                                                                   FILED BY CLERK
                                                                      AUG 10 2005
                          IN THE COURT OF APPEALS                      COURT OF APPEALS
                              STATE OF ARIZONA                           DIVISION TWO
                                DIVISION TWO


THE STATE OF ARIZONA,                        )
                                             )       2 CA-CR 2004-0063
                                Appellee,    )       DEPARTMENT B
                                             )
                  v.                         )       OPINION
                                             )
RENEE SUE RUGGIERO,                          )
                                             )
                                Appellant.   )
                                             )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. CR-20021507

                         Honorable Richard S. Fields, Judge

                                      AFFIRMED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Robert A. Walsh                                      Phoenix
                                                              Attorneys for Appellee

Robert J. Hooker, Pima County Public Defender
 By Lisa M. Hise                                                              Tucson
                                                              Attorneys for Appellant


P E L A N D E R, Chief Judge.
¶1            After a jury trial, appellant Renee Sue Ruggiero was convicted of manslaughter

and sentenced to an aggravated, fourteen-year prison term. On appeal, she argues the trial

court erred in refusing to give a requested jury instruction and denying her related motion

for new trial, in admitting certain evidence at trial, and in imposing an aggravated sentence

in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2351 (2004). Finding no

reversible error, we affirm.

                                    BACKGROUND

¶2            We view the evidence and all reasonable inferences therefrom in the light most

favorable to sustaining the conviction. See State v. Riley, 196 Ariz. 40, ¶ 2, 992 P.2d 1135,

1137 (App. 1999). In March 2002, Ruggiero moved into a mobile home with her sixteen-

year-old son (Mark), daughter (B.), and B.’s boyfriend (D.). B. was then thirteen or

fourteen years old, and D. was twenty-eight. Shortly after they moved in, B. told Ruggiero

that she was pregnant with D.’s child. Ruggiero did not report D. to the police, apparently

because B. threatened to run away or commit suicide, but she decided that D. would have

to leave the home.

¶3            Ruggiero then went to a local tattoo parlor to “see if a bunch of the guys could

kind of get together and back [her] up just to get [D.] out of [her] house, get him away from

[her] daughter.” Several people from the tattoo shop, along with Ruggiero and her son

Mark, then returned to the mobile home to evict D. When they arrived, Mark kicked in the




                                              2
door and, once inside, they found D. and B. in bed together, asleep and naked. Ruggiero

told D. to leave, and he got up and dressed, while B. remained in the bedroom.

¶4            Scott Soto, one of Ruggiero’s friends from the tattoo shop, took a loaded rifle

from her closet, and he and Mark ordered D. to move into the kitchen area and eventually

outside onto the porch. A ride was arranged for D., but the driver requested that he be

bound “because they were nervous about having [D.] in their vehicle.” Mark testified that

he then had heard a shot and had seen his mother holding the rifle as D. was lying on the

kitchen floor, at least partially bound with duct tape. As Ruggiero kept the rifle pointed at

D., Mark and Soto then bound D. with more duct tape, beat him, shocked him with a “Tazer

gun,” and left him on the kitchen floor, where he eventually died. Two more of Ruggiero’s

friends arrived to find D. dead on the kitchen floor and helped move his body outside to a

brick pit on the property, where they covered it with nearby debris.

¶5            After D.’s body was discovered a few days later, Ruggiero, Soto and Mark

were arrested and charged with kidnapping and first-degree murder.1 A jury found Ruggiero

not guilty of those charges but guilty of manslaughter, a lesser-included offense of first-

degree murder. She was sentenced to an aggravated, fourteen-year prison term.




