State v. C Diaz

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 28,703 5 CHRISTOPHER DIAZ, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY 8 Grant L. Foutz, District Judge 9 Gary K. King, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Hugh W. Dangler, Chief Public Defender 13 Navin H. Jayaram, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 FRY, Chief Judge. 18 Defendant appeals his convictions for two counts of child abuse for cruelly 19 punishing his teenage step-daughter, Valandrea. We proposed to affirm in a notice 20 of proposed summary disposition, and pursuant to seven extensions, Defendant has 1 filed a timely memorandum in opposition. Remaining unpersuaded by Defendant’s 2 memorandum, we affirm his convictions. 3 Sufficiency 4 Defendant challenges the sufficiency of the evidence to support his convictions 5 for intentional child abuse contending that there was insufficient evidence to show that 6 he intentionally “cruelly punished” Valandrea. [MIO 5-7] 7 In analyzing a sufficiency challenge on appeal, we view the evidence in the 8 light most favorable to the verdict, resolving all conflicts and indulging all inferences 9 in favor of the verdict. State v. Apodaca, 118 N.M. 762, 765-66 , 887 P.2d 756 , 759- 10 60 (1994). We do not weigh the evidence or substitute our judgment for that of the 11 fact finder. State v. Mora, 1997-NMSC-060, ¶ 27 , 124 N.M. 346 , 950 P.2d 789 . 12 Further, the jury is free to reject Defendant’s version of the facts. See State v. Rojo, [13] 1999-NMSC-001 , ¶ 19, 126 N.M. 438 , 971 P.2d 829 . Finally, we note that this Court 14 cannot consider the merit of evidence that may have supported a different result. State 15 v. Kersey, 120 N.M. 517, 520 , 903 P.2d 828, 831 (1995). 16 In order to convict Defendant of count two of child abuse, the State had to 17 prove, beyond a reasonable doubt that: Defendant caused Valandrea to be cruelly 18 punished; he acted intentionally and without justification; Valandrea was under the [2] 1 age of eighteen (18); and the event happened on or about December 16, 2005. [RP 2 221] See UJI 14-604 NMRA. In order to convict Defendant of count four of child 3 abuse, the State had to prove, beyond a reasonable doubt that: Defendant caused 4 Valandrea to be cruelly punished; he acted intentionally and without justification, 5 Valandrea was under the age of eighteen (18); and the event happened on or about 6 April 18, 2005. [RP 223] See UJI 14-604. 7 In support of the convictions, Valandrea testified that she was under the age of 8 eighteen when the alleged incidents of abuse occurred. [RP 162, 166, 175] As to 9 count two, Valandrea testified that on December 16, 2005, she and Defendant were 10 on the way to a basketball game for Valandrea’s brother when Defendant questioned 11 her about the money in her checking account. [RP 168] Defendant became angry and 12 pushed Valandrea so she landed on her back on the floor. [RP 168] He kicked her 13 three or four times with steel-toed boots, stepped on her stomach, and then used his 14 body to bounce up and down on her so that she could not breathe. [RP 168] She 15 testified that after Defendant got off of her and stood over her, he slapped her two or 16 three times, and walked away. [RP 169] 17 As to count four, Valandrea testified that on April 5, 2005, she had forgotten 18 to bring Defendant’s “sugar tester” to an appointment. [RP 163] After they arrived [3] 1 home to get the tester, Defendant grabbed a pair of needle-nose pliers and tried to grab 2 Valandrea’s stomach. [RP 163] When Valandrea got away, Defendant threw the 3 pliers at her, striking her in the left thigh, going through her jeans and into her leg. 4 [RP 163] Valandrea testified that she was bleeding and in pain and had to go to the 5 hospital. [RP 164] She testified that she received six to seven stitches. [RP 164] An 6 exhibit was entered showing the scar on Valandrea’s leg that she said resulted from 7 the pliers incident. [RP 164] It appears that further testimony established that the 8 incident actually occurred on April 25, 2005. [RP 165, 185, 192] 9 Viewing the evidence in the light most favorable to the verdict, it is sufficient 10 to support Defendant’s convictions. We are aware that Defendant contends that there 11 was other testimony calling Valandrea’s veracity and her version of the events into 12 question. [MIO 6-7] However, this contrary evidence does not warrant reversal on 13 the grounds of insufficiency because we defer to the fact finder’s decision when 14 weighing any contradictory evidence and assessing the credibility of the witnesses. 