State v. Tapia-Munoz

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

FRANCISCO SANTIAGO TAPIA-MUNOZ, Appellant.

No. 1 CA-CR 24-0260
FILED 10-29-2025

Appeal from the Superior Court in Yuma County
No. S1400CR202201349
The Honorable David M. Haws, Judge

AFFIRMED

COUNSEL

Zachary Law Group, PLC, Mesa
By Jessica Zachary
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee
 STATE v. TAPIA-MUNOZ
Opinion of the Court

OPINION

Judge Michael J. Brown delivered the opinion of the Court, in which
Presiding Judge Anni Hill Foster and Judge Paul J. McMurdie joined.

B R O W N, Judge:

¶1 Francisco Tapia-Munoz appeals from his convictions and
sentences for two counts of first-degree murder, and one count each of
attempted murder, aggravated assault, and unlawful flight. Among the
issues raised on appeal, he argues the trial court erred in overruling his
hearsay objection to the contents of a cell phone extraction report. Because
the report was generated automatically and its contents could not be
influenced or altered by any human, we conclude the statements were not
hearsay. We therefore affirm.

BACKGROUND

¶2 We view the evidence in the light most favorable to sustaining
the jury’s verdicts, resolving all reasonable inferences against Tapia-
Munoz. See State v. Fierro, 254 Ariz. 35, 38, ¶ 2 (2022). In the early morning
hours of November 12, 2022, Somerton police responded to a call about a
man being shot multiple times. The victim, John, was lying on the sidewalk
by a clinic, with blood coming from the back of his head.1 Police found two
bullet casings near John’s body, as well as evidence at other locations
nearby, including an intersection with casings and an alleyway with several
other items.

¶3 Surveillance video footage showed a Buick sedan approach
the area, with the driver shooting John at the intersection where the bullet
casings were located. John then ran towards the alleyway to evade his
assailant. The attacker pursued and ran over John with the Buick as he
entered the alley. John was still able to stand up and flee to the clinic, where
police ultimately found him, but he later died from his gunshot wounds.
An automatic license plate reader took a photo of the Buick as it drove away
from the clinic, with the license plate visible.

1 We use pseudonyms to protect the victims’ identities.
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Opinion of the Court

¶4 Another incident occurred at a nearby casino shortly after the
shooting. The victim (Robert) and his fiancée were leaving the casino when
they stopped before crossing a street to go toward the parking lot. A car
with a license plate matching a portion of the Buick’s license plate stopped
and allowed them to cross, after which the couple proceeded to Robert’s
vehicle. The same car that had allowed them to cross drove back around
and pulled up next to the couple. The driver exited the car, shot and killed
Robert, and drove away. Later that day, Robert’s fiancée identified the
assailant as Tapia-Munoz in a photographic lineup. Police also found a
bullet casing and an unfired bullet in the casino parking lot.

¶5 Officers located the Buick later the same morning and set a
perimeter around the neighborhood where the car was parked. Around
noon, Tapia-Munoz got in the Buick and tried to leave the area. Despite
law enforcement efforts to stop him, Tapia-Munoz sped out of the
neighborhood past the police, and a chase ensued. Tapia-Munoz
eventually drove into another neighborhood, abandoned his vehicle, and
fled on foot. After several minutes of searching, officers located and
arrested Tapia-Munoz. Officers later searched the Buick and found a
handgun with ammunition consistent with the casings found at both crime
scenes. Subsequent testing confirmed the casings had markings consistent
with having been fired from Tapia-Munoz’s gun. Police also found several
cellphones in the Buick. Cell phone location data placed Tapia-Munoz in
the vicinity of both crime scenes when the murders occurred.

