NOT FOR PUBLICATION

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES, See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.

MEMORANDUM DECISION

VÁSQUEZ, Judge.

¶1 After a jury trial, Max Lamadrid was convicted of discharging a firearm at a nonresidential structure. The trial court sentenced him to a presumptive term of 7.5 years' imprisonment. On appeal, Lamadrid argues his indictment violated the statute of limitations and his due process protections against unreasonable delay. He further contends there was insufficient evidence to support his conviction. For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining Lamadrid's conviction. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). Early in the morning of November 18, 2001, Lamadrid and a few of his friends were socializing in the parking lot of a fast-food restaurant. An argument arose, and A.G., a close friend of Lamadrid's, was shot. Lamadrid then got out of the truck in which he was seated, pulled out a pistol, and shot in the direction of a green Mustang, driven by T.G., as it was leaving the parking lot. A bullet entered the Mustang's rear window and struck the passenger, T.N., in the head. T.N. died as a result of her injury.

¶3 In March 2003, Lamadrid was indicted for first-degree murder of T.N. and aggravated assault of T.G. However, Tucson police officers did not apprehend Lamadrid until April 2011, when he was arrested in Mexico pursuant to a warrant and extradited to the United States. In June 2011, Lamadrid filed a motion for a redetermination of probable cause, which the trial court granted. The grand jury indicted Lamadrid for first-degree murder. In May 2012, Lamadrid was charged by indictment under a separate cause number with discharging a firearm at a nonresidential structure. The two cases were consolidated for trial.

¶4 In September 2012, a jury convicted Lamadrid of discharging a firearm at a nonresidential structure but could not reach a verdict on first-degree murder. A second jury was also unable to reach a verdict, and a third jury found Lamadrid not guilty of first-degree murder or its lesser-included offenses. The trial court sentenced Lamadrid 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).

Statute of Limitations

¶5 Lamadrid argues the May 2012 indictment for discharging a firearm at a nonresidential structure was filed after the statute of limitations had expired. He did not raise this argument in the trial court and has therefore forfeited review absent fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). In addition to asserting fundamental error, however, Lamadrid also contends that this violation constitutes structural error.

¶6 "Structural error `deprive[s] defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.'" State v. Valverde, 220 Ariz. 582, ¶ 10, 208 P.3d 233, 235 (2009), quoting State v. Ring, 204 Ariz. 534, ¶ 45, 65 P.3d 915, 933 (2003) (alteration in Valverde). If a reviewing court finds structural error, prejudice is presumed. State v. Fimbres, 222 Ariz. 293, ¶ 35, 213 P.3d 1020, 1030 (App. 2009). In contrast, fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). "A defendant is entitled to relief only if he establishes that: (1) an error occurred; (2) the error was fundamental; and (3) the error resulted in prejudice." State v. Kinney, 225 Ariz. 550, ¶ 12, 241 P.3d 914, 919 (App. 2010). In either case, we first must determine whether any error occurred here.

¶7 Section 13-107, A.R.S., governs the time limits under which the state must commence criminal prosecutions.1 A class-three felony, such as discharging a firearm at a nonresidential structure, see A.R.S. § 13-1211(B), must be brought within seven years of the state's discovery of the offense, A.R.S. § 13-107(B)(1).

¶8 Here, Lamadrid committed the offense on November 18, 2001, and the grand jury indicted him for discharging a firearm at a nonresidential structure on May 25, 2012. Based on that timeframe, Lamadrid contends that a violation of § 13-107(B)(1) occurred. The state, however, maintains that, pursuant to § 13-107(D), the time between the commission of the offense in November 2001 and Lamadrid's apprehension in Mexico and extradition to the United States in April 2011 "is excluded from § 13-107's time computation."

¶9 Section 13-107(D) provides: "The period of limitation does not run during any time when the accused is absent from the state or has no reasonably ascertainable place of abode within the state."2 "[O]nce a defendant presents reasonable evidence that a statutory period has expired, the state bears the burden of establishing by a preponderance of the evidence that it has not." Taylor v. Cruikshank, 214 Ariz. 40, ¶ 9, 148 P.3d 84, 86-87 (App. 2006).

