State v. Godoy

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSE T. GODOY, Appellant.

No. 1 CA-CR 21-0379
FILED 8-25-2022

Appeal from the Superior Court in Yuma County
No. S1400CR202000491
The Honorable Brandon S. Kinsey, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson, Rebecca Jones
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Robert J. Trebilcock
Counsel for Appellant
 STATE v. GODOY
Decision of the Court

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined.

F U R U Y A, Judge:

¶1 Jose T. Godoy appeals his convictions and sentences for armed
robbery and third-degree burglary, challenging the admissibility of certain
evidence, statements made during the prosecutor’s closing argument, the
sufficiency of evidence, and the constitutionality of his sentence. For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On appeal from a criminal conviction, we view the evidence in
the light most favorable to upholding the jury’s verdict and resolve all
inferences against the defendant. State v. Klokic, 219 Ariz. 241, 242, ¶ 2 n.1
(App. 2008). In May 2020, victim one (“Son”) returned to his family’s home
in Yuma County after running an errand. Son’s parents participate in foster
care services. Son observed two cars near the front of the home, one had
“three guys inside.” His mother’s car was parked outside the front of the
home, as well. Son found Godoy and another individual talking to his
mother, who was also a victim, outside the front door. Son observed Godoy
wearing a white hoodie and “saw he was holding something” in his hoodie
pocket. Son said the indentation looked “[l]ike a gun, firearm.”

¶3 Godoy was looking for Son’s foster brother (“F.B.”) who had
been living at the house for the past year but had moved out in February
2020. Godoy claimed F.B. owed him $300. Both victims repeatedly told
Godoy F.B. no longer lived there, which Godoy did not believe. Godoy
stated that “[F.B. was] not paying up,” “things are gonna get bad” and F.B.
was putting the victims’ “family in danger.” Godoy then said “here’s the
deal, if he don’t pay up, he’s getting shot at,” and clarified the victims’ home
would “get lit up” if F.B. did not pay up. Son feared for his and Mother’s
safety because Godoy was not “taking the hand out of his pocket,” making
him nervous as to what would happen next. Referring to Godoy’s handling
of the object in his hoodie pocket, Mother told Godoy “stop taking that out,
no, it’s not necessary,” and asked him to remove his hand from his pocket
“because it’s not necessary,” to which Godoy responded he would not
remove his hand.

2
 STATE v. GODOY
Decision of the Court

¶4 The victims made a deal with Godoy so he would leave. They
paid him $25 and told him to come back later for the rest of the money. Son
gave Godoy the money—his Mother’s money—and Godoy said he was
going to “call [his] boys off” because they were ready to “shoot this house,”
and further stated he only wanted what he was owed so “no body dies.”

¶5 During the entire incident, Son believed Godoy had a gun and
observed his Mother as “nervous” and “distraught” throughout, crying
afterward. After Godoy left, Son inspected Mother’s vehicle, which she had
left unlocked. The contents of her purse were spread over the seats,
including her wallet, which had been emptied of its cash, driver’s license,
and green cards. The victims called police within 20 minutes of the incident.

¶6 The State charged Godoy with (1) armed robbery (of Mother),
a Class 2 felony; (2) threatening and intimidating in furtherance of a criminal
street gang syndicate (both victims), a Class 3 felony; (3) third-degree
burglary (Mother’s vehicle), a Class 4 felony; and (4) threatening and
intimidating (both victims), a Class 6 felony. Before jury deliberations, the
State dismissed count four as subsumed as a lesser included offense within
count two. See Ariz. Rev. Stat. (A.R.S.) § 13-1202(A)(1), (B).

¶7 Ahead of trial, Godoy unsuccessfully moved on various
grounds to preclude the admission of door-bell video/audio footage
capturing the incident, including hearsay because Mother was unavailable
to testify. Part of the audio was in Spanish, which was transcribed for trial
as a written exhibit. The parties stipulated this translation was “fair and
accurate” without need for further foundation (but Godoy objected to its
admissibility based on the same grounds).

