State of Arizona v. Miguel Rios ( 2021 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
MIGUEL ANGEL RIOS,
Appellant.
No. 2 CA-CR 2020-0106
Filed November 10, 2021
Appeal from the Superior Court in Pima County
No. CR20185480001
The Honorable Catherine M. Woods, Judge
AFFIRMED
COUNSEL
Mark Brnovich, Arizona Attorney General
Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals
By Mariette S. Ambri, Assistant Attorney General, Tucson
Counsel for Appellee
Joel Feinman, Pima County Public Defender
By Abigail Jensen, Assistant Public Defender, Tucson
Counsel for Appellant
STATE v. RIOS
Opinion of the Court
OPINION
Judge Brearcliffe authored the opinion of the Court, in which Presiding
Judge Eppich and Chief Judge Vásquez concurred.
B R E A R C L I F F E, Judge:
¶1 Miguel Rios appeals from his convictions after a jury trial for
two counts of aggravated harassment. The trial court sentenced him to
concurrent terms, the longest of which is 3.5 years. On appeal, Rios claims
that the court abused its discretion by denying his mid-trial request for self-
representation and that his convictions for aggravated harassment violate
constitutional double-jeopardy principles. We affirm.
Factual and Procedural Background
¶2 “We view the facts and all reasonable inferences therefrom in
the light most favorable to sustaining the convictions.” State v. Powers, 200
Ariz. 123, ¶ 2 (App. 2001). Rios and A.P. dated for approximately three
years, during which they lived together and had twin sons. Their
relationship ended in November 2017. In March 2018, Rios called A.P. fifty-
two times within thirty minutes while she was at a family gathering at her
mother’s house. When A.P. did not respond, Rios began “harassing [A.P.’s]
mother.”
¶3 The following day, A.P. sought and was granted an order of
protection against Rios. The order provided that Rios was to have no
contact with A.P., their twin sons, or A.P.’s daughter. After a contested
hearing, the order was modified to permit Rios to send A.P. two text
messages per day solely “to address legal decision making and parenting
time issues for parties’ children.” The order provided: “All permitted
communications shall be free of threats, profanity, insults, and attempts to
reconcile.”1
1Earlier
this year, we affirmed Rios’s convictions for two counts of
aggravated harassment in June 2018, based on his knowing violation of the
order of protection when he called A.P. eighteen times and sent her
hundreds of text messages in a twenty-four hour period. State v. Rios, No.
2 CA-CR 2019-0217, ¶¶ 1, 4 (Ariz. App. Apr. 22, 2021) (mem. decision).
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Opinion of the Court
¶4 On September 4, 2018, Rios again contacted A.P. by sending
her thirteen text messages. The first text was sent at 12:51 a.m. and the last
at 8:26 a.m. The first message stated, “I love you too.” A.P. later testified
that she was “confus[ed]” because she had not “do[ne] anything to warrant
that text message.” Nonetheless, she did not send any response. A.P. then
received the next text: “Did I. Fuck up or can I. See you?” Again, A.P. did
not respond. Rios then texted her, “I’m coming home wish me [l]uck” and
then in the eleventh of the thirteen messages, “Tell my kids I love them. I’m
going to prison for not following the restraining order I guess.” A.P. did
not respond to any of the messages Rios sent during this period and
reported these contacts to law enforcement.
¶5 Rios was charged with one count of aggravated harassment
of A.P. for disturbing her peace by texting her on September 4 and a second
count of aggravated harassment of A.P. for “commit[ting] a second or
subsequent violation of aggravated harassment” by disturbing her peace
by texting her on the same date. In his first trial, Rios asked to represent
himself just before closing argument, and the trial court granted this
request. That trial ended in a mistrial after the jury was unable to reach a
verdict. Rios requested new counsel for the second trial, and the court
appointed attorney Stephanie Meade. Meade later filed a motion to
withdraw from representing Rios, stating that “irreconcilable differences
have arisen,” and, although the court denied the motion, it later permitted
attorney Joseph Ezzo to take Meade’s place. Ezzo represented Rios during
his second trial.
