Opinion
No. 1 CA-CR 13-0312
04-17-2014
STATE OF ARIZONA, Appellee, v. VERNON MICHAEL GRAHAM, Appellant.
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Louise Stark 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NOTICE: NOT FOR PUBLICATION.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 Maricopa County
No. CR2012-127821-001
The Honorable Lisa Ann VandenBerg, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Louise Stark
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in which Judge John C. Gemmill and Judge Randall M. Howe joined. THUMMA, Judge:
¶1 Defendant Vernon Michael Graham (Graham) appeals from his aggravated assault conviction and resulting sentence, arguing the superior court erred in admitting "other act" evidence contrary to Arizona Rule of Evidence 404(b). Because Graham has demonstrated no error, his conviction and sentence are affirmed.
FACTS AND PROCEDURAL HISTORY
This court views the facts "in the light most favorable to sustaining the verdict, and resolve[s] all reasonable inferences against the defendant." State v. Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997) (citation omitted).
¶2 In May 2012, Graham shared a studio apartment in Phoenix with the victim (J.M.) and J.M.'s fiancée (T.L.). On May 26, 2012, Graham entered the apartment to retrieve a radio. At that time, J.M. and T.L. were in the bathroom, and J.M. was showering. Unable to find the radio Graham knocked on the bathroom door demanding the radio. T.L. told Graham to wait until they were finished using the bathroom. T.L. then heard Graham rummaging through the apartment. Minutes later, Graham again knocked on the bathroom door demanding the radio. T.L. again told Graham to wait until they were finished using the bathroom. Graham then kicked in the bathroom door and "came towards" T.L.
¶3 J.M. jumped out of the shower and pushed Graham out of the bathroom into the main area of the apartment. Graham and J.M. then engaged in "full blown wrestling," crashing into furniture and rolling around on the floor, but with neither landing a punch. At one point, J.M. pushed Graham to the floor, "knock[ing] him flat on his butt." Graham then stood up, produced a pocket knife and said "I'm going to cut you up." Graham attacked J.M. with the knife, slashing him on the right forearm. J.M. backed out of the apartment onto the second-story breezeway, and Graham followed. Graham continued to swing the knife, punching J.M. with his free hand, until he cornered J.M. on the breezeway balcony. J.M. screamed for help as Graham continued to punch him and slashed his thumb and wrist. Bystanders in the common area of the complex yelled at Graham to stop and called 911.
¶4 Eventually, Graham stopped the attack and walked downstairs to the common area of the complex. An Officer of the Phoenix Police Department arrived and bystanders pointed him to Graham. The Officer approached Graham, and before any questioning, Graham said "I'm the cause of the problem." The Officer asked Graham if he had any weapons, and Graham revealed the bloodstained pocket knife. Graham was then handcuffed and places in the back of a marked patrol car. Graham, who initially had been "very calm and compliant," began to thrash and kick at the car's windows. Graham was removed from the car and restrained with a "hobble rope" that tied into his handcuffs. Even then, Graham continued to kick at the car windows and scream unintelligibly all the way to the police station.
¶5 The State charged Graham with one count of aggravated assault (intentionally placing another person in reasonable apprehension of imminent physical injury using a deadly weapon or dangerous instrument), a Class 3 dangerous felony, pursuant to Arizona Revised Statutes (A.R.S.) sections 13-1203 and -1204(A)(2) (2014). Before trial, Graham moved in limine to exclude testimony regarding his behavior in the patrol car after his arrest, claiming such evidence was irrelevant and unfairly prejudicial. After hearing argument, the superior court stated:
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
At this point I'm going to deny the Motion in Limine. Certainly as testimony unfolds, if you believe that there is a need to raise the issue again, you can raise an objection at that point, and I will make a ruling when there's some actual evidence put on the record. But at this point, I'm going to deny the Motion.
¶6 At trial, the State presented the testimony of several witnesses and a surveillance video of the portion of the struggle that spilled onto the breezeway of the complex. The responding Officer testified to Graham's behavior in the patrol car after his arrest without any timely objection. The jury convicted Graham as charged and found the offense dangerous. The superior court sentenced Graham to the presumptive term of 11.25 years, with 321 days of presentence incarceration credit. This court has jurisdiction over Graham's timely appeal pursuant to A.R.S. §§ 13-4031, -4033(A)(1) and Arizona Rule of Criminal Procedure 31.3.
