                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                v.

                   CARLOS JOAQUIN TORRES, JR.,
                           Appellant.

                     No. 2 CA-CR 2012-0505
                     Filed December 10, 2013

         Appeal from the Superior Court in Pima County
                      No. CR20113766001
            The Honorable Richard S. Fields, Judge

           AFFIRMED IN PART; VACATED IN PART


                            COUNSEL

Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz, Section Chief Counsel, Phoenix
and Alan L. Amann, Assistant Attorney General, Tucson
Counsel for Appellee

Lori J. Lefferts, Pima County Public Defender
By Lisa M. Hise, Assistant Public Defender, Tucson
Counsel for Appellant


                            OPINION

Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Espinosa concurred.
                        STATE v. TORRES
                       Opinion of the Court

E C K E R S T R O M, Judge:

¶1           Appellant Carlos Torres appeals from his conviction
and sentence for second-degree murder. Although we affirm
Torres’s conviction and sentence, we vacate the criminal restitution
order the trial court entered at sentencing.

                   Factual and Procedural Background

¶2            On August 9, 2011, sometime between 8:00 and 9:00
a.m., Tucson police officers responded to a report of a suicidal
person at an apartment complex. The one-bedroom apartment in
question was occupied by Torres, his former girlfriend Victoria, and
their eighteen-month-old daughter Mary.1 When the police arrived,
Torres and Mary came outside and the officers entered the
apartment. They found in the bedroom the body of Victoria in rigor
mortis and recognized that she was dead.             When homicide
detectives first interviewed Torres regarding the death, he insisted
that Victoria had killed herself. However, he eventually admitted to
his mother in a taped jail telephone call that he had committed the
murder. According to Torres’s description of events, as testified to
at trial by his mother, the crime proceeded as follows:

¶3          Torres and Victoria were at the apartment playing video
games. Mary was playing in the same room. An argument erupted
between Torres and Victoria, and she ran into the bedroom,
followed by Torres. In the bedroom, the argument grew more
heated and became physical. Victoria told Torres she wished he
were dead and wished she had had the baby with somebody else.
Torres went into a rage, became “dizzy,” and, when he regained
awareness, Victoria was dead.

¶4          Although Torres’s statement was the only basis for the
above details, independent evidence established other facts.
According to the physician who conducted the autopsy, Victoria had


      1 For ease of reference and to protect the anonymity of the
victim, I.A., and the daughter, B., we use pseudonyms for each of
them. See Ariz. R. Sup. Ct. 111(i).


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                         Opinion of the Court

been stabbed at least twenty-five times. A paramedic testified that
Torres received medical treatment for a cut finger in the lobby of his
apartment complex at approximately 1:00 a.m. and was taken to the
hospital at his own insistence. Mary was with him in the lobby and
at the hospital. Torres later admitted that Victoria was dead by the
time he went to the hospital. A time-stamped still photograph from
a hospital security camera showed Torres and Mary leaving the
hospital at 4:20 a.m. A detective testified that the murder weapon
was found hidden in a hallway closet underneath several stacked
items. The detective also testified that bleach had been poured over
the carpet surrounding Victoria’s body.

¶5           After a jury trial, Torres was convicted of second-degree
murder. Torres waived his right to a jury trial on aggravating
factors. The trial court found two such factors: the presence of a
minor child and emotional impact on the victim’s family. The court
sentenced Torres to an aggravated prison term of nineteen years.
This timely appeal followed. We have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).

                             Verdict Form

¶6           Torres claims the trial court erred in using a verdict
form that incorrectly treated manslaughter upon sudden quarrel or
heat of passion as a lesser-included offense of second-degree
murder. “We review de novo whether jury instructions correctly
state the law.” State v. Prince, 226 Ariz. 516, ¶ 77, 250 P.3d 1145, 1165
(2011). The state asserts, however, that Torres invited any error and,
therefore, he should not be allowed to assert this claim on appeal.

¶7            In order to determine if a party invited error, this court
“look[s] to the source of the error, which must be the party urging
the error.” State v. Logan, 200 Ariz. 564, ¶ 11, 30 P.3d 631, 633 (2001).
Mere acquiescence is insufficient to find invited error; the party
must have “affirmatively and independently initiated the error.”
State v. Lucero, 223 Ariz. 129, ¶ 31, 220 P.3d 249, 258 (App. 2009). In
Lucero, the trial court had asked the defendant whether a military
official should be considered a law enforcement officer. Id. ¶ 32.
The defendant responded that he was not sure, but he agreed with
the court’s proposal to allow the jury to decide the issue. Id. The


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                         Opinion of the Court

court noted that the defendant had neither “ask[ed] the court to
instruct the jury that it was a fact question” nor “affirmatively
argued for the response to try and trick the court into error.” Id. ¶ 3.
It therefore concluded that the defendant had not invited the error.

¶8         Here, Torres likewise did not propose the verdict form.
Nor did he urge the trial court to use it. As in Lucero, he stated he
was unsure about the correct law, calling the situation a “quandary,”
and ultimately agreeing the verdict form was “just fine.”
Accordingly, although Torres acquiesced in the error, he did not
invite it.

