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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        JOHN C. STUART, Appellant.

                             No. 1 CA-CR 14-0047
                               FILED 4-28-2015


           Appeal from the Superior Court in Maricopa County
                      No. CR2008-106594-001 DT
               The Honorable Sherry K. Stephens, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Droban & Company, PC, Anthem
By Kerrie M. Droban
Counsel for Appellant
                             STATE v. STUART
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.


P O R T L E Y, Judge:

¶1              Defendant John Chester Stuart was convicted and sentenced
for second-degree murder and drive-by shooting. He appeals by arguing
that the trial court erred when it permitted Cynthia Cantrall to testify about
his bad temperament because it constituted impermissible character
evidence. For the following reasons, we affirm.

             FACTS1 AND PROCEDURAL BACKGROUND

¶2           The victim, Tom, and his wife, Rebecca, were driving home
from dinner on January 29, 2008, after attending the Phoenix Open golf
tournament. Stuart, accompanied by his fiancé, Cynthia Cantrall, was
driving behind them, when Stuart drove over a double yellow line and sped
past Tom’s car. After Stuart pulled in front of him, Tom “flashed his
brights.”

¶3             At the next red light on Scottsdale Road, Tom stopped his car
and Rebecca noticed that that Stuart’s car was in the next lane. Stuart began
“giving [them] the finger with both hands,” and Rebecca “blew him a kiss”
in response. Stuart also began yelling obscenities at them. Stuart then
gunned his engine and pulled his car diagonally in front of Tom’s car,
blocking him. Tom got out of his car, but then put his hands up in surrender
and began backing up. Stuart opened his driver’s door, began to step out
of the car and pointed a gun out of the car door. Cynthia yelled “[D]on’t do
it,” and then Stuart shot Tom in the face. Tom died at the scene. Stuart fled
in his car, but was later apprehended and arrested.




1We view the facts in the light most favorable to upholding the conviction.
State v. Lowery, 230 Ariz. 536, 538, ¶ 2, 287 P.3d 830, 832 (App. 2012) (citation
omitted).


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                             STATE v. STUART
                            Decision of the Court

¶4             A grand jury indicted Stuart for second-degree murder and
drive-by shooting. Following a remand to the grand jury, Stuart was re-
indicted for the same charges. Stuart was tried, but his first trial ended in a
mistrial.

¶5             During the retrial, the State called Cynthia to testify even
though Stuart had listed her as a witness.2 In addition to testifying about
her relationship with Stuart, the prosecutor asked Cynthia: “Did Mr. Stuart
ever display bad temperament to you around the time that this was
happening in 2008?” Stuart objected on the grounds of relevance. After a
brief sidebar, the judge overruled the objection.

¶6              Cynthia then testified, without objection, that early that
month she and Stuart began “campaigning for Ron Paul for president” and
Stuart became “involved” with a movie entitled “American Freedom to
Fascism by Aaron,” which was “about the IRS and the government and
rights being taken away.” The movie so incensed Stuart that when he
thought about it “he would get disturbed on the road.” She also testified
that Stuart felt that people were not driving properly and he would get so
disturbed that “he would flip people off and get mad and angry.”
Sometimes, she testified, Stuart would “get in front of them and slam on his
brakes . . . .”

¶7            The jury convicted Stuart as charged, and he was
subsequently sentenced to concurrent terms of eighteen years and fourteen
years in prison. Stuart filed a timely notice of appeal. We have jurisdiction
over this appeal pursuant to Arizona Revised Statutes sections
 12–120.21(A)(1), 13–4031, and –4033(A).3

                               DISCUSSION

¶8            Stuart argues that the trial court erred by permitting the State
to admit “impermissible character evidence.” Specifically, Stuart asserts
that Cynthia “impermissibly testified concerning [his] ‘bad temperament’
near the time of the murder ostensibly to show [his] state of mind.”

¶9             To preserve an evidentiary issue for appellate review, “[a]
party must make a specific and timely objection at trial.” State v. Hamilton,
177 Ariz. 403, 408, 868 P.2d 986, 991 (App. 1993); see also State v. Cook, 170
Ariz. 40, 58, 821 P.2d 731, 749 (1991); see generally Ariz. R. Evid. 103(a). “A

2 The State gave Cynthia limited use immunity because she had given
several different and inconsistent accounts of the incident before trial.
3 We cite to the current version of the statute unless otherwise noted.



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                             STATE v. STUART
                            Decision of the Court

general objection, such as ‘irrelevance,’ [is] not sufficient to preserve the
issue for appeal.” Hamilton, 177 Ariz. at 408, 868 P.2d at 991. Further,
objecting to the admission of evidence on one ground will not preserve the
issue on other grounds. Id. at 408, 868 P.2d at 991; see also State v. Lopez, 170
Ariz. 112, 118, 822 P.2d 465, 471 (App. 1991).

