                          NOTICE: NOT FOR PUBLICATION.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.

                  JOHN GARLAND CREASEY, Appellant.

                             No. 1 CA-CR 13-0833
                              FILED 06-24-2014


            Appeal from the Superior Court in Mohave County
                         No. S8015CR201200849
                The Honorable Rick A. Williams, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General‟s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Mohave County Legal Defender‟s Office, Kingman
By Diane S. McCoy
Counsel for Appellant
                           STATE v. CREASEY
                           Decision of the Court




                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Margaret H. Downie joined.


K E S S L E R, Judge:

¶1            John Garland Creasey appeals his conviction on one count of
aggravated DUI with a blood alcohol concentration (“BAC”) of .08% or
more, a class 4 felony. Creasey argues the trial court erred in admitting
rebuttal testimony about the inherent dangers of drinking alcohol and
driving a motor driven cycle. For reasons that follow, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2           Creasey was stopped by Officer J.T. (“J.T.”) while riding a
motor driven cycle because the vehicle did not have a rear license plate.1
During the traffic stop, another officer arrived and observed that
Creasey‟s breath smelled strongly of alcohol. After Creasey agreed to and
performed poorly on multiple field sobriety tests, he was arrested and
taken to Lake Havasu Police Station. An Intoxilyzer breath test was
administered by an officer who later testified at trial that Creasey‟s blood
alcohol concentration levels were .152 and .146, respectively.

¶3          A grand jury indicted Creasey on one count of aggravated
DUI based on impairment, a class 4 felony (“Count 1”), and one count of
aggravated DUI based on an alcohol concentration of .08% or more, a class


1 Although Creasey referred to the cycle as a “moped,” it does not qualify
as a “moped” because it does not have pedals like a bicycle. See Ariz. Rev.
Stat. (“A.R.S.”) § 28-101(31) (Supp. 2013) (defining moped as “a bicycle
that is equipped with a helper motor if the vehicle has a maximum piston
displacement of fifty cubic centimeters or less, a brake horsepower of one
and one-half or less and a maximum speed of twenty-five miles per hour
or less on a flat surface with less than one per cent grade.”). The vehicle is
a “motor driven cycle,” a type of motorcycle, because it is a motor scooter
and has an engine that produces less than five horsepower. See A.R.S. §
28-101(32). Therefore, we will refer to it as a motor driven cycle.



                                      2
                           STATE v. CREASEY
                           Decision of the Court

4 felony (“Count 2”), both aggravated because Creasey was allegedly
driving on a suspended license. See Ariz. Rev. Stat. (“A.R.S.”) §§ 28-
1381(A)(1)-(2) (2012); -1383(A)(1) (Supp. 2013). At trial Creasey admitted
that he had been drinking at lunch immediately before driving the motor
driven cycle. He also admitted that he was driving while his license was
suspended.

¶4            During opening statements, Creasey referred to the paltry
engine size and horsepower of the motor driven cycle he was riding at the
time of arrest. Additionally, he stated the motor driven cycle‟s maximum
speed was not “above [twenty-five] miles per hour.” In the State‟s
rebuttal case, J.T. testified there were general, inherent dangers with
motor driven cycles when you “combine that with alcohol,” both for the
driver and for others. Creasey did not object to this testimony. The State
also asked J.T. if, as an officer on an accident investigation team, he had
ever responded to accidents or fatalities involving alcohol and motor
driven cycles. Creasey objected on the grounds the subject was irrelevant
and outside the scope of rebuttal. The trial court overruled the objection
and J.T. responded that he had been to motor driven cycle accidents
involving fatalities when alcohol was involved and when it was not.
During cross-examination of J.T., Creasey inquired whether such an
accident had occurred and whether anyone was hurt in this case. J.T.
responded that there was not.

¶5            The jury acquitted Creasey of Count 1, but convicted him on
Count 2. Due to his two prior historical felony convictions, he was
sentenced as a category three repetitive offender to a mitigated term of
eight years‟ incarceration. Creasey timely appealed. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§
12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A)(1) (2010).

                              DISCUSSION

¶6            Creasey argues the trial court improperly admitted Officer
J.T.‟s rebuttal testimony over his relevance and scope of rebuttal




                                     3
                            STATE v. CREASEY
                            Decision of the Court

objections.2 Rebuttal evidence is introduced to counter a new fact or
allegation made in an opponent‟s case. Jansen v. Lichwa, 13 Ariz. App. 168,
171, 474 P.2d 1020, 1023 (1970). Determining what testimony is proper
rebuttal is within the trial court‟s discretion. State v. Christensen, 129 Ariz.
32, 37, 628 P.2d 580, 585 (1981). When the defendant has previously
admitted evidence that “opens the door” on a subject at issue, rebuttal
testimony on that issue is proper. State v. Dowthard, 3 Ariz. App. 237, 239,
413 P.2d 296, 298 (1966). Relevance of expert testimony is measured by
whether the jury will receive any discernible help from the testimony of a
particular witness with reference to the subject of the testimony. Bliss v.
Treece, 134 Ariz. 516, 518-19, 658 P.2d 169, 171-72 (1983); see also Ariz. R.
Evid. 702. Under Arizona Rule of Evidence 403, the court may exclude
relevant evidence if its probative value is substantially outweighed by a
danger of unfair prejudice or misleading the jury.

