State v. Sanchez

892 P.2d 212, 181 Ariz. 492, 186 Ariz. Adv. Rep. 24, 1995 Ariz. App. LEXIS 71
Procedural entryThis page is a short order in State v. Sanchez. Read the opinion of the Court — 174 Ariz. 44
Court of Appeals of Arizona·Decided March 21, 1995·No. No. 1 CA-CR 93-0414·Published

Opinion

OPINION

LANKFORD, Presiding Judge.

This is a direct appeal by Alex Sanchez, defendant, from a judgment by the trial court finding him guilty of obstructing a criminal investigation, a class five felony.

Defendant raises one issue on appeal: is photographing an unmarked police car punishable as obstruction of a criminal investigation, a violation of Ariz.Rev.Stat.Ann. (“A.R.S.”) section 13-2409?

We view the evidence in the light most favorable to upholding the conviction. State v. Nunez, 167 Ariz. 272, 806 P.2d 861 (1991); State v. Barger, 167 Ariz. 563, 810 P.2d 191 (App.1990). The essential facts are as follows. In August 1992, Agent Atwell, an undercover narcotics agent for the Southwest Border Alliance, arrested Larue Sanchez, the wife of defendant, for possession and transportation of dangerous drugs and possession of drug paraphernalia. Atwell had known Larue Sanchez for several years. She had also worked with the Southwest Border Alliance as a confidential informant.

While arresting her, Atwell seized Larue Sanchez’s purse as evidence. Later, she asked for some personal belongings from her purse. Atwell agreed to meet her at the jail that evening to return the items and arranged to have Agent Hefner, another undercover agent, present as well.

When Atwell arrived, he saw several camera flashes. He discovered that defendant was taking photographs. Atwell told defendant not to photograph him or his undercover car, but defendant refused. When defendant attempted to take more photographs, Atwell tried to grab the camera from him. Then Larue Sanchez came running to the scuffle, screaming and yelling that she would “get even” with Atwell. Atwell abandoned the camera and left after Hefner intervened.

Defendant and Larue Sanchez were later indicted for obstructing criminal prosecution, a class 5 felony, and influencing a witness, also a class 5 felony. AR.S. §§ 13-2409, 13-2802, 13-701, 13-801. Defendant pled not guilty. The defense later filed a motion to dismiss on the grounds that defendant’s actions were not illegal. The court denied the motion.

Defendant waived his right to a jury trial and a bench trial began. The state called two witnesses, Agents Atwell and Hefner.

Atwell testified that defendant photographed his car. The record is unclear whether defendant also photographed Atwell. Atwell stated that an anonymous caller said photographs and the license plate numbers of [494]*494agents’ vehicles were being disseminated. His testimony did not reveal whether the caller had stated what the photographs depicted. Later, Atwell received a list from drug users and traffickers that identified undercover officers, their cars, and their license plate numbers. He claimed to have never before received this type of information from anyone.

Hefner testified that defendant telephoned him and while they were speaking, Larue Sanchez interrupted defendant and told Hefner that she found out it was illegal for her to take the photographs and that she was going to “submit them.” At the end of the State’s evidence, defendant made a motion for acquittal, and the court denied the motion.

Defendant testified and admitted that he took one photograph of Agent Atwell’s car, but he denied photographing any other undercover cars or agents. Defendant stated that a couple of weeks after taking the photograph, he gave some undeveloped rolls of film to the police. Those rolls of film contained photographs of other undercover vehicles. Defendant claimed that he did not take those photographs, but he did not identify who did. He said that it was never his intention to interfere with the pbbsecution of his wife or to endanger, threaten, or intimidate the officers. Rather, his avowed purpose was to force the officers to give up their jobs as undercover agents by revealing their identities.

The trial court denied a renewed motion for a judgment of acquittal, found defendant guilty of obstructing a criminal investigation or prosecution, and acquitted him of the charge of influencing a witness. After a sentencing hearing, the trial court suspended imposition of sentence and placed defendant on probation for twenty-four months.

Defendant was entitled to acquittal only “if there is no substantial evidence to warrant a conviction.” Rule 20, Ariz. R.Crim.P. In State v. Goswick, the Arizona Supreme Court defined substantial evidence as “such proof as a reasonable mind would employ to support the conclusion reached.” 142 Ariz. 582, 586, 691 P.2d 673, 677 (1984). To reverse a trial court’s denial of a motion for judgment of acquittal, the record must reveal a complete lack of probative evidence supporting the verdict. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983), cert. denied, 467 U.S. 1244, 104 S.Ct. 3519, 82 L.Ed.2d 826 (1984); State v. Barnett, 173 Ariz. 282, 285, 842 P.2d 1295, 1298 (App. 1991).

The sufficiency of the evidence to convict must be measured by the elements of the offense for which defendant was convicted. The offense is defined by A.R.S. section 13-2409, which states:

A person who knowingly attempts by means of ... intimidation or force or threats of force to obstruct, delay or prevent the communication of information or testimony relating to a violation of any criminal statute to a police officer, magistrate, prosecutor or grand jury or who knowingly injures another in his person or property on account of the giving by the latter ... any such information or testimony to a peace officer, magistrate, prosecutor or grand jury is guilty of a class 5 felony.

The trial court based defendant’s conviction on the second half of the statute rather than the first half. However, on appeal the State supports the conviction only by arguing that defendant’s conduct violated the first half of the statute. The State does not discuss how the conviction can be sustained on a basis other than that used by the trial court. Nevertheless, we address whether defendant’s conduct was an offense under either part of the statute.

The first half of the statute prohibits one from knowingly attempting, through intimidation, force or threat of force, to interfere with the communication of information or testimony about a crime. The State contends that the mere photographing of Atwell and his car was sufficient to prove commission of its offense. However, the State offers neither authority nor explanation in support of this contention. The State may present circumstantial as well as direct evidence in proving the elements of an offense; however, it may not rely on pure speculation. See [495]*495State v. Mathers, 165 Ariz. 64, 70-71, 796 P.2d 866, 872-73 (1990).

The statute requires that the State prove that defendant intimidated Atwell. The State has not done so. Webster’s Third New International Dictionary, (G. & G. Merriam & Co. 1969), one of the dictionaries most frequently cited in Arizona eases,1 defines “intimidate” as: “to make timid or fearful: frighten; esp:

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State v. Sanchez, 892 P.2d 212, 181 Ariz. 492, 186 Ariz. Adv. Rep. 24, 1995 Ariz. App. LEXIS 71 (Ark. Ct. App. 1995).

892 P.2d 212 (State v. Sanchez) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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