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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  PAULO LUPE RODRIGUEZ, Appellant.

                             No. 1 CA-CR 15-0659
                               FILED 2-2-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-106322-001
                The Honorable Alfred M. Fenzel, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

Law Offices of Neal W. Bassett, Phoenix
By Neal W. Bassett
Counsel for Appellant
                          STATE v. RODRIGUEZ
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Samuel E. Vederman1
joined.


C A T T A N I, Judge:

¶1            Paulo Lupe Rodriguez appeals his convictions of drive by
shooting, discharging a firearm at a nonresidential structure, and driving
under the influence. Rodriguez argues (1) the superior court erred when it
used an anonymous jury, (2) the evidence was insufficient to support his
conviction for discharging a firearm at a nonresidential structure, and (3)
he cannot be convicted of both discharging a firearm at a nonresidential
structure and drive by shooting because the former is a lesser-included
offense of the latter. For reasons that follow, we affirm Rodriguez’s
convictions and sentences.

             FACTS AND PROCEDURAL BACKGROUND

¶2            The night of the incident, Rodriguez drove his truck past a bar
that had made him leave minutes before. As he did so, he fired four
gunshots at the bar. One bullet passed through a wall and into the bar.
Police officers stopped Rodriguez minutes later and arrested him for
driving under the influence. A subsequent search of Rodriguez’s truck
revealed a handgun and four spent shell casings. The bullet found in the
bar and the shell casings in the truck had markings consistent with having
been fired from Rodriguez’s handgun.

¶3           A jury convicted Rodriguez of the charges listed above, but
acquitted him of aggravated assault on a peace officer and resisting arrest.
The superior court sentenced Rodriguez to concurrent terms of 7.5 years’
imprisonment for drive by shooting and discharging a firearm at a
nonresidential structure and 6 months in jail for driving under the




1      The Honorable Samuel E. Vederman, Judge of the Arizona Superior
Court, has been authorized to sit in this matter pursuant to Article VI,
Section 3, of the Arizona Constitution.


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                          STATE v. RODRIGUEZ
                           Decision of the Court

influence. Rodriguez timely appealed, and we have jurisdiction under
Arizona Revised Statutes (“A.R.S.”) § 13-4033.

                               DISCUSSION

I.     Anonymous Jury.

¶4             The superior court and counsel referred to prospective and
selected jurors by juror numbers rather than by their names during the jury
selection process and during trial. Rodriguez argues that this was error
because it resulted in the selection of an “anonymous” jury. Rodriguez
asserts that this practice dehumanizes jurors and insulates them from
responsibility. He contends that jurors who know they have been identified
only by a number are less likely to take their responsibilities seriously, are
less likely to conscientiously listen to the evidence and participate in
deliberations, and that they will surrender their views to a majority opinion
just to get out of court early. Rodriguez also argues that this procedure
undermined his presumption of innocence. He acknowledges that the
practice is routine in Maricopa County Superior Court.

¶5            The superior court explained to the panel during jury
selection why it would refer to them by their juror numbers rather than
their names. The court noted that the more modern courtrooms in the
county had video and audio recording equipment that automatically
recorded many proceedings, and that those recordings were available to the
general public for a fee. The court explained that some jurors in the past
were concerned that their personal information might be available on those
recordings, so the court uses juror numbers to alleviate that concern. The
court further explained that although the courtroom they were in had not
yet been updated, as a practical matter, given the size of the panel and the
courtroom, it was easier for the court reporter to record potential jurors’
numbers rather than their names during voir dire.

¶6            Rodriguez speculates that the prospective jurors did not
believe the court’s explanation. Rodriguez suggests that the jurors could
have instead thought the court and counsel referred to them by their
numbers because Rodriguez presented a threat to them personally, that
Rodriguez may have actually made threats against them already, that the
court was concealing these threats, and that Rodriguez may have had gang
affiliations.

¶7            Because Rodriguez did not object to the use of juror numbers
to identify prospective jurors or those jurors ultimately selected to serve,
we review only for fundamental error. See State v. Gendron, 168 Ariz. 153,


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                           STATE v. RODRIGUEZ
                            Decision of the Court

154 (1991). To establish fundamental error, a defendant must show that the
error complained of goes to the foundation of his case and takes away a
right that is essential to his defense. State v. Henderson, 210 Ariz. 561, 568, ¶
24 (2005). The defendant must also demonstrate that the error was
prejudicial. Id. at ¶ 26.

