                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                      FRANCISCO TORRES, Appellant.

                             No. 1 CA-CR 13-0756
                              FILED 06-17-2014


            Appeal from the Superior Court in Navajo County
                        No. S0900CR201200693
                The Honorable Robert J. Higgins, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Colby Mills
Counsel for Appellee

The Rigg Law Firm, P.L.L.C., Pinetop
By Brett R. Rigg
Counsel for Appellant
                            STATE v. TORRES
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the
Court, in which Judge Maurice Portley and Judge Andrew W. Gould
joined.


W I N T H R O P, Presiding Judge:

¶1            Francisco Torres appeals his convictions and sentences for
kidnapping, aggravated assault, and aggravated domestic violence.
Torres argues the charge of aggravated assault was duplicitous; the trial
court erred when it sentenced him as a category two repetitive offender
and when it imposed consecutive sentences; and the court erred when it
admitted evidence of his paternity of two of the victim’s children. 1 For the
reasons that follow, we affirm Torres’s convictions and sentences.

                            BACKGROUND 2

¶2            Torres is the father of the victim’s three children. On the
date of the incident, the victim attempted to leave Torres’s home as she
and Torres argued. When the victim got outside, Torres grabbed the
victim and choked her until she lost consciousness and collapsed to the
ground. When the victim regained consciousness, she started to scream.
Torres grabbed the victim, dragged her back into his home, and told her
he was going to “get rid of” her. Torres eventually got on top of the
victim as she lay on the floor and choked her again until she lost

1       Torres identifies a fifth issue in his list of “issues presented for
review,” but does not address that issue within his opening brief. The
failure to argue a claim on appeal constitutes abandonment and waiver of
that claim. State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995).

2      “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, 967 P.2d 106, 111 (1998) (citation
omitted). In our review of the record, we resolve any conflict in the
evidence in favor of sustaining the verdict. State v. Guerra, 161 Ariz. 289,
293, 778 P.2d 1185, 1189 (1989). We do not weigh the evidence, however.
That is the function of the jury. See id.



                                     2
                           STATE v. TORRES
                          Decision of the Court

consciousness.    When the victim regained consciousness, Torres
apologized and allowed her to leave, but they continued to argue as she
did so.

¶3             A jury convicted Torres as indicated above. The jury also
acquitted him of a second count of aggravated domestic violence and two
counts of influencing a witness. The trial court sentenced Torres to
presumptive prison terms of 9.25 years for kidnapping, 4.5 years for
aggravated assault, and 2.25 years for aggravated domestic violence. The
court ordered the sentences for kidnapping and aggravated assault to run
concurrently, but ordered the sentence for aggravated domestic violence
to run consecutive to the sentence for kidnapping. We have jurisdiction
over Torres’s timely appeal pursuant to the Arizona Constitution, Article
6, Section 9, and Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)
(West 2014), 3 13-4031, and 13-4033.

                               ANALYSIS

      I.     The Charge of Aggravated Assault

¶4           The amended charge of aggravated assault read:

                              COUNT TWO

           AGGRAVATED ASSAULT/DV, A CLASS 4 FELONY

             On or about August 14th, 2012, in the vicinity of 1206
      Short Street, Winslow, Navajo County, Arizona, Francisco
      Torres, recklessly caused any physical injury to [the victim]
      and intentionally or knowingly impeded [her] normal
      breathing or circulation of blood by applying pressure to the
      throat or neck or by obstructing the nose and mouth either
      manually or through the use of an instrument, and any of
      the circumstances exists that are set forth in § 13-3601(A),
      paragraphs 1, 2, 3, 4, 5 or 6, to wit: outside the residence of
      1206 Short Street, in violation of ARS §§ 13-1204(B), 13-3601,
      13-701, 13-702, 13-801, a class 4 felony.

(Emphasis in original.)



3      We cite the current version of the statutes unless changes material
to our decision have occurred since the relevant date.



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                           STATE v. TORRES
                          Decision of the Court

¶5             Torres argues this charge was duplicitous because it did not
allege which act of choking was the basis of the aggravated assault and,
therefore, it created the risk of a non-unanimous jury verdict.

