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3:11 AM Mon, Dec. 17th

Jury acquits Leyva in attempted murder case

PRESCOTT – Citing the absence of a key witness and their belief that the defendant was protecting himself, jurors found 38-year-old auto mechanic Alberto Leyva not guilty Thursday of attempted murder and aggravated assault.

After six hours of deliberation, the jury panel returned acquittals on all but a possession of dangerous drugs charge against Leyva, whom Judge William Kiger ordered released from the Yavapai County Jail, where he has been since his surrender and arrest Jan. 27.

Kiger will sentence Leyva on the drug charge Dec. 28. If defense attorney Ken Ray's belief that Leyva has no prior drug or violent convictions is correct, Leyva will receive a term of probation pursuant to Proposition 200, which precludes prison time for first- and second-time drug offenders.

Leyva's arrest came shortly after he admitted he fired two handguns at a Cadillac containing two men, Juan Benegas, 23, and Juan Ramirez, 22, in the parking lot of an apartment building near the intersection of Campbell and Madison streets.

One round struck Ramirez, who testified in the 3-week trial, in the jaw, knocking out several teeth. But even that injury was not enough to convince jurors to return a guilty verdict for aggravated assault, despite prosecutor Sheila Polk's insistence that a claim of self-defense is no safeguard when an innocent third party suffers an injury in an incident.

The Jan. 27 shooting was the culmination of several weeks of hostility between Leyva and Benegas. The two were once roommates, but had a falling-out over the alleged theft of some wheel rims. On the day of the shooting, Benegas and Ramirez were at a hilltop residence on Lincoln Street. They saw Leyva at the apartment of another man and, after an exchange of insults, drove down the hill and sparked the confrontation.

"He (Ramirez) knew when he got in that car and went down the hill he wasn't going to a picnic," a juror said after the verdict.

During his own testimony, Leyva said he began smoking methamphetamine about a month prior to the incident, and had begun packing two pistols, a .38 special revolver and a .25-caliber semi-automatic, for his own protection.

Even though Leyva admitted he smoked speed earlier in the day of the shooting, jurors refuted Polk's contention that Leyva was paranoid and only imagining that Benegas threatened him with a gun before he fired his own.

The juror said that Leyva's acts after the incident – when he tried to call the police and then surrendered willingly on their arrival – as well as his demeanor on the witness stand, swayed them toward acquittal.

"We felt that the main thing here is that Mr. Leyva came forth," the juror said. "He didn't run, he said he did the shooting, he gave up the guns and the drugs.

"If everything else he said seemed true, why not believe he saw a gun?"

Polk, who will replace the retiring Chick Hastings as Yavapai County Attorney next month and won election on a "zero-tolerance" platform, allowed that Leyva's apparent truthfulness on the witness stand was difficult to overcome.

"I think it's one thing in theory to be tough on crime," she said, "but when you face a particular individual on the stand it's a tougher job."

Nonetheless, she reiterated her promise to fight violent crimes, especially those that involve hard drug use.

"I'm real disappointed because this is exactly the type of crime we need to keep out of Prescott and Yavapai County," she said. "I'm still vigorously committed to prosecuting these kinds of cases."

A juror, though, thought that perhaps the prosecution could have been more vigorous in locating Benegas, whose only appearance in the trial was through the transcript of a police interview in which he changed his story several times.

"If he (Benegas) had stayed here and would have testified, we would have had something to wipe out our reasonable doubt," the juror said. "He, of all people, should have stayed in Arizona and come to court. We didn't think the state put forth as much effort to find him as they really could have."

Ray said the verdict was an affirmation of what his client said from the beginning of the case.

"It tells me this was self-defense, just like we thought, just like my client said it was all along," he said.

Leyva's conviction for possession of dangerous drugs is a Class 4 felony and will prohibit him from possessing firearms in the future.