State v. Villagomez, 1 CA-CR 20-0544

Background

In 2016 Villagomez rammed his ex-girlfriend Kourtney’s car multiple times in a parking lot; she escaped and told an officer he was trying to run her off the road and kill her.
At trial, the officer who was at the scene testified to Kourtney’s excited utterances; a second officer who did not hear those statements testified about what the first officer had told her.
The court admitted the second officer’s testimony over Villagomez’s hearsay objection on the ground it showed the effect on the listener.
Villagomez was convicted of aggravated assault and criminal damage. He had been warned pretrial that failing to appear could forfeit his post-conviction right to appeal if sentencing was delayed beyond 90 days; he absented himself, and sentencing occurred over 2.5 years later.
At sentencing Villagomez stipulated to prior convictions after a Rule 17 colloquy; the court found him a category three repetitive offender and imposed an enhanced sentence. The State moved to dismiss the appeal for lack of jurisdiction based on the sentencing delay.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellate jurisdiction over convictions was lost under A.R.S. § 13-4033(C) because defendant’s absence delayed sentencing >90 days	State: conviction appeal barred because defendant voluntarily prevented timely sentencing and did not prove involuntariness at sentencing	Villagomez: preserved right to appeal; court should reach merits; Raffaele requires waiver be raised at sentencing	Court exercised jurisdiction over the convictions and proceeded to the merits; declined to revisit Raffaele and related precedents here
Whether admitting testimony of officer who relayed (double) hearsay was an abuse of discretion	State: even if hearsay, the testimony was cumulative of properly admitted excited-utterance testimony and harmless	Villagomez: second officer’s testimony was inadmissible hearsay because she did not hear the victim and her testimony improperly repeated another officer’s statements	Court: admission was error in theory (listener-effect basis improper because listener’s conduct wasn’t at issue) but error was harmless beyond a reasonable doubt because the same statements were properly admitted as excited utterances
Whether Rule 17 colloquy at sentencing was inadequate such that fundamental error requires resentencing	Villagomez: court failed to follow Rule 17 requirements and thus the stipulation to priors was invalid	State: colloquy was sufficient or any deficiency was not prejudicial	Court: reviewed for fundamental error; defendant failed to show prejudice (he did not assert he would have refused to admit priors), so no resentencing required

Key Cases Cited

State v. Bolding, 227 Ariz. 82 (App. 2011) (appeal-waiver under § 13-4033 requires waiver be knowing, voluntary, and intelligent)
State v. Raffaele, 249 Ariz. 474 (App. 2020) (court should determine voluntariness of delay at sentencing for § 13-4033 purposes)
State v. Hernandez, 170 Ariz. 301 (App. 1991) (outlines non-hearsay use to show effect on listener)
State v. Rivers, 190 Ariz. 56 (App. 1997) (listener-effect testimony allowed when listener’s conduct is directly at issue)
State v. Forde, 233 Ariz. 543 (2014) (abuse-of-discretion standard for hearsay rulings)
State v. Bocharski, 218 Ariz. 476 (2008) (erroneously admitted evidence in criminal case is subject to harmless-error beyond-a-reasonable-doubt test)
State v. Bass, 198 Ariz. 571 (2000) (cumulative evidence can cure error when tainted evidence merely repeats otherwise admissible proof)
State v. Morales, 215 Ariz. 59 (2007) (fundamental-error standard requires showing both error and prejudice)
State v. Young, 230 Ariz. 265 (App. 2012) (defendant must at least assert on appeal that he would not have admitted priors to show prejudice from deficient colloquy)