¶9           However, Torres did not object to the verdict form.
Consequently, he has forfeited the right to seek relief for all but
fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561,
¶¶ 19-20, 115 P.3d 601, 607-08 (2005). Because Torres does not argue
that the error here was fundamental, and because we find no error
that can be so characterized, Torres has waived this claim. See State
v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008)
(noting fundamental error argument waived if not asserted); State v.
Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007)
(“Although we do not search the record for fundamental error, we
will not ignore it when we find it.”).

              Presence of Child as Aggravating Factor

¶10         Section 13-701(D)(18), A.R.S., provides that a court shall
find an aggravating circumstance for sentencing purposes when a
domestic violence offense “was committed in the presence of a
child.” The trial court found that circumstance here. Torres
challenges that finding, insisting that “[t]here was no evidence that
the minor child was in the room when the murder occurred, that the
child was aware of what was happening, or that the child was even
awake at the time.”

¶11           We will not disturb a trial court’s finding that an
aggravating circumstance exists absent an abuse by the court of its
discretion. See State v. Long, 207 Ariz. 140, ¶ 39, 83 P.3d 618, 625
(App. 2004). “An abuse of discretion occurs when the trial court’s
decision is . . . unsupported by the record.” State v. Peralta, 221 Ariz.


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                        Opinion of the Court

359, ¶ 3, 212 P.3d 51, 53 (App. 2009). Because the evidence supports
the finding that Torres committed the murder in Mary’s presence,
the court did not abuse its discretion here.

¶12          This court has determined that, in the context of § 13-
701(D)(18), the term “presence” does not require the child to “be in
the same room as an incident.” State v. Burgett, 226 Ariz. 85, ¶ 7, 244
P.3d 89, 92 (App. 2010). We further observed that the purpose of
this aggravating factor is “to punish more severely those who
expose children to domestic violence.” Id. ¶ 6.

¶13          Here, as Torres emphasizes, the state presented no
direct evidence that Mary witnessed him stabbing Victoria to death.
The evidence does not reveal whether Mary followed her parents
into the room where the murder took place, if the door to the room
was open or closed as Torres stabbed Victoria, or if the physical part
of the struggle was sufficiently audible that Mary would have heard
it had she not followed her parents into the bedroom.

¶14          Nonetheless, the state presented ample circumstantial
evidence from which the trial court could infer that Mary was not
merely in proximity to the offense but also was sufficiently exposed
to the attendant domestic violence so that she could be characterized
as “present” for that offense pursuant to § 13-701(D)(18).

¶15            Torres’s own statement established that Mary was
awake and in the same room as Torres and Victoria when the
argument preceding the homicide began. In that statement, Torres
does not suggest that he took any precautions to shield or separate
Mary from the immediately subsequent events as he and Victoria
moved to the bedroom. To the contrary, he maintains he was too
emotionally overcome to engage in any deliberative thinking at that
time. The trial court also could infer from Mary’s age—an age at
which children are utterly dependent on their caregiving parent—
that Mary would be alert to her mother’s location and behavior
during the violence that immediately followed the argument. The
one-bedroom apartment was small, and Mary therefore must have
been in close physical proximity to her parents during the murder
itself, even if she did not enter the bedroom. Finally, Mary was with
Torres in the entire aftermath of the murder and was present in the


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                         Opinion of the Court

apartment where the body of her mother was found when the police
arrived.

¶16          A child’s mere presence in a home where an offense has
occurred does not, standing alone, fulfill the statutory requirement
absent some evidence that the child was aware of that offense. As
noted above, the purpose of this aggravating factor is to inflict a
harsher punishment on those who harm children by exposing them
to violence. See Burgett, 226 Ariz. 85, ¶ 6, 244 P.3d at 91. To hold
that a child who was entirely unaware of the offense was “present”
would be inconsistent with that purpose. But the evidence here,
albeit circumstantial, provided a sufficient basis for the trial court to
infer that Mary had some sensory experience of the offense itself.
Accordingly, we conclude the court did not abuse its discretion in
finding that Torres committed a domestic violence offense in the
presence of a child pursuant to § 13-701(D)(18).

                     Criminal Restitution Order

¶17          At sentencing, the trial court imposed various fees and
assessments, which it then “reduced to a Criminal Restitution Order
[CRO], with no interest, penalties or collection fees to accrue while
the defendant is in the Department of Corrections.” Although
Torres does not raise this issue on appeal, this court has determined
that in these circumstances, based on A.R.S. § 13–805(C), 2 “the
imposition of a CRO before the defendant’s probation or sentence
has expired ‘constitutes an illegal sentence, which is necessarily
fundamental, reversible error.’” State v. Lopez, 231 Ariz. 561, ¶ 2, 298
P.3d 909, 910 (App. 2013), quoting State v. Lewandowski, 220 Ariz. 531,
¶ 15, 207 P.3d 784, 789 (App. 2009).




      2We cite the version of the statute in effect at the time Torres
committed his offense. Section 13-805 has been amended and may
now permit the imposition of a CRO at sentencing in certain
circumstances. 2012 Ariz. Sess. Laws, ch. 269, § 1.


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                      STATE v. TORRES
                     Opinion of the Court

                         Conclusion

¶18         For the foregoing reasons, Torres’s conviction and
sentence for second-degree murder are affirmed. We vacate the
CRO entered at sentencing.




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