PASCUA YAQUI TRIBAL COURT OF APPEALS

PASCUA YAQUI TRIBAL COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, Court of Appeals Case No: CA-17-005

Plaintiff/A ppellee, Tribal Court Case No.: CR-16-236

vs.

JAIMEZ, FRANK ORDER

Defendant/Appellant.

IT IS HEREBY ORDERED that the above entitled matter is hereby dismissed with

prejudice.

RESPECTFULLY SUBMITTED this 29th day of July, 2018.

Cas Rln

BY THECOURT ~

PASCUA YAQUI PUBLIC DEFENDER

4725 W. Calle Tetakusim, Building B

Tucson, AZ 85757

(520) 883-5013

Melissa L. Acosta

Office of the Public Defender

Attorney for Appellant

PYT Bar No. 10185

PASCUA YAQUI TRIBAL COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, Court of Appeals Case No.: CA-17-005

Plaintiff/A ppellee, Tribal Court Case No.: CR-16-236

VS.

JAIMEZ, FRANK, APPEAL

)

)

)

) MOTION TO WITHDRAW NOTICE OF

)

)

Defendant/Appellant. )

)

)

)

COMES NOW the Appellant, FRANK JAIMEZ, by and through counsel, pursuant to 3

PYTC § 2-3-80 of the Pascua Yaqui Tribe Rules of Appellate Procedure, respectfully withdraws

its Notice of Appeal in the Pascua Yaqui Tribal Appellate Court in the above case number.

Appellant no longer wishes to pursue an appeal in this matter.

RESPECTFULLY SUBMITTED this 23 day of July, 2018.

PASCUA YAQUI PUBLIC DEFENDER

\ _— i-—

Melissa L. Acosta

Chief Public Defender

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Original of the foregoing delivered to PYT

Court and filed:

Copy of the foregoing provided to PYT

Prosecutor by:

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I hereby certify that the original copy of the Motion to withdraw the Notice of Appeal

was delivered this date to:

CERTIFICATE OF SERVICE

Clerk of the Court of Appeals

Pascua Yaqui Court of Appeals

7777 8. Camino Huivism

Tucson, AZ 85757

and that one copy was delivered this date to:

Pascua Yaqui Tribal Court

7777 S. Camino Huivism

Tucson, AZ 85757

and that one copy was delivered this date to:

Deputy Prosecutor Kendrick Wilson

Office of the Prosecutor of the Pascua Yaqui Tribe

7777 8. Camino Huivism

Tucson, AZ 85757

and that one copy of was delivered this date to:

Laura Berglan, Attorney General

Office of the Attorney General

7777 8. Camino Huivism

Tucson, AZ 85757

RESPECTFULLY SUBMITTED this 23" day of July, 2018

PASCUA YAQUI PUBLIC DEFENDER

ee

Melissa L Acosta

Chief Public Defender

Be

No. CA-17-005

Pascua Yaqui Tribe Court of Appeals

Pascua Yaqui Tribe, Appellee

v.

Frank Jaimez, Appellant.

For the Office of the Prosecutor: Oscar J. Flores, Jr., Chief Prosecutor

For the Public Defender: Melissa L. Acosta, Chief Public Defender

ORDER

A stay of this appeal was ordered July 10, 2017. That stay is now lifted.

The briefing schedule is as follows: The Public Defender will submit its opening brief by

September 24, 2018; the Prosecutor will file its response brief by October 26, 2018; and a reply

brief, if any, will be filed by November 12, 2018. A decision whether to hold oral argument will

be determined at a later date.

So ORDERED this 20" day of July, 2018.

Wi LAGE,

on. Robert Miller

Issued by PYCOA July 10, 2017

No. CA-17-005

Pascua Yaqui Court of Appeals

Pascua Yaqui Tribe, Appellee

V.

Frank Jaimez, Appellant

Kendrick Wilson, Office of the Prosecutor, 7777 S. Camino Huivisim, Bld.A, Tucson AZ

85757.

Amanda Lomayesva, Interim Attorney General, 7777 S. Camino Huivisim, Tucson AZ

85757.

Honorable Melvin Stoof, Respondent, 7777 S. Camino Huivisim, Bld. B, Tucson AZ

85757.

Party in Interest, Frank Jaimez represented by William Soland, Office of the Public

Defender, 4725 Calle Tatakusim, Bld. B, Tucson AZ 85757.

