                                                                FILED BY CLERK
                          IN THE COURT OF APPEALS                   APR 30 2007
                              STATE OF ARIZONA
                                                                    COURT OF APPEALS
                                DIVISION TWO                          DIVISION TWO


THE STATE OF ARIZONA,                     )
                                          )
                              Appellee,   )         2 CA-CR 2006-0137
                                          )         DEPARTMENT B
                  v.                      )
                                          )         OPINION
STEVEN RAY MILLER,                        )
                                          )
                             Appellant.   )
                                          )


        APPEAL FROM THE SUPERIOR COURT OF MARICOPA COUNTY

                        Cause No. CR2005-102749-001 DT

                          Honorable Gerald Porter, Judge

                                   AFFIRMED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Julie A. Done                                     Phoenix
                                                           Attorneys for Appellee

James Haas, Maricopa County Public Defender
 By Edward F. McGee                                                       Phoenix
                                                           Attorneys for Appellant


E C K E R S T R O M, Presiding Judge.
¶1            Steven Miller was convicted after a jury trial of two counts of armed robbery

and was acquitted of one count. The trial court sentenced him to presumptive, concurrent

prison terms of 9.25 years. Miller contends the trial court abused its discretion when it

admitted evidence that, following Miller’s arrest, no further armed robberies involving the

same modus operandi occurred in the city of Tempe. He also argues the court committed

fundamental error by enhancing his sentence without documentary proof that he had prior

felony convictions.

                                       Background

¶2            We view the evidence in the light most favorable to sustaining the jury’s

verdicts. State v. Newnom, 208 Ariz. 507, ¶ 2, 95 P.3d 950, 950 (App. 2004). Tempe

Police Detective Stephen Laird was assigned to investigate a robbery at a video store. After

reviewing suspect descriptions and the modus operandi employed in the commission of

other recent robberies, Laird concluded the same person had committed robberies at two

other commercial establishments. He also compared the still photographs from the video

store and one of the other establishment’s security cameras. Because of the similarities in

the photographs, Laird concluded that the perpetrator in each case was likely the same

individual.

¶3            During trial, the prosecutor asked the detective if there had been any other

reports of robberies committed by “a [white] guy with long brownish red hair, beanie cap,

blue flannel shirt” since the defendant was arrested. The court sustained Miller’s objection

to that question. Later, after an unreported bench conference, the court read a jury question


                                             2
asking: “Have there been any Tempe robberies since January of 2005 with the same

appearing wig and blue shirt?” The detective responded that there had been no other such

robberies. At the next break, the court allowed counsel to make a more complete record on

their positions regarding that question and answer. At this time, Miller articulated that he

objected on relevancy grounds.

¶4            During the aggravation phase of Miller’s trial, the state called as a witness

Kristin Sherman, a prosecutor for the Maricopa County Attorney’s office, to prove Miller

previously had been convicted of felonies. Sherman testified about having prosecuted Miller

in September 2005 for four separate felony offenses and that the prosecutions had resulted

in convictions. Defense counsel did not object to Sherman’s testimony or raise any other

objections regarding the sufficiency of the evidence of Miller’s felony convictions. The jury

found that the state had proved beyond a reasonable doubt that Miller previously had been

convicted of a felony within ten years immediately preceding the date of the offense.

                                 Admission of Evidence

¶5            Miller contends the trial court erred by admitting into evidence the detective’s

testimony that no similar crimes had taken place after Miller’s arrest, arguing this evidence

did not prove any material fact and, therefore, was not relevant. Laird’s testimony

constitutes negative evidence, “‘testimony that a fact did not occur, founded on the witness’

failure to hear or see a fact which he would supposedly have heard or seen if it had

occurred.’” State v. Rivera, 152 Ariz. 507, 517, 733 P.2d 1090, 1100 (1987), quoting 2

John Henry Wigmore, Evidence in Trials at Common Law § 664, at 907 (James H.


                                             3
Chadbourn rev., 1979). Arizona has rejected the rule that negative evidence is per se

impermissible. Id. Thus, we will “analyze the admissibility of the proffered evidence under

the rules of evidence.” Id.

¶6            “In determining relevancy and admissibility of evidence, the trial judge has

considerable discretion.” State v. Smith, 136 Ariz. 273, 276, 665 P.2d 995, 998 (1983).

