Lead Opinion
OPINION
¶ 1 After a jury trial, appellant Jose Alvarez was convicted of second-degree burglary and sentenced to five years’ probation to be served concurrently with a probationaiy term in another case. On appeal, Alvarez contends the trial court erred by excluding third-party culpability evidence or by denying his motion for a mistrial to formulate a new defense. He also argues the court erred by ordering restitution because he had been acquitted of the theft charge. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the verdicts. State v. Haight-Gyuro,
Third-Party Culpability
¶3 Alvarez argues the trial court erred by excluding third-party culpability evidence concerning a landscaper, R., with a prior criminal record. He contends the evidence was relevant to showing the police investigation of R. was “faulty.” We review the court’s rulings on the relevance and admissibility of evidence for an abuse of discretion. State v. Rutledge,
¶ 4 We first review the admissibility of third-party culpability evidence to determine whether it is relevant under Rules 401 and 402, Ariz. R. Evid. State v. Gibson, 202
¶ 5 In his opening statement, Alvarez discussed the officers’ investigation into R.’s criminal history, and explained that the victim had noted R.’s presence at the home. The state objected to Alvarez’s mention of R.’s criminal history, but the trial court denied the objection. After opening argument, the state renewed its objection to the admission of evidence regarding R.’s prior conviction, arguing it was not relevant, but instead simply showed R.’s bad character or criminal propensity. Alvarez argued the evidence was relevant to impeach the police officers about their investigation of the case. The court ruled that any evidence about R. was not relevant because there was no evidence to “tie [R.] to the crime” and no evidence that would “tend to create a reasonable doubt as to [Alvarez’s] guilt.” The court further held that even if the evidence were relevant the danger of unfair prejudice and misleading the jury outweighed any probative value. Alvarez filed a motion for reconsideration and a motion for mistrial the next day, both of which the court denied.
¶ 6 Alvarez provides no evidence that R. was involved in the burglary or that faulty police investigation tended to create any reasonable doubt as to his guilt. And the fact the police did not investigate R., based on his scheduled presence in the yard, does not in any way explain how a water bottle with Alvarez’s DNA on it was found in the victim’s home following the burglary. Moreover, even had police discovered R.’s criminal history, it would not have been relevant due to R.’s lack of any connection to the crime. Alvarez did not offer a valid third-party culpability defense and we conclude the evidence is “no more than ‘[v]ague grounds of suspicion.’” State v. Bigger,
¶ 7 Alvarez relies heavily on Machado,
¶ 8 Moreover, we conclude that any error in the exclusion of this evidence would be harmless. State v. Bible,
¶ 9 Our dissenting colleague concludes that Alvarez offered a valid third-party culpability defense. He acknowledges, however that evidence that does nothing more than raise suspicion against a class of people, e.g., State v. Dann,
¶ 10 Finally, the dissent suggests the DNA evidence in this case was not dispositive of guilt. We must disagree. Although the dissent suggests several hypothetical possibilities in which Alvarez’s DNA could have been left on the water bottle, there is no factual support for them in the record, nor do they overcome the logical conclusion drawn from the evidence that Alvarez committed the burglary. Therefore, we are unpersuaded by the dissent’s speculation.
