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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ISAIAS CHAVARRIA, Appellant.

No. 1 CA-CR 16-0123

Appeal from the Superior Court in Maricopa County

No. CR2010-005533-001

The Honorable Teresa A. Sanders, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By David Simpson

Counsel for Appellee

The Nolan Law Firm PLLC, Mesa

By Cari McConeghy Nolan, Todd E. Nolan, Vicki A. R. Lopez

Counsel for Appellant

FILED 5-22-2018
STATE v. CHAVARRIA

Decision of the Court

2

MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which 

Presiding Judge James P. Beene and Judge Kent E. Cattani joined.

H O W E, Judge:

¶1 Isaias Chavarria appeals his convictions and sentences for 

kidnapping and theft by extortion, both class 2 dangerous felonies, and 

aggravated assault, a class 3 dangerous felony. For the following reasons, 

we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Chavarria was the ringleader in the kidnapping of an auto 

body shop employee after she was lured to a trailer park in west Phoenix 

to inspect some cars. The kidnappers tied the victim up and placed a hood 

over her face. During the several days the kidnappers held the victim 

captive, Chavarria and his accomplices repeatedly beat her legs with a wire, 

slapped her, threatened her with a gun, pistol-whipped her, and burned her 

hands with a cigarette lighter. Chavarria demanded $300,000 in ransom and 

threatened to kill the victim and her family if the ransom was not paid. 

¶3 The victim’s relatives contacted the police and officers 

monitored the ransom calls. At the officers’ direction, the relatives arranged 

to drop off the ransom, which contained marked bills and a tracking chip.

Before J.L., a co-conspirator, picked up the ransom, he received a call from 

another co-conspirator who stated that they had already let the victim go.

J.L. then saw the victim’s relative drop off a bag and when he returned to 

his car with the bag, he looked inside and noticed the tracking chip. J.L. 

threw the tracking chip out the window and tried speeding away from the 

police officers, but the officers caught and arrested him. During that time, 

the victim called the police to report that she had been released.

¶4 After a seven-day trial, the jury convicted Chavarria of the 

charged offenses and found that each crime was a dangerous offense based 

on the use of a deadly weapon or dangerous instrument. The jury found 

seven aggravating circumstances with respect to each conviction and the 

court found a prior felony conviction to be an aggravating circumstance. 

Chavarria did not appear for delivery of the verdict. Five years later, U.S. 
STATE v. CHAVARRIA

Decision of the Court

3

Marshals found him in Mexico and extradited him on a bench warrant. 

Chavarria reported that he had been “on the run” living with a friend in 

Juarez, Mexico, for the five years. The court sentenced Chavarria to 

concurrent aggravated terms of 18 years’ imprisonment on the kidnapping 

and theft by extortion convictions, and a consecutive aggravated term of 10 

years’ imprisonment on the aggravated assault conviction. Chavarria filed 

a timely delayed notice of appeal.

DISCUSSION

1. Denial of Motion to Preclude Victim’s Testimony

¶5 Chavarria argues that the court violated the evidentiary rules 

and his confrontation rights by denying his pretrial motion to preclude the 

victim from testifying about information she had purportedly learned from 

an anonymous source and about which she ostensibly had no personal 

knowledge. Although we ordinarily review evidentiary rulings for an 

abuse of discretion, State v. Escalante-Orozco, 241 Ariz. 254, 274 ¶ 51 (2017),

we review evidentiary rulings that implicate a defendant’s constitutional 

rights de novo, State v. Goudeau, 239 Ariz. 421, 440–41 ¶ 35 (2016).

¶6 Chavarria argued in his pretrial motion that the victim 

provided information to police about Chavarria’s involvement in the 

kidnapping and provided identifying details—including his address—

resulting in his arrest only after an anonymous source contacted the victim 

and fed her information. He argued that because the victim had refused a 

defense interview, “it is impossible to determine what new information is 

true or is based upon hearsay statements from the anonymous source.” He 

accordingly asked the court to limit the victim’s testimony “to information 

she knew and disclosed prior to her contact with the anonymous source.”