Order Issuing Stay of Proceedings in CA-17-005, PYT v. Jaimez

Pursuant 3 PYTC § 2-3-50, the appellate court may suspend the requirements or

provisions of any of the rules in a particular case and order proceedings in accordance

with its discretion. On June 30, 2017 Appellant Jaimez filed a Notice of Appeal

regarding the final judgment in Tribal Case Number CR- 16-236. This Court is currently

considering a motion regarding CA-17-003, the results of which could affect this current

appeal of PYT v. Jaimez. This Court issues a stay of execution of any appellate

proceedings regarding PYT v. Jaimez, CA-17-005 until matters in CA-17-003 with this

Court are resolved.

So ORDERED this 10" day of July 2017.

James Hopkins, Chief Judge

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PASCUA YAQUI PUBLIC DEFENDER

4725 W. Calle Tetakusim, Building B

Tucson, AZ 85757

(520) 883-5013

William R. Soland

Office of the Public Defender

Attorney for Appellant

PYT Bar No. 10266

PASCUA YAQUI TRIBAL COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, ) Court of Appeals Case No.: ( A- I-00

)

Plaintiff/Appellee, ) Tribal Court Case No.: CR-16-236

)

vs. )

) NOTICE OF APPEAL

JAIMEZ, FRANK, )

)

Defendant/Appellant. )

)

)

)

COMES NOW the Appellant, FRANK JAIMEZ, by and through counsel, pursuant to 3

PYTC § 2-3-90(A), 3 PYTC § 2-3-90(B), 3 PYTC § 2-3-100(B)(1) and 3 PYTC § 2-3-100(B) of

the Pascua Yaqui Tribe Rules of Appellate Procedure, and respectfully files a Notice of Appeal

in the Pascua Yaqui Tribal Appellate Court from the Order entered in this action by the Pascua

Yaqui Tribal Court on June 1, 2017. The Appellant is appealing the Trial Court’s Judgment of

Conviction, the denial of her Motion for Judgment of Acquittal Notwithstanding the Jury

Verdict, the request for new trial which denied by implication, the denials of written and oral

Motions to Dismiss for lack of subject matter jurisdiction, as well as evidentiary rulings and jury

instructions at trial.

~~ A

bo

A copy of the Pascua Yaqui Tribal Court’s Order is attached hereto as required by 3

PYTC § 2-3-90(A)(1), Pascua Yaqui Rules of Appellate Procedure.

The Appellant further respectfully requests that this Honorable Court enter an order

directing the Clerk of the Pascua Yaqui Tribal Court to prepare and submit the record within

thirty (30) days.

RESPECTFULLY SUBMITTED this 30" day of June, 2017.

PASCUA YAQUI PUBLIC DEFENDER

) Ati)

William R. Soland

Deputy Public Defender

Original of the foregoing delivered to PYT

Court and filed:

Copy of the foregoing provided to PYT

Prosecutor by:

‘

bo

,

nN

CERTIFICATE OF SERVICE

I hereby certify that the original copy of the Notice of Appeal was delivered this date to:

Clerk of the Court of Appeals

Pascua Yaqui Court of Appeals

7777 S. Camino Huivism

Tucson, AZ 85757

and that one copy of the Notice of Appeal was delivered this date to:

Pascua Yaqui Tribal Court

7777 S. Camino Huivism

Tucson, AZ 85757

and that one copy of the Notice of Appeal was delivered this date to:

Deputy Prosecutor Kendrick Wilson

Office of the Prosecutor of the Pascua Yaqui Tribe

7777 8. Camino Huivism

Tucson, AZ 85757

and that one copy of the Notice of Appeal was delivered this date to:

Amanda Lomayesva, Interim Attorney General

Office of the Attorney General

7777 S. Camino Huivism

Tucson, AZ 85757

RESPECTFULLY SUBMITTED this “day of Sux, 2017.

PASCUA YAQUI PUBLIC DEFENDER

Va

William R. Soland

Deputy Public Defender

IN THE PASCUA YAQUI TRIBAL COURT

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, ) CASE NO. CR-16-236

PLAINTIFF, )

vs. ) ORDER DENYING MOTION

JAIMEZ, FRANK ) FOR JUDGMENT OF ACQUITTAL

DEFENDANT. ) NOTWITHSTANDING THE VERDICT

)

On June 1, 2017, the Court reviewed the defendant’s motion for judgment of acquittal

notwithstanding the verdict, the Tribe’s response, and the defendant’s reply, and it should deny

the motion.

The Court in deciding such a motion must consider only the evidence and any inferences

therefrom, and must do so in the light most advantageous to the non-moving party.