¶6            A charging document is duplicitous if it charges separate
crimes in the same count. State v. Hamilton, 177 Ariz. 403, 410, 868 P.2d
986, 993 (App. 1993). Courts prohibit duplicitous charging documents
“because they fail to give adequate notice of the charge, present a hazard
of a non-unanimous jury verdict, and make a precise pleading of double
jeopardy impossible in the event of a later prosecution.” Id. (citation
omitted). We review de novo whether a charging document is duplicitous.
State v. Ramsey, 211 Ariz. 529, 532, ¶ 5, 124 P.3d 756, 759 (App. 2005).

¶7           We find no error. First, the charge was not duplicitous. The
victim testified about two choking incidents in which she lost
consciousness – one that occurred outside the residence and one that
occurred inside the residence. The charge alleged Torres committed
aggravated assault based solely on events that occurred “outside the
residence.” That the victim testified Torres choked her outside “again”
when he changed his and/or the victim’s physical positions during the
attack outside the residence is not evidence of a separate and distinct
incident of choking that raises the specter of duplicity. 4 A charging
document is legally sufficient if it informs the defendant of the essential
elements of the charge, is sufficiently definite to permit the defendant to
prepare to defend against the charge, and affords the defendant protection
from subsequent prosecution for the same offense. State v. Rickard-Hughes,
182 Ariz. 273, 275, 895 P.2d 1036, 1038 (App. 1995). The charge of
aggravated assault was sufficient to serve these purposes.

¶8            Second, even if we assume arguendo that the charge was
duplicitous, there is still no error because Torres suffered no harm. To
prevail based on an arguably duplicitous charging document, a defendant
must demonstrate actual prejudice. Hamilton, 177 Ariz. at 410, 868 P.2d at
993. The jury instruction on aggravated assault required the jury to find
the assault occurred “outside the residence of 1210½ Short Street.” The
instruction further provided, “You have heard testimony about two
choking incidents. You must unanimously find which, if any, of these
incidents the Defendant is guilty of.” We presume juries follow their

4      The victim provided this testimony when defense counsel asked on
cross-examination whether Appellant had choked her “again” outside his
residence before dragging her inside.



                                    4
                            STATE v. TORRES
                           Decision of the Court

instructions. State v. Dunlap, 187 Ariz. 441, 461, 930 P.2d 518, 538 (App.
1996). The jury instructions were more than adequate to ensure the jury’s
verdict on the charge of aggravated assault was unanimous and protect
Torres from any harm from an allegedly duplicitous charge.

¶9            Finally, “Arizona Rule of Criminal Procedure 13.5(e)
provides that ‘no issue concerning a defect in the charging document shall
be raised other than by a motion filed in accordance with Rule 16.’ Rule
16.1(b) requires that such motions be filed at least twenty days before the
trial; Rule 16.1(c), in turn, provides that any motion not timely filed is
‘precluded.’” State v. Anderson, 210 Ariz. 327, 335-36, ¶ 16, 111 P.3d 369,
377-78, supplemented by 211 Ariz. 59, 116 P.3d 1219 (2005). The portions of
the aggravated assault charge that Torres claims rendered it duplicitous
existed in the original charge, yet Torres raised no claims of duplicity until
two days before trial. Therefore, any challenge to the charging document
was precluded as untimely, and the trial court did not err when it
dismissed Torres’s challenges to the information as untimely. See id. at
336, ¶¶ 17-18, 111 P.3d at 378. 5

       II.    Sentencing Torres as a Category Two Repetitive Offender

¶10           Torres argues the trial court erred when it sentenced him as
a category two repetitive offender pursuant to A.R.S. § 13-703(B)(2), which
provides in relevant part that a person shall be sentenced as a category
two repetitive offender if the person has one historical prior felony
conviction. A category two repetitive offender is subject to the enhanced
sentencing provisions of A.R.S. § 13-703(I). Due to the age and class of
Torres’s prior convictions, the only conviction he had that could qualify as
a “historical prior felony conviction” was his conviction for aggravated
driving under the influence of intoxicating liquor (“DUI”) while a minor

5      Torres did not invite any error because he did nothing to inject the
allegedly duplicitous language into the case. Torres filed a motion to
dismiss the information as duplicitous, and the court denied his motion.
That Torres later agreed to the State’s proposed amendments to the
information in exchange for jury instructions that ensured a unanimous
verdict for aggravated assault is of no matter. The original charge for
aggravated assault contained the identical, allegedly duplicitous language
of the amended charge; the original charge simply contained additional
language. Therefore, the language at issue would have been part of the
case regardless whether the court granted the motion to amend and
regardless of any action by Torres.



