State v. Mesa

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JESSE MESA, Appellant.

No. 1 CA-CR 20-0042
FILED 10-7-2021

Appeal from the Superior Court in Maricopa County
No. CR2015-001779-001
The Honorable Warren J. Granville, Judge Retired

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

The Stavris Law Firm PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant

STATE v. MESA
Decision of the Court

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Michael J. Brown joined.

F U R U Y A, Judge:

¶1 Jesse Mesa appeals his convictions and sentences for felony
murder, first-degree burglary, armed robbery, unlawful control of
another’s vehicle, and arson of an occupied structure. Mesa argues the
superior court erroneously denied his motion for judgment of acquittal,
committed fundamental error by making misstatements at trial, and
improperly sentenced him. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On April 29, 2014, Mesa, Alex Garcia (Mesa’s brother), Erica
Vasquez (Alex’s then-girlfriend), and Lorenzo Garcia (a friend) were
together in a one-bedroom apartment, when the suggestion was made to
rob a nearby smoke shop. 1 The group thereafter set out for the smoke
shop. Alex took a gun and Mesa brought an empty black duffel bag. The
group discussed the robbery en route and Alex expressed his intention to
kill the store clerk.

¶3 Security cameras from a nearby restaurant captured Mesa
and Alex walking toward the smoke shop. Once inside, Mesa gathered
merchandise while Alex went through the cash drawers. Lorenzo later
testified that when he entered the smoke shop, he witnessed Mesa shoot
the store clerk in the head. Thereafter, Mesa started fires inside the shop.
Mesa and Alex left in the victim’s Escalade, which was later found
abandoned without a license plate.

¶4 An autopsy revealed that the victim had been shot six to
eight times and died as a result. A black duffel bag containing
merchandise was recovered from the crime scene with Mesa’s DNA on it.

1 Another individual was with the group in the apartment and
involved in planning the robbery but did not ultimately take part in its
execution.

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On May 2, 2014, Phoenix police officers executed a search warrant at the
apartment, recovering merchandise from the smoke shop and a
prescription pill bottle in the victim’s sister’s name. Among the
merchandise recovered was one large glass bong that had Mesa’s
fingerprint on it.

¶5 Following Mesa’s arrest, the State indicted him on six
counts: (1) conspiracy to commit first degree murder; (2) first-degree
murder; (3) first-degree burglary; (4) armed robbery; (5) vehicle theft; and
(6) arson of an occupied structure.

¶6 At trial, the State called Erica and Lorenzo to testify. Their
testimony, along with testimony of police officers, other witnesses, and
the other evidence collected during investigation, was used to establish
the case against Mesa. During trial, “armed burglary” was used
interchangeably with first-degree burglary to describe Count 3. After the
State’s presentation, Mesa unsuccessfully moved for a judgment of
acquittal based upon the insufficiency of the evidence.

¶7 The jury acquitted Mesa of Count 1. The State argued Count
2 under theories of felony murder and premeditated murder, but the jury
only returned a unanimous guilty verdict under felony murder. The jury
also returned guilty verdicts for Counts 3, 4, and 6, as charged, and for the
lesser-included offense of unlawful control of another person’s vehicle for
Count 5.

¶8 The court sentenced Mesa in January 2020. Mesa timely
appealed, and we have jurisdiction under Arizona Revised Statutes
(“A.R.S.”) §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

DISCUSSION

I. Mesa’s Motion for Judgment of Acquittal

¶9 Mesa argues the court erred in denying his motion for
judgment of acquittal based upon the insufficiency of the evidence
pursuant to Arizona Rule of Criminal Procedure (“Rule”) 20(a).

¶10 We review the court’s ruling on a Rule 20 motion de novo.
State v. Montes Flores, 245 Ariz. 303, 308, ¶ 23 (App. 2018) (citing State v.
West, 226 Ariz. 559, 562, ¶ 15 (2011)). The controlling question on a Rule 20
motion is whether the record contains “substantial evidence to support a
conviction.” Ariz. R. Crim. P. 20(a); see also West, 226 Ariz. at 562, ¶ 14.
Substantial evidence “is such proof that reasonable persons could accept

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as adequate and sufficient to support a conclusion of defendant’s guilt
beyond a reasonable doubt.” State v. Mathers, 165 Ariz. 64, 67 (1990)
(quoting State v. Jones, 125 Ariz. 417, 419 (1980)). “Both direct and
circumstantial evidence should be considered in determining whether
substantial evidence supports a conviction.” West, 226 Ariz. at 562, ¶ 16
(citing State v. Spears, 184 Ariz. 277, 290 (1996)). If reasonable minds may
disagree on the inferences drawn from the facts, the case must be
submitted to the jury and the Rule 20 motion denied. Id. at 563, ¶ 18
(citations omitted). Further, we view the evidence in the light most
favorable to the prosecution. Mathers, 165 Ariz. at 66 (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).