¶8            We discern no error, fundamental or otherwise. First, this
was not an anonymous jury. “An ‘anonymous jury’ is selected from a
venire whose members’ identifying information—such as names,
occupations, addresses, exact places of employment, and other such facts—
has been withheld from the parties in order to protect potential jurors and
their families.” United States v. Harris, 763 F.3d 881, 884 (7th Cir. 2014)
(citation omitted). An “anonymous” jury deprives the defendant of
information that is useful during the jury selection process, particularly in
regard to challenges for cause and peremptory strikes. Id. at 885. A jury is
not “anonymous,” however, unless the court withholds at least the jurors’
names from the parties. Id.

¶9              Here, the parties knew each prospective juror’s full name, zip
code, employment status, occupation, employer, residency status, level of
education, prior jury experience, and felony conviction history before jury
selection began. Arizona Rule of Criminal Procedure 18.3 provides that
prior to the start of jury selection, the superior court must furnish the parties
a list with all of the above information, and Rodriguez does not contend he
did not have this list or the required information prior to or during jury
selection. Rodriguez does not contend that he did not also have a copy of
the random jury list that identified each potential juror by his or her full
name. Further, there is nothing in the record to suggest the potential jurors
believed or had any reason to believe Rodriguez did not possess all of the
information they provided on their juror information sheets, including their
full names.

¶10          The court and parties also conducted a thorough voir dire in
which all the potential jurors identified their occupations or explained
whether they were a student, unemployed, or retired. They provided the
same information for their spouses, if any. All the potential jurors also
explained their marital status, prior jury experience, and whether they had
been a party or witness in a case. Many potential jurors provided other
information, such as the number and ages of their children and
employment information about themselves and their spouses. Potential
jurors also discussed whether they or anyone close to them had been
victims of crime or if they had been arrested or convicted of crimes.
Therefore, the jury was not anonymous. The court, counsel, and


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                          STATE v. RODRIGUEZ
                           Decision of the Court

prospective jurors simply never said the prospective jurors’ names on the
record. Rodriguez had all the information he needed to make his challenges
for cause, exercise his peremptory strikes, and obtain an unbiased jury.

¶11           Second, there is nothing in the record to suggest the practice
undermined the presumption of innocence. Again, the potential jurors had
no reason to think Rodriguez did not know their names or the other
personal information they provided on their juror information sheets
despite the use of juror numbers. Further, as noted above, the superior
court explained to the potential jurors why they would be referred to by
their juror numbers. A court’s neutral explanation for the use of juror
numbers coupled with the suggestion that the procedure is routine is
sufficient to guard against the possibility of prejudice. United States v.
Fernandez, 388 F.3d 1199, 1245 (9th Cir. 2004), modified at 425 F.3d 1248 (9th
Cir. 2005). There is nothing to suggest the jury believed the use of numbers
was anything but routine or that the use of juror numbers had anything to
do with Rodriguez personally, his possible guilt, or his case in general.
Rodriguez offers nothing but speculation to the contrary.

¶12            Moreover, that the jury acquitted Rodriguez of aggravated
assault on a peace officer and resisting arrest further demonstrates the
practice did not undermine the presumption of innocence and that the jury
was not otherwise biased against Rodriguez simply because the court
referred to the jurors by their juror numbers. Finally, the court instructed
the jury to determine the facts based only on the evidence admitted in court
and to not be influenced by sympathy or prejudice, and we presume jurors
follow their instructions. State v. Dunlap, 187 Ariz. 441, 461 (App. 1996).

II.    Sufficiency of the Evidence of Discharging a Firearm at a
       Nonresidential Structure.

¶13           The three shots that did not strike the bar were the basis for
the charge of discharging a firearm at a nonresidential structure. Under
A.R.S. § 13-1211(B), “[a] person who knowingly discharges a firearm at a
nonresidential structure is guilty of a class 3 felony.” Rodriguez argues that
the evidence was insufficient to support his conviction for discharging a
firearm at a nonresidential structure because there was no evidence he fired
any of the three shots “at” the bar, but rather may have simply fired those
three shots into the air.

¶14          “Reversible error based on insufficiency of the evidence
occurs only where there is a complete absence of probative facts to support
the conviction.” State v. Soto-Fong, 187 Ariz. 186, 200 (1996) (citation



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                          STATE v. RODRIGUEZ
                           Decision of the Court

omitted). “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 (1987). “We construe the evidence in the light most
favorable to sustaining the verdict, and resolve all reasonable inferences
against the defendant.” State v. Greene, 192 Ariz. 431, 436, ¶ 12 (1998). In
reviewing the record, we resolve any conflict in the evidence in favor of
sustaining the verdict. State v. Guerra, 161 Ariz. 289, 293 (1989). We do not
weigh the evidence, however, because that is the function of the jury. See
id.

