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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  FRANK LEONARD BROWN, Appellant.

                             No. 1 CA-CR 18-0143
                               FILED 6-13-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-002867-001
                 The Honorable Jay R. Adleman, Judge

                                  AFFIRMED


                                   COUNSEL

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

The Gillespie Law Firm P.C., Phoenix
By Craig C. Gillespie, Dave Roscoe
Counsel for Appellant
                             STATE v. BROWN
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Jon W. Thompson joined.


J O N E S, Judge:

¶1            Frank Brown appeals his convictions and sentences for seven
domestic violence offenses. Brown argues the trial court erred by:
(1) disqualifying his first trial counsel from continuing representation;
(2) precluding the victim from testifying about her interaction with a police
officer outside of court during trial; and (3) admitting other-act evidence.
Brown also contends, for the first time on appeal, that the prosecutor
engaged in misconduct during closing arguments. For the following
reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            On November 1, 2015, Brown struck his girlfriend of five
years (the victim), in the face during an argument in a restaurant parking
lot.1 When the victim tried to flee, Brown followed her into the restaurant’s
restroom, pointed a handgun at her chest, and pushed her against a wall.
After the couple left the bathroom, the victim went to a hotel with her
friends. Meanwhile, Brown went to the victim’s apartment and slashed the
mattress with a knife.

¶3            Brown persuaded the victim to return to her apartment where
she noticed the damaged mattress, and a physical altercation ensued.
Brown then “torture[d]” the victim for “a couple hours,” choked her with
his hands, and confined her “against the door with [a] knife” before he and
the victim eventually fell asleep in separate rooms.

¶4            The following day, Brown held the victim down on the floor
and said, “I’m going to rape you.” Brown forced oral and vaginal sex on
the victim while she pleaded with him to stop.


1      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against the defendant. State
v. Harm, 236 Ariz. 402, 404, ¶ 2 n.2 (App. 2015) (citing State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).


                                      2
                            STATE v. BROWN
                           Decision of the Court

¶5           Later that day, the victim reported the events to law
enforcement and completed a petition for an order of protection against
Brown. The victim also relayed the events to a forensic nurse during a
physical examination. Brown did not refute the victim’s references to these
violent events in a confrontation call orchestrated by law enforcement.
Indeed, Brown apologized and acknowledged he had thought about
shooting the victim in the restaurant bathroom because he was afraid she
was going to leave him. Then, after being advised of his rights pursuant to
Miranda v. Arizona, 384 U.S. 436, 478-79 (1966), Brown made incriminating
statements. The State subsequently charged Brown with nine felony
domestic violence offenses.

¶6            Meanwhile, the victim ignored law enforcement’s attempts to
contact her and, instead, participated in several telephone conversations
and personal meetings with Brown’s retained trial counsel, Jocquese
Blackwell. One of the meetings took place in a hotel room Blackwell rented
for the victim. In the recordings, the victim recanted her prior statements
and denied Brown had threatened or harmed her.

¶7             When Blackwell advised of his intent to introduce the
recordings of his conversations with the victim into evidence, the State
moved to have him disqualified from Brown’s representation. After
considering Blackwell’s testimony at an evidentiary hearing, the trial court
found Blackwell to be a necessary witness and disqualified him from
further representation. Although Blackwell sought and obtained a stay of
the trial court proceedings, he never filed a petition seeking special action
review of the decision.

¶8            Thereafter, the State secured the victim’s presence at trial,
where she recanted the reports to law enforcement and the forensic nurse
that implicated Brown in the domestic violence offenses. The recorded
conversations were also admitted, and Blackwell testified about the
circumstances surrounding his conversations with the victim and his
decision to pay for her hotel room.

¶9           The jury found Brown guilty of one count each of assault,
kidnapping, and criminal damage and two counts each of aggravated
assault and sexual assault. The jury also determined the offenses were
domestic violence offenses. The trial court sentenced Brown to a
combination of concurrent and consecutive prison sentences totaling
fourteen years. Brown timely appealed, and we have jurisdiction pursuant




                                     3
                             STATE v. BROWN
                            Decision of the Court

to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1),2 13-4031,
and -4033(A)(1).

