                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 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.

                         JIMMY BURUATO, Appellant

                              No. 1 CA-CR 12-0593
                               FILED 5-13-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR 2010-123480-001
                 The Honorable Robert E. Miles, Judge

                                    AFFIRMED


                                    COUNSEL

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

The Nolan Law Firm, P.L.L.C., Mesa
By Cari McConeghy Nolan
Counsel for Appellant
                          STATE V. BURUATO
                          Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Patricia K. Norris joined.


P O R T L E Y, Judge:

¶1            Jimmy Buruato appeals his convictions on four counts of
burglary in the third degree and the resulting sentences. For reasons that
follow, we affirm.

                FACTS 1 AND PROCEDURAL HISTORY

¶2            Two pickup trucks were burglarized in a Scottsdale parking
garage on April 30, 2010. Items were taken from each truck after the lock
cylinder on the driver’s door had been “punched.” A surveillance camera
video showed a Chevrolet Tahoe pulling up to one of the trucks for about
ten minutes and leaving. The video also showed an unidentified person
exiting the Tahoe while stopped next to one of the trucks.

¶3            Approximately twenty minutes earlier, a full-sized van was
burglarized while parked in the nearby CrackerJax parking lot. The video
from the surveillance cameras in that parking lot showed a Chevrolet
Tahoe driving around the lot and pulling up next to the van three times.
The video showed that a man got out of the Tahoe and removed the
Tahoe’s license plate. The video also showed that the third time the Tahoe
parked next to the van, a man was shown entering the van through the
driver’s door and later returning to the Tahoe and driving away.

¶4            The police were able to read the Tahoe license plate from the
CrackerJax high-definition surveillance cameras before it was removed. A
records check revealed that Buruato was the registered owner of the
Tahoe. When comparing a photograph of Buruato to the man in the
CrackerJax video, the case agent found that the man in the video looked
similar to Buruato.


1 We view the facts in the light most favorable to sustaining the jury’s
verdict. State v. Cropper, 205 Ariz. 181, 182, ¶ 2, 68 P.3d 407, 408 (2003),
supplemented by 206 Ariz. 153, 76 P.3d 424 (2003).



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                           STATE V. BURUATO
                           Decision of the Court

¶5            The police began surveillance on Buruato. On May 5, 2010,
the police observed him and his wife leave their home in a Tahoe with the
same license plate number as the one in the surveillance video from
CrackerJax. They followed the Tahoe to various retail businesses in
Phoenix and Tempe, and watched as the Tahoe was parked and Buruato
and his wife got out of the Tahoe on several occasions. The police also
observed Buruato peering into vehicles parked near his Tahoe.

¶6            The police followed Buruato and his wife, and they
eventually drove to an Ahwatukee Foothills golf course and parked next
to a telephone company van in the parking lot. The police saw Buruato
get out of the Tahoe, punch the lock of the passenger side door with a
large screw driver, enter the van and remove items. Buruato then
returned to the Tahoe, drove through the parking lot and twice stopped
next to other vehicles but only looked inside those vehicles. Buruato then
drove his wife home in the Tahoe.

¶7           The police arrested Buruato later that day at an auto body
shop. After obtaining a search warrant, the police found items in the
Tahoe and the Buruatos’ house belonging to the victims of the four
burgled vehicles.

¶8            Buruato was charged with four counts of burglary in the
third degree, each a class 4 felony. 2 The State further alleged that Buruato
had three prior historical felony convictions and that multiple aggravating
circumstances existed.

¶9            Prior to trial, the trial court granted Buruato’s motion to
sever Count 4, the count concerning the burglary on May 5, from Counts 1
through 3. The State, however, subsequently moved to use the evidence
relating to Courts 1 through 3 at the trial on Court 4 and vice versa
pursuant to Arizona Rule of Evidence (“Rule”) 404(b). Following a
hearing, the court granted the State’s motions because the evidence
pertaining to Counts 1 through 3 and Count 4 would be cross-admissible.
In response to the ruling, Buruato requested that the court join the four
counts in one trial in the interest of presenting his defense and judicial
economy. His request was granted.