DISCUSSION
¶7 Graham's sole argument on appeal is that the superior court improperly admitted testimony about Graham's behavior in the patrol car after his arrest as "other act" evidence pursuant to Arizona Rule of Evidence (Rule) 404(b). Graham's motion in limine, however, did not assert a Rule 404(b) objection and instead, was based on lack of relevance (as defined in Rule 401) and danger of unfair prejudice (as defined in Rule 403). Moreover, after the motion in limine was denied without prejudice, Graham did not object when the evidence was offered at trial. "[A]n objection on one ground does not preserve the issue on another ground." State v. Lopez, 217 Ariz. 433, 435, ¶ 4, 175 P.3d 682, 684 (App. 2008) (citing State v. Hamilton, 177 Ariz. 403, 408, 868 P.2d 986, 991 (App. 1993)). Accordingly, because Graham did not press a Rule 404(b) objection at trial, this court reviews the issue for fundamental error resulting in prejudice. Lopez, 217 Ariz. at 435, ¶ 4, 175 P.3d at 684 (citing State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005)). This analysis requires Graham to "establish both that fundamental error exists and that the error in his case caused him prejudice." Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607 (citations omitted).
¶8 As applicable here, Rule 404(b) states that:
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.As applied, Rule 404(b) requires that the evidence be: (1) offered for a proper purpose under Rule 404(b); (2) relevant under Rule 401 and (3) and not unfairly prejudicial under Rule 403. State v. Terrazas, 189 Ariz. 580, 582-83, 944 P.2d 1194, 1196-97 (1997) (discussing Huddleston v. United States, 485 U.S. 681, 691-92 (1988)).
When evidence is admitted pursuant to Rule 404(b), if requested by the party opposing the admission of the evidence, the superior court should give an appropriate limiting instruction. Terrazas, 189 Ariz. at 582, 944 P.2d at 1196. Because Graham did not request such a limiting instruction, that analysis does not apply here.
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¶9 The State offered the evidence of Graham thrashing and kicking in the patrol car as "inconsistent with his theory of self-defense, inconsistent with the actions you would expect from someone who's claiming to be a victim." Evidence of "other acts" properly may be admissible to show mental state or intent. See State v. Villalobos, 225 Ariz. 74, 80, ¶ 19, 235 P.3d 227, 233 (2010) (citing State v. Smith, 130 Ariz. 74, 76, 634 P.2d 1, 3 (App. 1981)). In addition, rebutting self-defense falls within the motive exception to the general prohibition on admitting "other acts" evidence. Ariz. R. Evid. 404(b). Because Graham lashed out after apprehension, that conduct properly could be offered to demonstrate intent or motive inconsistent with claimed self-defense. Accordingly, the evidence was offered for a proper purpose under Rule 404(b).
¶10 Next, the evidence must be relevant, meaning it must have a tendency to make a fact of consequence more or less probable. Ariz. R. Evid. 401. "The standard of relevance is not particularly high." State v. Fish, 222 Ariz. 109, 124, ¶ 48, 213 P.3d 258, 273 (App. 2009) (citing State v. Taylor, 169 Ariz. 121, 124, n.3, 817 P.2d 488, 491, n.3 (1991)). Graham's thrashing and kicking in the patrol car demonstrated intent or motive inconsistent with self-defense. Accordingly, the evidence was relevant.
¶11 Finally, the probative value of the evidence must not be substantially outweighed by unfair prejudice. Ariz. R. Evid. 403. "Unfair prejudice results if the evidence has an undue tendency to suggest decision on an improper basis, such as emotion, sympathy, or horror." State v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046, 1055 (1997) (citing State v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993)). The responding Officer testified succinctly and plainly regarding Graham's behavior in the patrol car and stated that just before the outburst, Graham had been "very calm and compliant." Graham left the Officer's testimony uncontroverted. This record does not suggest that the testimony aroused improper emotion, sympathy or horror, or otherwise ran afoul of Rule 403. Accordingly, the evidence was not inadmissible under Rule 403.
¶12 For all of these reasons, the superior court properly admitted the evidence at trial pursuant to Rule 404(b). Accordingly, Graham has not shown error in admitting such evidence, let alone error that was fundamental with resulting prejudice. See Henderson, 210 Ariz. at 568, ¶ 26, 115 P.3d at 608.
CONCLUSION
¶13 Because the superior court did not err in admitting evidence of Graham's behavior in the patrol car after his arrest as "other act" evidence pursuant to Rule 404(b), Graham's conviction and sentence are affirmed.