State v. Angulo ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
OSCAR TESSO ANGULO, Appellant.
No. 1 CA-CR 20-0009
FILED 1-19-2021
Appeal from the Superior Court in Maricopa County
No. CR2019-119908-001
The Honorable Annielaurie Van Wie, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Mark E. Dwyer
Counsel for Appellant
STATE v. ANGULO
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Maria Elena Cruz joined.
P E R K I N S, Judge:
¶1 Oscar Tesso Angulo appeals his conviction and sentence for
one count of shoplifting with two or more predicate offenses. Angulo
argues the superior court erred by admitting documentary evidence related
to the predicate offenses. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 We view the facts in the light most favorable to sustaining the
jury verdict and resolve all reasonable inferences against Angulo. See State
v. Nelson, 214 Ariz. 196, 196, ¶ 2 (App. 2007). In May 2019, Angulo entered
a Walgreens donning a black hat and bright neon vest. A Walgreens
employee, V.O., saw Angulo take an eighteen-pack of beer. V.O. asked
Angulo if he wanted to pay for it and Angulo said no. V.O. called 911 and
watched Angulo leave the store to walk across the street.
¶3 Officers responded to the area. Officer Hadlock approached
Angulo who was holding a can of beer behind his back with a pack of beer
next to him. Officer Hadlock also noticed “a bright colored neon vest”
inside of a bag that was between Angulo’s legs. Officer Hadlock detained
Angulo. Shortly thereafter, V.O. identified Angulo as the beer thief.
¶4 Officer Hadlock checked Angulo’s criminal history, which
included two prior shoplifting convictions in July 2018 and November 2017.
After receiving Miranda warnings, pursuant to Miranda v. Arizona, Angulo
told Officer Hadlock that he shoplifted the beer because he “didn’t have
any money.” 384 U.S. 436 (1966).
¶5 A grand jury indicted Angulo for shoplifting with two or
more predicate offenses, a class 4 felony, in violation of A.R.S. § 13-1805(I).
At a trial management conference, the prosecutor asked the superior court
if the documents related to Angulo’s predicate offenses should be sanitized.
Angulo’s defense counsel replied, “I don’t know that we received prior
misdemeanors, certified—copies of prior certified misdemeanors.” The
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STATE v. ANGULO
Decision of the Court
prosecutor did not know if the documents had been disclosed but planned
to follow up with her paralegal.
¶6 Just before jury selection, the State disclosed (via email) the
certified copies of Angulo’s predicate offenses, namely two shoplifting
convictions from Phoenix Municipal Court. Angulo moved to preclude the
documents from evidence due to delayed disclosure. The prosecutor “was
100 percent in belief [the documents] had been previously disclosed.” She
argued that Angulo suffered no prejudice from the late disclosure because
the indictment cited each offense by date, citation number, and court. Thus,
Angulo had sufficient notice that the State intended to rely on these as
predicate offenses.
¶7 The superior court initially precluded the evidence because
the documents addressed an element of the crime and the nature of the
State’s error did not excuse the disclosure deadlines. But the court noted
that the documents could still be used to refresh a witness’s recollection.
Later, when the parties returned from a lunch recess, the superior court
reversed its earlier evidentiary ruling and allowed the State to use the
documents. The court reasoned that because the State described the
relevant information in the indictment, “there was [no] unfair surprise” and
Angulo suffered no prejudice. But the court acknowledged the last-minute
disclosure was “unsettling.”
¶8 After the State rested its case, Angulo moved for a judgment
of acquittal, which the superior court denied. See Ariz. R. Crim. P. 20.
Angulo did not present evidence or testify. The jury found Angulo guilty
and the court sentenced him to seven years’ imprisonment with 220 days of
pre-incarceration credit. Angulo timely appeals and we have jurisdiction
under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 13-4031
and -4033(A).
DISCUSSION
¶9 Angulo argues the superior court abused its discretion by
allowing the State to admit the certified copies of Angulo’s prior shoplifting
convictions. Specifically, he argues the State failed to timely disclose the
documents under Rule 15 of the Arizona Rules of Criminal Procedure,
warranting preclusion of the evidence. Because Angulo objected to the
documents’ admissibility at trial, we conduct a harmless error analysis. See
State v. Henderson, 210 Ariz. 561, 564–65, ¶ 8 (2005). We review the court’s
ruling on the admissibility of evidence for an abuse of discretion. State v.
Sanders, 245 Ariz. 113, 128, ¶ 58 (2018).
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STATE v. ANGULO
Decision of the Court
¶10 The scope of Rule 15 is quite broad. State v. Dodds, 112 Ariz.
100, 102 (1975). Discovery rules in a criminal proceeding operate to give
“full notification of each side’s case-in-chief so as to avoid unnecessary
delay and surprise at trial.” Id. After providing its initial disclosure to
Angulo, the State had a continuing duty to disclose any information subject
to disclosure. See Ariz. R. Crim. P. 15.6(a). The prosecutor failed to timely
disclose the documents before the final deadline. See Ariz. R. Crim. P.
15.6(c) (Rule 15 disclosures must be made at least seven days before trial).
The prosecutor also failed to follow the procedures outlined in Rule 15(d),
which requires a motion and supporting affidavit to justify extending the
disclosure deadline. The parties disagree about whether the prosecutor’s
failure to provide Angulo with certified copies of his misdemeanor
convictions amounts to a disclosure violation.
¶11 The court explicitly stated its concern about Angulo receiving
the documents only two minutes before jury selection. Angulo correctly
asserts that he should have received the documents months before trial.
Assuming a disclosure violation indeed occurred, the court still did not err
in denying Angulo’s motion to preclude the evidence.
¶12 When the superior court learned of the late disclosure, it
could have imposed any remedy or sanction it found just under the
circumstances, including but not limited to precluding the evidence. See
Ariz. R. Crim. P. 15.7(c); see also State v. Armstrong, 208 Ariz. 345, 353, ¶ 38
(2004). But the decision to impose sanctions (or not) falls squarely within
the superior court’s broad discretion. See State v. Moody, 208 Ariz. 424, 454
¶ 114 (2004). We will find an abuse of discretion only if Angulo can
demonstrate that the delayed disclosure prejudiced him. See State v.
Martinez-Villareal, 145. Ariz. 441, 448 (1985). Prejudice exists when a party
is subject to surprise or delay under the discovery rules. Id.¶13 The superior court found that the late disclosure did not
subject Angulo to any unfair surprise. We agree. The indictment provides
detailed information for each misdemeanor shoplifting charge including
date, citation number, and court. Thus, the State provided Angulo with
sufficient notice of which prior convictions it would introduce to prove its
case. Angulo also provides no evidence that the State’s delay in
transmitting the documents was anything but inadvertent. As such, we find
the superior court did not abuse its discretion by admitting the documents
as evidence.
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STATE v. ANGULO
Decision of the Court
CONCLUSION
¶14 We affirm Angulo’s conviction and sentence.
AMY M. WOOD • Clerk of the Court
FILED: AA
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