2 Buruato was also charged with misconduct involving weapons
(prohibited possessor) because a weapon was found in the Tahoe when he
was arrested. The charge was severed from the others and the State had it
dismissed after Buruato was convicted for the burglaries.



                                     3
                           STATE V. BURUATO
                           Decision of the Court

¶10           At trial, Buruato stipulated that the four vehicles had been
burglarized, but presented an alibi defense and defended himself solely
on the basis that he was not the person who committed the burglaries.
The jury convicted Buruato on all four burglaries. The jury also found
that the State proved its alleged aggravating circumstances. The trial
court subsequently held a presentence hearing and found that Buruato
had three prior historical felony convictions, and sentenced Buruato as a
repetitive offender to concurrent and consecutive presumptive prison
terms totaling 13.5 years. Buruato timely appealed.

                               DISCUSSION

              A.     Joinder of Counts

¶11         Buruato first argues that the trial court erred by rejoining the
four burglary counts after initially severing Count 4 from Counts 1
through 3. We disagree.

¶12            After the trial court severed Court 4 from the other burglary
counts, the State subsequently moved to use the facts relating to Count 4
in the trial on the other counts and vice versa pursuant to Rule 404(b).
When the court granted the State’s motion, and faced with the ruling,
Buruato requested that the court rejoin all four counts in one trial. The
State argues that Buruato invited the error and should not be allowed to
raise it on appeal. “By the rule of invited error, one who deliberately leads
the court to take certain action may not upon appeal assign that action as
error.” Schlecht v. Schiel, 76 Ariz. 214, 220, 262 P.2d 252, 256 (1953),
abrogated in part on other grounds as recognized in A Tumbling-T Ranches v.
Paloma Inv. Ltd. P’ship, 197 Ariz. 545, 552, ¶ 23, 5 P.3d 259, 266 (App. 2000);
accord State v. Lucero, 223 Ariz. 129, 138, ¶ 31, 220 P.3d 249, 258 (App. 2009)
(“[I]f the party complaining on appeal affirmatively and independently
initiated the error, he . . . [is] barred from raising the error on appeal.”).
Buruato only requested the four counts be rejoined for trial after the court
granted the State’s Rule 404(b) motion. As a result, even though we might
be able to invoke the invited doctrine error, we will review the merits of
the argument.

¶13           Arizona Rule of Criminal Procedure (“Rule”) 13 governs the
joinder and severance of offenses. Rule 13.3(a)(1) provides that charges
that have “the same or similar character” can be charged together. Ariz.
R. Crim. P. 13.3(a)(1). Further, when similar offenses are pending against
a defendant but have not been joined for one trial, the trial court is
authorized to join them “in whole or in part . . . provided that the ends of



                                         4
                            STATE V. BURUATO
                            Decision of the Court

justice will not be defeated thereby.” Ariz. R. Crim. P. 13.3(c). Thus, the
four burglary charges were properly joined in the original indictment
pursuant to Rule 13.3, subject to the severance provisions of Rule 13.4.

¶14            Rule 13.4 provides that when two or more offenses have
been joined only by virtue of Rule 13.3(a)(1), the defendant is entitled to
severance as a matter of right “unless evidence of the other offense or
offenses would be admissible under applicable rules of evidence if the
offenses were tried separately.” Ariz. R. Crim. P. 13.4(b); accord State v.
Prion, 203 Ariz. 157, 162, ¶ 30, 52 P.3d 189, 194 (2002). Here, at Buruato’s
request, Count 4 was severed from Counts 1 through 3. However, after
considering the briefing and argument on State’s Rule 404(b) motion, the
court ruled that the evidence of the offenses alleged in Counts 1 through 3
would be admissible at the trial on Count 4 and vice versa under Rule
404(b). We review the evidentiary ruling for abuse of discretion. State v.
Villalobos, 225 Ariz. 74, 80, ¶ 18, 235 P.3d 227, 233 (2010).

