                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                 JEFFREY THOMAS CRAVETS, Appellant.

                             No. 1 CA-CR 13-0338
                               FILED 09-04-2014


            Appeal from the Superior Court in Mohave County
                         No. S8015CR201000798
                 The Honorable Steven F. Conn, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Craig W. Soland
Counsel for Appellee

Mohave County Legal Defender’s Office, Kingman
By Ronald S. Gilleo
Counsel for Appellant
                            STATE v. CRAVETS
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Maurice Portley and Chief Judge Diane M. Johnsen joined.


B R OW N, Judge:

¶1            Jeffrey Thomas Cravets appeals from his conviction and
resulting sentence for first-degree murder. He argues the trial court erred
by providing inaccurate advice relating to his decision to testify, admitting
improper evidence, denying his motion to dismiss, and refusing a
requested jury instruction. For reasons that follow, we affirm.

                              BACKGROUND

¶2             Cravets was indicted for first-degree premeditated murder in
connection with the death of his estranged wife. The victim was found shot
to death inside her home. Cravets’ first trial ended in a hung jury and the
trial court declared a mistrial. The jury at his second trial found him guilty
as charged and he was sentenced to natural life. Cravets timely appealed.

                               DISCUSSION

              A.     Decision to Testify

¶3              Cravets argues his conviction should be reversed because the
trial court gave him inaccurate advice about the State’s ability in the second
trial to introduce portions of his testimony from the first trial. He asserts
the court’s incorrect advice violated his privilege against self-incrimination
and his right to due process as it caused him to waive the privilege and
testify at trial. Because Cravets failed to raise this issue in the trial court,
our review is limited to fundamental error.1 State v. Henderson, 210 Ariz.
561, 567, ¶ 19, 115 P.3d 601, 607 (2005). In reviewing a claim of error under


1      In his reply brief, Cravets asserts that because the trial court’s advice
infringed on his exercise of the privilege against self-incrimination, we must
review for structural error. As explained in State v. Ramos, 1 CA-CR 13-
0076, 2014 WL 3608572 at *4, ¶ 17 (Ariz. App. July 22, 2014), this type of
error does not fall within the narrow category of errors subject to structural
error review.


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                           STATE v. CRAVETS
                           Decision of the Court

the fundamental error standard, we first determine whether error occurred.
State v. Lucero, 223 Ariz. 129, 134, ¶ 12, 220 P.3d 249, 254 (App. 2009).

¶4           Before Cravets testified at his second trial, the trial court
advised him that it was entirely his decision whether to testify:

             If you want to testify, even if your attorneys
             think you shouldn’t, you will testify. If you
             decide that you do not want to testify, then you
             will not testify even if your attorneys think you
             should. If you do not testify, I will instruct the
             jury that they cannot consider that and cannot
             hold that against you. If you do testify, and
             obviously you know how this works because
             you did this before, you will be subject to cross-
             examination.

             Now, the one quirk here is that if you do not
             testify, the State may be able to use your prior
             testimony at the first trial against you, because
             those are prior statements that you made, so
             that would not be hearsay. I don’t know exactly
             how the State would propose to do that. The
             State could probably pick and choose and just
             enter statements of yours into evidence that
             they wanted. They wouldn’t necessarily have
             to just have your entire testimony admitted in
             evidence.

             I have no idea how it is that they would proceed
             to do that; but the chances are, if you do not
             testify and if there are statements that you made
             in your testimony at the first trial that the State
             wanted to use against you, they would be able
             to do that.

Cravets contends the court’s statement was contrary to Arizona Rule of
Evidence 106, which provides that “[i]f 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.”




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                             STATE v. CRAVETS
                             Decision of the Court

¶5             Rule 106 “is a partial codification of the rule of completeness.”
State v. Prasertphong, 210 Ariz. 496, 499, ¶ 14, 114 P.3d 828, 831 (2005). The
rule of completeness does not require the admission of an entire statement;
instead, only the portion of a statement “necessary to qualify, explain or
place into context the portion already introduced” need be admitted. Id. at
¶ 15 (quoting United States v. Branch, 91 F.3d 699, 728 (5th Cir. 1996)); see also
Fed. R. Evid. 106 (Advisory committee’s note states that the rule is designed
to prevent “the misleading impression created by taking matters out of
context.”). In short, Rule 106 would not have required the court to admit
Cravets’ entire previous trial testimony if the State decided to introduce
parts of it. See State v. Cruz, 218 Ariz. 149, 162, ¶ 58, 181 P.3d 196, 209 (2008)
(“Rule 106 does not create a rule of blanket admission for all exculpatory
statements simply because an inculpatory statement was also made.”).

