                          NOTICE: NOT FOR PUBLICATION.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, Respondent,

                                        v.

                   JEREMY LYNN GARRISON, Petitioner.

                         No. 1 CA-CR 12-0505 PRPC
                              FILED 06-12-2014


     Petition for Review from the Superior Court in Yavapai County
             Nos. P1300CR20090603 and V1300CR201180101
                   The Honorable Cele Hancock, Judge

REVIEW GRANTED; RELIEF DENIED IN PART; REMANDED IN PART


                                   COUNSEL

Yavapai County Attorney’s Office, Prescott
By Dana E. Owens
Counsel for Respondent

White Law Offices, Flagstaff
By Wendy F. White
Counsel for Petitioner
                          STATE v. GARRISON
                          Decision of the Court



                     MEMORANDUM DECISION

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


J O N E S, Judge:

¶1            Petitioner Jeremy Lyn Garrison petitions this Court for
review from the dismissal of his petition for post-conviction relief.
Presiding Judge Kenton D. Jones and Judges Margaret H. Downie and
Donn Kessler have considered the petition for review and, for the reasons
stated, grant review, deny relief in part and remand in part. We have
jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).

I.    Background

¶2             This matter involves two cases. In the first case, Garrison
pled guilty to attempted aggravated domestic violence and the trial court
placed him on probation.           In the second case, which occurred
approximately two years later, a jury convicted Garrison of stalking and
harassment. As a result of these convictions, the trial court revoked
Garrison’s probation in the first case, imposing instead a sentence of two
years' imprisonment. As his sentence in the second case, Garrison was
ordered to serve a consecutive term of 3.75 years' imprisonment for
stalking and time served for harassment. Garrison did not file a direct
appeal. He did, however, file a timely, consolidated petition for post-
conviction relief. The trial court dismissed the petition and Garrison now
seeks review. In his petition for review, Garrison argues his trial counsel
in the second case was ineffective in failing to object to the admission of
certain evidence. He further argues the trial court failed to give him
sufficient credit for his presentence incarceration. 1

II.   The Failure to Object

¶3           The victims of the harassment and stalking convictions in
the second case are husband and wife. The convictions were based upon


1 Garrison raised additional issues below but does not present them for
review.



                                    2
                           STATE v. GARRISON
                           Decision of the Court

numerous messages Garrison left on telephone answering devices of the
victims. The victim of the attempted domestic violence conviction in the
first case was the wife's adult daughter. The trial court ruled that
telephone calls Garrison made to the daughter, in the first case, were
admissible in the trial of the second case pursuant to Arizona Rule of
Evidence 404(b). Those calls contained death threats and other threats of
violence and vulgarity.

¶4            Garrison argues counsel in his second case was ineffective in
failing to object to what Garrison describes as "character evidence"
introduced through the daughter and the wife – evidence he argues went
beyond the content of the calls Garrison made in the first case. 2 Regarding
the daughter's testimony, Garrison asserts counsel should have objected
when the daughter testified that during her relationship with Garrison,
she knew he was an "angry and violent" person based upon the way he
yelled and screamed at her, called her names, pulled her hair, hit her and
kicked her, threw and destroyed "things," and punched holes in the walls
of her home. Regarding the wife's testimony, Garrison contends counsel
should have objected when she testified Garrison fit profiles of stalkers
she found online and that some of Garrison's statements made her think of
O.J. Simpson and caused her to imagine how Garrison might kill her
daughter.

¶5            To state a colorable claim of ineffective assistance of counsel,
a defendant must show counsel's performance fell below objectively
reasonable standards and the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687, 688, 104 S.Ct. 2052,
2064 (1984). To illustrate prejudice, a defendant must show a "reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland, 466 U.S at 694, 104 S.Ct.
2068. "A reasonable probability is a probability sufficient to undermine
confidence in the outcome." Id.

¶6            Garrison has failed to state a colorable claim of ineffective
assistance based upon the failure to object. First, not every failure to
object to evidence is ineffective assistance of counsel. State v. Valdez, 160
Ariz. 9, 15, 770 P.2d 313, 319 (1989). Strategic choices of counsel “are
virtually unchallengeable.” Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066.
Second, Garrison has failed to prove he suffered any prejudice because he

2 We address only that evidence for which Garrison provides citations to
the record.



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                            STATE v. GARRISON
                            Decision of the Court

failed to show there is a "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different." Id. at 703, 104 S.Ct. at 2072; State v. Lee, 142 Ariz. 210, 214, 689
P.2d 153, 157 (1984). The jury heard evidence regarding the death threats
and threats of violence and vulgarity Garrison left in the messages to the
daughter, and Garrison raises no issues regarding those prior messages.
Further, Garrison conceded he left the subsequent messages to the wife
and husband. The content of those messages was not in question; they too
contained threats and vulgarity. The only issue for the jury to decide was
whether those messages, as charged, would cause a reasonable person to
fear for the person's safety or the safety of an immediate family member,
and whether the wife and husband did in fact fear for their safety or the
safety of an immediate family member. Ariz. Rev. Stat. (A.R.S.) § 13-
2923(A)(1) (2014) 3 (stalking defined).

¶7             Arguably, the testimony of the daughter and wife placed
those messages in context and was admissible to prove those messages
would cause a reasonable person, who had knowledge of Garrison's prior
actions, to fear for his or her safety or the safety of an immediate family
member. Garrison offers nothing to suggest the trial court would have
sustained an objection. Even if objectionable, given the evidence, Garrison
has failed to demonstrate a reasonable probability the results would have
been different had counsel objected to the evidence in question. This is
especially true in light of the jury not convicting Garrison of stalking the
husband, but convicted him of the lesser-included offense of harassment
of the husband. Clearly, the jury was not persuaded by the testimony at
issue. If the jury believed Garrison was a stalker simply because the wife
said he fit the profile and reminded her of O.J. Simpson, and the daughter
claimed he engaged in acts of violence, the jury would have seemingly
found him guilty of stalking the husband as well.

III.   Presentence Incarceration Credit

¶8             Garrison argues the trial court failed to give him sufficient
credit for presentence incarceration. The trial court did not address this
issue in its dismissal. We remand for the trial court to address Garrison's
claims regarding presentence incarceration credit.




3 In the absence of material revisions, we cite the current version of
statutes and rules.



                                       4
                         STATE v. GARRISON
                         Decision of the Court

IV.   Conclusion

¶9          We grant review, deny relief in part, grant relief in part and
remand for proceedings consistent with this decision.




                                 :gsh




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