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State v. International Fidelity Insurance Co.

Court of Appeals of Arizona, Second Division

August 28, 2015

STATE OF ARIZONA, Plaintiff/Appellee,
v.
INTERNATIONAL FIDELITY INSURANCE COMPANY AND REGULATOR BAIL BONDS, Real Parties in Interest/Appellants

Appeal from the Superior Court in Pima County. No. CR20121143-002. The Honorable Lori B. Jones, Judge Pro Tempore.

Barbara LaWall, Pima County Attorney, By Christopher L. Straub, Deputy Pima County Attorney, Tucson, Counsel for Plaintiff/Appellee.

Clifford Sherr, Phoenix, Counsel for Real Parties in Interest/Appellants.

Judge Espinosa authored the opinion of the Court, in which Presiding Judge Miller and Chief Judge Eckerstrom concurred.

OPINION

Page 625

ESPINOSA, Judge

[¶1] International Fidelity Insurance Company (Surety), the surety for Regulator Bail Bonds (Regulator), appeals from the trial court's judgment and order forfeiting $95,000 of a $100,000 appearance bond posted on behalf of defendant Augustin Rivera. Surety argues the court abused its discretion in calculating the $5,000 exoneration and by failing to consider the efforts of the recovery agent and indemnitors as well as other relevant factors. It further contends the court abused its discretion by admitting into evidence certain state billing records. For the following reasons, we reverse and remand for further proceedings.

Factual and Procedural Background

[¶2] We examine the evidence in the light most favorable to upholding the trial court's judgment. In re Bond in Amount of $75,000, 225 Ariz. 401, ¶ 2, 238 P.3d 1275, 1277 (App. 2010). In March 2012, Rivera was arrested and charged with multiple felonies, including three counts each of armed robbery, aggravated assault with a firearm, aggravated robbery, and kidnapping. He was released from custody in June after Regulator posted a $100,000 appearance bond.[1]

Page 626

M.V., his mother, and E.G., his former girlfriend and the mother of his children, became indemnitors on the bond.

[¶3] In April 2013, the trial court set a joint trial date of September 10 for Rivera and his co-defendant, Rosario Soto. When Rivera and Soto failed to appear for a pretrial hearing, the court ruled that their trial would proceed in absentia. Neither man appeared at trial and, following the jury's guilty verdicts, the court ordered that a bench warrant issue for Rivera and that forfeiture proceedings commence. Rivera surrendered on October 31 following a standoff with twenty to thirty officers.[2] He was remanded to the Pima County jail on November 6, 2013, and on December 2, the court found that the state had proven Rivera's prior convictions. He was sentenced to a prison term exceeding thirty-one years on January 16, 2014.

[¶4] On August 29, 2014, counsel for the state sent an electronic mail message to Surety's counsel providing evidence of jail and medical costs incurred by Rivera and Soto after their surrender.[3] Surety filed a motion in limine to preclude the evidence based on its untimely disclosure and because " the bills desired to be submitted are not only legally insufficient and are the legal obligation of the State, anyway." The court denied the motion and ordered that " the jail and medical cost records will be considered by the Court."

[¶5] At the bond forfeiture hearing on September 18, 2014, Surety introduced evidence that its fugitive-recovery agent, Marvin Bordeaux, had spent hundreds of hours looking for Soto and Rivera. Bordeaux testified that, with the help of the indemnitors, he had tracked Rivera to Silver City, New Mexico[4] and had provided that information to the United States Marshal Service. A U.S. marshal based in New Mexico testified that, although initially guided by Bordeaux's information, he had ...


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