¶10 The state met its burden in this case. Lamadrid lived on the south side of Tucson prior to the incident and had family members residing in Tucson as well. But, he had "no reasonably ascertainable place of abode within the state" between November 2001 and April 2011. See A.R.S. § 13-107(D). The Tucson police officers' efforts to contact Lamadrid at his last known address or through friends and relatives were unsuccessful.3 Between 2001 and 2011, warrants and stop-and-arrest notices were issued in Arizona, as well as in the greater United States and Mexico. And, officers used billboards, television, and other media coverage in an attempt to locate Lamadrid.

¶11 Lamadrid nonetheless asserts that the state must demonstrate "when or for how long [he] was absent from the State of Arizona." We disagree. The state must show only that Lamadrid either was "absent from the state or ha[d] no reasonably ascertainable place of abode within the state." A.R.S. § 13-107(D) (emphasis added). Here, the state demonstrated the latter, meeting its burden of proving that the time limitations imposed in § 13-107(B)(1) had not yet expired. See Taylor, 214 Ariz. 40, ¶ 9, 148 P.3d at 86-87. Consequently, the statute of limitations did not begin to run until Lamadrid was apprehended in Mexico and extradited to the United States in April 2011. See A.R.S. § 13-107(D). And, the approximately thirteen months between April 2011 and Lamadrid's May 2012 indictment was within the seven-year limit for initiating a prosecution for discharging a firearm at a nonresidential structure. See A.R.S. § 13-107(B)(1). Because Lamadrid's May 2012 indictment was not time barred, no error occurred—structural,4 fundamental, or otherwise. See Valverde, 220 Ariz. 582, ¶ 10, 208 P.3d at 235; Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.

Pre-Indictment Delay

¶12 Lamadrid further asserts that the May 2012 indictment for discharging a firearm at a nonresidential structure violated his due process protections against unreasonable delay. Again, because he did not raise this argument below, Lamadrid has forfeited review for all but fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.

¶13 The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution protect defendants from the state's unreasonable delay in bringing criminal charges. State v. Lacy, 187 Ariz. 340, 346, 929 P.2d 1288, 1294 (1996). This constitutional safeguard is narrower than the protections provided by statutes of limitations. Id. "To establish that pre-indictment delay has denied a defendant due process, there must be a showing that the prosecution intentionally delayed [the] proceedings to gain a tactical advantage over the defendant or to harass him, and that the defendant has actually been prejudiced by the delay." State v. Broughton, 156 Ariz. 394, 397, 752 P.2d 483, 486 (1988). The defendant bears this heavy burden of proof. Id. at 397-98, 752 P.2d at 486-87; see also Lacy, 187 Ariz. at 346, 929 P.2d at 1294.

¶14 Lamadrid argues the state "charged [him] with [d]ischarging a [f]irearm at a [n]onresidential [s]tructure[] to gain a tactical advantage so that [T.G.] would have victim status and not have to be interviewed by defense counsel." His argument is unavailing. Lamadrid essentially is challenging the nature of the charge in the indictment and not the timeframe involved in filing it. T.G. would still be the victim regardless of when the indictment was filed. "It is clearly within the sound discretion of the prosecutor to determine whether to file charges and which charges to file." State v. Hankins, 141 Ariz. 217, 221, 686 P.2d 740, 744 (1984). But, to merit relief for pre-indictment delay, a defendant must show that the prosecutor intentionally delayed the proceedings and that this delay created an advantage. Lacy, 187 Ariz. at 346, 929 P.2d at 1294; Broughton, 156 Ariz. at 397, 752 P.2d at 486.