¶ 11 Alvarez further argues the trial court should not have considered the state’s objection to the third-party culpability evidence because the state did not object before trial. Alvarez argues based on Rule 15, Ariz. R.Crim. P., governing disclosures, and Rule 16.1, Ariz. R.Crim. P., governing pretrial motions, that the state was required to object at least twenty days before trial. Alvarez acknowledges he cites no criminal eases on point and instead relies on civil eases and rules of procedure. However, in a criminal ease, “[a] pretrial motion in limine is merely a convenient substitute for evidentiary objections at trial.” State v. West,
¶ 12 Alvarez next argues the trial court erred by denying his motion for a mistrial and motion for a new trial, because it denied his right to present a defense under the Due Process Clauses of the United States and Arizona constitutions. He notes that his entire defense strategy was based on his third-party culpability defense, which was precluded, and he did not have a chance to investigate and prepare any alternate theory of defense. We review for an abuse of discretion a court’s denial of a motion for mistrial. State v. Moody,
¶ 13 Alvarez may have been left with insufficient time to develop another defense strategy. But he has identified no other viable strategy he could have developed in view of his DNA having been found on the water bottle inside the house. Accordingly, the trial court did not abuse its discretion by not
¶ 14 Alvarez relies on State v. Petrak,
Restitution
¶ 15 Alvarez lastly contends the trial court erred by ordering him to pay restitution because it improperly considered the victim’s emotional loss and because any losses arose from theft, of which Alvarez was acquitted, rather than burglary. “[W]e view the evidence bearing on a restitution claim in the light most favorable to sustaining the court’s order.” State v. Lewis,
¶ 16 To preserve an argument for review, the defendant must make sufficient argument to allow the trial court to rule on the issue. State v. Fulminante,
¶ 17 Alvarez argues the imposition of restitution is fundamental error. “[T]he imposition of an illegal sentence constitutes fundamental error.” State v. Lewandowski,
¶ 18 Alvarez also contends the victim’s damages “did not flow directly” from the burglary, but from the subsequent theft. The state must prove by a preponderance of the evidence that except for the criminal conduct the victim would not have incurred the economic loss and that the conduct directly caused the loss. Lewis,
¶ 19 Viewing the evidence “in the light most favorable to upholding the restitution award,” id. ¶ 15, Alvarez broke into the victim’s home for the purpose of committing a theft and took her jewelry, leaving behind his water bottle. A preponderance of the evidence supports that the victim would not have incurred the economic loss of property without the facts underlying Alvarez’s burglary conviction and the facts support the causal nexus between Alvarez’s conduct and the victim’s economic loss. See id. ¶¶ 7, 11.
¶ 20 Alvarez relies on State v. Whitney,
Conclusion
¶ 21 For the foregoing reasons, we affirm Alvarez’s conviction and sentence.
Notes
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. Because we find the evidence was irrelevant, we need not address Alvarez’s argument that the danger of unfair prejudice and misleading the jury did not substantially outweigh its probative value under Rule 403, Ariz. R. Evid. Moreover, lacking relevance, its exclusion did not violate Alvarez’s Due Process right to present a defense under the United States and Arizona constitutions. See State v. Abdi,
. Alvarez cites no authority nor do we find any supporting the proposition that he "should be excused” from objecting to the restitution order "because []he was surprised at the imposition of restitution.” Instead we will follow the Arizona Rules of Evidence and Arizona cases requiring a timely and specific objection to any error. See Ariz. R. Evid. 103(a)(1); Lopez,
Dissenting Opinion
dissenting.
¶ 22 This case requires us to grapple with the distinction between admissible third-party culpability evidence that “ ‘tend[s] to create a reasonable doubt as to the defendant’s guilt,”’ Machado,
¶ 23 Our supreme court recently reaffirmed that the admission of third-party culpability evidence is governed by Rules 401, 402, and 403, Ariz. R. Evid. Machado,
¶24 As the majority correctly notes, we observed in Machado that the defendant is not entitled to “throw strands of speculation on the wall and see if any of them will stick.”
¶ 25 Our courts have found third-party evidence irrelevant when it easts nothing more than suspicion against a class of people, e.g., Dann,
¶ 26 Here, however, Alvarez was prepared to offer more than proof that a landscaper with a prior felony conviction had some association with the victim. Indeed, the victim was prepared to testify that the landscaper had been present in the victim’s backyard on the morning of the burglary, and his normal duties would have involved his continued presence there for a substantial portion of the time the victim was absent. Because the victim was prepared to testify she had seen the landscaper upon her departure for work, a jury reasonably could have inferred the landscaper was likewise aware that she had departed and, because he had worked at her house on six to eight prior occasions, he presumably knew she was not likely to return anytime soon. Moreover, the landscaper was last seen by the victim in a fenced backyard area which gave ready access to the undisputed point of entry — the backdoor of the victim’s house. Finally, the victim would have testified the landscaper never returned to her house in the four years after the burglary.
¶ 27 While such facts alone might be insufficient to convict the landscaper of the crime, they comfortably cleared the threshold of relevance in assessing who committed the burglary in question. Given that the state itself elicited that the victim departed for work in the morning and returned mid-afternoon, and that the state’s own case depended on inferences derived from items appearing and disappearing between her departure and arrival, the factual presentation of the case
¶ 28 Notably, the trial court did not articulate the reasons behind its Rule 401 and 403 rulings here, which is troubling given the low threshold under our rules for characterizing evidence as relevant, the jury’s presumptive primary role in evaluating the weight to be given evidence, and the minimal court time necessary to present the proffered evidence in this case.
