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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               MAURICE TYRONE HOLMES, JR., Appellant.

                             No. 1 CA-CR 14-0443
                               FILED 9-24-2015


           Appeal from the Superior Court in Coconino County
                        No. S0300CR201200914
                The Honorable Jacqueline Hatch, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Myles A. Braccio
Counsel for Appellee

Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant


                       MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Kent E. Cattani joined.
                           STATE v. HOLMES
                           Decision of the Court

H O W E, Judge:

¶1            Maurice Tyrone Holmes, Jr. appeals his conviction and
sentence for manslaughter. Holmes argues that the trial court erred in
admitting statements the victim made shortly before her death, in
excluding other statements the victim made, and in limiting his expert
witness’s testimony. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Holmes and the victim were in a romantic relationship. One
day, the victim and her friend agreed to meet at a library. The victim was
with Holmes at his mother’s house and whispered to her friend over the
phone that she wanted “a little bit of . . . breathing room” because Holmes
was “overbearing” and “controlling” and “he didn’t want her to have a life
outside of him.” The victim never showed up.

¶3            Holmes’ mother’s neighbor was in her yard that day when
she heard Holmes screaming, “Help, help. She’s been shot.” When they
were inside Holmes’ mother’s house, Holmes led the neighbor to a
bedroom, where she saw the victim on the floor with “a massive amount of
blood on the right side of her chest that ran down her side.” The victim was
not breathing.

¶4            Holmes called the police and handed the neighbor his phone.
Following the operator’s orders, the neighbor got Holmes out of the house,
and within moments the police arrived. The police cleared the house and
found the victim with blood on the side of her face and on her chest. When
the paramedics tried to help her, she had already died. The victim had
suffered a gunshot wound, with the bullet entering her neck under her right
ear, traveling through several arteries, and exiting the other side of her
neck. An autopsy of the victim later found methamphetamine and other
drugs in her bloodstream.

¶5             In the house, the police found a bloodstained gun on a small
table. An officer asked Holmes whether he knew of the gun, and Holmes
said that he found it next to the victim and that he moved it to the table.

¶6            When one officer asked what happened, Holmes said that he
was taking a shower while the victim was arguing with her cousin. He then
heard a boom, ran out of the shower, and saw that the victim was hurt.
While talking with Holmes, the officer noticed that “he had a distinct body
odor of someone who had not bathed in a couple of days and he was dry,



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                           STATE v. HOLMES
                           Decision of the Court

including his hair.” The officer also noticed that Holmes’ palms were
bloody, which meant he would leave red stains on whatever he touched.

¶7            When another officer asked what happened, Holmes’
explanation changed slightly. This time he said that he heard the victim
“talking” with “someone” and then he heard a shot. He added that when
he came out of the shower, he saw the victim slumped over a chair and the
gun near her right hand. He also added that he moved her to the floor and
the gun to the table.

¶8            The police inspected the house and found no evidence that
Holmes had taken a shower. Meanwhile, other officers located and
investigated the victim’s cousin and confirmed that he was at work all day.
Holmes was taken to a hospital because he was in shock. There, the police
interviewed him, and the detective reviewed the same scenario several
times with Holmes and noted that the details continued to change. The
detective consequently asked Holmes whether he would continue the
interview at the police station; Holmes agreed.

¶9             At the station, Holmes explained that while he was in the
shower, he heard the victim on the phone arguing with a man. He
continued to shower and then heard a loud bang, but did not think
anything of it. After he finished showering, he needed his toothbrush and
toothpaste and yelled to the victim to bring them. Because she did not
respond, he went to look for her. He found her sitting on a chair, with blood
on the left side of the chair and the gun next to her right hand. On his way
out of the house to get help, he picked up the gun and put it on a table. He
explained that he got blood on himself because he was following the police
operator’s direction to check the victim’s pulse.

¶10          The detective reviewed the chronology of events with
Holmes, and Holmes repeatedly changed his story by adding details about
why the victim’s cousin would kill her. After the interview, the detective
arrested Holmes, and the State charged him with second degree murder.

¶11          The trial court held several evidentiary hearings to address
the admissibility of various statements made by the victim. The State had
moved to admit the victim’s statements that she had made to her friend the
day she died, including that Holmes was “overbearing” and “controlling”
and that she wanted “breathing room,” but Holmes objected. Because
Holmes’ defense was suicide or accident, however, the court admitted the
statements as evidence of Holmes’ motive and the victim’s state of mind
and her present-sense impression before death.