¶10             When a defendant fails to make a timely and specific objection
at trial, we review solely for fundamental error. State v. Lopez, 217 Ariz. 433,
434-35, ¶ 4, 15 P.3d 682, 683-84 (App. 2008). Fundamental error is “error
going to the foundation of the case, error that takes from the defendant a
right essential to his defense, and error of such magnitude that the
defendant could not possibly have received a fair trial.” State v. Moreno-
Medrano, 218 Ariz. 349, 352, ¶ 7, 185 P.3d 135, 138 (App. 2008) (internal
citations and quotation marks omitted). To prevail, a defendant must show
“that error occurred, that it was fundamental, and that it prejudiced him.”
Id. at 354, ¶ 16, 185 P.3d at 140. Moreover, where a defendant does not
affirmatively argue that the alleged error is “fundamental” and brief the
issue in that context, the issue is deemed abandoned and waived on appeal.
Id. at 354, ¶ 17, 185 P.3d at 140; see Ariz. R. Crim. P. 31.13(c)(1)(vi).

¶11           Here, Stuart did not object that Cynthia’s testimony
constituted impermissible character evidence. Rather, Stuart objected on
the general ground of “relevance”:

              Q. Did Mr. Stuart ever display bad
              temperament to you around the time that this
              was happening in 2008?

              MR. POSTER: Relevance?

              THE COURT: Approach, please.

              (Whereupon, a sidebar was had)

              MR. POSTER: Behavioral. Any — anything it
              is not relevant to the charge.

              [PROSECUTOR]: State of mind up to that night.
              I said around the time that this happened.

              MR. POSTER: State of mind if it is at the time of
              the incident.

              [PROSECUTOR]: Right, I said around the time.



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                             STATE v. STUART
                            Decision of the Court

              THE COURT: Ask her the date again and you
              are avowing to the Court that you have spoken
              to her about this issue and she will say this was
              an ongoing situation in terms of the state of
              mind. Overruled.

As the record reveals, Stuart did not raise the issue of character evidence
and, as a result, failed to preserve that objection for appellate review. We
thus review his character objection on appeal only for fundamental error.
See Hamilton, 177 Ariz. at 408, 868 P.2d at 991.

¶12           Stuart argues, however, that State v. Rankovich, 159 Ariz. 116,
765 P.2d 518 (1988) controls our analysis. There, the State presented
evidence that was intended to show that the defendant was “an angry,
violent man, and that he was not motivated by self-defense,” and our
supreme court stated it was character evidence and the defendant’s
relevance objection should be analyzed under Arizona Rule of Evidence
404(a) and for harmless error. Id. at 119-20, 765 P.2d at 521-22.

¶13           Although our supreme court has not overruled the analysis in
Rankovich, the court’s decision in State v. Henderson, clearly stated that our
review is not for harmless error, but for fundamental prejudicial error. 210
Ariz. 561, 567, ¶¶ 18-20, 115 P.3d 601, 607 (2005). Moreover, the Henderson
analysis of fundamental error review has been applied to evidentiary
objections. See Lopez, 217 Ariz. at 434-35, ¶ 4, 175 P.3d at 683-84 (finding
that an objection on one ground does not preserve the issue on another
ground and, as a result, we only review for fundamental error).
Consequently, our review is not for harmless error but fundamental error.

¶14            Despite Stuart’s reliance on Rankovich and his failure to argue
that the court’s error was fundamental, we have reviewed Cynthia’s
testimony to determine if there is any fundamental prejudicial error. See
State v. Fernandez, 216 Ariz. 545, 554-55, ¶ 32, 169 P.3d 641, 650-51 (App.
2007) (court will not ignore fundamental error if it sees it). We find no
fundamental prejudicial error. Cynthia’s testimony was relevant to
demonstrate Stuart’s general state of mind when he was driving — that he
could get angry at other motorists based on his perception of their driving
skills. Her testimony, coupled with the other testimony the jury heard and
evaluated — Stuart passed Tom’s car despite a double yellow line; Tom
then flashed his lights at him; and the events at the red traffic control light
— do not demonstrate that the court had to sua sponte preclude the
evidence based on a relevancy objection or that it demonstrated
fundamental prejudicial error. Consequently, we find no reversible error.


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                           STATE v. STUART
                          Decision of the Court

                            CONCLUSION

¶15          For the foregoing reasons, we affirm Stuart’s convictions and
sentences.




                                 :ama




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