                                      5
                            STATE v. TORRES
                           Decision of the Court

was present. See A.R.S. § 28-1383(A)(3). Torres committed that offense in
July 2000, and the sentencing court initially placed him on probation in
April 2001. A conviction for aggravated DUI is a historical prior felony
conviction regardless of the age of the offense. A.R.S. § 13-105(22)(a)(iv).

¶11             Torres argues the trial court could not sentence him as a
category two repetitive offender because the State failed to prove he had a
prior conviction for aggravated DUI and because the trial court failed to
formally state on the record that it found he had a prior conviction for
aggravated DUI. When the State alleges a defendant has a prior
conviction, the State must properly prove the existence of that prior
conviction. State v. Nash, 143 Ariz. 392, 403, 694 P.2d 222, 233 (1985). The
State must prove both that (1) the defendant in the present case and the
one convicted in the prior case are the same person, and (2) there was a
prior conviction. Id. In the absence of the admission of a defendant, the
State must prove a prior conviction with extrinsic evidence, such as a
certified copy of a judgment of conviction or minute entry, expert
comparison of a fingerprint card with a fingerprint on the sentencing
minute entry, testimony of witnesses, or photographs of the defendant.
See, e.g., id. Here, the State sought to prove the existence of Torres’s prior
aggravated DUI through the testimony of a fingerprint expert who
compared the fingerprints on Torres’s fingerprint card with the
fingerprints on court sentencing documents.

¶12            The record on this issue is not a model of clarity. The State
sought to prove Torres had several prior convictions for misdemeanors
and felonies, not just the one historical prior felony conviction necessary
to sentence him as a category two repetitive offender. The fingerprint
expert compared the fingerprints from certified copies of numerous court
sentencing documents with the fingerprints on Torres’s fingerprint card
from the Winslow Police Department. During discussion of those
documents, the witness and counsel did not always identify the exhibit
number of the document to which they referred, thereby making it
difficult to identify the specific document discussed at various points in
the hearing. To further muddy the waters, when the witness and counsel
did reference documents by exhibit number, they referenced exhibits
previously admitted at trial numbered one through five as well as new
exhibits admitted at the sentencing hearing numbered one through eight.
This resulted in the witness and counsel discussing different exhibits
marked one through five without always identifying if it was trial exhibit
one, etc., or hearing exhibit one, etc. Further, discussions of exhibits
frequently occurred without reference to the contents of the exhibit
sufficient to permit identification of the exhibit.


                                      6
                            STATE v. TORRES
                           Decision of the Court

¶13           Regardless of the clarity of the record, however, when we
view the record in its entirety, the State did ultimately prove Torres was
the same person convicted of aggravated DUI in 2000. When the State
asked the witness if he had compared the fingerprints on trial exhibits one
through five and hearing exhibits one through eight, the witness
responded, “Through -– I compared these three that were previously
admitted to this print here on the documents, Superior Court of Arizona,
County of Navajo, with CR numbers 002000387 [sic] and 0020030636. And
I compared this particular -– it’s a thumb print, to the prints, the known
prints of Mr. Torres.” The witness then testified all the prints he
compared came from the same person - Torres. The witness later testified
he had determined the fingerprint found on an unidentified document
with cause number 20000387 was Torres’s. Although the witness did not
identify all the exhibit numbers for the documents he examined with
cause number CR 0020000387, he testified that all of the prints he
examined on the documents with cause number CR 0020000387 matched
Torres’s known prints. CR 0020000387 was the cause number for Torres’s
prior aggravated DUI case. Every certified document in the record with
that cause number that has a fingerprint on it identifies Torres as the
defendant and identifies his conviction for aggravated DUI. Despite the
record’s shortcomings, this was sufficient to prove Torres had a historical
prior felony conviction.