¶8 Following a three-day trial, a jury found Godoy guilty of count
one, a dangerous offense, count three, and the lesser included offense of
threatening and intimidating. Godoy unsuccessfully challenged the jury’s
finding of dangerousness pursuant to a post-verdict Arizona Rule of
Criminal Procedure (“Rule”) 20 motion.

¶9 The superior court sentenced Godoy to concurrent
presumptive imprisonment terms of 10.5 years for armed robbery and 2.5
years for third-degree burglary. See A.R.S. §§ 13-702(D) and -704(A). Godoy
also received 477 days pre-incarceration credit. The court did not address
the lesser threatening and intimidating conviction at sentencing or in its
sentencing order.

¶10 Godoy timely appealed, and we have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

3
 STATE v. GODOY
Decision of the Court

DISCUSSION

I. Video with Audio Admissibility

¶11 Godoy argues the court erroneously permitted the door-bell
video/audio footage (and accompanying transcript translating the Spanish
audio) into evidence because Mother’s statements were hearsay. We review
a court’s ruling on the admissibility of evidence over hearsay objections for
an abuse of discretion, State v. Chavez, 225 Ariz. 442, 443, ¶ 5 (App. 2010), but
review interpretation of the rules of evidence de novo, State v. Zaid, 249 Ariz.
154, 157, ¶ 5 (App. 2020) (citing State v. Romero, 239 Ariz. 6, 9, ¶ 11 (2016)).
We may affirm the court’s ruling if it was “legally correct for any reason.”
Chavez, 225 Ariz. at 443, ¶ 5 (citing State v. Perez, 141 Ariz. 459, 464 (1984)).

¶12 Hearsay is an out-of-court statement offered in evidence to
prove the truth of the matter asserted and is generally inadmissible. Ariz. R.
Evid. 801(c), 802. But hearsay statements may be admissible if they fall
within certain exceptions, no matter if the declarant is available to testify.
Ariz. R. Evid. 803. Here, Mother’s statements qualify as “present sense
impressions” or “excited utterances,” both exceptions to the hearsay rule.
See Ariz. R. Evid. 803(1), (2). A present sense impression is a “statement
describing or explaining an event or condition, made while or immediately
after the declarant perceived it.” Ariz. R. Evid. 803(1). An excited utterance
is a “statement relating to a startling event or condition, made while the
declarant was under the stress of excitement that it caused.” Ariz. R. Evid.
803(2). Mother’s recorded statements meet both exceptions. She made
descriptive statements while observing a crime unfold (present sense
impressions) and displayed reactions to startling experiences while present
during the incident (excited utterances). See State v. Steinle, 239 Ariz. 415, 420,
¶ 23 (2016) (explaining a video capturing the verbal statements made by
witnesses to a stabbing incident qualified as excited utterances and present
sense impressions). The court properly admitted the audio recordings of
Mother’s statements in this case.

II. Prosecutor’s Statements During Closing Argument

¶13 Godoy argues the prosecutor misstated the law during closing
argument by characterizing armed robbery as requiring that a defendant
need only possess a deadly weapon or simulated deadly weapon rather than
be “armed with” one—arguably lessening the burden of proof required to
find him guilty. Because Godoy objected to the prosecutor’s alleged
misstatement at trial, we review for an abuse of discretion. State v. Decker, 239 Ariz. 29, 32, ¶¶ 13–14 (2016) (citation omitted). We may affirm the

4
 STATE v. GODOY
Decision of the Court

superior court’s ruling for any reason supported by the record. State v. Banda, 232 Ariz. 582, 585, ¶ 13 n.2 (App. 2013).

