                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                        STATE OF ARIZONA, Appellee,

                                         v.

                   ANDREA BELLE LASHWAY, Appellant.

                              No. 1 CA-CR 19-0284
                               FILED 2-11-2020


            Appeal from the Superior Court in Mohave County
                         No. S8015CR201500709
            The Honorable Billy K. Sipe Jr., Judge Pro Tempore

                                   AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Law Offices of Harriette P. Levitt, Tucson
By Harriette P. Levitt
Counsel for Appellant
                           STATE v. LASHWAY
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Kenton D. Jones and Judge D. Steven Williams joined.


B R O W N, Judge:

¶1           Andrea Belle Lashway appeals from her convictions and
sentences for five counts of sale of dangerous drugs, three counts of
possession of dangerous drugs, and one count of possession of drug
paraphernalia. For the following reasons, we affirm.

                             BACKGROUND

¶2            After his arrest, B.C., an informant, agreed to work with the
Mohave Area General Narcotics Enforcement Team (“MAGNET”) in
exchange for a probation deal relating to his own criminal charges. B.C.
called Detective Wilson when he identified a buyer—Lashway. Wilson and
B.C. arranged “buys” to facilitate opportunities for B.C. to purchase
methamphetamine (“meth”) from Lashway.

¶3            Before the first buy, and with the assistance of other officers,
Wilson met with B.C., searched him, searched his vehicle, provided him
with surveillance equipment, and then sent him to complete the buy.
During the buy, the officers were able to observe B.C. the entire time.
Another person ended up selling meth to B.C. on behalf of Lashway. B.C.
gave the meth he had purchased to the officers. The officers searched B.C.
and his car after the buy.

¶4              The second buy followed the same protocol—B.C. contacted
Wilson, B.C. and his car were searched, and surveillance equipment was set
up prior to the buy. This time, Lashway met B.C. in a parking lot. She got
into his car, sold him meth, and left. B.C. and his car were searched, and he
gave the meth he purchased to the officers. The third buy was initiated in
the same manner as the first two. This time, B.C. went to a residence to buy
meth from Lashway. At the fourth buy, B.C. met Lashway at the same
location as the previous buy. At the fifth buy, B.C. and Lashway met in a
parking lot.

¶5           Lashway was arrested after police obtained a search warrant
and found pills later identified as diazepam and clonazepam in her purse,


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                           STATE v. LASHWAY
                           Decision of the Court

as well as a baggie containing meth in her pants. A grand jury indicted
Lashway for sale of a dangerous drug (counts 1-5), possession of dangerous
drugs (counts 6, 8, and 9), and possession of drug paraphernalia (count 7).

¶6            On the morning of the third day of trial, the State filed a
motion under Arizona Rule of Evidence (“Rule” 609) seeking to preclude
Lashway from impeaching B.C. with any prior convictions older than ten
years. The State also asserted that Lashway had failed to provide advance
notice of her intent to impeach B.C. with the convictions that were older
than ten years. Although the court expressed its frustration that the State
had not raised the issue in a timely manner, after an exchange with counsel
the court granted the State’s motion in part, finding the convictions from
1997, 2003, and 2005 were precluded, but that Lashway could impeach B.C.
with (1) the 1999 conviction because it involved an act of dishonesty, and
(2) the 2009 conviction because it fell within the ten-year limit of Rule 609.
The jury found Lashway guilty on all counts, and she timely appealed.

                               DISCUSSION

¶7             Lashway contends that the probative value of B.C.’s prior
convictions from more than ten years ago substantially outweighs its
prejudicial effects and that the evidence should have been admitted. “We
review preclusion of evidence for a clear abuse of discretion.” State v.
Duarte, 246 Ariz. 338, 344–45, ¶ 20 (2018).

