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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    EDGAR PABON GARCIA, Appellant.

                             No. 1 CA-CR 14-0699
                               FILED 10-27-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-146864-002
                The Honorable Dawn M. Bergin, Judge

                                  AFFIRMED


                                   COUNSEL

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

The Hopkins Law Office PC, Phoenix
By Cedric Martin Hopkins
Counsel for Appellant
                            STATE v. GARCIA
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Peter B. Swann joined.


J O N E S, Judge:

¶1            Edgar Garcia appeals his convictions and sentences for one
count of aggravated robbery, one count of kidnapping, and one count of
first-degree murder. We conclude the trial court did not err in denying his
motion for judgment of acquittal nor in denying his motion to dismiss for
pre-indictment delay. Accordingly, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2            In August 2005, Garcia arrived at the home of an
acquaintance, Fabian Mendez, in a Cadillac owned by the victim.
According to Mendez’s testimony, Garcia knocked on his door and asked if
he wanted to rob the victim, who was drunk in the back seat of the car.
Mendez said no but asked Garcia for a ride to the mall. Garcia agreed to
take Mendez to the mall and, while in the mall’s parking lot, again tried to
persuade Mendez to help rob the victim. Mendez again said no. Garcia
then asked if Mendez would go with him to run some errands and buy beer.
Mendez agreed, and they began driving west.

¶3              Mendez testified that Garcia pulled off the road around 339th
Avenue and Indian School Road and asked Mendez to open the back door
of the car. Mendez got out of the car and opened the back door, and Garcia
dragged the victim out of the car. Garcia then told Mendez he was going
to kill the victim and asked Mendez for help as he was dragging the victim
away from the car. Mendez declined and stayed with the car.

¶4           Garcia returned to the car and grabbed a knife. After some
time passed, Mendez started the car, honked the horn, revved the engine,
and told Garcia he would leave if Garcia did not hurry up. Shortly


1      We view the facts in the light most favorable to upholding the jury’s
verdict and resolve all reasonable inferences against the defendant. State v.
Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citing State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).


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                            STATE v. GARCIA
                           Decision of the Court

thereafter, Garcia returned to the car with the victim’s wallet, admitted to
having killed the victim, and put the knife in the car’s center console.

¶5             Garcia drove the car back toward Phoenix, stopping once for
gas and beer. Shortly after leaving the gas station, a police officer pulled
Garcia over for speeding. The officer approached the car and asked if there
were any weapons in the car, whereupon Garcia turned over the knife
which had no noticeable blood on it. Mendez then announced he was
“going to run,” grabbed his beer, exited the car, and ran away.2 Although
Mendez was also charged with first-degree murder, kidnapping, and
aggravated robbery, he pled guilty to manslaughter in exchange for
testifying truthfully at Garcia’s trial.

¶6            Garcia was arrested for failing to present identification when
requested by the officer, and the victim’s wallet and identification were
found in Garcia’s pocket during a search incident to arrest. Mendez
successfully escaped but was later arrested. When the officer asked Garcia
why he was driving a car registered in someone else’s name, Garcia told the
officer the victim had sent Garcia and Mendez to Phoenix in the car
following a drug transaction in California.

¶7            In October 2005, the Drug Enforcement Administration
intercepted a telephone call between Garcia and another individual where
Garcia discussed a need to bury a body. Based on this information,
deputies with the Maricopa County Sheriff’s Office were able to locate the
victim’s body. In November 2005, the victim’s car was processed, and
blood stains were found on the back side of the front passenger seat which
contained the victim’s DNA. The knife, which was mistakenly left in the
trunk of the officer’s car until November 2005, was tested in 2006 and 2010,
but no blood was found.