Evidence is relevant if it has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would

be without the evidence.” Ariz. R. Evid. 401, 17A A.R.S. The trial court, however, may

exclude even relevant evidence “if its probative value is substantially outweighed by the

danger of unfair prejudice.” Ariz. R. Evid. 403; see also State v. Williams, 133 Ariz. 220,

230, 650 P.2d 1202, 1212 (1982).

¶7            Miller relies on the Pennsylvania Supreme Court case, Commonwealth v. Foy,

612 A.2d 1349 (Pa. 1992). In that case, the court concluded that, even “where a series of

crimes is so similar as to bear the marks of a common signature,” evidence of their cessation

after the arrest of a defendant is not relevant. Id. at 1351-52. Reviewing evidence almost

identical to that proffered here, that court explained:

              “[T]here are many possible reasons for an absence of additional
              reported crimes that are consistent with the defendant’s
              innocence. Police testimony concerning the reports could be
              inaccurate. Further signature crimes may have been committed
              but never reported to the police. The true culprit may have
              died, or left the community, or been incarcerated on unrelated
              charges about the time of the defendant’s arrest. Or perhaps the
              true culprit has decided to refrain from further acts of violence
              in order to shift suspicion onto the defendant and thereby
              escape detection.”

                                              4
Id. at 1351. The court also held that, even if such cessation evidence was considered

relevant, its probative value would be substantially outweighed by the danger of unfair

prejudice. Id. at 1352. Specifically, the court suggested that the jury might place undue

weight on such evidence and find the defendant’s guilt based on that fact alone. Id.

¶8            We disagree with the Foy court’s analysis to the extent it suggests that the

cessation evidence lacks sufficient probative value to clear the relevance threshold. As

discussed, evidence need only have a tendency to make the existence of a material fact more

or less probable to be relevant. Ariz. R. Evid. 401. Our supreme court has observed that

“[t]his standard . . . is not particularly high.” State v. Oliver, 158 Ariz. 22, 28, 760 P.2d

1071, 1077 (1988). Although the cessation of crimes testimony may have limited probative

value for precisely the reasons set forth by the Pennsylvania Supreme Court, we cannot

agree that, under our standards for relevancy, it has no probative value at all. Logic requires

the modest conclusion that evidence of the cessation of the signature robberies after Miller’s

arrest has a tendency to make it more probable that Miller committed them. Thus, we reject

Miller’s argument that the evidence lacked sufficient relevance to be admissible.

¶9            We are more inclined to agree with the Foy court that the limited probative

value of cessation evidence might be outweighed by the risk that the jury will give such

testimony undue weight. See Ariz. R. Evid. 403; see also State v. Hummert, 188 Ariz. 119,

126, 933 P.2d 1187, 1194 (1997) (affirming preclusion of defendant’s arguably relevant

evidence that another person committed similar signature crime on ground that probative

value was outweighed by “danger of confusing and misleading the jury”). However, Miller


                                              5
did not ask the trial court to preclude the evidence on that basis. And, although Miller has

implicitly contended on appeal that the prejudicial impact of the evidence outweighed its

probative value, he has not contended that the trial court’s failure to preclude the evidence

on that ground constituted fundamental error. See State v. Henderson, 210 Ariz. 561, ¶ 19,

115 P.3d 601, 607 (2005) (defendant who fails to object at trial forfeits right to obtain

appellate relief except in those “rare cases” involving fundamental error). Because the trial

court acted within its discretion in determining that Laird’s testimony was relevant, and

because Miller has not contended that the court erred fundamentally in admitting the

evidence notwithstanding its potential prejudicial impact, we affirm Miller’s convictions.1

                                     Sentencing Error

¶10           Miller also argues the trial court fundamentally erred when it found he had

prior felony convictions in the absence of documentary proof and, as a result, imposed

enhanced prison terms on each count. Because Miller did not object to the court’s finding

of a prior felony conviction, we review solely for fundamental error. See id. To prove such

error, Miller must show three things: 1) the error occurred; 2) the error “goes to the

foundation of the case, takes away a right that is essential to his defense, and is of such

magnitude that he could not have received a fair trial,” and 3) the error caused him




       1
        We do not purport to address what application, if any, Rule 404(b), Ariz. R. Evid.,
has to the evidentiary problem presented by Laird’s testimony. That testimony was neither
proffered by the state, nor challenged by the defense, with reference to the criteria set forth
in Rule 404(b) for the admission of prior or subsequent acts.