¶15            Buruato argues that the trial court erred by granting the
State’s motion in limine that the evidence of the offenses alleged in Counts
1 through 3 and Count 4 was cross-admissible under Rule 404(b). He
contends the evidence would only serve to unfairly prejudice him in the
eyes of the jury as a “bad person” or a person who “has a propensity for
committing crimes.” Although Rule 404(b) precludes evidence of other
crimes, wrongs or acts to prove the character of a person, it explicitly
provides such evidence may be admissible “for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Other act evidence is
admissible if the other act is shown by clear and convincing evidence and
(1) the evidence is offered for a proper purpose; (2) the evidence is
relevant; (3) the evidence is not unfairly prejudicial; and (4) the trial court
gives an appropriate limiting instruction upon request. State v. Hargrave,
225 Ariz. 1, 8, ¶ 10, 234 P.3d 569, 576 (2010); State v. Lee, 189 Ariz. 590, 599,
944 P.2d 1204, 1213 (1997) (noting that any error “will not justify reversal
if the evidence of other crimes would have been admissible at separate
trials under Rule 404(b)”).

¶16             The court ruled that evidence of the vehicle burglaries on
April 30 and May 5 was cross-admissible to prove identity, a proper non-
character purpose. The identity exception to Rule 404(b) applies if
identity is in issue and “the pattern and characteristics of the
crimes . . . [are] so unusual and distinctive as to be like a signature.” State
v. Stuard, 176 Ariz. 589, 597, 863 P.2d 881, 889 (1993) (citation omitted)
(internal quotation marks omitted); accord State v. Jackson, 186 Ariz. 20, 27,


                                       5
                            STATE V. BURUATO
                            Decision of the Court

918 P.2d 1038, 1045 (1996) (“[T]he modus operandi of and the
circumstances surrounding the two crimes must be sufficiently similar as
to be like a signature.” (citation omitted) (internal quotation marks
omitted)). “While identity in every particular is not required, there must
be similarities between the offenses in those important aspects ‘when
normally there could be expected to be found differences.’” State v.
Roscoe, 145 Ariz. 212, 216, 700 P.2d 1312, 1317 (1984) (quoting State v.
Jackson, 124 Ariz. 202, 204, 603 P.2d 94, 96 (1979)).

¶17            Buruato’s defense to all of the charges was misidentification.
He claimed that he did not commit the offenses and presented an alibi
defense with various friends and family members testifying that he was
elsewhere when the burglaries were committed. Thus, a proper non-
character purpose for cross-admissibility of the evidence would be to
establish the identity of the perpetrator of the offenses.

¶18            Second, the evidence of the burglaries on one date was
relevant to proving the identity of the person who committed the offense
or offenses on the other date. The offenses on both dates involved highly
similar and distinctive patterns and characteristics. In all four burglaries,
the burglar used a Chevrolet Tahoe and parked it next to the vehicle to be
burglarized. Entry was then gained through the identical means of
“punching” the vehicle door lock. Further, the burglaries were committed
in parking areas with multiple vehicles that would tend to minimize the
perpetrator from being viewed as out of place if any passerby happened
to see him next to the victim’s vehicle. In addition, the vehicles selected
for burglaries were large trucks and vans, which served to hide the
perpetrator’s activities from the public. Because the police witnessed
Buruato commit the burglary on May 5, the evidence of that offense was
relevant to establishing that he was also the person who committed the
burglaries on April 30, given the essentially identical nature of those
earlier vehicle burglaries. See Morris K. Udall et al., Arizona Practice: Law
of Evidence § 84, at 183-84 (3d ed. 1991) (“If the identity of the accused is in
issue, and if the behavior of the accused both on the occasion charged and
on some other occasion is sufficiently distinctive, then proof that the
accused was involved on the other occasion tends to prove his
involvement in the crime charged.”); see also Ariz. R. Evid. 401 (stating
evidence is relevant when it has “any tendency” to make a material fact
“more or less probable than it would be without the evidence”).