15 See State v. Sosa, 2000-NMSC-036 , ¶ 8, 129 N.M. 767 , 14 P.3d 32 (stating that the 16 “credibility of witnesses is for the jury”); State v. Riggs, 114 N.M. 358, 362-63 , 838 17 P.2d 975, 979-80 (1992) (stating that the jury determines questions of credibility and 18 the weight to be given to evidence); cf. State v. Caudillo, 2003-NMCA-042, ¶ 7 , 133 [4] 1 N.M. 468 , 64 P.3d 495 (holding that, on appeal, the question is whether substantial 2 evidence supports the verdict not whether substantial evidence would have also 3 supported acquittal). Finally, we disagree with Defendant’s statement that the only 4 evidence supporting his conviction for count four was a photo of the scar because 5 Defendant is ignoring Valandrea’s testimony. [MIO 6] Therefore, we affirm on this 6 issue. 7 Instruction on “Cruelly Punish” 8 Defendant contends that the district court erred in refusing to instruct the jury 9 on the definition of “cruelly punish.” [MIO 7-8] We disagree. 10 Neither the statute nor the uniform jury instructions set forth the meaning of 11 “cruelly punish,” and Defendant requested a non-uniform instruction which the 12 district court refused. [MIO 7] See NMSA 1978, § 30-6-1(D)(2) (2005); UJI 14-604. 13 We apply a de novo standard of review to the question of whether the court should 14 have given Defendant’s proposed instruction. See State v. Salazar, 1997-NMSC-044 , 15 ¶ 49, 123 N.M. 778 , 945 P.2d 996 (“The propriety of jury instructions given or denied 16 is a mixed question of law and fact. Mixed questions of law and fact are reviewed de 17 novo.”). [5] 1 It is well-established that the district court does not err in failing to give an 2 instruction defining a term that has a common meaning. See State v. Munoz, 2006- 3 NMSC-005, ¶ 24, 139 N.M. 106 , 129 P.3d 142 . However, Defendant contends that 4 the term “cruelly punish” does not have a common meaning. [MIO 7] We disagree. 5 See id. (concluding that, “[s]ince the phrase protracted period of time is 6 self-explanatory and has an understandable and common meaning, there was no need 7 for further definition” (emphasis omitted)). 8 We are of the opinion that a reasonable juror would not be confused by the term 9 “cruelly punish” and could form his or her own opinion about what cruel punishment 10 is without being specifically instructed. See State v. Watchman, 2005-NMCA-125 , 11 ¶ 11, 138 N.M. 488 , 122 P.3d 855 (observing that, when reviewing the propriety of 12 jury instructions, we consider “whether a reasonable juror would have been confused 13 or misled by the instruction”); cf. State v. Carnes, 97 N.M. 76, 79 , 636 P.2d 895 , 898 14 (Ct. App. 1981) (holding that the district court's refusal to give the defendant's 15 tendered instruction defining the term “hostage” in connection with kidnapping 16 charges was not reversible error because hostage is not a technical term and a jury 17 could apply the common meaning of that word). As the meaning of “cruelly punish” [6] 1 is readily understandable, any failure to give an instruction on this term is not 2 reversible error, and we affirm on this issue. See Munoz, 2006-NMSC-005, ¶¶ 23-26 . 3 Instruction on Parental Privilege 4 Defendant contends that the district court erred in refusing Defendant’s 5 tendered instruction on parental privilege. [MIO 8-9] We disagree. 6 “A defendant is entitled to have the jury instructed on his theory of the case if 7 that theory is supported by the evidence.” State v. Nieto, 2000-NMSC-031 , ¶ 15, 129 8 N.M. 688 , 12 P.3d 442 . We apply a de novo standard of review to the district court’s 9 denial of Defendant’s proposed instruction. See Salazar, 1997-NMSC-044, ¶ 49 . 