¶11 In the main, Mesa contends insufficient evidence supports
his convictions because Erica and Lorenzo were not credible witnesses,
since they had allegedly lied to law enforcement, testified inconsistently
under oath, and were beneficiaries of “lenient plea offers,” thereby
providing a motive to lie for their own ends. In essence, Mesa argues that
because there are questions regarding their veracity and reliability, we
must altogether ignore Erica’s and Lorenzo’s testimony, and therefore
hold no substantial evidence supports Mesa’s guilt beyond a reasonable
doubt. However, Mesa’s position is mistaken.

¶12 Applying the standards outlined above, we cannot ignore
the inculpatory statements and inferences that may be reasonably drawn
from Erica’s and Lorenzo’s testimony any more than could the superior
court. West, 226 Ariz. at 563, ¶ 18; see State v. Austin, 124 Ariz. 231, 234
(1979) (“Weighing the credibility of witnesses is the province of the jury,
not the judge.”) (citation omitted); State v. Buccheri-Bianca, 233 Ariz. 324,
334, ¶ 38 (App. 2013) (“[N]o rule is better established than that the
credibility of the witnesses and the weight and value to be given to their
testimony are questions exclusively for the jury.”) (citing State v. Cox, 217
Ariz. 353, 357, ¶ 27 (2007)) (emphasis added). Further, Mesa was given—
and took full advantage of—the appropriate opportunity to argue against
Erica’s and Lorenzo’s credibility during closing argument.

¶13 Moreover, in addition to eyewitness testimony, the State
offered other corroborating evidence to support its case—including
videos, fingerprints, and DNA evidence. Having considered the entirety
of the record, the parties’ briefing, and the relevant law, the State
presented substantial evidence to warrant the convictions it sought
beyond a reasonable doubt, and the court did not err in denying Mesa’s
Rule 20 motion.

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II. Erroneous Description of Count 3

¶14 Mesa argues the court committed fundamental error when,
in ruling on Mesa’s Rule 20 motion, it erroneously stated Count 3 was
“armed robbery.” Indeed, the transcript reflects the court stated “Count 3,
armed robbery – I’m sorry. Count 3, armed robbery, Count 4, armed
robbery.”

¶15 Because Mesa failed to enter any contemporaneous objection
before the court, our review is limited to fundamental error. State v.
Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). Mesa bears the burden of
proving an error occurred, id. at 568, ¶ 23, and “that (1) the error went to
the foundation of the case, (2) the error took from [Mesa] a right essential
to his defense, or (3) the error was so egregious that he could not possibly
have received a fair trial,” State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018).
For the first two prongs, Mesa must also make a separate showing of
prejudice and “bears the burden of persuasion at each step.” Escalante, 245
Ariz. at 142, ¶ 21 (citing Henderson, 210 Ariz. at 567–68, ¶¶ 19, 26).

¶16 Here, Mesa contends that this error, made outside of the
presence of the jury, deprived him of a fair trial. However, Mesa offers
neither argument, nor legal authority to support this position. Mesa’s
failure to develop this argument, as required by Rule 31.10(a)(7)(A),
constitutes waiver. See State v. Sanchez, 200 Ariz. 163, 166, ¶ 8 (App. 2001)
(citations omitted).

¶17 Mesa further argues fundamental error occurred when,
during reading of the jury’s verdicts, the court clerk mistakenly referred to
Count 3—again, without objection—as “armed robbery.” Mesa also
asserts the court should have given an additional unanimity instruction—
beyond its general unanimity instruction—to avoid potential jury
confusion.

¶18 Mesa also fails to develop these arguments with supporting
reasoning or legal authority, which constitutes waiver. See id. And our
review of the record does not reveal how the court’s erroneous recitation
of Count 3—first outside of the presence of the jury, and then after jury
deliberations—could have infected the trial with unfairness, prejudiced
the jury, or affected the verdict. Further, the record demonstrates that
Count 3 was accurately represented in the indictment, final jury
instructions, and verdict forms, all of which the court correctly read aloud.
Finally, while Mesa contends for the first time on appeal that an
additional unanimity instruction was required to avoid jury confusion, the

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record already contains exactly such an instruction. In response to a
question from a juror during deliberations, the court instructed, “If you
are able to reach a verdict, any verdict for not proven or proven must be
unanimous.” Therefore, Mesa has not shown fundamental error.

