State v. Turay

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DIANA OMOREGIE TURAY, Appellant.

No. 1 CA-CR 25-0099
FILED 01-07-2026

Appeal from the Superior Court in Maricopa County
No. CR2022-102616-001
The Honorable Therese Ann Gantz, Commissioner

AFFIRMED

COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Aaron J. Moskowitz
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Anni Hill Foster delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Veronika Fabian joined.

F O S T E R, Judge:

¶1 Diana Turay appeals the superior court’s finding that she
violated the terms of her probation. Turay argues the State did not provide
sufficient evidence that she failed to report her law-enforcement contact, as
required by the terms of her probation. Turay also argues the State did not
provide sufficient evidence that she had the mental capacity to comply with
any terms of her probation. This Court affirms.

FACTS AND PROCEDURAL HISTORY

¶2 In May 2022, Turay pled guilty to one count of possession of
drug paraphernalia. At the time, Turay was serving a three-year probation
sentence for a prior crime. The possession charge violated the terms of her
probation. After Turay’s conviction on the possession charge, the court
suspended her new sentence and placed her on another probation term for
three years. Turay signed an agreement with the Adult Probation
Department (“APD”) acknowledging its terms. By October, Turay violated
the terms of her probation and did so again in December. Both times, the
superior court reinstated Turay’s probation and Turay signed an agreement
with the APD acknowledging the standard probation terms.

¶3 Each of these three agreements contained substantially the
same terms. Turay agreed to “report any contact with law enforcement to
the APD within 72 hours” (“Term 3”). She also agreed to report to the APD
and to “comply with any written directive of the APD to enforce
compliance with the conditions of probation” (“Term 6”).

¶4 Between December 2022 and October 2024, Turay violated
probation and was subject to a continuity of care plan due to her mental
health. In April 2024, Turay signed a Behavior Agreement with her
probation officer. The Behavior Agreement, which related to Term 6, stated,
as a condition, that Turay would “report to the [Black Canyon Building]
office every first Wednesday of the month between 8am-1pm.”

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¶5 In April, June and July 2024, Turay failed to report to the
probation office as agreed, though her probation officer received contact
about her through a third party. Turay’s probation officer noted that during
these months, Turay failed to comply with her April Behavior Agreement
to enroll in substance abuse treatment. In August, Turay again failed to
report to the probation office as required. Turay’s probation officer called
and attempted to find her but did not receive any calls, messages or reports
from Turay during the month of August.

¶6 About a month and a half later, Turay’s probation officer
learned that Turay had been arrested, booked and released for
misdemeanor theft and failure to appear. Turay had not notified the APD
of these events, so the APD petitioned to revoke Turay’s probation, and the
court issued an arrest warrant.

¶7 After Turay’s arrest, the court held a probation violation
hearing. During the evidentiary hearing, the State submitted evidence from
Turay’s probation officer, who discussed Turay’s noncompliance with
probation terms, and a fingerprint analyst, who attested that Turay was the
person who was arrested and pled guilty in 2022. Turay testified as well.
She stated that she was not the person arrested for theft in 2024. She also
testified that she did not report to the APD because she believed she had
completed her probation. At the end of the hearing, the superior court made
several findings. The court found that Turay received proper notice of the
terms of her probation and that she violated Terms 3 and 6.

¶8 Turay timely appealed. This Court has jurisdiction under
Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12-
120.21(A)(1), 13-4031 and -4033(A)(3)–(4).

DISCUSSION

¶9 Turay argues that insufficient evidence supported the petition
to revoke her probation because the State failed to prove that: (1) Turay was
the person arrested for theft and (2) Turay had the mental capacity to
comply with the terms of her probation.

I. Sufficient evidence supports that Turay violated Term 3.

¶10 Courts may revoke probation when a defendant violates a
probation term. A.R.S. § 13-901(C). Violation of a probation term must be
supported “by a preponderance of the evidence.” Ariz. R. Crim. P.
27.8(b)(3). This Court reviews a superior court’s decision to revoke
probation for abuse of discretion. See State v. Portis, 187 Ariz. 336, 338 (App.

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1996); State v. Sanchez, 19 Ariz. App. 253, 254 (1973). “This court will uphold
the superior court’s ‘finding that a probationer has violated probation
unless the finding is arbitrary or unsupported by any theory of evidence.’”
State v. Vaughn, 217 Ariz. 518, 521, ¶ 14 (App. 2008) (quoting State v. Thomas, 196 Ariz. 312, 313, ¶ 3 (1999)).

