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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       RALPH F. ESPOSITO, Appellant.

                              No. 1 CA-CR 15-0122
                                FILED 11-19-2015


            Appeal from the Superior Court in Maricopa County
                         No. CR 2014-001312-001
                The Honorable Karen L. O’Connor, Judge

                                   AFFIRMED


                                    COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Terry J. Adams
Counsel for Appellant

Ralph F. Esposito, Safford
Appellant
                            STATE v. ESPOSITO
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Donn Kessler joined.


T H U M M A, Judge:

¶1            This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297 (1969). Counsel for defendant Ralph F.
Esposito has advised the court that, after searching the entire record,
counsel has found no arguable question of law and asks this court to
conduct an Anders review of the record. Esposito was given the opportunity
to file a supplemental brief pro se, and has done so, including a first and
second addendum. This court has reviewed the record and has found no
reversible error. Accordingly, Esposito’s convictions and resulting
sentences are affirmed.

                FACTS1 AND PROCEDURAL HISTORY

¶2            One morning in September 2013, C.F.2 left her 18-month old
daughter, F.F., and mother-in-law, C.S., in her car while she went into a
grocery store. While she was in the store, Esposito got into the driver’s seat
and drove away with both F.F. and C.S. still inside. He never said a word,
despite C.S. hitting him and trying to get him to let them go. After about
ten minutes, police stopped Esposito, surrounded the car with guns drawn,
pulled Esposito from the car, arrested him and liberated F.F. and C.S.

¶3           The State charged Esposito with theft of means of
transportation, a Class 3 felony, kidnapping, a Class 2 felony, and
kidnapping, a Class 2 felony and a dangerous crime against children. The
superior court ordered a competency evaluation and, after both doctors



1On appeal, this court views the evidence in the light most favorable to
sustaining the conviction and resolves all reasonable inferences against the
defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2 (App. 2008).

2Initials are used to protect the victims’ privacy. State v. Maldonado, 206
Ariz. 339, 341 n.1 ¶ 2 (App. 2003).



                                      2
                            STATE v. ESPOSITO
                            Decision of the Court

opined to his competency, the court found him competent.3 On March 13,
2014, one week before the scheduled trial and two weeks before the last day,
the State indicted Esposito with the same charges and dismissed the
original case. The court set trial in the new case for June 2014. Before trial,
Esposito asked to represent himself. After an appropriate colloquy with
Esposito, the court found his waiver of counsel was knowing, intelligent
and voluntary and directed that Esposito could represent himself.

¶4            At trial, Esposito gave a four-sentence opening statement. He
did not conduct cross-examination of any of the State’s 10 witnesses (C.F.,
her husband, C.S. and seven police officers). Esposito elected not to testify
after the court explained the ramifications of the decision, did not request
any jury instructions besides a lesser-included offense to theft of means of
transportation, did not make a motion for judgment of acquittal, chose not
to give a closing argument after the court explained the ramifications and
chose not to present argument at the aggravation phase.

¶5            During closing argument, the State remarked:

              This has been a rather unusual case, as you may
              have figured out, ladies and gentlemen, in that
              the defendant didn’t testify, didn’t present any
              witnesses, and as the Judge told you from the
              outset, the defendant doesn’t need to do that. . . .
              So there is nothing improper about the way the
              trial has proceeded, although it is a little bit
              unusual. . . . At the same time, while it can’t be
              held against the defendant that he chose not to
              testify or not to present any witnesses on his
              behalf, the Judge also told you in the final
              instructions that you have, that were read to you
              this morning, that you are not to be influenced
              by sympathy or prejudice.

¶6            Immediately after the State’s closing, at a sidebar, the superior
court indicated these statements warranted a mistrial. After the court told
Esposito that her inclination was to “declare a mistrial and start the trial
over again,” Esposito responded, “I really didn’t have no concerns. I mean,


3Documents from Esposito’s original case number, CR 2013-036093, are not
a part of the record on appeal. However, this court finds them helpful and
therefore takes judicial notice of the pretrial minute entries. See State v.
Valenzuela, 109 Ariz. 109, 110 (1973).

