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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  OSCAR RICHARD TORRES, Appellant.

                             No. 1 CA-CR 17-0424
                               FILED 6-19-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-144313-001
                The Honorable Michael W. Kemp, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Law Offices of Michael P. Denea PLC, Phoenix
By Michael P. Denea, Aaron J. Moskowitz
Counsel for Appellant
                           STATE v. TORRES
                          Decision of the Court



                     MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge James P. Beene joined.


C A M P B E L L, Judge:

¶1           Oscar Richard Torres appeals his convictions and sentences
for burglary in the first degree, armed robbery, aggravated assault,
disorderly conduct, and kidnapping. For the following reasons, we affirm.

            FACTS AND PROCEDURAL BACKGROUND1

¶2            On the evening of September 19, 2015, R.A. and J.V. (jointly,
“Victims”) sat in R.A.’s fenced backyard, drinking and socializing. Shortly
before 9:00 p.m., Torres and two other men entered the yard, uninvited,
through a back gate. Brandishing guns, the three trespassers ordered
Victims into the house. Rather than comply, R.A. urged J.V. to run, hoping
he would be able to contact the police. Frightened, J.V. escaped over the
fence and hid in a neighbor’s yard. The gunmen forced R.A. into the house
and hit him after R.A. denied having any drugs, money, or any other
valuables in the house.

¶3           As R.A. dripped blood, the gunmen escorted him through the
house into a back bedroom. At that point, believing the gunmen had left
and concerned for his friends’ welfare, J.V. returned. The gunmen forced
both Victims to the bedroom floor, threatening to kill them. The gunmen
again demanded money, drugs, and anything else of value, which R.A.
denied having. One of the intruders hit him again with a gun.

¶4           Torres then held Victims at gunpoint while the other
intruders searched the house for valuables. When those gunmen opened
another bedroom door, however, and discovered a woman in the house,
they “freaked out” and ran from the home. Once Torres realized his
accomplices had fled, he also left.

¶5           Unarmed, Victims followed Torres and spotted him a short
distance away, walking down the street away from the house while holding

1      We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


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                             STATE v. TORRES
                            Decision of the Court

a shotgun. When Torres realized Victims were pursuing him, he turned and
fired a shot that hit the pavement and debris struck R.A.’s right leg. J.V.
grabbed Torres by the neck and Victims eventually pushed Torres to the
ground. Ultimately Torres was disarmed and J.V. held him at gunpoint
until police officers arrived.

¶6             The State charged Torres with one count of burglary in the
first degree (Count 1), two counts of armed robbery (Counts 2 and 3), three
counts of aggravated assault, (Counts 4, 5, and 6), one count of disorderly
conduct (Count 7), two counts of kidnapping (Counts 8 and 9), and one
count of misconduct involving weapons (Count 10).2 The State also alleged
numerous aggravating circumstances and that Torres had a prior felony
conviction.

¶7          At trial, defense counsel theorized that Victims fabricated a
home invasion to obfuscate their own criminal wrongdoing. Indeed,
defense counsel argued Victims assaulted Torres, without provocation, as
he walked by R.A.’s home on the evening in question, and then staged a
home invasion to prevent a police investigation into their illegal drug
operations.

¶8            After an eight-day trial, a jury found Torres guilty as charged
and found multiple aggravating circumstances for each count. Torres pled
guilty to misconduct involving weapons and the superior court sentenced
him to concurrent, maximum sentences for Counts 1 through 9 and a
concurrent, presumptive sentence for Count 10, totaling 28 years’
imprisonment. 17-0424

                               DISCUSSION

¶9            As his sole issue on appeal, Torres contends the superior court
improperly permitted the State to call J.V. to testify. Specifically, Torres
argues that J.V.’s invocation of the Fifth Amendment and refusal to answer
questions, after he provided testimony inculpating Torres, deprived Torres
of his constitutional right to confront witnesses against him and present a
complete defense.

