Court of Appeals of Arizona, Second Division, Division Two
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20112831001 Honorable Christopher Browning, Judge
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Amy M. Thorson Tucson Attorneys for Appellee
Lori J. Lefferts, Pima County Public Defender Tucson By Abigail Jenson Attorneys for Appellant E S P I N O S A, Judge.
PHILIP G. ESPINOSA, Judge
¶1Following a jury trial, Raymond Ballesteros was convicted of two counts of aggravated assault in violation of A.R.S. §§ 13-1204 (A)(3), (B), and 13-3601. The trial court sentenced him to concurrent, presumptive prison terms of 4.5 years and ordered him to pay restitution. On appeal, he challenges the court's admission of testimony regarding statements he made following the assaults and a criminal restitution order (CRO) entered by the court at sentencing. For the reasons set forth below, we affirm the convictions and sentences but vacate the CRO.
Factual and Procedural Background
¶2 "On appeal, we view the facts in the light most favorable to upholding the verdict and resolve all inferences against the defendant." State v. Klokic, 219 Ariz. 241, n.1, 196 P.3d 844, 845 n.1 (App. 2008). On July 30, 2011, police were dispatched to a home Ballesteros shared with his mother, the victim in this case. Upon arrival, the responding officer observed an injury to the victim's wrist and learned from her that Ballesteros had "beaten her up." The victim then was transported to the hospital, where she was treated by a doctor for fractures to her wrist and ribs. Ballesteros was charged with two counts of aggravated assault.
¶3 Prior to trial, Ballesteros filed a motion to preclude the testimony of J.R., the victim's neighbor, whom the state planned to examine about statements Ballesteros made following the assault. The trial court allowed J.R. to testify, and on direct examination she recalled telling Ballesteros in a telephone call after the incident that he had broken his mother's arm. She testified that in response, he "was kind of sarcastic but he said[, 'O]h, I broke her little arm.... I could come back and finish the job.[']" On redirect examination, J.R. described this conversation slightly differently, stating that Ballesteros told her, "Oh, I broke her arm, I should come back and finish the job." (Emphasis added.).
¶4 Following his convictions on both counts, Ballesteros was sentenced as set forth above. This court has jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21, 13-4031, and 13-4033(A)(1).
Admissibility of Inculpatory Statements
¶5Ballesteros claims J.R.'s testimony should have been precluded under Rule 404(b), Ariz. R. Evid., which prohibits evidence of "other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith." According to Ballesteros, his statements to J.R. were used by the state to create an improper implication that "since Raymond stated an intention to harm his mother in the future, he must be a bad person who had also intended to hurt her on July 30, 2011." He thus claims the admission of J.R.'s testimony was improper because it suggested a propensity toward violence against the victim from which intent could be inferred.
¶6Although Ballesteros raised this argument in his motion to preclude J.R.'s testimony, he did not object to J.R.'s testimony at trial. Typically, we review for fundamental error any objection not raised at trial. See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005); State v. Lowery, 230 Ariz. 536, ¶ 7, 287 P.3d 830, 833 (App. 2012). However, our supreme court has held that "where a motion in limine is made and ruled upon, the objection raised in that motion is preserved for appeal, despite the absence of a specific objection at trial." State v. Burton, 144 Ariz. 248, 250, 697 P.2d 331, 333 (1985). "The essential question is whether or not the objectionable matter is brought to the attention of the trial court in a manner sufficient to advise the court that the error was not waived." State v. Briggs, 112 Ariz. 379, 382, 542 P.2d 804, ...