State v. Melgoza

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TRINO MELGOZA, JR., Appellant.

No. 1 CA-CR 21-0566
FILED 8-11-2022

Appeal from the Superior Court in Yavapai County
No. V1300CR202180163
The Honorable Michael R. Bluff, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Tucson
By Amy Thorson
Counsel for Appellee

Law Office of Nicole Countryman, Phoenix
By Nicole Countryman
Counsel for Appellant
 STATE v. MELGOZA
Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.

B R O W N, Judge:

¶1 Trino Melgoza, Jr. appeals from his conviction and sentence
for aggravated harassment, a class five felony. Because no reversible error
occurred, we affirm.

BACKGROUND

¶2 In November 2017, Melgoza’s former partner and mother of
his three children (“the victim”), obtained and served an order of protection
(“2017 Order”) against Melgoza, prohibiting him from contacting her. In
December 2017, while the order remained valid, Melgoza violated it by
communicating with the victim. He pled guilty to aggravated harassment,
a class six undesignated felony, and was placed on supervised probation
for three years.

¶3 In November 2020, the victim obtained and served a second
order of protection against Melgoza, which remained in effect for one year
from the date of service. Several weeks later, the family court modified the
order of protection, ordering that Melgoza and the victim would have joint
legal decision-making and evenly divide their time with the children. The
court ordered that “communications regarding the children will be between
the parents and they will not use the children to convey information.” The
order also restricted the parties’ communications to discussions of address
changes, emergencies, the children’s activities, and relocations.

¶4 In March 2021, Melgoza parked across the street from the
victim’s home. Using a megaphone, he spoke with his daughter outside
and requested that she ask the victim to give him a portion of her stimulus
money. Melgoza told his daughter that he did not want to cause a scene
but that he would. The victim recorded the interaction on her phone from
inside her home. The next day, she sent the audio recording of Melgoza’s
interaction with their daughter to law enforcement. A grand jury indicted
Melgoza, alleging he committed aggravated harassment in violation of
A.R.S. § 13-2921.01, which states as follows:

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A. A person commits aggravated harassment if the person
commits harassment as provided in § 13-2921 and any of the
following applies:

1. A court has issued an order of protection or an injunction
against harassment against the person and in favor of the
victim of harassment and the order or injunction has been
served and is still valid.

2. The person has previously been convicted of an offense
included in § 13-3601.

B. The victim of any previous offense shall be the same as in
the present offense.

C. A person who violates subsection A, paragraph 1 of this
section is guilty of a class 6 felony. A person who commits a
second or subsequent violation of subsection A, paragraph 1
of this section is guilty of a class 5 felony. A person who
violates subsection A, paragraph 2 of this section is guilty of
a class 5 felony.

¶5 At a pretrial conference, the superior court addressed the
admissibility of Melgoza’s 2018 conviction for aggravated harassment and
the wording of the preliminary jury instructions describing the elements of
the crime as alleged in the indictment. Melgoza argued his prior conviction
should not be admitted at trial, stating it was “super-prejudicial” and
would “lead the jury to think . . . he’s done it once, he’s going to do it again.”
The State countered that as charged in the indictment, the prior conviction
was an element of the crime that must be proven at trial.

¶6 At the beginning of the three-day trial, the State altered its
position, asserting that Melgoza’s prior conviction should operate as an
enhancement—to be proven during a subsequent aggravation phase—
rather than an element of the charged offense. Although unsure, the
superior court allowed the change because both parties agreed with it.
After further discussion, the State suggested the indictment would need to
be amended. Melgoza had no objection, and the court amended the
indictment to reflect a class six felony without a prior conviction. The case
was then tried to the jury consistent with the amended indictment.

¶7 At the end of the guilt phase, the jury found Melgoza guilty
of aggravated harassment, a domestic violence offense. As part of the
aggravation phase, the jury found Melgoza had been previously convicted

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of aggravated harassment of the same victim alleged to have been harassed
in this case. The superior court then sentenced Melgoza for aggravated
harassment per domestic violence as a class five felony and placed him on
standard supervised probation for three years. Melgoza timely appealed,
and we have jurisdiction under A.R.S. § 12-120.21(A)(1).