¶15           The evidence was sufficient to permit a reasonable jury to find
that Rodriguez knowingly discharged a firearm at a nonresidential
structure. The State presented testimony that at approximately 11:40 p.m.
on the night of the incident, security personnel told Rodriguez to leave the
bar. Three to four minutes later, police officers at a police substation less
than a block away heard four gunshots in quick succession. A bullet from
one of those gunshots passed through the rear wall of the bar into the
interior, bounced off something inside, and ultimately landed on the floor.
Within seconds, a police officer at the substation observed Rodriguez’s
truck driving away from the rear of the bar with the headlights turned off.
Officers followed and eventually stopped Rodriguez’s truck after they
observed him driving erratically.          Rodriguez displayed signs of
intoxication, and officers ultimately arrested him for driving under the
influence. A subsequent search of the interior of the truck revealed a loaded
semiautomatic handgun with one round in the chamber ready to fire, four
rounds remaining in the gun’s magazine, and four spent shell casings. The
State presented expert testimony that the bullet recovered from the bar and
the four shell casings found in the truck had markings consistent with
having been fired from Rodriguez’s handgun.

¶16            The fact that most of the evidence was circumstantial is of no
matter, because the State may prove a conviction by circumstantial
evidence alone. See State v. Burton, 144 Ariz. 248, 252 (1985). That
Rodriguez offered expert testimony that may have raised questions about
the connection between Rodriguez’s handgun and the bullet and shell
casings is also of no matter. It was for the jury to weigh the evidence and
determine the credibility of the witnesses. State v. Cid, 181 Ariz. 496, 500
(App. 1995). Finally, the State was not required to prove that Rodriguez
did not fire his gun in some direction other than at the bar. “[I]t is
unnecessary for the prosecution to negate every conceivable hypothesis of
innocence when guilt has been established by circumstantial evidence.”
State v. Nash, 143 Ariz. 392, 404 (1985).


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                           STATE v. RODRIGUEZ
                            Decision of the Court

III.   Discharging a Firearm at a Nonresidential Structure as a Lesser-
       Included Offense.

¶17           Rodriguez further argues that discharging a firearm at a
nonresidential structure is a lesser-included offense of drive by shooting
and, therefore, he cannot be convicted of both. An offense is a lesser-
included offense if it is impossible to commit the greater offense without
committing the lesser offense. State v. Miranda, 200 Ariz. 67, 68, ¶ 2 (2001).
A person cannot be convicted of both a greater and lesser-included offense.
State v. Engram, 171 Ariz. 363, 363 (App. 1991).

¶18            Rodriguez did not raise this issue before the superior court,
and his failure to do so waived all but fundamental error. Gendron, 168
Ariz. at 154. Rodriguez did not argue in his opening brief that this issue
resulted in fundamental error, and we may decline to review for
fundamental error under these circumstances. See State v. Moreno-Medrano,
218 Ariz. 349, 354, ¶ 17 (App. 2008). Although Rodriguez argues in his reply
brief that any error was fundamental, we generally do not consider
arguments or issues first raised in a reply brief. See State v. Watson, 198 Ariz.
48, 51, ¶ 4 (App. 2000).

¶19           Moreover, even if we were to consider the issue to be properly
presented for appellate review, Rodriguez would not be entitled to relief
because he fired four shots, each of which was a separate and distinct act.
See State v. Miranda, 198 Ariz. 426, 430, ¶ 17 (App. 2000). Each shot may
thus support a charge for a separate and distinct offense. Id.; State v.
Singleton, 66 Ariz. 49, 57–58 (1947). Here, the State chose to charge
Rodriguez for drive by shooting based on one shot and discharging a
firearm at a nonresidential structure based on the three other shots. While
discharging a firearm at a nonresidential structure may be a lesser-included
offense of drive by shooting if the basis of both counts is a single act, the
count of discharging a firearm in this case was a separate and distinct
offense based on a separate and distinct act(s) and, therefore, was not a
lesser-included offense of the count of drive by shooting.2




2      As relevant here, a person commits drive by shooting if the person
intentionally discharges a weapon from a motor vehicle at an occupied
structure. A.R.S. § 13-1209(A). A person commits discharging a firearm at
a nonresidential structure if the person knowingly discharges a firearm at a
nonresidential structure. A.R.S. § 13-1211(B).


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                 STATE v. RODRIGUEZ
                  Decision of the Court

                     CONCLUSION

¶20   Rodriguez’s convictions and sentences are affirmed.




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




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