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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   MASON GARRETT RILEY, Appellant.

                             No. 1 CA-CR 18-0370
                               FILED 4-9-2019


           Appeal from the Superior Court in Coconino County
                        No. S0300CR201700421
             The Honorable Jacqueline Hatch, Judge Retired

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant
                             STATE v. RILEY
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.


J O N E S, Judge:

¶1           Mason Riley appeals his conviction and sentence for
aggravated assault.1 For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2           While hosting a gathering for several friends and family
members in her home, M.W. had a verbal altercation with Riley.2 After their
heated exchange, Riley left, but later returned and knocked on the front
door. When M.W. opened the door, Riley hit her in the face and abdomen
with a sizable tree branch and then fled. M.W. called 9-1-1, requesting
emergency assistance and reporting that Riley had attacked her.

¶3            Meanwhile, M.W.’s brother, K.W., arrived at M.W.’s home
and heard a guest yell, “He hit her.” Rushing inside, K.W. saw that M.W.’s
face was swollen. After M.W. told him that Riley had hit her with a tree
branch, K.W. went outside and located Riley, who was standing in the
street, wielding a knife. Angry, but also worried that Riley might stab him,
K.W. maintained a safe distance from Riley until law enforcement arrived.

¶4            When an officer responded to the scene, he saw Riley, K.W.,
and another man standing in the street near M.W.’s home. While the officer
parked and exited his patrol car, the men separated, and one man pointed
at Riley and said, “He’s got a knife.”

¶5           Alerted by this warning, the officer drew his weapon and
repeatedly commanded Riley to “get on the ground.” Ignoring the officer’s


1      Riley was also convicted of resisting arrest but does not challenge
that conviction or sentence on appeal.

2      We view the facts in the light most favorable to sustaining the
verdict. State v. Harm, 236 Ariz. 402, 404, ¶ 2 n.2 (App. 2015) (quoting State
v. Valencia, 186 Ariz. 493, 495 (App. 1996)).


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                              STATE v. RILEY
                            Decision of the Court

orders, Riley remained standing. Eventually, Riley dropped the knife onto
the pavement and sat on a curb.

¶6            The officer then placed Riley in a prone position and
handcuffed him. As he did so, Riley told the officer that he had the “wrong
person” and asked, “Where did he go?” Once the officer returned Riley to
a standing position, Riley further stated that he had merely protected
himself. In response to this statement, the officer invited Riley to “tell [him]
what happened.” Sitting down on the curb again, Riley told the officer that
“people” had fought him “all day.” When the officer pressed him for
additional information, Riley declined, stating he would not “snitch.”

¶7           Shortly thereafter, M.W. was transported to a nearby hospital
for treatment. While medical personnel attended to her injuries, M.W.
reported she “heard a knock on [her] door,” and when she answered it, her
“boyfriend’s brother” had hit her “with a tree branch.”

¶8            The State charged Riley with two counts of aggravated assault
(Count 1 — victim M.W., and Count 2 — victim K.W.) and one count of
resisting arrest. The State also alleged aggravating circumstances.

¶9            At trial, M.W. testified that she was impaired by both alcohol
and drugs at the time of the underlying events and therefore had little
memory of what transpired. She vaguely recalled having received medical
treatment after being hit with a tree branch but testified that she could not
remember who hit her and denied calling 9-1-1 after the attack. When
asked about her relationship with Riley, M.W. testified that at the time of
the incident she was in a romantic relationship with both Riley and his
brother. She also testified she was currently in a relationship with Riley
and did not want “anything bad” to happen to him.

¶10            Taking the stand in his own defense, Riley testified that on the
day of the incident, M.W. had “flick[ed]” “prongs” (a large steak or
barbecue fork with two tines) at him while she was cooking in the kitchen.
Later, she joined him outside, still holding the prongs, and made “jabbing
motions” toward his left side. Upset that M.W. was “mocking” him, Riley
testified that he hit her face, which caused her to fall into a door. Although
he admitted causing her injuries, Riley denied hitting M.W. with a stick.
Indeed, he testified that he did not pick up the tree branch until K.W. came
outside. Fearing reprisal, Riley threw the tree branch at the front door and
then grabbed a knife laying near a potted plant.

¶11         When asked whether he believed that M.W. was threatening
him with the prongs or simply being playful, Riley testified that he was


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                              STATE v. RILEY
                            Decision of the Court

unsure, but took it seriously. He asserted that M.W. had provoked him and
he instinctively hit her because he felt threatened.

¶12           After a four-day trial, a jury acquitted Riley of Count 2 and
convicted him of the remaining charges. The trial court sentenced Riley to
ten years’ imprisonment on Count 1 and time served on Count 3. Riley
timely appealed, and we have jurisdiction pursuant to Arizona Revised
Statutes (A.R.S.) §§ 12-120.21(A)(1),3 13-4031, and -4033(A)(1).