¶7 The prosecutor denied that the victim’s knowledge was based 

on her contact with the anonymous source, and indicated that her earlier 

failure to provide information about Chavarria was because she was 

“extremely frightened” of him. He also argued that defense counsel would 

have ample opportunity to question the victim on the source of her 

testimony and to object to any hearsay statements, and that her testimony 

should not be precluded based on defense counsel’s “assumptions.” The 

court denied the motion to preclude, reasoning that “that’s . . . an issue that 

will end up being addressed at the trial on a question by question basis,” 

and noted that defense counsel would “have every opportunity at trial to 

either object to the form of the question, or to cross-examine the victim with 
STATE v. CHAVARRIA

Decision of the Court

4

regards to how she came about [the information] and it does go to the 

weight, but not the admissibility.”

¶8 Hearsay is a statement other than one made by a declarant 

testifying at trial offered to prove the truth of the matter asserted and is 

generally inadmissible at trial. Ariz. R. Evid. 801, 802. The Confrontation 

Clause prohibits the admission of testimonial hearsay at a criminal trial 

unless the declarant is available at trial for cross-examination or the 

declarant is unavailable and defendant had a prior opportunity to crossexamine the declarant. Crawford v. Washington, 541 U.S. 36, 59, 68 (2004). 

¶9 The court did not abuse its discretion or err by admitting the 

victim’s testimony. Chavarria’s pretrial argument that the victim would 

simply relay information she obtained from the anonymous source was 

based on sheer speculation, an insufficient basis for preclusion. Nor did the 

victim’s testimony at trial bear out this speculation. The victim testified at 

trial that she based her testimony on her own personal knowledge, not what 

the anonymous source told her. She denied accepting at face value what the 

anonymous source relayed to her and specifically denied testifying about 

an identifying tattoo on Chavarria’s forearm based on what the anonymous 

source told her. She testified that she had pointed Chavarria out in the 

photo line-up based on what she had seen and not what anyone else had 

told her. She also testified that she identified Chavarria as the ringleader 

and her chief assailant from personal knowledge. The victim’s testimony 

accordingly did not impermissibly convey hearsay statements to the jury,

nor did it violate Chavarria’s confrontation rights. 

¶10 The testimony at trial revealed that the anonymous source’s 

information may have merely assisted the victim in recalling the tattoo on 

Chavarria’s forearm and in providing police investigative leads. The victim 

testified on cross-examination that she had relayed some information to 

police that she had obtained from the anonymous source, but specifically

acknowledged only relaying information that she believed a person named 

“Alejandra” owned the car Chavarria was driving during the kidnapping, 

and that someone nicknamed “Compa Vic” might have been involved.

1 A 

 

1 The victim acknowledged that she had told the police that the 

picture of Chavarria in the line-up might be “Compa Vic,” a nickname she 

had heard from Alejandra. She had also told the officer conducting the lineup, however, that the photo of Chavarria looked familiar and he might have 

been involved and she testified that this identification was from her 

personal knowledge, and not anything anyone else had told her. Although 
STATE v. CHAVARRIA

Decision of the Court

5

detective who interviewed Alejandra before trial testified that he had 

learned for the first time at trial that she could have been the victim’s 

anonymous source. He testified that he believed Alejandra owned the car 

at issue, but had been unable to verify that she was the owner, and found 

that Alejandra had no information that would have assisted in the 

investigation. The detective testified, however, that the victim told him that 

she remembered Chavarria had the identifying tattoo on his forearm during 

a conversation with the anonymous source. He also testified that the 

address the anonymous source gave the victim for Chavarria eventually led 

police to get in touch with him. Chavarria cannot claim that any of this 

testimony—none of which was offered for the truth of the matter asserted 

and most of which defense counsel elicited for impeachment purposes—

was impermissible under the evidentiary rules or the Confrontation Clause.

¶11 Moreover, the court invited defense counsel to object at trial 

to the form of any questions and to cross-examine the victim on the bases 

for her testimony. And Chavarria’s counsel argued at length in closing that 

the victim’s testimony was not to be believed because she was simply 

relaying information she had obtained from police reports and the 

anonymous source. On this record, the court neither abused its discretion 

nor erred by refusing to preclude the victim’s testimony as to information 

she disclosed after contact with the anonymous source.