DISCUSSION

¶8 Melgoza argues the superior court erred in allowing the State
to present evidence of his prior aggravated harassment conviction during
the aggravation phase and in sentencing him to a class five felony based on
the jury’s finding of a prior conviction. Melgoza contends that because the
amended indictment tracked the statutory language for a class six felony,
the court lacked the legal authority to enter a judgment for a class five
felony at sentencing. He further argues that the jury’s verdict during the
aggravation phase did not adequately satisfy the necessary elements for
class five aggravated harassment.

¶9 Because Melgoza raises these issues for the first time on
appeal, we review for fundamental error only. State v. Escalante, 245 Ariz.
135, 140, ¶ 12 (2018). In reviewing for fundamental error, Melgoza must
first establish that trial error exists. Id. at 142, ¶ 21. He then has the burden
to demonstrate that the error was both fundamental and prejudicial. Id.
To show prejudice from fundamental error, Melgoza must show that
without the error, a reasonable jury could have reached a different result.
See id. at 144, ¶ 29.

A. Bifurcation

¶10 When a prior conviction “must be found following a guilty
verdict, the trial must proceed initially as though there were no prior
conviction or sentencing allegations, unless the conviction or sentencing
allegation is an element of the charged crime.” Ariz. R. Crim. P. 19.1(c)(1)
(emphasis added). Deciding whether a prior conviction constitutes an
element of a crime is an issue of statutory interpretation that we review de
novo. State v. Lara, 240 Ariz. 327, 328, ¶ 7 (App. 2016). When the prior
conviction is not “distinct and independent” from the charged offense,
evidence of a prior conviction should be included as an element of the
crime. See State v. Geschwind, 136 Ariz. 360, 362–63 (1983) (citation and
quotation omitted).

¶11 The State initially charged Melgoza with aggravated
harassment with a prior conviction, a class five felony under § 13-2921.01.
During the pretrial hearing on the admissibility of his prior conviction,
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Melgoza argued it should not be admitted at trial. The superior court found
that evidence of the prior conviction was necessarily an element of the
charged offense and would therefore be admissible during trial for the
purpose of satisfying that element. However, on the first day of trial, the
prosecutor raised the issue of admissibility of the prior conviction again,
asserting that the prior conviction functioned as a sentence enhancement to
be proven in a subsequent aggravation phase, rather than an element of the
crime. Melgoza agreed with the prosecutor and the trial was conducted in
accordance with the amended indictment.

¶12 Unlike the position he took in the superior court, Melgoza
argues the court erred in bifurcating the trial. Arguably, he invited the error
and thus cannot obtain appellate relief. See State v. Rushing, 243 Ariz. 212,
217, ¶ 14 (2017) (“The invited error doctrine prevents a party from injecting
error into the record and then profiting from it on appeal.”). However,
because the State has not raised the issue we do not decide whether it
applies. See State v. Robertson, 249 Ariz. 256, 258, ¶ 9 (2020) (directing
appellate courts to “heed the principles underlying the waiver doctrine
intended ‘to prevent the court from deciding cases with no research
assistance or analytical input from the parties’” (citation omitted)).

¶13 The State appears to concede that Melgoza’s prior conviction
was necessarily an element of the charged offense. See Geschwind, 136 Ariz.
at 362 (defining an element of a crime as one necessary to sustain a
conviction); see also Lara, 240 Ariz. at 327, 328, ¶¶ 8–9 (finding prior
shoplifting conviction was an element of the offense, not a sentencing
enhancement, in part because the prior conviction elevated the offense to a
higher class of felony). For purposes of this decision, we accept the State’s
concession and assume the superior court erred in bifurcating the trial
because Melgoza’s prior conviction was an element of the charged offense
and should have been presented during the guilt phase.