¶6 The State charged Tapia-Munoz with two counts of first-
degree murder, one count of attempted murder for the initial shooting of
John, one count of aggravated assault for running over John with the car,
one count of unlawful flight, and one count of misconduct involving
weapons. Before trial, Tapia-Munoz moved to sever the murder charge
involving Robert from the offenses involving John under Arizona Rule of
Criminal Procedure (“Rule”) 13.4, asserting the two murders were
“significantly different,” and joinder would risk evidence of one murder
becoming propensity evidence in the other. Tapia-Munoz also moved to
sever the misconduct involving weapons charge from the other offenses.
The court granted his motion on the misconduct charge but denied it on the
murder charge involving Robert, finding the offenses were “of the same or
similar character” and were “connected in time, location and by over-
lapping evidence.”

¶7 The jury convicted Tapia-Munoz as charged. During the
aggravation phase, the jury found he committed each offense (except

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Opinion of the Court

unlawful flight) with the use of a deadly weapon or dangerous instrument,
and the offenses were committed while he was lying in wait for the victim.

¶8 At sentencing, the court found Tapia-Munoz had prior felony
convictions sufficient in number and quality to make him a category three
repetitive offender, see A.R.S. § 13-703(C), and he committed the crimes
while on release in a separate felony case, see A.R.S. § 13-708(D). The court
sentenced Tapia-Munoz to consecutive terms of natural life in prison for
each murder conviction. For attempted murder, the court imposed a 28-
year sentence, noting the factors the jury found, the prior convictions, and
the lack of any mitigating factors justified the sentence. For aggravated
assault, the court again noted the jury’s aggravating factors, along with the
lack of any mitigation, and imposed a 20-year sentence. As to unlawful
flight, even though the jury found no aggravating factors, the court found
an “aggravated” six-year sentence was appropriate based on “the
aggravating circumstances . . . found by the jury” along with lack of
mitigation. Tapia-Munoz appealed, and we have jurisdiction under A.R.S.
§§ 13-4031, -4033.

DISCUSSION

¶9 Tapia-Munoz argues the trial court erred by (1) denying his
motion to sever, (2) admitting the cell phone extraction report over his
hearsay objection, and (3) committing sentencing errors.

A. Motion to Sever

¶10 According to Tapia-Munoz, the trial court abused its
discretion in denying his motion to sever the first-degree murder count as
to Robert from the remaining counts related to John’s death. But given that
Tapia-Munoz failed to renew his motion at the close of evidence, we review
the court’s denial only for fundamental error. See State v. Allen, 253 Ariz.
306, 332, ¶ 50 (2022); State v. Laird, 186 Ariz. 203, 206 (1996); see also Ariz. R.
Crim. P. 13.4(c) (requiring defendant to renew a motion to sever during trial
before or at the close of evidence, and that the right to severance under the
rule is waived if the defendant “fails to timely . . . renew a proper motion”).

¶11 To establish fundamental error, Tapia-Munoz must show trial
error occurred, the error was fundamental, and the error caused him
prejudice. State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). To establish
prejudice, Tapia-Munoz must show that without the error, a reasonable
jury could have reached a different verdict. Id. at 144, ¶ 29. This standard
is not easily satisfied; it is an objective inquiry that “necessarily excludes
imaginative guesswork.” Id. at ¶ 31.
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Opinion of the Court

¶12 Arizona Rule of Criminal Procedure 13.3(a) allows “[t]wo or
more offenses [to] be joined in an indictment, information, or complaint if
they are each stated in a separate count” and the offenses: “(1) are of the
same or similar character; (2) are based on the same conduct or otherwise
connected together in their commission; or (3) are alleged to have been a
part of a common scheme or plan.” If the offenses are joined only because
they are of the same or similar character, see Ariz. R. Crim. P. 13.3(a)(1), the
defendant is entitled to severance as a matter of right unless “evidence of
the other offense [] would be admissible if the offenses were tried
separately.” Ariz. R. Crim. P. 13.4(b).

¶13 Tapia-Munoz contends the court erred because much of the
evidence related to each murder would not have been admissible had the
offenses been tried separately. He points to the surveillance footage
capturing John’s murder, ballistic evidence recovered from that murder,
and eyewitness testimony from Robert’s fiancée that would not have been
cross-admissible. According to Tapia-Munoz, this constituted improper
propensity evidence of other bad acts.