¶8             Under Rule 609, evidence of a conviction is generally
inadmissible “if more than 10 years have passed since the witness’s
conviction or release from confinement for it, whichever is later.” Ariz. R.
Evid. 609(b). Prior felony convictions over ten years old are admissible only
if the probative value substantially outweighs the prejudicial effect, the
admission is supported by specific facts and circumstances, and the adverse
party has reasonable written notice of the proponent’s intent to admit the
prior convictions. Id.; State v. Todd, 244 Ariz. 374, 378, ¶ 6 (App. 2018).
These additional requirements are “consistent with the notion that a
criminal conviction’s probative value regarding a witness’ credibility
declines as it becomes more remote in time.” Shirley J. McAuliffe, Arizona
Practice Law of Evidence § 609:2, at 359 (4th ed. 2008).

¶9           We find no abuse of discretion here. As noted, at the time of
trial B.C. had five prior convictions. The superior court allowed
impeachment on the 1999 conviction because it involved a dishonest act, see
Duarte, 246 Ariz. at 345, ¶ 25, and the 2009 conviction because it occurred
within the past ten years, see Ariz. R. Evid. 609(b). The 1997, 2003, and 2005



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                            STATE v. LASHWAY
                            Decision of the Court

convictions, all for possession of a controlled substance, fell outside of the
ten-year limit of Rule 609, according to the record before us. Despite not
being questioned about three of the prior convictions, during cross-
examination B.C. stated he had been arrested six times and acknowledged
he had a felony record. B.C. discussed at length his experience using drugs.
The State elicited testimony from B.C. that he had used meth on and off for
19 years. The State also asked B.C. specifically about the 1999 and 2009
felony convictions, but Lashway did not. Lashway contends that
preclusion of the impeachment evidence relating to the 1997, 2003, and 2005
convictions “went to the essence of the case.” However, Lashway did not
provide specific facts and circumstances supporting their admission. See
Todd, 244 Ariz. at 378, ¶ 6. And on appeal, she does not even argue, much
less demonstrate, how the probative value of admitting those prior
convictions would outweigh its prejudicial effect.

¶10            Lashway argues the superior court erred in granting the
State’s motion to preclude the impeachment evidence because the motion
was submitted after defense counsel had already informed the jury about
the five prior convictions. She contends the preclusion made it impossible
for her to prove a fact her counsel asserted during opening statements. But
Lashway fails to acknowledge that three of the prior convictions were
presumptively inadmissible as impeachment evidence pursuant to Rule
609, and nothing in the record shows she sought a ruling from the court
prior to opening statements. See State v. Green, 200 Ariz. 496, 499, ¶ 11 (2001)
(explaining that convictions older than ten years should be admitted into
evidence “very rarely and only in exceptional circumstances”).1 Lashway
also asserts the court’s ruling prevented her from asserting B.C. was setting
her up to get himself out of trouble. However, B.C. acknowledged he was
arrested and became an informant after that arrest. Information about
B.C.’s prior drug use did come into evidence, as did his agreement with
MAGNET to work as an informant in exchange for probation after being
arrested. We therefore reject Lashway’s contention that her constitutional
right to due process was violated because she did not have the opportunity
to fully confront and cross-examine B.C.


1      Lashway seems to suggest the superior court abused its discretion in
granting the motion because it was untimely. But she has made no
showing, either at trial or on appeal, that she suffered prejudice based upon
her inability to question B.C. about the prior convictions that were older
than ten years or how such questioning would have made a difference in
the outcome of the case.



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                            STATE v. LASHWAY
                            Decision of the Court

¶11            Lashway also argues the superior court did not make any
specific determination on the State’s Rule 609 motion to preclude the
evidence and applied the wrong standards for admissibility. However, the
record shows the court considered counsel’s arguments regarding the
State’s motion and appropriately explained the standard it was applying
under Rule 609 when the ruling was announced. Thus, the court acted
within its discretion in determining that three of B.C.’s prior convictions did
not have probative value substantially outweighed by any prejudicial
effects. See Ariz. R. Evid. 609(b)(1).2

                                CONCLUSION

¶12           Based on the foregoing, we affirm Lashway’s convictions and
sentences.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




2       Given our conclusion, we need not address Lashway’s contention
that she provided advance notice to the State of her intent to impeach B.C.
with the remote convictions based upon her filing of a Rule 15.1 notice
requesting that the State disclose the prior convictions of its witnesses.




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