                                      3
                            STATE v. ESPOSITO
                            Decision of the Court

I am not asking for a mistrial at all.” Even after his advisory counsel advised
him to ask for the mistrial, Esposito refused, saying, “I have my reasons,
but basically I’m fine with everything. That’s all I have to say.” Given this,
no mistrial was declared.

¶7            After the close of evidence, final instructions and argument,
the jury deliberated and found Esposito guilty as charged. The jury also
found the kidnapping was a dangerous crime against children and that F.F.
was less than 12 years old and Esposito was at least 18 years old at the time
of the offense.

¶8            At sentencing, Esposito admitted to a prior felony conviction
and addressed the court, maintaining his innocence and asking for
concurrent minimum terms. After considering the presentence report, the
competency evaluations and both aggravating and mitigating factors, the
court sentenced Esposito to mitigated prison terms for all three counts, each
found to be non-dangerous and non-repetitive. Counts one and two are
concurrent to one another, with presentence incarceration credit of 337
days,4 with the sentence on count three to be served consecutively to counts
one and two.

¶9             Esposito timely appealed from his convictions and resulting
sentences. This court has jurisdiction pursuant to Arizona Revised Statues
(A.R.S.) sections 12-120.21(A)(1), 13-4031, and -4033 (2015).5

                               DISCUSSION

¶10           This court has reviewed and considered counsel’s brief and
appellant’s pro se supplemental brief and addenda, and has searched the
entire record for reversible error. See State v. Clark, 196 Ariz. 530, 537 ¶ 30
(App. 1999). Searching the record and briefs reveals no reversible error.

¶11          The State originally brought Esposito’s case in 2013, but then
brought the same charges to a grand jury in 2014 and indicted him. Then
the State dismissed the 2013 case without prejudice, over Esposito’s
objection, and proceeded under the timeline of the 2014 indictment.
Because Esposito’s proper remedy for a potential violation of the speedy

4 Although the record suggests that the proper presentence incarceration
credit may have been less than 337 days, there is no challenge on appeal
that the credit he was given was excessive.

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

                                      4
                            STATE v. ESPOSITO
                            Decision of the Court

trial rule was a special action or motion to reconsider in the 2013 case, see
Earl v. Garcia, 234 Ariz. 577, 579 ¶ 9 (App. 2014) (citing cases), this court
lacks jurisdiction to address any such issue in this appeal.

¶12           The record shows Esposito was either represented by counsel
at all stages of the proceedings or that he knowingly, intelligently and
voluntarily waived his right to counsel and elected to represent himself.
The evidence admitted at trial constitutes substantial evidence supporting
Esposito’s convictions. From the record, all proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure. The sentences
imposed were within the statutory limits and permissible ranges.

¶13          Esposito raises several arguments in his pro se supplemental
brief and addenda, which this court addresses as follows.

I.     Esposito Has Not Shown Fundamental Error Resulting In
       Prejudice By The Superior Court Not Granting A Mistrial.

¶14           Esposito challenges the State’s closing argument. He argues
that he refused to ask for a mistrial, even at the superior court’s prompting
and against his advisory counsel’s advice, because he was under duress
from potential threats made by fellow inmates that assaulted him in the jail
before trial.

¶15             “The prosecutor who comments on defendant’s failure to
testify violates both constitutional and statutory law.” State v. Hughes, 193
Ariz. 72, 86 ¶ 63 (1998). The superior court suggested a mistrial based on
the State’s comments in closing about Esposito’s failure to testify and offer
any evidence. Because Esposito did not make a timely objection, this court
reviews for fundamental error. See id. at 86 ¶ 62; see also Ariz. R. Crim. P.
21.3(c).6 “Accordingly, [Esposito] bears the burden to establish that (1) error
exists, (2) the error is fundamental, and (3) the error caused him prejudice.”
State v. James, 231 Ariz. 490, 493 ¶ 11 (App. 2013) (citations omitted).

