                          NOTICE: NOT FOR PUBLICATION.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, Appellee,

                                        v.

                PAUL CLEMETH MELVILLE, JR., Appellant.

                             No. 1 CA-CR 13-0639
                              FILED 07-29-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-009547-002
                The Honorable Peter C. Reinstein, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Myles A. Braccio
Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
                           STATE v. MELVILLE
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge John C. Gemmill joined.


C A T T A N I, Judge:

¶1            Paul Clemeth Melville, Jr., appeals from his convictions of
two counts of armed robbery and four counts of aggravated assault and
the resulting sentences. Melville argues the superior court erred by
allowing the State to impeach him by reference to a prior conviction. For
reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           In early November 2012, J.R. and L.N. stopped by an
apartment to pick up L.C. on their way to a bar. The three were talking in
the living room, just inside the doorway, when Melville and his father
burst through the front door, guns drawn, and ordered them to the
ground. Melville put a gun to J.R.’s head and ordered him to lie on the
ground and be quiet, and Melville’s father similarly ordered L.N. to the
ground at gunpoint. Melville then pulled zip-ties from his waistband and
bound all three victims’ hands behind their backs.

¶3            Melville searched J.R.’s pockets, taking the victim’s keys, cell
phone, and wallet. Melville or his father also searched L.N., taking keys,
$200 cash, and a cell phone, which Melville’s father crushed with his foot.
Melville’s father took D.C. upstairs briefly, then returned and laid D.C. on
the ground in the living room. After warning the victims to stay where
they were and not to call the police, Melville and his father left the
apartment.

¶4           Around the same time, R.C. was walking from a different
apartment toward his car, parked one space away from the Melvilles’
vehicle. Melville’s father followed R.C. to his car and, when R.C.
unlocked the car, grabbed the car door and got in. Melville’s father
searched through R.C.’s briefcase bag, then got out of the car and pulled a
gun on R.C. R.C. turned to see Melville’s uncle, in the driver’s seat of the
Melvilles’ vehicle, pointing another gun through the window. Melville




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                           STATE v. MELVILLE
                           Decision of the Court

said “he’s not the one” or “I don’t think he is one of them,” and Melville’s
father moved to the Melvilles’ car, and they drove away.

¶5           When J.R., L.N., and D.C. removed the zip-ties, they left the
apartment and found R.C. on the phone with 911, and the police arrived
within minutes. Melville, his father, and his uncle were later arrested and
each charged with first-degree burglary, three counts of kidnapping, three
counts of armed robbery, and four counts of aggravated assault.

¶6           Before trial, the State alleged that in 2005 Melville had
committed and been convicted of a felony in New York—“Criminal
Possession of a Loaded Firearm, 3rd Degree,” N.Y. Penal Law § 265.02(4)
(McKinney 2005)—and requested a ruling under Arizona Rule of
Evidence 609 allowing the State to impeach Melville with this prior
conviction were he to testify at trial. Melville moved to preclude
impeachment with the New York conviction. Melville conceded that he
had committed the offense, but he argued it should not be used for
impeachment because the underlying conduct (possession of a loaded
firearm) would not be a crime in Arizona, the relevant portion of the New
York criminal statute had since been repealed, the underlying conduct
was unrelated to truthfulness, the prior conviction was relatively old, and
he had no subsequent convictions.

¶7             Melville testified at trial and contradicted the victims’
version of events. He testified that he and his father had gone to the
apartment that day to buy 10 pounds of marijuana from D.C. for $12,000.
Melville understood L.N. to be D.C.’s “connect.”           When Melville
discovered the marijuana was neither the quality nor the quantity agreed
upon, D.C. reached for a gun in his waistband. Melville claimed that he
then tussled with D.C. and took D.C.’s handgun; Melville’s father stopped
L.N. from reaching into his pocket and took L.N.’s pistol; J.R. was unable
to reach another handgun in the kitchen. Melville asserted that his father
briefly took D.C. upstairs to make sure no one else was in the apartment.
Melville used zip-ties he found in the kitchen to bind the victims’ hands
and took keys from a bookstand to keep from being followed as he and his
father left the apartment. On their way to their car, Melville saw R.C.
pause suspiciously in the parking lot, and Melville’s father then searched
R.C.’s car for a firearm, but never drew a gun.

