State v. Bilducia

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RUDOLPH RAMIREZ BILDUCIA, JR.,
Appellant.

No. 1 CA-CR 19-0423
FILED 6-9-2020

Appeal from the Superior Court in Maricopa County
No. CR2017-140771-001
The Honorable Monica Garfinkel, 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 Peg Green
Counsel for Appellant
 STATE v. BILDUCIA
Decision of the Court

MEMORANDUM DECISION

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

M c M U R D I E, Judge:

¶1 Rudolph Bilducia appeals his sentence imposed on a
conviction for burglary in the second degree. For the following reasons, we
affirm.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 In June of 2017, D.M. (the “homeowner”) hired a landscaping
company to trim trees at his residence. The company sent several
landscapers, including Bilducia, to complete the job. The homeowner
returned from work to find landscapers on his property but could not find
an electronic tablet in his home. He noticed the office door leading into the
backyard was unlocked, so he checked the surveillance system. The system
recorded a video of Bilducia walking into the homeowner’s office and
leaving with the tablet. The homeowner notified the landscaping company
and the Scottsdale police. The tablet was never recovered.

¶3 Grand jurors indicted Bilducia for burglary in the second
degree, a class 3 felony. At the beginning of the trial, the court instructed
the jurors, both orally and in writing, with preliminary jury instructions
that included the correct reasonable-doubt instruction. See State v. Portillo, 182 Ariz. 592, 596 (1995). During the trial, the homeowner testified he “was
pretty upset” about the incident; so, he slept with a shotgun under his bed
for the next several days. He also said that the incident affected his fiancée,
claiming “her thought was . . . [w]hat if I had been home?” The
homeowner’s fiancée did not testify.

1 We view the facts in the light most favorable to upholding the verdict
and resolve all reasonable inferences against the defendant. State v.
Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).

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¶4 The parties agreed that the court would present final jury
instructions before closing arguments. The final jury instructions again
included the correct reasonable-doubt instruction, and the court instructed
the jurors both orally and in writing. The jury found Bilducia guilty as
charged.

¶5 The State alleged two aggravating circumstances: (1) “[t]he
offense caused physical, emotional or financial harm to the victim,” and
(2) Bilducia “committed the offense as consideration for the receipt, or in
the expectation of the receipt of anything of pecuniary value.” See A.R.S.
§ 13-701(D)(6), (9). At the outset of the aggravation phase, the court
instructed the jurors with aggravation-phase jury instructions, both orally
and in writing, which included an instruction that the State must prove the
aggravating circumstances beyond a reasonable doubt. The court’s
instructions stated:

You must start with the presumption that the alleged
aggravating circumstances are not proven. . . . If you conclude
that the State has not met its burden of proof beyond a
reasonable doubt, then you must find . . . the alleged
aggravating circumstances not proven. You must consider all
the instructions I have previously given to you as set forth in
your final jury instructions.

The aggravation-phase jury instructions did not repeat several of the
instructions included in the final jury instructions, including the definition
of reasonable doubt. The parties presented no additional evidence, but each
gave a brief closing argument. The State argued that it had met its burden
of proving beyond a reasonable doubt the first aggravating factor of harm
to the victim partially based on the homeowner’s testimony, and the second
aggravating factor of pecuniary gain simply because the stolen tablet had
value. Bilducia argued the State had failed to meet its evidentiary burden.

¶6 The court sent the jury into deliberations without orally
recharging the jurors regarding the aggravation-phase jury instructions or
final jury instructions in their possession. No objection was made regarding
the court’s decision to instruct the jury before closing arguments, which the
court had done during the guilt phase based on the parties’ agreement. The
jury found each aggravating circumstance proven beyond a reasonable
doubt.

¶7 During sentencing, the court considered the aggravating
circumstances found by the jury, and mitigating circumstances, noting that

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the aggravating factors outweighed the mitigating factors. The court stated
that Bilducia “ha[d] not considered the impact of [his] choices,” and his past
crimes demonstrate an “unwillingness to accept responsibility” for his
actions. The court mentioned that Bilducia’s family support and substance
abuse were mitigating factors. Nevertheless, the court sentenced Bilducia
to the presumptive term of 11.25 years’ imprisonment, with 98 days’
presentence incarceration credit.