III. Discrepancies in Sentencing

¶19 Mesa challenges discrepancies between his pronounced
sentences and the sentencing minute entry and confinement orders. Mesa
notes that at the sentencing hearing, the court stated Count 3 would run
concurrent to Count 6. However, the written sentencing and confinement
orders both record Count 6 as consecutive. When there is a discrepancy
between the reporter’s transcript and the minute entry, “the circumstances
of the particular case determine which shall govern.” State v. Rockerfeller, 9
Ariz. App. 265, 267 (1969) (citations omitted); see also State v. Ovante, 231
Ariz. 180, 188, ¶ 38 (2013) (noting that remand is unnecessary to resolve
apparent conflict between a court’s oral pronouncement of a sentence and
the resulting written minute entry when the discrepancy can be clearly
resolved by looking at the record) (citing State v. Whitney, 159 Ariz. 476,
487 (1989)). When read in context, the court’s misspoken statement that
Count 6 would run concurrently renders its own analysis nonsensical, and
we therefore may clarify this discrepancy on appeal. See Ovante, 231 Ariz.
at 188, ¶ 38 (citing Whitney, 159 Ariz. at 487).

¶20 Convictions that arise out of a single act must be sentenced
concurrently. See A.R.S. § 13-116. Courts use a three-part test to determine
what constitutes a single act. See State v. Carlson, 237 Ariz. 381, 400, ¶ 80
(2015) (citing State v. Gordon, 161 Ariz. 308, 312–13 (1989)). The court
considers the facts of each crime separately, subtracting from the factual
transaction the evidence necessary to convict on the ultimate charge. Id.
(citing Gordon, 161 Ariz. at 315). If the remaining evidence satisfies the
elements of the other crime, then consecutive sentences may be
permissible under A.R.S. § 13-116. Id. The likelihood increases that a
defendant committed a single act under A.R.S. § 13-116 if, given the entire
transaction, it was factually impossible to commit the ultimate crime
without also committing the secondary crime. Id. But a court should
ordinarily find that a defendant committed multiple acts and receive
consecutive sentences where the defendant’s conduct in committing the
lesser crime caused the victim to suffer an additional risk of harm beyond
that inherent in the ultimate crime. Id. Here, the court made a record of
these considerations at sentencing:

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Decision of the Court

I have thought through the facts of the case. First, as a legal
component, the Court finds that the elements of armed
robbery are distinct from the elements of first-degree felony
murder. However, the facts supporting them are related and
so I have taken that into account. And I’ve taken into
account as the evidence was presented that there were
different management decisions that were made over the
course of these -- probably the whole thing took five
minutes, but they were separate decisions made, and I’ve
taken that into account.

First was the decision to do this at all because you knew that
Alex was armed and you knew that the plan was to take
property that was not yours by – by threat of force. There was
a separate decision then to set fire in hopes of maybe covering
up the evidence that you may have left. It was the separate
decision to take the – [victim]’s car. There was a separate
decision to fire your weapon after Alex had fired his
weapon. The result of all of that is that [victim] is the victim
of a robbery, which led to his death.

(Emphasis added.)

¶21 If the court intended for Count 6, arson, to run concurrently,
it would not have needed to emphasize the separateness of the arson. The
fact that it took care to do so reveals the court’s intent that the sentences
run consecutively, as stated in both the resulting written sentencing
minute entry and confinement orders.

¶22 Additionally, the court’s intent to impose a consecutive
sentence for Count 6 is further supported by the context proceeding the
mistake; “It is ordered that because the Court does find a [spatial] difference
and an elemental difference, that the sentence for count 3 begin first. To run
concurrent will be count 6, which was the arson act.” (Emphasis added.) A
finding of a spatial and elemental difference would only be necessary to
imposing sentence for Count 3 and Count 6 consecutively, as found in the
sentencing and confinement orders. “When we can ascertain the trial
court’s intent from the record, we need not remand for clarification.” State
v. Lopez, 230 Ariz. 15, 18, ¶ 9 n.2 (App. 2012); see also Ovante, 231 Ariz. at
188, ¶ 38 (citing Whitney, 159 Ariz. at 487). Because review of the record, in
full context, clearly supports the court’s intent to impose a consecutive
sentence for Count 6, we deny Mesa’s request to alter the sentencing and
confinement orders.

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STATE v. MESA
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CONCLUSION

¶23 For the forgoing reasons, we affirm Mesa’s convictions and
sentences.

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

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