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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

             LOUIS ANTHONY RODRIGUEZ, JR., Appellant.

                             No. 1 CA-CR 14-0300
                               FILED 10-20-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-000569-002
              The Honorable Margaret R. Mahoney, Judge

                                  AFFIRMED


                                   COUNSEL

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

DeBrigida Law Offices, PLLC, Glendale
By Ronald M. DeBrigida, Jr.
Counsel for Appellant

Louis Anthony Rodriguez, Jr.
Appellant
                           STATE v. RODRIGUEZ
                            Decision of the Court



                        MEMORANDUM DECISION

Presiding Judge Maurice Portley delivered the decision of the Court, in
which Judge John C. Gemmill and Judge Michael J. Brown joined.


P O R T L E Y, Judge:

¶1             This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant
Louis Anthony Rodriguez, Jr., has advised us that after searching the entire
record he has been unable to discover any arguable questions of law, and
has filed a brief requesting us to conduct an Anders review of the record.
Rodriguez took the opportunity and filed a supplemental brief. For the
following reasons, we affirm.
                                    FACTS1

¶2            Rodriguez was released from the hospital after shooting
himself in the leg. His ex-girlfriend, T.B., agreed to, and gave him a ride
home. At his house, Rodriguez gathered his belongings, got back in the car
and, hoping T.B. would help him, explained that he did not know where to
go. Given their former abusive history, T.B. was unwilling to take him to
her house. Instead, she headed to her aunt’s house hoping that Aunt W.B.
might help.      After explaining the situation, W.B. gave Rodriguez
permission to stay at her house until he recovered.

¶3            The next evening T.B. went to check on Rodriguez. Although
he was not there, W.B. was at the home with J.W., her housemate. Just as
J.W. and his girlfriend were leaving, Rodriguez arrived and started yelling
at everyone. Once outside, J.W.’s girlfriend called 9-1-1 after J.W. said he
saw Rodriguez pull out a gun.

¶4           T.B. tried to leave, but Rodriguez pulled out a gun and told
her she was not going anywhere. He ordered W.B. to lock the door, told
the two women to sit down and, while brandishing the gun, yelled that he
was going to hell and was going to take them with him.


1We view the facts “in the light most favorable to sustaining the verdict,
and resolve all reasonable inferences against the defendant.” State v.
Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997).


                                       2
                          STATE v. RODRIGUEZ
                           Decision of the Court

¶5           When Rodriguez heard the police arrive, and without any
prompting, he laid down on the floor and slid the gun over to T.B. saying,
“That’s not mine.” After T.B. responded “It ain’t mine either,” Rodriguez
picked up the gun and hid it in a crate before lying back down. And then,
obeying police commands, W.B. unlocked the door and went outside,
followed by T.B., and a few minutes later, by Rodriguez.

¶6             Rodriguez was arrested. The police interviewed W.B. and
T.B., although she was reluctant. As a result, the police secured a warrant
to search the house and found the gun where Rodriguez had placed it. They
also discovered two bags stacked near each other in the living room. The
larger bag contained fifteen rounds of .45 caliber ammunition and a picture
depicting Rodriguez wearing red, with the label “ESML,” the acronym for
East Side Mesa Locos, a street gang. The second, smaller, bag, contained
letters addressed to Rodriguez, and more pictures, one listing the names of
several ESML members, and another showing six individuals, several of
whom were displaying ESML gang signs.

¶7            Rodriguez was subsequently indicted for two counts of
kidnapping, two counts of aggravated assault, disorderly conduct,
misconduct involving weapons, and threatening or intimidating. The
charges were dismissed without prejudice after the State secured a new
indictment against Rodriguez for the original charges, as well as assisting a
criminal street gang, influencing a witness, and conspiracy to commit
influencing a witness. The new indictment also named Marguerite Baker,
an ESML gang member, as a co-defendant on the three new charges.2

¶8             The three additional charges were included after T.B.
reported that she received postcards in the mail with threatening messages,
and a visit from Baker. T.B. recognized Rodriguez’s handwriting on one of
the postcards which warned her:

      Pay attention real close. You are to not show up at any court. Also you
      are held responsible for your aunt and cousin and his bitch. None are
      to come or you will be seen and you will get got no games. Make damn
      sure nobody shows and no worries. If one shows you pay for it. Be
      smart. Don’t show this to anyone. Be smart. Throw this away and
      stay away: period.