¶7            We will not disturb a trial court‟s decision on the admission
of testimony absent an abuse of discretion. State v. Steelman, 120 Ariz. 301,
319, 585 P.2d 1213, 1231 (1978). “„Abuse of discretion‟ has been defined as
an exercise of discretion which is manifestly unreasonable, exercised on
untenable grounds or for untenable reasons.” State v. Woody, 173 Ariz.
561, 563, 845 P.2d 487, 489 (App. 1992) (citation omitted). Even if the trial
court erred in determining admissibility of evidence, we will not reverse
unless the error was prejudicial. Steelman, 120 Ariz. at 319, 585 P.2d at
1231. To determine prejudice, “[t]he inquiry . . . is not whether, in a trial
that occurred without the error, a guilty verdict would surely have been
rendered, but whether the guilty verdict actually rendered in this trial was
surely unattributable to the error.” State v. Anthony, 218 Ariz. 439, 446, ¶
39, 189 P.3d 366, 373 (2008) (citation omitted). In reviewing the ruling, we
construe the evidence in the light most favorable to sustaining the trial
court. Crowe v. Hickman’s Egg Ranch, Inc., 202 Ariz. 113, 115, ¶ 6, 41 P.3d
651, 653 (2002).

¶8          Here, the court did not err in admitting the evidence.
Creasey opened the door to evidence on the subject of dangerousness in
his opening argument when he presented the motor driven cycle as

2 Creasey also argues the testimony was inadmissible as improper expert
testimony. Creasey did not raise this argument at trial. Arguments first
raised on appeal are considered waived absent fundamental error. See
State v. Goldsmith, 112 Ariz. 399, 401, 542 P.2d 1098, 1100 (1975). As
discussed below, we find no fundamental error in the admission of the
testimony.



                                       4
                           STATE v. CREASEY
                           Decision of the Court

“paltry,” and only able to reach twenty-five miles an hour. Evidence of
the danger of driving a motor driven cycle was relevant to rebut any claim
by Creasey that the minor level of his infraction could influence the jury‟s
decision on the charges of driving under the influence.

¶9            Even if the trial court erred, we find no reversible error. As
to the testimony about fatalities from motor driven cycle accidents,
Creasey objected based on relevance and that it was beyond the scope of
the direct evidence since there was no accident in this case. Because the
objection was preserved we review for harmless error, see State v.
Henderson, 210 Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005), and the State
has the burden to show that the guilty verdict rendered was surely
unattributable to the error, see Anthony, 218 Ariz. at 446, ¶ 39, 189 P.3d at
373.

¶10            The only issues before the jury on Count 2 were whether
Creasey was driving with a BAC greater than .08% and whether his
license to drive had been suspended. The jury was so instructed. Creasey
admitted to drinking before driving on the day of his arrest. The police
officer who conducted the Intoxilyzer test testified Creasey‟s BAC was
over .08%. Creasey admitted he was driving while his license was
suspended. Testimony about dangers of driving under the influence
would not affect the jury‟s determination as to Creasey‟s driving with a
BAC of greater than .08%.

¶11           Creasey argues even generalized irrelevant testimony to
strengthen a party‟s case can amount to prejudicial error. His reliance on
State v. Moran, 151 Ariz. 378, 728 P.2d 248 (1986), and Pincock v. Dupnik,
146 Ariz. 91, 703 P.2d 1240 (App. 1985), is misplaced. In Moran, the
supreme court stated that generalized testimony about conduct of sexual
abuse victims which might affect a jury‟s credibility determination may be
admissible because such testimony will assist the jury in deciding the
victim‟s credibility. 151 Ariz. at 381-82, 728 P.2d at 251-52. More
particularized expert testimony about the victim is not admissible when
the only evidence is the victim‟s testimony conflicting with the
defendant‟s testimony. Id. at 382-83, 728 P.2d at 252-53. This evidence
should not be admitted because it tends to tell the jury how to decide
credibility. Id. at 383, 728 P.2d at 253. The expert testimony here is
generalized, not particularized, and has nothing to do with credibility
determinations. In Pincock, the court held that experts on accidents arising
from high-speed police chases cannot testify as to the reasonableness of a
particular chase because the issue is well within the knowledge of a jury.
146 Ariz. at 96, 703 P.2d at 1245. The testimony here did not concern the


                                     5
                           STATE v. CREASEY
                           Decision of the Court

reasonableness of Creasey‟s driving, only the generalized dangers of
driving vehicles while under the influence. In addition, Creasey asked
and J.T. testified on cross-examination that there was no such accident in
this case and no one had been injured. This further supports a finding of
harmless error. As such, the testimony did not unfairly prejudice Creasey
so we find no reversible error.

¶12           Viewing the evidence in the light most favorable to
upholding the verdict, we agree the State proved Creasey guilty of Count
2 beyond a reasonable doubt. The State has also shown any alleged error
was harmless. We conclude any alleged error in allowing improper and
irrelevant expert testimony in rebuttal had no effect on the jury‟s verdict.

¶13            Creasey also argues the trial court improperly admitted J.T.‟s
testimony about the inherent dangers of combining alcohol and motor
driven cycles under Arizona Rule of Evidence 403 as unfairly prejudicial.
We accord substantial discretion to the trial court in weighing a Rule 403
objection. Hudgins v. Sw. Airlines, Co., 221 Ariz. 472, 481, ¶ 13, 212 P.3d
810, 819 (App. 2009). Creasey did not object to this testimony at trial, thus
waiving any Rule 403 objections. See State v. Montano, 204 Ariz. 413, 425,
426, ¶¶ 58, 63, 65 P.3d 61, 73, 74 (2003). In the absence of an objection at
trial, we review only for fundamental error. Henderson, 210 Ariz. at 567, ¶
19, 115 P.3d at 607.

¶14           Fundamental error is “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.” Id. (citation omitted). The defendant must prove
both that fundamental error exists and that the error caused prejudice. Id.
at ¶ 20. For the reasons stated above, Creasey has not proven there was
error in admitting this testimony, nor that he was unfairly prejudiced by
its admission.

                              CONCLUSION

¶15          For the foregoing reasons, we affirm Creasey‟s convictions
and sentences.




                                    :gsh



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