10 In our notice of proposed summary disposition, we proposed to affirm because 11 there was no evidence suggesting that the physical violence Defendant directed toward 12 Valandrea was the result of his parental privilege. [RP 197-201] Cf. State v. Lefevre, [13] 2005-NMCA-101, ¶ 13 , 138 N.M. 174 , 117 P.3d 980 (noting that “[t]he common law 14 recognized a parental privilege to use moderate or reasonable physical force” in 15 disciplining a child). To the contrary, Defendant denied ever using any physical force 16 on Valandrea. [RP 197-201] See Salazar, 1997-NMSC-044, ¶ 53 (holding that the 17 district court properly refused an instruction on voluntary manslaughter because the 18 defendant never testified that he shot the victim because she provoked him; instead, [7] 1 his testimony that the gun accidentally discharged “precludes the possibility that he 2 acted out of provocation”). Furthermore, Valandrea’s testimony does not suggest that 3 Defendant used “moderate or reasonable physical force” in an effort to discipline her. 4 [RP 163-164, 168-69] As there was no evidence suggesting that Defendant used 5 moderate or reasonable physical force in an effort to discipline Valandrea, we 6 proposed to hold that there was no need to instruct the jury on this theory. Cf. Lefevre, [7] 2005-NMCA-101, ¶ 17 (stating that if “a question of parental privilege exists, the 8 [s]tate must prove beyond a reasonable doubt that the parent's conduct did not come 9 within the privilege”). 10 In his memorandum in opposition, Defendant claims that he was entitled to an 11 instruction on parental privilege because the privilege is not inconsistent with his 12 defense that he argued with Valandrea but he did not kick or kneel on her. [MIO 9] 13 We are unconvinced because admitting to an argument does not constitute evidence 14 of “moderate or reasonable physical force” which is at the core of the parental 15 privilege defense. Id. ¶ 13. 16 Finally, we note that in order to convict Defendant of the two counts of child 17 abuse, the jury had to find that Defendant caused Valandrea to be “cruelly punished,” 18 and he acted “intentionally and without justification.” [RP 221, 223] This finding [8] 1 negates the need to give an instruction on parental privilege. See id. ¶ 16 (recognizing 2 that a parent “has a privilege to use moderate or reasonable physical force . . . [but t]he 3 physical force cannot be cruel or excessive if it is to be justified”); cf. Nieto, 2000- 4 NMSC-031, ¶ 15 (recognizing that the district court need not give an instruction if the 5 element of the crime is adequately defined in other instructions given). Whether 6 Defendant was justified in striking Valandrea in a manner that was neither cruel nor 7 excessive is subsumed by the child abuse instructions. A jury finding that Defendant 8 cruelly punished Valandrea and that he acted without justification negates a finding 9 that he was using reasonable physical force to discipline her. See Lefevre, 2005- 10 NMCA-101, ¶ 16; cf. Nieto, 2000-NMSC-031 , ¶ 15. Therefore, we affirm on this 11 issue. 12 Motion to Sever 13 Defendant claims that the district court erred in denying Defendant’s motion to 14 sever, filed on the day of trial and denied as untimely. [MIO 9-10; RP 140, 160] We 15 affirm. 16 All of the charges against Defendant concern acts of physical violence against 17 one victim over a one year period. Thus, they are “of the same or similar character” 18 and “based on the same conduct or on a series of acts” and must be joined pursuant [9] 1 to Rule 5-203(A) NMRA; see State v. Gallegos, 2007-NMSC-007, ¶ 10 , 141 N.M. 2 185, 152 P.3d 828 (recognizing that “Rule 5-203(A) is not a discretionary or 3 permissive rule; it demands that the [s]tate join certain charges”). However, severance 4 is appropriate “[i]f it appears that a defendant or the state is prejudiced by a joinder 5 of offenses.” Rule 5-203(C). The decision to grant or deny a motion to sever offenses 6 charged in a single criminal information is within the sound discretion of the district 7 court and will not be disturbed on appeal absent an abuse of discretion. See State v. 8 Duffy, 1998-NMSC-014, ¶ 43 , 126 N.M. 132 , 967 P.2d 807 . Our review of a district 9 court’s decision is “exceedingly narrow” and limited to the question of whether the 10 joinder created “an appreciable risk that the jury convicted for illegitimate reasons.” [11] Id. (internal quotation marks and citation omitted). 12 Defendant does not deny that an amended criminal information was filed on 13 April 20, 2007, yet the matter did not go to trial until December 18, 2007. [RP 62, 14 145; MIO 10] He does not deny that he never suggested that severance was warranted 15 before filing the severance motion on the day of trial after the jury had already been 16 selected. [RP 160; MIO 10] Allowing severance at that point would have 17 significantly affected the court’s ability to manage its docket in a timely manner; the 18 district court was therefore justified in denying the motion as untimely. [10] 1 Denial was also justified because Defendant failed to make a showing that he 2 was prejudiced by the failure to sever. See id. Defendant contends that denying the 3 motion to sever greatly prejudiced him because “it was difficult to defend against the 4 counts since one count could not be easily differentiated than the other when they 5 were all put together in the charging document.” [MIO 10] We are not persuaded. 