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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        JACOB J. NARANJO, Appellant.

                              Nos.1 CA-CR 18-0561
                                  1 CA-CR 18-0891
                                  (Consolidated)
                                  FILED: 10-8-19


            Appeal from the Superior Court in Maricopa County
                         No. CR 2017-002886-001
              The Honorable Julie Ann Mata, Commissioner

                                   AFFIRMED


                                    COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant

Jacob J. Naranjo, Florence
Appellant
                           STATE v. NARANJO
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Randall M. Howe joined.


C A M P B E L L, Judge:

¶1            Jacob Naranjo appeals from his convictions and sentences for
kidnapping and assault, as well as a corresponding restitution order. After
searching the record on appeal and finding no arguable question of law,
Naranjo’s counsel filed briefs in accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), asking this court to
search the record for reversible error. This court granted counsel’s motion
to allow Naranjo to file a pro per supplemental brief, and Naranjo did so.
Having reviewed the entire record and considered the supplemental brief,
we find no reversible error and affirm.

                             BACKGROUND1

¶2            As she walked alone to school before dawn, the 17-year-old
victim vigilantly surveyed her surroundings. At one point, she cautiously
glanced over her shoulder and noticed a bicyclist approaching her from
behind. She moved over to allow him to pass by her on the sidewalk, but
continued walking. To her surprise, the bicyclist dismounted his bike,
grabbed her from behind, placed her in a choke-hold, pressed a hard, sharp
object against her temple, and ordered her to “get on the ground.”

¶3             Frightened, the victim screamed and struggled to free herself
from the bicyclist’s grasp. Despite his attempts to push her to the ground,
the victim maneuvered out of the choke-hold and began running. Once she
placed some distance between herself and her attacker, the victim called
9-1-1 on her cellular phone. Meanwhile, the bicyclist, watching her flee,
yelled, “[f]ine, go and tell,” which prompted the victim to look back and see
that her attacker, who was standing under a lamp post, was a bald,
Hispanic man in his mid-30s wearing a long-sleeved orange shirt.



1   We view the facts in the light most favorable to sustaining the jury’s
verdicts and resolve all reasonable inferences against Naranjo. State v.
Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


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                            Decision of the Court

¶4             Shortly after the victim provided this description to the
emergency operator, Officer John Gardner received a dispatch call
regarding the reported kidnapping. Already in the vicinity, he began
canvassing the area for the bicyclist. When he spotted a man riding a
bicycle, the officer sped up to close the gap between them and observed that
the bicyclist matched the suspect’s description. Immediately, Officer
Gardner activated his vehicle’s emergency lights and the bicyclist, Naranjo,
stopped.

¶5           At the time he was detained, Naranjo had a lunchbox in his
possession. When a police officer searched the lunchbox, he found it
contained a pair of gardening shears with two long, dark strands of hair
wedged within the blades, which appeared consistent with the victim’s
hair.

¶6           Although initially reluctant, the victim participated in a one-
on-one identification shortly after the attack. Upon seeing Naranjo, the
victim immediately identified him as her attacker.

¶7           The State charged Naranjo with one count of kidnapping and
one count of aggravated assault (use of gardening shears). The State also
alleged aggravating circumstances, including the use of a dangerous
instrument (gardening shears).

¶8            At trial, the victim testified that her attacker pressed a weapon
against her temple. On cross-examination, she acknowledged, however,
that she had told police officers it was possible her attacker had simply
placed his knuckles to her head and that the “object” she felt was about the
size of a fist. The forensic scientist who performed tests on the hairs
retrieved from the gardening shears testified that she was unable to obtain
a DNA profile from either hair.

¶9            After trial, a jury found Naranjo guilty of kidnapping and the
lesser-included offense of assault. Although the jury also found three
aggravating factors (kidnapping was a dangerous offense, physical and
emotional harm to the victim, and the victim was a minor at the time of the
offense), Naranjo was sentenced to a slightly mitigated term of nine years’
imprisonment for the count of kidnapping and a concurrent term of 30
days’ imprisonment for the count of assault, with 54 days of presentence
incarceration credit.

¶10          Subsequent to sentencing, the State requested restitution on
behalf of the victim. After an evidentiary hearing, the superior court
ordered Naranjo to pay restitution in the amount of $473.90 for the victim’s


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                           STATE v. NARANJO
                           Decision of the Court

mileage to and from court, medical expenses, and counseling services.
Naranjo timely appealed from both the sentences imposed and the
restitution order.

                              DISCUSSION

¶11          In his pro per supplemental brief, Naranjo challenges the
superior court’s instructions to the jury, in both the guilt and aggravation
phases, defining “dangerous instrument.” He contends the instructions
were unconstitutionally overbroad and ambiguous.

¶12          During both phases of trial, the superior court provided the
jurors the following instruction defining the phrase “dangerous
instrument”:

      “Dangerous instrument” means anything that under the
      circumstances in which it is used, attempted to be used or
      threatened to be used is readily capable of causing death or
      serious physical injury.

Although the jury raised no question regarding this instruction during the
guilt phase, a juror submitted the following question during the
aggravation phase:

      “Can an arm, fist or any body part be considered a dangerous
      instrument?”

