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Not for Publication Rule 111, Rules of the Supreme Court

KELLY, Judge.

¶1 Following a jury trial, Angel Lopez-Vidal was convicted of one count of conspiracy to commit armed robbery and first-degree burglary of a residential structure. After trial, he pled guilty to one count of possession of a deadly weapon by a prohibited possessor. The trial court imposed concurrent sentences, the longest of which was 9.25 years. On appeal, Lopez-Vidal argues the court erred in denying his motion to sever, the evidence was insufficient to support the conspiracy conviction, the conspiracy count was duplicitous and the duplicity was not cured by the court's use of an interrogatory, and the court's bailiff had improper communications with the jury. We affirm.

Background

¶2 "We view the facts in the light most favorable to sustaining the convictions." State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). In September 2009, two undercover Tucson police officers met with Jose Parra de Haro, one of Lopez-Vidal's codefendants, to discuss a home invasion to steal cocaine. Several months later, Lopez-Vidal attended and participated in two subsequent meetings between the officers and other members of Parra de Haro's home invasion group. After the second meeting, Lopez-Vidal was arrested. He was convicted and sentenced as described above, and this appeal followed.

Discussion

Motion to Sever

¶3 Lopez-Vidal claims the trial court erred in denying his motion to sever his trial from that of his codefendants. Before trial, he moved to sever on the ground that his codefendants' arguments would be antagonistic to his defense. Following a hearing, the court denied the motion. During a pretrial conference Lopez-Vidal renewed his motion, and the court again denied it.

¶4 On appeal, Lopez-Vidal argues the trial court erred in denying his motion to sever because a codefendant's counsel made a statement during trial that allegedly was antagonistic to his defense.1 The state maintains Lopez-Vidal has waived this argument. We agree.

¶5 Rule 13.4(c), Ariz. R. Crim. P., provides a "motion to sever . . . must be made at least 20 days prior to trial . . . and, if denied, renewed during trial at or before the close of evidence." "Severance is waived if a proper motion is not timely made and renewed." Ariz. R. Crim. P. 13.4(c). Although Lopez-Vidal filed a timely motion to sever, he did not renew his motion during trial,2 and the argument is therefore waived. See Ariz. R. Crim. P. 13.4(c); State v. Flythe, 219 Ariz. 117, ¶ 10, 193 P.3d 811, 814 (App. 2008) (We "strictly appl[y] the waiver provisions of Rule 13.4(c), particularly the explicit requirement that motions for severance be renewed during trial."); State v. Bruni, 129 Ariz. 312, 316, 630 P.2d 1044, 1048 (App. 1981) (waiving severance argument on appeal where motion made and renewed prior to commencement of trial, but not renewed during trial).

Sufficiency of the Evidence

¶6 Lopez-Vidal argues the state presented insufficient evidence to prove the conspiracy charge. We review de novo the sufficiency of the evidence presented at trial and determine only whether substantial evidence supports the jury's verdict. State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011); State v. Roque, 213 Ariz. 193, ¶ 93, 141 P.3d 368, 393 (2006). Substantial evidence is evidence that "reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt." State v. Hughes, 189 Ariz. 62, 73, 938 P.2d 457, 468 (1997). We will reverse a conviction based upon insufficient evidence "`only where there is a complete absence of probative facts to support the conviction.'" State v. Sharma, 216 Ariz. 292, ¶ 7, 165 P.3d 693, 695 (App. 2007), quoting State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). In reviewing the sufficiency of the evidence, we must consider the "statutorily required elements of the offense." State v. Pena, 209 Ariz. 503, ¶ 8, 104 P.3d 873, 875 (App. 2005).

¶7 To convict Lopez-Vidal of conspiracy to commit armed robbery and first-degree burglary of a residential structure, the state was required to show that "with the intent to promote or aid commission of [the] offense [he] agree[d]" with another person that the offense be committed "and one of the parties commit[ted] an overt act in furtherance of the offense."3 A.R.S. § 13-1003(A); see also Evanchyk v. Stewart, 202 Ariz. 476, ¶ 9, 47 P.3d 1114, 1117 (2002).

¶8 Pursuant to A.R.S. § 13-1902(A), a person commits robbery "if in the course of taking any property of another from his person or immediate presence and against his will, such person threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property." Section 13-1904(A), A.R.S., elevates the offense to "armed robbery" when the person or an accomplice is armed with, uses, or threatens to use a deadly weapon. And a person commits first-degree burglary of a residential structure by unlawfully entering into a residential structure, with the intent to commit any theft or felony inside, while in possession of a deadly weapon. A.R.S. §§ 13-1508, 13-1507.

¶9 The state presented evidence that undercover police officers engaged Parra de Haro to invade a home and steal the cocaine stored inside. In December 2009, when Lopez-Vidal was introduced to the officers as a member of the home invasion crew, he confirmed he understood the nature of the job and would take part in the invasion.

¶10 On January 4, Lopez-Vidal drove three others to a meeting with the officers where he and his passengers were identified as the home invasion crew. One officer explained he expected the targeted home would be guarded by men armed with assault rifles, and stated that if the group was not interested they could go their "separate ways and pretend [they] had never met." Lopez-Vidal asked if the officers would be inside the house during the robbery and whether there would be wrought iron on the door. He then asserted the group would be able to handle the men guarding the home. Another member of the group stated they all would have firearms. The officers asked whether the group would be wearing uniforms or masks, and Lopez-Vidal responded they would "get masked up and kick it in." He later added "if we go in there quick enough, they're not going to be ready to pull their heat on us and if they reach, we shoot in and out." Lopez-Vidal also discussed how the cocaine would be divided among the group after the invasion, and, at the conclusion of the meeting, he shook an officer's hand and thanked him for the job.

