                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                   STETMAN KEITH WELLS, Appellant.

                             No. 1 CA-CR 16-0224
                               FILED 4-27-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-121239-001
            The Honorable David V. Seyer, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By David A. Simpson
Counsel for Appellee

The Law Offices of David Michael Cantor, Phoenix
By Jonathan Hupp
Counsel for Appellant
                             STATE v. WELLS
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Donn Kessler and Judge Patricia A. Orozco1 joined.


T H U M M A, Judge:

¶1            A jury convicted Stetman Keith Wells of two counts of driving
under the influence (DUI), aggravated because his drivers’ license was
suspended, both Class 4 non-dangerous, non-repetitive felony offenses. See
Ariz. Rev. Stat. (A.R.S.) §§ 28-1381(A)(1) & (A)(2) (2017).2 The court
sentenced Wells to concurrent four-month prison terms, followed by
concurrent two-year probation grants. This court has jurisdiction over
Wells’ timely appeal pursuant to Article 6, Section 9, of the Arizona
Constitution and A.R.S. §§ 12-120.21 (A)(1), 13-4031, and -4033(A)(1). On
appeal, Wells argues the superior court: (1) committed fundamental error
by allowing the State’s expert to testify that Wells was impaired and (2)
abused its discretion by sustaining an objection to a question asking a police
officer whether Wells said his drivers’ license was not suspended. Because
Wells has shown no error, his convictions, sentences and probation grants
are affirmed.

                       FACTS3 AND DISCUSSION

¶2            At trial, Wells elected to testify and admitted that he was
driving while impaired in May 2015 when he was pulled over by Chandler
police. Wells admitted to simple DUI, but claimed that he did not have
notice that his driver’s license had been suspended, meaning he was not

1The Honorable Patricia A. Orozco, Retired Judge of the Court of Appeals,
Division One, has been authorized to sit in this matter pursuant to Article
VI, Section 3 of the Arizona Constitution.

2Absent material revisions after the relevant dates, statutes cited to refer to
the current version unless otherwise indicated.

3This court views the evidence in the light most favorable to sustaining the
conviction and resolves all reasonable inferences against Wells. State v. Karr,
221 Ariz. 319, 320 ¶ 2 (App. 2008). The facts presented are limited to those
necessary to address the arguments raised by Wells on appeal.


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                             STATE v. WELLS
                            Decision of the Court

guilty of aggravated DUI. During his trial testimony, Wells repeatedly
admitted he was driving “impaired.” Wells’ attorney conceded the point
during closing argument, beginning by telling the jury Wells “testified, said
that he was impaired, right? He drank. He had alcohol in his system. That
means that he’s impaired to the slightest degree, so that’s not an issue in the
trial.”

¶3            On appeal Wells now argues it was fundamental error for the
State’s expert to testify during direct examination, after defining the
difference between “impaired” and “drunk,” as follows:

              Q. And is there an opinion within the scientific
              community for when a person is impaired for
              the purposes of driving?

              A. Yes.

              Q. What is that opinion?

              A. Currently that level and opinion is a .08 for a
              regular automobile.

              Q. And is that for all people?

              A. That’s for all people regardless of their
              tolerance to alcohol.

              Q. And do you have an opinion to whether
              someone is impaired from the task of driving if
              their blood alcohol concentration would be a
              .228 [which other evidence showed was Wells’
              blood alcohol level at the relevant time]?

              A. Do I have an opinion? Yes.

              Q. What is that opinion?

              A. That that’s not a safe level consistent with
              driving.

Wells argues this “is inadmissible ultimate issue testimony by an expert
witness [who] was flatly telling the jury how to decide the case in violation
of Ariz. R. Evid. 704.”




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                             STATE v. WELLS
                            Decision of the Court

¶4              At trial, Wells did not object to this testimony, meaning this
court’s review on appeal is limited to fundamental error. Ariz. R. Crim. P.
21.3(c); State v. Henderson, 210 Ariz. 561, 567 ¶¶ 19–20 (2005). “Accordingly,
[Wells] ‘bears the burden to establish that “(1) error exists, (2) the error is
fundamental, and (3) the error caused him prejudice.”‘“ State v. James, 231
Ariz. 490, 493 ¶ 11 (App. 2013) (citations omitted).

