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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                NICHOLAS THOMAS RUSING, Appellant.

                             No. 1 CA-CR 15-0666
                             No. 1 CA-CR 15-0667
                                (Consolidated)
                               FILED 2-21-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2010-155127-001
                             CR2013-460375-001
            The Honorable Jerry Bernstein, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza Ybarra
Counsel for Appellee

Ballecer & Segal LLP, Phoenix
By Natalee E. Segal
Counsel for Appellant
                            STATE v. RUSING
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which Chief
Judge Michael J. Brown and Presiding Judge Samuel A. Thumma joined.1


O R O Z C O, Judge:

¶1              Nicholas Thomas Rusing appeals his convictions and
sentences for possession of dangerous drugs, a class 4 felony, and
possession of drug paraphernalia, a class 6 felony, and the resultant
revocation of his probation for a conviction of possession of marijuana for
sale, a class 4 felony. For the reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           The evidence at trial, viewed in the light most favorable to
supporting the convictions,2 showed that security personnel at the Casino
Arizona Talking Stick Resort contacted Salt River police after observing
suspicious behavior by Rusing and a friend in a car in the parking lot at
about 1 a.m.

¶3            The Salt River police officer testified that Rusing admitted he
and his friend had been smoking methamphetamine, and told the officer
the methamphetamine pipe was in his backpack, but he did not believe
there was any methamphetamine left. The officer searched the backpack
with Rusing’s consent, and discovered a methamphetamine pipe and a
small baggie of methamphetamine.

¶4            At trial, Rusing testified that he had not been smoking
methamphetamine, he had not told the officer he was smoking
methamphetamine, and he had not known that the methamphetamine pipe
or methamphetamine was in his backpack. He stated that his friend, A.G.,
had been smoking methamphetamine earlier, and he guessed that his
friend put the pipe and methamphetamine in his backpack.


1      The Honorable Patricia A. Orozco, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.

2     See State v. Boozer, 221 Ariz. 601, 601, ¶2 (App. 2009).


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                           Decision of the Court

¶5            The jury convicted Rusing of the charged offenses in CR2013-
460375-001, and found that he was on probation at the time he committed
the offenses. As a result of the convictions, the court found Rusing to be in
automatic violation of his probation in CR2010-155127-001, and revoked his
probation. The court found that Rusing had admitted on the witness stand
that he had two prior historical felony convictions.

¶6            The court sentenced Rusing to 10 years in prison on the
conviction for possession of dangerous drugs, and 3.75 years in prison on
the conviction for possession of drug paraphernalia in CR2013-460375-001,
to be served concurrently, but consecutively to a prison term of 2.5 years in
CR2010-155127-001. The court gave Rusing leave to apply for executive
clemency in CR2013-460375-001.

¶7          Rusing filed timely notices of appeal in both cases, which
were consolidated on appeal. This court has jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) §§ 12-120.21.A.1 and 13-4031, 4033.A.

                              DISCUSSION

       A.     Preclusion of Evidence

¶8            Rusing argues that the court erred, violating his right to due
process, by preventing him from testifying that A.G. had died before trial.
Rusing concedes he did not object at trial, limiting this court to review for
fundamental error only. See State v. Henderson, 210 Ariz. 561, 568, ¶ 22
(2005). On fundamental error review, defendant has the burden of proving
that the court erred, that the error was fundamental in nature, and that he
was prejudiced thereby. Id. at 567, ¶ 20.

¶9             Rusing has failed to meet his burden to demonstrate that the
court erred, much less fundamentally erred to his prejudice. The evidence
that A.G. had died before trial was not relevant to whether Rusing
possessed the drugs or paraphernalia on the date in question, and might
have posed a danger of confusing the issues. See Ariz. R. Evid. 401, 403
(stating the court may exclude relevant evidence when “its probative value
is substantially outweighed by a danger of . . . confusing the issues”).
Rusing argues that the jury might have unfairly inferred from the fact that
A.G. did not testify on Rusing’s behalf that A.G. had not been the person
smoking methamphetamine, and had not put the drugs and pipe in
Rusing’s backpack. Rusing’s argument that the jury would have inferred
his guilt from A.G.’s absence at trial is pure conjecture, however, which is
an inappropriate basis for finding fundamental error. See State v. Diaz, 223



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                           Decision of the Court

Ariz. 358, 361, ¶ 13 (2010) (“We will not reverse a conviction based on
speculation or unsupported inference.”).

¶10           Moreover, Rusing cannot show he was prejudiced by
preclusion of this evidence. Rusing’s testimony that A.G. was “not around
anymore” and his emotional demeanor was sufficient to convey to the jury
that A.G. had died before trial.

¶11           On this record, Rusing has not shown fundamental error
resulting in prejudice.