                               DISCUSSION

I.     Disqualification of Counsel

¶10           Brown argues the trial court violated his constitutional right
to counsel of his choice when it determined Blackwell was a necessary trial
witness and disqualified him from Brown’s representation. Brown also
contends the court should have permitted Blackwell to testify for the
limited purpose of establishing foundation for one phone conversation
which did not include Blackwell’s associate3 and then allowed him to
continue representing Brown. “We review a trial court’s decision on the
disqualification of counsel for [an] abuse of discretion.” State v. Tucker, 205
Ariz. 157, 162, ¶ 23 (2003) (citing State v. Jones, 185 Ariz. 471, 482 (1996)).

¶11           As a matter of professional ethics:

       A lawyer shall not act as advocate at a trial in which the
       lawyer is likely to be a necessary witness unless:

       (1)    the testimony relates to an uncontested issue;

       (2)    the testimony relates to the nature and value of legal
              services rendered in the case; or

       (3)    disqualification of the lawyer would work substantial
              hardship on the client.

Ariz. R. Sup. Ct. 42, ER 3.7(a). A lawyer-witness is considered “necessary”
for purposes of ER 3.7 if the proposed testimony is relevant, material, and
unobtainable elsewhere. Sec. Gen. Life Ins. v. Superior Court, 149 Ariz. 332,
335 (1986).

¶12          The trial court determined Blackwell’s testimony provided
the foundation for the victim’s recorded statements as well as crucial
information to an important issue at trial: how and why the victim’s story


2      Absent material changes from the relevant date, we cite the current
version of rules and statutes.

3      The record is unclear as to whether Blackwell’s associate
participated in all but one of the conversations or only one conversation.


                                      4
                             STATE v. BROWN
                            Decision of the Court

had changed. Additionally, at the time of the disqualification order, the
victim had avoided service of the State’s subpoena and was unavailable to
provide this information herself. Thus, Blackwell’s testimony was relevant,
material, and unobtainable elsewhere. On this record, the court did not
abuse its discretion in finding Blackwell to be a necessary witness and
disqualifying him from representing Brown. The mere availability of
another remedy does not compel a different conclusion. See State v. Givens,
161 Ariz. 278, 281 (App. 1989) (concluding “[a] trial court has acted in its
sound discretion in rejecting possible alternatives . . . if reasonable judges
could differ about the proper disposition, even though in a strict literal
sense, the [chosen remedy] is not ‘necessary’”) (citing Arizona v. Washington,
434 U.S. 497, 506 (1978)).

II.    Preclusion of Victim’s Testimony

¶13            Brown argues the trial court erred when it precluded him
from recalling the victim as a witness to testify about a conversation she
had with a law enforcement officer in the hallway after she finished
testifying. Alternatively, Brown argues the court erred in failing to conduct
an evidentiary hearing “to allow the parties to question [the officer] as to
his motives.” “Decisions regarding the admission or exclusion of evidence
are left to the sound discretion of the trial court and will be reversed on
appeal only when they constitute a clear and prejudicial abuse of the court’s
discretion.” State v. Ayala, 178 Ariz. 385, 387 (App. 1994) (internal citations
and quotations omitted). We find no abuse of discretion here.

¶14           “Evidence is relevant if: (a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.” Ariz. R. Evid. 401.
“Irrelevant evidence is not admissible.” Ariz. R. Evid. 402. But even
relevant evidence may be excluded “if its probative value is substantially
outweighed by a danger of . . . confusing the issues.” Ariz. R. Evid. 403.

¶15            The record reflects that a law enforcement officer who was not
involved with this case approached the victim in the hallway after she
finished testifying. Over the course of several minutes, the victim declined
requests to “chat” with the officer, purportedly about an unrelated
investigation, and felt harassed by his continued attention. According to
Brown’s counsel, “[t]he only way this interaction ended is because . . . [the
victim’s counsel] said, if you’re not under arrest, if he’s not placing you
under arrest, walk away from this officer.” Brown characterized these
events as “witness tampering” and asked to recall the victim to testify about
the incident. After listening to the audio recording of the conversation, the


                                      5
                             STATE v. BROWN
                            Decision of the Court

trial court precluded Brown from introducing the evidence. In doing so,
the court determined that: there was no reason to believe the conversation
altered the victim’s testimony or caused her to “recant her recantation”; the
event was irrelevant to the determination of any fact necessary to prove
Brown’s culpability in the domestic violence offenses; and evidence of the
confrontation was likely to confuse the jury as to whose conduct they were
evaluating.