In this case, the court finds that the testimony of Aydeluz Sewa Leyva Jaimez as to the

non-Indian status of the defendant, who is her husband, was her personal opinion, that her

opinion as to her husband’s status was important to her because she wanted to enroll their

daughter in the Tribe, and she needed to know about his blood quantum for enrollment

purposes, so the child may be eligible to receive tribal benefits. As noted in the court’s ruling

over the defendant’s objection, the victim’s wife could provide her lay opinion as to the non-

Indian status. She was not presented as an expert, and opinion testimony of a lay witness is

allowable when it is rationally based on the witness’ perception and helpful to clearly

understand the witnesses’ testimony or to determining a fact in issue. F.R.Evid 701(a)(b); 3

PYT R.Evid. 43. The victim’s opinion was based on personal knowledge (see Fed. Evid. Rule

602), U.S. v. Kaplan, 490 F3d 110, 118-119 (2d Cir 2007) (lay opinion inadmissible absence

of evidence that it was based on first hand knowledge), and the opinion of Ms, Leyva Jaimez

that her husband was non-Indian was an opinion that a reasonable person could draw from the

underlying facts, U.S. v. Riddle, 103 F3d 423, 428-429 (5" Cir. 1997).

The jury reviewed all evidence and concluded, based on the victim’s credibility, that-a

reasonable inference could be drawn by the jury that the defendant was a non-Indian. The

“court should not substitute its own determination of the credibility of the witnesses, the weight

of the evidence and the reasonable inferences to be drawn for that of a jury.” U.S. v. Mariani,

725 F2d 862, 865 (2"™ Cir. 1984),

X Tribe _\ Defendant _¥ Counsel

The jury made its decision based on the credibility of witnesses and surrounding | -

circumstances, including the testimony of Ms. Aydeluz Sewa Leyva Jaimez, and her testimony

was substantial evidence, based on the weight the jury gave such testimonial evidence. The

evidence presented at trial by the Tribe as to the defendant’s non-Indian status was sufficient

evidence to establish beyond a reasonable doubt that the defendant was a non-Indian, who was

a spouse of the victim, his wife, with whom he shared a child in common, she was an Indian,

and that the act of domestic violence occurred on the Pascua Yaqui Reservation. The defendant

himself admitted that he was not enrolled in any Indian tribe. There was nothing in the court

record that indicated the jurors did not understand the jury instruction as given to them by the

court, or that they did not consider all substantial evidence in the record. Tak Sun Tan v.

Runnels, 413 F.3d 1101, 115 (9" Cir. 2014) (Reviewing courts presume jurors follow the

court’s instructions absent extraordinary situtations).

The court should deny the defendant’s motion to dismiss, for lack of good cause shown,

because the Tribe has met its burden in establishing the defendant’s guilt beyond a reasonable

doubt, as determined by a jury, who weighed all of the evidence in reaching their conclusions.

IT IS ORDERED that the Court denies the defendant’s motion for judgment of

acquittal is denied, for lack of good cause shown.

SO ORDERED THIS 1t DAY OF JUNE, 2017.

on EN

ce: Date 9G-O/./7

Wen

Clerk

IN THE PASCUA YAQUI TRIBAL COURT

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE,

Plaintiff,

Vs.

JAIMEZ, FRANK,

Defendant.

CASE NO. CR-16-236

ee

JUDGMENT ON A JURY VERDICT

This action was tried by a jury with Judge Melvin R. Soof presiding, and the jury has

rendered a verdict, a copy of which is attached to this judgment.

IT IS ORDERED that the defendant having been found guilty by the jury as to Count

One, Malicious Mischief, Domestic Violence/ sRall be ordered to appear for a sentencing

hearing on that Count on June 7, 2017 at 9:00 a In she event the defendant is transferred to

another detention facility, the court shall issue a it port order.

THIS IS THE ONLY NOTICE OF HEARING YOU SHALL RECEIVE.

Date: May 9, 2017 Signature of Clerk of Court

oH Phase ;

Clerk of Court

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IN THE PASCUA YAQUI TRIBAL COURT

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE,

a ) CR-17-236

Plaintiff, )

) SPECIAL VERDICT FORM

vs. )

JAIMEZ, FRANK,

Defendant. 4

We, the jurors, duly empaneled and sworn in the above entitled action, upon our oath, do find as

follows:

ISSUE: CHECK O

OX BELOW:

Q.1: Do you find that the Tribe has proven beyond a reasonable doubt that Mr.

Jaimez is a spouse, intimate partner, or dating partner of Ms. Sewa Leyvar —NO AYES

Q.2: Do you find that the Tribe has proven beyond a reasonable doubt that an act

a _NO X YES

of domestic violence occurred?

