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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 TILFERT DARRELL VAUGHN, Appellant.

                             No. 1 CA-CR 17-0032
                               FILED 1-25-2018


           Appeal from the Superior Court in Maricopa County
                      No. CR2015-106371-001 DT
              The Honorable Christopher A. Coury, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Bain & Lauritano, PLC, Glendale
By Amy E. Bain
Counsel for Appellant


                       MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.
                           STATE v. VAUGHN
                           Decision of the Court

W I N T H R O P, Presiding Judge:

¶1            Tilfert Darrell Vaughn (“Appellant”) appeals his convictions
for burglary in the first degree, two counts of aggravated assault, two
counts of kidnapping, and sexual assault. Appellant argues the trial court
abused its discretion by (1) admitting statements from one of the victims in
a 911 telephone call, (2) precluding evidence the victims met while
incarcerated in the Arizona Department of Corrections (“ADOC”), and (3)
admitting evidence he was kicked off a city bus approximately 1.5 miles
from the victims’ apartment less than one hour after the crimes were
committed. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY1

¶2            On the night of November 4-5, 2014, girlfriends K.T. and C.S.
held a party at their Phoenix apartment, and later, they walked to a nearby
bar, where they remained until closing. As they returned to their
apartment, C.S., who was visibly intoxicated, stumbled, fell, and vomited,
and she did so again at the apartment before the women fell asleep together.

¶3            In the early morning, K.T. awoke and saw the bathroom light
on. She got up to shut off the light, but a naked man holding a large knife
confronted her. The man ordered K.T. to return to bed, placed the knife
against her throat, and sexually assaulted her. During the assault, C.S.
awoke, tried to push the man off K.T., and suffered lacerations to several
fingers on her left hand from the knife. C.S. clutched her hand to her chest,
began crying, and curled up in the fetal position, while K.T. tried to calm
her as the sexual assault continued. The man eventually got up, went to the
bathroom, and dressed, while warning the women not to move. When they
believed the man had left, the women called 911.

¶4            A Phoenix police officer who arrived at the victims’
apartment observed C.S. crying hysterically and screaming, “[H]e’s got my
keys, he’s going to come back.” K.T. provided a description of the attacker
and reported numerous items missing from the apartment, including C.S.’s
keys. Many of the missing items were later found in a nearby vacant
apartment, in which detectives also found a wine bottle and a cigarette butt.




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


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                           STATE v. VAUGHN
                           Decision of the Court

K.T. underwent a forensic examination, which indicated injury to her
cervix.

¶5            Detectives obtained and reviewed surveillance video of that
night from the apartment complex, the bar, and a nearby convenience store.
They established a man as a person of interest after video reflected his
presence at the convenience store, then near the victims as they left the bar,
then entering the victims’ apartment complex as they entered, and later
smoking a cigarette at the complex. After appearing on the apartment
surveillance video several times within an hour, the man did not reappear
on the video for approximately two hours—when he exited the apartment
complex and walked away at the same time the victims called 911. After
the media broadcast the man’s image, a caller identified the man as
Appellant.

¶6           Detectives interviewed Appellant, who confirmed he was the
man shown in the video. Appellant claimed to lack memory of most of that
night’s events, but remembered being kicked off a city bus later that
morning at a different location. Officers collected Appellant’s DNA and
confirmed through forensic testing that it matched DNA taken from K.T.’s
vagina during her forensic examination, with the probability of an
unrelated individual having a DNA profile matching that DNA profile at 1
in 990 quintillion. Appellant’s DNA also matched DNA samples taken
from the wine bottle and cigarette butt found in the vacant apartment.

¶7             After a twenty-one-day trial, the jury found Appellant guilty
as charged, and found the State had proven three aggravating factors for
each charge.2 After finding Appellant had at least two historical prior
felony convictions, the trial court sentenced him to a combination of
concurrent and consecutive maximum and aggravated sentences totaling
fifty-six years’ imprisonment in ADOC, and credited him for 706 days of
presentence incarceration.

¶8            We have jurisdiction over Appellant’s timely appeal. See
Ariz. Const. art. 6, § 9; Ariz. Rev. Stat. §§ 12-120.21(A)(1) (2016), 13-4031
(2010), 13-4033(A) (2010).



2      The jury found each offense (1) involved lying in wait for or
ambushing the victim during commission of the offense, (2) involved the
use, threatened use, or possession of a deadly weapon or dangerous
instrument, and (3) caused physical, emotional, or financial harm to the
victim.


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                             STATE v. VAUGHN
                             Decision of the Court

                                  ANALYSIS

¶9             Appellant challenges three of the trial court’s evidentiary
rulings. The trial court retains substantial discretion in determining the
relevance and admissibility of evidence, and we will not disturb its rulings
absent a clear abuse of that discretion. State v. Rose, 231 Ariz. 500, 513, ¶ 62
(2013) (citation omitted).

