State v. Sierra

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ELOY SIERRA, JR., Appellant.

No. 1 CA-CR 24-0181
FILED 12-19-2024

Appeal from the Superior Court in Yavapai County
No. P1300CR202201506
The Honorable Krista M. Carman, Judge

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Alice Jones
Counsel for Appellee

Michael J. Dew, Phoenix
Counsel for Appellant
 STATE v. SIERRA
Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge David D. Weinzweig joined.

M O R S E, Judge:

¶1 Eloy Sierra, Jr. appeals his convictions and sentences for: (1)
Aggravated Assault Per Domestic Violence, a class 4 felony; (2) Aggravated
Domestic Violence Per Domestic Violence, a class 5 felony; and (3) Criminal
Trespass in the First Degree, a class 1 misdemeanor. After searching the
entire record, Sierra's defense counsel identified no arguable, non-frivolous
question of law. In accordance with Anders v. California, 386 U.S. 738 (1967),
and State v. Leon, 104 Ariz. 297 (1969), defense counsel asks this Court to
search the record for fundamental error.

¶2 In May 2024, we issued an order permitting Sierra to file a pro
se supplemental brief. On July 30, 2024, we received a 19-page letter from
Sierra, dated February 6, 2024, and postmarked July 25, 2024, accompanied
by 37 pages of annotated-photo exhibits. Although Sierra's letter was
delivered to this Court, it appears to address the superior court. Because
the filing deadline has passed without further submissions or
correspondence from Sierra, we treat his February letter as his pro se
supplemental brief and address the issues raised therein. Finding no
reversible error, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶3 On December 3, 2022, a neighbor was awoken by S.E.1
screaming. The neighbor saw S.E. pleading with Sierra as he approached
her. The neighbor ran outside and saw Sierra choking S.E.; she broke free
and ran to the neighbor's yard for safety. The neighbor handed her a phone,
and when S.E. mentioned she intended to call the father of her child, Sierra
charged through the gate and into the yard. Sierra cried and accused S.E.
of infidelity before leaving the yard.

1 We use victim identifiers in place of the victims' names to protect
their identities. Ariz. R. Sup. Ct. 111(i).

2
 STATE v. SIERRA
Decision of the Court

¶4 Police responded to a radio call from a neighbor reporting
domestic violence and arrived to find S.E. crying and visibly upset. She
stated that Sierra strangled her during an argument, showed the medical
staff where she was choked, and complained of chest pain. Sierra was
arrested.

¶5 S.E. testified at trial that, while having consensual-rough sex
with Sierra, she had an epileptic seizure. She had a history of seizures and
kept a log of her seizures for disability-benefits purposes. She did not log a
seizure that night. Sierra testified and told police that S.E. had a seizure
during rough sex involving choking and that he came to her aid.

¶6 Prior to trial, the State disclosed potential evidence including
photos, body-cam footage, and 911 calls. Sierra stipulated to their
admission as evidence at trial. The State also alleged two prior domestic-
violence convictions which Sierra stipulated to at trial. The State offered
Sierra a plea deal and the superior court held a hearing pursuant to State v.
Donald, 198 Ariz. 406 (App. 2000). Sierra rejected the State's offer and
proceeded to trial. Sierra participated in voir dire and did not object to the
final jury instructions, which accurately reflected the statutory elements of
his charges. A jury of eight, with two alternates, was empaneled; the final
jury contained one man and seven women.

¶7 Sierra, S.E., the neighbor, and two police officers testified at
the two-day jury trial. The State presented photos of S.E.'s injuries and the
officers' body-cam footage. Sierra did not request that an expert evaluate
the photos showing strangulation marks on S.E.'s neck, nor did he allege
prosecutorial misconduct. A police officer testified about Sierra's two prior
domestic-violence convictions. The jury returned guilty verdicts on Counts
1-3. During the aggravation hearing, the jury found the State had proven
Sierra's two prior convictions for sentencing purposes.

¶8 Sierra addressed the superior court at his sentencing. The
court sentenced him as a category-three repetitive offender to concurrent,
presumptive terms of imprisonment: ten years in prison for Count 1, five
years in prison for Count 2, and 180 days in county jail for Count 3. The
court also gave 461 days of presentence-incarceration credit.

