                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 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.

                    MARK ANTHONY LUCAS, Appellant.

                              No. 1 CA-CR 13-0215
                               FILED 3-20-2014


            Appeal from the Superior Court in Mohave County
                        No. S8015CR201200025
                 The Honorable Steven F. Conn, Judge

                AFFIRMED IN PART; VACATED IN PART


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Craig W. Soland
Counsel for Appellee


Mohave County Legal Defender’s Office, Kingman
By Diane S. McCoy
Counsel for Appellant
                               STATE v. LUCAS
                              Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge John C. Gemmill joined.


H O W E, Judge:

¶1           Mark Anthony Lucas appeals his convictions and sentences
for two counts of sexual conduct with a minor, two counts of transferring
dangerous drugs, and two counts of involving a minor in drug offenses.
He raises several issues on appeal, all but one of which we resolve in this
memorandum decision. We resolve his claim that he was entitled to
interview the victim’s grandmother before trial in a separate opinion
pursuant to Arizona Rule of Criminal Procedure 31.26.

¶2            Lucas’s convictions stem from two incidents in which Lucas
provided methamphetamine and engaged in sex acts with a
developmentally challenged teenage victim. Because the convictions for
involving or using a minor in a drug transaction and transfer of
dangerous drugs are based on the charged same acts and therefore violate
the prohibition against double jeopardy, we vacate the convictions and
resulting sentences imposed on the two counts of involving or using a
minor in a drug transaction. Finding no other error, we affirm the
remaining convictions and sentences.

                                 DISCUSSION

       A.     Voluntariness

¶3              When a police detective interviewed Lucas about the
victim’s allegations, Lucas admitted to smoking methamphetamine and
engaging in sex acts with the victim. Lucas argues that the trial court erred
in denying his motion to suppress his statements as involuntary. We
review a trial court’s determination of voluntariness for clear and manifest
error. State v. Blakely, 204 Ariz. 429, 436 ¶ 26, 65 P.3d 77, 84 (2003).

¶4            A defendant’s statements to police are admissible if they are
voluntary and not obtained by coercion or improper inducement. Haynes
v. Washington, 373 U.S. 503, 513 (1963). “In assessing voluntariness, we
consider the totality of circumstances to determine whether the statements
were or were not the product of a ‘rational intellect and a free will.’“ State


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                            STATE v. LUCAS
                           Decision of the Court

v. Hoskins, 199 Ariz. 127, 137 ¶ 28, 14 P.3d 997, 1007 (2000) (quoting Mincey
v. Arizona, 437 U.S. 385, 398 (1978)); see also Colorado v. Connelly, 479 U.S.
157, 167 (1986) (“[C]oercive police activity is a necessary predicate to the
finding that a confession is not ‘voluntary’ within the meaning of the Due
Process Clause of the Fourteenth Amendment.”). Confessions are
presumed involuntary, and the State bears the burden of proving
voluntariness by a preponderance of the evidence. State v. Hall, 120 Ariz.
454, 456, 586 P.2d 1266, 1268 (1978). But “[a] prima facie case for admission
of a confession is made when the officer testifies that the confession was
obtained without threat, coercion or promises of immunity or a lesser
penalty.” State v. Jerousek, 121 Ariz. 420, 424, 590 P.2d 1366, 1370 (1979).

¶5             Here, the record fully supports the trial court’s finding that
Lucas’s statements were voluntary. First, Lucas voluntarily submitted to
the interview. Second, before being interviewed, Lucas was informed of
his Miranda 1 rights. Finally, the detective who conducted the interview
testified that he neither made promises nor offered any inducements to
obtain Lucas’s confession.

¶6           Lucas contends that the detective made several remarks that
should have rendered his confession involuntary, including: (1) “[A]s long
as you tell me the truth and tell me what happened, I’m willing to put in
my report, the last paragraph of my report will read that Mark Anthony
Lucas told me the truth about what happened. And that goes a long way
with the County Attorney’s office.”; (2) “Okay, if you sit and bullshit me,
then we are going to have a problem, and it won’t be good.”; and (3) “But
you’re going to make a mistake if you sit here and try to jack me around,
because I can—I can be one of two things to you. I can be your best friend,
Lucas, or I will be your worst nightmare; what would you rather
have?”None of these statements were improper.

¶7             The first statement was not a promise of leniency. The
detective merely indicated that he would inform the prosecutor about
Lucas’s cooperation. “Police may offer to tell the prosecutor about the
defendant’s cooperation and suggest that such cooperation may increase
the likelihood of a more lenient sentence.” State v. Strayhand, 184 Ariz. 571,
579, 911 P.2d 577, 585 (App. 1995). “So long as the promise is ‘couched in
terms of mere possibility or an opinion,’ the promise is generally not
sufficient to render a confession involuntary.” Id.