                                     3
                           STATE v. HOLMES
                           Decision of the Court

¶12           Holmes sought to admit the victim’s various statements about
being depressed and suicidal in the months leading to her death, but the
State objected. Holmes’ grandmother testified that Holmes once showed
her a text message he received in which the victim said that if they did not
get back together, she did not have anything to live for. But his
grandmother could not remember if she personally saw the text or whether
the victim had sent it and gave varying versions of what it said during her
testimony. The court precluded the testimony because it was not relevant
to any material fact, it was inadmissible hearsay, and its prejudicial value
outweighed any probative value.

¶13           Holmes’ mother testified that after Child Protective Services
(“CPS”) took the victim’s children, the victim spoke to her about various
issues, including being unhappy and not understanding why CPS took her
children. His mother could only describe the circumstances of the
statements, however, and admitted that the victim never told her that she
was suicidal and never made any statements making his mother think that
she was suicidal. The court precluded the testimony because Holmes could
not establish foundation for the statements, Arizona Rule of Evidence
803(3) did not “allow a description of the factual occurrence that
engendered the victim’s state of mind,” and the statements’ prejudicial
value outweighed any probative value.

¶14            Holmes’ mother also testified that the victim gave her a sealed
letter several days before her death. His mother put the letter in her car,
found it two months later, and gave it to Holmes’ attorney. The letter was
simply addressed to “Baby” and signed by “Me.” The court precluded the
letter because Holmes could not establish foundation for it and it was
inadmissible hearsay.

¶15           Holmes’ sister testified that during the months before the
victim’s death, the victim talked to her about being unhappy and
powerless. The court precluded his sister from testifying to any statements
the victim made to her because Holmes could not establish foundation, the
statements were not relevant to any material fact, and they had no probative
value. The court found that Holmes’ sister could not testify to what the
specific statements were or when the victim made the statements.

¶16          The victim’s acquaintance testified that the victim texted her:
“My mom took my children and I just want to kill myself.” The court
precluded the text message because Holmes could not establish foundation,
it was inadmissible hearsay, and its prejudicial value outweighed any
probative value. The court found that the women’s relationship was only


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                            STATE v. HOLMES
                            Decision of the Court

“casual and involved the exchange of pain pill[s]” and any statements the
victim made could have been “to gain sympathy and acquire pills rather
than be a statement of the victim’s real intent to kill herself.”

¶17            At trial, Holmes argued that he was trying to stop the victim’s
suicide attempt and the gun fired as they struggled over it. Holmes sought
to introduce expert testimony that methamphetamine in a person’s system
amplifies the person’s emotions and makes her more likely to have suicidal
ideations. Holmes contended that the testimony was relevant to educate the
jurors on how methamphetamine abuse related to suicide and to help them
evaluate his suicide defense. After a voir dire examination of the expert, the
trial court limited his testimony. Because the proffered testimony was about
long-term drug abusers, and Holmes presented no evidence that the victim
was such an abuser, the court found that the testimony was irrelevant, that
it would mislead and confuse the jury, and that it was highly prejudicial.

¶18          The jury found Holmes guilty of the lesser-included offense
of manslaughter. The trial court sentenced him to 15.5 years’ imprisonment
with 557 days of presentence incarceration credit. Holmes timely appeals.

                               DISCUSSION

              1. Admission of the Victim’s Statements

¶19           Holmes first argues that the trial court erred in admitting the
victim’s statements to her friend the day she died because the statements
were hearsay and not admissible under any of the exceptions. We review
the admission of evidence pursuant to an exception to the hearsay rule for
an abuse of discretion. State v. Tucker, 205 Ariz. 157, 165 ¶ 41, 68 P.3d 110,
118 (2003). Abuse of discretion is “an exercise of discretion which is
manifestly unreasonable, exercised on untenable grounds or for untenable
reasons.” State v. Woody, 173 Ariz. 561, 563, 845 P.2d 487, 489 (App. 1992).
The trial court did not abuse its discretion in admitting the statements as
evidence of the victim’s state of mind under Arizona Rule of Evidence
803(3).