¶8 Bilducia appealed,2 and we have jurisdiction under Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031,
and -4033(A)(1).

DISCUSSION

¶9 Bilducia argues the court erred by: (1) failing to orally repeat
several jury instructions at the close of the evidence before deliberations
began on aggravating circumstances; (2) considering his lack of remorse at
sentencing; and (3) finding sufficient evidence supported the jury’s finding
of aggravating circumstances.

A. The Court Did Not Commit Fundamental Error by the Procedure
Used to Instruct the Jury.

¶10 Bilducia argues the court committed fundamental error by
not repeating several jury instructions at the close of evidence during the
aggravation phase, including:

the definition of reasonable doubt; the defendant is not
required to testify or to produce evidence of any kind; it is the
duty of the jury to follow the instructions; it is the duty of the
jury to determine the facts; what the lawyers say is not

2 We note Bilducia fled during jury deliberations and the court issued
an arrest warrant following his conviction. Bilducia was arrested 67 days
later and due to the time constraints surrounding the sentencing process,
he was not sentenced until over 90 days from the date of his conviction.
Thus, it appears A.R.S. § 13-4033(C), which strips a defendant of his right
to appeal “if the defendant’s absence prevents sentencing from occurring
within ninety days after conviction,” could apply in this case. However, this
court has yet to address whether A.R.S. § 13-4033(C) applies to a defendant
whose absence is less than 90 days, but nonetheless prevents sentencing
from occurring within 90 days after conviction. We will not take up this
question today because the State has not raised it as an issue.

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evidence; evidence may be direct or circumstantial; the jury
must determine the credibility of the witnesses; [and] each
aggravating circumstance must be determined separately.

He does not argue the court provided deficient preliminary jury
instructions or final jury instructions.

¶11 Once jurors are sworn, the court must instruct them
concerning their responsibilities and duties. Ariz. R. Crim. P. 18.6(c).
Following the parties’ presentation of evidence and before jury
deliberations, the court must repeat all jury instructions “where such legal
principles include matters of law vital to the rights of a defendant,”
including an instruction regarding the State’s burden of proving each
element of a crime beyond a reasonable doubt. See State v. Johnson, 173 Ariz.
274, 275–76 (1992) (emphasis omitted) (quoting State v. Marquez, 135 Ariz.
316, 322 (App. 1983)). However, if a party fails to object to the court’s
jury-instruction procedure, he or she waives the right to appeal on that basis
unless the instructions given amount to fundamental error. State v. Kinkade, 140 Ariz. 91, 94 (1984).

¶12 To establish fundamental error, the defendant must show:
(1) trial error exists; (2) considering the totality of the circumstances, the
error either went to the foundation of the case, took away a right essential
to his defense, or was so egregious that he could not have possibly received
a fair trial; and (3) the error caused him prejudice. State v. Escalante, 245
Ariz. 135, 142, ¶ 21 (2018). Although Arizona Rule of Criminal Procedure
19.1 does not dictate the order in which the aggravation phase proceeds in
a noncapital case, in a capital case, the rules require the court to instruct the
jury following the parties’ closing arguments both during the guilt and
aggravation phases. Ariz. R. Crim. P. 19.1(a)(2), (b)(8), (d)(8).

¶13 In Kinkade, our supreme court held the superior court did not
commit fundamental error by failing to repeat a reasonable-doubt
instruction before jury deliberations during the guilt phase of the trial
because:

The jury was instructed concerning reasonable doubt at the
beginning of the trial. The jury took a copy of the reasonable
doubt instruction with them to the jury room for deliberation.
All three attorneys, in their arguments to the jury, specifically
stated that the jury must find the defendants guilty beyond a
reasonable doubt. [And] [e]ach defense attorney gave a brief
definition of reasonable doubt during his closing argument.

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140 Ariz. at 94.

¶14 In State v. Solano, the defendant objected to the court’s denial
of his request to repeat the reasonable-doubt instruction after the parties’
closing arguments during the guilt phase of the trial. 187 Ariz. 512, 520
(App. 1996). The superior court provided the instruction after the close of
evidence but before closing arguments as the parties had agreed. Id. This
court held the court did not err by denying the defendant’s request to
reinstruct the jury because it had instructed the jury “following the
evidence and before the commencement of deliberations.” Id. (quoting
Johnson, 173 Ariz. at 276).

