NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

TRINO MELGOZA, JR., Appellant.

No. 1 CA-CR 21-0566 

Appeal from the Superior Court in Yavapai County

No. V1300CR202180163

The Honorable Michael R. Bluff, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Tucson

By Amy Thorson

Counsel for Appellee

Law Office of Nicole Countryman, Phoenix

By Nicole Countryman

Counsel for Appellant

FILED 8-11-2022
STATE v. MELGOZA

Decision of the Court

2

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.

B R O W N, Judge:

¶1 Trino Melgoza, Jr. appeals from his conviction and sentence

for aggravated harassment, a class five felony. Because no reversible error

occurred, we affirm.

BACKGROUND

¶2 In November 2017, Melgoza’s former partner and mother of 

his three children (“the victim”), obtained and served an order of protection

(“2017 Order”) against Melgoza, prohibiting him from contacting her. In

December 2017, while the order remained valid, Melgoza violated it by 

communicating with the victim. He pled guilty to aggravated harassment, 

a class six undesignated felony, and was placed on supervised probation

for three years. 

¶3 In November 2020, the victim obtained and served a second

order of protection against Melgoza, which remained in effect for one year 

from the date of service. Several weeks later, the family court modified the 

order of protection, ordering that Melgoza and the victim would have joint 

legal decision-making and evenly divide their time with the children. The 

court ordered that “communications regarding the children will be between 

the parents and they will not use the children to convey information.” The 

order also restricted the parties’ communications to discussions of address 

changes, emergencies, the children’s activities, and relocations. 

¶4 In March 2021, Melgoza parked across the street from the 

victim’s home. Using a megaphone, he spoke with his daughter outside 

and requested that she ask the victim to give him a portion of her stimulus 

money. Melgoza told his daughter that he did not want to cause a scene 

but that he would. The victim recorded the interaction on her phone from 

inside her home. The next day, she sent the audio recording of Melgoza’s 

interaction with their daughter to law enforcement. A grand jury indicted 

Melgoza, alleging he committed aggravated harassment in violation of 

A.R.S. § 13-2921.01, which states as follows:
STATE v. MELGOZA

Decision of the Court

3

A. A person commits aggravated harassment if the person 

commits harassment as provided in § 13-2921 and any of the 

following applies:

1. A court has issued an order of protection or an injunction 

against harassment against the person and in favor of the 

victim of harassment and the order or injunction has been 

served and is still valid.

2. The person has previously been convicted of an offense 

included in § 13-3601.

B. The victim of any previous offense shall be the same as in 

the present offense.

C. A person who violates subsection A, paragraph 1 of this 

section is guilty of a class 6 felony. A person who commits a 

second or subsequent violation of subsection A, paragraph 1 

of this section is guilty of a class 5 felony. A person who 

violates subsection A, paragraph 2 of this section is guilty of 

a class 5 felony.

¶5 At a pretrial conference, the superior court addressed the 

admissibility of Melgoza’s 2018 conviction for aggravated harassment and 

the wording of the preliminary jury instructions describing the elements of 

the crime as alleged in the indictment. Melgoza argued his prior conviction 

should not be admitted at trial, stating it was “super-prejudicial” and 

would “lead the jury to think . . . he’s done it once, he’s going to do it again.” 

The State countered that as charged in the indictment, the prior conviction 

was an element of the crime that must be proven at trial. 

¶6 At the beginning of the three-day trial, the State altered its 

position, asserting that Melgoza’s prior conviction should operate as an 

enhancement—to be proven during a subsequent aggravation phase—

rather than an element of the charged offense. Although unsure, the

superior court allowed the change because both parties agreed with it. 

After further discussion, the State suggested the indictment would need to 

be amended. Melgoza had no objection, and the court amended the 

indictment to reflect a class six felony without a prior conviction. The case 

was then tried to the jury consistent with the amended indictment. 

¶7 At the end of the guilt phase, the jury found Melgoza guilty 

of aggravated harassment, a domestic violence offense. As part of the 

aggravation phase, the jury found Melgoza had been previously convicted 
STATE v. MELGOZA

Decision of the Court

4

of aggravated harassment of the same victim alleged to have been harassed 

in this case. The superior court then sentenced Melgoza for aggravated 

harassment per domestic violence as a class five felony and placed him on 

standard supervised probation for three years. Melgoza timely appealed, 

and we have jurisdiction under A.R.S. § 12-120.21(A)(1). 