¶14 We need not determine whether the court erred in denying
the motion to sever because Tapia-Munoz has not presented any argument
in his briefing regarding fundamental error or prejudice. Nor has he
pointed to anything in the record showing the failure to sever the charges
caused the jury to improperly consider evidence of Robert’s murder as
support for the other offenses. He offers only speculation that the jury
improperly considered evidence from the different murders in finding him
guilty, which is insufficient to establish prejudice. See Escalante, 245 Ariz.
at 144, ¶ 31.

¶15 Moreover, the court instructed the jury that “[e]ach count
charges a separate and distinct offense” and that they “must decide each
count separately on the evidence with the law applicable to it, uninfluenced
by [their] decision on any other count.” The court further instructed the
jury it could “find that the State has proved beyond a reasonable doubt all,
some, or none of the charged offenses.” Tapia-Munoz has not identified
anything in this record showing the court’s denial of his motion to sever
caused the jury to render any of its verdicts on an improper basis. See Allen,
253 Ariz. at 334, ¶ 62 (citation omitted); see also State v. Hausner, 230 Ariz.
60, 75, ¶ 48 (2012) (concluding a defendant could not show prejudice when
“the trial court instructed the jurors to consider each charged offense
separately and advised them that the State had to prove each beyond a
reasonable doubt.”). Tapia-Munoz has failed to show the court committed
fundamental, prejudicial error in denying his motion to sever.

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Opinion of the Court

B. Hearsay

¶16 During trial the State introduced exhibits 541 and 542 to
confirm a “Cellebrite” extraction police had performed on one of the cell
phones found in the Buick. As explained by one of the State’s witnesses, a
criminal intelligence analyst, Cellebrite is a “tool that is used to extract
information from devices such as cell phones, SD cards, [and] SIM cards.”
Cellebrite consists of a hardware component used to extract data from a
phone along with software that processes the information and converts it
to a viewable report. The analyst noted that Cellebrite generates the report
of the extracted data, and that he has no way of manipulating the
information in the report. The only information listed in the one-page
Cellebrite reports is the cell phone number connected to the SIM for each of
the two phones. These were the same phone numbers used to collect the
cell phone location data linking Tapia-Munoz to the crime scenes. The trial
court admitted the exhibits over Tapia-Munoz’s objection under the
business record exception to the hearsay rule.

¶17 Tapia-Munoz challenges the admission of the Cellebrite
reports. He argues the reports do not satisfy the business record hearsay
exception found in Arizona Rule of Evidence (“Evidence Rule”) 803(b)(6).
We review a court’s ruling on hearsay for an abuse of discretion. State v.
Franklin, 232 Ariz. 556, 559, ¶ 10 (App. 2013).

¶18 Before deciding whether the exhibits meet the requirements
of a hearsay exception, we first consider whether the reports constitute
hearsay. Hearsay is “a statement that: (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence
to prove the truth of the matter asserted.” Ariz. R. Evid. 801(c). A
“statement” is “a person’s oral assertion, written assertion, or nonverbal
conduct,” and a “declarant” is “the person who made the statement.” Ariz.
R. Evid. 801(a)–(b) (emphasis added). Hearsay statements are generally
inadmissible. See Ariz. R. Evid. 802.

¶19 The State argues the Cellebrite reports are not hearsay
because there is no “declarant” who could have provided a “statement”
under this rule. Federal courts have addressed similar questions, and
because the Federal Rules of Evidence and the Arizona Rules of Evidence
are identical on this topic, compare Ariz. R. Evid. 801(a)–(c), 802, with Fed. R.
Evid. 801(a)–(c), 802, such authority is persuasive, see State v. Delgado, 232
Ariz. 182, 186, ¶ 11 (recognizing that when the Arizona Rules of Evidence
mirror the Federal Rules of Evidence, federal court decisions are persuasive
authority in analyzing Arizona’s rules).