¶14            Regarding the trial court’s failure to formally state on the
record that the State had successfully proven Torres had a historical prior
felony conviction, the absence of such language does not mandate
reversal. Once the fingerprint expert completed his testimony, the State
asked the court twice to rule on whether Torres had a historical prior
felony conviction. The court indicated it would rule after Torres’s counsel
had completed his argument. During his argument, defense counsel
argued repeatedly that the State had failed to prove Torres had a prior
felony conviction for DUI. When defense counsel completed his remarks,
the trial court did not formally rule that the State had successfully proven
Torres had a historical prior felony conviction. The court, however, did
discuss with counsel the presumptive sentences for a category two
repetitive offender, and in turn sentenced Torres to the presumptive
sentences for a category two repetitive offender. Although the court
should have made a formal finding on the record, the record sufficiently
demonstrates the court found the State successfully proved Torres had a
historical prior felony conviction.




                                     7
                            STATE v. TORRES
                           Decision of the Court

      III.   The Imposition of Consecutive Sentences

¶15           Torres argues the trial court erred when it imposed
consecutive sentences. In the title of this section of his opening brief,
Torres argues the trial court erred when it ordered the sentence for
aggravated domestic violence to run consecutive to the sentence for
kidnapping. The only argument and analysis Torres provides in his
opening brief, however, concerns how the trial court erred when it
ordered the sentence for aggravated assault to run consecutive to the
sentence for kidnapping. (The court ordered the sentence for aggravated
assault to run concurrent with the sentence for kidnapping, not
consecutive to that sentence.) This is not a mere typographical error.
Torres’s entire argument in his opening brief is presented in the context of
kidnapping and aggravated assault, the elements of those two offenses,
and the evidence admitted at trial to support those two counts.

¶16           “In Arizona, opening briefs must present significant
arguments, supported by authority, setting forth an appellant’s position
on the issues raised.” State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382,
1390 (1989). Torres’s opening brief presents no argument or authority to
support the proposition that the trial court erred when it ordered the
sentence for aggravated domestic violence to run consecutive to the
sentence for kidnapping. The failure to argue a claim on appeal
constitutes abandonment and waiver of that claim. Id.; Bolton, 182 Ariz. at
298, 896 P.2d at 838. Identifying the issue correctly in the title of this
portion of the brief is not sufficient to present the issue for appellate
review. See State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101, 94 P.3d 1119, 1147
n.9 (2004) (“Merely mentioning an argument is not enough[.]”). Further,
although Torres presents a new argument in his reply brief regarding how
the court should not have ordered the sentence for aggravated domestic
violence to run consecutive to the sentence for kidnapping - and does so
without acknowledging he argued the wrong issue in his opening brief -
we will not consider arguments or issues first raised in a reply brief. See
State v. Watson, 198 Ariz. 48, 51, ¶ 4, 6 P.3d 752, 755 (App. 2000).

¶17          Even if Torres had argued the correct issue, we would find
no error. Under A.R.S. § 13-116, “[a]n act or omission which is made
punishable in different ways by different sections of the laws may be
punished under both, but in no event may sentences be other than
concurrent.”   To determine whether the trial court could impose
consecutive sentences, we apply the following test:




                                     8
                            STATE v. TORRES
                           Decision of the Court

       The first step in the analysis is to determine which crime
       arising out of the incident is the “ultimate crime.” The
       “ultimate crime” is the crime which has the factual nexus to
       all the other crimes. The ultimate crime will usually be the
       primary object of the episode, and it will usually be the most
       serious crime committed on the given occasion. Once the
       ultimate crime is determined, the test to be applied is as
       follows. If, considering all of the facts of the incident and
       subtracting the facts necessary to convict of the ultimate
       crime, the remaining facts satisfy the elements of the
       remaining crime(s), then multiple punishments may be
       permissible. Assuming that this first step is satisfied,
       multiple punishments are ordinarily permissible only if (1)
       given the entire criminal episode, the defendant could have
       committed the ultimate crime without committing the other
       crime(s) or (2) in committing the other crime(s), the
       defendant caused the victim to suffer additional risk or harm
       beyond that inherent in the ultimate crime.

State v. Eagle, 196 Ariz. 27, 33, ¶ 27, 992 P.2d 1122, 1128 (App. 1998)
(emphasis in original) (citations omitted), aff’d, 196 Ariz. 188, 994 P.2d 395
(2000).