¶15 Moreover, as discussed above, the state did not cause the initial delay from November 2001 through April 2011. Indeed, Tucson police officers undertook numerous efforts to apprehend Lamadrid during that time but were unsuccessful. And, the state timely obtained the indictment in May 2012, approximately thirteen months after Lamadrid was apprehended and extradited. See A.R.S. § 13-107(B)(1), (D). Absent proof of an intentional delay for tactical purposes or harassment, Lamadrid's claim fails. See Lacy, 187 Ariz. at 346, 929 P.2d at 1294.

Sufficiency of the Evidence

¶16 Lamadrid also contends there was insufficient evidence to support his conviction. "The sufficiency of the evidence is a question of law we review de novo." State v. Snider, 233 Ariz. 243, ¶ 4, 311 P.3d 656, 658 (App. 2013). "We will not reverse a jury's verdict if it is supported by substantial evidence." State v. Garfield, 208 Ariz. 275, ¶ 6, 92 P.3d 905, 907 (App. 2004). Substantial evidence is such proof that "reasonable persons could accept as adequate and sufficient to support a conclusion of [a] defendant's guilt beyond a reasonable doubt." State v. West, 226 Ariz. 559, ¶ 16, 250 P.3d 1188, 1191 (2011).

¶17 Pursuant to § 13-1211(B), "[a] person who knowingly discharges a firearm at a nonresidential structure is guilty of a class 3 felony." A nonresidential structure is "a structure other than a residential structure," A.R.S. § 13-1211(C)(1), and a structure includes "any . . . vehicle . . . that is being used for lodging, business or transportation," A.R.S. § 13-1211(C)(3). The sole issue presented on appeal is whether Lamadrid discharged his pistol at the Mustang.

¶18 The evidence presented at trial shows that, after hearing the shots fired at A.G., T.G. quickly drove his Mustang away from the fast-food parking lot, heading east. People began pointing at the Mustang, and Lamadrid, who also had observed the shooting of his friend A.G., ran after the car, firing his pistol in an eastward direction. As T.G. was driving away, he heard this second round of gunshots and noticed that his car's rear window had been shattered and that T.N. had been shot. A few hours later, Lamadrid visited a relative and admitted he had fired his pistol at a car with occupants inside. This evidence is sufficient to support Lamadrid's conviction for discharging a firearm at a nonresidential structure. See Snider, 233 Ariz. 243, ¶ 4, 311 P.3d at 658.

¶19 Lamadrid nevertheless contends the evidence was insufficient because "no forensic evidence was presented proving [he] shot at the green Mustang." In particular, he asserts "the bullet taken from T.N.'s head could not be matched to [his] handgun." The state was not required to produce forensic evidence linking Lamadrid to the offense. See State v. Cañez, 202 Ariz. 133, ¶ 42, 42 P.3d 564, 580 (2002) ("Physical evidence is not required to sustain a conviction where the totality of the circumstances demonstrates guilt beyond a reasonable doubt."). Moreover, as the state points out, § 13-1211(B) does not require that a defendant actually hit someone or something when discharging a weapon; rather, it requires only that a defendant "discharge[] a firearm at a nonresidential structure." Therefore, it is immaterial whether the bullet removed from T.N.'s head matched Lamadrid's pistol.

¶20 Lamadrid lastly maintains the evidence was insufficient because the witnesses' testimony was inconsistent and unreliable. The consistency and reliability of witness testimony, however, bear on the issue of credibility, not the sufficiency of the evidence. State v. Lee, 151 Ariz. 428, 429, 728 P.2d 298, 299 (App. 1986); State v. Roberts, 139 Ariz. 117, 121, 677 P.2d 280, 284 (App. 1983). Credibility determinations are reserved for the jury. Lee, 151 Ariz. at 429, 728 P.2d at 299; Roberts, 139 Ariz. at 121, 677 P.2d at 284. This court will not reweigh the evidence on appeal. See State v. Williams, 209 Ariz. 228, ¶ 6, 99 P.3d 43, 46 (App. 2004); State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995).

Disposition

¶21 For the foregoing reasons, we affirm Lamadrid's conviction and sentence.