       Ruggiero’s case was severed from those of her codefendants.
       1



                                             3
                                      DISCUSSION

I. Jury instruction

¶6            Ruggiero argues the “trial court erred in denying [her] motion for new trial,”

which was based on the court’s prior ruling “denying [her] requested jury instruction on

justification to prevent child molestation.” We review a trial court’s denial of a motion for

new trial for an abuse of discretion. State v. Hoskins, 199 Ariz. 127, ¶ 52, 14 P.3d 997,

1012 (2000). Refusing a jury instruction is likewise within a trial court’s discretion, and we

will not reverse on that ground absent a clear abuse of that discretion and resulting

prejudice. State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995); State v. Islas,

132 Ariz. 590, 591, 647 P.2d 1188, 1189 (App. 1982).

¶7            Ruggiero requested a justification instruction pursuant to A.R.S. § 13-411,

which provides in pertinent part:

                      A. A person is justified in threatening or using both
              physical force and deadly physical force against another if and
              to the extent the person reasonably believes that physical force
              or deadly physical force is immediately necessary to prevent the
              other’s commission of . . . sexual conduct with a minor under
              § 13-1405, . . . [or] child molestation under § 13-1410.

                     B. There is no duty to retreat before threatening or
              using deadly physical force justified by subsection A of this
              section.
                     C. A person is presumed to be acting reasonably for the
              purposes of this section if he is acting to prevent the commission
              of any of the offenses listed in subsection A of this section.




                                              4
Over the state’s objection, the trial court gave a justification instruction under that statute,

but only as to sexual conduct with a minor and not as to child molestation.

¶8            Sexual conduct with a minor is defined as “intentionally or knowingly

engaging in sexual intercourse or oral sexual contact with any person who is under eighteen

years of age.”     A.R.S. § 13-1405(A).        Child molestation, however, is defined as

“intentionally or knowingly engaging in or causing a person to engage in sexual contact,

except sexual contact with the female breast, with a child under fifteen years of age.” A.R.S.

§ 13-1410(A). “Sexual contact” is “any direct or indirect touching, fondling or manipulating

of any part of the genitals, anus or female breast by any part of the body or by any object

or causing a person to engage in such contact.” A.R.S. § 13-1401(2).

¶9            It is undisputed that when Ruggiero and the others arrived at her residence,

they found D. and B. naked and sleeping in the same bed. Evidence also was presented that

D. had shaved B.’s pubic hair. Ruggiero argues that the jury could have found that D. had

been committing child molestation and that her actions had been justified to prevent it even

though, as the prosecution argued in closing, no “sexual conduct with a minor” had occurred

at the time D. was killed.

¶10           As Ruggiero correctly argues, “a defendant is entitled to a justification

instruction if it is supported by ‘the slightest evidence.’” State v. Hussain, 189 Ariz. 336,

337, 942 P.2d 1168, 1169 (App. 1997), quoting State v. Dumaine, 162 Ariz. 392, 404, 783

P.2d 1184, 1196 (1989). An instruction should not be given, however, “unless it is


                                               5
reasonably and clearly supported by the evidence.” State v. Walters, 155 Ariz. 548, 553,

748 P.2d 777, 782 (App. 1987).

¶11           “A defendant who disclaims any assaultive behavior on his part is not entitled

to a self defense instruction.” State v. Miller, 129 Ariz. 42, 43, 628 P.2d 590, 591 (App.

1981). In her reply brief, Ruggiero cites State v. Wright, 163 Ariz. 184, 786 P.2d 1035

(App. 1989), and State v. Plew, 150 Ariz. 75, 722 P.2d 243 (1986), for the proposition that

she could deny having killed D. and still have been entitled to a justification instruction. We

disagree. In fact, the Plew court stated, “[a] defendant who denies shooting the victim may

not thereafter claim self-defense.” 150 Ariz. at 78, 722 P.2d at 246. A justification

instruction was warranted in both that case and in Wright because the defendant, although

not admitting assaultive behavior, did not directly deny it. Id. (“While the appellant does

indeed deny shooting the victim or intending any harm, he also states several times that he

is unsure of exactly what transpired. His testimony throughout the cross-examination is

ambivalent on this point.”); see also Wright, 163 Ariz. at 186, 786 P.2d at 1037 (self-

defense and defense-of-third-person instruction warranted where defendant claimed to not

remember what had happened). Here, however, Ruggiero repeatedly and directly denied

having shot D. Therefore, as the state points out, she was not entitled to any justification

instruction. See Miller, 129 Ariz. at 43, 628 P.2d at 591.