2 Baker subsequently entered into a plea agreement with the State and
testified against Rodriguez.


                                     3
                           STATE v. RODRIGUEZ
                            Decision of the Court

(Emphasis added.) Additionally, Baker stopped to visit T.B. at Rodriguez’s
bequest, and questioned T.B. about the evening of April 25, 2012, and the
court case.

¶9            Before trial, the State amended the indictment by dismissing
all charges except the two kidnapping charges, aggravated assault charges,
misconduct involving weapons, assisting a criminal street gang, and
conspiracy to intimidate a witness charges. The case went to trial, and after
the presentation of the evidence, closing arguments and jury instructions,
the jury convicted Rodriguez of misconduct involving weapons, assisting a
criminal street gang, and conspiracy to commit influencing a witness, but
were unable to reach a verdict on the remaining counts.3 The jury then had
to decide whether the § 13-714 enhancement applied, and found beyond a
reasonable doubt that the conviction of assisting a criminal street gang was
a gang offense pursuant to Arizona Revised Statutes (“A.R.S.”) section 13-
714.4 Rodriguez was subsequently sentenced to mitigated concurrent terms
of twelve-and-a-half years for assisting a criminal street gang, six years for
misconduct involving a weapon, and three years for the conspiracy
conviction. He was given 738 days of presentence incarceration credit.

¶10           We have jurisdiction over this appeal pursuant to Article 6,
Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-
4031, and -4033(A)(1).

                               DISCUSSION

¶11            In his supplemental brief, Rodriguez raises the following
issues: (1) there was insufficient evidence to convict him on the gang and
conspiracy charges; (2) applying the § 13-714 enhancement to the assisting
a criminal street gang charge was a sentencing error; and (3) the court
abused its discretion by (a) denying his motion to dismiss the charges for
speedy trial violations under Arizona Rules of Criminal Procedure (“Rule”)
8 and the Sixth Amendment, as well as denying his motions to dismiss for
vindictive prosecution, and for a due process violation, (b) permitting
Exhibit 212, the jail tape, to be played to the jury in its entirety even though
it referred to a previous incarceration, (c) permitting the State to ask Baker


3The jury was hung on the two kidnapping and aggravated assault charges.
The State successfully asked that those charges be dismissed without
prejudice.
4 We cite the current version of the applicable statute unless otherwise

noted.


                                       4
                            STATE v. RODRIGUEZ
                             Decision of the Court

leading questions during direct examination, and (d) dismissing the first
case.

¶12             In reviewing the issues on appeal, if Rodriguez objected at
trial, we will review whether the court abused its discretion or otherwise
erred, and if we find such, whether that abuse is harmless error. See State
v. Valverde, 220 Ariz. 582, 585, ¶ 11, 208 P.3d 233, 236 (2009) (citing State v.
Henderson, 210 Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005)). As a result,
even if there is some error, we will affirm a conviction if the evidence
demonstrates beyond a reasonable doubt that the error did not contribute
to or affect the verdict. Valverde, 220 Ariz. at 585, ¶ 11, 208 P.3d at 236 (citing
State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993) (internal
quotation marks omitted)). If, however, Rodriguez did not object at trial,
we only review for fundamental prejudicial error. Valverde, 220 Ariz. at 585,
¶ 12, 208 P.3d at 236; Henderson, 210 Ariz. at 567, ¶¶ 19-20, 115 P.3d at 607.

