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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

              CHRISTOPHER MICHAEL RUSSO, Appellant.

                             No. 1 CA-CR 15-0042
                              FILED 2-18-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2009-007734-001
                 The Honorable Pamela S. Gates, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Chris DeRose
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Terry Reid
Counsel for Appellant
                             STATE v. RUSSO
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the court, in which
Judge Lawrence F. Winthrop and Judge Donn Kessler joined.


S W A N N, Judge:

¶1           Christopher Michael Russo (“Defendant”) appeals his
convictions and sentences for first degree murder, aggravated assault, and
two counts of kidnapping. He argues that the trial court committed
fundamental error in two respects: first, by allowing witnesses to testify that
he was a drug dealer; and second, by permitting the state to refer to his
hands and feet as dangerous instruments in support of the allegation of
dangerousness for one of the kidnapping charges. We conclude that
Defendant failed to establish fundamental error and resulting prejudice.
We therefore affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2            In 2009, Defendant, a drug dealer, and his girlfriend, C.H.,
lived in various hotel rooms in Anaheim, California, with another woman,
S.W. Defendant paid for the rooms and “everything.” In addition, he
provided C.H. and others with methamphetamine.

¶3            Defendant was also physically abusive towards C.H., and he
maintained tight control over her friendships, especially with men. He once
angrily confronted a male friend of C.H.’s, telling him that if the friend ever
contacted or met with C.H. or if C.H. left Defendant, he would “find her
and put her six feet deep.” On July 5, 2009, C.H. attempted to end her
relationship with Defendant by driving to Arizona with her friend T.M.,
one of Defendant’s customers; the two women rented a hotel suite in
Tempe. Defendant was “pissed off,” and he repeatedly called and texted
both women demanding that they return.

¶4           In the early morning of July 8, 2009, C.H. met a man, J.O., at a
convenience store. C.H. and J.O. attended a party, then returned to the suite


1      We view the facts in the light most favorable to sustaining the
verdicts and resolve all reasonable inferences against Defendant. See State
v. Kiper, 181 Ariz. 62, 64 (App. 1994).


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                           Decision of the Court
where they slept together in the bedroom. Later that evening, T.M., who
was also in the suite, opened the front door to leave and encountered
Defendant.2 He went to the bedroom, and T.M. left the hotel.

¶5           Defendant pounded on the locked bedroom door, and when
C.H. opened it, J.O. “saw a fist come through the door and hit [C.H.] in the
face and she fell flat on the ground.” Defendant continued to repeatedly
punch and kick her in the face and ribs. As he was assaulting her,
Defendant repeatedly asked, “Do you think you can just run away from
me[?]”

¶6          He then turned to J.O. and punched and kicked him in the
face and “tased” him multiple times, rendering J.O. immobile. J.O.
sustained wounds to his face and head.

¶7            While Defendant’s attention was focused on J.O., C.H.
attempted to crawl away. Defendant used a stun gun on her multiple times
and continued to kick and punch her for 15 to 20 minutes. As he paused in
assaulting C.H., Defendant took a knife, pointed it at J.O., and threatened
to “take out [J.O.’s] eye with it.” Defendant returned to C.H. and poured
water on her face causing her to choke. When she attempted to push herself
up from the floor to get away, Defendant punched her in the face. She
stopped breathing and moving.

¶8             Defendant suddenly became friendly with J.O. and provided
him with water and clean clothes. As Defendant copied the address from
J.O.’s driver’s license, Defendant told him: “This [doesn’t] need to get out
in the open. I know where you live. I have all your information. Nobody
needs to know about this. ”

¶9            T.M. returned to the suite, and she briefly observed C.H. lying
on the floor of the bloody bedroom covered in a blanket. Over J.O.’s
objection, T.M. and Defendant drove J.O. home. T.M. then drove Defendant
to purchase cleaning supplies. Upon returning to the hotel room, T.M.
approached C.H. and noticed her face was bruised, she had no pulse, her
body was cold, her lips were purple, and her eyes were black and “sunken
in.” Assuming Defendant had killed C.H., T.M. “freaked out” and
requested pills from him to calm herself down.



2     Defendant had earlier called T.M. and told her he was coming to
Arizona. In turn, T.M. informed C.H. of his impending arrival, but C.H.
did not “believe he was coming.” The record does not indicate how
Defendant knew where to find them in Arizona.

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                            STATE v. RUSSO
                           Decision of the Court
¶10           As T.M. slept, Defendant cleaned the crime scene and packed
their belongings. At some point, T.M. briefly woke up and observed him
carrying a large bundle of sheets and blankets large enough to contain C.H.
to T.M.’s car. He returned with her vehicle a few hours later, and the two
collected C.H.’s belongings and drove back to California. C.H. did not
return to California with them, and she has not been seen since.3

¶11            On the way to California, Defendant and T.M. were stopped
by law enforcement for a traffic violation. T.M. mentioned nothing to the
officer about her suspicion that Defendant had killed C.H. After arriving
in California, T.M. remained silent about her suspicion until she was certain
Defendant was no longer in the area, at which point she confided in C.H.’s
uncle.