¶15 Here, based on the totality of the circumstances, no
fundamental error occurred. Although Bilducia alleges the error occurred
during the aggravation phase rather than the guilt phase, the circumstances
presented are like those in Kinkade. The court provided correct instructions
to the jury at the beginning of trial by orally reading the preliminary jury
instructions, and before the parties’ closing arguments by orally reading the
final jury instructions. The court provided the jury with copies of the
preliminary jury instructions and final jury instructions. At the outset of the
aggravation phase, the court read to the jurors the aggravation-phase jury
instructions, which included the State’s burden of proving the aggravating
circumstances beyond a reasonable doubt and an instruction to consider all
previous jury instructions. The court then provided jurors a written copy of
the aggravation-phase jury instructions. In the arguments, both in the guilt
and aggravation phases, the State and defense counsel mentioned the
State’s burden of proving guilt beyond a reasonable doubt.

¶16 We presume the jurors followed the court’s instructions, State
v. Prince, 226 Ariz. 516, 537, ¶ 80 (2011), and under these circumstances, we
conclude the court did not err.

B. The Court Did Not Commit Structural Error by Failing to Repeat
its Definition of Beyond a Reasonable Doubt.

¶17 Bilducia argues the court committed structural error by
failing to orally repeat to jurors an instruction defining reasonable doubt
following closing arguments during the aggravation phase.

¶18 Due process neither requires nor prohibits courts from
defining the term “reasonable doubt.” Victor v. Nebraska, 511 U.S. 1, 5 (1994).
The sole requirement is that a court accurately instructs the jurors on the
concept that the State has the burden to prove a defendant guilty “beyond
a reasonable doubt.” Id. The Supreme Court has deferentially reviewed the

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substance of reasonable-doubt definitions and will find error only if there
is a reasonable likelihood that the jury understood the instruction to permit
a conviction based on proof below the reasonable-doubt standard. Id. at 6;
see also Cage v. Louisiana, 498 U.S. 39, 41 (1990) (per curiam) (disapproving
definition that suggested a higher degree of doubt than is required for
acquittal), overruled in part on other grounds by Estelle v. McGuire, 502 U.S. 62,
72, n.4 (1991). If an instruction improperly reduces the state’s standard of
proof, such error is structural and cannot be harmless. Sullivan v. Louisiana, 508 U.S. 275, 279-82 (1993). If due process does not require a court to define
“beyond a reasonable doubt,” it would never be a structural error to fail to
define the term if the jurors are instructed regarding the government’s
burden. See Portillo, 182 Ariz. at 595 (court has “never required” an
instruction defining beyond a reasonable doubt prior to adoption in the
instant case).

¶19 Structural errors affect “the framework within which the trial
proceeds,” causing a fundamentally unfair criminal punishment, and
always require reversal. State v. Fullem, 185 Ariz. 134, 138 (App. 1995)
(quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). A structural error
in the context of a reasonable-doubt instruction occurs “if there is a
reasonable likelihood that the jury in fact understood the instruction to
permit conviction based on proof below the reasonable doubt standard.”
Portillo, 182 Ariz. at 594.

¶20 Here, regardless of whether the court erred by failing to
provide a definition of reasonable doubt that comported with Portillo’s
definition before deliberations in the aggravation phase, the instructions
provided at the outset of the aggravation phase did not create a likelihood
that the jury would find Bilducia guilty based on proof below the
reasonable-doubt standard. On the contrary, the instructions at the outset
of the aggravation phase provided that the State had to prove each
aggravating circumstance beyond a reasonable doubt. This is
distinguishable from the circumstances in Johnson, in which our supreme
court held the court committed reversible error by providing a
reasonable-doubt instruction that was “clearly wrong” and “contrary to the
presumption of innocence.” 173 Ariz. at 277. Thus, the court did not commit
a structural error.

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C. The Court Did Not Commit Fundamental Sentencing Error by
Considering Bilducia’s Unwillingness to Accept Responsibility
for his Actions.