¶18            To convict Torres of kidnapping as charged, the jury had to
find he knowingly restrained the victim with the intent to inflict death,
physical injury, or a sexual offense on her. See A.R.S. § 13-1304(A)(3). As
charged in this case, the word “’[r]estrain’ means to restrict a person’s
movements without consent, without legal authority, and in a manner
which interferes substantially with such person’s liberty, by either moving
such person from one place to another or by confining such person.”
A.R.S. § 13-1301(2). Restraint is without consent if it is accomplished by
physical force. A.R.S. § 13-1301(2)(a). When we subtract the facts
necessary to support the elements of kidnapping, the remaining facts
satisfy the elements of aggravated domestic violence. To convict Torres of
aggravated domestic violence as charged, the jury had to find he and the
victim had a child together, he recklessly caused a physical injury to the
victim, and he did so within eighty-four months of committing two other
domestic violence offenses.       See A.R.S. §§ 13-3601.02(A) (defining
aggravated domestic violence); -3601(A)(2) (defining “domestic violence”
offenses); -1203(A)(1) (defining assault by recklessly causing any physical
injury). Based on the evidence introduced at trial, Torres could have
committed the kidnapping without committing aggravated domestic
violence based on reckless assault. The aggravated domestic violence also


                                      9
                             STATE v. TORRES
                            Decision of the Court

caused the victim to suffer additional risk or harm beyond that inherent in
ordinary kidnapping, which does not require any physical harm.
Therefore, the trial court did not err when it ordered that Torres serve his
sentence for aggravated domestic violence consecutive to his sentence for
kidnapping.

       IV.    Admission of Evidence of Paternity

¶19           Torres contends the trial court erred when it admitted
evidence the State did not disclose until the second day of trial. During
Torres’s opening statement, defense counsel argued the victim had been
Torres’s girlfriend for thirteen years, but they did not live together.
Counsel further argued the victim would not be able to testify “that she
has ever had a paternity test or [has] any legal document” proving
Torres’s paternity of the victim’s children. As noted above, one element of
aggravated domestic violence as charged in this case is that the defendant
and the victim must have had a child together.

¶20            Before trial began the next morning, the State disclosed a
superior court judgment and order that not only identified Torres and the
victim as the parents of two children, but ordered Torres to pay child
support. The State argued the judgment and order were relevant to rebut
Torres’s opening statement. Defense counsel objected, arguing the State
had not previously disclosed the evidence. The court held Torres’s
opening statement “opened the door” to the evidence and overruled the
objection. The trial court admitted the judgment and order during the
State’s direct examination of the victim.

¶21            We review for an abuse of discretion the court’s decision not
to exclude evidence due to untimely disclosure. See State v. Rienhardt, 190
Ariz. 579, 586, 951 P.2d 454, 461 (1997). Due process requires that the State
disclose material evidence to a defendant in a timely manner. State v.
Gulbrandson, 184 Ariz. 46, 63, 906 P.2d 579, 596 (1995). The State must
provide the defendant a list of all documents the State “intends to use at
trial.” Ariz. R. Crim. P. 15.1(b)(5). “[T]he underlying principal of Rule 15
is adequate notification to the opposition of one’s case-in-chief in return
for reciprocal discovery so that undue delay and surprise may be avoided
at trial by both sides.” State v. Stewart, 139 Ariz. 50, 59, 676 P.2d 1108, 1117
(1984) (citation omitted).

¶22         We find no abuse of discretion. First, Torres never identified
lack of paternity as a defense to the count of aggravated domestic
violence. Once a defendant proceeds with a previously undisclosed



                                      10
                            STATE v. TORRES
                           Decision of the Court

defense, the State may introduce rebuttal evidence that it has not
otherwise disclosed. State v. Sanchez, 130 Ariz. 295, 300-01, 635 P.2d 1217,
1222-23 (App. 1981). Second, Torres testified he had seen the judgment
and order before. Also, defense counsel acknowledged Torres was aware
of the paternity proceedings, but could not file a response. There is no
violation of Rule 15.1 for the failure to disclose a document if the
defendant knows of the existence of the document, knows the contents of
the document, and can obtain the document just as easily as the State. See
State v. Armstrong, 208 Ariz. 345, 357, ¶¶ 57-58, 93 P.3d 1061, 1073 (2004).
Finally, Torres testified several times that he was the father of the victim’s
children. The judgment and order were, therefore, cumulative of other
evidence that established Torres’s paternity.

                                  CONCLUSION

¶23           We affirm Torres’s convictions and sentences.




                              :gsh




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