2. Denial of Motion to Preclude In-Court Identification

¶12 Chavarria argues that the court violated his due process 

rights by allowing the victim to identify him in court two years after the 

kidnapping, when she had been unable to positively identify him in a 

photographic line-up before trial. He argues that the in-court identification 

was tainted by the photographic line-up and was not reliable. Because 

Chavarria failed to raise a due process issue below with respect to the 

identification of defendant before or at trial, we review this claim for 

fundamental error only. See State v. Henderson, 210 Ariz. 561, 568 ¶ 22 (2005);

see also State v. Bolton, 182 Ariz. 290, 304 (1995) (holding that an objection on 

one ground does not preserve an issue on another ground). On 

fundamental error review, defendant has the burden of proving that the 

court erred, that the error was fundamental, and that he was prejudiced 

thereby. Henderson, 210 Ariz. at 567 ¶ 20.

 

the victim testified that Chavarria might be “Compa Vic,” J.L. testified that 

Chavarria was the person he knew as “Queso.”
STATE v. CHAVARRIA

Decision of the Court

6

¶13 Before trial, Chavarria moved to preclude the victim’s incourt identification of him and any testimony that she had pointed to 

Chavarria in the pretrial photographic line-up and said he looked familiar, 

on the ground that any probative value of the tentative pretrial 

identification was substantially outweighed by the risk of unfair prejudice.

The court denied the motion to preclude, reasoning, “[t]hat’s something 

that can be addressed at trial.” The victim positively identified Chavarria at 

trial without objection and testified that identifying him in person was 

easier than in the photographic line-up.

¶14 Chavarria has failed to meet his burden of proving 

fundament error. The Due Process Clause of the Fourteenth Amendment 

“requires us to ensure that any pretrial identification procedures are 

conducted in a manner that is fundamentally fair and secures the suspect’s 

right to a fair trial.” State v. Lehr, 201 Ariz. 509, 520 ¶ 46 (2002). A defendant 

who challenges an unduly suggestive pre-trial identification procedure is 

entitled to a hearing, at which the State is required to prove by clear and 

convincing evidence that the pre-trial identification procedure was not 

unduly suggestive. State v. Dessureault, 104 Ariz. 380, 384 (1969). “But the 

due process clause does not preclude every identification that is arguably 

unreliable; it precludes identification testimony procured by the state

through unduly suggestive pretrial procedures.” Goudeau, 239 Ariz. at 455 

¶ 130 (2016). “The due process check for reliability . . . comes into play only 

after the defendant establishes improper police conduct.” Perry v. New 

Hampshire, 565 U.S. 228, 241 (2012).

¶15 Chavarria argues on appeal only that the witness’s pretrial 

identification was “problematic” because “it had been almost two years 

since the incident,” “the victim’s new determination to identify Mr. 

Chavarria was solely based on information provided to her from an 

anonymous source that the State had not disclosed to the defense,” and she 

did not positively identify him in the photographic line-up. Chavarria has 

not, however, identified any improper police conduct or unduly suggestive 

procedures employed by police during the pretrial photographic line-up.

Nor did the identification of Chavarria at trial involve any police conduct.

Accordingly, his due process claim fails. See id. at 248. 

3. Denial of Mistrial

¶16 Chavarria argues that the court abused its discretion by 

denying his motion for mistrial and dismissal based on the prosecutor’s 

misconduct in asking the victim if anybody had had sexual contact with her 

and then by incorrectly commenting, “[a]ctually, it’s part of the indictment, 
STATE v. CHAVARRIA

Decision of the Court

7

Judge.” We will not disturb a trial court’s denial of a mistrial for 

prosecutorial misconduct in the absence of a clear abuse of discretion. State 

v. Newell, 212 Ariz. 389, 402 ¶ 61 (2006).

¶17 After the prosecutor’s comment, an unrecorded bench 

conference followed and the prosecutor subsequently moved on to a 

different line of questioning. The prosecutor later informed the court that 

he had been mistaken, that the sexual contact had been alleged in the first 

indictment, but not in the current indictment, which a different prosecutor

had prepared. The court also noted that when the parties looked at the 

indictment at the bench, “[i]t was apparent to me that [the prosecutor] did 

not know that it was not in there[.]”

¶18 The next day, Chavarria moved for mistrial or dismissal.

Defense counsel acknowledged that he did not believe the error was 

intentional. The court denied the mistrial, but offered to give a curative 

instruction and asked counsel to “take a look at these.” Defense counsel 

responded, “I’m fine with the curative instruction.”

¶19 The court subsequently instructed the jury that when the 

prosecutor asked the victim “if there was any sexual contact while she was

being held by captors[,]” he “was mistaken when he asked that question.”