¶13           With the agreement of counsel, the superior court referred the
jurors back to their instructions. After the jury returned its aggravation
verdicts and the court released the jurors from the admonition, three jurors
spoke with the attorneys. During their discussion, a juror reported that the
jury had disregarded the shears during the guilt phase. Given this
disclosure, defense counsel asked how the jurors had found that the
kidnapping constituted a dangerous offense. While one juror reported that
he found the gardening shears were a dangerous instrument, the other two
jurors stated that they found Naranjo’s arms and fists qualified as a
dangerous instrument.

¶14          Based on the three jurors’ post-trial statements, the prosecutor
moved for a new aggravation trial on the allegation that the kidnapping
was a dangerous offense. Finding that both the jury instruction defining
“dangerous instrument” correctly stated the law and the trial evidence
supported a finding that Naranjo used a dangerous instrument, the court
denied the motion for a new aggravation trial.


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                            STATE v. NARANJO
                            Decision of the Court

¶15           We review the denial of a motion for new trial for an abuse of
discretion. State v. West, 238 Ariz. 482, 488, ¶ 12 (App. 2015). As relevant
here, the court may grant a new phase of trial if it erred in instructing the
jury on a matter of law or the verdict is contrary to the weight of the
evidence. See Ariz. R. Crim. P. 24.1(c).

¶16            To assess whether instructions properly reflect the law, we
review them in their entirety and will not reverse a jury verdict based on an
erroneous instruction unless the instructions could reasonably mislead a
jury. State v. Hoskins, 199 Ariz. 127, 145, ¶ 75 (2000); State v. Gallegos, 178
Ariz. 1, 10 (1994). If a jury instruction is substantially free from error, the
defendant generally suffers no prejudice from its wording. Gallegos, 178
Ariz. at 10.

¶17           Here, the superior court’s instruction defining “dangerous
instrument” precisely tracked the statutory definition. A.R.S. § 13-105(12)
(“’Dangerous instrument’ means anything that under the circumstances in
which it is used, attempted to be used or threatened to be used is readily
capable of causing death or serious physical injury.”). Therefore, the court
did not err by providing the given instruction.

¶18            Although a superior court, in consultation with counsel, may
provide a clarifying instruction in response to a jury’s question, the
“decision to further instruct a jury on a matter . . . is within the [superior]
court’s discretion.” State v. Ramirez, 178 Ariz. 116, 126 (1994). “Thus, [w]hen
a jury asks a judge about a matter on which it has received adequate
instruction, the judge may in his or her discretion refuse to answer or may
refer the jury to the earlier instruction.” Id. (internal quotations omitted). In
this case, the superior court did not abuse its discretion when, in response
to the jury’s question, it referred the jurors back to the final written
instructions.

¶19            Moreover, as found by the superior court, the jury’s verdict
was not contrary to the weight of the evidence. At trial, the victim testified
that Naranjo pressed a “sharp,” “pointy,” “hard” object that she recognized
as a “weapon” to her head. Notwithstanding her prior statement to police
that the “object” may possibly have been Naranjo’s knuckles, the victim’s
testimony, coupled with the two hairs retrieved from the shears, provided
sufficient evidence to support the jury’s verdict.

¶20           Although Naranjo argues that at least two members of the
jury inaccurately interpreted the definition of dangerous instrument, it is
well-settled that a jury verdict cannot be impeached by a juror who agreed



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                           STATE v. NARANJO
                           Decision of the Court

in open court to the verdict, and this court will not examine the subjective
motives or mental processes of a jury. State v. Olague, 240 Ariz. 475, 480,
¶ 18 (App. 2016); State v. Kiper, 181 Ariz. 62, 68 (App. 1994). While a narrow
exception to this general rule permits a court to consider a juror’s testimony
or affidavit when the verdict is challenged based on certain juror
misconduct, none of the enumerated exceptions apply to this case. See Ariz.
R. Crim. P. 24.1(c)(3).

¶21            In addition to reviewing the arguments presented in
Naranjo’s supplemental brief, we have reviewed the entire record for
reversible error and find none. See Leon, 104 Ariz. at 300. Naranjo received
a fair trial. He was represented by counsel at all stages of the proceedings
and was present at all critical stages.

¶22            The evidence presented at trial was substantial and supports
the verdicts. The jury was comprised of 12 members and the court properly
instructed the jury on the elements of the charges — Naranjo’s presumption
of innocence, the State’s burden of proof, and the necessity of a unanimous
verdict. The superior court received and considered a presentence report,
Naranjo was given an opportunity to speak at sentencing, and his sentences
were within the range of acceptable sentences for his offenses.

¶23          Furthermore, the record contains substantial evidence
supporting the superior court’s restitution order. A victim may recover
economic damage losses from a defendant’s acts, including out-of-pocket
expenses “that would not have been incurred but for the offense.” A.R.S. §
13-105(16). Here, the court conducted a restitution hearing, considered
evidence that the victim incurred travel, medical, and counseling expenses
related to Naranjo’s offenses, and determined the amount of restitution to
make the victim whole. See State v. Ellis, 172 Ariz. 549, 550 (App. 1992).

                              CONCLUSION

¶24           We affirm Naranjo’s convictions and sentences, as well as the
restitution order. Unless defense counsel finds an issue that may be
appropriately submitted to the Arizona Supreme Court, his obligations are




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                            STATE v. NARANJO
                            Decision of the Court

 fulfilled once he informs Naranjo of the outcome of this appeal and his
future options. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Naranjo has
30 days from the date of this decision to proceed, if he wishes, with a pro
per motion for reconsideration or petition for review.




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




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