Full Opinion

IN THE ARIZONA COURT OF APPEALS DIVISION TWO THE STATE OF ARIZONA, Appellee, v. HECTOR EDUARDO GONZALEZ, Appellant. No. 2 CA-CR 2025-0194 Filed October 2, 2026 Appeal from the Superior Court in Pima County No. CR20223986001 The Honorable Christopher C. Browning, Judge AFFIRMED COUNSEL Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Christine Davis, Assistant Attorney General, Phoenix Counsel for Appellee The Law Offices of Stephanie K. Bond P.C., Tucson By Stephanie K. Bond Counsel for Appellant STATE v. GONZALEZ Opinion of the Court OPINION Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Gard and Judge O’Neil concurred. E C K E R S T R O M, Judge: ¶1 Hector Gonzalez appeals his convictions and sentences for several drug-related offenses. He challenges evidentiary and procedural rulings made before, during, and after trial. For the following reasons, we affirm. Factual and Procedural Background ¶2 We view the facts in the light most favorable to sustaining the jury’s verdicts and resolve all reasonable inferences against Gonzalez. See State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). In October 2022, a law enforcement aircraft observed Gonzalez jumping over a fence in a neighborhood where Pima County Sheriff’s Department detectives had been conducting nighttime surveillance. A detective drove his truck toward Gonzalez and tried to initiate a conversation with him. Gonzalez turned away from the detective, rifled through his backpack, and withdrew a revolver from it. Gonzalez then dropped the backpack and the revolver and ran away from the detective. A deputy deployed a police dog, which tracked Gonzalez, allowing officers to apprehend him. Gonzalez was carrying $5,200 in cash on his person. The contents of the abandoned backpack included bags of fluorofentanyl pills, 1.648 kilograms of methamphetamine, five cell phones, and a semi-automatic handgun. ¶3 At the conclusion of a four-day trial, the jury found Gonzalez guilty of one count each of possession of fluorofentanyl for sale, possession of methamphetamine for sale, possession of drug paraphernalia, and two counts of weapons misconduct for possessing a weapon during a felony drug offense. Although the state also charged Gonzalez with two counts of weapons misconduct for being a prohibited possessor, those counts were severed and not submitted to the jury in this case. ¶4 Before sentencing, the state moved to dismiss “the above captioned case without prejudice” based on “prosecutorial discretion.” The trial court granted the state’s motion and ordered the case’s dismissal. At a sentencing hearing for Gonzalez in a separate case, the court questioned 2 STATE v. GONZALEZ Opinion of the Court the state about the dismissal of the instant case. The prosecutor—a different individual than the one who prosecuted Gonzalez—explained that although its motion had requested to “dismiss[] the case outright,” the state only intended to dismiss the two untried counts. ¶5 The defense asked to brief the issue. The trial court specifically asked the parties to address “the legal effect” of the state’s motion to dismiss a case after a verdict is returned but the defendant has not been sentenced. The court also ordered the trial prosecutor to explain his intentions regarding the scope of the motion to dismiss in an affidavit. Based on the briefing and the affidavit, the court set aside its dismissal order, reasoning that the state’s omission of language narrowing the motion to the untried counts amounted to an “unintended clerical error.” The court further reasoned that both the court and the state lacked the authority to dismiss a jury verdict. However, the court found no resulting prejudice to Gonzalez. The court also dismissed the two untried counts with prejudice in accordance with a plea agreement. ¶6 The parties stipulated that Gonzalez was a category two repetitive offender with one historical prior conviction. The trial court then sentenced Gonzalez to concurrent and consecutive prison terms totaling 14.75 years. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1). Discussion I. Motion to Dismiss ¶7 Gonzalez argues the trial court erred by setting aside the order dismissing the case, which it had granted on the state’s motion. Specifically, he contends the operative language in the state’s motion—and parallel language in the court’s order granting it—did not constitute a “clerical error” subject to correction. We review the court’s ruling for an abuse of discretion. See State v. Bernini, 233 Ariz. 170, ¶ 8 (App. 2013). A court abuses its discretion when its decision is unsupported by the record or when it commits an error of law. Shinn v. Ariz. Bd. of Exec. Clemency, 254 Ariz. 255, ¶ 13 (2022). ¶8 Although Gonzalez did not cite it, we understand his argument to be based on Rule 24.4, Ariz. R. Crim. P. That rule authorizes a trial court, “on its own or on a party’s motion,” to “at any time, correct clerical errors, omissions, and