¶5              “An opinion is not objectionable just because it embraces an
ultimate issue.” Ariz. R. Evid. 704(a). However, “[i]n a criminal case, an
expert witness must not state an opinion about whether the defendant did
or did not have a mental state or condition that constitutes an element of
the crime charged or of a defense. Those matters are for the trier of fact
alone.” Ariz. R. Evid. 704(b). Wells has not shown that the testimony states
an opinion as to whether he had “a mental state or condition” constituting
an element of the charged offenses. Even if he had made such a showing,
see State v. Herrera, 203 Ariz. 131, 135 ¶¶ 7-8 (App. 2002) (stating, under prior
version of Ariz. R. Evid. 704, that testimony defendant was “‘impaired to
the slightest degree’ was also inappropriate”), Wells cannot show
fundamental error resulting in prejudice.4

¶6              This testimony, although admitted in a different order, was
consistent with Wells’ theory and trial testimony that he was driving while
impaired (admitting simple DUI) but did not know that his license was
suspended (seeking to negate the elements of aggravated DUI). Wells
testified repeatedly that he was “impaired.” And his attorney confirmed
that testimony during closing, adding Wells’ impairment was not a
disputed “issue in the trial.” Given Wells’ own admissions, and his theory
at trial, he has not shown that the testimony of the State’s expert caused him
prejudice. Accordingly, Wells has failed to show fundamental error
resulting in prejudice. See James, 231 Ariz. at 493 ¶ 11.

¶7             Wells also argues that the superior court abused its discretion
in not allowing him to introduce his recorded statement that he did not
know his license was suspended. On the night of the incident, a police
officer interviewed Wells at the police station. This officer testified at trial
during direct examination that, during this interview, Wells admitted that
he had been drinking that night and was driving the vehicle. During cross-
examination, Wells’ counsel asked whether, during this interview, Wells
“denied that his driver’s license was suspended or revoked.” The State
objected on hearsay grounds, Wells’ counsel conceded it was hearsay but

4Given this conclusion, the court need not, and expressly does not, address
the State’s argument that Wells invited the error.


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                             STATE v. WELLS
                            Decision of the Court

that it “completes the story” and the court sustained the State’s objection.
Although the parties and the court further discussed the issue later that day
and the next day, with the court clarifying that the statement was not
admissible under the residual exception to the rule against hearsay, Ariz.
R. Evid. 807, the ruling sustaining the objection did not change. Wells was,
however, allowed to testify that in response to the officer asking whether
his driving privileges were suspended, he said “No. I didn’t think—I didn’t
think my license was suspended. I thought I was okay.”

¶8            On appeal, Wells argues the superior court abused its
discretion by precluding Wells from eliciting trial testimony from the officer
that Wells “had stated that his license was not suspended or revoked”
during the interview. As to Wells’ “completes the story” argument, the
Arizona Rules of Evidence contain no express “completes the story”
provision for the admissibility of evidence. To the extent the concept is a
part of Arizona’s evidence law, it appears to inform the “intrinsic evidence
doctrine” relevant to determine whether Arizona Rule of Evidence 404
applies. See State v. Ferrero, 229 Ariz. 239, 243 ¶ 20 & n.4 (2012). There is no
argument that Rule 404 would apply to this evidence.

¶9            On appeal, Wells argues the statement was part of a report
prepared by the officer. “If a party introduces all or part of a writing or
recorded statement, an adverse party may require the introduction, at that
time, of any other part--or any other writing or recorded statement--that in
fairness ought to be considered at the same time.” Ariz. R. Evid. 106. Thus,
Wells argues, he should have been allowed to elicit trial testimony from the
officer that Wells said his license was not suspended or revoked.

¶10           Even if Wells had timely raised Rule 106, it is not clear that
rule would have any application. The State did not seek to introduce “all or
a part of” that report prepared by the officer, as would be required to
implicate Rule 106. Instead, the State used the report to refresh the officer’s
recollection during testimony, a use that implicates disclosure obligations
but not admission of that document in evidence. See Ariz. R. Evid. 612.

¶11           Wells, however, did not cite Rule 106 at trial and did seek the
admission of the report in evidence, meaning he failed to preserve any
claim of error absent fundamental error. See Ariz. R. Evid. 103(a), (e). As
noted above, during his cross-examination, Wells testified that he told the
officer during the interview that his license was not suspended. On this
record, Wells has failed to show any resulting prejudice, even assuming
error, by the superior court sustaining the State’s hearsay objection. See
James, 231 Ariz. at 493 ¶ 11.


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                           STATE v. WELLS
                          Decision of the Court

                             CONCLUSION

¶12           Wells’ convictions, resulting sentences and probation grants
are affirmed.




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




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