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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  SHANNON PAUL SWISHER, Appellant.

                             No. 1 CA-CR 16-0335
                               FILED 6-15-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR 2015-127113-001
            The Honorable James R. Rummage, Judge Pro Tem

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Tennie B. Martin
Counsel for Appellant
                            STATE v. SWISHER
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia K. Norris joined.


C A M P B E L L, Judge:

¶1             Shannon Paul Swisher appeals his convictions and sentences
for aggravated assault of a peace officer, a class 5 felony, Arizona Revised
Statutes (“A.R.S.”) section 13-1204(A)(8)(a), and resisting arrest, a class six
felony, A.R.S. § 13-2508(A)(1). On appeal, Swisher argues the superior court
abused its discretion in admitting evidence of Swisher’s first encounter with
Officer J.B., about an hour and a half prior to Swisher’s arrest, under
Arizona Rule of Evidence 404(b) and Arizona Rule of Evidence 403. We
disagree and affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2              At trial, Officer J.B. testified that on the day he arrested
Swisher, he had first encountered Swisher at a market when the officer
responded to a call near the market at 9:30 a.m. Officer J.B. testified that at
the market, Swisher appeared “intoxicated,” and he could “smell the
alcohol coming off of [Swisher]” when he approached. Because the
attendants at the market wanted Swisher “trespassed from the property,”
Officer J.B. told Swisher he had to leave. Swisher, however, did not comply,
and instead became “[v]ery belligerent [and] very confrontational.” Officer
J.B. eventually walked Swisher out of the market and onto the sidewalk.
The officer stayed for a few minutes to make sure that Swisher continued
to walk away from the market and then left.

¶3             Officer J.B. testified that his second encounter with Swisher
occurred when he responded to a call about an hour and a half later
regarding a drunk person causing a disturbance at a fast food restaurant.
When the officer arrived, he saw Swisher was lying on the grass behind a
little wall next to the fast food restaurant. Officer J.B. told Swisher “he
needed to leave,” and Swisher immediately became confrontational and
belligerent. He got up and walked away, but continued to “come back at
[Officer J.B.] and get right in [his] face” while yelling and cursing and
“carrying on about the prior incident.” Officer J.B. twice used a forceful
push to create distance between himself and Swisher, but because Swisher


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                            STATE v. SWISHER
                            Decision of the Court

was intoxicated, Officer J.B. “did not hit [Swisher] very hard for fear that he
would fall down because he was already unstable.”

¶4            Officer J.B. next grabbed Swisher’s elbow and started to escort
Swisher off the property, but Swisher hit him on the left side of his face with
a tennis shoe. Officer J.B. then attempted to arrest Swisher, but Swisher
started pulling away “swinging his arms.” Officer J.B. managed to get
Swisher on the ground, but because Swisher attempted to pull away and
had pulled his knees into his chest, Officer J.B. was unable to place him in
handcuffs. He kneeled on top of Swisher to prevent him from moving his
chest and head, and radioed for assistance.

¶5             At trial, L.R. and C.R. testified that they had been at a nearby
restaurant during the incident, and had observed Officer J.B. take Swisher
down to the ground. L.R. testified that when Swisher was on the ground he
was “swinging around” as Officer J.B. was attempting to put Swisher’s
hands behind his back. C.R., a former police officer, testified he walked over
to assist the officer because he believed Officer J.B. needed help. C.R.
testified that when he arrived, Swisher was on the ground, his “legs were
flopping” and he “[would not] stay still.” C.R. assisted Officer J.B. by
pulling out Swisher’s legs so that he could place handcuffs on Swisher.

¶6           Prior to trial Swisher filed a “Motion in Limine To Preclude
The Introduction of Any Evidence or Testimony Relating To Mr. Swisher’s
Prior Contacts With Law Enforcement And Mr. Swisher’s Intoxication.” In
that motion he sought to preclude Officer J.B.’s testimony about the prior
encounter, in which Swisher had been trespassing and appeared
intoxicated.