¶6 During that trial, after the state had rested, and before his
testimony, Rios asked to personally cross-examine A.P., although Ezzo had
already cross-examined her during the state’s case. Ezzo told the trial court
that he knew of no basis to re-examine A.P., and the court denied the
request. Rios then stated he would “really, really like to cross-examine and
if there’s any way possible, even if I have to represent myself, I would like
to have the opportunity to do so.” The court said it saw no “good cause or
any legal ground to relieve [defense] counsel at this time,” but it agreed to
discuss Rios’s request outside of the presence of the jury.
¶7 The trial court asked Rios what his grounds were for his
request to relieve his, now, third lawyer. Rios responded that he wanted to
re-examine A.P. because he had “very, very important and crucial evidence
that [he] could not share with anybody else.” He further stated he was “the
only one who knows the facts between [him and A.P.], and [he] would
know exactly what questions [he] would need to ask [A.P.] to reveal this
crucial evidence.” Rios admitted that this was not newly discovered
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STATE v. RIOS
Opinion of the Court
evidence. The court noted that, even if Rios could represent himself, it
would “probably not” allow the use of undisclosed information. Ezzo told
the court that Rios had requested that he make a motion to permit the
evidence, but that he had sent Rios a lengthy email explaining why the
information was not relevant and that, with the closeness of trial, filing such
a motion was no longer timely. Ezzo assured the court that he was
“prepared to go through the rest of . . . trial.” Finding no good cause to
relieve Ezzo as counsel, and given Ezzo’s experience and willingness to
continue the representation, the court denied Rios’s request.
¶8 During deliberations, the jury submitted a written question to
the trial court, asking, “Why are there two counts? They seem the same.”
After conferring with counsel, the court instructed the jury to “[p]lease refer
to the indictment . . . [in] your preliminary jury instructions. Count One
alleges an act of aggravated harassment. Count Two alleges a second act of
aggravated harassment on the same day.”
¶9 Rios was convicted and sentenced as described above. This
appeal followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-
4031, and 13-4033(A).
Analysis
Request for Self-Representation
¶10 On appeal, Rios argues that the trial court abused its
discretion in denying his request to represent himself. We review a denial
of a request for self-representation for an abuse of discretion. State v.
Dunbar, 249 Ariz. 37, ¶ 10 (App. 2020). However, “an erroneous failure to
accord a defendant his properly asserted right to represent himself . . . is
structural error requiring reversal without a showing of prejudice.” State v.
McLemore, 230 Ariz. 571, ¶ 15 (App. 2012).
¶11 For an accused to exercise his constitutional right to proceed
without counsel and represent himself, he “must voluntarily and
knowingly waive his right to counsel and make an unequivocal and timely
request to proceed pro se.” State v. Lamar, 205 Ariz. 431, ¶ 22 (2003). A
request is generally considered timely if it is made before the jury is
empaneled. Id. If such a request is untimely, it falls within the discretion
of the trial court to grant or deny the request. State v. De Nistor, 143 Ariz.
407, 413 (1985). In exercising that discretion, the court should consider “the
reasons for the defendant’s request, the quality of counsel, the defendant’s
proclivity to substitute counsel, and the disruption and delay expected in
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STATE v. RIOS
Opinion of the Court
the proceedings if the request were to be granted.” Id. (quoting People v.
Barnes, 636 P.2d 1323, 1325 (Colo. App. 1981)).
¶12 Rios untimely sought leave to represent himself after the state
had rested for the purpose of eliciting testimonial evidence that had not
been disclosed before trial. At no time did Rios assert his attorney was
inadequate, he was being denied a fair trial, or any reason other than his
pursuit of undisclosed, likely inadmissible evidence. The trial court
recognized that defense counsel had extensive experience and was
prepared to go through with the rest of trial. Under the circumstances, and
in light of Rios’s repeated changes of counsel, the court did not abuse its
discretion in denying Rios’s request to represent himself.