       I.     Admission of the 911 Call

¶10            Appellant argues the trial court abused its discretion by
granting the State’s motion in limine to admit C.S.’s statements during the
911 call as an “excited utterance.”

¶11            Under Rule 801, Arizona Rules of Evidence, an out-of-court
statement offered to prove the truth of the matter asserted constitutes
hearsay. State v. Bass, 198 Ariz. 571, 577 (2000). Generally, hearsay is
inadmissible, see Ariz. R. Evid. 802, unless one of the exceptions to the
hearsay rule applies. Hearsay is admissible as an “excited utterance” under
Rule 803(2) if it “relat[es] to a startling event or condition, made while the
declarant was under the stress of excitement that it caused.” Thus, to be
admissible as an excited utterance, three elements must be met: (1) a
startling event, (2) the statement must be made soon after the event to
ensure the declarant had no time to fabricate, and (3) the statement must
relate to the startling event. Bass, 198 Ariz. at 577 (citing State v. Whitney,
159 Ariz. 476, 482 (1989)). Additionally, the declarant must personally
observe the matter of which she speaks. Id. (citing State v. Dixon, 107 Ariz.
415, 418 (1971)).

¶12           Before trial, the State filed a motion in limine, arguing the 911
call placed by the victims was admissible at trial as an excited utterance.
After responsive briefing, the court listened to the tape and then informed
the parties that it planned to grant the motion as to the statements by C.S.
but deny the motion as to K.T.’s statements:

       I think with respect to the first declarant [C.S.], clearly, there’s
       a startling event. Clearly, the statements were relating to the
       startling event and it was soon after it was close in time. But
       more importantly, the first declarant on the phone was
       completely emotional the entire time. She was crying. She
       was hysterical. The 9-1-1 caller told her to do some breathing
       exercises, in fact, so she wouldn’t hyperventilate. I’m inclined
       to say that the call’s in as to the first caller.



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                            STATE v. VAUGHN
                            Decision of the Court

               As far as the second declarant [K.T.] on the 9-1-1 tape,
       I don’t think that’s an excited utterance. That -- this person
       seemed calm, cool, collected. Yes, there may have been a
       startling event. Yes, it was soon after the event, but this
       person did not seem to be in an emotional condition, and
       some of the statements were recounting what there was. That
       person figured out what had been stolen. In fact, for the
       second declarant on the 9-1-1 call, it strikes me that the most
       emotion demonstrated was actually yelling at the first
       declarant to kind of calm down and be calm in this. My
       inclination is, again, to allow the statements of the first
       declarant but not allow the statements of the second
       declarant, using the excited utterance exception to the hearsay
       rule.

             I’ll hear argument on that just so that you all can
       dissuade me in case I’m making a mistake on this.

Appellant argued C.S. “didn’t actually witness the alleged [sexual assault],
that she was passed out.” The court responded that it did not “ha[ve] to be
eyewitness testimony, but I think there has to be direct sensory proof.” The
State informed the court that C.S. would testify she not only had been cut,
but had heard the sexual assault occurring. The court then affirmed its
order, ruling the 911 call was admissible as to C.S.

¶13           In this case, the State presented reasonable evidence that
C.S.’s 911 call was an excited utterance. First, a series of startling events
occurred: Appellant broke into the victims’ apartment during the night,
sexually assaulted K.T., and cut C.S.’s fingers when she tried to prevent the
assault from continuing. Second, C.S. called 911 within minutes after the
assault and was crying uncontrollably throughout the call. Third, C.S.’s
statements about the sexual assault and her injury directly related to why
she was hysterical. On this record, the trial court acted well within its
discretion in admitting the 911 call.

¶14           Appellant argues an indeterminate amount of time occurred
before the 911 call, which “could have been as great as ten minutes after the
alleged assailant left,” and the victims therefore had time to fabricate their
statements to the 911 dispatcher.          Statements need not be made
immediately after an event to qualify as an excited utterance. State v. Rivera,
139 Ariz. 409, 411 (1984). Instead, because the guarantee of trustworthiness
that serves as the basis of the exception is the stress of the event, the most
important thing to consider is the physical and emotional condition of the


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                           STATE v. VAUGHN
                           Decision of the Court

declarant. Id. (citation omitted). Evidence that “a declarant still appeared
nervous or distraught and that there was a reasonable basis for continuing
emotional upset can be sufficient proof of spontaneity even where the
interval between the startling event and the statement is long enough to
permit reflective thought.” State v. Johnson, 183 Ariz. 623, 634 (App. 1995)
(quoting State v. Anaya, 165 Ariz. 535, 540 (App. 1990)). As the trial court
recognized, C.S. was crying and “hysterical” during the 911 call, and at
several points, the dispatcher had to try to calm C.S. by having her engage
in breathing exercises. Moreover, C.S. continued to be hysterical and crying
even after police officers arrived. These facts support the conclusion that
when C.S. placed the 911 call, she was still suffering from the emotional
trauma of the attacks.