¶12           Furthermore, contrary to Ruggiero’s assertions, the evidence at trial did not

show that deadly force was “immediately necessary to prevent” D. from molesting B. or that


                                              6
Ruggiero had “reasonably believe[d]” that to be so. § 13-411(A). As the state points out,

D. and B. “had been moved to separate rooms and were not engaged in sexual activity when

deadly physical force was used.” In fact, D. got out of the bed willingly and even left the

mobile home at one point before he was killed. Moreover, according to Mark’s testimony,

at the time D. was shot he was at least partially bound with duct tape, certainly in no

position to molest B. And, as the state also observes, no evidence “demonstrate[d] that [D.]

had recently shaved [B.]’s pubic hair.”

¶13           In sum, because she unequivocally denied having shot D., Ruggiero was not

entitled to any justification instruction, nor did the evidence support her justification defense

based on child molestation. See § 13-411(A); Miller, 129 Ariz. at 43, 628 P.2d at 591.

Therefore, the trial court did not abuse its discretion in denying her requested instruction

and her related motion for a new trial.

II. Rebuttal evidence

¶14           At trial, Ruggiero sought to introduce an exculpatory, hearsay statement

through witness J., Soto’s former girlfriend. Over the state’s objection, the trial court ruled

that J.’s proffered testimony that Soto had told her that he had killed the victim was

admissible as a statement against penal interest, and J. so testified. See Ariz. R. Evid.

804(b)(3), 17A A.R.S. In response, relying on Rule 806, Ariz. R. Evid., the state sought to

introduce a police lieutenant’s rebuttal testimony that Soto had told him in a pre-arrest




                                               7
interview Ruggiero in fact had shot the victim. Over Ruggiero’s objection, the trial court

permitted the lieutenant to so testify for purposes of rebutting J.’s testimony.

¶15           Ruggiero contends admission of that hearsay evidence violated her rights under

the Sixth Amendment’s Confrontation Clause. U.S. Const. amend. VI. “We review the

admission or exclusion of evidence for abuse of discretion.” State v. Davis, 205 Ariz. 174,

¶ 23, 68 P.3d 127, 131 (App. 2002). We review a trial court’s determination of a

Confrontation Clause violation de novo. State v. Blackman, 201 Ariz. 527, ¶ 41, 38 P.3d

1192, 1203 (App. 2002).

¶16           In admitting the lieutenant’s rebuttal testimony, the trial court noted that

evidence would have a “very limited use” and would not be unfairly prejudicial. In addition,

immediately after that testimony, the court gave a limiting instruction, telling the jurors they

could only consider Soto’s statement to the lieutenant to determine the credibility of Soto’s

prior hearsay statement about which J. testified, and not as evidence of Ruggiero’s guilt or

of the truth of the matter asserted in Soto’s latter statement. The trial court repeated that

limiting instruction at the end of the case, again telling the jurors to consider Soto’s out-of-

court statement to the lieutenant for impeachment purposes only. And, both parties

emphasized that restricted use of the evidence in their closing arguments.

¶17           The trial court’s admission of the evidence in question was authorized under

Rule 806, Ariz. R. Evid., which provides in pertinent part: “When a hearsay statement . . .

has been admitted in evidence, the credibility of the declarant may be attacked . . . by any


                                               8
evidence which would be admissible for those purposes if declarant had testified as a

witness.” Had the declarant, Soto, testified at Ruggiero’s trial that he had shot the victim,

as he allegedly had told his former girlfriend, J., the state could have introduced evidence

of Soto’s non-hearsay, inconsistent statement. See Ariz. R. Evid. 801(d)(1)(A). Ruggiero

does not argue otherwise.

¶18           Relying on Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20

L. Ed. 2d 476 (1968), and Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004),

however, Ruggiero argues the trial court’s admission of the lieutenant’s rebuttal testimony

about Soto’s statement to him “violated [her] right to confront and cross-examine witnesses

and is reversible error.” We disagree.

¶19           The court in Bruton found a violation of the defendant’s right of

confrontation, despite a limiting instruction having been given, when a codefendant’s

confession was admitted but the codefendant did not testify and, therefore, was not subject

to cross-examination. In Crawford, the Court conditioned the admission of “testimonial”

out-of-court statements against a defendant upon proof that (1) the witness who made the

statement is unavailable, and (2) the defendant had a prior opportunity to cross-examine the

witness. 541 U.S. at 68, 124 S. Ct. at 1374. As the state correctly points out, neither

Bruton nor Crawford is controlling here because the state introduced the lieutenant’s

rebuttal testimony about Soto’s out-of-court statement not to prove that Ruggiero had killed

the victim, but solely to impeach Soto’s prior statement to his girlfriend that he had done so.