Double Jeopardy
¶13 Rios also contends that his convictions for two counts of
aggravated harassment violate double-jeopardy principles because,
notwithstanding that he sent multiple text messages to A.P., they “arose
from a single, uninterrupted course of conduct.” 2 The state argues that
Rios’s convictions for aggravated harassment did not violate double
jeopardy because each communication with A.P. constituted a separate,
chargeable offense.
¶14 Because Rios did not object on this basis below, as he
concedes, we review only for fundamental error. See State v. Jurden, 239
Ariz. 526, ¶ 7 (2016). “The Double Jeopardy Clause” of the United States
and Arizona Constitutions3 “protects against multiple punishments for the
2Rios additionally argues that his charges violate double jeopardy
because “aggravated harassment as charged in Count 1 is a lesser-included
offense of ‘a second or subsequent’ aggravated harassment offense as
charged in Count 2.” “[W]here the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one is whether each
provision requires proof of an additional fact which the other does not.”
State v. Anderson, 210 Ariz. 327, ¶ 139 (2005). Here, as discussed, there is
not a “same act” but discrete, separate acts that contribute to each count
charged, and each act, or text message, violates the same statute—A.R.S.
§ 13-2921.01(A)(1). Therefore, this argument is not applicable to these
circumstances.
3“The Double Jeopardy Clause of the Fifth Amendment protects a
criminal defendant against multiple punishments or repeated prosecutions
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STATE v. RIOS
Opinion of the Court
same offense.” Id. ¶ 10. “[I]f multiple violations of the same statute are
based on the same conduct, there can be only one conviction if there is a
single offense.” Id. ¶ 11. In such a case, “the statutory definition of the
crime determines the scope of conduct for which a discrete charge can be
brought,” or, in other words, the “allowable unit of prosecution.” Id.
(quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221
(1952)). A double-jeopardy violation constitutes fundamental error. Id. ¶ 7;
see also U.S. Const. amend. V.
¶15 Section 13-2921(A)(1), A.R.S., provides that “[a] person
commits harassment if, with the intent to harass or with knowledge that the
person is harassing another person, the person” “contacts, communicates
or causes a communication with another person by verbal, electronic,
mechanical, telegraphic, telephonic, or written means in a manner that
harasses.” Harassment is further defined in this section to mean “conduct
that is directed at a specific person and that would cause a reasonable
person to be seriously alarmed, annoyed or harassed and the conduct in
fact seriously alarms, annoys or harasses the person.” § 13-2921(E).
¶16 Under A.R.S. § 13-2921.01(A)(1), harassment becomes
aggravated if the person commits harassment as provided in § 13-2921 and
the “court has issued an order of protection . . . against the person and in
favor of the victim of harassment.” Section 13-2921.01(C) provides that a
person who violates subsection (A)(1) of this section is guilty of a class six
felony, and a person who commits “a second or subsequent violation of
subsection [(A)(1)] of this section is guilty of a class 5 felony.” As stated
above, Rios was charged in count one with aggravated harassment, a class
six felony, and in count two with aggravated harassment, a class five felony.
¶17 Rios argues that “[t]he language used in the definition of the
crime of harassment in A.R.S. § 13-2921 indicates that multiple acts
occurring during the same course of conduct constitute a single offense.”
Consequently, he reasons that “[s]ending multiple text messages are, thus,
a single offense and together constitute a single ‘unit of prosecution.’” The
text messages are, he argues, inseparable as a legal matter and cannot
for the same offense and is applicable to the states through the Fourteenth
Amendment.” McLaughlin v. Fahringer, 150 Ariz. 274, 277 (1986). Article II,
§ 10 of the Arizona Constitution “is coextensive with the Fifth
Amendment’s Double Jeopardy Clause,” Jurden, 239 Ariz. 526, n.1, and we
thus analyze claims under each identically, State v. Eagle, 196 Ariz. 188, ¶ 5
(2000).