¶15            Appellant also contends the 911 call was not an excited
utterance because C.S. did not personally observe the sexual assault of K.T.
The record belies Appellant’s contention. C.S. testified she woke up and
saw the silhouette of a man standing over the victims’ bed and then forcing
himself on K.T. When she tried to push him off K.T., she felt an
“excruciating pain and warmth in [her] hand and that’s when [she] knew
that [she] was bleeding.” After her fingers were cut open, she “curled up
in a fetal position” and listened helplessly as Appellant sexually assaulted
K.T., who was at the same time digging her fingernails into C.S.’s shoulder.
C.S. overheard Appellant state, “Now you guys can have a baby together.”
Finally, because of her personal observations of the event, C.S. was able in
court to describe the attacker as a Black male and identify his voice as
Appellant’s. The record fully supports the conclusion that C.S. personally
observed Appellant’s sexual assault of K.T. Accordingly, the trial court did
not abuse its discretion by admitting the 911 phone call from C.S. as an
excited utterance.

      II.    Evidence Regarding the Victims in ADOC

¶16           Appellant next argues the trial court erred in granting the
State’s motion in limine to preclude evidence the victims met while
incarcerated in ADOC. He maintains this evidence would have bolstered
his argument that K.T. and C.S. had prior knowledge of the legal system
and, after engaging in a fight resulting in an injury to C.S., fabricated the
sexual assault because they feared returning to prison due to potential
domestic violence charges.

¶17           Evidence is relevant if it has any tendency to make a fact that
is of consequence in the action more or less probable. Ariz. R. Evid. 401. A
trial court may exclude relevant evidence, however, if its probative value is


                                     6
                            STATE v. VAUGHN
                            Decision of the Court

substantially outweighed by a danger of unfair prejudice. Ariz. R. Evid.
403. Because the trial court is in the best position to make that balancing
determination, we afford that court substantial discretion in deciding the
admissibility of such evidence. Kiper, 181 Ariz. at 65.

¶18           Before trial, the State filed a motion in limine to preclude any
reference to the victims meeting “while serving time in the Department of
Corrections or that either have been to prison for any reason.” After
Appellant’s response and oral argument,3 the trial court granted the
motion, concluding the probative value of the evidence was substantially
outweighed by the danger of unfair prejudice:

              THE COURT FINDS that although there is some
       probative value to this evidence, the probative value is
       substantially outweighed by unfair prejudice. Should either
       victim testify, she will be able to be impeached by her prior
       felony conviction. Moreover, [Appellant] will be able to
       introduce that the victims had a relationship with one
       another. From these facts, [Appellant] can argue that the
       victims had prior knowledge of the workings of the criminal
       justice system. [Appellant] can also argue that the prior
       conviction relates to the credibility of each victim. That either
       or both victims had been to prison is not essential for such
       arguments to be made, and the prejudice from such
       allegations is substantial.

¶19          On appeal, Appellant argues the precluded evidence was
highly probative because it would have bolstered his position that he and
K.T. engaged in consensual intercourse, he left, K.T. and C.S. had a
domestic altercation in which C.S. was significantly injured, and K.T. and
C.S. then made a 911 call to get C.S. medical help while insulating them
from domestic violence charges and further prison time. Evidence the
victims met while incarcerated would not, however, make consensual
intercourse between Appellant and K.T. any more probable and would
have been of de minimis relevance. Moreover, nothing prevented Appellant
from cross-examining the victims on their prior felony convictions and
domestic violence history, and he did so, questioning K.T. about her prior
relationship with C.S., which included “an incident involving domestic

3       The record on appeal does not include the transcript of the argument
on the motion in limine. Because Appellant bore the burden of producing
it, we presume the missing transcript supports the trial court’s decision. See
State v. Kerr, 142 Ariz. 426, 430 (App. 1984).


                                      7
                           STATE v. VAUGHN
                           Decision of the Court

violence.” Appellant also questioned K.T. on her criminal history, eliciting
admissions to two prior felony convictions. As to C.S., Appellant did not
ask about her criminal history, but did elicit admissions that she and K.T.
had previous instances of domestic violence in their relationship.
Appellant used this history to argue in closing that C.S. and K.T. had
engaged in “another incident of domestic violence” and concocted the
allegations against him to prevent another report of a domestic violence
incident. Appellant could present his defense to the jury, and the court did
not abuse its discretion in concluding the probative value of evidence the
victims met while in prison was substantially outweighed by the danger of
unfair prejudice.

