Opinion
No. 1 CA-CR 13-0298
06-26-2014
STATE OF ARIZONA, Appellee, v. PAMELA JEAN DENBESTEN, Appellant.
Arizona Attorney General's Office, Phoenix By Alice Jones Counsel for Appellee Mohave County Legal Advocate, Kingman By Jill L. Evans Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Mohave County
No. S8015CR201100180
The Honorable Rick A. Williams, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Alice Jones
Counsel for Appellee
Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge Margaret H. Downie and Judge Donn Kessler joined. JONES, Judge:
¶1 Pamela Jean Denbesten appeals from her convictions and resulting sentences for one count of possession of dangerous drugs for sale (methamphetamine) and one count of possession of drug paraphernalia. She argues the trial court committed reversible error by not conducting an evidentiary hearing on her motion in limine seeking to preclude prior-act evidence and that it also erred in admitting that evidence. Finding no error, we affirm.
The record reflects Denbesten changed her last name from Simmons in 2011.
BACKGROUND
"We view the facts in the light most favorable to sustaining the verdict[s]." State v. Payne, 233 Ariz. 484, 496 n.1, 314 P.3d 1239, 1251 n.1 (2013).
¶2 On November 23, 2010, police officers executed a search warrant at Denbesten's home and discovered approximately seventy-four grams of methamphetamine separated into three plastic bags. The drugs were located in a purse in Denbesten's master bedroom closet. Police also found, within the purse, two small digital scales of a type methamphetamine dealers use to facilitate drug transactions. Denbesten's bedroom was locked. Police also located a new, unassembled surveillance camera system in her living room. Other individuals, including M.M. and her teenage son, resided with Denbesten and Denbesten's husband at the home. No one was at Denbesten's home when police executed the warrant.
M.M. testified that she did not have access to Denbesten's bedroom, which was always locked. She also testified that Denbesten's husband kept his "things" in a guest bedroom and that he moved out of the house a few days before police executed the warrant. This evidence leads to a reasonable inference that Denbesten solely possessed the methamphetamine. See State v. Chabolla-Hinojosa, 192 Ariz. 360, 365, ¶ 18, 965 P.2d 94, 99 (App. 1998) (noting possession need not be exclusive or personal to establish constructive possession) (quoting State v. Carroll, 111 Ariz. 216, 218, 526 P.2d 1238, 1240 (1974)).
¶3 On January 6, 2011, Denbesten telephoned the lead detective of the search team, and admitted drugs were present in her closet. During the telephone call, Denbesten started crying and saying she did not want to go to prison. She did not indicate that anyone else was responsible for the methamphetamine police found in her closet.
¶4 The State subsequently charged Denbesten with one count each of possession of dangerous drugs for sale (methamphetamine) and possession of drug paraphernalia. Five days before trial, Denbesten filed a motion in limine seeking to prohibit the presentation of M.M.'s anticipated testimony regarding her previous use of methamphetamine with Denbesten, and also M.M.'s testimony that she would buy the drug from Denbesten. Denbesten argued the expected testimony was improper character evidence under Arizona Rule of Evidence 404(b), which provides that "evidence of other crimes, wrongs, or acts is not admissible to prove" a defendant's character "in order to show action in conformity therewith." Denbesten further argued the evidence was not subject to one of the proper uses of character evidence as provided in Rule 404(b), and she contended the evidence would be "overly prejudicial." See Ariz. R. Evid. 403 (giving the trial court discretion to "exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice"); Ariz. R. Evid. 404(b) (other act evidence may be admissible when offered to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident").
¶5 Denbesten did not request an evidentiary hearing on the motion. The morning trial commenced, the trial court heard argument on Denbesten's motion and denied it. In reaching its conclusion, the trial court found the proffered testimony's probative value was not substantially outweighed by its prejudicial nature. Further, the trial court noted that a limiting instruction to the jury regarding other act evidence would be appropriate.
¶6 At trial, and over Denbesten's renewed objection on Rule 404(b) grounds, M.M. testified as expected. She stated she used methamphetamine with Denbesten when they worked together as waitresses at some point after 2006. M.M. also testified having used the drug with Denbesten a few days before police discovered the methamphetamine in Denbesten's closet. Further, M.M. revealed Denbesten would give her the methamphetamine, but she did not specifically testify that she purchased it from Denbesten. Indeed, M.M. stated that when she was "getting meth" she did not even "know[] the prices."
¶7 After the close of evidence, the trial court instructed the jury as follows:
Evidence of other acts has been presented. You may consider these acts only if you find that the State has proved by clear and convincing evidence that the defendant committed these acts. You may only consider these acts to establish the defendant's motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or accident. You must not consider these acts to determine the defendant's character or character trait or to determine that the defendant acted in conformity with the defendant's character or character trait and therefore committed the charged offense.
¶8 The jury convicted Denbesten as charged, and the trial court imposed an aggravated sentence of 12 years' imprisonment for the drug possession conviction and a mitigated, concurrent sentence of 2.5 years' imprisonment for the paraphernalia conviction. Denbesten timely appealed, and we have jurisdiction under Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2014), 13-4031 (2014), and -4033(A)(1) (2014).
We cite current versions of statutes absent material revisions that have occurred since the relevant date.