¶10           More than a year before trial, defense counsel moved for the
appointment of counsel for J.V. As part of that motion, defense counsel
explained that police officers had found several items that did not belong
to J.V. during their investigation, suggesting, “[a]t the very least,” that J.V.
had taken another person’s identity. Without any objection from the State,

2      The count of misconduct involving weapons was severed for trial.


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                            Decision of the Court

the court appointed counsel for J.V. Shortly thereafter, defense counsel
notified the court that J.V.’s immigration status may be relevant to his
credibility and motive in the case.

¶11           Less than a week before trial, the State moved in limine to
preclude any evidence that “the victims [were] not legal citizens and
therefore ha[d] a motive to lie.” Acknowledging that “it appears accurate
the victims [were] undocumented aliens,” the State nonetheless argued that
their immigration status was irrelevant to the charges.

¶12           Before voir dire commenced on the first day of trial, the
superior court asked whether defense counsel objected to the State’s motion
in limine. Defense counsel stated he had no objection insofar as the
prosecutor avowed that no benefit of any kind had been conferred on
Victims. Assuaging defense counsel’s concerns, the prosecutor avowed that
Victims had not received any benefit or special status. Based on these
assurances, the superior court granted the State’s motion in limine.

¶13           On the third day of trial, the prosecutor disclosed to defense
counsel that J.V. had reported that he had entered the United States for the
first time immediately before the charged offenses occurred. Defense
counsel filed a notice of intent to cross-examine J.V. regarding his
immigration status. Defense counsel argued the evidence was “classic”
impeachment material.

¶14             Before J.V. testified, his court-appointed attorney told the
court that he had advised J.V. to exercise his Fifth Amendment right not to
incriminate himself if asked about his entry into the United States or any
other questions that may suggest he violated his federal tourist visa. In
response, defense counsel argued that he should be permitted to question
J.V. regarding the terms of his visa, asserting evidence that J.V. had violated
his visa would tend to prove a motive “to fabricate his version of events”
against Torres. In the event J.V. invoked the Fifth Amendment in response
to such questioning, defense counsel asked the court to strike “his entire
testimony” because such an invocation would deprive Torres of his
constitutional right to confront his accusers. The court advised defense
counsel that his cross-examination of J.V. regarding any possible visa
violation would be unrestricted, but declined defense counsel’s invitation
to strike J.V.’s testimony in its entirety if he invoked the Fifth Amendment,
characterizing such a ruling as premature, stating “we’re just going to have
to see where the questioning goes.” After J.V.’s appointed attorney inquired
whether the State would be willing to extend use immunity to J.V., the




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                             STATE v. TORRES
                            Decision of the Court

prosecutor answered that he would grant “use immunity as . . . to any false
reporting to law enforcement.”

¶15            Later that day, when J.V. testified on direct examination, he
repeatedly invoked the Fifth Amendment when asked: (1) whether he was
involved in drug trafficking, (2) whether he hid drugs in R.A.’s home the
night of the offense, and (3) whether he was refusing to answer questions
out of concern he may face negative “immigration consequences.” J.V.
likewise repeatedly invoked the Fifth Amendment on cross-examination in
response to questions regarding: (1) how many times he had entered the
United States, (2) if he cleaned the house after the gunmen had left, (3) a
shrine in R.A.’s home that depicts a saint to whom drug traffickers
frequently direct their prayers, (4) his failure to answer police when
questioned regarding the name of an associate, (5) his immigration status,
(6) restrictions on his federal tourist visa, (7) whether he violated the visa’s
terms, and (8) whether he lied to the State when he claimed he had never
been to R.A.’s home before the night in question.

¶16           The following day, without explanation, defense counsel
withdrew his motion to strike J.V.’s testimony. Before closing argument, the
superior court revisited the issue to ensure the record “clearly” reflected
defense counsel’s intent, directly asking defense counsel whether he wished
J.V.’s testimony stricken. Explaining he had withdrawn his motion to strike
as a “strategic decision,” defense counsel confirmed that he was no longer
moving to strike J.V.’s testimony.