¶14 Melgoza, however, has failed to establish how he was
prejudiced by the error. As noted, Melgoza was adamant that there should
be no reference to his prior conviction, asserting it was not an element of
the current charge and would be “highly prejudicial” if presented to the
jury. And when the State asked to bifurcate the trial in order to treat the
prior conviction as a “sentence enhancement” instead of an underlying
element of the offense, Melgoza agreed to the change. Consistent with
Melgoza’s position, the court permitted him to present his defense without
evidence of the prior conviction, the jury found the prior conviction during
the aggravation phase, and the jury was properly instructed on the State’s
burden of proof during both phases of the trial. Thus, Melgoza has not

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shown that without the bifurcation a reasonable jury could have reached a
different result. See Escalante, 245 Ariz. at 144, ¶ 29.

B. Amended Indictment

¶15 Melgoza also contends that because the indictment was
amended to reflect statutory language consistent with a class six felony, his
conviction for a class five felony conflicted with the indictment and the
jury’s verdict. In amending the indictment from a class five felony to a class
six felony, the court may have fundamentally erred by omitting an element
of the crime the State had to prove to convict Melgoza of aggravated
harassment, a class five felony. Melgoza, however, was able to present his
defense without the stigma of the jury hearing evidence of his prior
conviction. Even without that evidence, the jury returned a guilty verdict.
Moreover, during the aggravation phase, the jury was instructed on the
additional elements necessary to prove the prior conviction, as well as the
State’s burden of proving each of those elements beyond a reasonable
doubt. Melgoza has not shown he was prejudiced by the amended
indictment.

C. Aggravation Phase Verdict Form

¶16 The verdict form presented to jurors during the aggravation
phase asked them to decide whether (1) Melgoza was “previously
convicted of the offense of Aggravated Harassment, a domestic violence
offense[,]” and (2) “[t]he victim of the previously convicted offense was the
same person alleged to have been harassed in this case.” Melgoza
summarily argues that the verdict was insufficient to prove he had
“previously violated an order of protection against the same victim,”
asserting such a showing was required to sustain his 2021 conviction as a
class five felony, instead of a class six.

¶17 To sustain a conviction of aggravated harassment as a class
five felony, in addition to proving the defendant committed harassment
under § 13-2921, the State must also prove that either (1) the current offense
is a second or subsequent violation of § 13-2921.01(A)(1) (committing the
offense in violation of a protective order or injunction against harassment)
against the same victim; or (2) the defendant has a prior domestic violence
conviction under § 13-3601. See A.R.S. § 13-2921.01(A)–(C). To prove a prior
conviction, the State need only show evidence of the conviction itself, and
that the current defendant committed the prior offense. State v. Nash, 143
Ariz. 392, 403 (1985).

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¶18 Here, the State introduced certified copies of the 2017 Order
for protection, Melgoza’s 2018 plea agreement, his conviction, and the
judgment of the court. These documents detailed Melgoza’s 2018
conviction for aggravated harassment based on his violation of the 2017
Order and identified the same victim. His violation was also classified as a
domestic violence offense. A.R.S. § 13-3601(A). Because Melgoza’s 2018
conviction for aggravated harassment was both a violation of a protective
order and a domestic violence charge under § 13-3601, the evidence
supports the jury’s conviction as a class five felony; either as a second
violation of § 13-2921.01(A)(1) or as a violation of § 13-2921.01(A)(2). See
A.R.S. § 13-2921.01(A)–(C).

¶19 As part of the guilt phase, the jury was instructed on the
elements necessary to prove aggravated harassment. Those instructions
required the jury to find that Melgoza both: “1. Anonymously or otherwise
communicated or caused a communication with [victim], and 2. The
harassment was done after a court had issued an order of protection against
the defendant in [victim]’s favor and the order of protection had been
served and was still valid.” During the aggravation phase, the State
introduced Melgoza’s 2018 violation of an order of protection against the
victim, after which the jury was asked to determine whether Melgoza had
committed a prior offense of aggravated harassment in 2018. Thus, to the
extent Melgoza challenges the sufficiency of the verdict form at the
aggravation phase, the jury had already received instructions consistent
with a second violation of an order of protection under § 13-2921.01(A)(1),
(C). Melgoza has not shown that fundamental error occurred.

CONCLUSION

¶20 We affirm Melgoza’s conviction and sentence.

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

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