DISCUSSION

¶8 Melgoza argues the superior court erred in allowing the State 

to present evidence of his prior aggravated harassment conviction during 

the aggravation phase and in sentencing him to a class five felony based on 

the jury’s finding of a prior conviction. Melgoza contends that because the 

amended indictment tracked the statutory language for a class six felony, 

the court lacked the legal authority to enter a judgment for a class five

felony at sentencing. He further argues that the jury’s verdict during the 

aggravation phase did not adequately satisfy the necessary elements for 

class five aggravated harassment. 

¶9 Because Melgoza raises these issues for the first time on 

appeal, we review for fundamental error only. State v. Escalante, 245 Ariz. 

135, 140, ¶ 12 (2018). In reviewing for fundamental error, Melgoza must 

first establish that trial error exists. Id. at 142, ¶ 21. He then has the burden 

to demonstrate that the error was both fundamental and prejudicial. Id. 

To show prejudice from fundamental error, Melgoza must show that

without the error, a reasonable jury could have reached a different result. 

See id. at 144, ¶ 29.

A. Bifurcation 

¶10 When a prior conviction “must be found following a guilty 

verdict, the trial must proceed initially as though there were no prior 

conviction or sentencing allegations, unless the conviction or sentencing 

allegation is an element of the charged crime.” Ariz. R. Crim. P. 19.1(c)(1)

(emphasis added). Deciding whether a prior conviction constitutes an 

element of a crime is an issue of statutory interpretation that we review de 

novo. State v. Lara, 240 Ariz. 327, 328, ¶ 7 (App. 2016). When the prior 

conviction is not “distinct and independent” from the charged offense, 

evidence of a prior conviction should be included as an element of the 

crime. See State v. Geschwind, 136 Ariz. 360, 362–63 (1983) (citation and 

quotation omitted).

¶11 The State initially charged Melgoza with aggravated 

harassment with a prior conviction, a class five felony under § 13-2921.01. 

During the pretrial hearing on the admissibility of his prior conviction, 
STATE v. MELGOZA

Decision of the Court

5

Melgoza argued it should not be admitted at trial. The superior court found 

that evidence of the prior conviction was necessarily an element of the 

charged offense and would therefore be admissible during trial for the 

purpose of satisfying that element. However, on the first day of trial, the 

prosecutor raised the issue of admissibility of the prior conviction again, 

asserting that the prior conviction functioned as a sentence enhancement to 

be proven in a subsequent aggravation phase, rather than an element of the 

crime. Melgoza agreed with the prosecutor and the trial was conducted in 

accordance with the amended indictment. 

¶12 Unlike the position he took in the superior court, Melgoza 

argues the court erred in bifurcating the trial. Arguably, he invited the error 

and thus cannot obtain appellate relief. See State v. Rushing, 243 Ariz. 212, 

217, ¶ 14 (2017) (“The invited error doctrine prevents a party from injecting 

error into the record and then profiting from it on appeal.”). However, 

because the State has not raised the issue we do not decide whether it 

applies. See State v. Robertson, 249 Ariz. 256, 258, ¶ 9 (2020) (directing 

appellate courts to “heed the principles underlying the waiver doctrine 

intended ‘to prevent the court from deciding cases with no research 

assistance or analytical input from the parties’” (citation omitted)). 

¶13 The State appears to concede that Melgoza’s prior conviction 

was necessarily an element of the charged offense. See Geschwind, 136 Ariz. 

at 362 (defining an element of a crime as one necessary to sustain a 

conviction); see also Lara, 240 Ariz. at 327, 328, ¶¶ 8–9 (finding prior 

shoplifting conviction was an element of the offense, not a sentencing 

enhancement, in part because the prior conviction elevated the offense to a 

higher class of felony). For purposes of this decision, we accept the State’s 

concession and assume the superior court erred in bifurcating the trial

because Melgoza’s prior conviction was an element of the charged offense 

and should have been presented during the guilt phase. 

