State v. Patron

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARTINA VERDUGO PATRON, Appellant.

No. 1 CA-CR 13-0629
FILED 9-3-2015

Appeal from the Superior Court in Maricopa County
No. CR 2011-007612-001
The Honorable David B. Gass, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Office of the Attorney General, Phoenix
By Terry M. Crist III
Counsel for Appellee

The Nolan Law Firm, PLLC, Mesa
By Cari McConeghy Nolan
Counsel for Appellant
 STATE v. PATRON
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MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Andrew W. Gould and Judge Peter B. Swann joined.

H O W E, Judge:

¶1 Martina Patron appeals her convictions and sentences for
aggravated assault, aggravated robbery, and two counts of kidnapping. For
the following reasons, we vacate Patron’s conviction and sentence for one
count of kidnapping and affirm her other convictions and sentences.

FACTS AND PROCEDURAL HISTORY

1. The Incident at the Bar

¶2 Late one evening, Bernardo1 was assaulted at the “El 60” bar
after having a few beers with friends. In the parking lot, Carlos A. Balli
approached Bernardo and offered to sell him drugs. Bernardo declined, but
then said, “Let me have a beer, and we’ll see.” Bernardo went inside the
bar, had one beer, and then returned to his car.

¶3 Balli and another man approached Bernardo again and asked
if he was going to buy drugs. Bernardo declined, but then asked Balli what
drugs the seller had. Balli said he had cocaine and methamphetamine and
gave Bernardo a “crystal” to look at. The men argued over the price. During
the argument, Balli pulled Bernardo out of the car and dragged the man
into the bar with the help of another man. Patron watched from nearby.

¶4 Once inside the bar, the men beat Bernardo at Patron’s order.
Patron told the men to handcuff Bernardo in the men’s restroom, beat him,
and take his money. The men did so as Patron looked on; they demanded
that Bernardo tell them where his money was. Patron said she would get
Bernardo’s car stereo, and one of the men asked her, “What should we do
with him, Cynthia?” She told them to kill him.

¶5 After Patron left, Bernardo begged the men not to kill him and
gave them his money, including three $100 bills. When Patron returned, the

1 We use the victim’s first name to protect his privacy. State v.
Maldonado, 206 Ariz. 339, 341 n.1 ¶ 2, 78 P.3d 1060, 1062 n.1 (App. 2003).

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men asked her how much they should take; she responded to take it all and
let him go. The men removed the handcuffs, gave Bernardo his keys, and
then pushed him out the bar. Patron warned Bernardo to leave, but not to
take his car, and if he called the police, they would kill him.

¶6 Bernardo contacted the police anyway. He walked to a nearby
convenience store and had the clerk call the police. When the police arrived,
they noted that Bernardo had a swollen eye, fresh bruises, and marks on his
wrists consistent with handcuff restraint. He told the officers about the
assault and described Patron as a Hispanic female named “Cynthia,”
wearing a white shirt.

¶7 When the officers arrived at the bar to investigate, they could
not enter. The doors were locked, even though the parking lot had cars,
music blasted from the bar, and voices could be heard inside. One officer
knocked for five minutes before Patron answered, identifying herself as
“Cynthia,” one of El 60’s bartenders. When the officers asked if an assault
had occurred earlier, she denied it, but volunteered that a drunken man had
caused trouble earlier and was asked to leave. The officers told Patron that
Bernardo had accused her of handcuffing him, and she responded that he
could have done that to himself.

¶8 Balli then attempted to prevent the officers from entering. He
came to the door and identified himself as the bar’s manager. After some
back and forth, Balli let the officers into the bar. The officers proceeded to
the men’s restroom and found fresh blood on the wall and urinal. An officer
took samples of the blood. A toilet seat lay beside the toilet’s basin. The
officers seized three $100 bills from Balli and a pair of handcuffs from his
office.