[If the jury’s response to Q.1 or Q.2 is “No,” then the jury MUST find the defendant not guilty below.

If the juty’s response to Q.1 AND Q.2 is “Yes,” then the jury must go to Q.3 below, and find that the

defendant is either guilty or not guilty.]

C GE: CHECK O.

BOX BELOW:

Q.3 CT. 1: MALICIOUS MISCHIEF — DOMESTIC __ NOT GUILTY x GUILTY

VIOLENCE

SO DATED this_7_ day of “lay , 20/7

i (— .

IN THE PASCUA YAQUI TRIBAL COURT

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, ) Case No. CR-16-236

Plaintiff, )

Vs. ) ORDER DENYING DISMISSAL

JAIMEZ, FRANK, ) DUETOLACK OF SUBJECT MATTER

Defendant. ) JURISDICTION

)

On February 20, 2017, the court reviewed the defendant’s motion to dismiss, Tribe’s

response and defendants reply, the parties’ stipulation to allow the court to rule on defendant’s

motion to dismiss without an evidentiary hearing or oral argument, and the court should deny

the defendant’s motion to dismiss, for lack of good cause shown.

Federal law defines a “crime of violence” to include such elements as "the use,

attempted use, or threatened use of physical force against the person or ‘property of another.”18

U.S.C. 16(a). (emphasis added). There are no reported cases as to whether destruction of

property of an intimate partner constitutes an act of “violence.” However, the “use” of force

against one’s property may constitute a “crime of violence” under 18 U.S.C. 16(a), in light of

a recent Supreme court case expanding what may be considered as “use” of force constituting

a crime of domestic violence that triggered a finding of a violation of the federal gun prohibition

against persons convicted of domestic violence.

In a recent U.S. Supreme Court case, Voisine v. U.S, (citation omitted), (2016) in

analyzing what misdemeanor domestic violence offenses constitute a crime for purposes of

application of 18 U.S.C. 922(g¢)(9), (federal gun prohibition against possession of weapons by

a convicted domestic violence perpetrators), the court expanded the definition of domestic

violence to include reckless assault. - The Supreme Court defines “use” of force to include an

act of employing something, and that the qualifying act be volitional. The court states:

Consider a couple of examples to see the ordinary meaning of the word “use” in this

Context. . . How suppose a person throws a plate against the wall near where his wife is

Standing. The hurl counts as a “use” of force even if the husband did not know for

certain (or have as an object), but only recognized a substantial risk, that a shard from

the plate could ricochet and injure his wife. . . the word “use” does not exclude from

922 (g)(9)’s compass an act of force carried out in conscious disregard of its substantial

risk of causing harm.

a C

Voisine v. U.S., at p. 6.

The Court concluded that the definition of a “misdemeanor crime of violence” contains no

exclusion for convictions based on reckless behavior:

A person who assaults another recklessly uses force, no less than one who carries out

that same act knowingly or intentionally.

Destructive acts that aren’t directed at a victim may still be considered domestic violence.

Although destruction of property is typically considered a vandalism crime, in the context of

intimate party relationships, destroying property of an intimate partner may be considered as

abusive behavior, supporting an alleged crime of domestic violence.

The Ametican Academy of Experts in Traumatic Stress through numerous articles on

domestic violence (citations omitted), have defined various forms of what conduct constitutes

domestic violence, that include physical abuse, emotional abuse and verbal, or non-verbal

abuse. Forms of emotional abuse include verbal and non-verbal abuse, such as threats or

intimidation to gain compliance, destruction of the victim’s personal property and possessions,

or threat to do so. Violence to an object, such as a wall, piece of furniture, pets, in the presence

of an intended victim, can be used as a way. of instilling fear of further violence.

The Department of Justice, Office of Violence against Women, in its web site,

www.justice,eov/ovw/domestic-violence, defines domestic violence as a “pattem of abusive

behavior that is used by one partner to gain or maintain power or control over another intimate

partner. . . .Psychological abuse: elements of psychological abuse include — but are not limited

to — causing fear by intimidation; . . destruction of pets and property.” (emphasis added).

The probable cause statement in this case contains the description that Mr. Jaimez tried:

to break a small table inside the residence but that he never touched her but that she is

afraid of him and was crying when officers arrived at the residence.

Context is everything. The mere breaking of a piece of furniture, in and of itself, may

constitute only malicious mischief or vandalism, but when the “use” of force on someone’s

personal property nearby an alleged victim is used with intent to create an atmosphere of

intimidation of an intimate partner, such an act may constitute an act of domestic violence.