¶14 Melgoza, however, has failed to establish how he was 

prejudiced by the error. As noted, Melgoza was adamant that there should 

be no reference to his prior conviction, asserting it was not an element of 

the current charge and would be “highly prejudicial” if presented to the 

jury. And when the State asked to bifurcate the trial in order to treat the 

prior conviction as a “sentence enhancement” instead of an underlying 

element of the offense, Melgoza agreed to the change. Consistent with 

Melgoza’s position, the court permitted him to present his defense without 

evidence of the prior conviction, the jury found the prior conviction during 

the aggravation phase, and the jury was properly instructed on the State’s 

burden of proof during both phases of the trial. Thus, Melgoza has not 
STATE v. MELGOZA

Decision of the Court

6

shown that without the bifurcation a reasonable jury could have reached a 

different result. See Escalante, 245 Ariz. at 144, ¶ 29. 

B. Amended Indictment

¶15 Melgoza also contends that because the indictment was 

amended to reflect statutory language consistent with a class six felony, his 

conviction for a class five felony conflicted with the indictment and the 

jury’s verdict. In amending the indictment from a class five felony to a class 

six felony, the court may have fundamentally erred by omitting an element

of the crime the State had to prove to convict Melgoza of aggravated 

harassment, a class five felony. Melgoza, however, was able to present his 

defense without the stigma of the jury hearing evidence of his prior 

conviction. Even without that evidence, the jury returned a guilty verdict. 

Moreover, during the aggravation phase, the jury was instructed on the 

additional elements necessary to prove the prior conviction, as well as the 

State’s burden of proving each of those elements beyond a reasonable 

doubt. Melgoza has not shown he was prejudiced by the amended

indictment. 

C. Aggravation Phase Verdict Form

¶16 The verdict form presented to jurors during the aggravation 

phase asked them to decide whether (1) Melgoza was “previously 

convicted of the offense of Aggravated Harassment, a domestic violence 

offense[,]” and (2) “[t]he victim of the previously convicted offense was the 

same person alleged to have been harassed in this case.” Melgoza 

summarily argues that the verdict was insufficient to prove he had 

“previously violated an order of protection against the same victim,”

asserting such a showing was required to sustain his 2021 conviction as a 

class five felony, instead of a class six. 

¶17 To sustain a conviction of aggravated harassment as a class 

five felony, in addition to proving the defendant committed harassment 

under § 13-2921, the State must also prove that either (1) the current offense 

is a second or subsequent violation of § 13-2921.01(A)(1) (committing the 

offense in violation of a protective order or injunction against harassment)

against the same victim; or (2) the defendant has a prior domestic violence 

conviction under § 13-3601. See A.R.S. § 13-2921.01(A)–(C). To prove a prior 

conviction, the State need only show evidence of the conviction itself, and 

that the current defendant committed the prior offense. State v. Nash, 143 

Ariz. 392, 403 (1985). 
STATE v. MELGOZA

Decision of the Court

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¶18 Here, the State introduced certified copies of the 2017 Order 

for protection, Melgoza’s 2018 plea agreement, his conviction, and the 

judgment of the court. These documents detailed Melgoza’s 2018 

conviction for aggravated harassment based on his violation of the 2017 

Order and identified the same victim. His violation was also classified as a 

domestic violence offense. A.R.S. § 13-3601(A). Because Melgoza’s 2018 

conviction for aggravated harassment was both a violation of a protective 

order and a domestic violence charge under § 13-3601, the evidence 

supports the jury’s conviction as a class five felony; either as a second 

violation of § 13-2921.01(A)(1) or as a violation of § 13-2921.01(A)(2). See 

A.R.S. § 13-2921.01(A)–(C).

¶19 As part of the guilt phase, the jury was instructed on the 

elements necessary to prove aggravated harassment. Those instructions 

required the jury to find that Melgoza both: “1. Anonymously or otherwise 

communicated or caused a communication with [victim], and 2. The 

harassment was done after a court had issued an order of protection against 

the defendant in [victim]’s favor and the order of protection had been 

served and was still valid.” During the aggravation phase, the State

introduced Melgoza’s 2018 violation of an order of protection against the 

victim, after which the jury was asked to determine whether Melgoza had 

committed a prior offense of aggravated harassment in 2018. Thus, to the 

extent Melgoza challenges the sufficiency of the verdict form at the 

aggravation phase, the jury had already received instructions consistent 

with a second violation of an order of protection under § 13-2921.01(A)(1), 

(C). Melgoza has not shown that fundamental error occurred.

CONCLUSION

¶20 We affirm Melgoza’s conviction and sentence.