¶14 We will not examine a prosecutor’s alleged misstatement in a
vacuum but “look at the context and examine the entire record and totality
of the circumstances.” See State v. Rutledge, 205 Ariz. 7, 13, ¶ 33 (2003). The
following contains the relevant portion of the prosecutor’s closing:

The offenses do not require the defendant to point a gun at the
victim. It is not required. Actually firing a gun is not required.
Physically hurting one of the victims is not a requirement. . . .

And you do not even have to necessarily agree on the same
story exactly, only that the charges have been met beyond a
reasonable doubt. That is it.

So for count one, armed robbery, one, the defendant took
property of another. . . . and the defendant used or threatened
to use force against any person to secure surrendering of
property, and that the defendant was armed with a deadly weapon,
simulated deadly weapon or firearm.

As I said, [the statute] does not say used a gun to threaten,
pointed a gun to threaten, only that he was armed, that he
possessed it. That is it.

(Emphasis added.)

¶15 In context, the prosecutor was assuring the jury that the actual
discharge of a weapon or physical injury caused by a deadly weapon are not
statutory elements of armed robbery. Rather, the mere threat of force while
armed with a deadly weapon or simulated deadly weapon is sufficient.
Although our legislature has not expressly defined “armed with,” we hold
this explanation is an accurate statement of the law as charged. A.R.S. §§ 13-
105, -1901, -1902(A), and -1904(A)(1); see also State v. Snider, 233 Ariz. 243,
246, ¶ 8 (App. 2013) (explaining § 13-1904(A)(1) does not require use or
threatened use of a weapon, only that defendant be “armed with” a deadly
weapon or simulated deadly weapon during commission of crime and
affirming conviction given ample evidence that defendant “possessed a
handgun during the armed robberies alleged”).

¶16 The State further clarified to the jury during rebuttal:

5
 STATE v. GODOY
Decision of the Court

If we’re going to get into a debate over the meaning of armed
robbery . . ., let’s look at the actual text of the statute. You can
decide for yourself.

[A.R.S. § 13-1904](A)(1), which is what [Godoy] is officially
charged with, is armed with a deadly weapon or simulated
deadly weapon; [A.R.S. § 13-1904(A)(2)], uses or threatens to use
a deadly weapon or dangerous instrument or simulated
deadly weapon. They’re distinct, members of the jury, in black
and white right there.

(Emphasis added.) The court also properly instructed the jury on armed
robbery, stating, among other things, the offense requires proof that the
defendant be “armed with a deadly weapon, simulated deadly weapon or
firearm” while committing the robbery. (Emphasis added.)

¶17 Examining the record as a whole, the court did not abuse its
discretion in overruling Godoy’s objection. See Decker, 239 Ariz. at 34, ¶ 25
(explaining that where prosecutor’s argument correctly stated Arizona law,
court did not err by overruling objection to it).

III. Sufficiency of the Evidence

¶18 Godoy also argues the court erroneously denied his motion for
directed verdict because there was insufficient evidence to support his
convictions for armed robbery and third-degree burglary. A challenge to the
sufficiency of the evidence is a question of law we review de novo. Snider,
233 Ariz. at 245, ¶ 4 (citing State v. West, 226 Ariz. 559, 562, ¶ 15 (2011)). In
doing so, we examine exclusively whether “substantial evidence supports
the verdict.” State v. Sharma, 216 Ariz. 292, 294, ¶ 7 (App. 2007). Substantial
evidence is proof that “reasonable persons could accept as adequate and
sufficient to support a conclusion of [a] defendant’s guilt beyond a
reasonable doubt.” State v. Mathers, 165 Ariz. 64, 67 (1990). “Evidence
sufficient to support a conviction can be direct or circumstantial,” Snider, 233
Ariz. 243, ¶ 4, and we reverse on insufficiency of evidence “only where there
is a complete absence of probative facts to support the conviction,” Sharma,
216 Ariz. at 294, ¶ 7 (quoting State v. Soto-Fong, 187 Ariz. 186, 200 (1996)).