¶21 Bilducia alleges the court committed fundamental error by
considering his lack of remorse when imposing the sentence. See State v.
Trujillo, 227 Ariz. 314, 318, ¶ 15 (App. 2011) (considering defendant’s lack
of remorse as aggravating factor at sentencing constitutes fundamental
error). Upon review of the record, we conclude the premise of Bilducia’s
argument finds no support—the court did not consider his lack of remorse.
The court stated Bilducia did not consider the impact of his choices on
others by engaging in criminal activity and noted that his past crimes
demonstrate an “unwillingness to accept responsibility” for his actions. We
find no support for Bilducia’s fundamental-error argument.

D. Substantial Evidence Supported the Jury’s Findings of
Aggravating Circumstances Under Both A.R.S. § 13-701(D)(9) and
A.R.S. § 13-701(D)(6).

¶22 We review questions of sufficiency of the evidence de novo,
State v. West, 226 Ariz. 559, 562, ¶ 15 (2011), and will vacate the jury’s
finding of an aggravating circumstance only if it is not supported by
substantial evidence, viewing facts in the light most favorable to sustaining
the verdict, see State v. Roseberry, 210 Ariz. 360, 368–69, ¶ 45 (2005).
Substantial evidence is evidence more than a scintilla and is proof sufficient
to reasonably conclude it establishes the aggravating circumstance beyond
a reasonable doubt. Id. at 369.

1. Substantial Evidence Supported the Jury’s Finding of the
Aggravating Circumstance Under A.R.S. § 13-701(D)(9).

¶23 Bilducia alleges the State did not meet its burden of proving
the burglary caused “physical, emotional or financial harm” to the victim,
arguing: (1) the homeowner suffered no financial harm because the
landscaping company subtracted the value of the tablet from his bill; (2) the
homeowner testified inconsistently regarding his emotional harm, and
(3) the homeowner testified that his fiancée was upset because she could
have been home (but was not) at the time of the burglary, which Bilducia
alleges constituted hearsay.

¶24 An aggravating circumstance exists for a court to consider at
sentencing if jurors find the State proved beyond a reasonable doubt that
the victim “suffered physical, emotional or financial harm.” A.R.S
§ 13-701(C), (D)(9). When determining whether the State met its burden,

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“[t]he finder-of-fact, not the appellate court, weighs the evidence and
determines the credibility of witnesses.” State v. Cid, 181 Ariz. 496, 500
(App. 1995).

¶25 Construing the facts in the light most favorable to upholding
the verdict, we presume the jury found the homeowner’s testimony
credible and conclude substantial evidence supported the jury’s finding
that the homeowner suffered emotional harm as a result of the burglary.
Even without considering harm to the homeowner’s fiancée and
recognizing the inconsistent statements made by the homeowner,
substantial evidence of the homeowner’s emotional harm exists based on
his testimony that he was upset about the incident, and that he slept with a
shotgun under his bed for several days after the burglary. Therefore, the
court adequately considered the aggravating circumstance under A.R.S.
§ 13-701(D)(9) when sentencing Bilducia.

2. Sufficient Evidence Supported the Jury’s Finding of the
Aggravating Circumstance Under A.R.S. § 13-701(D)(6).

¶26 Bilducia alleges the State did not meet its burden of proving
he committed the burglary “as consideration for the receipt, or in the
expectation of the receipt, of anything of pecuniary value,” because it did
not produce any evidence on the matter and merely argued that because
the tablet had value, he took it for pecuniary gain.

¶27 Second-degree burglary is defined as “entering or remaining
unlawfully in or on a residential structure with the intent to commit any
theft or any felony therein.” A.R.S. § 13-1507(A). An aggravating
circumstance exists for a court to consider at sentencing if jurors find
beyond a reasonable doubt that “[t]he defendant committed the offense as
consideration for the receipt, or in the expectation of the receipt, of anything
of pecuniary value.” A.R.S § 13-701(C), (D)(6). Jurors may consider
circumstantial evidence when determining whether the defendant
committed a crime for pecuniary gain. State v. Ring, 204 Ariz. 534, 560, ¶ 76
(2003). “Criminal intent, being a state of mind, is shown by circumstantial
evidence. Defendant’s conduct and comments are evidence of his state of
mind.” State v. Bearup, 221 Ariz. 163, 167, ¶ 16 (2009) (quoting State v.
Routhier, 137 Ariz. 90, 99 (1983)).