¶20           A victim’s state of mind is relevant to show the defendant’s
motive, State v. Fulminante, 193 Ariz. 485, 496 ¶ 34, 975 P.2d 75, 86 (1999), or
when a defendant raises the defense of accident or suicide, State v.
Christensen, 129 Ariz. 32, 36, 628 P.2d 580, 584 (1981). Hearsay is a statement,
other than one made by the declarant while testifying at trial or hearing,
offered to prove the truth of the matter asserted. Ariz. R. Evid. 801(c).
Hearsay is generally inadmissible, however, unless it satisfies an exception
to the hearsay rule. Ariz. R. Evid. 802. One exception permits the admission


                                       5
                            STATE v. HOLMES
                            Decision of the Court

of “[a] statement of the declarant’s then-existing state of mind (such as
motive, intent, or plan) or emotional, sensory, or physical condition (such
as mental feeling, pain, or bodily health)[.]” Ariz. R. Evid. 803(3).

¶21            Here, the trial court did not err in admitting the statements as
evidence of the victim’s state of mind. Holmes made the victim’s state of
mind relevant when he pursued the defense of suicide or accident in the
course of attempting to stop a suicide. Holmes made it clear throughout the
pretrial proceedings and trial that to support his defense, he would submit
evidence that at the time of her death, the victim felt she had nothing to live
for because CPS took her children, she lost her home, and Holmes wanted
to end their relationship. The victim’s statements to her friend were relevant
to rebut this defense.

¶22            Further, the statements were relevant to show that when the
victim made them, she did not intend to commit suicide that day and was
not so enamored with Holmes that she felt she would rather die than live
without him. Consequently, the statements were relevant to show the
victim’s state of mind in light of Holmes’ suicide defense, and the court did
not err in admitting them. Because we find that the court did not err in
admitting the statements under the state-of-mind exception, we need not
address whether it erred in admitting the evidence as a present-sense
impression. See Tucker, 205 Ariz. at 165 ¶ 41, 68 P.3d at 118.

              2. Exclusion of the Victim’s Statements

¶23           Holmes next argues that the trial court erred in excluding the
victim’s statements to his grandmother, mother, sister, and her
acquaintance and a letter she wrote. We review evidentiary rulings for an
abuse of discretion. State v. Smith, 215 Ariz. 221, 232 ¶ 48, 159 P.3d 531, 542
(2007). The trial court did not abuse its discretion in excluding any of the
proffered statements.

                     2a. Grandmother and the Text Message

¶24            Holmes argues that the trial court erred in excluding his
grandmother’s testimony about a text message Holmes showed her from
the victim. But the trial court did not err because the testimony was not
relevant to any material fact. Evidence is relevant if it has “any tendency to
make a fact more or less probable than it would be without the evidence”
and “the fact is of consequence in determining the action.” Ariz. R. Evid.
401. As an initial matter, the record shows that Holmes’ grandmother could
not remember the text’s wording and could only testify to its “effect.” His
grandmother believed that the victim sent the text only because Holmes


                                      6
                            STATE v. HOLMES
                            Decision of the Court

told her it was from the victim. Even if the text was from the victim and the
general “effect” was as his grandmother testified, the text showed only that
the victim was upset two to three weeks before her death and did not show
any intent or plan. The record also shows that the victim and Holmes were
ultimately back together at least two days before the victim’s death.
Consequently, the trial court properly excluded Holmes’ grandmother’s
testimony about the text message.

                      2b. Statements to Holmes’ Mother

¶25           Holmes next argues that the trial court erred in excluding the
victim’s statements to his mother about being unhappy. But the trial court
did not err because Holmes did not establish foundation for the testimony.
To authenticate an evidentiary item, the “proponent must produce
evidence sufficient to support a finding that the item is what the proponent
claims it is.” Ariz. R. Evid. 901(a). Holmes’ mother described only the
factual circumstances engendering the victim’s state of mind, not the
statement itself. Given the nature of Holmes’ mother’s testimony, Holmes
offered no other evidence to support his claim that the victim actually made
any statements to his mother about being unhappy. Further, Holmes’
mother admitted that she heard nothing from the victim suggesting that she
was suicidal. Thus, the trial court properly excluded Holmes’ mother’s
testimony about the victim’s statements.

