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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  JULIO CESAR CARRIZOZA, Appellant.

                             No. 1 CA-CR 16-0709
                               FILED 11-21-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-001627-002
               The Honorable David O. Cunanan, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By W. Scott Simon
Counsel for Appellee

The Law Office of Kyle T. Green P.L.L.C., Tempe
By Kyle Green
Counsel for Appellant
                          STATE v. CARRIZOZA
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Peter B. Swann and Justice Rebecca White Berch 1 joined.


M c M U R D I E, Judge:

¶1           Julio Cesar Carrizoza appeals his convictions and sentences
for felony murder, kidnapping, assisting a criminal street gang, and
threatening and intimidating. Carrizoza contends the superior court erred
by denying his motion for a directed verdict and by allowing the State’s
expert witness to remain in the courtroom during his testimony. For the
following reasons, we affirm.

            FACTS 2 AND PROCEDURAL BACKGROUND

¶2             Carrizoza and E.L. were arrested together in 2006, and E.L.
assisted law enforcement by providing information that resulted in
Carrizoza’s incarceration. While incarcerated, Carrizoza met Steven
Benavidez. Carrizoza eventually learned that Benavidez also knew E.L.,
and after they were released, the two men began looking for E.L. In
November 2012, the two men threatened and coerced two of E.L.’s friends,
C.M. and R.C., to help them locate E.L. While E.L. was at C.M.’s home on
Thanksgiving, R.C. alerted Benavidez that E.L. was there, and Benavidez in
turn told Carrizoza. Carrizoza and Benavidez then met up at C.M.’s house,
where they led E.L. to a car with Carrizoza brandishing a handgun. They
went for a drive, and somewhere near Madison Avenue and 37th Street in
Phoenix, Carrizoza pulled E.L. out of the vehicle and shot him multiple
times, killing him.



1      The Honorable Rebecca White Berch, retired justice of the Arizona
Supreme Court, has been authorized to sit in this matter pursuant to Article
VI, Section 3, of the Arizona Constitution.

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



                                     2
                          STATE v. CARRIZOZA
                           Decision of the Court

¶3             A grand jury indicted Carrizoza for one count each of murder
(premeditated/felony murder), kidnapping, and assisting a criminal street
gang, and two counts of threatening or intimidating. At trial, Benavidez
testified against Carrizoza on behalf of the State in exchange for a reduced
sentence. Benavidez testified he and Carrizoza were both members of the
Mexican Mafia street gang, and that Carrizoza shot E.L. multiple times on
November 22, 2012. Carrizoza testified he was not a member of the Mexican
Mafia, and it was Benavidez who shot E.L.

¶4            At the close of the State’s case-in-chief, Carrizoza moved for
judgments of acquittal, which the court denied. After considering the
evidence, the jury found Carrizoza guilty on all five counts, specifically
finding him guilty of felony murder on count one. Carrizoza was sentenced
to concurrent prison terms of (1) natural life imprisonment on the felony
murder charge; (2) 15.75 years’ imprisonment on the kidnapping charge; (3)
11.25 years’ imprisonment for assisting a criminal street gang; and (4) 11.25
years’ imprisonment for both counts of threatening or intimidating.
Carrizoza timely appealed and we have jurisdiction pursuant to Arizona
Revised     Statutes    (“A.R.S.”)   sections     12-120.21(A)(1),  13-4031,
and -4033(A)(1).

                               DISCUSSION

A.     The Superior Court Did Not Err by Denying Carrizoza’s Motion
       for Judgment of Acquittal.

¶5             Carrizoza first argues the evidence presented at trial was
insufficient to support the counts charged for kidnapping and threatening
and intimidating, and as a result the superior court erred by denying his
motion for judgment of acquittal on those charges. Carrizoza contends that
because insufficient evidence supported the underlying felony charges of
kidnapping and threatening and intimidating, the charges of felony murder
and assisting a criminal street gang should have also been acquitted by the
superior court because those charges require an underlying felony.

