State v. Alvarez2/28/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
AFFIRMED IN PART; REVERSED IN PART AND REMANDED
A jury found appellant Jose Uzarr aga Alvarez guilty of six counts of second-degree burglary and seven counts of sexual abuse, all nondangerous offenses. The charges arose from six separate incidents between December 1996 and March 2001. On each occasion, while selling tamales door-to-door in apar tment complexes, Alvarez entered the apartment of a different female victim whom he then fondled and, in some cases, forced the victim to fondle him. For each incident, he was convicted of burglary, and in four of the incidents, he was also convicted of sexual abuse. The trial court imposed presumptive sentences for the three offenses committed against the first victim and aggravated sentences for the r emaining offenses, all to be served concurrently. The five longest, for burglar y, are twelve-year terms. As the basis for imposing aggravated sentences, the court cited " multiple victims" as the sole aggravating cir cumstance.
On appeal, counsel for Alvarez filed a brief pursuant to Anders v. California, 386 U. S. 738, 87 S. Ct. 1396, 18 L. E d. 2d 493 (1967), suggesting two arguable issues. Alvarez did not file a supplemental brief. We address the second issue first. Although Alvarez did not object below, counsel contends on appeal that the trial court might have er red by failing at the end of the evidence to repeat some of the instructions it had given at the beginning of tr ial " regarding some legal principles such as the difference between direct and circumstantial evidence, objections, credibility, and expert opinion. " Before the jury began deliberating, the court did repeat its instructions defining the offenses, the state' s burden of proof, and reasonable doubt, but counsel now claims the court' s failure to repeat the other pr eliminary instructions constituted fundamental error.
In State v. Johnson, 173 Ar iz. 274, 276, 842 P.2d 1287, 1289 (1992), our supreme court held that a trial court' s failure to reinstr uct the jury at the end of trial on the state' s burden of proof " is an error which can be waived." But, because of an erroneous, bur den-shifting instruction the trial court had also given, the failur e to reinstruct in Johnson was held to be reversible error despite the lack of an objection. Here, however, there were no similarly extenuating circumstances, and the jurors wer e given written copies of the court' s preliminary instructions in the trial notebooks they took into their deliberations. We find that Alvarez waived any arguable error by not objecting to the trial court' s omission of those instructions and that the resulting error, if any, did not approach the level of fundamental error. See State v. Gendron, 168 Ariz. 153, 812 P. 2d 626 (1991) (error fundamental when defendant cannot possibly have had fair trial).
We turn now to the other issue r aised on appeal. The trial court enhanced Alvarez' s sentences pursuant to A.R. S. § 13-702. 02, as multiple offenses not committed on the same occasion but consolidated for trial. The enhancement provisions of that law, enacted in 1993, increase the range of sentence possible for each class of offense. For example, the statute increased the maximum sentence Alvarez faced for his third and subsequent nondangerous felony convictions from seven years to thirteen years for the class three burglary convictions, §§ 13-702(A)(2), 13-702. 02(B)(4), and from two years to three years for the class five sexual abuse convictions. §§ 13-702(A)(4), 13-702.02(B)(4). Section 13-702.02(B) further pr ovides that, subject to certain specified exceptions, a de
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