                                              9
¶20           In Crawford, the Court recognized the well-established principle that “[t]he

[Confrontation] Clause . . . does not bar the use of testimonial statements for purposes other

than establishing the truth of the matter asserted.” 541 U.S. at 59 n.9, 124 S. Ct. at 1369

n.9; see also Tennessee v. Street, 471 U.S. 409, 414, 105 S. Ct. 2078, 2081-82, 85 L. Ed.

2d 425, 431 (1985) (“The non-hearsay aspect of [an accomplice’s] confession—not to

prove what happened at the murder scene but to prove what happened when [defendant]

confessed—raises no Confrontation Clause concerns.”). Although Ruggiero seeks to

distinguish Street on its facts, as Crawford makes clear, the foregoing principle remains

intact and applies here.

¶21           In an analogous situation in which the state sought to introduce evidence of

a non-testifying, codefendant’s statement to police, which inculpated defendant, to impeach

another statement by that same codefendant that “he was solely responsible for the killings,”

our supreme court stated:

                     At retrial, if the State again seeks to admit [non-testifying
              codefendant] Prasertphong’s statement to the police [that
              defendant was primarily to blame for the murders], the trial
              court may admit the statement only for the limited purpose of
              impeachment. The express purpose of Rule 806 is to allow a
              party to attack the “credibility” of the hearsay declarant. By its
              terms, the rule’s limited purpose is impeachment. But to satisfy
              the Confrontation Clause, if the trial court decides to permit the
              introduction of Prasertphong’s statement to the police, the court
              must instruct the jury as to the limited purpose for which
              Prasertphong’s statement is introduced.




                                              10
State v. Huerstel, 206 Ariz. 93, ¶¶ 40, 42, 75 P.3d 698, 708, 709 (2003) (citations omitted);

see also State v. Sego, 629 A.2d 1362, 1366-67 (N.J. Super. Ct. App. Div. 1993)

(upholding state’s impeachment of credibility of codefendant’s out-of-court statements

exculpating defendant with another extrajudicial statement that incriminated defendant

because jury needed both statements to evaluate codefendant declarant’s credibility, and

because state would have been allowed to use inconsistent statement to impeach

codefendant had he testified at defendant’s trial); People v. Buckman, 508 N.Y.S.2d 756,

757 (N.Y. App. Div. 1986) (same); State v. Zirkle, 910 S.W.2d 874, 891 (Tenn. Crim. App.

1995) (same). In view of the limited purpose for which the lieutenant’s rebuttal testimony

was admitted and the trial court’s limiting instructions relating thereto, we find no

constitutional error in the court’s admission of this evidence.

¶22           For the first time in her reply brief,2 Ruggiero also argues the trial court failed

to consider the prejudicial effect of the lieutenant’s rebuttal testimony, apparently suggesting

the evidence should have been excluded under Rule 403, Ariz. R. Evid. Because the record

does not reflect any objection below on that ground, however, Ruggiero waived the

argument. See State v. Gonzales, 181 Ariz. 502, 511, 892 P.2d 838, 847 (1995)

(defendant’s failure to object to evidence “on Rule 403 grounds at trial . . . waived his

objection”); State v. Williams, 209 Ariz. 228, ¶ 22, 99 P.3d 43, 49 (App. 2004) (because


       2
       Generally an issue raised for the first time in a reply brief is waived. State v. Guytan,
192 Ariz. 514, ¶ 15, 968 P.2d 587, 593 (App. 1998). Even if not waived, however, this
argument is without merit.

                                              11
defendant “never made an argument pursuant to Rule 403 below,” court “review[ed] only

for fundamental error”). Moreover, the record reflects the trial court in fact did consider any

prejudicial effect of admitting the evidence and expressly found “no unfair prejudice.” We

find no abuse of discretion in that ruling. See State v. Kiper, 181 Ariz. 62, 65, 887 P.2d

592, 595 (App. 1994) (“Because the trial court is best able to balance the probative value

versus the prejudicial effect, it is afforded wide discretion in deciding the admissibility of

such evidence.”).