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STATE v. RIOS
Opinion of the Court
support two separate counts of harassment. Rios further contends that § 13-
2921 is ambiguous and that we must thus resolve the ambiguity “under the
rule of lenity, in [his] favor.” See State v. Fell, 203 Ariz. 186, ¶ 10 (App. 2002)
(“[R]ule [of lenity] applies when a statute is ambiguous and dictates that
any doubt about statutory construction be resolved in favor of a
defendant.”).
¶18 The state, on the other hand, argues § 13-2921 is unambiguous
in providing that each text to the victim constitutes a separate act or event
and thus each text constitutes a separate crime of harassment and “unit of
prosecution.” Therefore, the state asserts that one text may support the first
count of harassment and any of the remaining subsequent texts may
support the separate second count.
¶19 We interpret the applicable statutes de novo. Jurden, 239 Ariz.
526, ¶ 7. “If the statutory language is unambiguous, we apply it as written
without further analysis.” Id. ¶ 15. But if “the statute is subject to more
than one reasonable interpretation, we consider secondary principles of
statutory interpretation, such as the context of the statute, the language
used, the subject matter, its historical background, its effects and
consequences, and its spirit and purpose.” Id.
¶20 Rios relies on State v. Counterman, 8 Ariz. App. 526 (1968),
Jurden, 239 Ariz. 526, and State v. Powers, 200 Ariz. 123 (App. 2001), for his
argument that there can be only one conviction here. In Jurden, the
defendant was charged with two counts of resisting arrest under A.R.S.
§ 13-2508, because he had resisted arrest by two individual law enforcement
officers. 239 Ariz. 526, ¶ 3. The defendant urged that he should face only a
single charge of resisting (a single) arrest, not multiple charges determined
by the number of officers resisted. Id. ¶ 9. On review, our supreme court
examined the statute, deeming it “ambiguous because it may be reasonably
read to designate either an event-directed or victim-directed unit of
prosecution.” Id. ¶ 16. The court determined that the primary purpose of
§ 13-2508(A)(1) was to “punish resistance to state authority.” Id. ¶ 26.
Notwithstanding that multiple law enforcement officers might be involved
in suppressing the resistance, resistance was a unified act and the “the unit
of prosecution”—that is, the conduct that could be charged and punished—
was “a single, continuous act of resisting arrest.” Id. ¶¶ 16, 26.
Consequently, the defendant could only be charged with and convicted of
a single count of resisting arrest. Id. ¶ 26.
¶21 Years earlier, in Powers, we addressed multiple charges
resulting from a motor vehicle accident in which two victims had been
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Opinion of the Court
injured. 200 Ariz. 123, ¶ 3. Powers fled the scene and was ultimately
charged with two counts of leaving the scene of an accident under A.R.S.
§ 28-661—one count for each of the two injured victims. Powers, 200 Ariz.
123, ¶ 3. We first looked for statutory ambiguity. Id. ¶ 8. We found none,
however, determining that “[t]he plain and ordinary meanings of the terms
‘accident’ and ‘scene of the accident’ do not depend on the number of
victims. As commonly understood, only one accident scene exists even
though accidents often involve multiple victims and impacts.” Id. ¶ 9. We
thus concluded that the law “permits only one conviction for leaving one
accident scene regardless of the number of persons injured or killed.” Id.
¶ 15. We further concluded that the primary purpose of the law—
“prohibit[ing] drivers from seeking to evade civil or criminal liability by
escaping before their identity can be established”—supported this reading
of the law. Id. ¶ 13 (quoting State v. Rodgers, 184 Ariz. 378, 380 (App. 1995)).