¶8           After Melville’s testimony on direct, the superior court
addressed the State’s request to impeach Melville with the New York
conviction. Melville’s counsel did not dispute the existence of the prior
conviction, but again reiterated his argument that allowing impeachment


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                           STATE v. MELVILLE
                           Decision of the Court

with the New York conviction would be unfairly prejudicial, particularly
in light of the fact that although a crime in New York, the underlying
conduct would not be a crime under Arizona law. The court found that
the probative value of the conviction (which the court ordered sanitized)
outweighed its prejudicial effect and allowed the State to impeach
Melville with the fact of the New York conviction.

¶9           On cross-examination, during a series of questions
challenging Melville’s credibility, the State asked Melville a single
question about the New York conviction:

      Q.     Do you have a prior conviction?

      A.     Correct.

After the court instructed the jury that it could consider evidence of
Melville’s prior conviction “only as it may [a]ffect a defendant’s
believability as a witness” and not as evidence of guilt of the charged
offense, the State referred to the prior conviction once in closing, stating:

      In terms of credibility, the jury instructions tell you, you
      listened to Paul Melville, Jr. testify?      It’s completely
      acceptable to take his prior conviction and you weigh that in
      the balancing test of credibility.

¶10           The jury found Melville guilty of two counts of armed
robbery and four counts of aggravated assault,1 and the superior court
sentenced him to prison terms totaling 18 years. Melville timely appealed,
and we have jurisdiction under Article 6, Section 9, of the Arizona
Constitution and Arizona Revised Statutes (“A.R.S.”) §§ 12-120.21(A)(1),
13-4031, and -4033.2




1      At the close of evidence, the court directed a defense verdict on one
count of armed robbery (as to D.C.). The jury found Melville not guilty of
first degree burglary and could not reach a verdict on the three
kidnapping charges. The court granted the State’s motion to dismiss the
kidnapping charges at the time of sentencing.

2     Absent material revisions after the relevant date, we cite a statute’s
current version.



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                            STATE v. MELVILLE
                            Decision of the Court

                               DISCUSSION

¶11           Under Arizona Rule of Evidence 609(a)(1)(B), evidence of a
prior conviction punishable by more than one year’s imprisonment is
relevant to the witness’s character for truthfulness and “must be admitted
in a criminal case in which the witness is a defendant, if the probative
value of the evidence outweighs its prejudicial effect to that defendant.”
Such a felony-grade conviction is material to credibility because “[t]he
perpetrator of a major criminal act has demonstrated such a lack of
scruples as to show a willingness to give false testimony.” State v.
Williams, 144 Ariz. 433, 438, 698 P.2d 678, 683 (1985) (citation omitted). In
weighing probative value against prejudicial effect, the superior court is
guided by several non-exclusive factors: the nature of the prior conviction
(including any similarity between the prior and the charged offense), the
impeachment value of the prior, the age of the prior, the witness’s conduct
since the prior, the importance of the witness’s testimony, and the
importance of the credibility issue. Id.; State v. Noble, 126 Ariz. 41, 43, 612
P.2d 497, 499 (1980).

¶12            Melville acknowledges the existence of the New York
conviction, but argues that the superior court erred because the prior’s
minimal probative value was outweighed by its prejudicial effect. In
allowing the State to impeach Melville with the fact of the New York
conviction, the court expressly found that the probative value of the prior,
as sanitized, outweighed any prejudicial effect. We review the court’s
determination for a clear abuse of discretion. State v. Green, 200 Ariz. 496,
498, ¶ 7, 29 P.3d 271, 273 (2001); Williams, 144 Ariz. at 439, 698 P.2d at 684.