                      2c. Statements to Holmes’ Sister

¶26            Holmes contends that the trial court erred in excluding
statements the victim made to his sister. Holmes’ entire substantive
argument on this issue consists of the single sentence: “Appellant takes
issue with the court’s ruling that [his sister] ‘could not recall a specific
statement that was made by the victim’ and the statement was irrelevant ‘to
any material issue in this case.’” However, merely mentioning an argument
is not enough. State v. Moody, 208 Ariz. 424, 452 ¶ 9, 94 P.3d 1119, 1147
(2004). “[O]pening briefs must present significant arguments, supported by
authority, setting forth an appellant’s position on the issues raised.” State v.
Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989). Holmes has waived
and abandoned this issue because he has failed to sufficiently argue and
support it on appeal. See id.; State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830,
838 (1995). Regardless of the waiver, although Holmes’ sister initially
testified about several statements the victim allegedly made, she admitted
that she did not remember any of the victim’s specific statements nor when
the victim made any statements to her. This lack of foundation for the




                                       7
                            STATE v. HOLMES
                            Decision of the Court

victim’s statements alone was sufficient to permit the trial court to exclude
his sister’s testimony about the statements. See Ariz. R. Evid. 901(a).

                     2d. Text Message to her Acquaintance

¶27            Holmes next contends that the trial court erred in excluding a
text message in which the victim told an acquaintance, “I’m just going to
kill myself.” But the trial court did not err because Holmes did not establish
foundation for the statement. The acquaintance testified that she was not
the victim’s friend, did not know her very well, and did not even know the
victim’s real name. She and the victim, however, both used illegal drugs.
Even the acquaintance admitted that the text was “bizarre” given that she
and the victim were not friends, did not socialize with each other, and
“rarely” discussed children. Consequently, the trial court did not err in
excluding the text message the victim sent her acquaintance.

                     2e. The Letter

¶28            Holmes further asserts that the trial court erred in excluding
a letter the victim wrote to Holmes. But the trial court did not err because
Holmes did not establish foundation for the letter. Although his mother
testified that the victim gave her the letter, nothing in the record supports
his mother’s claim that the victim did so. More importantly, nothing in the
record shows that the letter was actually written by the victim. The letter
was simply addressed to “Baby” and signed by “Me.” Holmes proffered no
evidence showing that the letter was what he purported it to be. See Ariz.
R. Evid. 901(a). Thus, the trial court properly excluded the letter.

              3. Exclusion of Expert Testimony

¶29            Holmes argues finally that the trial court erred in excluding
portions of the proffered testimony of his expert witness. We review a
ruling on the admissibility of expert testimony for abuse of discretion. State
v. Varela, 178 Ariz. 319, 325, 873 P.2d 657, 663 (App. 1993). A trial court may
admit expert testimony if scientific, technical, or other specialized
knowledge will assist the trier-of-fact to determine a fact in issue. Ariz. R.
Evid. 702; State v. Hyde, 186 Ariz. 252, 276, 921 P.2d 655, 679 (1996). A court
may, however, exclude otherwise admissible expert testimony if its
probative value is substantially outweighed by a danger of misleading the
jurors. Ariz. R. Evid. 403; State v. Salazar-Mercado, 234 Ariz. 590, 594 ¶ 13,
325 P.3d 996, 1000 (2014).

¶30          The trial court did not err because the testimony was not
relevant to any material issue, and even if it was, it would mislead the


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                           STATE v. HOLMES
                           Decision of the Court

jurors. The expert testified on voir dire that the studies he relied on to
connect methamphetamine use with increased suicidal ideation addressed
people who were “dependent” on methamphetamine. But Holmes
presented no evidence that the victim was dependent on
methamphetamine or that she met any of the individual factors for
dependence. The expert admitted that “[t]he only thing we know is that she
took enough drug [sic] to give her those blood concentrations.” Also,
Holmes presented no evidence about how long the victim had used
methamphetamine or if she used it more than once. The expert admitted
that the instance of use before her death could have been the only time the
victim used the drug and that any suggestion the victim could have used
the drug over a period of several days was a guess. In short, nothing in the
record connected the studies the expert relied on to the facts of this case.
Consequently, the court did not abuse its discretion in excluding the
expert’s proffered testimony.

                             CONCLUSION

¶31          For the foregoing reasons, we affirm.




                                 :ama




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