¶8            On September 13, 2012, Garcia was indicted on one count of
aggravated robbery in violation of Arizona Revised Statutes (A.R.S.) section
13-1903(A),3 one count of kidnapping in violation of A.R.S. § 13-1304(A)(6),
and one count of first-degree murder in violation of A.R.S. § 13-1105(A)(2).
In December 2013, Garcia moved to dismiss the charges for pre-indictment
delay “of almost seven years.” The trial court denied the motion, and the
case proceeded to trial. At trial, following the State’s presentation of its


2     Mendez successfully escaped but was later arrested.

3     Absent material changes from the relevant date, we cite a statute’s
current version.


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                             STATE v. GARCIA
                            Decision of the Court

case, Garcia’s counsel moved for judgment of acquittal on all charges,
pursuant to Arizona Rule of Criminal Procedure 20, which the court also
denied. The jury convicted Garcia on all counts, and the trial court
sentenced Garcia to concurrent sentences of fifteen years’ imprisonment for
aggravated robbery, twenty-one years’ imprisonment for kidnapping, and
life imprisonment for first-degree murder. Garcia timely appealed, and we
have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and
-4033(A)(1).

                               DISCUSSION

¶9             Garcia argues the trial court erred in denying his motion to
dismiss for pre-indictment delay. We review the trial court’s decision on a
motion to dismiss for an abuse of discretion. State v. Hansen, 156 Ariz. 291,
294 (1988) (citing State v. Pickett, 121 Ariz. 142, 145 (1978)). Garcia also
argues the court erred in denying his motion for judgment of acquittal
because the State presented insufficient evidence for a reasonable jury to
convict him of aggravated robbery. We review the sufficiency of the
evidence to support a conviction de novo. See State v. West, 226 Ariz. 559,
562, ¶ 15 (2011) (citing State v. Bible, 175 Ariz. 549, 595 (1993)). We address
each argument in turn.

I.     The Trial Court Did Not Err in Denying Garcia’s Motion to
       Dismiss for Pre-Indictment Delay.

¶10            The statute of limitations is a defendant’s primary protection
against due process violations arising from stale prosecutions. See State v.
Broughton, 156 Ariz. 394, 397 (1988) (citing United States v. Lovasco, 431 U.S.
783, 789 (1977), and State v. Van Arsdale, 133 Ariz. 579, 581 (App. 1982)).
Here, Garcia’s motion to dismiss was not premised upon expiration of the
statute of limitations, but rather the State’s pre-indictment delay of “nearly
seven years.”4

¶11          A dismissal for pre-indictment delay requires the defendant
show “the prosecution intentionally delayed proceedings to gain a tactical
advantage over the defendant or to harass him, and that the defendant has
actually been prejudiced by the delay.” Id. (citations omitted). While any


4      Garcia does not dispute that the State filed the charges against him
within the applicable limitations periods. See A.R.S. § 13-107(A) (“A
prosecution for any homicide . . . may be commenced at any time.”), (B)(1)
(setting seven-year limitations period for aggravated robbery and
kidnapping).


                                      4
                              STATE v. GARCIA
                             Decision of the Court

delay in bringing criminal charges results in some degree of prejudice, the
defendant “must demonstrate prejudice above and beyond that which is
inherent in the workings of a clogged judicial system” by proof that is
“definite and not speculative.” See id. at 397-98 (citations omitted).

¶12             Garcia fails to satisfy either requirement. Although Garcia
argues at length that the State has failed to justify the delay, the burden is
on Garcia, and he has presented no proof that the State intentionally
delayed prosecution to obtain a tactical advantage or to harass him. See
State v. Lacy, 187 Ariz. 340, 346 (1996) (holding a motion to dismiss for pre-
indictment delay must fail “[a]bsent proof of an intentional delay for
strategic or harassment purposes”) (citing Stoner v. Graddick, 751 F.2d 1535,
1541 (11th Cir. 1985)).

¶13             Moreover, the prejudice Garcia asserts is merely speculative.
He contends “any evidence that could have been collected at or near the
scene is lost,” and “videos” were no longer available. There is no proof that
on-the-scene evidence or unidentified video evidence ever existed, let alone
any indication as to whether it would have bolstered Garcia’s defense.5
Therefore, Garcia’s argument fails, and the trial court did not err in denying
Garcia’s motion to dismiss for pre-indictment delay.