¶6             Cravets argues the trial court misadvised him when it said the
State could “pick and choose” which of his prior statements to offer,
without letting him know that Rule 106 would allow his counsel to offer
other statements required for fairness. He therefore contends his exercise
of the right to testify was not knowing or voluntary. At most, the court’s
statement was incomplete, not incorrect. As the State argues, the court
recessed to allow Cravets to confer with his lawyer before deciding whether
to testify, and there is no indication in the record that, at the time he decided
to testify, Cravets was under the misimpression that if he did not testify the
prosecution would have the sole discretion to select which portions of his
testimony from the first trial would be admitted. The cases Cravets cites as
support concern rulings by which a trial court interferes with a defendant’s
exercise of his right to testify; no such interference occurred here.
Accordingly, the trial court did not err in advising Cravets about the State’s
possible use of portions of his prior trial testimony.

              B.      Admission of Testimony on Demeanor

¶7             The detective who interviewed Cravets at the police station
approximately ninety minutes after Cravets reported finding his wife dead
testified about Cravets’ demeanor during the interview. Cravets argues
that the trial court erred in permitting the detective to testify that during
the first portion of the interview, Cravets did not act like other people the
detective had interviewed about family members who had been killed. The
sole objection raised at trial to this testimony was “relevance.” On appeal,
however, Cravets additionally argues that this portion of the detective’s
testimony was inadmissible character or profile evidence or improper
opinion testimony.



                                        4
                            STATE v. CRAVETS
                            Decision of the Court

¶8            We review a trial court’s ruling on the admissibility of
evidence for abuse of discretion. State v. Fischer, 219 Ariz. 408, 416, ¶ 24, 199
P.3d 663, 671 (App. 2008). However, “[a] party must make a specific and
timely objection at trial in order to preserve that issue for appeal.” State v.
Hamilton, 177 Ariz. 403, 408, 868 P.2d 986, 991 (App. 1993). “If evidence is
objected to on one ground and admitted over the objection, other grounds
not specified are waived.” State v. Zuck, 134 Ariz. 509, 513, 658 P.2d 162,
166 (1982). Hence, Cravet’s general objection of “relevance” did not
preserve any other issues with respect to the admissibility of evidence.
Hamilton, 177 Ariz. at 408, 868 P.2d at 991. When an issue is not preserved
for appeal by a proper objection, we review solely for fundamental error.
Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. To prevail under this
standard of review, the defendant has the burden of showing both
fundamental error and resulting prejudice. Id. at ¶ 20.

¶9             There was no error by the trial court in overruling Cravets’
relevancy objection to the detective’s testimony. The test for relevance is
whether the offered evidence tends to make any fact of consequence more
or less probable. State v. Fulminante, 193 Ariz. 485, 502, ¶ 57, 975 P.2d 75, 92
(1999); see also Ariz. R. Evid. 401. “This standard of relevance is not
particularly high.” State v. Oliver, 158 Ariz. 22, 28, 760 P.2d 1071, 1077
(1988). “It is not necessary that such evidence be sufficient to support a
finding of an ultimate fact; it is enough if the evidence, if admitted, would
render the desired inference more probable.” State v. Paxson, 203 Ariz. 38,
41-42, ¶ 17, 49 P.3d 310, 313-14 (App. 2002) (citation omitted). The fact that
Cravets did not behave like other people who had just found out a family
member had been killed has some logical tendency to support the State’s
theory that his story about having just found his wife dead was not true.

¶10            None of the arguments raised by Cravets for the first time on
appeal regarding the detective’s testimony provides a basis for relief under
fundamental error review. Fundamental error is rare and involves “error
going to the foundation of the case, error that takes from the defendant a
right essential to his defense, and error of such magnitude that the
defendant could not possibly have received a fair trial.” Henderson, 210
Ariz. at 567, ¶ 19, 115 P.3d at 607 (citation omitted). Here, the evidence in
question consisted of rather brief testimony by the detective contrasting
Cravets’ demeanor during the interview with that of other people he had
encountered under similar circumstances. The detective did not offer any
opinion about what the contrast in demeanor meant and closed his
testimony on this subject by acknowledging that “everybody reacts
differently to different situations” and that Cravets did ask what happened
later on during the interview. Under these circumstances, even assuming


                                       5
                            STATE v. CRAVETS
                            Decision of the Court

that some portion of the detective’s testimony regarding Cravets’ demeanor
was objectionable, Cravets is unable to sustain his burden of showing the
existence of fundamental error or that the error caused prejudice.

              C.     Admission of Other-Act Evidence

¶11            Cravets contends the trial court erred in admitting other-act
evidence in violation of Arizona Rule of Evidence 404(b). Specifically,
Cravets argues that the court should not have admitted evidence of his two
prior acts of domestic violence against his wife, one in August 2006 and the
other in July 2010, just three weeks prior to her murder. We review the
admission of evidence under Rule 404(b) for abuse of discretion. State v.
Gulbrandson, 184 Ariz. 46, 60, 906 P.2d 579, 593 (1995).