¶12           The ensuing police investigation eventually tied Defendant to
the assaults and resulting death of C.H. The state charged him with one
count of first degree murder, a class 1 dangerous felony; two counts of
kidnapping, class 2 dangerous felonies; and aggravated assault, a class 3
dangerous felony. The state alleged that Count 3, the kidnapping charge
for J.O., was “a dangerous felony because the offense involved the
discharge, use, or threatening exhibition of [Defendant’s] hands and/or
knife, a deadly weapon or dangerous instrument and/or the intentional or
knowing infliction of serious physical injury upon [J.O.].” The state argued
in closing that Defendant’s use of his hands and feet, the knife, and J.O.’s
injuries resulting from Defendant’s physical attack all supported the
allegation of dangerousness for Count 3.

¶13         The jury found Defendant guilty as charged, and the court
imposed a combination of concurrent and consecutive prison sentences, the
longest of which is natural life for the murder conviction. He timely
appeals.

                              DISCUSSION

¶14           Defendant argues that testimony regarding his drug dealing
constitutes improper other-act evidence and should have been precluded.
He also contends, for purposes of challenging his sentence, that the jury’s
finding of dangerousness in Count 3 may not have been unanimous
because the state’s argument that his hands and feet were dangerous
instruments was incorrect as a matter of law; some jurors may have




3     As of the time of trial, C.H.’s remains had not been discovered.

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                              STATE v. RUSSO
                             Decision of the Court
concluded the offense was dangerous based solely on Defendant’s hands
and feet instead of the knife.

¶15            Because Defendant raised neither of these objections at trial
we review both issues for fundamental error. See State v. Henderson, 210
Ariz. 561, 567, ¶ 19 (2005). Under this standard of review, Defendant “bears
the burden to establish that (1) error exists, (2) the error is fundamental, and
(3) the error caused him prejudice.” State v. James, 231 Ariz. 490, 493, ¶ 11
(App. 2013) (internal quotations and citations omitted).

I.     OTHER-ACT EVIDENCE: RULE 404(B)

¶16              Arizona Rule of Evidence 404(b) prohibits evidence of other
acts “to prove the character of a person in order to show action in
conformity therewith” but allows such evidence “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). “The list
of ‘other purposes’ in Rule 404(b) . . . is not exclusive; if evidence is relevant
for any purpose other than that of showing the defendant’s criminal
propensities, it is admissible even though it refers to his prior bad acts.”
State v. Jeffers, 135 Ariz. 404, 417 (1983).

¶17           Other-act evidence is admissible if (1) the evidence is
admitted for a proper purpose, (2) the evidence is relevant, (3) the evidence
is not unfairly prejudicial under Rule 403, and (4) the judge gives “an
appropriate limiting instruction upon request.” State v. Nordstrom, 200 Ariz.
229, 248, ¶ 54 (2001), abrogated on other grounds by State v. Ferrero, 229 Ariz.
239, 243, ¶ 20 (2012). In addition, the state must prove by clear and
convincing evidence that the other act occurred and the defendant
committed the act.4 State v. Terrazas, 189 Ariz. 580, 584 (1997).

¶18          The evidence of Defendant’s drug dealing was not admitted
to show he is an aggressive and violent person with the propensity to
murder, kidnap, and assault the victims in this case. Instead, the evidence
was relevant to counter his argument at trial that he flew to Arizona out of
concern for C.H.’s well-being. The record establishes that he was jealous


4      Defendant contends the trial court did not apply this standard to the
evidence of his drug dealing. The court did not do so because, as Defendant
correctly notes, the state did not provide notice that it intended to admit
404(b) evidence, and he did not otherwise object to the evidence of his drug
dealing. The trial court informed the jury, however, that it could consider
other-act evidence only if it found clear and convincing evidence that
Defendant committed the act.

                                        5
                           STATE v. RUSSO
                          Decision of the Court
and controlling in his relationship with C.H. One of the means by which
he controlled C.H. was by keeping her supplied with methamphetamine.
His drug dealing was relevant to explain T.M.’s failure to immediately
report her suspicion that Defendant murdered C.H., a failure that defense
counsel argued exculpates him. T.M. was using drugs supplied by
Defendant. By reporting him to police, not only could she have faced the
legal consequences of her unlawful drug use, but she could also have put
her access to drugs at risk.