¶28 Here, the State presented evidence in the form of testimony
by the homeowner, photographs, and video showing Bilducia entered the
homeowner’s residence and exited with the tablet. The circumstances of the
crime provide circumstantial evidence sufficient for the jurors to reasonably

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conclude beyond a reasonable doubt that Bilducia committed the burglary
for pecuniary gain. Thus, substantial evidence supported the jury’s finding
of an aggravating circumstance under A.R.S. § 13-701(D)(6).

3. Even Assuming That There was Insufficient Evidence to
Support a Statutory Aggravator, There Was No Error in the
Sentence Imposed.

A court may impose a prison term above the presumptive sentence
only if one or more statutory aggravating factors are found by the trier of
fact or admitted by the defendant, except that the court shall find an alleged
prior felony conviction under A.R.S. § 13-701(D)(11). § 13-701(C). A
statutory aggravating factor may also be implicitly found in the jury’s
verdict. See State v. Martinez, 210 Ariz. 578, 584, ¶ 21 (2005) (“Under
Arizona’s sentencing scheme, once a jury implicitly or explicitly finds one
aggravating factor, a defendant is exposed to a sentencing range that
extends to the maximum punishment . . . .”). Once a statutory aggravating
circumstance is found, the court may consider the evidence of additional
aggravating circumstances. See id. at 585, ¶ 26. In a case where no statutory
aggravating circumstances have been proven, the maximum sentence is the
presumptive sentence. State v. Schmidt, 220 Ariz. 563, 565, ¶ 7 (2009); State
v. Dunbar, 2 CA-CR 2018-0064, 2020 WL 2060275, at *10, ¶ 41 (Ariz. App.
Apr. 29, 2020).

¶29 Once a sentencing range has been established by the finding
of the statutory aggravating circumstances, a court may review the
information submitted for sentencing purposes without regard to the
evidentiary rules so long as the record “show[s] what the information
consists of and where it comes from[,] and . . . indicate[s] that it has some
substance above rumor, gossip or speculation.” State v. Jones, 147 Ariz. 353,
355 (1985); see also A.R.S. § 13-702(C) (allowing a court to consider “any
evidence or information introduced or submitted to the court or the trier of
fact before sentencing or any evidence presented at trial”); Ariz. R. Crim. P.
26.7(b)(2) (permitting a party to introduce at sentencing “any reliable,
relevant evidence, including hearsay, to show aggravating or mitigating
circumstances, to show why the court should not impose a particular
sentence, or to correct or amplify the presentence, diagnostic, or mental
health reports”).

¶30 Evidence is relevant for sentencing if it goes to the defendant’s
character or the circumstances of the offense. See State v. Chappell, 225 Ariz.
229, 238, ¶¶ 29–30 (2010). The only limitation on the evidence that can be
considered is its veracity and relevance. A convicted defendant has a

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due-process right to a fair sentencing procedure that includes the right to
be sentenced based on accurate information. State v. Grier, 146 Ariz. 511, 515
(1985); State v. Conn, 137 Ariz. 148, 150 (1983) (“The sentencing
process . . . must satisfy the requirements of the Due Process Clause.”); State
v. Meador, 132 Ariz. 343, 346-47 (App. 1982) (aggravating circumstances
must be true and supported by reasonable evidence in the record); see also
Townsend v. Burke, 334 U.S. 736, 741 (1948) (denial of due process to base
sentence on “materially untrue” assumptions about defendant’s criminal
record). But a court may nonetheless permissibly consider various facts not
found by a jury when imposing sentences within the statutorily prescribed
range. State v. Johnson, 210 Ariz. 438, 441-42, ¶ 12 (App. 2005).

¶31 Here, assuming, arguendo, that Bilducia is correct and there is
not sufficient evidence to find the alleged aggravating circumstances
beyond a reasonable doubt, he is not entitled to a resentencing. The court
did not rely on “materially untrue” evidence, and the facts relied on are
relevant sentencing considerations. Because the court sentenced Bilducia to
a presumptive sentence, the alleged error regarding the quantum of proof
for the aggravating circumstances is of no consequence.

CONCLUSION

¶32 We affirm the court’s sentence.

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

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