The court noted that it had sustained an objection to the question, and 

reminded the jury of the preliminary instructions that “a question by itself 

is not evidence, and if the Court sustains an objection to a question, you are 

to disregard the question, and you are to determine the facts of this case 

only from the evidence produced in court.” The court concluded, “[s]ince 

the mistaken question is not evidence, you must disregard the question in 

its entirety and not consider it for any purpose[.]”

¶20 The court did not abuse its discretion by giving a curative 

instruction rather than declaring a mistrial. A declaration of mistrial is “the 

most dramatic remedy for trial error and should be granted only when it 

appears that justice will be thwarted unless the jury is discharged and a new 

trial granted.” State v. Dann, 205 Ariz. 557, 570 ¶ 43 (2003). In determining 

whether to grant a mistrial, a judge should consider (1) whether the 

testimony called the jurors’ attention to matters that they would not be 

justified in considering in reaching a verdict and (2) the probability under 

the circumstances that the remarks influenced the jurors. State v. Bailey, 160 

Ariz. 277, 279 (1989). “To prevail on a claim of prosecutorial misconduct, a 

defendant must demonstrate that the prosecutor’s misconduct so infected 

the trial with unfairness as to make the resulting conviction a denial of due 

process.” State v. Morris, 215 Ariz. 324, 335 ¶ 46 (2007). 
STATE v. CHAVARRIA

Decision of the Court

8

¶21 Here, the trial judge determined that a mistrial was not 

warranted and that a curative instruction would eliminate any prejudice. 

The prosecutor’s question about sexual contact and his comment, 

“[a]ctually, it’s part of the indictment, Judge[,]” was brief, isolated, and 

never repeated. Although defense counsel suggested that the comment 

about the indictment was loud enough to be heard by the jury, whether the 

jury would have taken the comment at face value if heard is unclear because

the indictment read to the jury the previous day did not contain any such 

allegation. Moreover, considering Chavarria’s defense as outlined in his 

opening statement—that no doubt the victim had suffered horribly, but he 

was not involved—any unfair prejudice was minimal if it existed at all. 

Under these circumstances, the court did not abuse its discretion by finding 

that the extraordinary remedy of a mistrial was not necessary and that an 

instruction ordering the jury to ignore the improper question would suffice. 

¶22 Furthermore, because Chavarria expressly agreed that he was 

“fine” with the curative instruction the court prepared, the failure of the 

court to sua sponte add language to address the prosecutor’s improper 

comment was invited error. See State v. Parker, 231 Ariz. 391, 405 ¶ 61 (2013)

(“Parker’s stipulation to admit the videotaped interviews precludes him 

from asserting on appeal that their admission was error.”); see also State v. 

Pandeli, 215 Ariz. 514, 528 ¶ 50 (2007) (defense counsel invited error in 

admission of evidence by explicitly stating that he did not object and by 

agreeing it was other act evidence). In any case, the court also instructed the 

jury that it must determine the facts only from the evidence produced in 

court, and what the lawyers say is not evidence. The jury is presumed to 

have followed this instruction as well as the specially prepared curative 

instruction. Newell, 212 Ariz. at 403 ¶ 68. Under these circumstances, the 

court did not abuse its discretion by concluding that a mistrial was not 

warranted. 

¶23 Although defense counsel briefly mentioned to the trial court 

that he was requesting a dismissal, he made no argument before the trial 

court in support of this even more drastic remedy and has made none on 

appeal. He accordingly has waived this claim of error. See State v. Moody, 

208 Ariz. 424, 452 n.9 ¶ 101 (2004) (failure to present significant arguments 

supported by authority in an opening brief waives the issue).

4. Denial of Motion to Preclude for Discovery Violation 

¶24 Chavarria argues the court abused its discretion by denying 

his motion to preclude 179 pages of discovery, along with multiple DVDs, 

CDs, and audiotapes the State produced 7 days before the original trial date 
STATE v. CHAVARRIA

Decision of the Court

9

and 20 days before the final trial date. We review a trial court’s choice and 

imposition of sanctions for a violation of the discovery rules for an abuse of 

discretion, and “we will find an abuse of discretion only when no 

reasonable judge would have reached the same result under the 

circumstances.” State v. Naranjo, 234 Ariz. 233, 242 ¶ 29 (2014). “We may 

affirm on any basis supported by the record.” State v. Robinson, 153 Ariz. 