       B.     Failure to Record Interview

¶12           Rusing urges this court to find that “the requirement of
recorded interrogations is fundamental to a fair trial,” and accordingly, as
a matter of due process, we should retroactively impose a rule that “police
officers must either record statements by suspects or lose the right to use
them in court.” The officer testified he was unable to record Rusing’s
statements outside the casino because the conversation occurred too far
away from his vehicle for the police-issued recorder to work.

¶13           Rusing did not object at trial to the admission of the officer’s
testimony about what Rusing told him the night of the incident. We
accordingly are limited to review for fundamental error only. Henderson,
210 Ariz. at 568, ¶ 22.

¶14            Rusing acknowledges that the Arizona Supreme Court has
not held that recordings are required as a matter of due process, but relies
on dicta in State v. Jones, 203 Ariz. 1 (2002), noting the importance of
recording a suspect’s statements, and mentioning that both Alaska and
Minnesota have required recording of custodial interrogations. See id. at 7,
¶ 18. Alaska has held that recording is required by the Alaska constitution
as a matter of due process, but unrecorded statements are inadmissible only
“when the interrogation occurs in a place of detention and recording is
feasible.” See Stephan v. State, 711 P.2d 1156, 1159-60 (Alaska 1985). The
Minnesota Supreme Court relied on the “exercise of [their] supervisory
power to insure the fair administration of justice” to impose a requirement
that “all custodial interrogation . . . shall be electronically recorded where
feasible and must be recorded when questioning occurs at a place of
detention.” State v. Scales, 518 N.W.2d 587, 592-93 (Minn. 1994). Neither
court held that custodial interrogations must be recorded to satisfy the due
process requirements of the United States Constitution. See Stephan, 711
P.2d at 1160; Scales, 518 N.W.2d at 592.



                                      4
                              STATE v. RUSING
                             Decision of the Court

¶15           As an initial matter, the rules devised by Alaska and
Minnesota do not apply to the statements obtained from Rusing, because
Rusing does not appear to have been in custody and indisputably was not
in a “place of detention” at the time the officer obtained the statements at
issue.

¶16            Rusing has made no significant argument that the United
States Constitution, the Arizona Constitution, or this court’s supervisory
power to ensure the fair administration of justice support such a rule in
Arizona. He also acknowledges that many other states have rejected such
a rule. See Clark v. State, 287 S.W.3d 567, 574-75 (Ark. 2008) (citing cases).

¶17           Moreover, the court instructed the jury that it could consider
Rusing’s statements to the police officer only if it concluded beyond a
reasonable doubt that they were voluntary, and it should give his
statements as much weight as it believed the statements deserved under all
the circumstances. The court also instructed the jury that it must consider
a police officer’s testimony just as it would the testimony of any other
witness. The jury is presumed to have followed these instructions. State v.
Newell, 212 Ariz. 389, 403, ¶ 68 (2006).

¶18           Under these circumstances, we decline Rusing’s invitation to
impose a broad rule applicable to this case that all unrecorded statements
by a defendant to law enforcement are inadmissible as a matter of due
process, and we find no error, much less fundamental error, in admitting
Rusing’s statements at trial.

       C.     Admission of Prior Felony Convictions

¶19          Rusing argues that the court’s finding that he had admitted to
two prior felony convictions on cross-examination should be set aside,
because the prosecutor repeatedly misstated the dates of the alleged crimes
and convictions, and their case numbers, and it was not clear that he was
admitting the same priors the prosecutor was attempting to prove.

¶20            Defense counsel agreed at sentencing, however, that Rusing
had admitted to the two historical felony convictions at trial, obviating the
need for a trial on the priors, arguably inviting any error. See State v. Pandeli,
215 Ariz. 514, 528, ¶ 50 (2007) (applying the invited error doctrine when
defense counsel failed to object to evidence offered by the state and
affirmatively agreed the evidence was admissible).

¶21          Moreover, even if Rusing did not invite the error, because he
never objected below, he has the burden to show that error occurred, the


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                            STATE v. RUSING
                           Decision of the Court

error was fundamental, and he was prejudiced thereby. See Henderson, 210
Ariz. at 567, ¶ 20.

¶22            Rusing has failed to meet his burden for reversal on
fundamental error review. Before trial, the state filed an allegation of
historical priors, alleging that Rusing committed two felony offenses on
different dates in 2010, and was convicted of both in CR2010-155127-001:
facilitation to commit sale of marijuana, a class 6 designated felony, and
possession of marijuana for sale, a class 4 felony. On cross-examination,
following some confusion, Rusing admitted that he had been convicted of
the two felonies: one committed on September 29, 2010, and one committed
on October 13, 2010, both of which he was convicted of and sentenced in
CR2010-155127-001. This admission by Rusing of his prior convictions
while on the witness stand was sufficient to support the court’s finding. See
Ariz. R. Crim. P. 17.6.

¶23           On this record, the court did not err, much less fundamentally
err, to Rusing’s prejudice in concluding that Rusing had admitted to the
two priors that had been alleged.

                              CONCLUSION

¶24          For the foregoing reasons, we affirm Rusing’s convictions and
sentences.




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




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