State v. Cienfuegos

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ERNIE FRANCISCO CIENFUEGOS, Appellant.

No. 1 CA-CR 19-0365
FILED 6-23-2020

Appeal from the Superior Court in Maricopa County
No. CR 2018-119484-001
The Honorable Julie Ann Mata, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Brian R. Coffman
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Robert W. Doyle
Counsel for Appellant
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MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Kent E. Cattani joined.

C A M P B E L L, Judge:

¶1 Ernie Francisco Cienfuegos appeals his conviction and
sentence for criminal damage, a class 1 misdemeanor. He argues the
superior court erred by: (1) admitting evidence of a pre-trial identification,
and (2) denying his motions for judgment of acquittal. For the following
reasons, we affirm.

BACKGROUND

¶2 While making deliveries, the victim, a professional truck
driver, stopped his vehicle at a red light. When the light turned green and
the victim began driving into the intersection, someone stepped out into the
street in front of his truck and threw a rock through his windshield.

¶3 Immediately, the victim dialed 911. With the rock-thrower
still in sight, the victim described the perpetrator to the emergency
operator—a thin Hispanic man, in his late teens or early 20s, wearing light
shoes, a backward hat, a dark shirt, and red athletic shorts.

¶4 Moments later, a police officer responded to the scene and
observed a man who matched the reported description holding a rock in
his right hand. When the officer ordered the suspect to drop the rock, he
ran away. Although the officer chased after the suspect, he eventually lost
sight of him in a townhouse complex. Before long, however, the officer
spotted the suspect in the passenger seat of a car leaving the complex. While
the suspect was wearing different clothing, the officer recognized his facial
features, including a goatee. The officer stopped the car and arrested the
suspect, Cienfuegos.

¶5 Shortly thereafter, other police officers brought the victim to
the complex to conduct a one-on-one showup identification.1

1 The term “showup” refers to “[a] police procedure in which a
suspect is shown singly to a witness for identification, rather than as part of
a lineup.” Showup, Black’s Law Dictionary (11th ed. 2019).

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Notwithstanding the suspect’s changed clothing, the victim positively
identified Cienfuegos as the man who threw the rock through his
windshield. The next day, the victim’s employer replaced the truck’s
windshield at an expense of $391.16.

¶6 The State charged Cienfuegos with one count of criminal
damage, a class 6 felony, and two counts of misdemeanor criminal damage.
The superior court later reduced the felony charge to a misdemeanor and
dismissed one of the two original misdemeanor charges.

¶7 Cienfuegos waived his right to a trial by jury and the superior
court held a bench trial. After a Dessureault hearing, the court admitted the
State’s evidence of the victim’s pretrial identification of Cienfuegos.
Defense counsel, in turn, called three eyewitnesses, each of whom testified
that Cienfuegos was not the man who threw the rock. The court found
Cienfuegos guilty of one count of criminal damage and not guilty on the
remaining count. At sentencing, the court placed Cienfuegos on one year of
supervised probation. Cienfuegos timely appealed.

DISCUSSION

I. Evidence of Pretrial Identification

¶8 Arguing the showup was unduly suggestive, Cienfuegos
contends the superior court erred by admitting evidence of the victim’s
pretrial identification. “We review the fairness and reliability of a
challenged identification for clear abuse of discretion.” State v. Lehr, 201
Ariz. 509, 520, ¶ 46 (2002).

¶9 A “criminal defendant’s due process rights include the right
to a fair identification procedure.” State v. Leyvas, 221 Ariz. 181, 185, ¶ 10
(App. 2009). “It is the likelihood of misidentification which violates a
defendant’s right to due process.” Lehr, 201 Ariz. at 520, ¶ 46 (quoting Neil
v. Biggers, 409 U.S. 188, 198 (1972)). Nonetheless, an “overly suggestive”
pretrial identification procedure does not necessarily “bar the admission of
an identification.” Lehr, 201 Ariz. at 520, ¶ 46. “Instead, the question is
whether the identification is reliable in spite of any suggestiveness.” Id. To
evaluate reliability, the court considers several factors: (1) the opportunity
of the witness to view the criminal at the time of the offense, (2) the witness’
degree of attention, (3) the accuracy of the witness’ description of the
criminal, (4) the level of certainty the witness demonstrates “at the
confrontation,” and (5) the “time between the crime and the confrontation.”
Id. at 521, ¶ 48.

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¶10 Applying the first factor, the victim had three opportunities
to view Cienfuegos during the incident: (1) while stopped at a red light; (2)
when Cienfuegos stepped in front of the victim’s truck and threw the rock
through the windshield; and (3) while on the phone with the 911 operator,
including at least two times when the victim “looked at [the man] again”
while responding to the operator’s questions.

¶11 Concerning the second factor, Cienfuegos argues the victim’s
degree of attention was “divided by . . . other tasks,” including parking his
truck after the windshield was broken and making the 911 call. However,
the victim testified that he paid careful attention to pedestrians while at the
stoplight to avoid hitting them, and he specifically recalled seeing
Cienfuegos before he threw the rock. And after the rock throwing, the
victim’s attention was directly focused on Cienfuegos, particularly while
answering the emergency operator’s questions about the physical
description of the suspect. See State v. Alvarez, 145 Ariz. 370, 372 (1985)
(“[W]here a victim rivets her attention upon her attacker, the reliability of
her subsequent identification of him is enhanced.”).