¶9 Meanwhile, another officer explained the identification
procedure to Bernardo. The officer told Bernardo that he had no obligation
to identify anyone, that whether or not he identified anyone would not
matter, and that the officer would not tell any suspect if he had identified
him or her. Bernardo indicated that he understood. The officer took
Bernardo back to the bar; less than an hour had elapsed since the police had
responded to the incident. The officer turned on the patrol car’s lights and
aimed them at the bar’s entrance. The police showed a woman and a man
separately to Bernardo. Bernardo identified the man as Balli and after
looking at the woman for “three to five minutes” identified her as
“Cynthia.”

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2. Patron’s Trial

¶10 At trial, officers testified about the police taking a buccal swab
of Bernardo at the scene and collecting the handcuffs and a swab used to
get blood from the men’s restroom wall. The State moved to admit the
handcuffs and blood swab, but Patron objected to their admission, claiming
that the State had not provided an adequate chain of custody. The trial court
conditionally admitted the evidence with the understanding that the State
would complete the chain of custody with further testimony.

¶11 A police criminalist then testified, first stating that she saw the
typical “markers” indicating that she handled the evidence—the buccal and
blood swabs—properly, specifically answering questions about its chain of
custody. The State then moved to admit both, and Patron had no objection.
The trial court admitted the buccal and blood swabs.

¶12 The criminalist testified that the crime lab followed the
standard procedure in analyzing the DNAs of the buccal and blood swabs.
She testified that she performed all of the testing and analysis of the blood
swab, including creating a DNA profile for it. While she tested the blood
sample, another criminalist created the buccal swab’s DNA profile, and two
other criminalists reviewed that profile. Afterwards, the testifying
criminalist received the buccal swab’s DNA profile. She then conducted
her own analysis of the buccal swab’s DNA profile and compared it to the
blood swab’s DNA profile that she had created.

¶13 The criminalist then wrote a report from the analysis and
comparisons she had made. Based on her work, the criminalist concluded
that the blood swab’s DNA profile, collected from the men’s restroom,
matched the buccal swab’s DNA profile, collected from Bernardo. The
criminalist that created the buccal swab’s DNA profile did not testify. The
State did not move to admit into evidence the testifying criminalist’s report
or any work of the non-testifying criminalist.

¶14 Before closing arguments, Patron moved to strike the
criminalist’s testimony based on hearsay, arguing that “she was just
testifying off the report of another” criminalist. Patron argued that her
earlier objection to chain of custody for the blood swab preserved this
objection to all the DNA testimony, but she conceded that the State
established chain of custody. After the State clarified the criminalist’s
testimony, the court explained that Patron’s earlier objections were only to
chain of custody for the exhibits themselves and denied her motion. Patron
did not argue that the testimony violated her Confrontation Clause right.

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¶15 The State moved to conform the indictment to the evidence,
requesting the court to change “handcuffing Bernardo . . . in the bathroom”
to “handcuffing Bernardo . . . in the bar” in count 2, kidnapping. Patron
objected, but the court granted the motion. The State also informed the
court that it would limit its aggravating factors to presence of accomplices
and pecuniary gain. The final jury instructions included directions for
attempt to conceal evidence and threats against Bernardo. The jurors
convicted Patron of aggravated assault, aggravated robbery, and two
counts of kidnapping.

¶16 The State informed the court that an aggravation hearing was
unnecessary because the two aggravating factors it was relying on were
inherent in the verdicts. At sentencing, the court found that Patron had one
historical prior felony conviction and found several mitigating factors. The
court sentenced Patron to mitigated terms of 4.5 years’ imprisonment for
both kidnapping convictions, an aggravated term of 2.75 years’
imprisonment for aggravated assault, and a presumptive term of 4.5 years’
imprisonment for aggravated robbery, all concurrent. When the court
imposed the aggravated term for aggravated assault, it noted, “[T]he victim
did receive some significant injuries.” Patron did not object. She timely
appealed.

DISCUSSION

¶17 Patron argues that insufficient evidence supports her
convictions and that the trial court erred in admitting the criminalist’s
testimony, in admitting evidence of Bernardo’s pretrial identification of her,
in giving the jurors improper instructions, in sentencing her to an
aggravated term for aggravated assault, and in amending the indictment to
conform to the evidence.