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Opinion of the Court

¶20 In United States v. Lizarraga-Tirado, 789 F.3d 1107, 1109–10 (9th
Cir. 2015), the Ninth Circuit determined that a “tack” placed on a map by
Google Earth was not hearsay because it was not a “statement.” The court
explained that Google Earth users could type in GPS coordinates, and that
the program would automatically produce a digital “tack” on a map
corresponding with those coordinates. Id. at 1108. Though a person enters
the coordinates, that person “has no role in figuring out where the tack will
be placed” and Google Earth places the tack after analyzing the coordinates
“without any human intervention.” Id. at 1110. The Ninth Circuit
concluded that because the program makes the relevant assertion that its
tack aligns with the coordinates provided, there is no “statement” for
hearsay purposes. Id. Several other circuit courts have reached similar
conclusions. See, e.g., United States v. Waguespack, 935 F.3d 322, 334 (5th Cir.
2019) (rejecting appellant’s argument that the trial court erred by admitting
machine-generated materials); United States v. Channon, 881 F.3d 806, 811
(10th Cir. 2018) (explaining that records “produced by machines” fell
“outside the purview of Rule 801, as the declarant is not a person”); United
States v. Lamons, 532 F.3d 1251, 1262–64 (11th Cir. 2008) (noting the court
had “no difficulty” concluding that billing records from a telephone
provider fell outside the definition of hearsay because producing those
records was “fully automated” and “no human intervened at the time the
raw billing data was ‘stated’ by the machine”); United States v. Washington,
498 F.3d 225, 229–31 (4th Cir. 2007) (finding that machine-generated raw
data about a blood sample was not hearsay because “[o]nly a person may be
a declarant and make a statement,” meaning nothing produced by a
machine constitutes hearsay).

¶21 The criminal intelligence analyst testified that Cellebrite
automatically organizes the information it extracts. Aside from physically
plugging the phone and SIM card into the hardware, there is no human
input into the program’s functioning or the report it produces. Importantly,
the analyst explained that he cannot manipulate the information that
Cellebrite generates in its report. See People v. Hamilton, 452 P.3d 184, 193,
¶ 26 (Colo. App. 2019) (“A computer-generated record constitutes hearsay,
however, when its creation involves human input or interpretation.”).
Much like the program described in Lizarraga-Tirado, Cellebrite performs
the “real work” of extracting data from the phone and does so “without any
human intervention” after the phone is plugged into the system. Lizarraga-
Tirado, 789 F.3d at 1110.

¶22 This is not to say that information or communications
generated by computers or machines are automatically beyond the purview
of hearsay. Machine-generated materials and reports may implicate

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Opinion of the Court

hearsay concerns when the underlying contents rely on some kind of
human input to create those materials. See United States v. Juhic, 954 F.3d
1084, 1089 (8th Cir. 2020) (noting that an automated log of child sexual
abuse material was hearsay because the process for compiling those
materials required humans to tag those images); see also Black v. State, 358
S.W.3d 823, 832 (Tex. Crim. App. 2012) (finding that text messages stored
on a cellphone were not computer-generated data exempt from hearsay
because “the contents of the messages were produced by human thought
and action”); Baker v. State, 117 A.3d 676, 683 (Md. Ct. Spec. App. 2015)
(declining to find cellphone call records fell outside the definition of
hearsay because the record showed the relevant data was “entered by a
person”). Aside from hearsay, such materials may involve authentication
issues. See Ariz. R. Evid. 901(a); Lizarraga-Tirado, 789 F.3d at 1110 (“A
proponent must show that a machine is reliable and correctly calibrated,
and that the data put into the machine is accurate.”); see also Kenneth S.
Broun et. al., 2 McCormick on Evidence § 294 (Robert P. Mosteller ed., 9th ed.
2025) (“Because such records are not the counterpart of a statement by a
human declarant, which should ideally be tested by cross-examination of
that declarant, they should not be treated as hearsay, but rather their
admissibility should be determined on the basis of the reliability and
accuracy of the process involved.”). Those concerns are not presented here.