II.    The Trial Court Did Not Err in Denying Garcia’s Motion for
       Judgment of Acquittal.

¶14            A court must enter judgment of acquittal “if no substantial
evidence supports the conviction.” State v. Davolt, 207 Ariz. 191, 212, ¶ 87
(2004) (citing Ariz. R. Crim. P. 20). “Substantial evidence is that which
reasonable persons could accept as sufficient to support a guilty verdict
beyond a reasonable doubt.” Id. A court cannot, however, enter a judgment
of acquittal “[w]hen reasonable minds may differ on inferences drawn from
the facts.” State v. Lee, 189 Ariz. 590, 603 (1997) (citing State v. Landrigan, 176
Ariz. 1, 4 (1993)).




5      Garcia also urges us to presume prejudice where he argues there
were nearly seven years of pre-indictment delay. Garcia cites no support
for this proposition, which is contrary to established case law. See
Broughton, 156 Ariz. at 397 (“[A] defendant has a heavy burden to prove
pre-indictment delay caused actual prejudice.”) (citing United States v.
Valentine, 783 F.2d 1413, 1416 (9th Cir. 1986)).



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                             STATE v. GARCIA
                            Decision of the Court

¶15          We test the sufficiency of the evidence “against the statutorily
required elements of the offense.” State v. Pena, 209 Ariz. 503, 505, ¶ 8 (App.
2005). Here, Garcia only argues insufficient evidence existed to convict him
of aggravated robbery. Under A.R.S. § 13-1903, “[a] person commits
aggravated robbery if in the course of committing robbery as defined in
§ 13-1902, such person is aided by one or more accomplices actually
present.”6 Garcia does not dispute that sufficient evidence supports a guilty
finding on the underlying robbery but asserts there is insufficient evidence
that Mendez aided him as an accomplice in committing the robbery to
support a conviction for aggravated robbery.

¶16           By its terms, A.R.S. § 13-1903 requires proof that another
person, the accomplice, assisted “in the course of committing robbery.” An
accomplice is a person who, intending to promote or facilitate the robbery:

       1.     Solicits or commands another person to commit the
       offense; or

       2.    Aids, counsels, agrees to aid or attempts to aid another
       person in planning or committing an offense[; or]

       3.   Provides means or opportunity to another person to
       commit the offense.

A.R.S. § 13-301. “In the course of committing” is defined as “includ[ing]
any of the defendant’s acts beginning with the initiation and extending
through the flight from a robbery.” A.R.S. § 13-1901(2).

¶17            We conclude sufficient evidence exists upon which a
reasonable jury could find Mendez aided Garcia in the course of robbing
the victim. Although mere presence at the scene of a robbery is not
sufficient for a jury to find one person aided in its commission, see State v.
Villegas, 101 Ariz. 465, 467 (1966) (citing State v. Sims, 99 Ariz. 302, 308
(1965)), a reasonable jury could conclude Mendez was not “merely
present,” but rather had the intent to assist Garcia in robbing the victim.
Although Mendez testified he repeatedly turned down Garcia’s requests to
help rob the victim, the evidence indicates Mendez nevertheless got into the
car knowing Garcia intended to rob the victim, opened the door of the car

6      Pursuant to A.R.S. § 13-1902(A), “[a] person commits robbery if in
the course of taking any property of another from his person or immediate
presence and against his will, such person threatens or uses force against
any person with intent either to coerce surrender of property or to prevent
resistance to such person taking or retaining property.”


                                      6
                            STATE v. GARCIA
                           Decision of the Court

so Garcia could remove the apparently unconscious victim after they
stopped in a desolate area of Maricopa County, stayed with the car even
after Garcia returned to retrieve a knife, turned the car on, commanded
Garcia to “hurry up” during the time period Garcia was admittedly robbing
and killing the victim, observed Garcia getting back into the car with the
knife and the victim’s wallet, and fled from a traffic stop made by a police
officer shortly after the two had left the scene of the robbery and murder.
Given the existence of substantial evidence, the trial court had no discretion
to grant Garcia’s motion for judgment of acquittal of aggravated robbery,
and we find no error.

                              CONCLUSION

¶18           For the foregoing reasons, we affirm Garcia’s convictions and
sentences.




                                  :ama




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