1. Sufficiency of the Evidence

¶18 Patron argues that insufficient evidence supports her
convictions. We review de novo the sufficiency of evidence to support a
conviction. State v. Pena, 235 Ariz. 277, 279 ¶ 5, 331 P.3d 412, 414 (2014). In
doing so, we view the evidence in the light most favorable to sustaining the
verdict, resolving all reasonable inferences against the defendant. State v.
Greene, 192 Ariz. 431, 436 ¶ 12, 967 P.2d 106, 111 (1998). Reversible error
based on insufficiency of the evidence occurs only when no probative facts
support the conviction. State v. Felix, 237 Ariz. 280, 289 ¶ 30, 349 P.3d 1117,
1126 (App. 2015). The evidence, however, must be substantial enough for a
reasonable person to determine that it supports a verdict of guilty beyond

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a reasonable doubt. State v. Stroud, 209 Ariz. 410, 411–12 ¶ 6, 103 P.3d 912,
913–14 (2005).

¶19 The jurors convicted Patron as an accomplice to kidnapping,
aggravated assault, and aggravated robbery. See A.R.S. § 13–303(A)(3) (“A
person is criminally accountable for the conduct of another if . . . . [t]he
person is an accomplice of such other person in the commission of an
offense. . . .”). Here, substantial evidence supports Patron’s convictions for
kidnapping, aggravated assault, and aggravated robbery. As an initial
matter, the record shows that Patron was in charge during the incident: she
ordered the men to beat Bernardo and take his money. She also ordered
them to kill Bernardo and she made the ultimate call to spare his life. Her
final statement to Bernardo about not calling the police or they would kill
him demonstrates her vital role in the incident. Further, Patron prevented
officers from entering the bar later that evening and denied that Bernardo
was ever at the bar—indicating her consciousness of guilt for the entire
incident.

¶20 Accordingly, the record supports one of Patron’s kidnapping
convictions. See A.R.S. § 13–1304(A)(4) (providing that a person commits
2

kidnapping if the person knowingly restrains another person with the
intent to place the other person in reasonable apprehension of imminent
physical injury). The record shows that Patron stood nearby as two men—
upon her orders—dragged Bernardo out of his car, forcibly took him into
the bar and the restroom and handcuffed him.

¶21 The record also supports Patron’s aggravated robbery
conviction. See A.R.S. §§ 13–1902(A), –1903(A) (providing that a person
commits aggravated robbery if, with the aid of one or more accomplices,

2 Patron also argues that the trial court erred in amending the charge
of kidnapping as alleged in count 2. We need not address this issue,
however, because the State concedes—and Patron agrees—that we should
dismiss one kidnapping count as multiplicitous. See State v. Bruni, 129 Ariz.
312, 318, 630 P.2d 1044, 1050 (App. 1981) (“Multiplicity is defined as
charging a single offense in multiple counts.”). Because kidnapping is a
continuing crime, State v. Braidick, 231 Ariz. 357, 359 ¶ 7, 295 P.3d 455, 457
(App. 2013), and because the State charged and the jurors convicted Patron
of a single offense of kidnapping in two counts, we vacate Patron’s
conviction and sentence for kidnapping as charged in count 2. See id. at ¶ 6
(“The State and federal double jeopardy clauses provide that a person may
not be twice put in jeopardy for the same offense.”) (internal quotation
marks and citation omitted).

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the person takes the property of another from the other’s person and against
the person’s will, and in the course of doing so threatens or uses force
against any person with intent to coerce the surrender of the property). The
record shows that on Patron’s order, the men beat Bernardo and demanded
his money, and Bernardo gave it to them. When the police arrived at the
bar, they collected three $100 bills from Balli that belonged to Bernardo.

¶22 The record further supports Patron’s aggravated assault
conviction. See A.R.S. §§ 13–1203(A)(1), –1204(A)(4) (providing that a
person commits aggravated assault if the person intentionally, knowingly
or recklessly causes physical injury to another person and does so while the
other person is bound or otherwise physically restrained). Bernardo was
handcuffed in the restroom and beaten, resulting in a swollen eye, fresh
bruises, and marks on his wrists consistent with handcuff restraint. When
the police arrived, they collected handcuffs in Balli’s office. Accordingly,
the evidence supports Patron’s convictions as an accomplice to kidnapping,
aggravated assault, and aggravated robbery.

