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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       OBI LOUIS BROWN, Appellant.

                             No. 1 CA-CR 17-0366
                               FILED 2-5-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-000860-001
              The Honorable Bradley H. Astrowsky, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

The Law Office of Kyle T. Green P.L.L.C., Tempe
By Kyle Green
Counsel for Appellant
                            STATE v. BROWN
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.


C R U Z, Judge:

¶1           This appeal is filed in accordance with Anders v. California,
386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Counsel for
Appellant Obi Brown (“Brown”) has advised this Court that counsel
found no arguable questions of law and asks us to search the record for
fundamental error. Brown was convicted of misconduct involving
weapons. He has filed a supplemental brief in propria persona, which the
court has considered. After reviewing the record, we affirm Brown’s
conviction and sentence.

                  FACTS AND PROCEDURAL HISTORY

¶2             We view the facts in the light most favorable to sustaining
the judgment and resolve all reasonable inferences against Brown. See
State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998) (citation omitted).

¶3            According to Brown, Isaias Gallardo (“Gallardo”), attempted
to steal Brown’s rental car, which led to a physical altercation between the
two men. During the altercation Brown brandished a firearm and fired
ten rounds into the ground. Officers near the incident heard the shots
fired and responded to the scene. Brown had disappeared; however, he
eventually returned to the scene while officers were still investigating.

¶4             Upon Brown’s return, he was questioned by officers as part
of a traffic stop. Officers asked Shawn Gray (“Gray”), the driver of the
vehicle, for his license and registration; Brown, sitting in the passenger’s
seat, opened the glove box whereupon a .45 caliber weapon was visibly
stored. Officers detained Brown. Brown’s DNA was found on the .45
caliber firearm.

¶5            During trial, Brown stipulated to having prior felony
convictions. His right to bear arms has not been restored. Brown testified
that Gallardo used a weapon against him during the attempted car theft,
and Brown was left no choice other than to defend himself. He further
alleged a friend, Gray, was driving the vehicle prior to the police stop.


                                     2
                            STATE v. BROWN
                           Decision of the Court

Brown also argued the need to defend against Gallardo granted him the
right to possess a firearm.

¶6             During the trial, the State put on twelve witnesses. Brown
was the sole witness for the defense. Each of the law enforcement officers
called at trial gave testimony which corroborated the State’s theory of the
events. The State’s DNA expert testified the DNA sample found on the
weapon matched Brown’s profile.

¶7             Brown’s then girlfriend, Erica Miller, testified to the
circumstances surrounding the purchase of the brandished firearm. She
testified that Brown was not the registered owner of the firearm, but he
kept it in a locked safe to which only he had access. Brown admitted to
police during questioning that he had possession of the firearm prior to
the physical altercation between Gallardo and himself. However, during
testimony on the stand, Brown said his prior statement to the police was
untruthful, and then testified to a contrary line of events in which he only
received possession of the firearm during the physical altercation.

¶8             At the close of testimony, prior to deliberations, the jury was
instructed on the law. The court explained the presumption of innocence,
the weight to give testimony, the meaning of Brown’s stipulation to prior
felonies, the elements of the charge, the requirement of a unanimous
verdict, the State’s burden of proof, and the elements of a proper necessity
defense. Brown moved for a judgment of acquittal under Arizona Rule of
Criminal Procedure 20 and the court denied the motion.

¶9           The jury convicted him. After polling, all jurors asserted the
verdict was correct.

¶10           The superior court conducted the sentencing hearing in
compliance with Brown’s constitutional rights and Arizona Rule of
Criminal Procedure 26. The superior court considered the presentence
report and the testimony of Brown during the sentencing hearing. The
superior court found aggravating factors of significant criminal history,
previous prison time, and causing potential harm to others. The superior
court found the mitigating factors of a difficult history and childhood.
Then finding the mitigating factors outweighed the aggravating factors,
the court imposed a mitigated sentence of eight years, with presentence
incarceration time credit of 622 days.




                                      3
                             STATE v. BROWN
                            Decision of the Court

                               DISCUSSION

¶11          We review the entire record for reversible error. State v.
Thompson, 229 Ariz. 43, 45, ¶ 3 (App. 2012). Counsel for Brown has
advised this Court that after a diligent search of the entire record, counsel
has found no arguable question of law. However, in his supplemental
brief, Brown argues the superior court committed reversible error by
denying his motion in limine regarding the admission of hearsay evidence
under Arizona Rule of Evidence (“Rule”) 804.1

¶12          Brown argues the court erred in denying the motion in limine
wherein he requested admission of a statement made by Gallardo. The
court concluded the statement was inadmissible hearsay; Brown argues
that under Rule 804(b)(3), Gallardo was unavailable, and the statement
was against Gallardo’s interest, and as such was admissible.

¶13           For evidence to be admitted under Rule 804(b)(3), the
proponent must show the statement is sufficiently trustworthy by
satisfying each of the Rule’s three elements. State v. Lopez, 159 Ariz. 52, 54
(1988). As a preliminary matter, Brown, as the proponent, was required to
establish the unavailability of Gallardo “through competent evidence,
sufficient to convince the court that the witness . . . ” was unavailable.
State v. Medina, 178 Ariz. 570, 575 (1994). The proponent of the statement
must engage in a good faith effort to obtain the witness’ presence at trial.
State v. Rivera, 226 Ariz. 325, 329, ¶ 13 (App. 2011). Whether the
proponent engaged in a good faith effort is determined under a
reasonableness standard. Id. at 329-30, ¶ 13.