¶23 Because Cellebrite is not a “person,” and nothing in this
record suggests the results of the Cellebrite report were in any way the
product of human thought or action, they are not “statements” made by a
“declarant,” and thus are not hearsay under Evidence Rule 801. This
conclusion aligns with decisions from other states addressing similar
issues. See e.g., Bryan v. State, 903 S.E.2d 160, 167–68 (Ga. App. 2024)
(finding that Cellebrite extraction report was not a statement made by a
declarant and therefore not hearsay); Commonwealth v. Udeba, 170 N.E.3d
709, 717 (Mass. App. Ct. 2021) (explaining that “the human input required
to create the extraction reports essentially amounted to plugging each cell
phone into the Cellebrite device” and that the extraction reports were “not
statements for purposes of the hearsay rule”); People v. Abad, 490 P.3d 1094,
1105, ¶¶ 54–55 (Colo. App. 2021) (noting that cell phone extraction reports
did “not require any human input short of plugging the phone into a
machine” and because the reports were “automatically generated” they
were not “statements” made by a “declarant”); cf. Commonwealth v. Grubbs,
330 A.3d 444, 451 (Pa. Super. Ct. 2025) (finding that GPS data collected from
cell phone records did not qualify as hearsay).

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Opinion of the Court

¶24 Accordingly, we need not determine whether the exhibits met
the requirements of a hearsay exception. The trial court did not abuse its
discretion by overruling Tapia-Munoz’s objection.

C. Sentencing and Aggravating Factors

¶25 Tapia-Munoz’s final argument concerns his sentences for
aggravated assault and unlawful flight. Because he failed to object at
sentencing, we review for fundamental error only, which requires him to
show his sentences were erroneous, the errors were fundamental, and the
errors prejudiced him. Escalante, 245 Ariz. at 142, ¶ 21.

¶26 The trial court found that Tapia-Munoz is a category three
repetitive offender, a finding he did not challenge at sentencing or in his
appellate briefing. Thus, A.R.S. § 13-703(J) provides the relevant sentencing
ranges for the offenses at issue. To impose a maximum sentence, the court
must have found at least one statutory aggravating factor under A.R.S.
§ 13-701(D). See A.R.S. § 13-703(C).

1. Aggravated Assault

¶27 Tapia-Munoz argues the trial court erred in sentencing him as
to his aggravated assault conviction. For all convictions except unlawful
flight, the jury found two aggravating factors: Tapia-Munoz committed the
offenses (1) with a deadly weapon or dangerous instrument; and (2) while
he was lying in wait for the victim. As to aggravated assault, Tapia-Munoz
argues the first factor should not have been considered because the use of a
deadly weapon or dangerous instrument was an essential element of the
underlying aggravated assault conviction.

¶28 The State charged Tapia-Munoz with aggravated assault
under A.R.S. § 13-1204(A)(2), which provides that a defendant commits
aggravated assault by committing simple assault, see A.R.S. § 13-1203, and
does so using “a deadly weapon or dangerous instrument,” A.R.S.
§ 13-1204(A)(2). Aggravated assault under this subsection is a class three
felony. A.R.S. § 13-1204(F). Under A.R.S. § 13-703(J), the presumptive
sentence term for a class three felony is 11.25 years and the maximum is 20
years. Tapia-Munoz received a 20-year sentence for aggravated assault.

¶29 As provided in A.R.S. § 13-701(D)(2), the court may consider
the use of a deadly weapon or dangerous instrument as an aggravating
factor unless “this circumstance is an essential element of the offense of
conviction.” Because the use of a deadly weapon or dangerous instrument

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Opinion of the Court

is an essential element of § 13-1204(A)(2), the court erred in considering this
factor when imposing an aggravated sentence as to this conviction.

