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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                ANDRES SERRATO GARNICA, Appellant.

                             No. 1 CA-CR 17-0483
                               FILED 1-10-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-155207-001
                The Honorable Erin O'Brien Otis, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Michael T. O'Toole
Counsel for Appellee

Maricopa County Office of the Legal Advocate, Phoenix
By Dawnese C. Hustad
Counsel for Appellant
                           STATE v. GARNICA
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Randall M. Howe joined.


J O H N S E N, Judge:

¶1            Andres Serrato Garnica appeals his conviction and sentence
for second-degree murder. He argues the court made three erroneous
evidentiary rulings and erred in imposing an aggravated sentence. For the
reasons that follow, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2           Garnica and his wife, M.P., and their two young children
were preparing to move from Phoenix to California, where Garnica's father
and step-mother lived.1 Garnica enlisted his neighbor, J.L., to help load a
truck that Garnica had rented for the move. Shortly after the men began
packing, M.P. was walking with the couple's children toward the kitchen,
when she heard two gunshots. M.P. took the children to the bedroom.
When she returned to the kitchen, she found Garnica holding a gun and
standing over J.L., who was on the floor bleeding from gunshot wounds to
his head and torso. When the victim managed to come to his feet, Garnica
grabbed him and "hog-tied" him with a rope. J.L. soon died. After Garnica
threatened to kill her too, M.P. helped him quickly clean up after the
shooting. The two placed the body in a children's playpen and positioned
the playpen in the back of the rental truck.

¶3             Early the next morning, the family proceeded to California,
with Garnica driving the truck and M.P. following in a car with their
children. They arrived at Garnica's father's house later that day. At about
9:00 p.m., local law enforcement responded to a call at the home. Unaware
of the murder, police arrested Garnica, seized his Glock 45-caliber handgun
and charged him with domestic violence and weapons violations.




1     We view the facts in the light most favorable to upholding the verdict
and resolve all reasonable inferences against the defendant. State v. Harm,
236 Ariz. 402, 404, ¶ 2, n.2 (App. 2015).


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                            STATE v. GARNICA
                            Decision of the Court

¶4           The following morning, M.P. informed Garnica's father of the
body in the truck, and he called police. Law enforcement discovered the
body and transported Garnica to the local sheriff's department to be
interviewed. During the interview, Garnica confessed to shooting and
killing J.L.

¶5            Meanwhile, J.L.'s wife, G.L., had become concerned when her
husband did not return home from helping Garnica load the truck. She
noticed the truck that she had seen at the Garnica apartment was gone and
the apartment was dark. Worried, she called police, who informed her she
had to wait a week to report her husband missing.

¶6            After Garnica was charged and extradited to Arizona, a jury
found him guilty of second-degree murder. The jury also found six
aggravating factors. The superior court weighed the aggravating and
mitigating factors and imposed the maximum sentence of 25 years in
prison. Garnica timely appealed. We have jurisdiction pursuant to Article
6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes
("A.R.S.") sections 12-120.21(A)(1) (2019), 13-4031 (2019), and -4033(A)(1)
(2019).2

                               DISCUSSION

A.     Motion to Suppress.

¶7            Before trial, Garnica moved to suppress the incriminating
statements he made during his interview with California law enforcement.
Garnica argued the detective who interviewed him ignored Garnica's
request for counsel, thereby rendering the statements involuntary and in
violation of Miranda v. Arizona, 384 U.S. 436 (1966). The superior court
addressed Garnica's motion at a hearing at which it heard testimony of the
deputy who arrested Garnica, the detective who interviewed him, and
Garnica himself. The court also reviewed a video recording of the
interview. Finding Garnica had not invoked his right to counsel at any
time, the court denied the motion to suppress.