6 Each count in the amended criminal information involved discrete dates, [RP 7 62-63] and the district court’s actions indicate that the counts were easily 8 differentiated. Counts one and three were dismissed at trial because no testimony was 9 proffered to prove these counts. [MIO 3-4] As no testimony was proffered, 10 Defendant could not have been hindered in his defense or prejudiced by the failure to 11 sever these counts. 12 Counts five and six were also dismissed by the district court. [MIO 4] As to 13 count five, Valandrea alleged that Defendant had inflicted a thumb injury on her, but 14 could not remember when. [MIO 4] That count was dismissed for lack of evidence. 15 [MIO 4] Count six involves allegations that Valandrea was “forced to run away from 16 home” which was a form of cruel punishment. [MIO 4] The court also dismissed this 17 count. [MIO 4] [11] 1 Defendant was convicted of counts two and four which involve discrete acts 2 which resulted in injury on two discrete occasions, a physical altercation on December 3 16, 2005, and an incident involving pliers in April 2005. [RP 163-164, 168-169] 4 Given the lack of evidence introduced as to the remaining counts and the specificity 5 of the evidence concerning counts two and four, we are not convinced that Defendant 6 was hindered in his defense or suffered any prejudice by the failure to sever the six 7 counts at the beginning of trial. 8 Finally, as discussed in our notice of proposed summary disposition, there is 9 nothing in Defendant’s motion or in his arguments before the district court indicating 10 that he provided any specific reasons that might warrant severance beyond the reasons 11 that would apply in any case where a defendant is charged with committing multiple 12 acts of abuse against the same victim. [RP 140, 159-160] Juries are routinely trusted 13 with deciding cases which involve more than one charge and are instructed, as the jury 14 was in this case, to consider each charge separately. See UJI 14-6004 NMRA. [RP 15 231] Therefore, we are unconvinced that the district court abused its discretion in 16 failing to sever the counts against Defendant, and we affirm on this issue. [12] 1 Failure to Provide a Statement of Facts 2 Defendant claims that the district court erred in failing to order the State to 3 provide a “statement of facts.” [MIO 10-13] We disagree. 4 On October 4, 2006,the State filed a criminal information charging Defendant 5 with six counts of child abuse, and all of the counts had the same date range, January 6 2005 to January 2006. [RP 1-2; MIO 2] On March 15, 2007, Defendant moved for 7 a statement of facts asking the State to specify the dates when the child abuse 8 allegedly occurred and to specify the actions of Defendant on the respective dates. 9 [RP 45-46; MIO 2] An amended criminal information was filed on April 20, 2007. 10 [RP 62-63] The amended criminal information specifies that the abuse leading to 11 count two occurred on or about December 16, 2005, and the abuse leading to count 12 four occurred on or about April 18, 2005. [RP 62-63] The amended criminal 13 information specifies that count one concerns the month of January 2005, count three 14 concerns December 2005, count five concerns July 2005, and count six specifies 15 abuse occurring January 13, 2006. [RP 62-63] 16 At a status conference on April 30, 2007, the State maintained that Defendant 17 had all of the information necessary to prepare his defense based upon the information 18 provided at the preliminary hearing. [RP 71-72] After the conference, Defendant did [13] 1 not file a motion to compel the State to produce a statement of facts nor did Defendant 2 ever identify the missing information that he believed was critical for his defense. Cf. 3 Rule 5-205(A) and (C) NMRA (setting forth the allegations that need not be contained 4 in an indictment or criminal information but which may be included in a statement of 5 facts including: (1) time of the commission of offense; (2) place of the commission 6 of offense; (3) means