                               DISCUSSION

    I.    Failure to Provide a Limiting Instruction

¶13            Riley contends the trial court erred by failing to instruct the
jurors that they could consider his statements to the officer, and any
attendant omissions, only to evaluate his credibility not to assess his guilt.
Because Riley failed to request a limiting instruction at trial, we review this
claim only for fundamental error. See State v. Escalante, 245 Ariz. 135, 140,
¶ 12 (2018). To establish fundamental error, a defendant must show the
trial court erred and that such error: (1) went to the foundation of the case;
(2) took from the defendant a right essential to his defense; or (3) was so
egregious that he could not possibly have received a fair trial. Id. at 142, ¶
21 (citing State v. Henderson, 210 Ariz. 561, 567, ¶ 26 (2005)). “If the
defendant establishes fundamental error under prongs one or two, he must
make a separate showing of prejudice.” Id.

¶14            Even if Riley proved error, he has failed to demonstrate any
prejudice. Even without a limiting instruction, the evidentiary value of
Riley’s statements to the officer pertained only to Riley’s credibility. Stated
differently, Riley did not make any inculpatory statements to the arresting
officer, so the statements did not provide affirmative evidence of his guilt.
Indeed, the prosecutor used the statements only to attack Riley’s credibility
and argue that his self-defense claim was not believable. Therefore, because
nothing in the record suggests the jurors may have regarded the challenged
statements as evidence of guilt, Riley has failed to meet his burden on
fundamental error review. See State v. Dickinson, 233 Ariz. 527, 531, ¶ 13
(App. 2013) (stating a defendant must “affirmatively prove prejudice and
may not rely upon speculation to carry his burden” under fundamental
error review) (internal quotation omitted).



3      Absent material changes from the relevant date, we cite the current
version of rules and statutes.


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                             STATE v. RILEY
                           Decision of the Court

   II.    Admission of Other-Act Evidence

¶15           Riley contends the trial court improperly admitted other-act
evidence. Specifically, Riley argues evidence that he had trespassed upon
M.W.’s property the day before the underlying events was inadmissible
because: (1) the State failed to establish by clear and convincing evidence
that he had committed trespass; (2) it was irrelevant; and (3) it was unfairly
prejudicial.

¶16            At trial, M.W.’s 9-1-1 call was played for the jury and
admitted without objection. During that brief call, M.W. informed the
emergency operator that Riley had been “trespassed from” her home. The
phrase “trespassed from” was not clarified at trial, but during cross-
examination, Riley admitted that he “did get charged with trespassing”
upon M.W.’s residence but then claimed that “the judge didn’t tell [him]
not to go back.” After the prosecutor asked two additional questions
confirming that Riley had been charged with trespass, defense counsel
objected, citing Arizona Rule of Evidence (Rule) 404. Without discussion,
the trial court overruled the objection, and Riley again confirmed he had
been charged with trespassing at M.W.’s house.

¶17            During closing argument, the prosecutor referenced Riley’s
admitted trespass charge and argued that even if M.W. verbally provoked
him, he had “a duty to retreat” because he was “not in a place where he
ha[d] a legal right to be.” Defense counsel objected, and after an extended
bench conference, the trial court sustained the objection and struck the
prosecutor’s statement that Riley had a duty to retreat. When argument
resumed, the prosecutor reminded the jurors that M.W. had told the
emergency operator that Riley had been “trespassed from” her home. In
response, defense counsel acknowledged M.W.’s statements in the 9-1-1 call
but argued M.W. had invited Riley to her residence on the day of the
incident so he was a lawful guest in her home.

¶18          We review a trial court’s evidentiary ruling for an abuse of
discretion. State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006) (citing State v.
Tucker, 205 Ariz. 157, 165, ¶ 41 (2003)). Rule 404 governs the admission of
character and “other act” evidence and prohibits evidence of other crimes,
wrongs, or acts to prove a person’s character to act in a certain way, but
allows such evidence for non-propensity purposes, such as showing
“motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Ariz. R. Evid. 404(b). Before admitting
other-act evidence, a court must find: (1) there is clear and convincing
evidence the defendant committed the other act; (2) the evidence is relevant


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                               STATE v. RILEY
                             Decision of the Court

under Rule 402; (3) the evidence is offered for a proper purpose under Rule
404(b); and (4) the probative value of the evidence is not substantially
outweighed by the potential for unfair prejudice under Rule 403. State v.
Terrazas, 189 Ariz. 580, 584 (1997); State v. Mott, 187 Ariz. 536, 545 (1997).

