NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Appellee
,

v.

FEDERICO RODRIGUEZ
, Appellant

.
No. 1 CA

- CR 14

- 0057

Appeal from the Superior Court in Maricopa County

No. CR2012

- 165742

- 003 The Honorable Pamela S. Gates
, Judge

AFFIRMED

COUNSEL
Arizona Attorney General’s Office , Phoenix By Terry M. Crist Counsel for Appellee

Ballecer & Segal
, Phoenix By Natalee E. Segal C ounsel for AppellantSTATE v. RODRIGUEZ Decision of the Court

2 MEMORANDUM DECISION
Judge Andrew W. Gould delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Samuel A. Thumma joined.

G O U L D , Judge:

¶1 Fe derico Rodriguez (“ Rodriguez ”) appeals his convictions and sentences for three counts of aggravated assault. For the following reasons, we affirm.

FACTS 1 AND PROCEDURAL BACKGROUND

¶2 On the night of December 30, 2012, Martha B . was home with her boyfriend Ga briel G. Martha’s three children were also present in the home: J ose , who was 15 years old; Y ullett , who was six years old; and S aul , an infant. While Martha was watching television, she heard a loud knock on the front door. She looked outside and saw a man in a black mask pounding on the door. In response, Gabriel ran out the back door, climbed over the fence, and fled from the scene.

¶3 Martha asked the man to identify himself. The man, later identified as defendant Federico Rodriguez, stated he was a police officer and told Martha to open the door. She refused, and called 911. Martha then heard someone breaking the glass on the door and saw an intruder forcing his way into the house. Martha gathered her children and ran out the back door.

¶4 Ma rtha and her children tried to escape by climbing over the back fence. T he family was then confronted by a man point ing a gun at them while they were trying to climb over the fence. The testimony at trial was conflicting as to whether Rodriguez or his co

- defendant, Florentino Josue Millan Erivez (“ Erivez ”), was the individual who pointed the gun at the victims. Martha and J ose identified th e man as Erivez

. A t

1 On appeal, this court views the evidence in the light most favorable to sustaining the conviction and resolves all reasonable inferences against defendant

. State v. Karr , 221 Ariz. 319, 320, ¶ 2, 212 P.3d 11 , 12 (App. 2008).STATE v. RODRIGUEZ Decision of the Court

3 trial , however, Rodriguez testified that he was the individual who confronted the family in the backyard
, holding his gun “ forward . . . in a low ready position

. ” Erivez corroborated this testimony
, stating t hat by the time he made it in to the backyard, Rodriguez was already marching the family back into the house.

¶5 Erivez or Rodriguez pointed the gun at Martha and ordered her to get off the phone, took the phone away from her, and disconnect ed the 911 call. J ose believed at this point that the individual was going to shoot him and his family. Erivez or Rodriguez then directed Martha and her child ren back inside the house.

¶6 Rodriguez ordered the victims to sit on the couches in the living room. Rodriguez then began questioning Martha about her “husband.” Rodriguez instructed Erivez to tie Martha’s hands while he searched the house. After thr eatening to use pepper spray if she did not comply with his request, Erivez was able to tie Martha’s hands behind her back.

¶7 At some point, Villalobos entered the living room carrying a shotgun. Villalobos had been in the bedrooms searching the home. Upon entering the living room, Villalobos told Rodriguez that “it was all clear, no weapons, no drugs.” Villalobos then questioned Martha, asking her if she “knew what they were there for,” and advising her they were there “for the guns, the drugs, and th e money.”