¶19 A defendant commits armed robbery “if in the course of taking
any property of another from his person or immediate presence and against
his will, [the defendant] threatens or uses force against any person with
intent either to coerce surrender of property or to prevent resistance to [the
defendant] taking or retaining property,” A.R.S. § 13-1902(A), and the
defendant is “armed with a deadly weapon or a simulated deadly weapon,”

6
 STATE v. GODOY
Decision of the Court

A.R.S. § 13-1904(A)(1). “Threat” is a “verbal or physical menace of imminent
physical injury to a person.” A.R.S. § 13-1901(4). “Force” is “any physical act
directed against a person as a means of gaining control of property.” A.R.S.
§ 13-1901(1). A defendant commits third-degree burglary by “entering or
remaining unlawfully in or on a nonresidential structure or in a fenced
commercial or residential yard with the intent to commit any theft or any
felony therein.” A.R.S. § 13-1506(A)(1).

¶20 Here, the record contains substantial evidence to support the
jury’s verdicts, including testimony and video/audio evidence showing that
Godoy, while keeping his hand continuously in his hoodie pocket holding
something that looked “[l]ike a gun, firearm”: appeared at the victims’
home; demanded payment of money; and threatened that if he was not paid,
“things [were] gonna get bad,” that their family was “in danger,” that their
home would “get lit up,” and that “his boys” were ready to “shoot [victims’]
house,” and he needed to get the money he was owed so “no body dies.”

¶21 Mother referenced the object in Godoy’s pocket indicating her
belief it was “not necessary,” and Son testified he believed this object was a
gun. Son also testified Mother was significantly disturbed by the encounter.
Both Son’s testimony and the audio/video evidence established that
Godoy’s threats prompted victims to give him $25 and a promise to pay
more later. The victims also later found Mother’s personal belongings in her
vehicle jumbled and stolen. Substantial evidence supports the jury’s verdicts
finding Godoy committed armed robbery against Mother and third-degree
burglary of her vehicle, see supra ¶¶ 2–5.

¶22 Godoy asserts there was insufficient evidence to support a
finding that the armed robbery was a “dangerous offense,” and thus the
court erroneously denied his post-verdict Rule 20 motion as to the jury’s
finding of dangerousness. He argues evidence of a simulated weapon alone
cannot overcome the statutory requirement that a “deadly weapon or
dangerous instrument” be involved for a dangerous offense finding. This
much is correct. As explained, “armed robbery” involves the defendant
threatening or using force against another to coerce the surrender of
property while armed with “a deadly weapon or a simulated deadly
weapon,” A.R.S. §§ 13-1902(A) and -1904(A)(1). But a “dangerous offense”
finding requires “the discharge, use or threatening exhibition of a deadly
weapon or dangerous instrument,” A.R.S. § 13-105(13). See also State v. Larin, 233 Ariz. 202, 213, ¶ 41 (App. 2013) (explaining “a defendant could be
convicted of armed robbery for using a simulated deadly weapon without
that offense being dangerous”). However, we disagree that the jury was left
to speculate as to whether a deadly weapon was involved here. The court

7
 STATE v. GODOY
Decision of the Court

properly instructed the jury on the distinctions highlighted above. Yet the
jury found that Godoy’s crime was dangerous after deliberating with the
benefit of the record evidence and the parties’ arguments. In doing so, the
jury implicitly found Godoy used an actual deadly weapon in the armed
robbery, and the evidence supports such a finding, see supra ¶¶ 2–5.

¶23 Godoy counters that the State presented no evidence the
armed robbery involved the “discharge, use or threatening exhibition of a
deadly weapon.” We disagree. Son testified that he “saw [Godoy] was
holding something” in his pocket, and that the indentation looked “[l]ike a
gun, firearm.” He further testified that he believed this object was a gun.
Video footage of the incident was also submitted as evidence, in which
Godoy’s appearance, clothing, posture, and tone could be observed.
Whether this evidence, taken together, was sufficient to determine that an
actual deadly weapon was used or threateningly exhibited is a question of
weight committed to the sound discretion of the jury that we will not revisit.
See State v. Lee, 189 Ariz. 590, 603 (1997) (“When the evidence supporting a
verdict is challenged on appeal, an appellate court will not reweigh the
evidence. The court must view the evidence in the light most favorable to
sustaining the conviction, and all reasonable inferences will be resolved
against a defendant.”).