¶30 But Tapia-Munoz must also demonstrate fundamental error
resulting in prejudice. See Escalante, 245 Ariz. at 142, ¶ 21. Although the
imposition of an illegal sentence is fundamental error, see State v.
Munninger, 213 Ariz. 393, 397, ¶ 11 (App. 2006), Tapia-Munoz did not
receive an illegal sentence. The court needed only one proper aggravating
factor to impose a sentence above the presumptive. See A.R.S. § 13-703(D);
State v. Martinez, 210 Ariz. 578, 585, ¶ 26 (2005) (“[T]he existence of a single
aggravating factor exposes a defendant to an aggravated sentence”). And
the jury found such a factor by determining that Tapia-Munoz was lying in
wait for the victim when he committed the offense. See A.R.S.
§ 13-701(D)(17). Moreover, the court found that Tapia-Munoz had prior
convictions, which could also function as an aggravating factor. See A.R.S.
§ 13-701(D)(11). Because the court had sufficient aggravating factors to
impose an aggravated sentence, Tapia-Munoz has not shown that
resentencing is necessary.

2. Unlawful Flight

¶31 Tapia-Munoz likewise argues the court erred by imposing an
aggravated sentence on his conviction for unlawful flight. Unlike Tapia-
Munoz’s other convictions, the jury found no aggravating factors
applicable to this offense. Thus, he contends the court “improperly
considered aggravating factors not found by the jury when it imposed an
aggravated sentence.” See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)
(“Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”).

¶32 Unlawful flight is a class five felony. A.R.S. § 28-622.01.
Because the court found that Tapia-Munoz was a category three repetitive
offender, his sentence for this offense is governed by A.R.S. § 13-703(J).
Under A.R.S. § 13-703(J), the presumptive sentence for a class five felony is
five years and the maximum, requiring at least one proper aggravating
circumstance, is six years. Id.; A.R.S. § 13-701(C). The minimum sentence
is four years. A.R.S. § 13-703(J). The court imposed a six-year sentence
based on the aggravating factors the jury found, but as the State
acknowledges, the jury found no aggravating factors for this offense.

¶33 The State argues nonetheless that Tapia-Munoz’s sentence
was appropriate because Tapia-Munoz committed the crime while on

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pretrial release. Under A.R.S. § 13-708(D), “[a] person who is convicted of
committing any felony offense that is committed while the person is
released on bond or on the person’s own recognizance on a separate felony
offense . . . shall be sentenced to a term of imprisonment two years longer
than would otherwise be imposed for the felony offense.” At sentencing,
the court found that Tapia-Munoz committed unlawful flight while on
pretrial release for a separate felony offense.2 In light of § 13-708(D), had
the court imposed the presumptive term for this offense, for which no
aggravating factor is required, Tapia-Munoz would have received a seven-
year sentence. But the six-year sentence the court imposed meant that
Tapia-Munoz actually received the minimum sentence (four years) for
unlawful flight. With the two-year enhancement required under § 13-
708(D), the court did not err because no aggravating factors were needed to
support a six-year sentence for unlawful flight.

CONCLUSION

¶34 We affirm Tapia-Munoz’s convictions and sentences.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

2 The State notes in its answering brief the trial court found Tapia-
Munoz committed the crime while on pretrial release. Because that finding
increased his sentence through § 13-708(D), such a finding should have
been made by a jury. See State v. Gross, 201 Ariz. 41, 45, ¶ 19 (App. 2001)
(concluding that a defendant’s release status, for sentencing purposes, must
be determined by a jury); State v. Benenati, 203 Ariz. 235, 241–42, ¶ 22 (App.
2002) (vacating two-year sentencing enhancement because consideration of
defendant’s release status was not decided by the jury). But Tapia-Munoz
did not object to the court’s finding, nor has he challenged it on appeal.
Thus, we consider the implication of § 13-708(D) for his sentence but note
that in normal circumstances such a finding is appropriately left to the jury
rather than the court.
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