¶19          The evidence of the burglaries on April 30 was likewise
cross-admissible to establish the identity of the perpetrator who
committed the burglary on May 5. Notwithstanding that multiple police


                                       6
                            STATE V. BURUATO
                            Decision of the Court

officers identified Buruato as the person who they saw commit that
burglary, Buruato’s position was that he was not the person the police
followed and watched break into the van that day. Additionally, he
pointed out that there were no pictures or video taken by the police
during their surveillance on that date to support their identification. The
video from surveillance cameras of the burglaries on April 30, which
constituted independent visual evidence of the Chevrolet Tahoe and the
person who used that vehicle to commit those burglaries, would tend to
establish that Buruato was the person who committed those burglaries
and therefore corroborate the officers’ testimony that he was the person
they saw commit the similar burglary in the same distinctive manner on
May 5.

¶20            Third, the trial court acted within its broad discretion in
ruling that the probative value of the evidence of the other burglaries was
not substantially outweighed by the danger of unfair prejudice. See State
v. Harrison, 195 Ariz. 28, 33, ¶ 21, 985 P.2d 513, 518 (App. 1998) (“The trial
court is in the best position to balance the probative value of challenged
evidence against its potential for unfair prejudice. Thus, it has broad
discretion in deciding the admissibility.”), aff'd, 195 Ariz. 1, 985 P.2d 486
(1999). Because identity was the central issue at trial, the court could
reasonably conclude that the probative value of the evidence of the other
burglaries on this issue was not substantially outweighed by any potential
risk of unfair prejudice. See State v. Starks, 122 Ariz. 531, 534, 596 P.2d 366,
369 (1979) (holding no error by trial court in not precluding evidence as
unfairly prejudicial where evidence went directly to central issue).
Moreover, the court instructed the jury to consider the evidence as it
related to each count separately, thereby minimizing any prejudice. See
State v. Day, 148 Ariz. 490, 494, 715 P.2d 743, 747 (1986), abrogated on other
grounds by State v. Ives, 187 Ariz. 102, 927 P.2d 762 (1996).

¶21           Finally, the trial court ruled that a limiting instruction on the
appropriate use of other act evidence would be available. However,
because the four burglary counts were tried in one trial and the jury had
to determine whether the State proved each element of each charge
beyond a reasonable doubt, there was no need for a separate limiting
instruction. Consequently, the court did not abuse its discretion by ruling
the facts relating to all the burglaries were cross-admissible under Rule
404(b) or by rejoining the charges for one trial.




                                       7
                           STATE V. BURUATO
                           Decision of the Court

              B.     Admission of Other Act Evidence

¶22          Buruato next argues that the trial court erred in admitting
evidence of “other acts” in violation of Rule 404(b). We disagree.

¶23          First, because all counts were joined at trial there was no
separate other act evidence admitted at trial. The evidence of the four
burglaries was no longer “other act” evidence, but instead evidence of the
charged offenses being presented to the jury. See Ariz. R. Evid. 404(b)
(precluding “evidence of other crimes, wrongs or acts” (emphasis added)).

¶24           Second, even if the Rule 404(b) ruling caused Buruato to
request one trial for tactical or strategic purposes, as noted above, supra ¶¶
15-21, our review of the record does not reveal that the Rule 404(b) ruling
constituted an abuse of discretion. Consequently, the trial court did not
err.

              C.     Witness in Jail Clothing

¶25           Buruato also argues that the trial court erred by permitting a
defense witness to testify while wearing jail clothing. Buruato asserts that
he was prejudiced because having the witness testify in jail clothing
would “improperly affect the credibility the jury gave to the witness.”
Although there was some discussion prior to trial about trying to get the
witness, who was in custody on an unrelated matter, to appear in civilian
clothing, Buruato did not raise an objection when the witness testified at
trial in jail clothing. Absent an objection, our review is limited to
fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d
601, 607 (2005).

¶26            Buruato filed a motion in limine which, among other things,
sought to ensure that the witness did not reveal his pending charges, but
did not raise the issue of having the witness dress out in civilian clothing.
During the discussion about the motion in limine with the court before the
start of the second day of trial, Buruato stated that “as far as whether or
not the detention officers will dress him out, I’m not sure that’s something
we’re checking on” and “[i]f I can’t get him dressed out, he’s going to be
in the jail stripes, then obviously there’s nothing I can do about that.”
Moreover, when the witness appeared at trial in jail clothing, Buruato
never objected or sought time to get him into civilian clothing.