¶23 Patron contends nonetheless that the discrepancies in
Bernardo’s statements to the police versus during trial undermined the
evidence against her. The jurors, not the appellate court, however, weigh
the evidence and determine a witnesses’ credibility. State v. Cid, 181 Ariz.
496, 500, 892 P.2d 216, 220 (App. 1995). Jurors are free to credit or discredit
testimony, and we cannot guess what they believed, nor can we determine
what reasonable jurors should have believed. State v. Bronson, 204 Ariz. 321,
328 ¶ 34, 63 P.3d 1058, 1065 (App. 2003). Thus, because substantial evidence
supports the jurors’ verdicts, we will not disturb their decision. Cid, 181
Ariz. at 500, 892 P.2d at 220.

2. The Criminalist’s Testimony

¶24 Patron next argues that the trial court erred in admitting the
criminalist’s testimony because the testimony included hearsay and it
violated her right to confront the non-testifying criminalist. But Patron’s
objection to the chain of custody of the exhibits in general did not preserve
her hearsay argument about the criminalist’s testimony for appellate
review. See State v. Hamilton, 177 Ariz. 403, 408, 868 P.2d 986, 991 (App.
1993) (“[A]n objection to the admission of evidence on one ground will not
preserve issues relating to the admission of that evidence on other

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grounds.”). Patron has therefore waived her hearsay argument.3 See
Continental Lighting, 227 Ariz. at 386 ¶ 12, 258 P.3d at 204.

¶25 We review constitutional claims de novo, State v. Nordstrom,
230 Ariz. 110, 117 ¶ 27, 280 P.3d 1244, 1251 (2012), but because Patron raises
this claim for the first time on appeal, we review for fundamental error only,
see State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005). Patron
therefore bears the burden of establishing that error occurred, the error was
fundamental, and the error caused her prejudice. Id. at 568 ¶¶ 23–26, 115
P.3d at 608. The trial court committed no error.

¶26 An expert “may testify to otherwise inadmissible evidence,
including the substance of a non-testifying expert’s analysis, if such
evidence forms the basis of the expert’s opinion and is reasonably relied
upon by experts in the field” without violating the Confrontation Clause.
State ex rel. Montgomery v. Karp, 236 Ariz. 120, 124 ¶ 13, 336 P.3d 753, 757
(App. 2014). When the expert gives her independent opinion, she is the
witness whom the defendant has the right to confront. Id. at ¶ 14. In such
cases, the Confrontation Clause is satisfied if the defendant has the
opportunity to fully cross-examine the expert who testifies against her,
allowing the factfinder to understand the basis for the expert’s opinion and
determine whether that opinion should be found credible. Id.

¶27 Here, the record shows that the criminalist gave her
independent opinion and was available for cross-examination. The
criminalist testified that she performed all the testing and analysis of the
blood swab. While another criminalist created the buccal swab’s DNA
profile, and two others checked its accuracy, when the testifying criminalist
received the buccal swab’s DNA profile, she performed her own review of
it. Moreover, she testified that she compared the two DNA profiles and
wrote the report with her conclusions. She stated that based on her work,
the blood swab’s DNA profile matched the buccal swab’s DNA profile. At
trial, the State did not offer any documents created by the non-testifying
criminalist into evidence; it offered the testifying criminalist’s independent,

3 Patron has also waived her claim of prosecutorial misconduct
regarding the chain of custody because she raises the issue for the first time
in her reply brief. See Continental Lighting & Contracting, Inc. v. Premier
Grading & Utilities, LLC, 227 Ariz. 382, 386 ¶ 12, 258 P.3d 200, 204 (App.
2011) (providing that “legal theories must be presented timely to the trial
court,” and if not, then they are waived on appeal); State v. Watson, 198 Ariz.
48, 51 ¶ 4, 6 P.3d 752, 755 (App. 2000) (providing that appellate courts will
not review issues not raised in the opening brief).