¶11 On January 7, the officers again met with the group to "finalize any last details before the home invasion." Lopez-Vidal was carrying "zip ties," which an officer testified could be used as restraints. Lopez-Vidal introduced an additional person to the officers and explained he "was the one with the guns"—an "Uzi" and a handgun—and officers discovered a black mask and handgun in a different group member's car.

¶12 Lopez-Vidal's argument on appeal essentially asks us to reweigh the evidence, which we will not do.4 State v. Haas, 138 Ariz. 413, 419, 675 P.2d 673, 679 (1983). Rather, we determine only whether substantial evidence supports the jury's verdicts. Roque, 213 Ariz. 193, ¶ 93, 141 P.3d at 393. We conclude the state presented substantial evidence from which the jury could reasonably find Lopez-Vidal guilty of conspiracy beyond a reasonable doubt. Hughes, 189 Ariz. at 73, 938 P.2d at 468. Accordingly, we find no error.

Duplicity

¶13 Lopez-Vidal claims the trial court erred by using "a special interrogatory in its attempt to cure" a duplicitous indictment. Before trial, a codefendant filed a motion arguing the conspiracy count was duplicitous because it alleged the defendants conspired to commit "armed robbery and/or burglary in the first degree and/or kidnapping." The state suggested an interrogatory be given instructing the jury to indicate each individual crime they found proven unanimously, and the codefendant agreed this was acceptable. The court provided the interrogatory, and additionally instructed the jury that to find the conspiracy charge proven they must unanimously agree on the specific crime the defendant conspired to commit. The jury completed the interrogatory, finding the robbery and burglary charges proven, and the kidnapping charge not proven.

¶14 Lopez-Vidal, however, did not object on the ground of duplicity below, and we therefore review solely for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). 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.'" Id. ¶ 19, quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984).

¶15 A duplicitous indictment charges two or more distinct crimes in the same count, State v. Klokic, 219 Ariz. 241, ¶ 10, 196 P.3d 844, 846 (App. 2008), and is "forbidden because it does not provide `adequate notice of the charge to be defended, . . . present[s] a hazard of a non-unanimous jury verdict, and . . . make[s] a precise pleading of prior jeopardy impossible in the event of a later prosecution.'" State v. Davis, 206 Ariz. 377, ¶ 54, 79 P.3d 64, 76 (2003), quoting State v. Whitney, 159 Ariz. 476, 480, 768 P.2d 638, 642 (1989). However, the trial court may cure a duplicitous indictment by instructing the jurors that they must agree unanimously as to which offense was committed. State v. Paredes-Solano, 223 Ariz. 284, ¶ 17, 222 P.3d 900, 906 (App. 2009); State v. Petrak, 198 Ariz. 260, ¶ 28, 8 P.3d 1174, 1182 (App. 2000). We conclude the trial court's interrogatory was sufficient to clarify the basis of the jury's verdict. See Paredes-Solano, 223 Ariz. 284, ¶ 17, 222 P.3d at 906.

¶16 Lopez-Vidal also asserts it was "conclusively prejudicial for the jury to have first decided guilt on the duplicitous charge" before completing the interrogatory. However, he has not provided, nor have we found, any authority in support of this assertion. See Ariz. R. Crim. P. 31.13(c)(1)(vi). Lopez-Vidal bears the burden of establishing both fundamental error and resulting prejudice. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. Because he has failed to establish either, he is not entitled to relief.5

Jury Communications

¶17 For the first time on appeal, Lopez-Vidal argues the trial court erred by "allow[ing] the jury to communicate orally with the bailiff about the facts of the case." We review for fundamental, prejudicial error. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.

¶18 During trial and outside the presence of the jury, the trial court informed counsel that the jurors had communicated orally to the bailiff that they were confused because an officer and Lopez-Vidal both were referred to as "Lopez." Lopez-Vidal's counsel agreed to refer to them by their first and last names. On another occasion, the court informed counsel that the jurors had told the bailiff they were confused by the pronunciation of a witness's name.

¶19 On appeal, Lopez-Vidal asserts that because the jury orally communicated with the bailiff, it is reasonable to infer the bailiff introduced extrinsic evidence by having a "conversation about the facts of the case." Citing State v. Hall, he contends prejudice therefore must be presumed. See 204 Ariz. 442, ¶ 16, 65 P.3d 90, 95 (2003) (jury's consideration of extrinsic evidence presumptively prejudicial).

¶20 But the record shows only that the jury communicated its concerns to the bailiff, which the bailiff then properly relayed to the trial court and counsel. Lopez-Vidal has not established the bailiff's conduct was improper, nor has he presented anything from which we may infer extrinsic evidence was introduced to the jury. See id. Accordingly we find no error, much less fundamental, prejudicial error. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.

Disposition

¶21 Lopez-Vidal's convictions and sentences are affirmed.

GARYE L. VÁSQUEZ, Presiding Judge, PHILIP G. ESPINOSA, Judge, concurring.