                                              6
prejudice. Id. ¶¶ 23-26. “Fundamental error review involves a fact-intensive inquiry, and

the showing required to establish prejudice therefore differs from case to case.” Id. ¶ 26.

¶11           At the outset, Miller is correct that the trial court erred by not requiring

documentary proof in addition to Sherman’s testimony. In State v. Hauss, 140 Ariz. 230,

681 P.2d 382 (1984), our supreme court addressed the same legal issue raised here. There,

the state attempted to prove two prior felony convictions solely through the testimony of a

probation officer. Id. at 231, 681 P.2d at 383. The court explicitly rejected this method for

proving prior convictions, reaffirming that “‘[t]he proper procedure to establish the prior

conviction is for the state to offer in evidence a certified copy of the conviction [rules

omitted] . . . and establish the defendant as the person to whom the document refers.’” Id.,

quoting State v. Lee, 114 Ariz. 101, 105, 559 P.2d 657, 661 (1976) (alterations in Hauss).2

The court provided “two very limited exceptions” to the document requirement for proving

prior convictions: (1) if the defendant admits the prior conviction while testifying in court,

or (2) the state shows that it was unable to obtain the documentation despite diligent efforts

and other evidence is highly reliable. Id. Neither of these exceptions applies in this case.

¶12           Recently the Hauss rule was expanded in State v. Robles, 213 Ariz. 268, ¶ 16,

141 P.3d 748, 753 (App. 2006) (citation omitted), in which this court noted that while the

“preferred method of proving prior convictions for sentence-enhancement purposes is



       2
        Because the court had not previously required documentary proof, it declined to
grant the defendant relief, observing that the felony convictions were sufficiently established
by the “highly reliable” testimony of the probation officer. Hauss, 140 Ariz. at 231-32, 681
P.2d at 383-84.

                                              7
submission of certified conviction documents, . . . courts may consider other kinds of

evidence as well.” See State v. White, 160 Ariz. 24, 28, 770 P.2d 328, 332 (1989) (state

proved prior conviction based on out-of-state commitment record); State v. Nash, 143 Ariz.

392, 403, 694 P.2d 222, 233 (1985) (holding prison records sufficient to establish prior

convictions). The court qualified this statement by emphasizing the purpose of the court’s

holding in Hauss, which was to avoid “‘credibility contests’ and ‘unfair[ness] to

defendants’” resulting from purely testimonial evidence. Robles, 213 Ariz. 268, ¶ 15, 141

P.3d at 753, quoting Hauss, 140 Ariz. at 231, 681 P.2d at 383 (alteration in Robles). Thus,

while other forms of documentation are acceptable, our supreme court still requires reliable

documentary evidence to prove that a defendant previously has been convicted of a felony.

¶13           We must therefore agree the trial court erred in permitting the jury to find prior

felony convictions solely based on testimonial evidence.           But, Miller has failed to

demonstrate he was prejudiced by the error. See Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d

at 607-08. Miller simply argues he would have received a lesser sentence and the court

might have been more lenient had it not permitted the jury to consider the prior felony

convictions. He does not suggest that he was not convicted of the felonies at issue or that

the state would have been unable to produce the necessary documentary evidence if he had

timely objected to the form of the evidence presented. See Robles, 213 Ariz. 268, n.4, 141

P.3d at 753 n.4. Because Miller has failed to articulate how the error prejudiced him, he has




                                              8
failed to meet his burden under our standard for fundamental error review.3 Henderson, 210

Ariz. 561, ¶ 26, 115 P.3d at 608-09.

¶14          Affirmed.



                                             ____________________________________
                                             PETER J. ECKERSTROM, Presiding Judge

CONCURRING:



____________________________________
J. WILLIAM BRAMMER, JR., Judge



____________________________________
PHILIP G. ESPINOSA, Judge




      3
       We therefore need not address whether Miller also failed to establish that the error
went to the foundation of the case, took away a right essential to his defense, and was of
such magnitude that he did not receive a fair trial. State v. Henderson, 210 Ariz. 561, ¶¶
23-26, 115 P.3d 601, 608-09 (2005).

                                            9