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expert opinion. Consequently, Patron had the opportunity to fully cross-
examine her, thereby satisfying the Confrontation Clause.

3. The Pretrial Identification

¶28 Patron argues that the trial court erred in admitting
Bernardo’s pretrial identification of her. Because Patron did not object to
the trial court, we review the issue for fundamental error. State v. Schrock,
149 Ariz. 433, 440, 719 P.2d 1049, 1056 (1986). The defendant bears the
burden of proof in fundamental error review, however, Henderson, 210 Ariz.
at 567 ¶ 19, 115 P.3d at 607, and Patron waived this issue for review because
she did not argue on appeal that the alleged error was fundamental, see
Ariz. R. Crim. P. 31.13(c)(1)(vi) (“The appellant’s brief shall include . . . the
proper standard of review . . . with citations to relevant authority, at the
outset of the discussion of that contention.”); State v. Carver, 160 Ariz. 167,
175, 771 P.2d 1382, 1390 (1989) (citing Rule 31.13 and providing that failure
to argue a claim constitutes abandonment and waiver of the claim); State v.
Moreno-Medrano, 218 Ariz. 349, 354 ¶ 17, 185 P.3d 135, 140 (App. 2008)
(concluding that because the defendant did not argue that the alleged error
was fundamental, the argument was waived).

¶29 Regardless of the waiver, however, although a one-person
show-up is inherently suggestive, State v. Williams, 144 Ariz. 433, 439, 698
P.2d 678, 684 (1985), the show-up identification procedures “are not
improper if conducted near the time of the crime or at the scene of the crime
and the evidence shows that the identification was reliable,” State v. Nelson,
129 Ariz. 582, 587, 633 P.2d 391, 396 (1981). Here, the record shows that
Bernardo identified Patron at the scene within an hour of the police’s arrival
and that the identification was reliable. After observing Patron for several
minutes, Bernardo identified her as “Cynthia”—Patron’s nickname.
Bernardo did not merely point out Patron as the woman he believed was
involved in the incident. He said that the woman’s name was “Cynthia”;
correctly identified Patron as “Cynthia,” even though he had never met her
before; and did so without knowing “Cynthia” was only Patron’s
nickname. Thus, nothing in the record suggest that Bernardo’s
identification of Patron “was not reliable enough to avoid a substantial
likelihood of misidentification.” State v. Lehr, 201 Ariz. 509, 520 ¶ 46, 38 P.3d
1172, 1182 (2002). Consequently, the trial court did not err in admitting
evidence of Bernardo’s pretrial identification of Patron.

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4. The Jury Instructions

¶30 Patron next argues that no evidence supports the instructions
for attempt to hide or conceal evidence or threaten a witness. Because
Patron did not object to the trial court, we review the issue for fundamental
error. Schrock, 149 Ariz. at 440, 719 P.2d at 1056. To prevail under
fundamental error review, a party must prove error, that the error was
fundamental, and that it caused her prejudice. Henderson, 210 Ariz. at 567
¶ 20, 115 P.3d at 607; State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342
(1992). We find no error.

¶31 A party is entitled to a jury instruction on any theory
reasonably supported by the evidence. State v. Vandever, 211 Ariz. 206, 208
¶ 7, 119 P.3d 473, 475 (App. 2005). Evidence that a defendant threatened or
otherwise attempted to influence a witness is admissible. State v. Robles, 135
Ariz. 92, 94, 659 P.2d 645, 647 (1983) (threats); State v. Allen, 140 Ariz. 412,
414, 682 P.2d 417, 419 (1984) (attempts to influence). Likewise, evidence that
a defendant attempted to conceal or hide evidence is also admissible. State
v. Van Alcorn, 136 Ariz. 215, 218, 665 P.2d 97, 100 (App. 1983). Attempts to
conceal evidence and threats against a witness are both evidence of
“consciousness of guilt.” Id. (concealing evidence); State v. Settle, 111 Ariz.
394, 396, 531 P.2d 151, 153 (1975) (threats). Thus, when a trial court admits
consciousness of guilt evidence, it may give the appropriate instructions.
See Van Alcorn, 136 Ariz. at 218, 665 P.2d at 100.