oversights in the record.” As our supreme court has recently explained, this rule is expressly limited to addressing 3 STATE v. GONZALEZ Opinion of the Court clerical errors. Shinn, 254 Ariz. 255, ¶ 18. A clerical error “involves a failure to record accurately a statement made or action taken by the court or one of the parties.” State v. Hanson, 138 Ariz. 296, 304 (App. 1983) (quoting 8A Moore’s Federal Practice ¶ 36.02 at 36-2). Accordingly, we do not apply the rule unless the record establishes a discrepancy between what was intended and what was recorded. See Shinn, 254 Ariz. 255, ¶¶ 20, 22 (clerical error correction must reflect actual facts found in record). Rule 24.4 does not permit a court “to supply judicial action” and enter a ruling “that was never previously made” on the record. State v. Serrano, 234 Ariz. 491, ¶ 6 (App. 2014) (quoting State v. Pyeatt, 135 Ariz. 141, 143 (App. 1982)). Nor does this rule extend to inserting the parties’ unexpressed intentions into the record. See Shinn, 254 Ariz. 255, ¶ 22 (interpreting State v. Johnson, 113 Ariz. 506, 509 (1976)). In other words, a clerical error appears in the recording—not the rendering—of a ruling. Id. ¶ 20; see, e.g., Hanson, 138 Ariz. at 304. ¶9 Here, the state’s omission of narrowing language was not the type of error Rule 24.4 contemplates. The record—from the state’s motion requesting dismissal through the trial court’s order granting it—reveals no variance between what was sought and what was recorded. See Shinn, 254 Ariz. 255, ¶ 20. The state contends, however, that this same record provides no contemporaneous evidence, apart from the content of its motion, that it intended to dismiss the entire case. That contention, however, speaks to the state’s private unexpressed intentions, not whether the record accurately reflected the state’s actions. The state expressly sought to dismiss the entire case in its motion. And, nothing in the contemporaneous record demonstrates that the state intended anything otherwise. ¶10 Nor does the record suggest that the trial court intended to dismiss only those two counts when it granted the state’s motion to dismiss the entire case. The court did not hold oral argument on the motion to dismiss, and the parties did not brief it. The court’s dismissal order mirrored the state’s motion to dismiss “the above captioned case.” Therefore, the record demonstrates that, in granting the motion as the state had requested, the court acted exactly as it intended to act based on the state’s motion. ¶11 We are persuaded the state committed error by failing to articulate the intended scope of its dismissal order, as evidenced by the state’s motion to dismiss the entire case despite a favorable verdict and the state’s uncontested affidavit that it did not intend to dismiss the entire case. But, on the undisputed record before us, the state’s error constituted its own mistake in litigation, not a clerical error in the record. See Shinn, 254 Ariz. 4 STATE v. GONZALEZ Opinion of the Court 255, ¶ 20. For this reason, the trial court erred by citing its authority to remedy clerical errors as a basis to vacate the dismissal order. ¶12 However, as an alternative basis for vacating the order, the trial court also concluded that it lacked legal authority “to order the ‘dismissal’ of a case previously decided, even if the [c]ourt was requested to do so by the [s]tate.” We review issues involving the interpretation of the Arizona Rules of Criminal Procedure de novo. State v. Burns, 237 Ariz. 1, ¶ 124 (2015). We will affirm the court’s ruling if the outcome was legally correct for any reason. State v. Carlson, 237 Ariz. 381, ¶ 7 (2015). ¶13 A trial court’s jurisdiction to address post-verdict motions is limited as set forth in the Arizona Rules of Criminal Procedure, and “an exercise of that jurisdiction is permissible only upon the grounds specified therein.” Shinn, 254 Ariz. 255, ¶ 32 (emphasis added in Shinn) (quoting State v. Falkner, 112 Ariz. 372, 374 (1975)). The permissible avenues for post-verdict orders and amendments are set forth in the subsections to Rule 24. See Ariz. R. Crim. P. 24.1 (motion for new trial), 24.2 (motion to vacate judgment), 24.3 (sentence modification), 24.4 (clerical error correction). Each subsection specifies the trial court’s level of discretion in addressing each species of motion and which party must move for relief. See Ariz. R. Crim. P. 24.1, 24.2, 24.3, 24.4. ¶14 None of these subsections expressly authorize a trial court to dismiss criminal convictions under the circumstances here. Rule 24.1 authorizes a trial court to overturn a jury’s verdict by granting a new trial. But that authority does not authorize a trial court to dismiss a case altogether or to do so on the state’s motion. See Ariz. R. Crim. P. 24.1. ¶15 By contrast, Rule 24.2 authorizes a trial court to vacate a “judgment” on the motion of either party. But here, the jury’s verdicts had not yet been reduced to judgments