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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  BOBBY RAYDEAN HOOVER, Appellant.

                             No. 1 CA-CR 14-0869
                              FILED 1-26-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-124789-001
                 The Honorable M. Scott McCoy, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

The Law Office of Kyle T. Green, Mesa
By Kyle Green
Counsel for Appellant
                           STATE v. HOOVER
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Randall M. Howe joined.


C A T T A N I, Judge:

¶1            Bobby Raydean Hoover appeals his convictions of attempted
armed robbery, kidnapping, burglary in the first degree, misconduct
involving weapons, and aggravated assault and the resulting sentences.
For reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           The victim, nicknamed “Chopper,” sold heroin and
methamphetamine out of his Phoenix apartment. One day in mid-2012,
Hoover came into Chopper’s apartment holding a short-barreled shotgun,
moving it side-to-side to hold off Chopper and two other occupants. Two
other individuals came in with Hoover and took several laptop computers
and knives from the front room of the apartment.

¶3            Meanwhile, Hoover approached Chopper, put the shotgun to
Chopper’s throat, and demanded all of his drugs and money. Although
Chopper claimed not to have any, Hoover forced him back to a bathroom
to look for prescription drugs. Not finding any drugs, Hoover hit Chopper
over the head with the shotgun twice, knocking him out.

¶4            Hoover was arrested in May 2012, and he was released in
October 2012 pending trial. Trial commenced in August 2014, and a jury
found him guilty of attempted armed robbery, kidnapping, burglary in the
first degree, misconduct involving weapons, and aggravated assault. The
court sentenced him to concurrent terms of imprisonment, the longest being
18 years, and Hoover timely appealed. We have jurisdiction under Arizona
Revised Statutes (“A.R.S.”) § 13-4033.1




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

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                          STATE v. HOOVER
                          Decision of the Court

                             DISCUSSION

¶5            Hoover argues the superior court erred by admitting into
evidence a single exchange of Facebook messages sent to and from
Hoover’s account. During a mid-trial break, the prosecutor presented the
following exchange—sent in December 2012, after Hoover’s release from
jail pending trial—drawn from Hoover’s Facebook account:

      [Hoover]: I’ll find out in Jan. though because I’m headed back
      myself.

      [Recipient]: What the f***. Why are you going back?

      [Hoover]: Remember Chopper?

      [Hoover]: He is snitching. He says I robbed him and pistol
      whipped him.

¶6            The full exchange ended with additional statements by the
recipient: “Yeah, well, that’s why I went to prison. Because of Chopper.”
Recognizing that the recipient’s reference to prison could create unfair
prejudice, the prosecutor redacted the excerpt to delete the recipient’s
prison comment.

¶7          Hoover objected to the admission of the redacted excerpt.
Although agreeing that the exchange had some probative value, Hoover
objected under Arizona Rule of Evidence 403, arguing that the probative
value was far outweighed by a danger of unfair prejudice because the
message implicitly acknowledged that Hoover had previously been in
prison.

¶8            After a lengthy discussion about the admissibility of the
exchange, the court overruled Hoover’s objection. The court observed that
the message presented an “incremental danger of unfair prejudice” and
acknowledged that “certainly there is danger” in the jury learning that
Hoover had been in prison, even though the jurors would know—through
the misconduct involving weapons charge—that he was a felon. The court
nevertheless concluded that the message had substantial probative value
given that the case squarely presented an issue of identity, and that the
potential prejudice did not outweigh the probative value. The court further
expressed a preference to admit a more sanitized version that did not
contain the reference to “going back” if the parties could craft one. The
parties did not do so, however, and the exchange was admitted over
Hoover’s objection.


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                           STATE v. HOOVER
                           Decision of the Court

¶9            Hoover argues that the Facebook message was unfairly
prejudicial and thus should have been excluded under Rule 403. That rule
grants the superior court discretion to exclude relevant evidence “if its
probative value is substantially outweighed by a danger of . . . unfair
prejudice.” Ariz. R. Evid. 403. Evidence may create unfair prejudice if it
“has an undue tendency to suggest decision on an improper basis, such as
emotion, sympathy or horror.” State v. Salamanca, 233 Ariz. 292, 296, ¶ 17
(App. 2013) (citation omitted). Because Hoover raised this evidentiary
objection before the superior court, we review the ruling for an abuse of
discretion. See State v. Cañez, 202 Ariz. 133, 153, ¶ 61 (2002).