¶12            Rule 404(b) provides that “evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to show
action in conformity therewith.” Such other-act evidence “may, however,
be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Ariz. R. Evid 404(b). When other-act evidence “is offered for a
non-propensity purpose, it may be admissible under Rule 404(b), subject to
Rule 402’s general relevance test, Rule 403’s balancing test, and Rule 105’s
requirement for limiting instructions in appropriate circumstances.” State
v. Ferrero, 229 Ariz. 239, 242, ¶ 12, 274 P.3d 509, 512 (2012).

¶13            The two prior acts of domestic violence were relevant. There
was clear and convincing evidence that Cravets pled guilty in both cases.
Further, there was evidence presented that the victim obtained an order of
protection against Cravets before his release from jail following the second
incident and Cravets was the last person seen with the victim at their home
prior to her murder. The evidence of the prior incidents was relevant under
Rule 404(b) to show motive and intent for the murder. Gulbrandson, 184
Ariz. at 60, 906 P.2d at 593; see also State v. Wood, 180 Ariz. 53, 62, 881 P.2d
1158, 1167 (1994) (“Defendant’s prior physical abuse of and threats against
[victim] were relevant to show his state of mind and thus were properly
admitted under Rule 404(b).”); State v. Jeffers, 135 Ariz. 404, 418, 661 P.2d
1105, 1119 (1983) (“We have long held that where premeditation [along
with malice or motive] is in issue, evidence of earlier quarrels or difficulties
between the accused and the victim is admissible.”). Contrary to Cravets’
contention, the fact that one of the incidents occurred four years prior to the
murder does not make that incident irrelevant. The age of the incident is
simply “a factor to be considered by the jury in determining the weight of
the evidence.” Jeffers, 135 Ariz. at 418, 661 P.2d at 1119; see also Leonard v.


                                       6
                            STATE v. CRAVETS
                            Decision of the Court

State, 17 Ariz. 293, 303, 151 P. 947, 951 (1915) (upholding admission of
evidence of trouble between the defendant and victim four years before
murder).

¶14           Further, applying the Rule 403 balancing test, the trial court
could have reasonably concluded that the probative value of the other acts
of domestic violence were not substantially outweighed by the danger of
unfair prejudice given the two earlier incidents in comparison to the
murder. See State v. Harrison, 195 Ariz. 28, 33, ¶ 21, 985 P.2d 513, 518 (App.
1998) (“The trial court is in the best position to balance the probative value
of challenged evidence against its potential for unfair prejudice. Thus, it has
broad discretion in deciding the admissibility.”). Finally, the court gave a
limiting instruction pursuant to Rule 105 on the proper use of the other-act
evidence. Consequently, the evidence was properly admitted under Rule
404(b).

              D.     Admission of Hearsay Evidence

¶15           Cravets argues the trial court erred in allowing hearsay
statements by the victim. Hearsay is an out-of-court statement offered in
evidence to prove the matter asserted and is generally inadmissible. Ariz.
R. Evid. 801(c), 802. Hearsay statements may be admissible, however, if
they fall within one of the exceptions enumerated in Arizona Rule of
Evidence 803. We review a trial court’s admission of evidence under
exceptions to the hearsay rule for an abuse of discretion. State v. Tucker, 205
Ariz. 157, 165, ¶ 41, 68 P.3d 110, 118 (2003).

¶16           Cravets challenges three statements by the victim. The first is
a statement that she wanted a divorce. The trial court correctly ruled that
this statement was admissible under the state-of-mind exception to the rule
against hearsay. This exception allows the admission 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), but not including a statement of memory or belief to prove
the fact remembered or believed[.]” Ariz. R. Evid. 803(3). The statement
evidencing the victim’s state-of-mind about wanting to divorce Cravets was
relevant to prove Cravets’ motive. See Fulminante, 193 Ariz. at 496, ¶ 34, 975
P.2d at 86; Wood, 180 Ariz. at 62-63, 881 P.2d at 1167-68 (“The statements
about [the victim’s] fear and desire to end the relationship helped explain
Defendant’s motive.”). Accordingly, the court did not err in admitting this
statement.




                                      7
                            STATE v. CRAVETS
                            Decision of the Court

¶17           Second, Cravets challenges the admission of a statement
made by the victim as he was being arrested following the second domestic
violence incident. The statement was to the effect: “You did this to me. You
need to go to jail.” But, as Cravets acknowledges, the statement was not
presented at trial. Thus, the argument that the trial court erred in admitting
this “evidence” is without merit.