¶27          There is nothing in the record that suggests that Buruato
objected to the witness appearing in jail clothing. Moreover, although
Arizona has not addressed the issue, other jurisdictions have concluded


                                      8
                             STATE V. BURUATO
                             Decision of the Court

that absent an objection, reversible error does not occur when a defense
witness testifies in jail clothing. See, e.g., Cherry v. State, 496 S.E.2d 764, 767
(Ga. App. 1998) (noting that defendant failed to object to witness wearing
prison attire “on the grounds that the dress of the witnesses placed his
character in evidence”); State v. Abraham, 451 S.E.2d 131, 141 (N.C. 1994)
(noting that defendant failed to object to witnesses wearing prison attire
and shackles); see also Hightower v. State, 154 P.3d 639, 642 (Nev. 2007)
(“The burden is on the defendant to timely request that the incarcerated
witness be permitted to testify in civilian clothing, and the failure to make
such a request is deemed a waiver of the right.”). Given the fact that
Buruato did not request his witness to be in civilian clothing during his
testimony and did not object when the witness appeared in jail clothing,
the court did not err, much less commit prejudicial fundamental error, by
not addressing the issue.

               D.     Testimony about Surveillance Video

¶28            Prior to trial, Buruato moved to preclude the State from
eliciting testimony from investigators that he was the person in the
surveillance videos of the April 30 burglaries. Buruato argued that such
opinion testimony would be improper because it would constitute
testimony on the ultimate issue of guilt. The court granted Buruato’s
motion in limine, ruling that the State’s witnesses could not give their
opinion that the person in the videos was in fact Buruato. The court
further ruled, however, that investigators were permitted to testify that
they started watching Buruato and later arrested him because they
thought he looked like the person in the surveillance videos.

¶29            At trial, the case agent heading the burglary investigation
testified that after running the records check on the license plate seen in
the CrackerJax surveillance video, he obtained a certified photograph of
Buruato and “looked at the surveillance image of the person in the Chevy
Tahoe at CrackerJax, and [] found that person looked similar to Mr.
Buruato.” He also testified about a still photograph from the surveillance
video: “I look at it and I see the Hispanic male looking just like Mr.
Buruato, and the characteristics I see in this are consistent with Mr.
Buruato from the day that I did the investigation.” Buruato argues that
the trial court erred by permitting this testimony because the question of
whether he was the person in the surveillance video “was clearly an
ultimate issue of fact for the jury.” We review a trial court’s decision on
the admissibility of evidence for abuse of discretion. State v. Amaya–Ruiz,
166 Ariz. 152, 167, 800 P.2d 1260, 1275 (1990).



                                        9
                           STATE V. BURUATO
                           Decision of the Court

¶30            The Arizona Rules of Evidence permit opinion testimony on
“ultimate issues.” Ariz. R. Evid. 704(a); State v. Williams, 132 Ariz. 153,
160, 644 P.2d 889, 896 (1982); see also State v. Doerr, 193 Ariz. 56, 63, ¶ 26,
969 P.2d 1168, 1175 (1998) (“Lay witnesses may give opinion testimony,
even as to the ultimate issue, when it is ‘rationally based on the perception
of the witness and . . . helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue.’” (quoting Ariz. R. Evid.
701)). The one exception in a criminal case, however, is that a witness
“must not state an opinion about whether the defendant did or did not
have a mental state or condition that constitutes an element of the crime
charged or of a defense.” Ariz. R. Evid. 704(b). In addition, although a
witness may give an opinion on an ultimate issue, a witness is not
permitted to tell the jury how to decide a case. State v. Sosnowicz, 229 Ariz.
90, 95, 97, ¶¶ 17, 25, 270 P.3d 917, 922, 924 (App. 2012).