¶8             The Fifth and Fourteenth Amendments afford a suspect the
right against self-incrimination, which includes the right under the Sixth
Amendment to counsel during a custodial interrogation. Dickerson v.
United States, 530 U.S. 428, 432-35 (2000) (citing Miranda, 384 U.S. at 439-45).
If a suspect requests counsel, "the interrogation must cease until an attorney

2      Absent material revision after the date of an alleged offense, we cite
the current version of a statute or rule.


                                       3
                            STATE v. GARNICA
                            Decision of the Court

is present." Miranda, 384 U.S. at 474. However, "law enforcement officers
may continue questioning until and unless the suspect clearly requests an
attorney." Davis v. United States, 512 U.S. 452, 461 (1994). Police are not
required to construe every reference a suspect makes about an attorney as
an invocation of the suspect's right to counsel. "[I]f a suspect makes a
reference to an attorney that is ambiguous or equivocal in that a reasonable
officer in light of the circumstances would have understood only that the
suspect might be invoking the right to counsel, . . . precedents do not require
the cessation of questioning." Id. at 459. Evidence obtained in violation of
the suspect's right to counsel is subject to suppression at trial. State v.
Rosengren, 199 Ariz. 112, 120, ¶ 23 (App. 2000).

¶9            On appeal from the denial of a motion to suppress, we review
only the evidence submitted at the suppression hearing, and we view those
facts in the manner most favorable to upholding the superior court's ruling.
State v. Blackmore, 186 Ariz. 630, 631-32 (1996). The superior court
determines the credibility of witnesses. State v. Ossana, 199 Ariz. 459, 461,
¶ 7 (App. 2001). Although we review the court's legal decisions de novo, id.,
we will not reverse a ruling on a motion to suppress absent abuse of
discretion, State v. Newell, 212 Ariz. 389, 396, ¶ 22, n.6 (2006).

¶10           The evidence offered at the hearing supports the superior
court's finding that Garnica did not invoke his right to counsel either before
or during his interview. Although Garnica testified he asked for a lawyer
upon his arrest, the deputy who arrested him testified Garnica did not
invoke his right to counsel. Given the conflicting evidence, the superior
court did not abuse its discretion in finding Garnica did not make such a
request. See State v. Estrada, 209 Ariz. 287, 292, ¶ 22 (App. 2004) ("Because
the trial court was in the best position to observe the demeanor of the
witnesses and determine their possible biases, we must defer to its
assessment of their credibility."). Moreover, the evidence supported the
court's finding that Garnica did not make a request for counsel during his
interview with the detective the day after his arrest. Indeed, Garnica
acknowledged during cross-examination that he did not tell the detective
he wanted a lawyer.

¶11           On appeal, Garnica nevertheless argues the superior court
erred because he said during the interview that he had told the arresting
officers the day before that he wanted to speak to a lawyer. At the
beginning of the interview, the detective informed Garnica of his rights
under Miranda, including the right to counsel. Garnica affirmatively
responded when the detective asked if he understood those rights. The
detective proceeded to explain he did not want to talk with Garnica about


                                      4
                             STATE v. GARNICA
                             Decision of the Court

the domestic violence and weapons incident for which Garnica had been
arrested and detained the day before. Nonetheless, after discussing the
move to California and describing his relationship with M.P., Garnica
without prompting began to criticize his treatment by the officers who had
transported him for the interview, and contrasted that treatment with what
he characterized as the "best service" the arresting officers had given him
the day before:

       [Garnica]: [The arresting officers] were just like okay so we're
       [sic] read you your rights. And I'm like alright. I'm [sic]
       cooperate with you guys on anything you tell me.

       [Detective]: Yeah.

       [Garnica]: But I want to have an attorney or a lawyer.

       [Detective]: Un hun.

       [Garnica]: Because I'm not gonna speak on my own without
       knowing how to go to court on my own you know.

       [Detective]: Right.

       [Garnica]: So I'll cooperate on anything. Just let me get an
       attorney or a lawyer and we'll go from there.

¶12           Citing Arizona v. Roberson, 486 U.S. 675 (1988), Garnica argues
these comments obligated the detective to cease the interview and look into
whether Garnica indeed had invoked his right to counsel during his arrest.
But see Berghuis v. Thompkins, 560 U.S. 370, 381 (2010) ("If an accused makes
a statement concerning the right to counsel that is ambiguous or equivocal
or makes no statement, the police are not required to end the interrogation,
or ask questions to clarify whether the accused wants to invoke his or her
Miranda rights.") (quotation and citation omitted).