191, 199 (1987).

¶25 At oral argument on the motion to preclude, defense counsel 

noted that he was not alleging that the State had failed to produce the 

discovery deliberately or for a tactical advantage. The prosecutor avowed 

that the failure to disclose the material earlier had been “absolutely 

inadvertent.” Defense counsel further acknowledged that “[a]t this point I 

can’t claim any personal prejudice or prejudice to the case. I have the 

information, and the two weeks is—I wouldn’t say ideal, but I’ll do what I 

have to do with that time.” The court denied the motion in view of defense 

counsel’s acknowledgment that neither he nor his client suffered any 

prejudice from the late disclosure, although the court found “it would be 

preferable to have this earlier.”

¶26 The court did not abuse its discretion by denying Chavarria’s 

motion to preclude the late-disclosed evidence. As an initial matter, defense 

counsel failed to file “a separate statement . . . certifying that, after personal 

consultation and good faith efforts to do so, counsel have been unable to 

satisfactorily resolve the matter,” as required for consideration of a motion 

for sanctions. See Ariz. R. Crim. P. 15.7(b) (2008). The court’s denial of the 

motion to preclude was permissible on this ground alone. See Robinson, 153 

Ariz. at 199. 

¶27 The court also acted well within its discretion by denying the 

motion on its merits. “Preclusion is rarely an appropriate sanction for a 

discovery violation, and should be invoked only when less stringent 

sanctions would not achieve the ends of justice.” Naranjo, 234 Ariz. at 242

¶ 30 (internal citation omitted). Before precluding evidence, the court 

should consider how vital the evidence is, whether the evidence will 

surprise or prejudice the opposing party, and whether bad faith motivated 

the discovery violation. See id.

¶28 Here, the parties agreed that the disclosure violation was 

inadvertent and that the late disclosure did not prejudice the defense. 

Chavarria’s speculation for the first time on appeal that “perhaps” the case 

might have proceeded differently had the material been disclosed earlier is 

insufficient to show prejudice. Under these circumstances, the court acted 
STATE v. CHAVARRIA

Decision of the Court

10

well within its discretion by denying the motion for preclusion and not 

imposing any sanction. See State v. Martinez-Villareal, 145 Ariz. 441, 448 

(1985) (“In order for a reviewing court to find an abuse of discretion, 

appellant must demonstrate that he suffered prejudice by nondisclosure.”); 

see also State v. Lee, 185 Ariz. 549, 556 (1996) (“The trial court’s failure to 

impose a particular sanction, or any sanction at all, was not an abuse of 

discretion[]” because defendant “suffered no prejudice here.”). 

5. Denial of Motion for Acquittal

¶29 Chavarria argues that the court erred by denying his motion 

for judgment of acquittal on the dangerousness allegation with respect to 

the charge of theft by extortion because the evidence showed only the use 

of telephones in this offense and not the use of deadly weapons or 

dangerous instruments. We review de novo the sufficiency of the evidence 

to support a conviction. State v. West, 226 Ariz. 559, 562 ¶ 15 (2011). “[T]he 

relevant question is whether, after viewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.” Id. at ¶ 16. 

“[W]hen reasonable minds may differ on inferences drawn from the facts, 

the case must be submitted to the jury, and the trial judge has no discretion 

to enter a judgment of acquittal.” Id. at 563 ¶ 18.

¶30 Chavarria was convicted of theft by extortion for “knowingly 

obtaining or seeking to obtain property or services by means of a threat 

to . . . [c]ause physical injury to anyone by means of a deadly weapon or 

dangerous instrument.” See A.R.S. § 13–1804(A)(1) (2008). A “dangerous 

offense” is in pertinent part “an offense involving the discharge, use or 

threatening exhibition of a deadly weapon or dangerous instrument[.]” 

A.R.S. § 13–105(13).

¶31 The evidence was more than sufficient to support a finding 

that the theft by extortion involved the use of a deadly weapon or 

dangerous instrument. The victim testified that she was kidnapped at 

gunpoint, beaten with a wire, pistol-whipped, and threatened with a gun 

throughout her three days in captivity. She also testified that the 

kidnappers told her that they would kill her if her family did not get the 

money and that they would kill her children in front of her. And according 

to J.L.’s testimony, Chavarria also demanded that the victim herself pay the 

ransom. He testified that Chavarria “told her you better give us the money 

we’re asking for . . . you need to tell your family to pay up or else this is 

going to happen to you,” and then Chavarria made her touch the gun. On 

this record, more than sufficient evidence existed to support the jury’s 
STATE v. CHAVARRIA

Decision of the Court

11

finding that a deadly weapon—the gun—was used to extort the ransom 

from the victim and to persuade the victim to convince her family to pay 

the ransom. As such, the evidence was more than sufficient to support the 

jury’s finding that this was a “dangerous offense” for sentencing purposes.

