State v. Espizona

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ADAN IVAN MUNOZ ESPINOZA, Appellant.

No. 1 CA-CR 23-0420

FILED 12-05-2024

Appeal from the Superior Court in Maricopa County
No. CR2023-103909-001
The Honorable Bruce R. Cohen, Judge

AFFIRMED

COUNSEL

Law Office of Stephen M. Johnson Inc, Phoenix
By Stephen M. Johnson
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Eric K. Knobloch
Counsel for Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 Adan Espinoza appeals his conviction and sentence for one
count of child sex trafficking. We affirm.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 In January 2023, an undercover police detective posted an
online advertisement under a fictitious name, “Maddie,” stating she was
“bored” and looking for money. The ad reflected that Maddie was 18 and
contained a photograph of a model who was over 18. Espinoza began
messaging Maddie’s account and asked to meet for a car date. Maddie told
him that she did not have a car because, despite stating that she was over
18 in the personal ad, she was a 16-year-old high school student. Eventually,
Espinoza agreed to pay Maddie in exchange for sex, and they arranged to
meet at a coffee shop. At the meet-up, officers arrested Espinoza, and the
State charged him with one count of child sex trafficking, a class 2 felony.

¶3 At trial, Espinoza testified. During cross-examination, the
State introduced evidence of his two prior felony convictions, attacking his
credibility as a witness under Arizona Rule of Evidence 609. After the close
of evidence, the court gave the jury a limiting instruction related to the prior
convictions from the Revised Arizona Jury Instructions (“RAJI”) with two
modifications. The unmodified RAJI 21 reads:

You have heard evidence that defendant has previously been
convicted of a criminal offense. You may consider that
evidence only as it may affect defendant’s believability as a
witness. You must not consider a prior conviction as evidence
of guilt of the crime for which the defendant is now on trial.

1 We view the facts in the light most favorable to upholding the verdict
and resolve all reasonable inferences against the defendant. State v.
Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).

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Rev. Ariz. Jury Instr. Stand. Crim. 21 (6th ed. 2022).

¶4 In open court and the written instructions, the court added
the following text after the first sentence, “Evidence of this nature is
allowed for a very restrictive and limited purpose.” Next, in the written
instructions, the court capitalized “only” in the sentence, “You may
consider that evidence ONLY as it may affect defendant’s believability as a
witness.” Espinoza’s counsel did not object to either change.

¶5 The jury found Espinoza guilty of one count of child sex
trafficking, and the court sentenced him to a term of seven years’
imprisonment with 68 days of presentence incarceration credit. Espinoza
appealed, and we have jurisdiction under Arizona Revised Statutes
(“A.R.S.”) §§ 13-4031, -4033(A)(1).

DISCUSSION

¶6 If a defendant fails to object to a jury instruction, “we review
only for fundamental error.” State v. Finch, 202 Ariz. 410, 415, ¶ 19 (2002);
see also State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018). An error is
fundamental if it (1) “went to the foundation of the case”; (2) “took from the
defendant a right essential to his defense”; or (3) “was so egregious that he
could not possibly have received a fair trial.” Escalante, 245 Ariz. at 142,
¶ 21. “If the defendant establishes fundamental error under prongs one or
two, he must make a separate showing of prejudice.” Id. We must grant a
new trial if the defendant establishes the third prong. Id. In determining
whether the court properly instructed a jury, the test is whether “the
instructions adequately set forth the law applicable to the case.” State v.
Rodriguez, 192 Ariz. 58, 61-62, ¶ 16 (1998). A jury instruction creates
reversible error if the instruction, taken as a whole, supports the belief that
the jurors would have been misled. State v. Gallegos, 178 Ariz. 1, 10 (1994).
But the defendant must meet his burden of persuasion in proving the jury
instruction was prejudicial. See Escalante, 245 Ariz. at 142, ¶ 21. And mere
speculation that the instruction confused the jury does not establish actual
confusion. State v. Bass, 198 Ariz. 571, 577, ¶ 17 (2000).

¶7 The court’s modified RAJI correctly set forth the law about the
permitted purposes for which the jury could consider Espinoza’s prior
convictions. See State v. Canedo, 125 Ariz. 197, 200 (1980) (When the court
admits a criminal defendant’s prior offenses, it must inform the jury it is for
the limited and restricted purpose of determining credibility as a witness
and not to determine whether he is of bad character.); see also State v. Larin, 233 Ariz. 202, 212, ¶ 37 (App. 2013) (“[C]ourts are not required to follow the

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RAJI.”); Ariz. R. Evid. 609 (The State may attack a criminal defendant’s
character for truthfulness with evidence of a prior criminal conviction.).

¶8 Espinoza argues that the court’s deviations from the
approved instruction was an error that went to the foundation of the case.2
An error “goes to the ‘foundation of the case’ if it relieves the prosecution
of its burden to prove a crime’s elements.” Escalante, 245 Ariz. at 141, ¶ 18.
By capitalizing “only” in the instructions, he contends the court “amplified
the significance of [his] prior convictions in the jurors’ minds.” Similarly,
he argues that adding the phrase “very restrictive and limited purpose”
drew extra attention to his prior convictions. We find no error here. Even if
the modifications highlighted Espinoza’s prior convictions, that would not
violate the law if the jury was instructed only to consider those convictions
to evaluate credibility.

¶9 Even if we assume error, Espinoza has not met his burden to
show that the modifications prejudiced him. See State v. Ruiz, 236 Ariz. 317,
322, ¶ 13 (App. 2014) (Prejudice requires a showing “that a reasonable,
properly instructed jury could have reached a different result.”) (quotation
omitted). Espinoza presents no evidence supporting his argument that the
RAJI changes could confuse the jury. See Bass, 198 Ariz. at 576-77, ¶ 17 (mere
speculation is insufficient). He presents no evidence suggesting that the
changes conflicted with other instructions or that a reasonable jury could
have reached a different result without the modifications. See Ruiz, 236 Ariz.
at 322, ¶ 13. If anything, the modifications benefited his defense by
highlighting to the jury that it could only consider his prior convictions for
a restricted purpose. Espinoza has not met his burden of proving either
error or prejudice. Thus, no fundamental error occurred.

2 Espinoza’s briefs point to each prong of fundamental error but do
not sufficiently develop the arguments. Such a failure to develop an
argument could waive the claim. See Ariz. R. Crim. P. 31.10(a)(7)(A); State
v. Moody, 208 Ariz. 424, 452, ¶ 101, n.9 (2004) (An appellant’s failure to
support their position on an issue in their opening brief with developed
arguments and legal authority usually constitutes waiver of that claim.).
But because the rule is prudential and because the opening brief adequately
put the State on notice, we choose to resolve the merits of the claim. Meiners
v. Indus. Comm’n of Ariz., 213 Ariz. 536, 538-39, ¶ 8 (App. 2006).

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CONCLUSION

¶10 We affirm Espinoza’s conviction and sentence.

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

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