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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                         LOLO MUNGIA, Appellant.

                             No. 1 CA-CR 14-0638
                               FILED 5-5-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-108794-002
                  The Honorable Cynthia Bailey, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

Janelle A. McEachern, Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
                           STATE v. MUNGIA
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Randall M. Howe joined.


C A T T A N I, Judge:

¶1            Lolo Mungia was convicted of two counts of aggravated
assault and one count of discharging a firearm at a structure. For reasons
that follow, we affirm his convictions and the resulting sentences.

             FACTS AND PROCEDURAL BACKGROUND

¶2            One evening in February 2012, around 30 guests gathered for
a party at a house near Pierce Park in Phoenix. The guests congregated in
the garage until the party ended around midnight. As the guests were
leaving, a white truck drove up and parked across the street. Mungia and
Joseph Fuentes were among several people in the truck.

¶3            A scuffle began in the street between a few guests who were
leaving the party and a man from the truck. The man was short and thin
with a fade haircut, and he was wearing a white t-shirt. After that scuffle
ended, he walked up the driveway toward the party and got into a fistfight
with another guest. The fight expanded as more men from the truck
(including a “heavyset” man in a black t-shirt) and more men from the party
(including victims J.P. and A.C.) joined in.

¶4            Eventually, the fight began to break up, but as some of the
guests returned to the garage, the situation escalated again, with
individuals from both groups arguing loudly. J.P. then saw the man in the
white t-shirt pull a pistol from his waistband and fire several shots at the
house and the garage.

¶5            After the man in the white t-shirt stopped firing, J.P. saw a
man in a black shirt with green on the front aim and then fire a pistol at him
from the street. J.P. then drew a .45 caliber pistol and returned fire. A.C.,
who was still outside, also saw a heavyset man in a black shirt with green
lettering pull out a pistol and shoot several shots at him and toward the
house.




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                           STATE v. MUNGIA
                           Decision of the Court

¶6             Immediately after the shooting, Phoenix police officers
followed a white truck leaving the area. Although the officers activated
their sirens, the truck did not pull over but instead sped up, driving to a
nearby hospital. There, officers arrested the driver, Fuentes, who was
wearing a white shirt. Mungia—wearing two black shirts, one with green
lettering and both punctured by bullet holes—got out from the passenger
side and was taken into the hospital for treatment of several gunshot
wounds.

¶7           Although J.P. was unable to identify the black-shirted
shooter, A.C. later identified Mungia as the gunman in black both in a
photographic lineup and later in court.

¶8           Police recovered a nine-millimeter Taurus pistol from the
floorboards under the driver’s seat of the white truck. At the house where
the shooting took place, police found 23 nine-millimeter bullet casings in
the driveway and the street—11 from the Taurus pistol and 12 from
another, unidentified pistol—as well as 11 .45 caliber casings in the front
yard. Police officers also noted multiple bullet strikes to the house, the
garage, and nearby vehicles.

¶9            In an interview at the hospital, Mungia denied knowing who
had shot him, claiming that he had been shot unexpectedly when walking
near Pierce Park. He further denied that either he or Fuentes had fired a
gun that day.

¶10          After leaving the hospital, Mungia was arrested and charged
with four counts of aggravated assault and two counts of discharging a
firearm at a structure.1 At trial, with the State’s agreement, the court
granted Mungia’s request for judgment of acquittal as to one of the
aggravated assault counts and one of the discharging a firearm counts. The
jury found Mungia guilty of discharging a weapon at a residential structure
and of aggravated assaults against J.P. and A.C., but acquitted him of
aggravated assault against another alleged victim.

¶11        The court sentenced Mungia to concurrent terms of
imprisonment, the longest being 8.5 years. With the superior court’s



1      The indictment also charged Mungia with four counts of threatening
or intimidating and one count of assisting a criminal street gang, but those
charges were dismissed before trial.



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                            STATE v. MUNGIA
                            Decision of the Court

authorization, Mungia timely filed a delayed notice of appeal. We have
jurisdiction under Arizona Revised Statutes (“A.R.S.”) § 13-4033.2

                               DISCUSSION

¶12          Mungia argues that the State failed to present substantial
evidence establishing that he was the shooter. We review the sufficiency of
the evidence de novo. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011).

¶13            Substantial evidence to support a conviction is evidence,
either direct or circumstantial, that “reasonable persons could accept as
sufficient to support a guilty verdict beyond a reasonable doubt.” State v.
Davolt, 207 Ariz. 191, 212, ¶ 87 (2004); see also West, 226 Ariz. at 562, ¶ 16.
“If reasonable [minds] may fairly differ as to whether certain evidence
establishes a fact in issue, then such evidence must be considered as
substantial.” State v. Tison, 129 Ariz. 546, 553 (1981). We do not reweigh
the evidence or the jury’s assessment of credibility. See State v. Williams, 209
Ariz. 228, 231, ¶ 6 (App. 2004). Reversal is warranted only if “there is a
complete absence of probative facts to support the conviction.” State v. Soto-
Fong, 187 Ariz. 186, 200 (1996) (citation omitted).

¶14            Mungia asserts that witness descriptions of the shooter varied
significantly, from thin to heavy and from white shirt to black shirt (with or
without lettering). But the evidence suggested two different shooters using
two different guns, and the witnesses’ descriptions were largely consistent
when considering each of the two shooters.

¶15            Multiple witnesses described one shooter as a “skinny kid” in
a white shirt, who was involved in the fighting and then shot at the house.
And both of the aggravated assault victims in Mungia’s case (A.C. and J.P.)
stated that a heavyset man in a black shirt with green on the front fired
shots at them and toward the house. A.C. specifically identified Mungia,
both in a photographic lineup and in court, as the heavyset shooter in black.

¶16           Mungia challenges A.C.’s identification testimony, claiming
that it was not credible. But credibility determinations are reserved
exclusively for the jury. State v. Cox, 217 Ariz. 353, 357, ¶ 27 (2007). Mungia
had an opportunity to challenge A.C.’s credibility at trial, and we defer to
the jury’s credibility assessment. See Williams, 209 Ariz. at 231, ¶ 6.



2     Absent material revisions after the relevant date, we cite a statute’s
current version.

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                             STATE v. MUNGIA
                             Decision of the Court

¶17           Mungia also asserts that no physical evidence tied him to the
gun. Physical evidence is not necessary, however, if other evidence
establishes guilt beyond a reasonable doubt. State v. Cañez, 202 Ariz. 133,
149, ¶ 42 (2002). In light of A.C.’s identification, J.P.’s consistent description
of the shooter in black, and the black shirt with green lettering Mungia was
wearing when he arrived at the hospital, substantial evidence supported
the jury’s conclusion that Mungia was the shooter in black, and thus
substantial evidence supported his convictions.

                                CONCLUSION

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




                                   :ama




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