¶16           The trial court’s findings are supported by the record, and we
defer to them. See State v. Chapple, 135 Ariz. 281, 297 n.18 (1983) (noting the
trial court “has a more immediate grasp of all the facts of the case, an
opportunity to see the parties, lawyers and witnesses, and [it] can better
assess the impact of what occurs” in court). The findings also support the
court’s conclusion that the evidence was irrelevant and inadmissible or,
alternatively, relevant but substantially outweighed by a danger of
confusing the issues. Accordingly, we find no error.

III.   Other-Act Evidence

¶17            Brown argues the trial court erred in admitting other-act
evidence pursuant to Arizona Rule of Evidence 404(b) without first
conducting an evidentiary hearing to determine that the other acts in fact
occurred. However, Brown expressly and unequivocally denied that an
evidentiary hearing was necessary to determine 404(b) admissibility and
cannot now assert reversible error resulted from the circumstances he
created. See State v. Pandeli, 215 Ariz. 514, 528, ¶ 50 (2007) (declining to
consider an alleged error in the admission of evidence where the defendant
“explicitly stated that he did not” object to its admissibility) (citing State v.
Moody, 208 Ariz. 424, 453, ¶ 111 (2004)).

¶18            Brown also argues the trial court erred in admitting other-act
evidence without including a detailed explanation, on the record, of how it
balanced the prejudicial nature of the evidence against its probative value.
See Ariz. R. Evid. 403 (allowing for exclusion of relevant evidence “if its
probative value is substantially outweighed by a danger of . . . unfair
prejudice”). Generally, 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, if the party requests one.” State v.
Terrazas, 189 Ariz. 580, 583 (1997) (citation omitted). The State must also
prove by clear and convincing evidence that the other act in fact occurred
and the defendant committed the act. Id. at 584. “We review the admission
of prior[-]act evidence under Rule 404(b) for [an] abuse of discretion.” State


                                       6
                             STATE v. BROWN
                            Decision of the Court

v. Beasley, 205 Ariz. 334, 337, ¶ 14 (App. 2003) (citing State v. Van Adams, 194
Ariz. 408, 415, ¶ 20 (1999)).

¶19           Brown’s reliance on State v. Taylor, 169 Ariz. 121 (1991), is
unpersuasive. There, our supreme court was unable to review the trial
court’s decision to exclude other-act evidence because it “[could ]not
determine with any degree of certainty . . . whether the trial court excluded
the victim’s prior conviction because he considered it irrelevant or because
he believed the prejudice outweighed the probative value.” Id. at 125. The
issue in Taylor was thus the lack of finding regarding the Rule 403 balance
— not whether that finding was sufficiently detailed. See id. at 125-26.
Indeed, Brown fails to identify any authority that requires the court to do
more than place its finding regarding the Rule 403 balancing of prejudice
and probative value on the record — which is precisely what occurred here.
We find no error.

IV.    Prosecutorial Misconduct

¶20           Finally, Brown claims the prosecutor engaged in misconduct
during closing arguments when she stated Brown was “clearly guilty” of
the charged offenses. Because Brown did not object to the prosecutor’s
comments at trial, we review for fundamental error. State v. Henderson, 210
Ariz. 561, 567, ¶ 19 (2005) (citing State v. Bible, 175 Ariz. 549, 588 (1993)).

¶21           “Prosecutorial misconduct ‘is . . . intentional conduct which
the prosecutor knows to be improper and prejudicial, and which he pursues
for any improper purpose with indifference to a significant resulting
danger of mistrial.’” State v. Aguilar, 217 Ariz. 235, 238-39, ¶ 11 (App. 2007)
(quoting Pool v. Superior Court, 139 Ariz. 98, 108-09 (1984)). The prosecutor’s
argument that Brown was “clearly guilty” was not improper, but rather, a
conclusion to be drawn from the evidence. See Bible, 175 Ariz. at 602
(“[D]uring closing arguments counsel may summarize the evidence, make
submittals to the jury, urge the jury to draw reasonable inferences from the
evidence, and suggest ultimate conclusions.”) (citations omitted). Because
the challenged statements do not amount to misconduct, no error,
fundamental or otherwise, occurred.




                                       7
                    STATE v. BROWN
                   Decision of the Court

                      CONCLUSION

¶22   Brown’s convictions and sentences are affirmed.




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




                               8