¶8 Police officers arrived on the scene shortly after the defendants entered the home. One officer entered the back yard and observed Villalobos standing in the living room , the location where the victims were being held, holding a shotgun

. ¶9 Rodriguez spoke to the police, advising them he was a bail recovery agent searching for a fugitive. Rodriguez stated that he recruited Erivez and Villalobos to assist him in s earching for the fugitive in the victims’ home. The officers became suspicio us when Rodriguez was only able to provide a vague physical description of the fugitive. Rodriguez did not know the full name or date of birth of the fugitive, nor did he have a photo or any paperwork regarding the fugitive. A s the officers continued to question Rodriguez, he kept changing the fugitive’s name and physical description. Eventually, the officers arrest ed Villalobos, Rodriguez and Erivez

. ¶10 Rodriguez later testified at trial that o n the way to the victims’ house , he gave Erivez a gun. Erive z confirmed this testimony,STATE v. RODRIGUEZ Decision of the Court

4 adding that when Rodriguez gave him the gun, he told him to chamber a round before they entered the house. Erivez also testified that before they entered the victims’ house, Rodriguez instructed him to get some zip ties in case they needed to secure someone at the house.

¶11 All three co

- defendants were jointly indicted and tried together. T he jury convicted Rodriguez of four counts of u nlawful i mprisonment, lesser

- included offenses of c ounts t wo through f ive. In addition, the j ury convicted Rodriguez on c ount s ix, a ggravated a ssault ( against Martha )
, c ount s even, a ggravated a ssault ( against J ose ) , and

c ount e ight, a ggravated a ssault ( against Y ullett )

. Rodriguez timely appealed.

DISCUSSION

I. Rule 20 Motion

¶12 Rodriguez argues that the trial court erred in denying his motion for a judgment of acquittal on c ounts s ix, s even and e ight

. A Rule 20 motion for acquittal shall be granted by the trial court when no substantial evidence warrants a conviction. Ariz. R. Crim. P. 20(a); S tate v. Davolt , 207 Ariz. 191, 212
, ¶ 87, 84 P.3d 456, 477 ( 2004). “If reasonable [persons] may fairly differ as to whether certain evidence establishes a fact in issue, then such evidence must be considered as substantial. ” Id

. “The

s ubstantial evidenc e required for onviction may be either circumstantial or direct. ” State v. Pena , 209 Ariz. 503, 505, ¶ 7, 104 P.3d 873, 875 (App. 2005). “[W] e view the evidence in the light most favorable to sustaining the [jury] verdict , and we resolve all inferences a gainst the defendant .” State v. Spears , 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996).

¶13 Rodriguez contends the trial court erred in denying his Rule 20 motion because t here was no evidence that he pointed a gun at any of the victims. Rodriguez further argues there was no evidence that he

“ knew , aided or assisted” Erivez in point ing a gun at the victims in the backyard of the house

. We disagree.

¶14 There is substantial evidence showing that Rodriguez held the victims at gunpoint as they tried to climb over the fence. Rodriguez testified that he confronted the victims in the backyard and pointed a gun

“ forward . . . in a low ready position

. ” Erivez also testified t hat he saw Rodriguez directing the victims into the house from the backyard

. Although Martha and J ose identified Erivez as the man who pointed the gun at them, t he jury was free to disbelieve all or part of their testimony, and conclude that Rodriguez pointed the gun at the victims

. See State v.STATE v. RODRIGUEZ Decision of the Court

5 Clemons , 110 Ariz. 555, 556

- 57, 521 P.2d 987, 988

- 89 (1974) ( noting “credibility of the witnesses and the weight and value to be given to their testimony are questions exclusively for the jury”)

. ¶15 Even if the jury determined that it was Erivez who threatened the victims with the gun, then Rodriguez was cri minally accountable for the actions of Erivez as an accomplice. See A.R.S. § 13

- 303(A)(3) (stating that a n “ accomplice ” is accountable for the criminal acts of another ). An accomplice is defined as one who, “ with the intent to promote or facilitate the c ommission of an offense,” solicits
, commands, aids, or “ provides means or opportunity for the other person to commit ” a crime. A.R.S. § 13

– 301

. ¶16 Rodriguez ran the bail recovery business
, asked Erivez and Villalobos to join him for this job, and drove Erive z and Villalobos to the victims’ home . A ll three co

- defendants acted in concert and jointly participated in the home invasion. Villalobos searched the home while Erivez captured the victims and forced them back into the home at gunpoint. To assist Erive z in t his task, Rodriguez gave Erivez a gun before they entered the house. Once the victims were confined in the living room
, Rodriguez interrogated Martha as to the whereabouts of the fugitive. Villalobos also aided Erivez and Rodriguez by forcing the

v ictims to remain in the living room with a shotgun, and interrogating Martha about the location of “the guns, drugs, and the money.”