See State v. Mendoza-Tapia, 229 Ariz. 224, 229 ¶¶ 14–16 (App. 2012)

(“Whether the family knew about the threat to use a gun was 

inconsequential.”). 

6. Failure to Voir Dire Jurors

¶32 Chavarria argues that the court erred by failing to voir dire

jurors to determine if any had been improperly influenced by the demeanor 

or mumblings of another juror who was excused on that basis or by the 

absence of Chavarria from the verdict’s delivery. Chavarria failed to ask for 

voir dire of the jurors or the panel in either instance, and we therefore review 

his claim of error for fundamental error only. See State v. Nelson, 229 Ariz. 

180, 184 ¶ 9 (2012).

¶33 On the second day of trial, the parties stipulated to remove a 

juror who was “mumbling under his breath.” Defense counsel stated that 

he had no objection to the juror being excused and did not ask for voir dire

of the other jurors to ascertain if they had been tainted by his conduct. On 

the trial’s seventh day, Chavarria did not appear for the verdict’s delivery.

Before the aggravation phase—and without objection—the court instructed 

the jury that Chavarria had a right to choose not to be present and “[y]ou 

cannot consider his choice of not being present here today for this hearing 

in any way in your determination of whether aggravating circumstances 

exist.” After the jury delivered its verdict on aggravating circumstances, 

and had been excused, the court noted, “[f]or the record, one of the jurors—

one of the excused jurors has asked on behalf of the entire jury whether or 

not we have information as to whether—as to where Mr. Chavarria is.”

¶34 The court noted that “it sounds to me like they’re concerned 

for their own safety,” and proposed telling the jury panel that the parties 

did not know his location, but that a warrant had been issued for his arrest. 

The court also proposed offering security to escort individual jurors to their 

cars if they wanted. Defense counsel offered to “say something to them to 

give them peace of mind[,]” and the court agreed “[t]hat would be helpful.”

Defense counsel, however, did not ask for any voir dire to ascertain if the 

jurors had failed to follow the court’s instruction not to consider 

Chavarria’s absence in determining aggravating circumstances.
STATE v. CHAVARRIA

Decision of the Court

12

¶35 Chavarria has not met his burden to show that fundamental 

error occurred. As an initial matter, Chavarria failed to cite any case that 

would require the court to sua sponte voir dire the jurors under these 

circumstances. He accordingly has failed to show that the court erred in not 

doing so here. Moreover, juror misconduct warrants a new trial only if the 

appellant shows actual prejudice, or if prejudice may fairly be presumed. 

See State v. Davolt, 207 Ariz. 191, 208 ¶ 58 (2004). “In a criminal case, 

prejudice may be presumed from any private communication, contact or 

tampering directly or indirectly, with a juror during a trial about the matter 

pending before the jury.” Id. “Once the defendant shows that the jury has 

received and considered extrinsic evidence, prejudice must be presumed 

and a new trial granted unless the prosecutor proves beyond a reasonable 

doubt that the extrinsic evidence did not taint the verdict.” State v. Hall, 204 

Ariz. 442, 447 ¶ 16 (2003). 

¶36 In neither of these instances has Chavarria shown that any of 

the jurors received any private communication, contact, or tampering,

directly or indirectly, about the matter pending before the jury. Prejudice 

accordingly may not be presumed, and Chavarria must show actual 

prejudice. See Davolt, 207 Ariz. at 208 ¶ 58. Chavarria has not shown any 

actual prejudice, and accordingly his claim that the court erred, requiring a 

new trial, fails. 