¶13            Melville suggests that the age of the conviction weighs
against admissibility. Melville was convicted of the New York offense
over seven years before committing the instant offense. Although older
convictions “have increasingly less probative value on credibility,” Green,
200 Ariz. at 498, ¶ 9, 29 P.3d at 273 (citation omitted), seven years’ age
alone does not entirely wipe out the prior’s relevance to Melville’s general
credibility and veracity. Nor is the New York conviction remote enough
to trigger the more stringent standard for admissibility under Rule 609(b),
which allows use of a conviction more than 10 years old only if “its
probative value . . . substantially outweighs its prejudicial effect.”
(Emphasis added.)

¶14          Melville also argues that the nature of the prior offense does
not support admissibility. First, he asserts that the New York conviction
should not have been admitted because the type of crime—possession of a


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                           STATE v. MELVILLE
                           Decision of the Court

loaded firearm—does not itself implicate veracity. But conviction of a
felony-grade offense (whether or not a crime of falsehood) is in and of
itself material to credibility because “a major crime entails such an injury
to and disregard of the rights of other persons that it can reasonably be
expected the witness will be untruthful if it is to his advantage.” Green,
200 Ariz. at 498, ¶ 8, 29 P.3d at 273 (citation omitted). Compare Ariz. R.
Evid. 609(a)(1) (allowing impeachment with conviction of a felony-grade
offense, whether or not a crime of falsehood), with Ariz. R. Evid. 609(a)(2)
(allowing impeachment with conviction of a crime of falsehood, whether
or not a felony-grade offense).

¶15            Second, Melville argues the New York conviction should not
have been admitted because the conduct underlying the conviction is not
illegal in Arizona and because New York itself repealed the relevant
criminal provision one year after the conviction. Melville was convicted
of criminal possession of a weapon in the third degree for possessing a
loaded firearm. See N.Y. Penal Laws § 265.02(4) (McKinney 2005).
Whether Arizona law would criminalize the same conduct (possession of
a loaded gun without additional misconduct, cf., A.R.S. § 13-3102(A)) is
not germane to the Rule 609 analysis. Instead, it is the fact that Melville
disregarded the law of the convicting jurisdiction that reflects on his
character and shows the “lack of scruples” relevant to his credibility. See
Williams, 144 Ariz. at 438, 698 P.2d at 683. Additionally, although the New
York legislature repealed possession of a loaded firearm as a manner of
committing criminal possession of a weapon in the third degree, it
concurrently added possession of a loaded firearm to the offense of
criminal possession of a weapon in the second degree, which carries an
even greater possible sentence. 2006 N.Y. Laws ch. 742; N.Y. Penal Law §
265.03(3); see also N.Y. Penal Law § 70.00(2)(c), (d).

¶16           Melville argues that use of the New York conviction was
overly prejudicial because “the prosecutor used that fact to attack his
credibility in cross-examination and then argued that the jury should
consider that in deciding which version of events to believe.” The State
mentioned “a prior conviction” in only one question on cross-
examination, and mentioned it only once (in the context of a broader
discussion of factors weighing on credibility) during closing. This
minimal use, expressly for a proper purpose, does not establish such
excessive prejudice to override the New York conviction’s probative
value.

¶17          Given the conflicts between the victims’ testimony and that
of Melville, witness credibility took on central importance at trial. See


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                            STATE v. MELVILLE
                            Decision of the Court

Williams, 144 Ariz. at 438, 698 P.2d at 683; Noble, 126 Ariz. at 43, 612 P.2d at
499. The superior court appropriately determined that the probative
value of the New York conviction outweighed its prejudicial effect.
Additionally, the court allowed impeachment only with a sanitized
version of the prior—the fact of conviction but not the nature of the
offense—which avoided any potential prejudice from similarity between
the prior and instant offenses (insofar as both involved a firearm). See
State v. Beasley, 205 Ariz. 334, 338–40, ¶¶ 19–26, 70 P.3d 463, 467–69 (App.
2003) (discussing the value of sanitizing a prior conviction for use
impeaching a witness’s credibility to avoid unfair prejudice arising from
discussion of the nature of the prior offense). Accordingly, the superior
court did not err by allowing the State to impeach Melville with his prior
conviction.

                               CONCLUSION

¶18          For the foregoing reasons, we affirm Melville’s convictions
and sentences.




                                  :gsh




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