¶17 Accordingly, there is substantial evidence supporting Rodriguez’ s convictions for aggravated assault o n c ounts s ix, s eve n, and

e ight

.

II. Sentencing Enhancement

¶18 Rodriguez was sentenced on c ount e ight, a ggravated a ssault against the minor victim Y ullett , to a minimum enhanced prison term of ten years pursuant to the dangerous crime against children (“DCAC”) statute. A .R.S. §§ 13

- 705 (D),

- 705(P)(1)(b). Rodriguez argues this sentence

was unconstitutional b ecause all the facts necessary to prove th e DCAC enhancement were not, as the trial court determined, inherent in the jury’s verdict

. See Apprendi v. New Jersey , 530 U.S. 466 , 490 (2000) ( “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt” ) ; Blakely v. Washington , 542 U.S. 296 (2004) (holding that “[b]ecause the facts supporting petitioner’sSTATE v. RODRIGUEZ Decision of the Court

6 exceptional sentence were neither admitted by petitioner nor found by a jury, the sentence violated his Sixth Amendment right to trial by jury.”).

¶19 Rodriguez does not dispute that his a ggravated assault conviction is one of the enumerated offenses under the DCAC statute, or that the victim Y ullett was under fifteen years of age. A.R.S. § 13

- 705(P)(1)(b) (aggravated assault involving the use or threatening exhibition of a deadly weapon a gainst a minor under fifteen years of age is a dangerous crime against children). Rather, Rodriguez asserts that the requisite DCAC finding his conduct was “focused on, was directed at ... or targeted” at Y ullett as a victim under the age of fifteen “was ne ver tried to a jury.”

¶20 We review de novo sentencing issues involv ing Apprendi

. State v. Urquidez , 213 Ariz. 50, 53, ¶ 11, 138 P.3d 1177, 1180 (App. 2006). Even if an Apprendi error exists, we will not reverse if the error was harmless because no reasonable jury would have failed to find the facts necessary to enhance the defendant’s sentence. State v. Miranda

- Cabrera
, 209 Ariz. 220, 226

- 27 , ¶¶ 27

– 30, 99 P.3d 35, 41

- 42 (App. 2004).

¶21 In order for a defendant to be sentenced under the DCAC statute, his criminal “ conduct must be focused on, directed against, aimed at, or target a victim under the age of fifteen.” State v. Williams , 175 Ariz. 98, 104, 854 P.2d 131, 137 (1993) ; see State v. Sepahi , 206 Ariz. 321, 324, ¶ 19, 78 P.3d 732 , 7 35 (2003). A DCAC crime cannot be committed unintentionally against a child; it must be committed as “a crime against a child as a child or in the capacity of a child .” Williams , 175 Ariz. at 101, 854 P.2d 134 (emphasis added ); see Miranda

- Cabrera , 209 A riz. at 22 3 , ¶ 14 , 99 P.3d at 38.

¶22 Here, there was substantial evidence showing that in committing the offense of aggravated assault against Y ullett , Rodriguez necessarily targeted Y ullett as a child under the age of fifteen. The evidence shows that Ro driguez o r his accomplice pointed a gun at Yullett and her family in the back yard. In addition, on this record, the fact that Y ullett w as a young child was apparent beyond question to Rodriguez or his accomplice when he pointed the gun at Yullett ; she was only six years old at the time of the offense . Accordingly, the court correctly determined that the targeting component of the DCAC statute was inherent in the verdict as to count eight, aggravated assault.STATE v. RODRIGUEZ Decision of the Court

7 CONCLUSION

¶23 For the foregoing reasons, we affi rm Rodriguez ’s convictions and sentences.