IV. Constitutionality of Sentence

¶24 Godoy attacks the constitutionality of his armed robbery
sentence. He argues the underlying offense of armed robbery already
contemplates the involvement of a deadly weapon, which increases the
felony from a Class 4 (robbery) to a Class 2 (armed robbery). See A.R.S. §§
13-1902 and -1904(A)(1), (B). Thus, Godoy contends that permitting the jury
to use the same fact for sentencing enhancement purposes violates double
jeopardy principles. Compare A.R.S. §§ 13-702 and -703 (sentencing ranges
for first-time and repetitive offenders), with A.R.S. § 13-704 (sentencing
ranges for dangerous offenders). Because Godoy raises this constitutional
claim for the first time on appeal, we review for fundamental error only. See
State v. Williams, 220 Ariz. 331, 334, ¶ 8 (App. 2008); State v. Escalante, 245
Ariz. 135, 140–42, ¶¶ 12–21 (2018). Godoy, therefore, bears the burden of
establishing that fundamental, prejudicial error occurred. Escalante, 245
Ariz. at 142, ¶ 21.

¶25 Godoy contends we should distinguish his case from our
supreme court’s decision in State v. Bly, 127 Ariz. 370 (1980). We decline to
do so. The Bly court made clear that “[i]f the presence of a deadly weapon,
as an element of the crime or otherwise, moves the legislature to impose

8
 STATE v. GODOY
Decision of the Court

more severe punishment for the offense, we must abide by the legislative
determination.” Id. at 373. The presence of a deadly weapon may be an
element of a crime and give rise to harsher punishment, “but that does not
mean a defendant is being punished time and time again for a single act[,]
[i]t merely defines a single harsh punishment for a single severe crime.” Id.
Our supreme court “reaffirm[ed] the rule of Bly” in State v. Lara, 171 Ariz.
282, 285 (1992). See also State v. Stevens, 1 CA-CR 14-0642, 2015 WL 8475986,
at *2–*3, ¶¶ 9, 13 (Ariz. App. Dec. 10, 2015) (mem. decision) (citations
omitted) (explaining “[a] sentencing enhancement is distinct from the
elements of a crime; an enhancement addresses the mode in which the crime
was committed” and “the United States Supreme Court and Arizona
Supreme Court have found that sentence enhancements do not violate
double jeopardy”). Godoy’s position contravenes Bly, and thus fails to
establish error.

V. Count Two Sentencing (Lesser-Included Offense)

¶26 The parties agree the superior court did not address Godoy’s
threatening and intimidating conviction, the lesser included offense of count
two, at sentencing or in its sentencing order. The parties disagree, however,
on the appropriate remedy. Godoy contends the State has waived the issue
by failing to file a timely notice of appeal. And the State requests that we
remand to the court for entrance of sentence as to this conviction, as the
court’s failure to do so constitutes fundamental error. Because no sentence
was ever entered upon the threatening and intimidating conviction, the
court has yet to enter judgment as to this sentence. Without a final judgment
imposing sentence on this conviction, we lack jurisdiction to address any
issue surrounding sentencing for count two until the superior court does
impose a sentence on the conviction. See State v. Nunn, 250 Ariz. 366, 368, ¶
4 (App. 2020) (“We have an independent duty to determine whether we
have jurisdiction on appeal.”); Ariz. R. Crim. P. 31.2(a)(2)(A) (“A notice of
appeal from a judgment of conviction and imposition of sentence must be
filed no later than 20 days after the oral pronouncement of sentence.”).

CONCLUSION

¶27 For the foregoing reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA 9