¶18           Cravets argues, however, that the hearsay statement was
prejudicial because the prosecutor referred to this “evidence” in opening
statement and closing arguments. To the extent Cravets seeks to claim error
based on the prosecutor’s remarks, any review would necessarily be limited
to fundamental error because no objection was made to the prosecutor’s
statements. State v. Phillips, 202 Ariz. 427, 437, ¶ 48, 46 P.3d 1048, 1058
(2002). Even assuming the prosecutor erred by improperly referring to facts
not in evidence, Cravets is unable to show the requisite prejudice to obtain
relief under fundamental error review, given the proper admission of
evidence regarding the two previous acts of domestic violence.

¶19            Third, Cravets argues that the trial court erred by allowing the
State to introduce testimony that the victim told her son, “If you don’t hear
from me in a couple of days, call the police” shortly before she left to go to
her home on the day she was murdered. There was no error because the
statement was not hearsay. Instead, the statement was admissible to
explain why the victim’s son repeatedly called the victim and subsequently
called the police to check on her after he was unable to contact the victim
for several days. See State v. Hernandez, 170 Ariz. 301, 307, 823 P.2d 1309,
1315 (App. 1991) (holding statements not hearsay when not offered for
truth of the matter asserted but rather only to show how “events
unfolded”).

              E.     Denial of Motion to Dismiss

¶20           Cravets argues that the trial court erred by denying his
pretrial motion to dismiss. We review a ruling on a pretrial motion to
dismiss for abuse of discretion. State v. Moody, 208 Ariz. 424, 448, ¶ 75, 94
P.3d 1119, 1143 (2004).

¶21          Cravets’ motion to dismiss claimed the State acted in bad faith
in destroying or failing to preserve potentially exculpatory evidence. The
alleged potentially exculpatory evidence consisted of two vehicles stolen
from Cravets’ home months after he had been arrested for the murder of
his wife. The vehicles had originally been searched by the police as part of




                                      8
                            STATE v. CRAVETS
                            Decision of the Court

the investigation of the victim’s death and left at Cravets’ home after the
police completed their search.

¶22           Cravets’ allegation that the two vehicles might have had
exculpatory value after they were found is entirely speculative, and there is
simply no indication that any police officer acted in bad faith in failing to
preserve the recovered vehicles. “[U]nless a criminal defendant can show
bad faith on the part of the police, failure to preserve potentially useful
evidence does not constitute a denial of due process of law.” Arizona v.
Youngblood, 488 U.S. 51, 58 (1988). The trial court did not err in denying the
motion to dismiss.

              F.      Denial of Willits Instruction

¶23            Cravets argues the trial court erred by denying his request for
a Willits instruction. See State v. Willits, 96 Ariz. 184, 187, 293 P.2d 274, 276
(1964). The court denied the request on the grounds that there was no
evidence justifying the instruction. We review a court’s refusal to give a
Willits instruction for abuse of discretion. State v. Speer, 221 Ariz. 449, 457,
¶ 39, 212 P.3d 787, 795 (2009).

¶24            A Willits instruction permits the jury to draw an inference
from the government’s destruction of material evidence that the lost or
destroyed evidence would be unfavorable to the State. Fulminante, 193
Ariz. at 503, ¶ 62, 975 P.2d at 93. A defendant is entitled to a Willits
instruction only upon proof that (1) the State failed to preserve material
evidence that was accessible and might have tended to exonerate him, and
(2) there was resulting prejudice. Id. “To show that evidence had a
‘tendency to exonerate,’ the defendant must do more than simply speculate
about how the evidence might have been helpful.” State v. Glissendorf,
CR–13–0388–PR, 2014 WL 3537765 at *2, ¶ 9 (July 18, 2014). In other words,
there must be a real likelihood that the evidence would have had
evidentiary value.” Id. When the evidence does not support the
instruction, it should not be given, because it would tend to mislead the
jury. State v. Smith, 158 Ariz. 222, 227, 762 P.2d 509, 514 (1988).

¶25            Cravets claims he was entitled to the instruction because the
State failed to preserve the two vehicles stolen from his home months after
the murder, failed to collect cigarette butts and a glass inside the home for
testing, and destroyed possible DNA and fingerprint evidence on bullet
cartridges located in the master bedroom. According to Cravets, these
items might have eliminated him as the perpetrator if they showed the
presence of another person in the home.



                                       9
                           STATE v. CRAVETS
                           Decision of the Court

¶26            Loss of evidence justifying a Willits instruction ordinarily
concerns physical evidence used to commit the alleged crime. State v.
Broughton, 156 Ariz. 394, 399, 752 P.2d 483, 488 (1988). Nothing in the record
indicates that any of the items on which Cravets based his request for a
Willits instruction had any involvement with the victim’s murder or that
the items would have some tendency to exonerate him. Further, the
assertion that the items might have shown the presence of another person
in the home is pure speculation. Cravets is therefore unable to establish
prejudice from their unavailability. The trial court properly denied the
request for a Willits instruction.

                              CONCLUSION

¶27           For the reasons stated, we affirm Cravets’ conviction and
sentence.




                                  :gsh




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