¶22 We do not find either Jurden or Powers persuasive as to § 13-
2921. The statutes at issue in those cases were determined to be event-
directed, with the primary purposes being to protect broad societal
interests—punishing resistance to lawful authority (Jurden) and preventing
flight from an accident before identification (Powers). The singular
purposes dictated that only a single charge could arise from such conduct.
We read § 13-2921(A)(1) to be “victim-directed,” having been fashioned to
protect an individual victim from any act that “seriously alarms, annoys or
harasses.” See § 13-2921(E) (“‘Harassment’ means conduct that is directed
at a specific person.”). Because any act of harassment can harm a victim,
there may be multiple convictions arising from a harasser’s harmful acts
even within an otherwise definable period of time, provided each act meets
the statutory definition of harassment in § 13-2921.
¶23 In State v. Counterman, 8 Ariz. App. 526, 530-31 (1968), the
state charged multiple acts of assault with a deadly weapon as a single
count. This was unlike in Jurden or Powers, where the state charged multiple
counts although the chargeable conduct was, as the courts would
determine, a single offense. The defendant in Counterman first shot at the
victim while she tried to call the police, just missing her, and then, soon
after, actually shot the victim while her husband grappled with him for the
gun. Id. at 531. Because the state presented evidence of both gun shots, the
defendant argued that, to prevent double jeopardy, the state had to elect
which of the two shots was the charged “assault.” Id. Our court disagreed,
concluding that both acts could be part of an overall single “course” of an
assaultive act, and, if brought as a single act in a single charge, there need
be no election. Id.
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STATE v. RIOS
Opinion of the Court
¶24 Rios urges similarly that, even if the thirteen text messages
here are discrete acts, if they occur during a single course of conduct then
they must be bundled into a single charge. As we recently concluded,
however, Counterman does not require that the state charge multiple acts as
one offense when the offenses occur during a single, uninterrupted course
of conduct, merely that it may do so. See State v. Rodriguez, 251 Ariz. 90,
¶ 14 (App. 2021), review denied (Ariz. Nov. 5, 2021). The state may also, as
was done in Rodriguez, charge multiple acts of assault occurring during the
course of a single “transaction” as individual acts of assault. Id. The only
limitation being that each such assault must be individually proved. See
State v. Hoskins, 199 Ariz. 127, ¶ 73 (2000).
¶25 Ultimately, we do not find any ambiguity in the language of
the statutes here. As stated above, one can harass another by causing “a
communication” with another “by verbal, electronic, . . . telephonic, . . . or
written means.” § 13-2921(A)(1). As is relevant here, a text message is “[a]
message consisting of words typed or entered on a keypad and sent
electronically to a cell phone, especially from another cell phone.” Text
Message, The American Heritage Dictionary 1801 (5th ed. 2011). A text
message is arguably a writing, but it is, as Rios acknowledges, an
“electronic” and “telephonic” message.
¶26 A person may certainly communicate with another in a
conversation made up of a series of text messages. But a single text message
by itself may convey a complete thought with harassing intent. Rios
nonetheless would urge us to bind the state to pick some arbitrary time
period (here, a calendar day) within which to evaluate all of the messages
sent by the harasser as a group. We cannot agree that the statute can or
must be so read. Certainly, we see no legal impediment to a text message
such as “I am going to kill you” being chargeable as a discrete act of
harassment. And we see no coherent reason why the state could not charge
it as a discrete offense simply because other offending and harassing text
messages are also sent to the same victim the same day. Therefore, it was
not error to allow individual text messages to serve as support for separate
charges of aggravated harassment.
¶27 Accordingly, any one of the text messages sent here by Rios,
otherwise qualifying as a statutorily harassing communication, could be
separately charged, adjudged, and punished. There was no double-
jeopardy violation simply because one text message served as the basis of
count one and another, sent in the same twenty-four hour period, as the
basis for count two.
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Opinion of the Court
Disposition
¶28 For the foregoing reasons, we affirm Rios’s convictions and
sentences.
10