when the trial court dismissed the case, rendering Rule 24.2 inapplicable. See Ariz. R. Crim. P. 26.1(b) (“‘Judgment’ means the court’s adjudication that the defendant is guilty or not guilty based on the jury’s or the court’s verdict, or the defendant’s plea.”), 26.10 (implicitly authorizing trial court to await sentencing to pronounce judgment), 26.11. Even assuming Rule 24.2 could nonetheless be used as an avenue to seek dismissal of a conviction not yet reduced to judgment, see Ariz. R. Crim. P. 26.2(b) (court “must” eventually enter judgment upon conviction), Rule 24.2 specifies the limited bases on which the state may move to do so, see Ariz. R. Crim. P. 24.2(a) (enumerating circumstances requiring court to vacate judgment that could be alleged by either party), (e) (state may move to vacate judgment when court lacks jurisdiction over 5 STATE v. GONZALEZ Opinion of the Court underlying case, when state has discovered evidence of actual innocence, when convictions obtained in violation of United States or Arizona constitutions, or if conviction obtained in erroneous application of law). Here, the state articulated none of these grounds in its motion to dismiss, and the court did not find any such grounds in granting the motion. ¶16 We therefore can only conclude that no subsection of Rule 24 granted the trial court authority to dismiss the entire case based on the motion before it. See Shinn, 254 Ariz. 255, ¶ 32; Falkner, 112 Ariz. at 374 (trial court’s jurisdiction in post-verdict motions limited to grounds set forth in Arizona Rules of Criminal Procedure). Therefore, the court did not err when it vacated its dismissal order in part on this basis. II. Motion to Continue ¶17 Gonzalez argues the trial court erred by denying his motion to continue. He claims this error violated his right to effective assistance 1 of counsel. We review the denial of a motion to continue for an abuse of discretion. State v. Hein, 138 Ariz. 360, 368 (1983). ¶18 In October 2022, the state charged Gonzalez with two counts of possession of drugs for sale, four counts of weapons misconduct, and one count of possession of drug paraphernalia. After a competency evaluation, the trial court set a trial date for May 2024. Four days before that date, Gonzalez’s counsel moved for a continuance and to withdraw from representing Gonzalez. Counsel argued that his lack of trial preparation would render his services ineffective and that “the attorney/client relationship [was] irretrievably impaired.” The court denied each motion. ¶19 We will uphold a trial court’s ruling on a motion to continue absent a clear abuse of discretion. Id. We accord such deference because the trial court is uniquely situated as an unbiased arbiter to weigh the relevant factors in determining whether “delay is indispens[a]ble to the interests of justice.” Id. (quoting Ariz. R. Crim. P. 8.5(b)). The explanation a defendant provides to the court to support his or her request for a continuance is a critical factor for determining whether that court’s denial 1Gonzalez also appears to argue, alternatively, that the trial court erred by denying his motion to withdraw his appointed counsel. However, because he has not meaningfully developed this argument on appeal, we do not address it. See Ariz. R. Crim. P. 31.10(a)(7); e.g., State v. Rodriguez, 251 Ariz. 90, n.9 (App. 2021). 6 STATE v. GONZALEZ Opinion of the Court was an abuse of discretion. State v. Lamar, 205 Ariz. 431, ¶ 31 (2003). Other relevant factors include: “whether other continuances were granted; whether the defendant had other competent counsel prepared to try the case; the convenience or inconvenience to the litigants, counsel, witnesses, and the court; the length of the requested delay; . . . and whether the requested delay was for legitimate reasons or was merely dilatory.” Hein, 138 Ariz. at 369. We thus view the trial court’s denial of Gonzalez’s request for a continuance in the context of the case and its history. See Lamar, 205 Ariz. 431, ¶ 28. ¶20 Here, the record indicates the trial court considered the relevant factors in its ruling. The court emphasized the inconvenience to the court and the length of time that had elapsed between the indictment and the trial dates. The court also noted that Gonzalez had changed counsel once before. And the court expressed skepticism regarding the legitimacy of Gonzalez’s purported reason to continue. On this record, we are satisfied that the court “perceived the salient factors and evaluated them in a manner within its proper zone of discretion.” See Hein, 138 Ariz. at 369. Thus, we conclude the court did not err by denying Gonzalez’s request for a continuance. III. Dog-Bite Evidence ¶21 Gonzalez argues the trial court erred by precluding him from asking about “how badly [Gonzalez] was bitten” by the police dog or “what his injuries were.” He contends these rulings deprived him of his constitutional rights to cross-examination and to present a complete