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     UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       GEORGE ALLAN LOADER, Appellant.

                                 No. 1 CA-CR 14-0561
                                  FILED 9-1-2015


               Appeal from the Superior Court in Mohave County
                            No. S8015CR201101308
                    The Honorable Steven F. Conn, Judge

                                      AFFIRMED


                                       COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

Law Office of Daniel DeRienzo, PLLC, Prescott Valley
By Daniel J. DeRienzo
Counsel for Appellant
                               STATE v. LOADER
                               Decision of the Court



                          MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in which
Judge Margaret H. Downie and Judge Lawrence F. Winthrop joined.


J O H N S E N, Judge:

¶1          George Allan Loader appeals his convictions and sentences for first-
degree murder, a Class 1 felony; misconduct involving weapons, a Class 4 felony;
and abandonment of a dead body, a Class 5 felony. For the reasons that follow,
we affirm.

                FACTS AND PROCEDURAL BACKGROUND1

¶2             At trial, Loader denied killing the victim. He testified that after his
toddler indicated the victim had molested her, he engaged in a fight with the
victim and during that altercation, the victim grabbed a shotgun off a nearby table
and accidentally shot himself in the neck. Loader, however, had told his sister
shortly after the incident that he had shot the victim. Moreover, the medical
examiner testified the butt of the shotgun was higher than the barrel when the shot
was fired into the left side of the victim’s neck, and a firearms examiner testified
that it took two hands for him to manipulate the gun to get it to fire.

¶3              Loader admitted dismembering the victim, dumping the body, and
setting fire to the remains, but defended the abandonment-of-a dead-body charge
on the basis he was guilty but insane. A psychologist testifying on Loader’s behalf
diagnosed Loader with paranoid schizophrenia and dissociative identity disorder
and opined that Loader did not believe he was doing anything wrong by
dismembering the victim’s body in an effort to avoid being "inappropriately . . .
blamed for something for which he was blameless." The State’s psychiatrist
testified, however, that Loader had admitted using methamphetamine "relatively
heavily" in the month before the incident. The psychiatrist testified Loader
suffered from "methamphetamine induced psychotic disorder in an active phase
prior to incarceration," "polysubstance dependence influenced by institutional




1      We view the trial evidence in the light most favorable to sustaining the
jury’s verdicts. See State v. Nelson, 214 Ariz. 196, 196, ¶ 2 (App. 2007).



                                          2
                                STATE v. LOADER
                                Decision of the Court

remission," and antisocial personality disorder; and that Loader knew that the
dismemberment was wrong when he did it.

¶4            The jury convicted Loader of the charged offenses and found that he
committed them while on release for a prior offense. The superior court sentenced
him to consecutive sentences of natural life for murder, ten years for misconduct
involving weapons, and five years for abandonment of a dead body, and added
two years to each sentence based on the jury’s finding that he was on release for a
prior offense. Loader filed a timely notice of appeal, and we have jurisdiction
pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031,
and 13-4033(A)(1).

                                   DISCUSSION

A.     Admission of Prior Inconsistent Statement.

¶5             The superior court admitted a recording of Loader's sister's pretrial
statements to police as prior inconsistent statements based on Loader’s
suggestions in calls to her from jail that she recant and the sister’s subsequent
feigned memory loss. Loader argues the court erred because there was insufficient
evidence his sister was feigning memory loss at trial. He also argues the court
erred by failing to sua sponte conduct the proper legal analysis for use of the
statements as substantive evidence of his guilt. Because Loader did not raise these
issues in the superior court, we review them only for fundamental error. State v.
Henderson, 210 Ariz. 561, 567, ¶ 19 (2005); State v. Bolton, 182 Ariz. 290, 304 (1995).
Loader accordingly bears the burden of demonstrating that the court erred in
admitting the recording, that the error was fundamental and that he was
prejudiced thereby. See Henderson, 210 Ariz. at 568, ¶ 22.

¶6            A prior statement is not hearsay if the declarant testifies, the
statement is inconsistent with the declarant’s testimony, and the declarant is
subject to cross-examination about it. Ariz. R. Evid. 801(d)(1)(A). "A claimed
inability to recall, when disbelieved by the trial judge, may be viewed as
inconsistent with previous statements . . . ." State v. King, 180 Ariz. 268, 275 (1994)
(quoting United States v. Rogers, 549 F.2d 490, 496 (8th Cir. 1976)). The superior
"court has considerable discretion in determining whether a witness’s evasive
answers or lack of recollection may be considered inconsistent with that witness’s
prior out-of-court statements." State v. Hausner, 230 Ariz. 60, 76, ¶ 60 (2012)
(quoting State v. Salazar, 216 Ariz. 316, 319, ¶ 15 (App. 2007)).