¶19           T.M.’s reliance on Defendant as her drug dealer also helps
explain why she allowed him access to the hotel room she shared with C.H.
despite knowing “something [bad] would probably happen[.]” The record
establishes that T.M. had run out of methamphetamine by the time
Defendant appeared at the room, and she wanted the drug. Had she
confronted him or otherwise denied him access to the room, she would risk
her opportunity to readily obtain methamphetamine. This conclusion
counters Defendant’s explanation at trial that T.M. invited him into the
room to assist in dealing with C.H.’s death purportedly caused by an
overdose of drugs obtained at the party she attended with J.O.

¶20           Accordingly, evidence of Defendant’s drug dealing was not
offered to prove his violent character and propensity to commit murder,
aggravated assault, and kidnapping. Rather, the evidence was relevant and
admitted for the proper purpose of rebutting his defense. In light of the
other trial evidence establishing his guilt — especially T.M.’s eyewitness
testimony and J.O.’s account of Defendant’s assault on him and C.H. — the
evidence was not unduly prejudicial under Rule 403. See State v. Via, 146
Ariz. 108, 122 (1985) (finding any error in admitting evidence of prior
attempted drug deal was harmless because that conduct was “far less
egregious than that with which defendant was charged”). Finally, because
the trial court instructed the jury not to consider other-act evidence to
determine Defendant’s character or that he acted in conformity with his
character and therefore committed the charged offenses, he cannot meet his
burden to establish prejudice resulting from the admission of this
evidence.5 See State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006) (jurors are
presumed to follow court’s instructions).



5     Defendant only argues he was prejudiced because the record
supported his argument that C.H. died as a result of an overdose, and the
evidence about his being a drug dealer influenced the jury to disregard the
evidence that C.H. died from an overdose rather than his attack on her. The


                                    6
                             STATE v. RUSSO
                            Decision of the Court
¶21           Defendant fails to establish that the trial court committed
error, fundamental or otherwise, in not sua sponte striking evidence that he
was a drug dealer. He also fails to establish any resulting prejudice. No
reversible error occurred.

II.    DANGEROUSNESS: HANDS AND FEET

¶22           As noted, the jury found Count 3 was a dangerous offense
based on the state’s allegation that Defendant used his hands, feet, or a knife
during J.O.’s kidnapping. “’Dangerous offense’ means an offense involving
the discharge, use or threatening exhibition of a deadly weapon or
dangerous instrument or the intentional or knowing infliction of serious
physical injury on another person.” A.R.S. § 13-105(13). A dangerous
instrument is “anything that under the circumstances in which it is used,
attempted to be used or threatened to be used is readily capable of causing
death or serious physical injury.” A.R.S. § 13-105(12).

¶23            We agree with Defendant that the state’s reference to his
hands and feet as dangerous instruments was incorrect as a matter of law.
See State v. Gordon, 161 Ariz. 308, 309-11 (1989) (holding trial court erred in
enhancing defendant’s kidnapping and sexual assault sentences based on
jury’s finding that defendant’s fists constituted dangerous instruments).
However, in support of the allegation of dangerousness in Count 3, the state
also alleged and presented evidence of his use of a knife during the
kidnapping.6

¶24           Defendant does not challenge the finding of dangerousness
based on his use of the knife during the kidnapping of J.O.; rather, he argues
insufficient evidence establishes that the stun-gun is a dangerous
instrument. But the state expressly informed the jury during closing



jury, however, weighs the evidence, not this court. State v. Guerra, 161 Ariz.
289, 293 (1989).

6      After trial, but before sentencing, the state moved to dismiss the
jury’s findings of dangerousness and use of a dangerous instrument or
deadly weapon for Count 2 (kidnapping of C.H.) because Defendant was
alleged to have only used his hands and feet as dangerous instruments in
that count. Accordingly, the trial court entered a judgment of guilt on
Count 2 as a non-dangerous offense. Because Count 3 also alleged his use
of a knife as a dangerous instrument or deadly weapon, the state expressly
did not request to dismiss the jury’s finding of dangerousness for that
count.

                                      7
                            STATE v. RUSSO
                           Decision of the Court
arguments that the stun-gun was not the basis for the dangerousness
allegation.

¶25            Based on Defendant’s use of the knife in conjunction with his
contemporaneous threat to take out J.O.’s eye with it, no reasonable juror
would fail to conclude the knife was a dangerous instrument. Accordingly,
although it was error to permit the state to refer to his hands and feet as
dangerous instruments, he fails to establish any resulting prejudice. See
State v. Hampton, 213 Ariz. 167, 182, ¶¶ 71-74 (2006) (holding that, although
trial court erred in imposing an aggravated sentence when jury did not find
that gun used in murder was a dangerous instrument, the error was
harmless because, based on the trial evidence, “no reasonable jury could
have failed to find that a deadly weapon was used in the commission of the
offense.”). Thus, we find no reversible fundamental error.

                              CONCLUSION

¶26          For the foregoing reasons, we affirm Defendant’s convictions
and sentences.




                                 :ama




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