¶7            The superior court held an evidentiary hearing and denied
the motion, finding that the State had established by clear and convincing
evidence that the prior encounter between Officer J.B. and Swisher had
occurred at the market and was relevant. It further found the information
admissible for a number of proper purposes under the identity, intent, and
absence of mistake or accident exceptions in Rule 404(b). Finally, the
superior court found that evidence as to the first encounter was more
probative than prejudicial. Ariz. R. Evid. 403.

                               DISCUSSION

¶8            Swisher argues that Officer J.B.’s testimony regarding the first
encounter, see supra ¶ 2, was improper other acts evidence under Rule
404(b). Reviewing the superior court’s ruling for an abuse of discretion, we
disagree. State v. Salamanca, 233 Ariz. 292, 295, ¶ 8 (App. 2013) (appellate


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                           STATE v. SWISHER
                           Decision of the Court

court reviews superior court’s ruling on admission of evidence for an abuse
of discretion) (citation omitted).

¶9            Under Rule 404(b) evidence of “other crimes, wrongs, or acts”
is inadmissible when offered to prove “the character of a person in order to
show action in conformity therewith.” Rule 404(b), however, permits such
evidence for non-propensity purposes, including “proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” To be admissible, evidence that is offered for a non-
propensity purpose must be relevant and more probative than prejudicial
under Rule 403. State v. Leteve, 237 Ariz. 516, 522, ¶ 11 (2015) (citation
omitted). If “other acts evidence” is admitted, the court should provide the
jury with a limiting instruction. Id.

¶10           Here, Swisher fails to argue that the superior court abused its
discretion when it found that Rule 404(b)’s exception for intent or lack of
mistake or accident applied; instead he simply asserts that “defense counsel
debunked [the State’s] arguments.” See In re J.U., 241 Ariz. 156, 161, ¶ 18
(App. 2016) (appellate court generally declines to address issues not
adequately argued with appropriate citation to supporting authority)
(citing ARCAP 13(a)(7) (appellant’s brief should contain supporting legal
authority for each issue and reasons for each contention)).

¶11            The superior court did not abuse its discretion in finding
evidence of the first encounter admissible under the intent and lack of
mistake or accident exceptions in Rule 404(b). Swisher claimed he was not
resisting arrest when Officer J.B. took him to the ground, but, rather, he was
moving his arms and legs because he was involuntarily reacting to pain
from an injury to his face. Thus, Swisher’s intent, and lack of mistake or
accident, when he was “swinging” and “flopping,” see supra ¶ 5, were
directly contested. For that reason, the superior court did not abuse its
discretion in finding that these exceptions to Rule 404(b) applied.

¶12            Swisher additionally argues that the superior court should
not have admitted Officer J.B.’s testimony because “the probative value of
the prior incident was substantially outweighed by the danger of confusing
the issues or misleading the jury.” Ariz. R. Evid. 403 (court may exclude
relevant evidence if probative value substantially outweighed by unfair
prejudice, confusing issues, misleading jury). We disagree. There was
minimal danger of prejudice, confusing the issues, or misleading the jury
from the testimony; for the reasons discussed, see supra ¶ 11, Officer J.B.’s
testimony as to the first encounter was highly probative as to whether
Swisher actively resisted arrest and, therefore, was not subject to exclusion


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                            STATE v. SWISHER
                            Decision of the Court

under Rule 403. See State v. Schurz, 176 Ariz. 46, 52 (1993) (relevant evidence
is generally adversely probative to the opposing party, but “prejudice”
under Rule 403 “means an undue tendency to suggest decision on improper
basis. . . such as emotion, sympathy, or horror”) (quotations and citations
omitted). Finally, the superior court provided the jury with a limiting
instruction as required.

¶13           Accordingly, the superior court did not abuse its discretion in
admitting evidence of Officer J.B.’s first encounter with Swisher. 1 We
therefore need not address Swisher’s argument that the admission did not
constitute harmless error.

                               CONCLUSION

¶14          For the foregoing reasons, we affirm Swisher’s convictions
and sentences.




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




1    On May 19, 2017, Swisher filed a “Motion for Substitution of Counsel”
with this court to substitute Tennie B. Martin for Christopher V. Johns as
defense counsel. We grant the motion.


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