¶13           Garnica, however, cites no authority for the proposition that
an interrogation must cease when a suspect does not tell the interrogator he
wants a lawyer but instead, falsely tells the interrogator that he had earlier
invoked his right to counsel. Because the record supports the superior
court's finding that Garnica did not invoke his right to counsel, the court




                                      5
                             STATE v. GARNICA
                             Decision of the Court

did not err in concluding Garnica's inculpatory statements and confession
were voluntarily made in compliance with Miranda.3

B.     Photograph.

¶14          Garnica argues the court erroneously admitted a photograph
of the murder weapon's case that also depicted "a bullet-proof or tactical
vest." As he did at trial, Garnica argues the exhibit was irrelevant and
whatever probative value it possessed was substantially outweighed by
unfair prejudice.

¶15           Trial judges have "broad discretion" in deciding whether to
admit photographic evidence. State v. Bocharski, 200 Ariz. 50, 56, ¶ 27 (2001).
When determining whether to admit such evidence, the court first
considers whether it is relevant, i.e., whether it aids the jury's
understanding of any issue in dispute. State v. Amaya-Ruiz, 166 Ariz. 152,
170 (1990). The court next considers "whether the photographs would tend
to incite passion or inflame the jury. In the event that they are
inflammatory, the court balances their probative value against their
potential to cause unfair prejudice." Id.

¶16            The superior court here did not err by admitting the
photograph. First, the image of the gun case was relevant to establish
Garnica's ownership, possession and, inferentially, use of the weapon. The
case was found in Garnica's father's residence, which is where Garnica was
staying when he was arrested. Although Garnica did not contest
ownership and possession of the weapon, "[e]ven if a defendant does not
contest certain issues, photographs are still admissible if relevant because
the 'burden to prove every element of the crime is not relieved by a
defendant's tactical decision not to contest an essential element of the
offense.'" State v. Dickens, 187 Ariz. 1, 18 (1996) (quoting Estelle v. McGuire,
502 U.S. 62, 69 (1991)), abrogated on other grounds by State v. Ferrero, 229 Ariz.
239 (2012).

¶17          Further, Garnica has not shown that the image of the vest in
the photo was prejudicial. No witness referred to the vest, nor did anyone
mention it during closing arguments.



3      We have independently reviewed the video recording of the
interview. The recording confirms the detective's testimony that he advised
Garnica of his Miranda rights and did not threaten or coerce Garnica or
promise him any benefit.


                                        6
                            STATE v. GARNICA
                            Decision of the Court

C.     G.L.'s Account of the Prior Argument Between Garnica and J.L.

¶18             Over Garnica's objection on hearsay grounds, J.L.'s wife, G.L.,
testified that J.L. told her that he and Garnica had argued the day before the
murder. The superior court permitted the testimony, finding it was not
hearsay because it was admissible not to prove the argument occurred, but
to illustrate G.L.'s state of mind when her husband did not return home
from helping Garnica move. See Ariz. R. Evid. 801(c) ("'Hearsay' [is] a
statement . . . offer[ed] in evidence to prove the truth of the matter
asserted.").4

¶19            On appeal, Garnica argues G.L.'s testimony regarding the
argument was irrelevant and therefore inadmissible. After the court
explained the testimony was admissible to show G.L.'s state of mind,
however, Garnica did not object that G.L.'s state of mind was irrelevant.
Because Garnica only objected to the statement on hearsay grounds, we
review for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶
19 (2005) (failure to object to alleged trial error results in fundamental error
review); State v. Lopez, 217 Ariz. 433, 434-35, ¶ 4 (App. 2008) (objection at
trial on a ground other than the one asserted on appeal does not preserve
issue for appeal).

¶20             No error occurred, fundamental or otherwise. See State v.
Escalante, 245 Ariz. 135, ___, ¶ 21 (2018) (first step in fundamental error
review is determining whether error occurred). Although G.L.'s state of
mind was only marginally relevant, Garnica has not established prejudice.
It is difficult to perceive how, in light of the overwhelming evidence of
Garnica's guilt, the verdict would have been any different absent G.L.'s
testimony about the argument. See id. (defendant has burden to establish
prejudice in fundamental error review); State v. Dickinson, 233 Ariz. 527, 531,
¶ 13 (App. 2013) ("[A defendant] must affirmatively 'prove prejudice' and
may not rely upon 'speculation' to carry his burden [of establishing
reversible fundamental error]."); see also State v. Calhoun, 115 Ariz. 115, 118
(1977) (evidentiary error deemed harmless in light of remaining
overwhelming evidence of guilt).




