Appeal from the Superior Court in Pima County. No. CR20132226001. The Honorable Deborah Bernini, Judge.
Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By David A. Sullivan, Assistant Attorney General, Tucson, Counsel for Appellee.
Lori J. Lefferts, Pima County Public Defender, By Erin K. Sutherland, Assistant Public Defender, Tucson, Counsel for Appellant.
Presiding Judge Miller authored the opinion of the Court, in which Chief Judge Eckerstrom and Judge Espinosa concurred.
MILLER, Presiding Judge:
[¶1] Following a jury trial, Feliciano Ontiveros-Loya was convicted of possession of a deadly weapon by a prohibited possessor. The trial court sentenced him to an eight-year prison term. On appeal, Ontiveros-Loya argues the court abused its discretion by failing to suppress evidence obtained during a search of his motel room because his consent to search the room was neither knowing nor voluntary. He also contends the search of his cell phone incident to his arrest was unlawful and the violation was not cured by the search warrant police later obtained. Ontiveros-Loya additionally asserts that the court improperly admitted the photographs found on his cell phone and abused its discretion by failing to give a related limiting instruction and by giving a constructive possession instruction. Finally, he maintains his conviction must be overturned because the jury verdict might not have been unanimous and he was convicted of an offense not presented to the grand jury. For the following reasons, we vacate the court's suppression ruling and remand for a determination on the issue of whether Ontiveros-Loya consented to a search of his cell phone.
Factual and Procedural Background
[¶2] We view the facts in the light most favorable to sustaining Ontiveros-Loya's conviction and sentence. See State v. Sarullo, 219 Ariz. 431, ¶ 2, 199 P.3d 686, 688 (App. 2008).
On an evening in May 2013, Ontiveros-Loya approached S.R. outside a motel in Tucson and told her if she did not go back to his motel room with him, he would shoot her. S.R. saw a gun tucked into Ontiveros-Loya's pants. He grabbed her arm, but she pushed away and fled.
[¶3] A detective with the Pima County Sheriff's Department responded to a market near the motel after S.R. called 9-1-1. Detectives later found Ontiveros-Loya in his motel room. He initially identified himself as Oscar Lopez, but at some unspecified later time he provided his true name. The detectives asked for consent to search the room, which they testified Ontiveros-Loya gave. The detectives found a firearm magazine and a cell phone in the room. The cell phone included photographs of a silver handgun.
[¶4] Ontiveros-Loya was charged with one count of possession of a weapon by a prohibited possessor, one count of attempted kidnapping, and one count of aggravated assault. He filed several suppression motions, including a motion to suppress the evidence found on the cell phone, which the trial court denied. The jury found him guilty of the prohibited possessor charge, and the court sentenced him as described above. Ontiveros-Loya ...