¶16           Assuming the State’s comments supported an unfavorable
inference against Esposito and therefore resulted in fundamental error, see
State v. Ramos, 235 Ariz. 230, 235 ¶ 13 (App. 2014); see also A.R.S. §13-117(B),
Esposito has not shown resulting prejudice. The State offered sufficient
evidence for each element of each charge, and Esposito did not offer any

6 Although given Esposito’s statements at sidebar, the doctrine of invited
error could preclude his argument on appeal, see State v. Logan, 200 Ariz.
564, 566 ¶ 11 (2001), on this record, the court analyzes the issue for
fundamental error resulting in prejudice.

                                       5
                           STATE v. ESPOSITO
                           Decision of the Court

alternative explanation, theory or defense, cross-examine any witness or
make a closing argument. The court also gave him the opportunity to seek
a mistrial, telling him, “I am going to leave it to you and respect your
decision as to whether or not you want to mistry this case. If you do request
a mistrial, I will grant it.” Esposito refused multiple times. On this record,
Esposito has not shown that the State’s comments constituted fundamental
error resulting in prejudice.

II.    The Record Does Not Support Esposito’s Radiation Poisoning
       Assertion.

¶17           Esposito makes several arguments stemming from what he
considers to be electro-magnetic radiation poisoning of his brain. A
thorough examination of the record, however, reveals no evidence of
radiation poisoning. Therefore, he cannot support his claimed violations of
the Fourth, Fifth or Eighth Amendments to the United States Constitution.

¶18           Relatedly, Esposito argues that his radiation condition went
undiagnosed, so he was not competent to assist in his own defense. Again,
however, the record reveals no evidence of radiation poisoning. Moreover,
Esposito went through competency evaluation before trial and the court
found he was competent and able to assist in his own defense, relying on
the consistent opinions of two doctors. Additionally, when Esposito asked
to represent himself, the court conducted a proper colloquy and determined
Esposito’s waiver of counsel was knowing, intelligent and voluntary,
findings supported by the record. See State v. Evans, 125 Ariz. 401, 403-04
(1980) (holding defendant properly waived counsel, even after being
diagnosed “as a paranoid schizophrenic” during competency proceedings).
The superior court, therefore, did not err.

III.   Esposito Has Not Shown His Sentence Was Illegal.

¶19           Esposito argues the 10-year mitigated sentence for
kidnapping, a Class 3 felony, and dangerous crime against children was
excessive and therefore illegal. The superior court correctly used A.R.S. §
13-705(D) to guide sentencing based on his conviction.

¶20            The Eighth Amendment to the United States Constitution
“’does not require strict proportionality between crime and sentence’ but
instead forbids only extreme sentences that are ‘grossly disproportionate to
the crime.’” State v. Berger, 212 Ariz. 473, 476 ¶ 13 (2006) (quoting Ewing v.
California, 538 U.S. 11, 23-24 (2003)). To determine whether a sentence is so
lengthy that it is considered cruel and unusual under the Eighth
Amendment, this court “first determines if there is a threshold showing of


                                      6
                            STATE v. ESPOSITO
                            Decision of the Court

gross disproportionality by comparing the gravity of the offense and the
harshness of the penalty.” Id. at 476 ¶ 12 (citation omitted). “A prison
sentence is not grossly disproportionate, and a court need not proceed
beyond the threshold inquiry, if it arguably furthers the State’s penological
goals and thus reflects a rational legislative judgment, entitled to
deference.” Id. at 477 ¶ 17 (citation omitted).