III. Blakely issues

¶23           Relying on Blakely,3 Ruggiero also contends she is “entitled to a re-sentencing

because the trial court relied on aggravating factors that were not found true beyond a

reasonable doubt by the [jury] as required.” The trial court found the following aggravating

factors: (1) the presence of accomplices; (2) the crime was “carried out in an especially

cruel manner”; (3) emotional harm to the victim’s family members; and (4) Ruggiero’s

failure to accept responsibility. The court also found several mitigating factors, including

the fact that Ruggiero had no significant criminal history, the “unusual and substantial stress

relative to the facts of the case, and the environment of the offense, and including the threat




       3
       Blakely applies to cases such as this that are pending on direct review when Blakely
was decided. State v. Cleere, 210 Ariz. 212, n.2, 109 P.3d 107, 108 n.2 (App. 2005). In
addition, “it is now clear that Blakely’s analysis and conclusion apply with equal force to
Arizona’s sentencing structure under § 13-702(B) and (C).” State v. Aleman, 210 Ariz. 232,
n.6, 109 P.3d 571, 578 n.6 (App. 2005).

                                              12
to [her] dependents.” The trial court found that the aggravating factors outweighed the

mitigating factors and imposed an aggravated sentence.4

¶24           Preliminarily, the state contends Ruggiero waived any Sixth Amendment

challenge to her sentence by failing to assert it in the trial court. But, as our supreme court

recently explained: “Defendants who fail to object to error at trial do not, strictly speaking,

‘waive’ their claims. Rather, defendants who fail to object to an error below forfeit the right

to obtain appellate relief unless they prove that fundamental error occurred.” State v.

Martinez, No. CR-04-0435-PR, n.2, 2005 WL 1594394 (Ariz. July 8, 2005); see also State

v. Henderson, No. CR-04-0442-PR, ¶ 19, 2005 WL 1594359 (Ariz. July 8, 2005)

(“Fundamental error review . . . applies when a defendant fails to object to alleged trial

error.”). Accordingly, we review Ruggiero’s claims of fundamental error relating to Blakely.

See Henderson, 2005 WL 1594359, ¶ 1; see also State v. Aleman, 210 Ariz. 232, ¶ 24, 109

P.3d 571, 579 (App. 2005); State v. Thues, 203 Ariz. 339, ¶ 4, 54 P.3d 368, 369 (App.

2002) (“[i]mposition of an illegal sentence constitutes fundamental error” that is not waived

by defendant’s failure to raise it).

¶25           Fundamental error is “‘error going to the foundation of the case, error that

takes from the defendant a right essential to his defense, and error of such magnitude that

the defendant could not possibly have received a fair trial.’” Henderson, 2005 WL


       4
       Ruggiero was sentenced to fourteen years on the manslaughter conviction. The
sentencing range for that conviction was between seven years and twenty-one years, with a
presumptive term of 10.5 years. A.R.S. §§ 13-604(I), 13-1103(B).

                                              13
1594359, ¶ 19, quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984).

“[W]e place the burden of persuasion in fundamental error review on the defendant.” Id.

¶ 19. In order to obtain reversal based on unobjected-to trial error, a defendant must show

“both that fundamental error exists and that the error in [his or her] case caused . . .

prejudice.” Id. ¶ 20; see also Hunter, 142 Ariz. at 90, 688 P.2d at 982; State v. King, 158

Ariz. 419, 424, 763 P.2d 239, 244 (1988).

¶26           We agree with Ruggiero that sentencing error occurred in this case. The trial

court, not a jury, found the facts used to aggravate her sentence, and the court presumably

found those facts under a preponderance-of-the-evidence standard, rather than the standard

of proof of beyond a reasonable doubt. See Henderson, 2005 WL 1594359, ¶ 25. In

addition, none of the aggravating factors was inherent in the jury’s verdict or otherwise

Blakely-exempt or -compliant. Thus, fundamental error occurred. See id.

¶27           Ruggiero, however, must also demonstrate that the error prejudiced her. Id.