¶31           Here, the challenged testimony did not tell the jury how to
decide the case or even that Buruato was in fact the person depicted in the
surveillance video. The case agent testified that he arranged to have
Buruato watched because his picture “looked similar” to the person in the
surveillance video and that Buruato was arrested because the police
believed he was the person who committed the burglaries. The issue of
whether Buruato was in fact the person in the surveillance video was left
entirely to the jury’s decision. There was no abuse of discretion by the
trial court in admitting the case agent’s testimony concerning the
surveillance video.

              E.     Testimony about “Certified” Photographs

¶32           Buruato also argues that the court erred by permitting
testimony that investigators viewed “certified” photographs of him. He
contends the references to “certified” photographs constituted improper
vouching and was unfairly prejudicial. Although Buruato claims on
appeal that he objected to the State’s witnesses referring to “certified”
photographs, the discussion at trial reflects Buruato was “fine” with the
term “certified photo” to show the distinction between his booking photo
and an MVD photo. Because he did not object to the use of the term
“certified photo,” our review is limited to fundamental error. Henderson,
210 Ariz. at 567, ¶ 19, 115 P.3d at 607.

¶33         The use of the term “certified photo” by investigators was
neither improper vouching nor unfairly prejudicial. Impermissible
vouching takes two forms: “(1) where the prosecutor places the prestige
of the government behind its witness; [and] (2) where the prosecutor


                                      10
                          STATE V. BURUATO
                          Decision of the Court

suggests that information not presented to the jury supports the witness’s
testimony.” State v. King, 180 Ariz. 268, 276–77, 883 P.2d 1024, 1032–33
(1994) (citation omitted) (internal quotation marks omitted).         The
testimony by the State’s witnesses regarding viewing “certified”
photographs of Buruato does not implicate either form of vouching.
Buruato agreed that the State’s witnesses would refer to the photographs
of Buruato they viewed as “certified” simply to avoid informing the jury
that one of the photographs was a booking photograph.

¶34           Nor did the use of the term “certified photo” result in any
unfair prejudice. There is nothing in the record, like a jury question about
the term, that would begin to suggest that the jury was concerned with the
term or its meaning, or thought that the term meant something other than
the photographs were official or authenticated photographs. And, there is
nothing in the record to suggest that the references to viewing “certified”
photographs increased the witnesses’ credibility. Consequently, we find
no error, much less prejudicial fundamental error, by the mutual
agreement to have the witnesses use the term “certified photo” when
referring to photographs of Buruato.

             F.     Pecuniary Gain as Aggravating Factor

¶35           Finally, Buruato contends the trial court erred by
considering an improper aggravating factor when imposing the sentence.
Because Buruato failed to raise this issue below, our review is again
limited to fundamental error. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at
607. We generally review a sentence imposed by the trial court for abuse
of discretion, but whether a given aggravating factor may be used in
sentencing presents a question of law we review de novo. State v. Tschilar,
200 Ariz. 427, 435, ¶ 32, 27 P.3d 331, 339 (App. 2001).

¶36           Buruato argues the court should not have considered the fact
he committed the burglaries for pecuniary gain as an aggravating factor
because he “could not have committed the crimes of burglary as alleged,
without having received items of pecuniary value.” Even if pecuniary
gain was an element of the offenses, the court would not be precluded
from using it as an aggravating factor. An element of an offense may also
serve as a sentencing aggravator when it is a specifically enumerated
aggravating circumstance in the Arizona sentencing scheme. State v. Lara,
171 Ariz. 282, 284-85, 830 P.2d 803, 805-06 (1992). Commission of an
offense for pecuniary gain is specifically enumerated as an aggravating




                                    11
                          STATE V. BURUATO
                          Decision of the Court

circumstance in Arizona Revised Statutes section 13-701(D)(6). 3 As a
result, the court did not err by considering pecuniary gain as an
aggravating circumstance when imposing the sentence. See State v. Greene,
192 Ariz. 431, 444, ¶ 62, 967 P.2d 106, 119 (1998).

                            CONCLUSION

¶37          For the above reasons, we affirm Buruato’s convictions and
sentences.




                                    :MJT




3 We cite to the current version of the statute absent changes material to
this decision.



                                   12