      III.   Evidence Regarding the Bus Incident

¶20           Appellant also argues the trial court abused its discretion by
granting the State’s pretrial motion to admit evidence he was kicked off a
city bus approximately 1.5 miles from the crime scene less than an hour
after the crimes occurred. Appellant contends this evidence was improper
character evidence that only “served to bias the jury as to [his] character.”

¶21          Pursuant to Arizona Rule of Evidence 404(b):

      [E]vidence of other crimes, wrongs, or acts is not admissible
      to prove the character of a person in order to show action in
      conformity therewith. It may, however, be admissible for
      other purposes, such as proof of motive, opportunity, intent,
      preparation, plan, knowledge, identity, or absence of mistake
      or accident.

(Emphasis added.) Evidence of a prior bad act 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 court
gives an appropriate limiting instruction upon request. State v. Mott, 187
Ariz. 536, 545 (1997). Also, the State must show by clear and convincing
evidence that the other act occurred and the defendant committed the act.
State v. Terrazas, 189 Ariz. 580, 584 (1997).

¶22           Before trial, the State moved to admit evidence that Appellant
had been kicked off a city bus for being argumentative with the driver
approximately 1.5 miles from the victims’ apartment less than one hour
after the charged crimes occurred. The State argued the evidence was
admissible pursuant to Rule 404(b) because it was directly relevant to
establishing Appellant’s identity as the perpetrator. Appellant responded



                                     8
                            STATE v. VAUGHN
                            Decision of the Court

that the evidence was not relevant and mischaracterized him as a criminal,
and he was not disputing he was at the victims’ apartment.

¶23           At the hearing on the motion, the parties stipulated the event
had occurred. The State argued it had the burden—independent of whether
Appellant disputed it at trial—of proving each element of the case beyond
a reasonable doubt. Appellant’s counsel argued the State had other
evidence that proved identity. The trial court concluded the State was
introducing the evidence for the proper purpose of identity and the
probative value of the evidence was not substantially outweighed by the
danger of unfair prejudice, but it limited the State from informing the jury
why Appellant was kicked off the bus. The court also offered Appellant a
limiting instruction if he requested one.

¶24           At trial, the State called the detective who had interviewed
Appellant, asking him why Appellant remembered the bus incident when
he could not remember anything else from that morning. The detective
affirmed that Appellant explained “it was traumatic that he got kicked off
and that’s why he remembers that.” The State later called Officer Masino,
who testified she responded to a call regarding a bus disturbance and came
in contact with Appellant at the scene at approximately 6:30 in the
morning—about an hour after the offenses at issue here occurred—and
approximately twelve blocks from the victims’ apartment.

¶25            Appellant argues the trial court abused its discretion in its
pretrial ruling allowing the testimony about the bus incident.4 In this case,
however, the parties stipulated that the event occurred. Further, the
evidence was relevant for the purpose of proving identity because it
provided additional evidence that Appellant was in the approximate area
when the crimes occurred, and although Appellant stated he did not contest
identity, the State still bore the burden of proving its entire case beyond a
reasonable doubt and was entitled to use evidence of its own choice. See
Old Chief v. United States, 519 U.S. 172, 189 (1997); State v. Schilleman, 125
Ariz. 294, 298 (1980). Additionally, by precluding the State from presenting
the reason Appellant was kicked off the bus, the court minimized any

4      Appellant opened the door to a fuller description of the bus incident
when he testified in detail about the incident, including that “some racial
slurs [were] thrown” at him. See State v. Lindsey, 149 Ariz. 472, 477 (1986);
State v. Levyas, 221 Ariz. 181, 189, ¶ 25 (App. 2009). The State therefore
called Officer Masino as a rebuttal witness to testify further about the
incident; however, Appellant challenges only the trial court’s initial pretrial
ruling on appeal.


                                      9
                            STATE v. VAUGHN
                            Decision of the Court

danger of unfair prejudice, and did not abuse its discretion by finding any
prejudice did not substantially outweigh the probative value of the
evidence. Finally, the court gave a limiting instruction at the end of the
trial, instructing the jury that it must not consider the evidence to determine
“the defendant’s character or character trait, or to determine that the
defendant acted in conformity with the defendant’s character or character
trait and therefore committed the charged offense.” We presume the jury
followed the court’s instructions. See State v. Reyes, 232 Ariz. 468, 471, ¶ 7
(App. 2013). Accordingly, the trial court did not abuse its discretion in
admitting evidence that Appellant was kicked off a city bus approximately
1.5 miles from the victims’ apartment within one hour after the offenses
occurred.

                               CONCLUSION

¶26           We affirm Appellant’s convictions and sentences.




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




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