¶17            During closing argument, defense counsel did not suggest
that the jury should draw an adverse inference from J.V.’s invocation of the
Fifth Amendment, but he did contend that J.V.: (1) was not credible, and (2)
had fabricated the home invasion because he was trafficking drugs and was
unlawfully in the country. In rebuttal, the prosecutor argued there was no
evidence that Victims were drug-traffickers, but further asserted that even
“drug traffickers” and “illegal immigrants . . . deserve justice.”

¶18            We generally review evidentiary rulings that implicate the
Confrontation Clause de novo. State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006).
In this case, however, Torres did not move to preclude J.V.’s testimony and
expressly withdrew his motion to strike J.V.’s testimony in the superior
court. We therefore review his claim that the court should have sua sponte
precluded or stricken J.V.’s testimony only for fundamental, prejudicial
error. See State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20 (2005). Error is
fundamental when it affects the foundation of the case, deprives the
defendant a right essential to his defense, or is of such magnitude that the


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                             STATE v. TORRES
                            Decision of the Court

defendant could not possibly have received a fair trial. Id. at ¶ 19 (citation
omitted).

¶19           The Sixth Amendment affords an accused the right to
confront and cross-examine the witnesses against him. State v. Dunlap, 125
Ariz. 104, 105 (1980). Although this right is fundamental, witnesses have a
corresponding right to invoke the Fifth Amendment privilege against self-
incrimination. State v. Robison, 125 Ariz. 107, 109 (1980). In cases in which
these constitutional rights conflict, both “must be respected.” Id.

¶20           The superior court has discretion to permit counsel to call a
witness who has avowed that he or she will refuse to testify. State v. Corrales,
138 Ariz. 583, 588 (1983). In exercising this discretion, the court “must
determine whether the interest of the person calling the witness outweighs
the possible prejudice resulting from the inferences the jury may draw from
the witness’ exercise of the privilege.” Id. When the scope of the prospective
invocation is unknown, and “it is possible” that the witness will answer
some questions, “testing of the privilege may properly be done before the
jury.” Id.

¶21           Under such circumstances, the court must determine whether
the witness’s refusal to answer some questions impinges upon the
defendant’s confrontation right, such that the witness’s testimony should
be stricken. Robison, 125 Ariz. at 109-10. The relevant question is whether
the witness’s invocation deprives the defendant of his ability to “test the
truth of the direct testimony” and defend against the charge. See id.

¶22            Applying this framework to these facts, the superior court did
not abuse its discretion by failing to sua sponte preclude or strike J.V.’s
testimony. Before the State called J.V. to the stand, his appointed counsel
notified the court that he had advised J.V. to invoke the privilege in
response to certain inquiries, but the scope of the prospective invocation
was not yet known. Therefore, the court acted well within its discretion by
allowing J.V. to testify, but also clarifying that defense counsel could cross-
examine J.V. without restriction. Because “jurors tend to view a witness’
invocation of the privilege as a ‘clear confession of crime,’” Corrales, 138
Ariz. at 590 (internal quotation omitted), J.V.’s exercise of the privilege in
response to pointed questions regarding his immigration status and
involvement in drug trafficking likely undermined his credibility. Not
surprisingly, after J.V. testified in full, defense counsel, as a matter of
strategy, elected to withdraw his motion to strike J.V.’s testimony. Had the
superior court nonetheless stricken J.V.’s testimony, it would have
infringed on Torres’ ability to present his defense. Given the facts in this


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                           STATE v. TORRES
                          Decision of the Court

case, in which Torres did not simply stand silent in the face of J.V.’s
testimony but instead unambiguously withdrew his motion to strike the
testimony as a strategic decision calculated to further his interests and
defense, the court’s failure to sua sponte strike J.V.’s testimony did not
constitute error, much less fundamental, prejudicial error.

                              CONCLUSION

¶23          For the foregoing reasons, we affirm the convictions and
sentences.




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




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