¶19           At trial, M.W. testified that she had no recollection of Riley
hitting her and he was welcome in her home on the day in question.
Arguably, evidence that Riley had trespassed M.W.’s home only the day
before the underlying events was relevant to impeach M.W.’s testimony
and to show Riley’s motive or intent. See State v. Hardy, 230 Ariz. 281, 289,
¶ 38 (2012) (“Evidence of [a] prior argument with . . . a victim is. . .
admissible to show motive or intent.”). Given Riley’s trial testimony that
he intentionally hit M.W. and caused her injuries, however, only two
questions remained for the jury: (1) whether Riley struck the victim with a
tree branch; and (2) whether Riley hit the victim in self-defense. Thus,
Riley’s express admission that he assaulted M.W. rendered other evidence
of their turbulent relationship only minimally relevant and probative.

¶20           Nonetheless, even assuming the trial court erred by failing to
strike the prosecutor’s cross-examination of Riley regarding the trespass,
such error would be harmless. State v. Green, 200 Ariz. 496, 501, ¶ 21 (2001)
(“Error is harmless only if we can say, beyond a reasonable doubt, that it
‘did not contribute to or affect the verdict.’”) (quoting State v. Bible, 175 Ariz.
549, 588 (1993)). No details regarding the trespass were introduced and no
evidence suggested that the trespass involved violence. See State v. Lee, 189
Ariz. 590, 599-600 (1997) (explaining unfair prejudice results only when “the
evidence has an undue tendency to suggest decision on an improper basis”)
(citing Mott, 187 Ariz. at 545-46). Although Riley argues the trespass
evidence may have led the jurors to assume he was “a bad person prone to
criminal behavior,” the jury’s acquittal on Count 2 demonstrates that the
jurors carefully considered the evidence and belies any claim that they may
have simply convicted Riley based upon his prior trespass. See State v.
Stuard, 176 Ariz. 589, 600 (1993) (noting the jurors’ decision to acquit the
defendant of certain charges “demonstrate[d] the jury’s careful and proper
consideration of the evidence”). Furthermore, Riley did not move to
suppress M.W.’s 9-1-1 call statement or otherwise object to its admission.
Indeed, he admitted on direct examination that he had argued with M.W.
the day before the assault. Accordingly, his admissions regarding the
trespass charge were entirely cumulative to other evidence, and therefore
harmless. See State v. Weatherbee, 158 Ariz. 303, 305 (App. 1988) (explaining
the erroneous admission of evidence is harmless when the improperly
admitted evidence is “entirely cumulative”) (citing State v. Williams, 133
Ariz. 220, 226 (1982)).


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                             STATE v. RILEY
                           Decision of the Court

   III.   Admission of Hearsay Evidence

¶21          Riley contends the trial court improperly permitted an
investigating sergeant to testify regarding statements a guest made,
arguing such evidence was hearsay.

¶22           At trial, a sergeant testified that she responded to M.W.’s
residence the night of the assault and interviewed one of M.W.’s guests, E.T.
As recounted by the sergeant, over objection, E.T. reported that the victim
“had been struck with a stick.”

¶23           We review a trial court’s evidentiary rulings for an abuse of
discretion. Ellison, 213 Ariz. at 129, ¶ 42. In general, an out-of-court
statement offered to prove the truth of the matter asserted is inadmissible.
Ariz. R. Evid. 801(c), 802.

¶24            Although the State argues E.T.’s statement was not presented
for its truth but to explain why the sergeant “retrieved the tree branch and
placed it in evidence,” the sergeant did not need to recount E.T.’s statement
to explain why she believed a large tree branch located near M.W.’s front
door may have had evidentiary value. Nonetheless, in light of the other
evidence admitted at trial, the admission of this hearsay evidence was
harmless.

¶25            As a preliminary matter, E.T. testified at trial and was
subjected to cross-examination. Therefore, his statements, as recounted by
the sergeant, were not barred by the Confrontation Clause. See Crawford v.
Washington, 541 U.S. 36, 53 n.4, 59 (2004) (explaining testimonial hearsay,
which includes statements given in response to formal police questioning,
is barred by the Confrontation Clause when the declarant does not appear
at trial). Second, E.T.’s out-of-court statements were cumulative to other
evidence. Without objection, the State introduced: (1) M.W.’s 9-1-1 call
statement claiming Riley hit her with a tree branch; (2) M.W.’s trial
testimony that she was hit with a tree branch (albeit she did not recall by
whom); (3) M.W.’s statement, recounted by K.W., that Riley had hit her
with a tree branch; and (4) M.W.’s statement to medical personnel that her
boyfriend’s brother had hit her with a tree branch. Given this additional,
substantial evidence that M.W. was hit with a stick, the erroneous
admission of E.T.’s hearsay statement was necessarily harmless.




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                     STATE v. RILEY
                   Decision of the Court

                      CONCLUSION

¶26   Riley’s conviction and sentence are affirmed.




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




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