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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     KIRK GEORGE BEARD, Appellant.

                             No. 1 CA-CR 14-0508
                               FILED 11-19-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-109860-001
             The Honorable Jerry Bernstein, Judge Pro Tem

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Christopher V. Johns
Counsel for Appellant
                            STATE v. BEARD
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Patricia A. Orozco and Judge Maurice Portley joined.


D O W N I E, Judge:

¶1             Kirk George Beard appeals his convictions and sentences for
two counts of aggravated driving under the influence (“DUI”) while his
driver’s license was suspended. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY1

¶2             Beard moved from California to Arizona but could not obtain
an Arizona driver’s license because his California license was suspended.
He instead received an Arizona identification card in September 2011. On
February 28, 2013, Officer Bryant stopped Beard for speeding and requested
his driver’s license. Beard admitted that his license was suspended and
offered his identification card.      Officer Bryant observed signs of
intoxication. Beard denied consuming alcohol, but a horizontal gaze
nystagmus test revealed six out of six cues of impairment. Beard then
admitted drinking two glasses of wine.

¶3            A sample of Beard’s blood was obtained pursuant to a
warrant after he refused to voluntarily submit to testing. Subsequent
analysis and retrograde extrapolation determined his blood alcohol content
(“BAC”) was between .125 and .151 within two hours of the traffic stop.

¶4            The State charged Beard with two counts of aggravated DUI,
a class four felony. See Ariz. Rev. Stat. (“A.R.S.”) §§ 28-1381(A)(1), (2),
-1383(A)(1), (L)(1). The State disclosed its intent to use Arizona Motor
Vehicle Division (“MVD”) records that showed prior convictions for
driving on a suspended license. Beard moved in limine to redact
information from those records pertaining to his prior DUI convictions. The



1      “We view the evidence in the light most favorable to sustaining the
verdicts and resolve all inferences against appellant.” State v. Nihiser, 191
Ariz. 199, 201 (App. 1997).



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                            STATE v. BEARD
                           Decision of the Court

State agreed to the redactions and made photocopies of the redacted,
certified driving records.

¶5            At trial, an MVD custodian of records established the
authenticity of the redacted photocopy of Beard’s Arizona driving record.2
The exhibit was admitted into evidence, and it showed Beard had four
convictions in Arizona for driving on a suspended license, arising out of
four separate incidents between 2010 and 2012.

¶6            Recognizing that the MVD record custodian could not
authenticate Beard’s California driving records, the State indicated it would
introduce the unredacted certified copy or, in the alternative, asked defense
counsel to stipulate to admission of a photocopy that had been redacted.
Because the defense did not want the jury to see the redacted information,
which included “things like failure to complete DUI program [and]
excessive blood alcohol level,” counsel stipulated to admission of the
redacted photocopy (“California Driving Record”). The California Driving
Record showed that Beard received multiple notices that his license was
suspended as of December 2006, March 2008, May 2008, and August 2009.

¶7           The jury found Beard guilty as charged. The court imposed
concurrent four-month prison terms, followed by three years of supervised
probation. Beard timely appealed. We have jurisdiction pursuant to A.R.S.
§§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

                              DISCUSSION

¶8            Beard argues the trial court committed fundamental error by
admitting the California Driving Record.3 He contends the exhibit was not
properly authenticated under Arizona Rule of Evidence (“Rule”) 901. He
also argues the court fundamentally erred by admitting the exhibit in
violation of Rule 403.

¶9           To prevail under fundamental error review, Beard must show
that error occurred, the error was fundamental, and he was prejudiced
thereby. See State v. Henderson, 210 Ariz. 561, 567–68, ¶¶ 20–22 (2005).
Fundamental error is error that “goes to the foundation of his case, takes
away a right that is essential to his defense, and is of such magnitude that
he could not have received a fair trial.” Id. at 568, ¶ 24. A defendant “must

2     Beard was tried in absentia. He was present for sentencing.
3     We assume, without deciding, that defense counsel’s stipulation to
admission of the California Driving Record does not constitute invited error
under the circumstances presented.

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                             STATE v. BEARD
                            Decision of the Court

show that a reasonable jury, applying the appropriate standard of proof,
could have reached a different result.” Id. at 569, ¶ 27. Prejudice must be
shown in the record and may not be based solely on speculation. See State
v. Munninger, 213 Ariz. 393, 397, ¶ 14 (App. 2006).

¶10          Assuming arguendo that the court erred by admitting the
photocopy of the California Driving Record because it was not properly
authenticated, we nevertheless affirm because Beard has failed to establish
that any such error was both fundamental and prejudicial. At trial, Beard
challenged the BAC evidence and the claim he was impaired, not his
knowledge of the license suspension. Indeed, in closing arguments,
defense counsel addressed Beard’s refusal to voluntarily submit to testing
by arguing that the consequence for that refusal — a license suspension —
was meaningless:

       So why would he care if they were just going to suspend it
       again? It was already suspended, so that doesn’t tell us
       anything either.

       It’s entirely possible that Mr. Beard didn’t care because it was
       already suspended, so why bother letting them take blood to
       find out he had a little bit of alcohol in his system even if he
       wasn’t impaired.

Moreover, as Beard acknowledges in his opening brief, he admitted during
the traffic stop that his license was suspended. As such, admission of the
California Driving Record did not take away a right essential to Beard’s
defense. See Henderson, 210 Ariz. at 568, ¶ 24.

¶11           We similarly reject Beard’s challenge based on Rule 403.
Decisions under Rule 403 involve a balancing process that is “truly
discretionary with the trial judge.” Readenour v. Marion Power Shovel, 149
Ariz. 442, 450 (1986). Because the trial court is best situated to conduct the
Rule 403 balancing test, an appellate court will reverse its ruling only for a
clear abuse of discretion. State v. Canez, 202 Ariz. 133, 153, ¶ 61 (2002). We
find no such abuse here. The trial court ruled that the California Driving
Record was not unduly prejudicial and found it relevant to the notice issue.
We agree. The exhibit was relevant to an element of the offense, and in its
redacted state, its probative value was not substantially outweighed by
unfair prejudice. Cf. State v. Schurz, 176 Ariz. 46, 52 (1993) (Not all harmful
evidence is unfairly prejudicial, as evidence that is relevant and material
will generally be adverse to the opponent.).




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                          STATE v. BEARD
                         Decision of the Court

¶12         Beard has not carried his burden of demonstrating
fundamental, prejudicial error.

                           CONCLUSION

¶13          For the reasons stated, we affirm Beard’s convictions and
sentences.




                               :ama




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