I.     Sufficiency of the Evidence

¶13             Rodriguez first argues that the State failed to present
sufficient evidence to support his convictions on the gang and conspiracy
charges. The trial court denied Rodriguez’s Rule 20 motion. We review the
Rule 20 ruling for an abuse of discretion. State v. McCurdy, 216 Ariz. 567,
573, ¶ 14, 169 P.3d 931, 937 (App. 2007) (citing State v. Hollenback, 212 Ariz.
12, 14, ¶ 3, 126 P.3d 159, 161 (App. 2005)). We will only reverse a conviction
for insufficient evidence if there is “no substantial evidence to support the
jury’s verdict.” State v. Scott, 187 Ariz. 474, 477, 930 P.2d 551, 554 (App.
1996) (citing State v. Hallman, 137 Ariz. 31, 38, 668 P.2d 874, 881 (1983)).
Substantial evidence is “more than a mere scintilla” of evidence, and is
evidence that “reasonable persons could accept as adequate and sufficient
to support a conclusion of [the] defendant’s guilt beyond a reasonable
doubt.” State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (internal
citations and quotation marks omitted). It is the role of the fact finder, and
not this court, to weigh the evidence and determine the credibility of
witnesses. See State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995).
“To set aside a jury verdict for insufficient evidence it must clearly appear
that upon no hypothesis whatever is there sufficient evidence to support
the conclusion reached by the jury.” State v. Arredondo, 155 Ariz. 314, 316,
746 P.2d 484, 486 (1987) (citation omitted).

¶14           The jury heard substantial evidence supporting its verdicts
convicting Rodriguez for assisting a criminal street gang and conspiracy to
intimidate a witness. The evidence demonstrated that Rodriguez sought to



                                        5
                           STATE v. RODRIGUEZ
                            Decision of the Court

use his status as a gang member to attempt to prevent T.B. from cooperating
with the police or testifying at trial – he sent her postcards suggesting there
would be negative repercussions if she testified, and conspired with Baker,
another gang member, to visit T.B. in order to attempt to influence her not
to cooperate. And, there is substantial evidence documenting Rodriguez’s
ESML gang membership, as well as the benefits to the gang if he were
released from jail before trial. For example, Detective Staab testified that
the ESML gang engaged in illegal activities to earn money, Rodriguez could
only help the gang if he was not in custody, and his attempt to use Baker to
help him get out of jail would benefit the gang because he would be
obligated to help other gang members. There was, as a result, sufficient
evidence that Rodriguez had assisted a criminal street gang to send the case
to the jury and for the jury to find him guilty beyond a reasonable doubt on
that charge.

¶15           And there was substantial evidence of the conspiracy charge.
While in jail, Rodriguez called Baker three times and those calls were
recorded and played to the jury.5 In Rodriguez’s first call to Baker, the
following conversation occurred:

       Baker: . . . Don’t even trip, me and Joey are on top of this
       shit . . . . Me ‘n’ Joey are about to go get the police report and
       shit to find out like who all wrote stuff, you know what I
       mean. . . .

             ***
       Rodriguez: Be on this for me, alright.

       Baker: Hey, believe me we’re on this dog.

              ***
       Rodriguez: Yeah, I don’t know but I’m on my real number
       right here, so you know what I mean, so I ain’t saying to do
       nothing, but if you can, look into it.

(Emphasis added.)




5The Maricopa County Jail, operated by the Sheriff’s Office, records all
outward-bound jail calls.



                                       6
                           STATE v. RODRIGUEZ
                            Decision of the Court

¶16            During the second phone call,6 Rodriguez asked Baker what
T.B. had said, and also asked “you gonna beat her down or what?” When
Baker claimed that she had beaten up T.B., Rodriguez laughing, told her
“Hell yeah.” And during the third recorded conversation, Rodriguez asked
Baker to visit T.B. and W.B. to get them to sign affidavits exculpating him,
which she asserted she did.