by which the offense was committed; and (6) intent with which 7 an act was done). Defendant then moved to dismiss the charges against him on the 8 day of trial because the State had failed to produce a statement of facts. [RP 135] The 9 district court denied the motion. [MIO 10] 10 Defendant claims that his motion for statement of facts should have been 11 granted because otherwise the jury could potentially convict him more than once for 12 a single act. [MIO 12] He cites to case law standing for the proposition that an 13 indictment must be sufficiently particular to apprise the defendant of the offenses 14 charged so that the defendant can adequately prepare his defense. [MIO 11] Cf. State 15 v. Baldonado, 1998-NMCA-040, ¶¶ 26-28 , 124 N.M. 745 , 955 P.2d 214 (stating that 16 lengthy charging periods require careful scrutiny to ensure that a defendant's due 17 process rights are protected). We are unpersuaded. [14] 1 First, the amended criminal information specifies discrete time periods for each 2 count of alleged child abuse. [RP 62-63] We fail to understand how the defense 3 could have been hindered or the jury could have mistakenly convicted Defendant 4 more than once for a single act, given the discrete time periods in each count. 5 Furthermore, as previously discussed in addressing Defendant’s motion to sever, the 6 counts were sufficiently differentiated as to time period of wrongs alleged so as to 7 allow the district court to dismiss all of the counts except counts two and four. [RP 8 190-193] 9 In light of the discrete time periods set forth in the amended criminal 10 information, the information apparently provided at the preliminary hearing, and the 11 district court’s dismissal of counts one, three, five and six, we conclude that 12 Defendant was sufficiently apprised of the charges against him, and the district court’s 13 failure to order the State to provide a statement of facts did not cause Defendant to 14 suffer any prejudice to his defense. Cf. State v. Fernandez, 117 N.M. 673, 677 , 875 15 P.2d 1104 , 1108 (Ct. App. 1994) (“In the absence of prejudice, there is no reversible 16 error.”). Therefore, the district court did not abuse its discretion in denying 17 Defendant’s motion for statement of facts on the day of trial. Cf. Baldonado, [18] 1998-NMCA-040, ¶ 32 (holding that even if the court finds that the charging period [15] 1 is not “reasonably particular,” it must address whether the defendant was prejudiced 2 by the overly-broad period (internal quoation marks and citation omitted)); State v. 3 Archuleta, 82 N.M. 378, 384 , 482 P.2d 242, 248 (Ct. App. 1970) (holding that the 4 district court did not err in denying the motion for a bill of particulars because the 5 district court had found that the preliminary hearing transcript “afforded reasonable 6 information as to the nature and character of the crime charged,” and nothing 7 indicated that the district court’s finding was in error). 8 Improper Character Evidence and Prosecutorial Misconduct 9 Defendant contends that a mistrial should have been granted due to the State’s 10 improper introduction of character evidence and the prosecutor’s misconduct by 11 eliciting improper testimony from Valandrea. [MIO 13] We affirm. 12 As to the improper character evidence, in our notice of proposed summary 13 disposition, we stated that we were unable to thoroughly analyze this issue because 14 Defendant failed to provide any details about the improper character evidence that was 15 allegedly introduced by the State. See Rule 12-208(D)(3) NMRA; Thornton v. 16 Gamble, 101 N.M. 764, 769 , 688 P.2d 1268, 1273 (Ct. App. 1984). We instructed 17 Defendant to provide us with the substance of the allegedly improper evidence and 18 whether he objected to its introduction. [16] 1 In his memorandum in opposition, Defendant contends that Valandrea 2 mentioned at trial that her mother left the home because Defendant allegedly abused 3 her. [MIO 13] He also contends that the prosecutor committed misconduct by 4 eliciting Valandrea’s testimony that her mother left their house because of 5 Defendant’s abuse. [MIO 13-15] 6 After Valandrea made the improper statement, Defendant objected and moved 7 for a mistrial. [RP 163; MIO 13-15] We review the district court’s ruling denying 8 that motion for an abuse of discretion. See State v. Gonzales, 2000-NMSC-028 , ¶ 35, [9] 129 N.M. 556 , 11 P.3d 131 . “An abuse of discretion occurs when the ruling is clearly 10 against the logic and effect of the facts and circumstances of the case. We cannot say 11 the district court abused its discretion by its ruling unless we can characterize it as 12 clearly untenable or not justified by reason.” Rojo, 1999-NMSC-001, ¶ 41 (internal 13 quotation marks and citation omitted). 