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DISCUSSION
¶9 Denbesten argues the trial court erred in denying her motion in limine. First, she contends the trial court erred by not conducting an evidentiary hearing to consider "foundational requirements" before admitting M.M.'s testimony.
¶10 Because Denbesten did not request an evidentiary hearing or otherwise object to the trial court's failure to sua sponte conduct one, we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (a defendant's failure to object to an alleged trial error results in fundamental error review). "Before we may engage in a fundamental error analysis, however, we must first find that the trial court committed some error." State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342 (1991).
¶11 No error, fundamental or otherwise, occurred here. Rule 404(b) does not require the trial court to conduct an evidentiary hearing. State v. LeBrun, 222 Ariz. 183, 186, ¶ 10, 213 P.3d 332, 335 (App. 2009) (observing that neither Rule 404(b) nor Rule 404(c) requires an evidentiary hearing). Furthermore, Denbesten has not provided any other authority, nor do we know of any, that requires a trial court to sua sponte conduct an evidentiary hearing for purposes of addressing an objection to anticipated testimony on Rule 404(b) grounds. Denbesten cites State v. Terrazas, 189 Ariz. 580, 944 P.2d 1194 (1997), but her reliance is misplaced. That case merely clarifies that "the profferer [of prior-act evidence] must prove by clear and convincing evidence that the prior bad acts were committed and that the defendant committed the acts." Id. at 582, 944 P.2d at 1196 (emphasis in original). Terrazas does not hold that a hearing is required when a party challenges proposed testimony on Rule 404(b) grounds. Here, no evidentiary hearing was required; the trial transcript reveals the parties agreed as to the substance of M.M.'s testimony, and Denbesten did not challenge the proffered testimony's veracity.
¶12 Denbesten also argues M.M.'s testimony was simply inadmissible under Rule 404(b) and the evidence was unduly prejudicial relative to its probative value. See Ariz. R. Evid. 403. We disagree.
¶13 "We review the admission of prior act evidence under Rule 404(b) for abuse of discretion." State v. Beasley, 205 Ariz. 334, 337, ¶ 14, 70 P.3d 463, 466 (App. 2003). Other-act evidence is admissible if: (1) the evidence is admitted for a proper purpose; (2) the evidence is relevant; (3) the evidence is not unfairly prejudicial under Rule 403; and (4) the judge gives "an appropriate limiting instruction upon request." State v. Nordstrom, 200 Ariz. 229, 248, ¶ 54, 25 P.3d 717, 736 (2001), abrogated on other grounds by State v. Ferrero, 229 Ariz. 239, 243, ¶ 20, 274 P.3d 509, 513 (2012). As noted, to be admissible, "the profferer must prove by clear and convincing evidence that the prior bad acts were committed and that the defendant committed the acts." Terrazas, 189 Ariz. at 582, 944 P.2d at 1196 (emphasis omitted). In addition, under Rule 403, "the trial court must determine that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice and must, if requested, give a proper limiting instruction." State v. Mills, 196 Ariz. 269, 274-75, ¶ 24, 995 P.2d 705, 710-11 (App. 1999). With respect to Rule 403, "[u]nfair prejudice 'means an undue tendency to suggest decision on an improper basis,' . . . such as emotion, sympathy or horror." State v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993) (quoting Fed. R. Evid. 403, 1972 Advisory Committee Notes).
¶14 Here, M.M.'s testimony was relevant to counter Denbesten's apparent defense that she did not knowingly or intentionally possess the methamphetamine and scales, but rather other residents of her home did. The fact that Denbesten had previously used methamphetamine and provided the drug to M.M. is relevant to show Denbesten knew what methamphetamine is, and also to show the drugs did not somehow "just appear" in Denbesten's closet. And because M.M. was an eyewitness to Denbesten's use and dealing of methamphetamine, the State met the clear and convincing standard. See United States v. Moore, 732 F.2d 983, 988-89 (D.C. Cir. 1984).
¶15 Further, the transcript of the arguments regarding the 404(b) issue indicates the parties argued both the probative value and any unfair prejudice that could result from the admission of M.M.'s testimony. The transcript also reflects the trial court, in concluding the evidence was admissible, balanced the testimony's probative value against its potential for undue prejudice. "The trial court is in the best position to balance the probative value of challenged evidence against its potential for unfair prejudice." State v. Harrison, 195 Ariz. 28, 33, ¶ 21, 985 P.2d 513, 518 (App. 1998). Nothing in the record indicates M.M.'s testimony regarding Denbesten using methamphetamine and providing it to M.M. "suggest[ed] decision on an improper basis . . . such as emotion, sympathy, or horror." Schurz, 176 Ariz. at 52, 859 P.2d at 162. Moreover, the trial court properly instructed the jurors on the proper, limited purposes for which they were to consider the prior-act evidence. See Rev. Ariz. Jury Instr. (RAJI) Stand. Crim. 26A. Accordingly, we conclude the trial court did not err in ruling M.M.'s testimony regarding Denbesten's prior acts was admissible under Rule 404(b). Beasley, 205 Ariz. at 337, ¶ 15, 70 P.3d at 466.
CONCLUSION
¶16 Denbesten's convictions and sentences are affirmed.