¶7           The superior court did not abuse its considerable discretion by
admitting the recording. Although Loader’s sister suggested that she did not
remember precisely what Loader told her immediately after the incident because
she had taken Ambien, Loader’s jail calls asking her to recant, coupled with her


                                          3
                                 STATE v. LOADER
                                 Decision of the Court

apparent reluctance to testify, support the court’s conclusion that she was feigning
her memory loss. The court was in the best position to weigh the credibility of this
witness’s assertion that she did not remember whether Loader had told her that
he had killed the victim (contrary to his defense at trial) or had "just chopped him
up" (consistent with his defense at trial). See State v. Olquin, 216 Ariz. 250, 252, ¶
10 (App. 2007) (superior court "is in the best position to make [credibility]
determination."). Because the record supports the court’s finding that she was
feigning memory loss, the court did not abuse its discretion in admitting her
statements to police as prior inconsistent statements. See State v. Robinson, 165
Ariz. 51, 58-59 (1990) (superior court did not abuse its discretion in admitting prior
                       superio




inconsistent statement when record suggested reasons for witness to be evasive,
even though court was uncertain whether witness simply had poor recollection).

¶8              Nor did the superior court commit fundamental error in admitting
the prior inconsistent statements as substantive evidence of Loader’s guilt under
State v. Allred, 134 Ariz. 274, 276-78 (1982). Among the factors our supreme court
stated in that case should be considered in addressing the potential for unfair
prejudice from the use of impeaching testimony as substantive evidence of guilt
are whether: (1) the witness being impeached denies making the statement; (2) the
witness presenting the impeaching statement has an interest in the proceeding and
there is no other corroboration that the statement was made; (3) other factors, such
as age or mental incapacity, affect the reliability of the impeaching witness; (4) the
"true purpose of the offer is substantive use of the statement rather than
impeachment of the witness"; and (5) "the impeachment testimony is the only
evidence of guilt." Allred, 134 Ariz. at 277. The only factor supporting preclusion
of the impeaching statements here on grounds of unfair prejudice is that the "true
purpose" of the offer of the statements was as substantive evidence of Loader’s
guilt. The other factors do not support preclusion: Loader’s sister admitted
making the statements; the impeaching statements were recorded, supplying
independent, non-biased corroboration that the statements were made;
circumstantial evidence supplied other evidence of Loader’s guilt; and the
reliability of the recording evidencing the impeaching statements was not at issue.
Under these circumstances, the court did not err, much less fundamentally err, in
admitting the prior inconsistent statements.

B.     Consecutive Sentences.

¶9           Loader argues that the superior court erred in imposing a
consecutive sentence for misconduct involving weapons because the use of the
weapon in the murder constituted a single act requiring concurrent sentences.
Because Loader did not raise this objection in the superior court, we again review
for fundamental error only. Henderson, 210 Ariz. at 568, ¶ 22.



                                          4
                               STATE v. LOADER
                               Decision of the Court

¶10           Arizona Revised Statutes § 13-116 provides that "[a]n act . . . which
is made punishable in different ways by different sections of the laws may be
punished under both, but in no event may sentences be other than concurrent."
The evidence here supported a finding that the offenses of murder and misconduct
involving weapons arose from separate and distinct acts, making consecutive
sentences permissible under A.R.S. § 13-116. The evidence demonstrated that
Loader fatally shot the victim in the garage with a 12-gauge shotgun. Loader, a
convicted felon and prohibited possessor, testified that in the days before the
shooting, he had tinkered with this shotgun trying to get it to work and finished
putting it back together shortly before the shooting. Moreover, police executing a
search warrant several days after the shooting found the shotgun in a chest of
drawers in Loader’s bedroom. On this record, because separate and distinct acts
supported the murder and misconduct-involving-weapons convictions, A.R.S. §
13-116 did not prohibit consecutive sentences.2

C.     Insanity Instruction.

¶11           Loader argues the superior court incorrectly instructed the jury by
misstating in voir dire and failing to clarify in closing instructions that insanity
could be based on a permanent mental disorder resulting from chronic drug use,
rather than the result of acute intoxication. Again, because Loader did not raise
any objection in voir dire or ask for an additional instruction in closing arguments,
he bears the burden of demonstrating that the court erred, that the error was
fundamental, and that he was prejudiced thereby. See Henderson, 210 Ariz. at 568,
¶ 22.