defense. Although we review evidentiary rulings for an abuse of discretion, we review de novo evidentiary rulings implicating the Confrontation Clause. State v. Ellison, 213 Ariz. 116, ¶ 42 (2006). ¶22 During cross-examination, a detective testified that the police dog had apprehended Gonzalez, a different person than the original target of the nighttime surveillance. The detective further testified that the police dog had likely injured Gonzalez during his apprehension. The defense showed the detective images of Gonzalez in the hospital with his dog-bite injuries, and the state objected to further questioning related to the images and Gonzalez’s injuries. The defense argued such testimony supported Gonzalez’s theory that he did not possess the alleged contraband and that the detective’s conduct demonstrated bias. The trial court precluded further evidence related to Gonzalez’s dog-bite injuries, reasoning that additional dog-bite evidence would be irrelevant and unfairly prejudicial. 7 STATE v. GONZALEZ Opinion of the Court ¶23 Assuming without deciding that the dog-bite evidence was improperly precluded, any theoretical error was harmless. See State v. Henderson, 210 Ariz. 561, ¶ 18 (2005). We review for harmlessness by determining an error’s effect in light of all the evidence presented in the case. State v. Bible, 175 Ariz. 549, 588 (1993). An error is harmless if the state demonstrates beyond a reasonable doubt that the error did not contribute to or affect the verdict. Henderson, 210 Ariz. 561, ¶ 18. ¶24 The state presented overwhelming evidence that Gonzalez had possessed illegal drugs for sale and illegally possessed weapons and drug paraphernalia. The state and the defense stipulated the aerial surveillance footage depicted the scene of the crimes. Gonzalez testified that he was the person in the aerial surveillance footage who had jumped over the fence, had dropped items, and fled after a detective tried to speak to him. A detective testified to observing Gonzalez drop a backpack and a revolver as well as flee the scene. ¶25 The backpack contained bags of blue pills, a bag of a white crystalline substance, five cell phones, and a semi-automatic handgun. A forensic scientist testified that the substance samples from the backpack had tested positive for methamphetamine and fluorofentanyl, and he also described the quantity of each. A detective with eighteen years of experience in narcotics cases opined that the contents of the backpack, taken together, suggested the substances were possessed for sale. Gonzalez was also carrying $5,200 in cash on his person. In view of this evidence, we conclude beyond a reasonable doubt that, even if admitted, the dog-bite evidence would not have affected the jury’s verdict on any count. See id. IV. Sanctions ¶26 Gonzalez argues the trial court erred by “failing to adequately sanction” the state for a disclosure violation. Specifically, he contends the court should have precluded testimony about an untimely disclosed lab report. We review a court’s decision whether to impose a sanction for untimely disclosure for an abuse of discretion. State v. Moody, 208 Ariz. 424, ¶ 114 (2004). ¶27 The state disclosed two lab reports produced by the forensic scientist witness. Relying on the first lab report, the forensic scientist testified that at least two of the substance samples weighed around thirty grams and each had tested positive for methamphetamine. The forensic scientist further testified that one blue pill sample had tested positive for fluorofentanyl. Relying on the second lab report, the forensic scientist 8 STATE v. GONZALEZ Opinion of the Court testified that two more substance samples had tested positive for methamphetamine. ¶28 Gonzalez asked the trial court to preclude testimony related to the second report, which was untimely disclosed. The court agreed that the second lab report was untimely disclosed but found that the disclosure violation was harmless because the second report was cumulative to the first lab report’s results. ¶29 A trial court may sanction a party for failure to timely disclose evidence. Ariz. R. Crim. P. 15.6(c), 15.7(a); State v. Payne, 233 Ariz. 484, ¶ 155 (2013). Preclusion is “a sanction of last resort” limited to cases where less extreme sanctions are inapplicable. Moody, 208 Ariz. 424, ¶ 114 (quoting State v. Talmadge, 196 Ariz. 436, ¶ 17 (2000)). However, a court need not impose a sanction where the disclosure violation was harmless. Ariz. R. Crim. P. 15.7(b)(1). ¶30 Here, the record supports the trial court’s conclusion that the late disclosure was harmless both because of the cumulative nature of its contents and because of the overwhelming nature of the remaining evidence supporting Gonzalez’s convictions. Accordingly, the trial court did not abuse its discretion by declining to sanction the state. See Moody, 208 Ariz. 424, ¶ 114. Disposition ¶31 For the foregoing reasons, we affirm Gonzalez’s convictions and sentences. 9