14 In our earlier notice, we proposed to hold that the court did not abuse its 15 discretion in denying the mistrial. First, contrary to Defendant’s contention, we noted 16 that there is no indication that the improper statement resulted from any misconduct 17 by the prosecutor. [RP 163; MIO 14-15] See State v. Simonson, 100 N.M. 297, 301 , [18] 669 P.2d 1092, 1096 (1983) (distinguishing a case in which a prosecutor deliberately [17] 1 asked a question in order to elicit improper evidence), abrogated by State v. Ruiz, [2] 2007-NMCA-014 , 141 N.M. 53 , 150 P.3d 1003 . Instead, Valandrea appeared to offer 3 the statement as to why her mother left without any prompting from the prosecutor. 4 [RP 163] Moreover, we observed that the district court instructed the jurors to 5 disregard Valandrea’s statement, [RP 163] and “[t]he overwhelming New Mexico 6 case law states that the prompt sustaining of the objection and an admonition to 7 disregard the answer cures any prejudicial effect of inadmissible testimony.” 8 Gonzales, 2000-NMSC-028 , ¶ 37 (internal quotation marks and citation omitted). In 9 light of the curative instruction, we were unconvinced that Defendant was prejudiced 10 by Valandrea’s statement. See State v. Trujillo, 2002-NMSC-005, ¶ 45 , 131 N.M. 11 709 , 42 P.3d 814 (“Although the statement may have had some prejudicial effect, [the 12 d]efendant has not demonstrated that had this statement not come in, the result of the 13 proceeding would have been different.”). 14 In his memorandum in opposition, Defendant provides no additional support 15 for his contention that he was prejudiced by Valandrea’s statement. [MIO 14-15] 16 However, he claims that this one instance of prosecutorial misconduct was “so 17 egregious that it warrants a new trial.” [MIO 15] We are unpersuaded and therefore 18 affirm on this issue. [18] 1 Safehouse Interviews 2 Defendant claims that the district court erred in not ordering the State to 3 produce the safe house interviews of Valandrea and her sister and/or in failing to 4 impose sanctions on the State for its failure to produce copies of these interviews. 5 [MIO 15] Defendant does not dispute our observation in the notice of proposed 6 summary disposition that he never filed a motion to compel production of this 7 information nor sought the court’s assistance in obtaining this information until he 8 sought seeking dismissal of the charges on the day of trial in part based on the State’s 9 failure to provide copies of the safe house interviews. [RP 142-43, 159-160; MIO 15] 10 Based upon Defendant’s failure to seek the court’s assistance in obtaining the 11 safe house interviews and the lack of any order compelling the State to produce these 12 interviews, we proposed to hold that the district court did not err in failing to order 13 production of the interviews or in failing to impose sanctions for the State’s failure to 14 produce these interviews. Cf. State v. Gonzales, 1996-NMCA-026 , ¶ 10, 121 N.M. 15 421, 912 P.2d 297 (reviewing district court’s sanction for violation of discovery order 16 for abuse of discretion). We also proposed to hold the Defendant suffered no 17 prejudice from the State’s failure to produce these interviews because there was no 18 suggestion that the interviews would provide exculpatory information. [RP 16, 193- [19] 1 197] See State v. Fairweather, 116 N.M. 456, 463 , 863 P.2d 1077, 1084 (1993) (“The 2 mere assertion of prejudice, without more, is insufficient to establish prejudicial 3 error[.]”); Fernandez, 117 N.M. at 677 , 875 P.2d at 1108 . 4 In his memorandum in opposition, Defendant claims that he was prejudiced by 5 the failure to have access to these interviews. [MIO 15] However, in the absence of 6 any showing of prejudice, we affirm on this issue. See Fairweather, 116 N.M. at 463 , [7] 863 P.2d at 1084 . 8 CONCLUSION 9 For the foregoing reasons as well as those set forth in our notice of proposed 10 disposition, we affirm Defendant’s convictions. 11 IT IS SO ORDERED. [12] 13 CYNTHIA A. FRY, Chief Judge 14 WE CONCUR: [15] 16 LINDA M. VANZI, Judge [17] 18 TIMOTHY L. GARCIA, Judge