¶12           We review the adequacy of jury instructions in their entirety to
determine if they accurately reflect the law. State v. Hoskins, 199 Ariz. 127, 145, ¶
75 (2000). The instructions must not mislead the jury. State v. Noriega, 187 Ariz.




2      The indictments charged Loader in pertinent part with first-degree murder,
alleged to have occurred "[o]n or between the 21st and 22nd day of November
2011," and with misconduct involving weapons, which was alleged to have
occurred "[o]n or between the 21st and 24th day of November 2011." The evidence
was undisputed that Loader possessed the shotgun in the few days before
November 21 (the date he used it to murder the victim), until it was discovered in
his bedroom drawer on November 25. Contrary to Loader’s argument on appeal,
because the date is not an element of the offense of misconduct involving weapons,
see A.R.S. § 13-3102(A)(4), the jury was not required to reach a unanimous verdict
on the date of the offense, and the court did not err in imposing consecutive
sentences based on the undisputed evidence of multiple acts.


                                         5
                                STATE v. LOADER
                                Decision of the Court

282, 284 (App. 1996). We review de novo whether the instructions properly state
the law. State v. Orendain, 188 Ariz. 54, 56 (1997).

¶13           The court did not err, much less fundamentally err, in instructing the
jury on insanity. It instructed the jury:

       You must find the defendant guilty except insane if the defendant
       proves by clear and convincing evidence that at the time of the
       commission of the criminal act, he was afflicted with a mental
       disease or defect of such severity that he did not know the criminal
       act was wrong.

       A mental disease or defect does not include disorders that result
       from acute voluntary intoxication, or withdrawal from alcohol or
       drugs, character defects, psychosexual disorders, or impulse
       controlled [sic] disorders.

       Conditions that do not constitute legal insanity include but are not
       limited to momentary, temporary conditions arising from the
       pressure of the circumstances, moral decadence, depravity or
       passion growing out of anger, jealousy, revenge, hatred or other
       motives in a person who does not suffer from a mental disease or
       defect or an abnormality that is manifested only by criminal conduct.

This language was taken directly from statute, see A.R.S. § 13-502(A), and
accordingly accurately stated the law and did not mislead the jury. Nor did the
court’s outline of the test for a verdict of guilty but insane during voir dire mislead
the jury: The court accurately conveyed the concept that acute drug intoxication
cannot support an insanity verdict.

¶14            The failure of the court to sua sponte define "acute voluntary
intoxication" or to clarify that a mental disease could include a mental disorder
caused by long-term chronic use of a drug was not error, much less fundamental,
prejudicial error on this record. The court was not required to clarify that insanity
could be predicated on a mental disease caused by chronic long-term drug use,
given the absence of evidence that Loader suffered from a mental disorder caused
by chronic long-term drug use that was of such severity that he did not know what
he was doing was wrong. Arizona courts have recognized that insanity can be
predicated on a permanent mental disease caused by chronic long-term drug or
alcohol abuse. See State v. Cooper, 111 Ariz. 332, 334 (1974). The experts in this case
testified that methamphetamine abuse could cause hallucinations and delusions
lasting after the abuse stops, presenting a clinical picture indistinguishable from
that of paranoid schizophrenia. Loader’s expert testified, however, that it was
Loader’s paranoid schizophrenia, not any chronic long-term drug use, which led


                                          6
                              STATE v. LOADER
                              Decision of the Court

him to think that what he was doing was not wrong. And the State’s expert
testified that, although prior to his incarceration, Loader met the criteria to be
diagnosed with methamphetamine-induced psychotic disorder, he believed
Loader knew that dismembering the body was wrong. Nor were the prosecutor’s
statements in closing argument misleading, as Loader argues on appeal: The
prosecutor simply argued that Loader’s chronic abuse of methamphetamine could
not support his insanity defense.

¶15           On this record, the court did not err, much less fundamentally err, in
failing to instruct the jury that chronic long-term drug use could support an
insanity defense.

                                 CONCLUSION

¶16          For the foregoing reasons, we affirm Loader’s convictions and
sentences.




                                      :ama




                                         7