¶10            Although the fact that Hoover had previously served time in
prison was not itself relevant, the superior court properly found the
Facebook message was highly probative as a statement by Hoover himself
suggesting consciousness of guilt, both as an implicit acknowledgement
that he was likely to be convicted (and thus sent “back”) as well as through
the use of the term “snitching.” The message was also relevant to establish
Hoover’s connection to Chopper, who Hoover had denied knowing during
his post-arrest interview with police. Moreover, the portion of the exchange
admitted in evidence did not expressly state Hoover had previously been
in prison. Although the reference to “going back” reasonably implies a
return to confinement of some kind, the jury had learned from other
evidence—received at trial without a defense objection—that Hoover had
been in jail before being released pending trial in this case. Thus, Hoover’s
reference to a possible return to confinement was not unduly prejudicial. A
limiting instruction could have been given to direct the jury to the proper
purpose for this evidence, but Hoover did not request one. Additionally,
to the extent “going back” can be read to refer to prior incarceration for a
prior offense, the superior court did not abuse its discretion by finding the
fact that Hoover stipulated that he had a prior felony conviction (which
could have led to the incarceration) decreased any resulting prejudice. In
this context, Hoover has not shown the superior court erred by determining
that the probative value of the Facebook message outweighed its limited
potential prejudice. See Ariz. R. Evid. 403.

¶11            Hoover also offers three alternative arguments challenging
admission of the Facebook message: (1) the State failed to establish
adequate foundation for its admission, (2) the message improperly allowed
the jury to consider penalty, and (3) the message constituted improper other
act evidence under Rule 404(b). Because Hoover did not raise objections on
these bases before the superior court, we review these claims only for
fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, 567, ¶¶
19–20 (2005); State v. Moody, 208 Ariz. 424, 455, ¶ 120 (2004) (evidentiary


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                           STATE v. HOOVER
                           Decision of the Court

objection on one ground preserves the issue only as to the ground actually
raised; other grounds asserted on appeal subject to fundamental error
review).

¶12           Hoover does not dispute that the State established the
message originated from his Facebook account; rather, he argues that
anyone with access to the account could have sent the message. But a
witness testified that Hoover was active on Facebook during the time
period when the message was sent, and a witness confirmed that the subject
matter of the message—particularly as regards to Chopper “snitching”—
was consistent with Hoover’s statements on other occasions. Accordingly,
the jury had an adequate basis to conclude that Hoover authored the
message. See Ariz. R. Evid. 901.

¶13            Next, Hoover asserts that admission of the message
impermissibly allowed the jury to consider the possible penalty he faced.
Although Hoover is correct that the jury’s verdict must be based only on
the evidence without regard to the possible penalty, State v. VanDyke, 127
Ariz. 335, 337 (1980), the Facebook message admitted here did not refer to
prison at all, much less to a particular penalty. In fact, recognizing the
concern that the jury could consider possible punishment, the court
excluded a different message in which Hoover specified “I could be going
back to prison for six or more years thanks to Chopper.” In addition, the
court instructed the jury that it was not to consider the possible punishment
when deciding guilt. Because the Facebook message as admitted did not
refer to possible punishment, Hoover has not shown error on this basis.

¶14           Finally, Hoover claims the Facebook message was
inadmissible under Rule 404(b). That rule provides that “evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person
in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”
Ariz. R. Evid. 404(b). Here, the evidence was admitted for a relevant
purpose to establish identity. Moreover, although Hoover argues that the
message “essentially alerted the jury to other bad acts committed by
[Hoover],” the text of the message did not refer to any “other” acts. Rather,
the message referred to Chopper’s statements regarding the charged
offenses. In this context, Hoover has not established error.




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                  STATE v. HOOVER
                  Decision of the Court


                     CONCLUSION

¶15   Hoover’s convictions and sentences are affirmed.




                       :ama




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