¶ 26. She “must show that a reasonable jury, applying the appropriate standard of proof,

could have reached a different result [in finding an aggravator] than did the trial judge.” Id.

¶ 27. We then consider whether at least one aggravator “not subject to such a conclusion”

remains to support the aggravated sentence imposed by the trial court. Id. ¶ 28; see also

Martinez, 2005 WL 1594394, ¶¶ 21, 26.

¶28           The state argues, and we agree, that “[Ruggiero’s] own testimony establish[ed]

one of the aggravating facts found by the trial court—the presence of an accomplice,


                                              14
specifically [her son].”5 An accomplice is “a person . . . who with the intent to promote or

facilitate the commission of an offense: . . . [p]rovides means or opportunity to another

person to commit the offense.” A.R.S. § 13-301. Ruggiero testified that her son Mark had

been in the mobile home and that he had helped bind D.’s hands. Mark similarly testified

that he had helped bind D., had taken turns holding the gun on him, had “beat[en] him up

a little bit” and had “Tazered him.” Mark also admitted that he had wanted D. to suffer.

In view of this evidence, Ruggiero has not carried her burden to show that the trial court’s

error in finding the “presence of accomplices” as an aggravating factor prejudiced her. See

A.R.S. § 13-702(C)(4); Henderson, 2005 WL 1594359, ¶ 28.

¶29           Thus, as the state maintains, Ruggiero’s aggravated sentence did not violate

the Sixth Amendment because, “[i]f . . . additional facts are relevant merely to the exercise

of a judge’s discretion in determining the specific sentence to impose on a defendant within



       5
         The state also argues no Blakely violation occurred because Ruggiero’s own
testimony about Mark’s involvement in the crime constituted an admission by her that he
had been “not only an accomplice, but [D.’s] actual killer.” As the state argues, and as our
supreme court recently held, “once a jury finds or a defendant admits a single aggravating
factor, the Sixth Amendment permits the sentencing judge to find and consider additional
factors relevant to the imposition of a sentence up to the maximum prescribed in that
statute.” State v. Martinez, No. CR-04-0435-PR, ¶ 26, 2005 WL 1594394 (Ariz. July 8,
2005). But, because Ruggiero consistently denied having participated in killing D., her
testimony about Mark’s actions and complicity cannot be deemed an admission that she had
committed a crime in the “[p]resence of an accomplice.” A.R.S. § 13-702(C)(4); see State
v. Resendis-Felix, 209 Ariz. 292, ¶ 9, 100 P.3d 457, 460 (App. 2004) (defendant “did not
admit any of the aggravating factors” the trial court found, including presence of an
accomplice, even though record reflected that defendant and an accomplice had stolen
victim’s vehicle and had assaulted him).

                                             15
a given statutory sentencing range, the Sixth Amendment permits the judge to find those

facts by a preponderance of the evidence.” Martinez, 2005 WL 1594394, ¶ 26. The trial

court, therefore, could properly consider the remaining factors to determine the specific

sentence to impose on Ruggiero within the aggravated range.6

                                    DISPOSITION

¶30          Ruggiero’s conviction and sentence are affirmed.



                                             ____________________________________
                                             JOHN PELANDER, Chief Judge

CONCURRING:



____________________________________
M. JAN FLÓREZ, Presiding Judge



____________________________________
PHILIP G. ESPINOSA, Judge



      6
         Citing State v. Carriger, 143 Ariz. 142, 692 P.2d 991 (1984), Ruggiero also argues
that “[t]he trial court committed fundamental error by considering the improper aggravating
factor of failure to accept responsibility.” But, Ruggiero did not object below and we
therefore review this claim for fundamental error. State v. Henderson, No. CR-04-0442-PR,
¶ 19, 2005 WL 1594359 (Ariz. July 8, 2005). We agree with Ruggiero that the fact that a
defendant “chooses not to publicly admit . . . guilt . . . is irrelevant to a sentencing
determination.” Carriger, 143 Ariz. at 162, 692 P.2d at 1011. But, Ruggiero has not
demonstrated how the error prejudiced her and has therefore failed to carry her burden
under fundamental error review. Henderson, 2005 WL 1594359, ¶ 26.

                                            16
