THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

Not for Publication Rule 111, Rules of the Supreme Court

VÁSQUEZ, Presiding Judge.

¶1 After a jury trial, Ron Salabarria was convicted of first-degree murder, armed robbery, aggravated robbery, and first-degree burglary. The trial court sentenced him to natural life in prison for the murder and to aggravated, concurrent prison terms for the remaining offenses. On appeal, Salabarria argues the court erred by precluding third-party culpability evidence and by considering pecuniary gain as an aggravating circumstance in sentencing him. Finding no error, we affirm.

Factual Background and Procedural History

¶2 We view the facts in the light most favorable to sustaining Salabarria's convictions. See State v. Rivera, 226 Ariz. 325, ¶ 2, 247 P.3d 560, 562 (App. 2011). On July 24, 2009, Pima County Sheriff's deputies found W.B. deceased inside his trailer located at a trailer park in Tucson. The medical examiner identified twenty-six injuries on W.B.'s body, including lacerations, bruises, and tears, and determined the cause of death was blunt-force trauma to the head.

¶3 The day after W.B.'s body was discovered, Jorge Aguayo turned himself in to police. Pursuant to a plea agreement, Aguayo testified that on July 22, 2009, he and Salabarria had been using drugs at a trailer near W.B.'s and devised a plan "to go in and detain [W.B.] and take money and marijuana." Aguayo "switched clothes and shoes" to avoid being recognized, but Salabarria "didn't really change clothes," because W.B. did not know him. Salabarria wore black baggy pants, a shirt with skulls on it, and Converse shoes with flames on the side.

¶4 Salabarria entered W.B.'s trailer by kicking the front door open. Aguayo waited ten or fifteen seconds for Salabarria to restrain W.B., then ran inside the house and retrieved a "couple of bags" of marijuana from the refrigerator and $150 from a cabinet in the kitchen area. Aguayo saw Salabarria standing over W.B., who was sitting on the floor, with blood on his face. As Aguayo was looking for drugs and money in the back bedroom, he heard a "thumping" sound, like "something getting hit." When Aguayo went back into the living room area, he smelled pepper spray and saw Salabarria holding a flashlight. Aguayo and Salabarria then returned to the trailer where they had been earlier and divided the money and marijuana. Later that night Salabarria told a friend that he had hit W.B. "really, really hard." He told another friend "he might have hurt [W.B.] really bad, or killed him."

¶5 Based on Aguayo's confession, a detective obtained a warrant for Salabarria's arrest. When Salabarria was arrested, he was wearing black Converse shoes with flames on the side, and the backpack he carried contained W.B.'s cellular telephone. Acting on a tip, detectives later found the flashlight Salabarria had with him on the night of the murder, which was found to contain W.B.'s DNA.1 Salabarria's right shoe and his shirt also contained W.B.'s DNA.

¶6 Salabarria was indicted for first-degree murder, armed robbery, aggravated robbery, and first-degree burglary. His first trial ended in a mistrial, but he subsequently was convicted as charged and sentenced 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).

Discussion

Third-Party Culpability Evidence

¶7 Before trial, the state moved in limine to preclude Salabarria from introducing third-party culpability evidence that in April 2009, W.B. had been the victim of several crimes committed by others, including robbery, assault, and theft. The state maintained, "[t]he other incidents are not relevant, their probative value is minimal and [the evidence] would confuse the jury." Salabarria responded that the evidence showed W.B. "had repeatedly been the victim of violence and theft at the hands of [other] people" and Salabarria therefore had "a credible argument that someone else killed [W.B]."

¶8 The trial court granted the state's motion in part,2 precluding Salabarria from introducing evidence of an April 18, 2009 incident involving Benjamin F. and two other Hispanic males. W.B. had reported to police that three Hispanic males came to his trailer, tied him up, assaulted him, and stole numerous items and $1,000 in cash. Although W.B. identified one of those present as Benjamin F., no charges were ever filed against him. In precluding the evidence, the court reasoned it was not relevant and did not establish any reasonable doubt as to Salabarria's guilt. On the third day of trial, the court also precluded Salabarria from eliciting testimony about the theft of W.B.'s television set and bicycle, which occurred sometime after the police had discovered W.B.'s body and secured the crime scene on July 24, 2009.

¶9 On appeal, Salabarria argues "[t]he trial court erred in precluding relevant evidence of third party culpability," and therefore denied him an opportunity to present a fair and complete defense. We review the trial court's ruling on the admissibility of third-party culpability evidence for an abuse of discretion. State v. Dann, 205 Ariz. 557, ¶ 30, 74 P.3d 231, 242 (2003). "While a defendant may attempt to show that a third party committed the crime with which [he] is charged, the trial court retains discretion to exclude the evidence if it raises `only a possible ground of suspicion against another.'" Id., quoting State v. Prion, 203 Ariz. 157, ¶ 21, 52 P.3d 189, 193 (2002).

¶10 The admissibility of third-party culpability evidence "is governed by the standards of Rules 401 through 403 of the Arizona Rules of Evidence." State v. Machado, 226 Ariz. 281, ¶ 16, 246 P.3d 632, 635 (2011); see also State v. Gibson, 202 Ariz. 321, ¶ 19, 44 P.3d 1001, 1004 (2002). Pursuant to Rule 401, the trial court must first determine if the evidence is relevant, "focusing . . . on the effect `the evidence has upon the defendant's culpability.'" Dann, 205 Ariz. 557, ¶ 33, 74 P.3d at 242 (emphasis omitted), quoting Gibson, 202 Ariz. 321, ¶ 16, 44 P.3d at 1004. "[T]he evidence need only tend to create a reasonable doubt as to the defendant's guilt." Gibson, 202 Ariz. 321, ¶ 16, 44 P.3d at 1004 (emphasis omitted). If relevant, under Rule 402 the evidence generally is admissible unless, pursuant to Rule 403, the court determines "its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."