¶6            We review the denial of a motion for judgment of acquittal for
an abuse of discretion. State v. Yegan, 223 Ariz. 213, 220, ¶ 26 (App. 2009). A
directed verdict is appropriate only if the court finds “no substantial
evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a). We will not
reverse the superior court’s denial unless “there is a complete absence of
probative facts to support [the convictions].” State v. Mathers, 165 Ariz. 64,
66 (1990). The evidence can be either circumstantial or direct. State v. Pena,




                                      3
                            STATE v. CARRIZOZA
                             Decision of the Court

209 Ariz. 503, 505, ¶ 7 (App. 2005). We find the evidence was sufficient to
support the superior court’s denial of Carrizoza’s motion.

       1.      Kidnapping.

¶7            Under § 13-1304(A)(3), “[a] person commits kidnapping by
knowingly restraining another person with the intent to . . . [i]nflict death,
physical injury . . . or to otherwise aid in the commission of a felony.”
Carrizoza claims the evidence presented at trial showed E.L. cooperated
without a demonstration of force because no gun was ever pointed at him
and no verbal or physical threats accompanied his leaving. While there was
no evidence E.L. was physically forced to leave with Carrizoza and
Benavidez, restraint can be accomplished by either physical force or
intimidation. A.R.S. § 13-1301(2)(a). The evidence showed Carrizoza,
Benavidez, and other members of the Mexican Mafia street gang
surrounded E.L. when he entered the house on November 22, 2012.
Benavidez testified Carrizoza told E.L. he was “going to have to take a
ride,” and Benavidez stated if E.L. had resisted he would have been forced
to the car. Moreover, there was evidence Carrizoza was holding a handgun
during this interaction, which could have further intimidated E.L.
Accordingly, sufficient evidence was presented to allow the kidnapping
charge to proceed to the jury. See State v. Landrigan, 176 Ariz. 1, 4 (1993) (“[I]f
reasonable minds can differ on inferences to be drawn therefrom, the case
must be submitted to the jury.”).

       2.      Threatening and Intimidating.

¶8              Under § 13-1202(A)(3), “[a] person commits threatening or
intimidating if the person threatens or intimidates by word or
conduct . . . to cause physical injury to another person . . . in order to
promote, further or assist in the interests of . . . a criminal street gang.”
Carrizoza argues testimony from both C.M. and R.C., stating they did not
feel threatened or intimidated during their interactions with Carrizoza,
required the superior court to acquit him of those charges. We disagree.

¶9            First, Carrizoza supports his argument by selecting two of
C.M.’s statements: (1) she did not believe she was a victim, and (2) she did
not feel afraid when she was helping Carrizoza find E.L. However,
Carrizoza ignores other statements made by C.M. throughout her
testimony. C.M. also testified she felt “uncomfortable” when she was riding
in the car with Carrizoza because he was holding a gun, and that she was
“scared” she may “get killed or something” if she did not comply.
Furthermore, the victim’s subjective feelings of fear are not relevant to



                                        4
                           STATE v. CARRIZOZA
                            Decision of the Court

determining whether sufficient evidence existed; the relevant question is
whether a jury could objectively find the defendant intended that his words
or conduct threatened or intimidated the victim. See In re Ryan A., 202 Ariz.
19, 22, ¶ 10–11 (App. 2002) (“It is axiomatic that an objective test does not
require a subjective analysis of the belief of the particular person to whom
the threat is made.”). From the evidence here, a reasonable jury could have
found that Carrizoza’s words and conduct threatened and intimidated the
victims.

¶10            Second, Carrizoza argues the charge related to R.C. should
have been acquitted because R.C. testified he was not held against his will,
and did not “do anything he did not want to do.” 3 Again, Carrizoza ignores
the other testimony presented at trial. When Carrizoza and Benavidez
approached R.C. to help them look for E.L., R.C. testified they were both
holding guns. R.C. also testified he was afraid that if he did not cooperate
Carrizoza would shoot him. Therefore, a reasonable person could
understand that Carrizoza’s conduct was intended as a threat, and the
superior court did not err by allowing the jury to consider the charge. See
In re Ryan A., 202 Ariz. at 22, ¶ 11.

B.     The Superior Court Did Not Err by Allowing the State’s Expert
       Witness to Remain in the Courtroom During Carrizoza’s
       Testimony.

