent a clear
abuse of discretion. State v. Trostle, 191 Ariz. 4, 12–13 (1997); see also State v.
Eddington, 226 Ariz. 72, 75–76, ¶ 5 (App. 2010). Furthermore, the party
challenging the jury’s fairness and impartiality has the burden of
establishing juror bias. Trostle, 191 Ariz. at 13.

¶13           We note initially that Sanchez has not identified any portion
of the record that demonstrates juror bias. Our own review of the record
has revealed no such bias. During jury selection, the trial court expressly
asked the prospective jurors if anyone “would be concerned that they
would believe a police officer over any other witness?” The court then
identified eight jurors with possible biases favoring law enforcement, but
none of these people were selected for the jury.

¶14            Moreover, the final written jury instructions explained that
“[t]he testimony of a law enforcement officer is not entitled to any greater
or lesser importance or believability merely because of the fact that the
witness is a law enforcement officer.” Arizona Rule of Criminal Procedure



                                         4
                             STATE v. SANCHEZ
                             Decision of the Court

21.3(d) mandates that “a copy of the instructions shall be furnished to each
juror before being read by the court.” The record indicates the final jury
instructions were read to the jury, but the trial court — according to the
transcript — apparently did not read the “testimony of law enforcement”
instruction. However, in the absence of a reason in the record to conclude
otherwise, we assume the jury was provided with the written instructions
and followed the court’s oral and written instructions. Juror prejudice “will
not be presumed but must appear affirmatively from the record.” Trostle,
191 Ariz. at 13.

¶15           Furthermore, “no party may assign as error on appeal the
court’s giving or failing to give any instruction . . . unless the party objects
thereto before the jury retires to consider its verdict.” Ariz. R. Crim. P.
21.3(c). Sanchez did not object to the trial court’s failure to read a particular
jury instruction, so we review only for fundamental error. State v.
Henderson, 210 Ariz. 561, 607, ¶ 19 (2005). Having reviewed the record, we
conclude that no fundamental, reversible error occurred with respect to any
alleged juror bias or prejudice in favor of the testimony of the law
enforcement officers.

¶16           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, Sanchez
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.

¶17           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 Sanchez 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. Sanchez 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.




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                  STATE v. SANCHEZ
                  Decision of the Court

                     CONCLUSION

¶18   The conviction and sentence are affirmed.




                         :RT




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