¶11 Salabarria argues the trial court erred in ruling the evidence inadmissible, suggesting "proof of the prior robberies was in itself relevant to rebut the State's theory of first degree murder" because it shows that "a third party might have committed the robbery that ultimately led to [W.B.]'s death." Salabarria maintains, "[t]his analysis comports with other Arizona cases involving third party culpability evidence," including Machado and Prion, which he concedes may "involve more specific instances of third party culpability" but argues do "not [set] the bar that must be met in each criminal case."

¶12 In Machado, the defendant alleged his confession to the murder of sixteen-year-old Rebecca R. was fabricated, and he sought to introduce third-party culpability evidence implicating Jonathan H. 226 Ariz. 281, ¶¶ 2-3, 6, 246 P.3d at 633. The trial court admitted evidence that Jonathan had previously threatened to kill Rebecca, but "excluded testimony about other acts that [he] had committed, including the kidnapping of two girls at gunpoint; a road rage incident in which Jonathan pointed a gun at others; and an assault conviction that resulted after Jonathan pointed a gun at a former girlfriend, threatened to kill her, and told her that he had killed before." Id. ¶ 7. The trial court also excluded evidence of an anonymous telephone call received by Rebecca's family revealing details of the murder, even though family members' description of the caller had a tendency to implicate Jonathan and exonerate Machado. Id. ¶¶ 4, 7, 24. This court concluded the trial court erred by precluding "considerable evidence that Jonathan murdered Rebecca," State v. Machado, 224 Ariz. 343, ¶¶ 66-68, 230 P.3d 1158, 1179-80 (App. 2010), and our supreme court affirmed that determination on review because, as the state had conceded, the evidence satisfied Rule 403, Machado, 226 Ariz. 281, ¶ 16, 246 P.3d at 635. Similarly, in Prion, our supreme court overturned the exclusion of third-party culpability evidence, pointing to a strong case against the third party and noting that he "had the opportunity and motive to commit [the] crime," and that he may have been in contact with the victim the night of her murder. 203 Ariz. 157, ¶¶ 23-27, 52 P.3d at 193-94.

¶13 Here, the evidence of third-party culpability is considerably more tenuous than the evidence in Machado and Prion. No one was charged in the April 18 robbery, which occurred more than three months before W.B.'s murder, and Salabarria has not demonstrated any connection between that robbery and W.B.'s murder. Salabarria suggests the April 18 robbery and the post-July 24 theft show "an alternative explanation for how the phone got in his backpack: that someone else took it, or that Salabarria took it from some other person." However, "a defendant may not . . . simply `throw strands of speculation on the wall and see if any of them will stick.'" Machado, 226 Ariz. 281, n.2, 246 P.3d at 635 n.2, quoting Machado, 224 Ariz. 343, n.11, 230 P.3d at 1172 n.11. There is simply no evidence connecting the persons involved in the other incidents to the crimes for which Salabarria was charged. And even if the other incidents bore some general similarities to some of the charges against Salabarria, it was within the trial court's discretion to conclude the evidence "was so tenuously and speculatively connected to the case that it would have caused undue confusion of the issues or misled the jury." Dann, 205 Ariz. 557, ¶ 35, 74 P.3d at 243.3 Thus, the trial court did not abuse its discretion in precluding the third-party culpability evidence.

Aggravating Factors

¶14 Next, Salabarria argues "[t]he trial court erred when it improperly and unconstitutionally considered, as an aggravating factor, the fact that the offense of first degree murder was committed for pecuniary gain in sentencing Salabarria to a term of natural life imprisonment." Because Salabarria did not object to the use of this aggravator during sentencing, he has forfeited the right to seek relief for all but fundamental, prejudicial error.4 See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005). Fundamental error review requires the defendant to establish that: (1) an error occurred; (2) the error was fundamental; and (3) the error resulted in prejudice. Id. ¶¶ 20, 23-24, 26. We find no error here.

¶15 During its oral pronouncement of Salabarria's sentence, the trial court stated:

The court then found the aggravating circumstances outweighed the mitigating circumstances and sentenced Salabarria to aggravated terms of imprisonment, to be served concurrently with his natural life sentence.

¶16 We disagree with Salabarria's suggestion that he received an aggravated sentence on the first-degree murder conviction. Neither the sentencing transcript nor the court's minute entry indicates that the trial court intended to impose an aggravated sentence for that conviction. Moreover, in State v. Fell, our supreme court held that a trial court has discretion to sentence a defendant "within a range—from life to natural life—for non-capital first degree murder," 210 Ariz. 554, ¶¶ 14-15, 115 P.3d 594, 598 (2005), and the court may exercise that discretion without a finding as to aggravating circumstances, id. ¶¶ 12, 17. Thus, Salabarria's sentence to natural life in prison for the murder conviction was not an aggravated sentence. And, we therefore need not address Salabarria's additional arguments that the pecuniary gain aggravator was impermissible because it was an element of the crime of felony murder based on armed or aggravated robbery and that there was insufficient evidence to support the court's finding of that aggravator.

Disposition

¶17 For the reasons stated above, Salabarria's convictions and sentences are affirmed.

VIRGINIA C. KELLY, Judge, PHILIP G. ESPINOSA, Judge, concurring.