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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 RUBEN MICHAEL MORAGA, Appellant.

                             No. 1 CA-CR 14-0234
                               FILED 7-7-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-105209-001
                  The Honorable Cynthia Bailey, Judge

                                  AFFIRMED


                                   COUNSEL

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
                            STATE v. MORAGA
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Donn Kessler joined.


T H U M M A, Judge:

¶1            Ruben Michael Moraga appeals from his conviction and
resulting sentence for aggravated assault. Moraga argues reversible error
when the superior court sustained the State’s objection to a hypothetical
question on cross-examination of a testifying detective. Because Moraga has
shown no error, the conviction and sentence are affirmed.

                 FACTS1 AND PROCEDURAL HISTORY

¶2            Moraga was charged with aggravated assault (resulting in a
fracture of any body part), a Class 4 dangerous felony. At trial, the State
called five witnesses and introduced exhibits. The evidence showed two
men lured the victim from his backyard one night, asking him for cigarettes.
As the victim approached the men, he saw Moraga was with them. Moraga
confronted the victim about “spreading rumors about him being a child
molester.” Moraga then punched the victim, knocking him to the ground
and breaking his jaw.

¶3            The victim told the responding police officer that Moraga
“sucker punched” him. A detective interviewed Moraga a few weeks later,
and a video recording of a portion of that interview was presented at trial.
In the video, Moraga admits to punching the victim and says that doing it
was wrong. Moraga also mentions the victim appeared to be “a little bit
tipsy or whatnot” that night. The victim, when he testified at trial, admitted
he probably consumed “at least two” beers that night.




1This court views the facts “in the light most favorable to sustaining the
verdict, and resolve[s] all reasonable inferences against the defendant.”
State v. Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997) (citation
omitted).


                                       2
                           STATE v. MORAGA
                           Decision of the Court

¶4            During cross-examination of the detective, Moraga
challenged the adequacy of the police investigation. The detective testified
it was his understanding the victim had been drinking that night based on
Moraga’s statements. The detective agreed that alcohol consumption could
be an important factor and confirmed he did not follow up with the victim
to ask whether he had been drinking. The following exchange then
occurred:

             Defense Counsel: Okay. When you do DUI
             [driving under the influence] cases and you stop
             people, is it your training experience that people
             minimize how much alcohol they consumed?

             Detective: I can’t say what people tell me. Some
             –– I guess I don’t know what you’re asking.

             Defense Counsel: For example, people stopped
             for DUI ––

             Prosecutor: Objection. Relevance.

             Defense Counsel: I haven’t finished my –– I
             need an answer to the past question.

             The Court: Well, re-ask your question.

             Defense Counsel: Well, hypothetically when
             you pull somebody over for DUI, how often do
             you hear somebody say they’ve had two beers?

             Prosecutor: Objection, your Honor. Relevance.

             Defense Counsel: It’s a hypothetical.

             The Court: Sustained as to relevance.

Moraga did not pursue this line of questioning, challenge this ruling or
provide an offer of proof but, instead, moved on to a different topic.




                                     3
                            STATE v. MORAGA
                            Decision of the Court

¶5            The jury found Moraga guilty as charged. After admitting to
an aggravating factor and three prior felony convictions, Moraga was
sentenced to a mitigated term of eight years in prison. Moraga timely
appealed. This court has jurisdiction pursuant to the Arizona Constitution,
Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) sections 12-
120.21(A)(1), 13-4031, and -4033(A)(1) (2015).2

                               DISCUSSION

¶6            Moraga argues the superior court violated his constitutionally
protected right to attack the adequacy of a police investigation by
sustaining on relevance grounds the objection to his hypothetical question
regarding DUI investigations. This court reviews the decision to limit the
scope of cross-examination for an abuse of discretion. State v. Riggs, 189
Ariz. 327, 333, 942 P.2d 1159, 1165 (1997).

¶7             The Sixth Amendment guarantees the right of criminal
defendants to confront adverse witnesses, including cross-examination. See
U.S. Const. amend. VI; Davis v. Alaska, 415 U.S. 308, 315-16 (1974). The right
to cross-examination, however, is not unlimited. State v. Fleming, 117 Ariz.
122, 125, 571 P.2d 268, 271 (1977). Instead, the right “is limited to the
presentation of matters admissible under ordinary evidentiary rules,
including relevance.” Riggs, 189 Ariz. at 333, 942 P.2d at 1165 (quotation
omitted). Evidence is relevant when it tends to make a fact of consequence
more or less probable. See Ariz. R. Evid. 401. Even when a question seeks
relevant evidence, the superior court may reasonably limit cross-
examination “based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’ safety, or interrogation that
is repetitive or only marginally relevant.” State v. Cañez, 202 Ariz. 133, 153,
42 P.3d 564, 584 (2002) (quotation omitted); accord Ariz. R. Evid. 403.




2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.



                                      4
                            STATE v. MORAGA
                            Decision of the Court

¶8            As applied, the State charged Moraga with aggravated assault
and Moraga asserted a self-defense justification. Aggravated assault as
charged requires proof that the defendant (1) intentionally, knowingly or
recklessly caused a physical injury to the victim and (2) the means of force
used caused a fracture to the victim’s body. See A.R.S. §§ 13–1203(A)(1), –
1204(A)(3). By statute, subject to certain exceptions, “a person is justified in
threatening or using physical force against another when and to the extent
a reasonable person would believe that physical force is immediately
necessary to protect himself against the other’s use or attempted use of
unlawful physical force.” A.R.S. § 13-404(A).

¶9             Because this case did not involve any DUI suspects, charges
or investigations, the superior court properly could conclude that the
answer to the hypothetical question of how often DUI suspects “say they’ve
had two beers” would not make a fact of consequence more or less
probable. See Ariz. R. Evid. 401. Stated differently, the answer to the
hypothetical question that the witness was not allowed to answer would
not tend to make it more or less probable that Moraga committed
aggravated assault or that the self-defense justification applied. Moreover,
the superior court properly could conclude that any marginal relevance for
the answer was substantially outweighed by a danger of unfair confusion
of the issues or other grounds listed in Arizona Rule of Evidence 403. Cañez,
202 Ariz. at 153 ¶ 62, 42 P.3d at 584. Thus, even if the answer may have been
marginally relevant, the superior court did not abuse its discretion in
sustaining the objection on this independent ground.

¶10           Moraga argues the answer to this hypothetical question was
necessary to put the investigation into an understandable context for the
jury and, in sustaining the objection, the superior court improperly
interfered with his constitutional right to argue the police investigation was
inadequate. The evidence, however, was properly excluded under the
Arizona Rules of Evidence. Moreover, the ruling did not prevent Moraga
from arguing that the police investigation was inadequate. Indeed,
Moraga’s counsel forcefully argued that point during closing argument,
relying on other evidence elicited during trial.




                                       5
                           STATE v. MORAGA
                           Decision of the Court

¶11            The evidentiary ruling was proper and no constitutional
violation resulted from it. Because Moraga has shown no error, this court
need not address whether review on appeal is limited to fundamental error.
See State v. Alvarez, 213 Ariz. 467, 473 ¶ 20, 143 P.3d 668, 674 (App. 2006)
(“Finding no error in the court’s evidentiary ruling, we need not address
whether any alleged error was fundamental and prejudicial.”); State v.
Henderson, 210 Ariz. 561, 568 ¶ 23, 115 P.3d 601, 608 (2005) (defendant “must
first prove error” under fundamental error review).

                              CONCLUSION

¶12           Because Moraga has shown no error, his conviction and
resulting sentence are affirmed.




                                   :ama




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