¶17            Although Rodriguez argues that Baker was unreliable and
not credible, the jury had to weigh her credibility and decide whether her
testimony was truthful and we will not re-weigh the evidence to determine
her credibility. Cid, 181 Ariz. at 500, 892 P.2d at 220. The record, as a result,
demonstrates that there was substantial evidence to support the court’s
denial of the Rule 20 motion and the jury’s verdict that Rodriguez was
guilty beyond a reasonable doubt of conspiracy to commit influencing a
witness. Consequently, we find no error in his convictions on the
challenged verdicts.

II.    The Sentencing Enhancement

¶18           Rodriguez next argues that the trial court misinterpreted the
Arizona statute when it applied the § 13-714 enhancement to his assisting a
criminal street gang conviction, and violated his rights against double
jeopardy. We review the claim for fundamental error, but review issues of
statutory interpretation de novo. State v. Ross, 214 Ariz. 280, 283, ¶ 21, 151
P.3d 1261, 1264 (App. 2007) (citing State v. Gallagher, 205 Ariz. 267, 269, ¶ 5,
69 P.3d 38, 40 (App. 2003)).

¶19            Both the United States Supreme Court and Arizona Supreme
Court have found that sentence enhancements do not violate double
jeopardy. State v. Harm, 236 Ariz. 402, 408, ¶ 23, 340 P.3d 1110, 1116 (App.
2015) (citing United States v. Watts, 519 U.S. 148, 154–55 (1997)); State v. Bly,
127 Ariz. 370, 373, 621 P.2d 279, 282 (1980), superseded by statute, A.R.S. § 13–
702, as recognized in State v. Pitts, 178 Ariz. 59, 63, 870 P.2d 1155, 1159 (App.
1993).7 As a result, the fact that § 13-714 was used as an enhancement does
not violate the doctrine of double jeopardy.


6 Rodriguez used his booking information to make the first call, but
attempted to use another person’s information to make the second and
third calls to Baker.
7 Although A.R.S. § 13-702 (now A.R.S. § 13-701, see 2008 Ariz. Sess. Laws,

ch. 301, § 23 (2nd Reg. Sess.)) has since been amended, the Bly analysis and



                                       7
                            STATE v. RODRIGUEZ
                             Decision of the Court


¶20            Section 13-714 provides that when a defendant is convicted of
committing “any felony offense with the intent to promote, further or assist
any criminal conduct by a criminal street gang,” then the “presumptive,
minimum and maximum sentence for the offense shall be increased by
three years if the offense is a class 4, 5 or 6 felony or . . . by five years if the
offense is a class 2 or 3 felony.” A.R.S. § 13-714. As a result, Rodriguez
contends that because the preparatory offense for assisting a criminal street
gang was the class five felony of conspiracy to commit influencing a
witness, the § 13-714 enhancement should only attach to the class five
felony and not the class three felony of assisting a criminal street gang. We
disagree.

¶21             Although it can be argued that the preparatory felony offense
for assisting the criminal street gang was the conspiracy to commit
influencing a witness, Rodriguez was convicted of both conspiracy and
assisting a criminal street gang, and the statute does not preclude the § 13-
714 enhancer from attaching to the conviction for assisting a criminal street
gang regardless of any alleged preparatory felony. Although Rodriguez
disagrees with the State’s decision to seek the enhancer on the class three
felony, he has cited no statutory or case law that prohibits the enhancer
from attaching to the class three felony, and we have found none.
Moreover, after finding Rodriguez guilty of assisting a criminal street gang,
the jury, after hearing further argument from the State and defense counsel,
found the criminal street gang conviction was a gang offense beyond a
reasonable doubt and the court properly considered it when sentencing
Rodriguez. See State v. Snyder, 111 Ariz. 366, 367, 529 P.2d 1183, 1184 (1975)
(“The rule of law is well established that where, as here, a sentence is clearly
within the statutory limits provided for the offense, a reviewing court will
not disturb the sentence unless there is a clear abuse of discretion.”); see also
Harm, 236 Ariz. 402, 340 P.3d 1110 (affirming defendant’s conviction and
sentence where § 13-714 enhancer applied to class three felony).
Consequently, we find no sentencing error.