¶14            We review an unavailability finding by the superior court
for abuse of discretion. Id. at 329, ¶ 12. A court abuses its discretion
where the record fails to provide substantial support for its decision or the
court commits an error of law in reaching the decision. Grant v. Ariz. Pub.
Serv. Co., 133 Ariz. 434, 456 (1982); see also Torres v. N. Am. Van Lines, Inc.,
135 Ariz. 35, 40 (App. 1982) (stating discretion is abused if “manifestly
unreasonable, or exercised on untenable grounds, or for untenable
reasons”).




1       This court only considers evidence in the record, supplemental
information outside of the record is not considered on appeal. See Ashton-
Blair v. Merrill, 187 Ariz. 315, 317 (App. 1996).



                                       4
                             STATE v. BROWN
                            Decision of the Court

¶15           The record contains no evidence of Brown’s attempt to
secure Gallardo’s testimony. Brown did not disclose Gallardo as a
witness, nor did the defense seek the issuance of a subpoena for him to
appear at trial. Rather than making an effort to secure Gallardo’s presence
at trial by way of a subpoena, Brown asserted a subpoena was
inconsequential; because, had Gallardo taken the stand to testify, he
would have been considered unavailable because of his likely invocation
of the privilege against self-incrimination. The superior court concluded
there was not sufficient evidence before the court to determine Gallardo’s
unavailability, and any argument regarding his unavailability would be
speculative. Therefore, the court denied the request to introduce
Gallardo’s out-of-court statements. A review of the record supports the
court’s ruling. Brown made no effort, let alone a good faith effort, to
secure Gallardo’s availability for in-court testimony. The superior court
did not abuse its discretion.

¶16           Next, Brown argues that the court, under Rule 807, should
have admitted Gallardo’s hearsay statement voiced during a police
interview in which Gallardo stated he heard Brown say, “get the gun or
[heard Brown] tell his friend to go get the gun, and [Gallardo] just
panicked and [left].”2 At the time the judge ruled on Brown’s motion,
Rule 807 stated that hearsay that does not fall into any other exception
may be admitted if “(1) the statement has equivalent guarantees of
trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more
probative on the point for which it is offered than any other evidence that
the proponent can obtain through reasonable efforts; and (4) admitting it
will best serve the purposes of the rules and the interests of justice.” Ariz.
R. Evid. 807 (2017). “The trial court has considerable discretion in
determining the relevance and admissibility of evidence, and we will not
disturb its ruling absent a clear abuse of that discretion.” State v. Amaya-
Ruiz, 166 Ariz. 152, 167 (1990) (citation omitted).3


2     Gallardo’s statement to police, relaying a statement he heard
Brown say during the altercation, is hearsay within hearsay. Such a
statement is admissible only if each hearsay statement is admissible
independently. Ariz. R. Evid. 805.

3      In State v. Luzanilla, our Supreme Court explained the legislative
history behind the “residual hearsay exception,” and indicated that it was
to be used “only in rare and exceptional circumstances.” 179 Ariz. 391,
397 (1994).



                                       5
                            STATE v. BROWN
                           Decision of the Court

¶17           At the hearing regarding his motion in limine, Brown urged
the court to admit Gallardo’s hearsay statement under Rule 807, the
catchall exception, because the statement: (1) was not clearly admissible
under Rules 803 and 804, (2) had indicia of trustworthiness because the
parties did not know each other prior to the incident, (3) was made
fourteen hours after the incident, (4) would corroborate Brown’s in-court
testimony, (5) would impeach Brown’s out-of-court statement that he had
the gun sometime prior to the incident, (6) is corroborated by other
statements made by Gallardo, and (7) should be admitted in the interests
of justice. Brown’s primary argument, in support of admission of
Gallardo’s hearsay statement, was the impeachment of Brown’s own
recorded statements to police in order to further a defense theory that
possession of the firearm occurred in the midst of the altercation with
Gallardo, not before. When deciding if a statement is trustworthy we
consider, among other things, the declarant’s knowledge. State v. Allen,
157 Ariz. 165, 174 (1988).

¶18            The hearsay statement in question does not possess the
requisite guarantee of trustworthiness for admission under Rule 807. The
fact that Gallardo, the victim, may have only become aware of the firearm
at the time Brown, or his companion, called for it during the altercation
does not negate the possibility that Brown possessed the firearm prior to
the altercation. Gallardo was not in a position to know whether Brown
actually, or constructively, possessed the gun prior to the altercation.
Brown, on the other hand, did have that information, and he told law
enforcement he did possess the firearm before the incident. Gallardo’s
statement did not have circumstantial guarantees of trustworthiness.
Accordingly, the superior court’s ruling on the inadmissibility of
Gallardo’s hearsay statement was not an abuse of discretion.

¶19          The evidence presented at trial was substantial and supports
the verdict. The jury was properly comprised of at least eight members,
the court properly instructed the jury on the elements of the charge,
Brown’s presumption of innocence, the State’s burden of proof, and the
necessity of a unanimous verdict. The superior court received and
considered a presentence report, Brown was given an opportunity to
speak at sentencing, and his sentence was within the range of the
acceptable sentence for his offense.

¶20          We have read and considered counsel’s brief and fully
reviewed the record for reversible error, see Leon, 104 Ariz. at 300, and find
none. All of the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. So far as the record reveals, counsel


                                      6
                            STATE v. BROWN
                           Decision of the Court

represented Brown at all stages of the proceedings. We decline to order
briefing and affirm Brown’s conviction and sentence.

¶21           Upon the filing of this decision, defense counsel shall inform
Brown of the status of the appeal and of his future options. Counsel has
no further obligations unless, upon review, counsel finds an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Brown shall
have thirty days from the date of this decision to proceed, if he desires,
with a pro per motion for reconsideration or petition for review.

                              CONCLUSION

¶22          For the foregoing reasons, we affirm.




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




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