¶32 Here, the evidence supported the instructions. Regarding
hiding or concealing evidence, the record shows that when the police
arrived at the bar, the doors were locked despite the fact that the bar was
still open; regulations required that doors remain unlocked during business
hours; and police could hear music playing and people speaking inside.
Further, the police knocked on the door for five minutes before Patron
finally opened it. She then stood in the doorway for several minutes,
preventing their entrance. When police tried to enter past Patron, Balli
attempted to prohibit their entrance. This evidence supported the
concealment instruction.

¶33 For threats against a witness, the record reveals that Patron
threatened to kill Bernardo if he called the police. While the instruction
referred to attempts to influence testimony by threats rather than prevent
contact with the police by threats, to threaten to kill a witness if the witness
calls police is an attempt to influence testimonial statements. The
instruction’s wording may have been imperfect, but the instruction
adequately informed the jurors of the legal concept at issue. See State v.

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Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996) (providing that
instructions need not be faultless, but it must give jurors an understanding
of the issues and must not mislead them). Consequently, the trial court did
not err in instructing the jurors on attempt to hide or conceal evidence and
threats against a witness.

5. The Sentence for Aggravated Assault

¶34 Patron next contends that the trial court erred in imposing the
aggravated 2.75 years’ imprisonment for aggravated assault because the
jurors did not find any aggravating factors for sentencing purposes. Patron
did not object to the trial court, but we may reverse an illegal sentence on
appeal even in the absence of an objection. State v. Canion, 199 Ariz. 227, 230
¶ 10, 16 P.3d 788, 791 (App. 2000). Imposition of an illegal sentence
constitutes fundamental error. State v. Martinez, 226 Ariz. 221, 224 ¶ 17, 245
P.3d 906, 909 (App. 2011). Under fundamental error review, we must first
find that the court committed some error. Lavers, 168 Ariz. at 385, 814 P.2d
at 342. The trial court committed no error.

¶35 “Courts have power to impose sentences only as authorized
by statutes and within the limits set down by the legislature.” State v.
Rosario, 195 Ariz. 264, 268 ¶ 27, 987 P.2d 226, 230 (App. 1999). As relevant,
a trial court may impose the aggravated term for aggravated assault if at
least two aggravating factors in A.R.S. § 13–701 apply, A.R.S. § 13–703(F),
or if the aggravating factors are reflected in the verdict, see State v. Martinez,
210 Ariz. 578, 583 ¶ 16, 115 P.3d 618, 623 (2005).

¶36 Along with aggravated assault, the jurors convicted Patron of
aggravated robbery. A person commits robbery if, in the course of taking
property of another from his person or immediate presence and against his
will, she uses force with the intent to coerce the surrender of property or to
prevent resistance. A.R.S. § 13–1902(A). The robbery becomes aggravated if
the person is “aided by one or more accomplices actually present.” A.R.S. §
13–1903(A). The record shows that Patron instructed two men to beat
Bernardo, take all his money, kill him, and leave him. As the men were
following her directions, she stood nearby and observed, continuing to give
directions and answering their questions. The record also shows that Patron
and the men assaulted Bernardo solely to take his money, and the only
property Patron and the men ultimately took from Bernardo’s person was
his money. “[P]ecuniary means money[.]” Shepherd v. Platt, 177 Ariz. 63, 65,
865 P.2d 107, 109 (App. 1993). Consequently, the jury’s verdict for
aggravated robbery reflects that Patron committed the offenses with the
presence of accomplices and for pecuniary gain. Accordingly, because the

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jurys’ verdict reflected the two aggravating factors, the trial court did not
err in imposing an aggravated term for the aggravated assault.

CONCLUSION

¶37 For the foregoing reasons, we vacate Patron’s conviction and
sentence for kidnapping as charged in count 2 and affirm her other
convictions and sentences.

:ama

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