¶11           Carrizoza argues the superior court erred by allowing the
State’s expert witness, Clint Davis, to be present in the courtroom during
Carrizoza’s testimony. Carrizoza argues this “allowed the expert to craft his
testimony in such a manner as to attempt to harm and discredit” him, and
therefore he was prejudiced. We disagree.

¶12           Arizona Rule of Evidence 615 and Arizona Rule of Criminal
Procedure 9.3(a) both mandate that the court, upon request, exclude
witnesses from hearing the testimony of other witnesses. However, Rule
615 contains an exception to the rule of exclusion when a person’s presence
is shown to be “essential to presenting the party’s claim.” Ariz. R. Evid.
615(c). “Rule 615 applies in both civil and criminal cases.” Spring v. Bradford,
CV-17-0068-PR, 2017 WL 4767137, *3, ¶ 15 (Ariz. Oct. 23, 2017). The superior


3     Carrizoza fails to cite any portion of the record to support this
argument. See Ariz. R. Crim. P. 31.13(c)(1)(vi) (requiring an argument in
appellate briefs to contain citations to “parts of the record relied on”).
However, we will consider it on the merits.



                                       5
                          STATE v. CARRIZOZA
                           Decision of the Court

court has discretion when determining whether an expert witness’s
presence is “essential” under the Rule 615(c) exception. Spring, 2017 WL
4767137, *6, ¶ 30. “We will reverse the trial court’s decision only when the
defendant shows that the trial court abused its discretion and that the
defendant suffered prejudice.” State v. Jones, 185 Ariz. 471, 483 (1996).

¶13           Davis provided expert testimony regarding street gangs,
including the Mexican Mafia street gang, and the meaning of street gang
tattoos. Before Carrizoza testified, the State requested that Davis be present
in the courtroom for Carrizoza’s testimony to properly form his opinion, as
a rebuttal witness, on Carrizoza’s gang member status. Over Carrizoza’s
objection, the court allowed Davis to remain in the courtroom.

¶14           We agree that Davis’s testimony was essential to the State’s
claim regarding Carrizoza’s gang affiliation and therefore within the
exception listed in Rule 615(c). Carrizoza’s gang affiliation was an essential
element of count 3, assisting a criminal street gang. Carrizoza testified he
was not a member of the Mexican Mafia street gang and disputed several
of the opinions Davis testified to during the State’s case-in-chief regarding
the consequences or “political” meaning of specific gang tattoos on
Carrizoza’s body. The State then called Davis back to the stand on rebuttal
to further opine regarding the implications and meanings of certain street
gang tattoos considering Carrizoza’s testimony. We find no error.

¶15            Even if we were to conclude Davis’s presence in the
courtroom during Carrizoza’s testimony was improper, Carrizoza failed to
establish any prejudice. See Jones, 185 Ariz. at 483. Davis was an expert
witness, who could rely on other facts presented in the case when forming
his opinion. See Ariz. R. Evid. 703. Therefore, it would not have been
improper if he were presented with or read Carrizoza’s prior testimony on
rebuttal, assuming he had been excluded. Instead, the court’s decision to
allow Davis to remain present and listen to Carrizoza’s testimony saved
time by not requiring the State to provide his testimony to Davis on the
stand during rebuttal. See Ariz. R. Evid. 611 (allows the court to control the
“mode and order of examining witnesses” to “avoid wasting time”).
Furthermore, Davis’s testimony, both before and after he listened to
Carrizoza’s testimony, was consistent, and Carrizoza has not shown
otherwise. See id. (court found no prejudice where defendant could not
show any change in testimony before and after a supposed exclusion
violation); see also Spring, 2017 WL 4767137, *5, ¶ 21 (“[N]o presumption of
prejudice is generally necessary in the context of purely expert witnesses
because disclosure of their expert reports and pretrial depositions
establish[es] a basis for assessing actual prejudice in the form of altered


                                      6
                         STATE v. CARRIZOZA
                          Decision of the Court

opinions.”); cf. State v. Roberts, 126 Ariz. 92, 94–95 (1980) (a change in
testimony of a fact witness after hearing two other witnesses amounted to
prejudice).

                             CONCLUSION

¶16          We affirm the convictions and sentences.




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




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