¶29 At times, of course, the state’s evidence of a defendant’s guilt may be nearly dispositive, making alternative explanations preposterous and unreasonable. Some DNA evidence will surely fall into that category and cause appropriate skepticism of the relevance and probative value of third-party evidence under the Gibson and Prion standard. Here, for example, had the state found Alvarez’s DNA on the jewelry box or on the dresser where the jewelry was located, it would serve little purpose to alert the jury to the existence of alternate or additional suspects. At other times, however, DNA evidence will permit alternative, non-inculpatory explanations, and the existence of such evidence will not inform a court’s assessment of the relevance of the third-party evidence offered. I conclude the DNA evidence here falls in the latter category.
¶30 To be sure, the DNA found on the water bottle was substantial circumstantial evidence of guilt. It certainly allowed the jury to draw a reasonable inference that Alvarez had perpetrated the burglary or at least conspired with the person responsible. It was sufficient, in short, to allow a conviction that would withstand a challenge under Rule 20, Ariz. R.Crim. P. Cf. McGriff,
¶ 31 As defense counsel argued in summation, the DNA test established only that Alvarez had drunk from the water bottle. It could not and did not establish where or when he had done so. It did not rule out that Alvarez had shared the water bottle with someone else or that another person had handled or used the bottle for some purpose after Alvarez. Indeed, the presence of a female’s DNA on the other bottle demonstrated that at least one other person drank from the bottles and was presumably on hand at some point during their handling.
¶ 32 Did the female, after departing from an innocent Alvarez, then proceed to act as an accomplice to the landscaper in the burglary with the bottles in tow? Did the landscaper keep the bottles from a prior work site to reuse them? Indeed, the presence of the bottles in the trash can and refrigerator suggests a burglar who was casual rather than urgent in his trespass, which would be consistent with a perpetrator who was confident in knowing the occupant would not soon return, much like the landscaper. And while it would seem odd for a random burglar to encumber himself with one or more water bottles while breaking into a home, it would be a rare landscaper who would fail to bring some water with him to a Tucson work site in August. In short, the landscaper evidence would have provided the jury both a potential alternate suspect in the burglary and a rea
¶ 33 Finally, even if one assumes that Alvarez’s DNA on the water bottle demonstrates his presence at the scene of the crime, the presence of others, like the landscaper, who might have invited him inside, would raise new questions about whether the fifteen-year-old Alvarez was aware entry had been forced and others intended to steal items from the house. Certainly, that the water bottles were so casually and conspicuously left behind might support an inference that the owners of the water bottles were not aware they occupied a crime scene.
¶ 34 In sum, Alvarez’s DNA on the water bottle was substantial, but not unassailable, evidence of guilt. In that context, evidence of another plausible perpetrator would have raised a number of other potential inferences consistent with Alvarez’s innocence. It is the function of the jury rather than the trial court, or this court, to weigh the reasonableness and plausibility of those inferences. Finally, as defense counsel strenuously argued before the trial court, the failure of the state to contact or investigate the landscaper strongly supported the defense argument that the state had simply conducted too little investigation, and presented too little evidence, to be entitled to a conclusion that it had eliminated all reasonable exculpatory inferences.
¶35 For those reasons, I would hold the proffered evidence was relevant, it was erroneously excluded by the trial court, and the error was not harmless beyond a reasonable doubt. The exclusion of the proffered third-party evidence here led the jury to assess the probative value of the DNA evidence in a different light than if they had known there was a person with a felony record for a property crime present on the victim’s property on the morning of the burglary — a person who, because of his job as a landscaper, had ready access to the ultimate point of entry and a unique awareness that the victim had departed for work.
¶ 36 I therefore respectfully dissent.
. See David McCord, "But Peiry Mason Made It Look So Easy!”: The Admissibility of Evidence Offered by a Criminal Defendant to Suggest that Someone Else is Guilty, 63 Term. L.Rev. 917, 984 (1996) (observing third-party culpability evidence creates problem without satisfying solution "because the preliminary question! ] the trial judge has to decide ... is the same basic issue the jury would have to decide if the evidence were admitted, i.e., whether the ... evidence gives rise to a reasonable doubt that the defendant committed the crime”).
. The record suggests he was never again specifically scheduled to return. However, we properly view excluded third-party culpability evidence in the light most favorable to its proponent, even when the evidence has been deemed irrelevant by the trial court. See Machado,
. As demonstrated by Alvarez’s offer of proof, the entirety of the excluded evidence could have been presented by merely asking several of the state’s witnesses a few additional questions.