¶9 Sierra timely appealed, and we have jurisdiction under A.R.S.
§§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

3
 STATE v. SIERRA
Decision of the Court

DISCUSSION

¶10 Sierra raises several issues in his supplemental brief, none of
which he raised at trial. Thus, we review only for fundamental, prejudicial
error. State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018). We view the facts in
the light most favorable to sustaining Sierra's convictions and resolve all
reasonable inferences against him. State v. Fontes, 195 Ariz. 229, 230, ¶ 2
(App. 1998).

I. Ineffective Assistance of Counsel.

¶11 Sierra asserts his counsel was ineffective. We will not
consider claims of ineffective assistance of counsel on direct appeal. State
v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002) (finding that ineffective-assistance-of-
counsel claims must be brought in a petition for post-conviction relief).

II. Jury Composition.

¶12 Sierra argues the jury was tainted because it was mostly
women. A defendant may be entitled to a new trial for juror misconduct "if
the defense shows actual prejudice or if prejudice may be fairly presumed from
the facts." State v. Miller, 178 Ariz. 555, 558 (1994). A defendant may also be
entitled to a new trial for lack of impartial jury selection by proving a
distinct class was statistically underrepresented in the jury pool such that
they were systematically excluded during the selection process. State v.
Bernal, 137 Ariz. 421, 425 (1983). Because Sierra provides no examples or
citations to support his assertion of prejudice based on jury composition or
gender-based-systematic exclusion, he has not demonstrated any error.

III. Sufficient Evidence.

¶13 Sierra challenges the sufficiency of evidence supporting his
convictions. "Reversible error based on insufficiency of the evidence occurs
only where there is a complete absence of probative facts to support the
conviction." State v. Soto-Fong, 187 Ariz. 186, 200 (1996) (quoting State v.
Scott, 113 Ariz. 423, 424–25 (1976)). Here, the record reflects ample evidence
supporting the elements of the charged offenses and the jury verdicts.
Supra ¶¶ 3–4, 7.

IV. Alleged Prosecutorial Misconduct.

¶14 Sierra asserts the prosecutor engaged in discovery violations,
modified photo exhibits, skewed S.E.'s testimony in interviews, and
committed other misconduct by not dropping his charges or putting him in

4
 STATE v. SIERRA
Decision of the Court

contact with S.E. Sierra provides no examples or record citations to support
his assertions. Nor does our independent review of the record support his
allegations.

V. No Fundamental Error.

¶15 In addition to evaluating the arguments raised in Sierra's
supplemental brief, we have conducted an independent review of the
record. Our review revealed no fundamental error. See Leon, 104 Ariz. at
300. All proceedings were conducted in compliance with the Arizona Rules
of Criminal Procedure, and the record reveals that Sierra was present at all
critical stages of the proceedings and represented by counsel. See Ariz. R.
Crim. P. 6.1, 19.2. The State presented sufficient evidence from which the
jury could determine Sierra's guilt beyond a reasonable doubt. See State v.
West, 226 Ariz. 559, 562, ¶ 16 (2011). The jury was comprised of eight
members. See A.R.S. § 21-102(B). The superior court properly instructed
the jury on the presumption of innocence, the burden of proof, and the
elements of the charged offenses. The court received a presentence report.
Ariz. R. Crim. P. 26.4. The court afforded Sierra an opportunity to speak at
sentencing, imposed sentences within the statutory limits, and stated on the
record the evidence and factors it considered in imposing the sentences. See
A.R.S. §§ 13-701, -703(J), -707(A)(1); Ariz. R. Crim. P. 26.9–26.10.

CONCLUSION

¶16 We affirm Sierra's convictions and sentences. Upon the filing
of this decision, defense counsel shall inform Sierra of the status of the
appeal and of his future options. Counsel has no further obligations unless,
upon review, counsel finds an issue appropriate for submission to the
Arizona Supreme Court by petition for review. See State v. Shattuck, 140
Ariz. 582, 584–85 (1984). Sierra shall have 30 days from the date of this
decision to proceed, if he desires, with a pro per motion for reconsideration
or petition for review.

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

5