¶11 Turay relies on Arizona Rule of Criminal Procedure (“Rule”)
20 to argue that substantial evidence was required to support revocation.
But Rule 20 addresses the burden of proof for judgments of acquittal and
aggravating circumstances in criminal convictions. Ariz. R. Crim. P. 20.
Rule 20 requires a court to enter a judgment of acquittal if the State fails to
provide substantial evidence to support conviction of “any offense charged
in an indictment, information, or complaint.” Ariz. R. Crim. P. 20(a)(1). Rule
20 does not address probation violations, which are post-verdict
proceedings. See Ariz. R. Crim. P. 20. Because Turay’s revocation was a
post-verdict proceeding, Rule 20 is inapplicable.

¶12 Turay also argues the evidence presented in support of her
probation violation is insufficient in light of her testimony. Turay testified
that someone stole her identification in 2020, and the person arrested for
theft in September 2024 fraudulently used her identity when booked by the
officers. Turay concludes that this evidence of stolen identity enhances the
State’s absence of evidence, meaning they did not present proof by a
preponderance that she violated probation. But the court also heard
evidence that Turay received actual written notice of the terms of probation,
including Term 3, multiple times from the APD and acknowledged receipt
each time. And the APD presented evidence that Turay’s probation officer
received a notification from a third party indicating Turay had significant
contact with law enforcement resulting in her arrest.

¶13 Because this Court does not reweigh the evidence, State v.
Lewis, 236 Ariz. 336, 341, ¶ 8 (App. 2014), and the superior court is in the
best position to weigh witness credibility and conflicting evidence, this
Court defers to the court’s determination of those issues. See State v. Thomas, 196 Ariz. 312, 313, ¶ 3 (App. 1999); see also State v. Hunt, 13 Ariz. App. 267,
270–71 (1970). This Court discerns no error in the court’s ruling.

II. The record supports that Turay has the mental capacity to comply.

¶14 Turay argues the evidence in the record is insufficient to show
she possessed the mental capacity to enter a probation agreement. Because
Turay raises the issue of her mental capacity for the first time on appeal,

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this Court reviews this issue for fundamental, prejudicial error. See State v.
Peralta, 175 Ariz. 316, 318 (App. 1993).

¶15 To obtain relief under fundamental error review, Turay must
show an error occurred at the trial level and that the error was fundamental.
State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). Error is fundamental if “(1)
the error went to the foundation of the case, (2) the error took from the
defendant a right essential to [her] defense, or (3) the error was so egregious
that [she] could not possibly have received a fair trial.” Id. If Turay
establishes prongs one or two, she must make a separate showing of
prejudice. Id. However, if Turay establishes the third prong, she has shown
the error was both fundamental and prejudicial. Id.

¶16 A probation violation “must be established by a
preponderance of the evidence.” Ariz. R. Crim. P. 27.8(b)(3). Error occurs if
insufficient evidence supports a court’s finding that a violation occurred.
See State v. Martin, 171 Ariz. 159, 160 (App. 1992) (finding insufficient
evidence to support a probation violation occurred and was therefore
reversible error).

¶17 While the court did not explicitly find that Turay had the
mental capacity to enter the probation agreement or comply with its terms,
the court found Turay knew the terms of her probation and knew she was
required to comply with its terms. Inherent in that finding is that Turay had
the mental capacity to understand her probation terms and how to comply
with them. See State v. Zamora, 220 Ariz. 63, 67, ¶ 7 (App. 2009) (permitting
this Court to infer the necessary findings to affirm the superior court, “only
if the implied findings do not conflict with the court’s express findings”).

¶18 The record supports the court’s findings and contains
evidence that Turay possessed the mental capacity to understand and
follow the terms of her probation. APD documents show Turay successfully
reported to her probation officer in May 2024. Turay’s probation officer
testified that during probation, Turay told him in advance she would be
changing her address, a required term of her probation. At the hearing,
Turay testified she knew she was on probation, required to report monthly
and did not report on the first Wednesday of August 2024. When there is
evidence in the record to support the court’s finding, this Court cannot hold
that the finding is error. State v. Watkins, 125 Ariz. 570, 574 (1980).

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CONCLUSION

¶19 This Court affirms.

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

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