7. Use of Improper Aggravators

¶37 Chavarria argues that the court violated his double jeopardy 

rights in sentencing him based on findings of dangerousness and 

aggravating circumstances that comprised elements of the offenses 

themselves, some of which were duplicative of each other and others of 

which the evidence did not support. The jury found each of the offenses 

was a dangerous offense. Ordinarily, we review a sentence within the range 

prescribed by the legislature for an abuse of discretion. State v. Tschilar, 200 

Ariz. 427, 435 ¶ 32 (App. 2001). “[W]hether a particular aggravating factor 

used by the court is an element of the offense and whether the court 

properly can use such a factor in aggravation are questions of law, which 

we review de novo.” Id.

¶38 The jury found as aggravating circumstances that each of the 

offenses also involved (1) the infliction or threatened infliction of serious 

physical injury; (2) the taking of or damage to property in an amount 

sufficient to be an aggravating circumstance; (3) the presence of an 

accomplice; (4) the defendant’s committing of the offense in an especially 

heinous, cruel, or depraved manner; (5) the defendant’s committing of the 
STATE v. CHAVARRIA

Decision of the Court

13

offense as consideration for the receipt or in the expectation of the receipt 

of anything of pecuniary value; (6) physical, emotional, or financial harm 

caused to the victim; and (7) the defendant’s lying in wait for the victim or 

ambushing the victim during the commission of any felony, specifically 

kidnapping. The court imposed aggravated sentences on each of his 

convictions based on these aggravating circumstances, a prior conviction, 

and Chavarria’s five years as a fugitive.

¶39 Chavarria made no objection, however, to the jury’s findings 

or to the court’s use of them in sentencing him. We accordingly review the 

issues he raises on appeal for fundamental error only. See Henderson, 210 

Ariz. at 568 ¶ 22. On fundamental error review, the defendant has the 

burden of proving that the court erred, that the error was fundamental in 

nature, and that he was prejudiced thereby. Id. at 567 ¶ 20. 

7a. Double Jeopardy

¶40 Chavarria argues that the court violated his double jeopardy 

rights against “multiple punishments for the same offense” by improperly 

using “the same facts for purposes of conviction as well as for purposes of 

finding numerous aggravators” and considering aggravators that were 

“part and parcel of the crime[.]” He also argues that the dangerousness 

finding was improper on the same basis because the use of a deadly weapon 

or dangerous instrument was an element of aggravated assault and 

arguably formed the basis for the convictions for kidnapping and theft by 

extortion.

¶41 The law is well-established, however, that “neither double 

jeopardy nor double punishment considerations prevent the legislature 

from establishing a sentencing scheme such as Arizona’s in which an 

element of a crime may also be used for sentence enhancement and 

aggravation.” State v. Alvarez, 205 Ariz. 110, 113 ¶ 7 (App. 2003). This is 

because “the question under the Double Jeopardy Clause whether 

punishments are multiple is essentially one of legislative intent.” Ohio v. 

Johnson, 467 U.S. 493, 499 (1984); Missouri v. Hunter, 459 U.S. 359, 368 (1983). 

Because each of the factors found by the jury was a specifically enumerated 

aggravating factor, see A.R.S. § 13–702(C)(1), (3)–(6), (9), and (17) (2008), the 

trial court was authorized to aggravate Chavarria’s sentences based on 

those facts regardless whether the conduct exceeded the minimum level 

necessary to establish an element of the crimes. See Tschilar, 200 Ariz. at 435 

¶ 33; see also Alvarez, 205 Ariz. at 113–14 ¶¶ 8–11. 
STATE v. CHAVARRIA

Decision of the Court

14

¶42 The legislature has expressly prohibited the use of “infliction 

or threatened infliction of serious physical injury” as an aggravator “if this 

circumstance is an essential element of the offense of conviction or has been 

utilized to enhance the range of punishment under § 13–704.” See A.R.S. 

§ 13–701(D)(1). The infliction or threatened infliction of serious physical 

injury, however, was not an essential element of any of the offenses of 

which Chavarria was convicted. The offenses, rather, had as elements only 

the intent to inflict physical injury (kidnapping), a threat to cause future 

physical injury (theft by extortion), and reasonable apprehension of 

immediate physical injury (aggravated assault). See A.R.S. §§ 13–1304(A)(3)

(2008) (kidnapping), –1804(A)(1) (2008) (theft by extortion), –1203(A)(2)

(2008) and –1204(A)(2) (2008) (reasonable apprehension of assault 

aggravated by use of deadly weapon). Use of this aggravator accordingly 

complied with the governing statute. 