4     The court precluded evidence that Garnica had brandished a gun
during that previous argument with J.L.


                                       7
                            STATE v. GARNICA
                            Decision of the Court

D.     Aggravated Sentence.

¶21           Of the six aggravating factors the jury found, Garnica
challenges the following three "catch-all" factors: The crime was committed
while children were present in the apartment, Garnica fled the scene of the
crime, and Garnica transported the victim's body out of state. See A.R.S. §
13-701(D) (2019) (enumerating specific aggravating factors and including at
subsection 27 "[a]ny other factor that the state alleges is relevant to the
defendant's character or background or to the nature or circumstances of
the crime"). We review for an abuse of discretion. State v. Hernandez, 231
Ariz. 353, 355, ¶ 3 (App. 2013).5

¶22           Section 13-701(D)(18) allows the jury to find an aggravating
factor when "[t]he offense was committed in the presence of a child and any
of the circumstances exists that are set forth in § 13-3601, subsection A."
Garnica argues the legislature intended the presence of children to be a
permissible aggravating factor only when § 13-701(D)(18) is satisfied,
meaning only with respect to domestic violence offenses. See A.R.S. § 13-
3601 (2019) (defining "domestic violence"). According to Garnica, the
superior court circumvented the legislature's intent by allowing the jury to
find presence of a child as a catch-all aggravating factor under § 13-
701(D)(27). Further, Garnica contends the evidence does not support a
finding that he committed the murder in the presence of a child.

¶23            We are not persuaded. The aggravating factor found by the
jury refers to "children present inside of the residence," not "in the presence
of a child." The legislature's specification of the presence of a child during
the commission of a domestic violence offense does not bar the court from
considering under the "catch-all" that a jury found another crime was
committed in a residence in which a child was present. See State v. Romero,
173 Ariz. 243, 243 (App. 1992) (statutory aggravating factor requiring
commission of a felony within prior 10 years did not preclude consideration
of other felony under catch-all). Moreover, abundant evidence established




5      Garnica improperly cites State v. Schmid, 220 Ariz. 563 (2009), for the
proposition that the catch-all aggravating factor is unconstitutionally
vague. Our supreme court held in that case that the catch-all is
unconstitutionally vague only when used as the sole factor on which to
impose an aggravated sentence. Id. at 566, ¶¶ 9-11. Schmid does not apply
here because, in addition to three catch-all factors, the jury found three
statutory factors. See A.R.S. § 13-701(D)(2), (5), (9).


                                      8
                            STATE v. GARNICA
                            Decision of the Court

that two young children were in the small apartment when Garnica twice
shot J.L.

¶24           Garnica next argues the jury should not have considered
fleeing the scene of the crime as an aggravating factor because he was not
immediately pursued and he did not attempt to conceal himself. Garnica
also summarily asserts the evidence does not support the flight factor.

¶25            The court did not err in permitting the jury to consider
Garnica's flight from the crime scene, and the evidence supports the jury's
finding that he did so. The evidence revealed Garnica hurriedly cleaned
J.L.'s blood from the kitchen floor and quickly left the scene with J.L.'s body
in the rental truck because he was afraid someone heard the gun shots and
"they might come looking for him[.]"

¶26          Garnica also argues that moving a homicide victim's body to
another state does not "make[] the crime worse or deserving of more
punishment." By hiding and moving J.L.'s body, however, Garnica
hindered law enforcement efforts to locate J.L., causing J.L.'s wife and
family additional extreme anxiety and distress.

¶27           For these reasons, the superior court did not abuse its
discretion in imposing an aggravated sentence. See State v. Fell, 210 Ariz.
554, 559, ¶ 18, n.7 (2005) ("an abuse of discretion will, as a practical matter,
rarely be found" when court sentences defendant within statutorily
authorized range); see also A.R.S. § 13-710 (2019) (maximum sentence of 25
years for conviction of second-degree murder).

                               CONCLUSION

¶28           For the foregoing reasons, Garnica's conviction and sentence
are affirmed.




                         AMY M. WOOD • Clerk of the Court
                          FILED: AA




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