III.   Trial Court’s Rulings

A. Denial of Speedy Trial Violation Motion

¶22          Rodriguez sought to dismiss the case for speedy trial
violations under the Sixth Amendment and Rule 8. The Sixth Amendment

deference to the legislature in determining statutory sentencing schemes is
still applicable. Harm, 236 Ariz. at 408 n.5, ¶ 23, 340 P.3d at 1116 n.5.


                                         8
                           STATE v. RODRIGUEZ
                            Decision of the Court

to the United States Constitution guarantees the right to a speedy and
public trial in all criminal prosecutions. U.S. Const. amend. VI. The United
States Constitution does not require that a trial be held within a specified
time period. U.S. Const. amend. VI; State v. Spreitz, 190 Ariz. 129, 139, 945
P.2d 1260, 1270 (1997). As a result, we examine four factors to determine
whether a constitutional speedy trial right was violated; namely, (1) the
length of the delay; (2) the reasons for the delay, (3) the defendant’s
assertion of the right, and (4) the prejudice caused to the defendant. State
v. Soto, 117 Ariz. 345, 348, 572 P.2d 1183, 1186 (1977) (citing Barker v. Wingo,
407 U.S. 514, 530 (1972)). The most important of the four factors is the
prejudice caused to the defendant, while the least important is the length of
the delay. See Fuller v. Olson ex rel. Cty. of Pinal, 233 Ariz. 468, 472-73, ¶ 10,
314 P.3d 814, 818-19 (App. 2013) (citations omitted).

¶23           Rule 8 has “even stricter speedy trial rights than those
provided by the United States Constitution.” Spreitz, 190 Ariz. at 136, 945
P.2d at 1267 (internal citations and quotation marks omitted). Under Rule
8.2(a)(1), a defendant in custody must be tried within 150 days after
arraignment. Some of the delays, however, can be excluded from the 150
day calculation under Rules 8.4 and 8.5. We review the court’s Rule 8 ruling
but will not reverse it unless a defendant shows that the court “abused its
discretion and that prejudice resulted.” Spreitz, 190 Ariz. at 136, 945 P.2d at
1267 (emphasis added).

¶24           After Rodriguez was arraigned after the first indictment, both
sides filed successful motions to continue under Rule 8.5. The case was
dismissed on February 24, 2013, without prejudice before 150 days elapsed.

¶25            Rodriguez, however, was arraigned under the new
indictment on February 21, 2013, and the Rule 8 time limits started anew.
See State ex rel. Berger v. Superior Court, 111 Ariz. 524, 534 P.2d 266 (1975);
Earl v. Garcia ex rel. Cty. of Maricopa, 234 Ariz. 577, 581, ¶ 20, 324 P.3d 863,
867 (App. 2014). Again, both Rodriguez and the State successfully
requested continuances. The court properly excluded the continuance time
from the 150 day calculation pursuant to Rule 8.4 by finding the delay was
“indispensable to the interests of justice,” and not merely for “delay or any
improper purpose.” The court, as a result, did not abuse its discretion in
granting the continuances, and did not violate Rule 8.