¶21             The “dangerous crime against children” sentencing
enhancement currently codified in A.R.S. § 13-705 “reflects a rational
legislative judgment, entitled to deference.” See id. at 477-78 ¶¶ 17, 22-23;
see also State v. Williams, 175 Ariz. 98, 102-03 (1993) (noting Legislature “was
attempting to respond effectively to those predators who pose a direct and
continuing threat to the children of Arizona. The lengthy periods of
incarceration are intended to punish and deter those persons, and
simultaneously keep them off the streets and away from children for a long
time.”). Esposito’s mitigated 10-year sentence was not excessive under the
Eighth Amendment. Indeed, that sentence was the shortest possible
sentence the court had the power to impose.

¶22            Esposito argues that at the sentencing hearing, the superior
court orally sentenced him to three concurrent sentences, rather than only
counts one and two being concurrent to each other, as stated in the resulting
minute entry. Esposito is correct that, when the oral pronouncement of the
sentence is inconsistent with the minute entry, the oral pronouncement
controls. See State v. Ovante, 231 Ariz. 180, 188 ¶ 38 (2013). As applied,
however, the oral pronouncement of Esposito’s sentence, based on the
transcript of the hearing, is consistent with the minute entry, meaning the
discrepancy Esposito claims does not exist.

IV.    Witness Competency.

¶23            Relying on A.R.S. § 12-2202, Esposito argues the superior
court should not have allowed C.S. to testify because she has Alzheimer’s
disease, and therefore was of unsound mind at the time she was called to
testify. Because A.R.S. § 12-2202 only applies to civil actions, it is
inapplicable here. A witness is only incompetent to testify “if he or she is
unable to understand the nature of an oath, or perceive the event in
question and relate it to the court.” State v. Peeler, 126 Ariz. 254, 256 (App.
1980); see also A.R.S. § 13-4061; Ariz. R. Evid. 601. “The credibility of
witnesses is a matter for the jury.” State v. Canez, 202 Ariz. 133, 149 ¶ 39
(2002). Therefore, any contradictions or inconsistent testimony go to the
credibility, not competency, of a witness. Peeler, 126 Ariz. at 256.




                                       7
                            STATE v. ESPOSITO
                            Decision of the Court

¶24           Esposito claims C.S. was incompetent to testify solely because
she has Alzheimer’s disease. Not so. The record shows C.S. was able to
understand the oath, was able to understand and respond to questions
asked of her, and asked for clarification when she needed it. C.F. testified
that C.S. had Alzheimer’s at the time of trial and at the time of the offense.
Her disease, then, went to her credibility as a witness, rather than her
competency to testify, and was a matter for the jury to consider. See Canez,
202 Ariz. at 149 ¶ 39; Peeler, 126 Ariz. at 256.

V.     Ineffective Assistance Of Counsel.

¶25             Esposito argues that both his trial and current appellate
counsel were ineffective. Although noting Esposito represented himself at
trial, this court does not consider ineffective assistance of counsel claims on
direct appeal; it is an issue only for a Rule 32 post-conviction proceeding.
State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415 ¶ 20 (2007). Therefore, this
court will not consider Esposito’s ineffective assistance of counsel
arguments.

                              CONCLUSION

¶26          This court has read and considered counsel’s brief and
Esposito’s pro se supplemental brief and addenda, and has searched the
record provided for reversible error and has found none. State v. Leon, 104
Ariz. 297, 300 (1969); State v. Clark, 196 Ariz. 530, 537 ¶ 30 (App. 1999).
Accordingly, Esposito’s convictions and resulting sentences are affirmed.

¶27           Upon filing of this decision, defense counsel is directed to
inform Esposito of the status of his appeal and of his future options. Defense
counsel has no further obligations unless, upon review, counsel identifies
an issue appropriate for submission to the Arizona Supreme Court by
petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984).
Esposito shall have 30 days from the date of this decision to proceed, if he
desires, with a pro se motion for reconsideration or petition for review.




                                        :ama




                                 :ama



                                        8
