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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       OCTAVIO GARCIA, Appellant.

                             No. 1 CA-CR 19-0051
                             No. 1 CA-CR 19-0059
                              FILED 01-07-2020


           Appeal from the Superior Court in Maricopa County
                        No. CR2010-133671-001
                        No. CR2013-003468-001
                  The Honorable Gregory Como, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
                             STATE v. GARCIA
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Paul J. McMurdie joined.


P E R K I N S, Judge:

¶1          Octavio Garcia appeals his conviction and sentence for first
degree murder of an unborn child. For the following reasons, we affirm.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2            Garcia had been dating Ana Figueroa for several years before
she became pregnant around 2013. In early 2013, Garcia and Ana had a
series of arguments, primarily about money and Ana’s pregnancy. In the
early morning hours of March 6, 2013, Garcia called the police from a Circle
K to report that Ana had been shot in the head. Police officers responded to
Ana’s apartment and found her lying in her bed with blood coming from
the top of her head. Fire department personnel arrived shortly after and
confirmed Ana was dead. Police confirmed Ana had suffered a gunshot
wound to her head.

¶3            The state charged Garcia with one count of first-degree
murder (Count 1), one count of first-degree murder of an unborn child
(Count 2), and one count of misconduct involving weapons (Count 3),
which was later dismissed. The state alleged aggravating circumstances
and historical prior felony convictions and filed a notice of its intent to seek
the death penalty, which it later withdrew.

¶4            At the jury trial, the state called the medical examiner who
examined both Ana and her unborn child. At the end of the state’s case in
chief, Garcia moved for a judgment of acquittal on Count 2 under Arizona
Rule of Criminal Procedure 20, which the court denied. The jury found
Garcia guilty on Counts 1 and 2, and Garcia timely appealed.

                               DISCUSSION

¶5            Garcia argues the trial court erred in denying his motion for
judgment of acquittal on Count 2 because the state failed to establish the
cause of the unborn child’s death. We review a trial court’s ruling on a Rule



                                       2
                             STATE v. GARCIA
                            Decision of the Court

20 motion for judgment of acquittal de novo. State v. West, 226 Ariz. 559, 562,
¶ 15 (2011).

¶6             “[T]he court must enter a judgment of acquittal on any
offense charged . . . if there is no substantial evidence to support a
conviction.” Ariz. R. Crim. P. 20(a). “‘Substantial evidence . . . is such proof
that reasonable persons could accept as adequate and sufficient to support
a conclusion of defendant’s guilt beyond a reasonable doubt.’” West, 226
Ariz. at 562, ¶ 16 (quoting State v. Mathers, 165 Ariz. 64, 67 (1990)). “[T]he
relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Id. (quoting
Mathers, 165 Ariz. at 66). “Both direct and circumstantial evidence should
be considered” to determine whether substantial evidence supports a
conviction when reviewing a ruling on a Rule 20 motion. Id.

¶7            First-degree murder “applies to an unborn child at any stage
of its development[,]” with some exceptions inapplicable here. A.R.S. § 13-
1105(C). The trial court instructed the jury that this crime required proof
that Garcia “intentionally or knowingly, with premeditation, caused the
death of Ana[], and thereby caused the death of an unborn child.”

¶8             The state presented sufficient evidence for the jury to
conclude beyond a reasonable doubt that Garcia, by causing Ana’s death,
also caused the death of her unborn child. The medical examiner testified
that he found no indication of issues with the unborn child before Ana’s
death and concluded that Ana’s death necessarily resulted in the death of
the unborn child. He could not say with absolute certainty that the unborn
child was alive when Ana was murdered, and also testified that, if the
unborn child had died within a week before Ana’s death, it was possible he
would not be able to detect any difference. Based on the evidence, however,
a jury could reasonably conclude that Garcia caused the death of the unborn
child by killing Ana, which would require the trial court to deny the Rule
20 motion. See State v. Lee, 189 Ariz. 590, 603 (1997) (“When reasonable
minds may differ on inferences drawn from the facts, the case must be
submitted to the jury, and trial court has no discretion to enter a judgment
of acquittal.”). The trial court did not err in denying Garcia’s Rule 20
motion.




                                       3
                   STATE v. GARCIA
                  Decision of the Court

                     CONCLUSION

¶9   We affirm.




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

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