¶26           Moreover, the delays did not prejudice Rodriguez. Although
he alleges prejudice because he experienced “excessive pretrial
incarceration, stress, anxiety, mental anguish and hardship,” and that but



                                        9
                          STATE v. RODRIGUEZ
                           Decision of the Court

for the dismissal and re-indictment, the State would have had insufficient
time to obtain the DNA evidence linking him to the gun, he waived the
argument by not making it to the trial court. See State v. Thomas, 130 Ariz.
432, 435, 636 P.2d 1214, 1217 (1981). He caused some of the delay by trying
to intimidate T.B., which led to the new indictment with additional charges.
And despite any stress or anxiety, Rodriguez had the opportunity to fully
investigate his case, adequately prepare for trial, and he did not lose the
opportunity to present any evidence or testimony. See State v. Wassenaar,
215 Ariz. 565, 572, ¶ 20, 161 P.3d 608, 615 (App. 2007). Consequently,
because Rodriguez was tried within the statutory time limits and was not
prejudiced by any delay, there was no abuse of discretion and no prejudice
warranting reversal of his convictions whether under the federal
constitution or Rule 8.

B. Denial of Vindictive Prosecution Motion

¶27            Rodriguez also argues that the trial court abused its discretion
by denying his motions to dismiss for vindictive prosecution, and a due
process violation. He contends that the State was vindictive by dismissing
the original indictment without prejudice and securing the new indictment
with additional charges after he requested the court to keep the case
moving to trial. We disagree.

¶28            We review the court’s ruling on the motion to dismiss for
vindictive prosecution for an abuse of discretion. See State v. Mieg, 225 Ariz.
445, 447, ¶ 9, 239 P.3d 1258, 1260 (App. 2010); State v. Brun, 190 Ariz. 505,
506, 950 P.2d 164, 165 (App. 1997). A court abuses its discretion when “the
reasons given by the court for its action are clearly untenable, legally
incorrect, or amount to a denial of justice.” Mieg, 225 Ariz. at 447, 239 P.3d
at 1260 (quoting State v. Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224
n.18 (1983)) (quotation marks omitted).

¶29            The State cannot punish a defendant who chooses to exercise
his constitutional rights by prosecutorial decisions that are “motivated by a
desire to punish him for doing something that the law plainly allowed him
to do.” United States v. Goodwin, 457 U.S. 368, 384 (1982). However, because
a defendant is expected to invoke procedural rights before trial that would
inevitably burden the prosecutor in some way, it is “unrealistic to assume
that a prosecutor’s probable response to such motions is to seek to penalize
and to deter.” Id. at 381. Thus, the time at which a change in the charging
decision is made is relevant because a “change in the charging decision




                                      10
                           STATE v. RODRIGUEZ
                            Decision of the Court

made after an initial trial is completed is much more likely to be improperly
motivated than is a pretrial decision.” Id.

¶30           Rodriguez argues that the State’s decision to seek a new
indictment and then dismiss the first indictment without prejudice was
vindictive. The court, however, found that the State’s decision was not
vindictive because the new charges stemmed not from his original alleged
behavior, but from his conduct to prevent T.B. from cooperating after the
original indictment, and not his desire to be tried quickly. As a result, the
court denied his motion. Consequently, the court did not abuse its
discretion by dismissing Rodriguez’s vindictive prosecution motion.

C. Admission of Jail Call Recordings

¶31             Rodriguez also contends that the trial court abused its
discretion by permitting the recorded jail telephone conversation, which
referred to his prior conviction, to be admitted into evidence and played in
its entirety. We review the court’s rulings on evidentiary issues for an abuse
of discretion. State v. Davolt, 207 Ariz. 191, 208, ¶ 60, 84 P.3d 456, 473 (2004)
(citing State v. Gulbrandson, 184 Ariz. 46, 60, 906 P.2d 579, 593 (1995).

¶32           Rodriguez filed a motion in limine to preclude testimony
about the nature of his prior felony convictions. Although there is no
indication in the record that the court ruled on the motion before trial,
Rodriguez’s lawyer agreed that the non-redacted jail recording could be
played in its entirety. The recording was admitted into evidence without
objection and it was played for the jury. During the recording the following
statements were heard:

       Rodriguez: My Mom didn’t know?

       Baker: No I told your Mom.

       Rodriguez: F*** dude

       Baker: Because she said um “well G***d***,” she like, “he just
       got out for f*****g kidnapping. Did he really do that to
       somebody Marguerite?”