7b. Double Counting

¶43 Chavarria argues that the court improperly considered the 

same conduct as the basis for multiple aggravators. This argument fails 

because one set of circumstances can properly be used to satisfy more than 

one aggravating factor identified. As discussed, without violating double 

jeopardy protections, “the legislature may authorize using the same fact or 

circumstances in more than one way as part of a complex, multiple-step 

process by which trial courts determine the appropriate sentence for a 

particular crime. . . .” Alvarez, 205 Ariz. at 113 ¶ 8; see generally A.R.S. § 13–

702(C) (2008). Even in the capital sentencing context, a sentencing court 

may consider two aggravators based on the same conduct because each 

individual aggravator “serve[s] different public policy rationales[.]” State v. 

Carlson, 237 Ariz. 381, 399 ¶ 73 (2015). The court did not err, much less 

fundamentally err, by using the same factual circumstances to support 

multiple aggravators. 

7c. Sufficient Evidence

¶44 Chavarria also argues that the evidence did not support the 

aggravators for the taking of or damage to property and pecuniary motive

because “there was no actual financial or pecuniary gain obtained,” and the 

victim’s car was later recovered. We disagree. The evidence that the victim’s 

car was taken, although not permanently, supported the first aggravator. 

The ransom that Chavarria sought to obtain by committing the offenses was 

sufficient to support the second aggravator. See A.R.S. § 13–702(C)(6) (2008)

(“The defendant committed the offense . . . in the expectation of the receipt,
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of anything of pecuniary value.”). Therefore, the court did not err by

applying these aggravators. 

8. Court’s Findings of Aggravators

¶45 Chavarria finally argues that the court violated his rights 

under Blakely v. Washington, 542 U.S. 296 (2004) by using as aggravators—

without a jury finding—an undisclosed prior conviction and his five years 

as a fugitive from justice. Defense counsel acknowledged at sentencing that 

Chavarria had a felony conviction in 2000 for theft of means of 

transportation, and Chavarria acknowledged to the presentence report 

writer that he had been “on the run” and had been residing in Juarez, 

Mexico with a friend for five years. Chavarria did not object to use of these 

aggravators in sentencing him. We accordingly review this issue for 

fundamental error only. See Henderson, 210 Ariz. at 568 ¶ 22.

¶46 The court did not err by finding these additional aggravating 

circumstances and using them in imposing an aggravated sentence. In 

determining the sentence, the court must consider specified aggravating 

circumstances and “[a]ny other factor that the state alleges is relevant to the 

defendant’s character or background or to the nature or circumstances of 

the crime.” A.R.S. § 13–701(D)(24) (2008). Once the jury found the existence 

of any aggravating circumstances, the court was free (consistent with 

Blakely) to consider additional factors related to imposition of an aggravated 

sentence, including the prior conviction and Chavarria’s flight from the 

jurisdiction. See State v. Martinez, 210 Ariz. 578, 585 ¶ 26 (2005).

¶47 Chavarria also argues in passing that the State failed to 

properly disclose the prior felony conviction and notify him that it intended 

to use it as an aggravating circumstance. Chavarria, however, has made no 

significant argument supporting this claim, and accordingly has waived 

this claim of error. See Moody, 208 Ariz. at 452 n.9 ¶ 101 (failure to present 

significant arguments supported by authority in an opening brief waives

the issue).

¶48 The State, moreover, did notify Chavarria that it intended to 

use any felony convictions not used for enhancement as an aggravating 

circumstance. The State further avowed that “the State has provided a list 

of the defendant’s prior felony convictions in a separate allegation.”

Although the record fails to contain a separate allegation of prior felony 

convictions, Chavarria acknowledged at sentencing that he had the felony 

conviction at issue. Under these circumstances, Chavarria has not shown
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that the court fundamentally erred, to his prejudice, by using the prior 

felony conviction as an aggravator.2

CONCLUSION

¶49 For the foregoing reasons, we affirm Chavarria’s convictions

and sentences.

 

2 In Chavarria’s Reply Brief and at oral argument, he raised a separate 

argument that the State “flirt[ed] with prosecutorial misconduct” in its 

arguments made on appeal. But Chavarria has provided no legal authority 

for the proposition that the State’s legally supported arguments on appeal 

amount to prosecutorial misconduct. Nor has he provided any support to 

establish that this issue is properly raised on direct appeal and not instead 

proper in a petition for post-conviction relief under Arizona Rule of 

Criminal Procedure 32.