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State v. Ramos

Court of Appeals of Arizona, Second Division

April 21, 2016

The State of Arizona, Appellee,
v.
Derek Jesus Ramos, Appellant.

Appeal from the Superior Court in Pinal County No. S1100CR201301638 The Honorable Bradley M. Soos, Judge Pro Tempore

Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee

Flores & Clark, LLC, Globe By Daisy Flores Counsel for Appellant

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

OPINION

VÁSQUEZ, Presiding Judge:

¶1 After a jury trial, Derek Ramos was convicted of attempted possession of a dangerous drug by fraud, forgery, and taking the identity of another. The trial court sentenced him to concurrent prison terms of six years for each count. On appeal, Ramos argues the court erred by precluding an alibi witness that he failed to timely disclose. He also argues the court erred by denying his request for a continuance "based on retention of new counsel." For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to sustaining the convictions. State v. Wright, 214 Ariz. 540, ¶ 2, 155 P.3d 1064, 1065 (App. 2007). In September 2013, Ramos visited a pharmacy in Apache Junction and presented a prescription for alprazolam, commonly known as Xanax. The pharmacy technician asked for his identification and made a copy for their records. The technician thought Ramos acted "[o]verly friendly" during the exchange, which she viewed as a "red flag[], " and informed the pharmacist of her concern. The pharmacist believed the prescription resembled another forged prescription recently presented at another pharmacy: its format did not match the doctor's "prescriptions in the past, " the doctor's address was not complete, and the signature "didn't look consistent" with that doctor's usual signature. The pharmacist informed Ramos that she would need to "contact the doctor to verify the prescription, and [because] it was after hours, it would have to be the next day." Ramos "started to get anxious" and asked if he could have the prescription back, but the pharmacist declined, and Ramos left the pharmacy.

¶3 Less than thirty minutes later, Ramos called the pharmacy and, speaking with an Indian accent, claimed to be the prescribing doctor who was calling to verify the prescription. He then returned to the pharmacy, was turned down again, and escorted out. The next morning, the pharmacist confirmed with the doctor listed on the prescription that it had been falsified and contacted the police.

¶4 In October 2013, Ramos was charged with attempted possession of a dangerous drug, forgery, and taking the identity of another person. The trial court set a jury trial date for August 5, 2014. On July 22, 2014, Ramos filed a notice of defenses and witnesses, which, for the first time, identified Ramos's father as a potential witness, and provided the prosecutor with a telephone number to contact his father. The father apparently would be called to testify that he and Ramos had been coaching a softball team at the time of the offense. During a hearing on July 28, the state objected to this witness "based on the timeliness" and later filed a motion in limine to preclude the witness on the same ground, which the court granted.

¶5 Also during the July 28 hearing, Ramos submitted a stipulation to substitute his public defender with private counsel, Rachelle Ferraro, and requested a continuance because Ferraro would not "be ready to proceed to trial on August 5th." The trial court denied the motion to continue, but stated Ferraro could "opt in" as counsel if she could be ready by the trial date.

¶6 At trial, Ferraro participated as Knapp counsel. [1] The jury found Ramos guilty as charged, and the trial court sentenced him as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21 (A)(1), 13-4031, and 13-4033(A)(1).

Untimely Disclosure

¶7 Ramos argues the trial court erred by precluding the testimony of his father because of his late disclosure. We review a court's sanction for an untimely disclosure for an abuse of discretion. State v. Moody, 208 ...


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