¶33           Subsequently, the defense raised some concern that the
statement in the recording could have suggested that Rodriguez had a prior
conviction and asked for it to be redacted. Because the recording had been
admitted into evidence and played to the jury, and it was not clear whether


                                       11
                          STATE v. RODRIGUEZ
                           Decision of the Court

the recording specifically referred to any prior convictions, the court denied
the redaction request. However, the court gave the defense the opportunity
to recall the witness if there was a need to clarify the issue. The defense did
not ask that any witness be recalled to clarify the issue.

¶34          Even if the portion of the recorded conversation somehow
involves a discussion of a prior felony conviction, it was clear that the
kidnapping was discussed, but the jury could not unanimously agree that
the State proved either kidnapping charge beyond a reasonable doubt.
Consequently, because the defense agreed that the tape could be admitted
and played, and did not object when it was offered into evidence, we find
no error, much less fundamental prejudicial error.

D. Asking a State’s Witness Leading Questions

¶35           Rodriguez argues that the court abused its discretion by
permitting the State to ask Baker leading questions during direct
examination. Because there was no objection at trial, we review the
argument for fundamental prejudicial error. See Valverde, 220 Ariz. at 585,
¶ 12, 208 P.3d at 236; Henderson, 210 Ariz. at 567, ¶¶ 19-20, 115 P.3d at 607.

¶36             Although leading questions are generally prohibited on direct
examination, the general prohibition is not absolute, and a trial court may,
at its discretion, allow a party to ask leading questions of its own witness.
State v. Duffy, 124 Ariz. 267, 273-74, 603 P.2d 538, 544-45 (App. 1979). Here,
the defense was concerned that Baker might discuss Rodriguez’s prior bad
acts, and consented to the State asking Baker leading questions. Therefore,
the court did not err, much less commit fundamental prejudicial error, by
permitting the prosecutor to ask Baker leading questions.

E. Dismissal of First Case Without Prejudice

¶37           Rodriguez’s final argument is that the trial court abused its
discretion by dismissing the original case. The record on appeal does not
include the proceedings relating to the dismissal of the first case without
prejudice. When the record on appeal is incomplete, we presume that the
missing portion of the record supports the trial court’s decision. See State v.
Zuck, 134 Ariz. 509, 513, 658 P.2d 162, 166 (1982); State v. Printz, 125 Ariz.
300, 304, 609 P.2d 570, 574 (1980).

¶38        Although we do not have the record of the first indictment
and the subsequent trial proceedings, the new indictment added a



                                      12
                          STATE v. RODRIGUEZ
                           Decision of the Court

co-defendant and additional charges. Because there was a factual basis for
the new indictment, the court complied with Rule 16.6 by dismissing the
original case after the new indictment. Consequently, we find no error.

IV.   Reversible Error Review

¶39           We have read and considered the opening brief and
Rodriguez’s supplemental brief. We have searched the entire record for
reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We fine none.

¶40           All of the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. The record reveals that although
Rodriguez filed a number of pro per motions, he was represented by
counsel at all stages of the proceedings, including the settlement
conference. And as a result of the evidence and counsel’s efforts, the jury
was unable to unanimously agree on a verdict to convict him on four (two
counts of kidnapping and aggravated assault) of the seven counts and those
were dismissed without prejudice. Rodriguez was sentenced within the
statutory guidelines and received mitigated, concurrent sentences.

¶41           After this decision is filed, counsel’s obligation to represent
Rodriguez in this appeal has ended. Counsel must only inform Rodriguez
of the status of the appeal and Rodriguez’s future options, unless counsel
identifies 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). Rodriguez may, if desired, file a motion for
reconsideration or petition for review pursuant to the Arizona Rules of
Criminal Procedure.

                              CONCLUSION

¶42          Accordingly,    we    affirm   Rodriguez’s   convictions    and
sentences.




                                  :ama




                                     13