¶12 Turning to the third factor, the accuracy of the prior
identification, Cienfuegos points to two discrepancies: (1) the victim
described the rock thrower as a dark-skinned black or Hispanic person,
whereas he is a light-skinned Hispanic person; and (2) the victim described
the rock thrower as a thin Hispanic person wearing red shorts and a dark
shirt and he was arrested and later identified while wearing a red shirt.
Contrary to Cienfuegos’ contention, these inconsistencies go to the weight
of the evidence, not its admissibility. A defendant is entitled to attack such
inconsistencies on cross-examination. State v. Moore, 222 Ariz. 1, 9, ¶ 29
(2009). Because Cienfuegos had the opportunity to raise the inconsistencies
during cross-examination to impeach the victim, the inconsistencies do not
establish a basis for relief on appeal.

¶13 With respect to the fourth factor, Cienfuegos contends that a
police officer tainted the identification process, thereby undermining the
level of certainty the victim demonstrated at the showup. When he arrived
at the showup, the victim said, “[t]hat’s him.” To confirm that the victim
identified Cienfuegos, a police officer asked the victim whether he was
referring to the man in the red shirt. Although Cienfuegos asserts that the
officer’s clarifying question tainted the victim’s certainty, the victim
testified that he immediately identified Cienfuegos at the scene based on
his facial features and stature, and avowed he was certain that Cienfuegos
was the man who threw the rock through his windshield.

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¶14 Finally, Cienfuegos argues that a significant delay between
the victim’s observation and the identification undermines the reliability of
the identification, the fifth factor. Cienfuegos asserts that “it was
approximately 30 minutes between the time that [the victim] last observed
the perpetrator and when he identified [Cienfuegos],” which was too
removed to be reliable. But Arizona courts have found that identifications
made hours or even days after the crime weigh in favor of reliability. See,
e.g., State v. Canez, 202 Ariz. 133, 150, ¶ 48 (2002) (finding identification
made within two days of the crime weighed in favor of reliability),
superseded on other grounds, State v. Valenzuela, 239 Ariz. 299 (2016); State v.
Dixon, 153 Ariz. 151, 154–55 (1987) (concluding there was no error in
admitting identification where the “time between the crime and the
identification was but a few hours”); State v. Bracy, 145 Ariz. 520, 531–32
(1985) (finding an identification made “fifty-three days after the crime” was
not unreliable, reasoning “[w]hether the length of time between the crime
and the pretrial identification is too long depends upon the facts of each
case”).

¶15 In sum, there is ample evidence in the record supporting each
of the five factors. To the extent there may have been inconsistencies in the
descriptions or other weaknesses in the identification, Cienfuegos had the
opportunity to bring them to the superior court’s attention during cross-
examination of the fact witnesses. See Alvarez, 145 Ariz. at 372 (considering
the Biggers factors and finding identification reliable without analyzing the
accuracy of the witness’ prior description); Bracy, 145 Ariz. at 531–32
(finding identification reliable despite inconsistencies in descriptions of the
criminals). Therefore, the court did not abuse its discretion by finding the
victim’s identification of Cienfuegos was reliable and admissible.2

II. Motions for Judgment of Acquittal

¶16 Cienfuegos next argues that the superior court erred by
denying his motion for judgments of acquittal. He asserts that no
substantial evidence supports the court’s denial of his motion.

¶17 We review a superior court’s denial of a motion for judgment
of acquittal de novo. See State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). The
“relevant question” is “whether, after viewing all the evidence in the light

2 The State argues that the showup was not unduly suggestive,
relieving this court of the responsibility to determine the reliability of the
identification. Because reliability is determinative in this case, we need not
consider whether the showup was unduly suggestive.

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most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Id.
at ¶ 16 (emphasis omitted). This Court tests the evidence “against the
statutorily required elements of the offense.” State v. Dodd, 244 Ariz. 182,
185, ¶ 8 (App. 2017) (internal quotation omitted). “A conviction may be
sustained on circumstantial evidence alone.” State v. Green, 111 Ariz. 444,
446 (1975).

¶18 “A person commits criminal damage by . . . [r]ecklessly
defacing or damaging property of another person.” A.R.S. § 13-1602(A)(1).
Criminal damage is a misdemeanor where the damage to property is “more
than two hundred fifty dollars but less than one thousand dollars.” A.R.S.
§ 13-1602(B)(5).

¶19 Here, the State presented sufficient evidence to support a
finding of each essential element of criminal damage. The victim identified
Cienfuegos as the person who damaged his truck. Officer Spencer also
identified Cienfuegos as the person he saw holding a rock when he arrived
at the scene, and as the person who fled the area immediately thereafter.
Finally, the victim testified that his company was invoiced for $391.16 for
the repair of the damaged windshield, which supports a finding that
property damage fell within the statutory range of $250 to $1000.

¶20 Cienfuegos argues the trial judge “had to ignore the
testimony of all three eyewitnesses who clearly said that [Cienfuegos] was
not the perpetrator.” This testimony does not undermine the superior
court’s ruling. “The credibility of a witness and the weight and value to be
given a witness’ testimony are questions exclusively for the [trier of fact].”
State v. Pieck, 111 Ariz. 318, 320 (1974).

¶21 Viewing the evidence in the light most favorable to the
prosecution, substantial evidence in the record supports Cienfuegos’
conviction, and the superior court did not err by denying his motions for
judgment of acquittal.

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CONCLUSION

¶22 For the foregoing reasons, we affirm.

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

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