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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    JOHN JOSEPH MURPHY, Appellant.

                             No. 1 CA-CR 14-0273
                               FILED 10-01-2015


         Appeal from the Superior Court in Maricopa County
                      No. CR2013-447130-001
       The Honorable Christine E. Mulleneaux, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Cory Engle
Counsel for Appellant
                           STATE v. MURPHY
                           Decision of the Court



                      MEMORANDUM DECISION

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


C A T T A N I, Judge:

¶1            John Joseph Murphy appeals from his convictions of
aggravated assault and disorderly conduct and the resulting sentences. For
reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Murphy and the victim had been neighbors in Mesa. In early
2013, the victim moved into a trailer with her boyfriend approximately a
block away. Murphy continued to visit the victim daily or weekly after the
move.

¶3              In late September 2013, the victim temporarily ran out of
funds for food and electricity, and Murphy offered to help by selling a coin
collection and lending the victim money. Murphy returned to the victim’s
house the next day. Over the course of two hours, Murphy drank more
than half of a large bottle of whiskey, then became angry when the victim
and her boyfriend teased him about a rumor that he had called the police
on another neighbor. Agitated, Murphy said that he needed to kill the
neighbors who were accusing him or, failing that, he might as well kill
himself. Murphy threw a “wad of money” at the victim’s boyfriend and
left the trailer.

¶4            The victim left the trailer for a while, and when she returned,
Murphy had returned with a gun. The victim eventually went into the
trailer and stood across the room from Murphy, near her boyfriend. She
saw Murphy loading a bullet into the gun, waving the gun back and forth,
and pointing the gun briefly at her chest.

¶5            After the victim’s boyfriend left the trailer, she told Murphy
to get out, and then she went into the backyard to call 9-1-1. While the
victim was on the phone, Murphy left the trailer and walked back toward
his neighbor’s house. Maricopa County Sheriff’s deputies found Murphy
standing outside the house with a pistol pointed at a porch window.
Murphy was arrested at the scene.


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                           STATE v. MURPHY
                           Decision of the Court

¶6           A jury found Murphy guilty of aggravated assault and
disorderly conduct, both dangerous offenses, and Murphy timely appealed.
We have jurisdiction under Arizona Revised Statutes (“A.R.S.”) § 13-4033.1

                               DISCUSSION

¶7            Murphy argues the superior court erred by allowing
testimony suggesting that he suffered from an unspecified mental illness.
During trial, mental illness was overtly or obliquely mentioned on three
occasions. First, the victim testified, without objection, that although
Murphy was very friendly and open-hearted, he was “not stable per se as
far as the top educated person” and was “very e[c]centric.” Second, the
victim described her motive for calling 9-1-1 as that she “would want
[Murphy] to be evaluated for mental illness. . . . That he needed to be
evaluated for mental illness and to be medicated if necessary so these
situations wouldn’t happen any further.” Defense counsel objected to this
testimony as “[e]xtremely prejudicial and irrelevant,” but the court
overruled the objection. Finally, a sheriff’s deputy testified, without
objection, that many of the people living in the community where Murphy
lived had methamphetamine, alcohol, and “psychological problems that
haven’t been addressed properly.”

¶8            We review evidentiary rulings for an abuse of discretion,
deferring to the superior court’s assessment of relevance and unfair
prejudice. State v. Smith, 215 Ariz. 221, 232, ¶ 48, 159 P.3d 531, 542 (2007).
Absent a timely objection at trial, however, we review only for
fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, 567, ¶¶
19–20, 115 P.3d 601, 607 (2005).

¶9            Murphy asserts that the victim’s and the deputy’s statements
regarding mental illness were irrelevant to the facts at issue, were unfairly
prejudicial, and improperly suggested that an unspecified mental illness
equated to violence. But the victim’s statements described her motives for
calling the police, and Murphy’s defense put the victim’s motives directly
at issue. Beginning in opening statements, defense counsel suggested that
Murphy had never pointed a gun at the victim, but rather that the victim
had called the police to have Murphy arrested so she could steal his money,
characterizing the victim’s financial difficulties as her motive to falsely
report an aggravated assault. In closing, defense counsel again asserted



1     Absent material revisions after the relevant date, we cite a statute’s
current version.


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                            STATE v. MURPHY
                            Decision of the Court

that Murphy had not committed a crime, but that the victim had a motive
to fabricate her story because she wanted Murphy’s money and valuables.

¶10            The victim’s explanation that she had called 9-1-1 because she
thought Murphy “needed to be evaluated for mental illness and to be
medicated if necessary so these situations wouldn’t happen any further”
was thus directly relevant to rebut Murphy’s defense. See Ariz. R. Evid. 401
(defining relevant evidence as that which “has any tendency to make a
[material] fact more or less probable”). Because this testimony rebutted the
cornerstone of his defense, it potentially carried substantial probative value,
whereas the danger of unfair prejudice was comparatively slight. See Ariz.
R. Evid. 403 (stating that relevant evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice).
Moreover, even as character evidence, the testimony served a valid, non-
propensity purpose because it was relevant to the victim’s motive. See Ariz.
R. Evid. 404(a)–(b). Accordingly, the superior court did not err by allowing
this testimony.

¶11           Because Murphy did not object to the victim’s other comment
or to the deputy’s description of the neighborhood, we review these
statements only for fundamental, prejudicial error. See Henderson, 210 Ariz.
at 567, ¶¶ 19–20, 115 P.3d at 607. The victim’s initial characterization of
Murphy as very friendly and open-hearted, but “not stable per se as far as
the top educated person” and “very e[c]centric” arguably does not
implicate mental illness at all, and to the extent it does, the characterization
was permissible as relevant to the victim’s motives as described above.
And the deputy’s testimony was not directed at Murphy individually, but
rather stated his perception of general characteristics of the neighborhood.
Under the circumstances, Murphy has not shown error, much less
reversible error.




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                   STATE v. MURPHY
                   Decision of the Court

                     CONCLUSION

¶12   For the foregoing reasons, we affirm.




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