Court of Appeals of Arizona, Second Division, Department A
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20103285001 Honorable Christopher C. Browning, Judge.
Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz and Nicholas Klingerman Tucson Attorneys for Appellee.
Lori J. Lefferts, Pima County Public Defender, Michael J. Miller Tucson Attorneys for Appellant.
JOSEPH W. HOWARD, Chief Judge
¶1 After a jury trial, appellant Pedro Ontiveros was convicted of one count of possession of a deadly weapon by a prohibited possessor. He was sentenced to a mitigated term of three years' imprisonment. On appeal, he argues the trial court erred by denying his motion to suppress evidence without holding an evidentiary hearing and by excluding him from the courtroom during an investigation into potential juror misconduct. Because we find no reversible error, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the conviction. See State v. Mangum, 214 Ariz. 165, ¶ 3, 150 P.3d 252, 253 (App. 2007). On September 14, 2010, at around 6:45 p.m., Officer Legarra observed a car driving without its headlights on. Legarra initiated a stop and identified Ontiveros as the driver. He conducted a search of the vehicle, which revealed a loaded gun underneath the driver's seat. Subsequent DNA testing showed Ontiveros's DNA matched DNA found on the gun.
¶3 Ontiveros was charged with and convicted of one count of knowing possession of a deadly weapon by a prohibited possessor. He was sentenced to a mitigated term of three years in prison. Ontiveros appeals. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
Motion to Suppress
¶4 Ontiveros first argues the trial court erred by denying his motion to suppress evidence without conducting an evidentiary hearing. He reasons that because the state bore the burden of proof, it could not have sustained its burden without a hearing. Because he did not raise this argument below, he has forfeited the right to seek relief for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005) (failure to object to alleged error in trial court results in forfeiture of review for all but fundamental error). But because he does not argue on appeal that the alleged error is fundamental, and because we find no error that can be so characterized, the argument is waived. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008) (failure to argue fundamental error on appeal waives argument); State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (court will not ignore fundamental error if it finds it).
¶5 Moreover, as the state argues, Ontiveros filed his motion to suppress after the deadline set by the trial court. Therefore, the court could have refused to consider the motion at all. See Ariz. R. Crim. P. 16.1(b), (c). By imposing the lesser sanction of refusing a hearing, the court acted within its discretion. See State v. Pickett, 121 Ariz. 142, 144-45, 589 P.2d 16, 18-19 (1978) (under Rule 16.1(c), court has discretion to impose lesser sanction rather than simple denial of untimely motion).
Exclusion During Juror Questioning
¶6 Ontiveros next argues the trial court erred by excluding him from the courtroom while it questioned a juror about that juror's contact with a witness in the case, violating his right to be present at trial under the United States and Arizona Constitutions. The state responds that no error occurred because Ontiveros had no constitutional right to be present during the questioning, but even if his exclusion were error, it was harmless. Because he objected below, we review for harmless error. See State v. Valverde, 220 Ariz. 582, ¶ 11, 208 P.3d 233, 236 (2009). We will affirm a conviction under this standard of review if the state can establish beyond a reasonable doubt "that the error did not contribute to ...