1      Miranda v. Arizona, 384 U.S. 436 (1966).




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                             STATE v. LUCAS
                            Decision of the Court

¶8            Nor can the other two statements be viewed as unequivocal
threats that coerced Lucas’s confession. Neither statement was specifically
directed at forcing Lucas to confess; rather, both statements informed him
that it would not be to his advantage to lie. Having been advised of his
Miranda rights, Lucas knew that he did not have to speak to the detective.
These statements made clear to Lucas that lying would only make things
worse. “Mere advice that it would be better to be truthful is a permissible
interrogation tactic.” Blakely, 204 Ariz. at 436 ¶ 29, 65 P.3d at 84; see also
State v. Amaya-Ruiz, 166 Ariz. 152, 165, 800 P.2d 1260, 1273 (1990) (“The
statements made during the defendant’s interview were . . . mere
exhortations to tell the truth.”). Whether a specific statement coerced a
confession is an issue of fact for the trial court. Hall, 120 Ariz. at 457, 586
P.2d at 1269. Lucas, who did not testify at the suppression hearing,
presented no evidence that any of the detective’s statements were the
reason for his confession. Further, the audio/video recording of the
interview showed that the detective was not overbearing and that Lucas
was quite talkative. Under these circumstances, the trial court did not err
in denying Lucas’s motion to suppress his statements.

       B.     Medical Records

¶9            Lucas argues that the trial court erred in denying his motion
to compel disclosure of the victim’s medical records, which he claims
deprived him of the opportunity to effectively cross-examine the victim
and his grandmother. We review a trial court’s ruling on a discovery
request for an abuse of discretion. State v. Conner, 215 Ariz. 553, 557 ¶ 6,
161 P.3d 596, 600 (App. 2007). To the extent Lucas raises a constitutional
claim, however, our review is de novo. Id.

¶10           Lucas claims that the victim’s medical records might be
relevant to the victim’s credibility because the victim had a variety of
mental health deficits. As a general rule, the Victims’ Bill of Rights and the
physician-patient privilege both protect a victim’s medical records. See
Ariz. Const., art. II, § 2.1 (5); A.R.S. § 13-4062(4). When the physician-
patient privilege has been waived, a defendant may be entitled to an in
camera review of medical records to determine if the defendant’s due
process rights would mandate discovery notwithstanding the provisions
of the Victims’ Bill of Rights. Connor, 215 Ariz. at 558 ¶ 10, 161 P.3d at 601.

¶11            Here, as in Connor, Lucas fails to present a “sufficiently
specific basis to require that the victim provide medical records to the trial
court for an in camera review.” Id. at ¶ 11. “[F]or the most part,
‘confrontation clause rights are trial rights that do not afford criminal


                                      4
                            STATE v. LUCAS
                           Decision of the Court

defendants a right to pretrial discovery.’” Id. at 562 ¶ 28, 161 P.3d at 605
(quoting State ex rel. Romley v. Superior Court (Roper), 172 Ariz. 232, 240,
836 P.2d 445, 453 (App. 1992)). Lucas has not shown that the victim
waived his physician-patient privilege. Nor does Lucas’s unsupported
speculation that the victim’s medical records affected the truth of victim’s
testimony demonstrate that the records were necessary to cross-examine
the victim and his grandmother.

¶12            Lucas asserts in his reply brief that the State’s failure to
address the non-disclosure of the school records should be treated as a
confession of error. Lucas‘s request for the school records, however, was
limited to records relating to the victim’s mental health history. Lucas
does not argue that the victim’s school records contain any mental health
history records or that such records would not be likewise privileged and
protected from disclosure. On this record, the trial court did not err in
declining to order disclosure of the victim’s medical records regardless of
their location.

         C.   Testimony Concerning Victim’s Credibility

¶13           Lucas contends the trial court erred in allowing the victim’s
grandmother to opine about the victim’s credibility. At issue is the
grandmother’s cross-examination and redirect testimony that she had
never known the victim to falsely accuse anyone of any kind of crime and
that “because of his disability, he is the type that will just tell you
everything upon meeting you.” Lucas argues that this testimony violates
the prohibition against testimony on the veracity of a statement by
another witness. See, e.g., State v. Moran, 151 Ariz. 378, 382, 728 P.2d 248,
252 (1986) (holding error to permit experts to testify that they believed
victim was telling the truth); State v. Reimer, 189 Ariz. 239, 241, 941 P.2d
912, 914 (App. 1997) (holding error to permit police officer to opine that
witness was truthful in describing defendant’s conduct in out-of-court
statement). We review a trial court’s ruling on the admissibility of
evidence for an abuse of discretion. State v. Aguilar, 209 Ariz. 40, 49 ¶ 29,
97 P.3d 865, 874 (2004).

¶14          Opinion testimony regarding the truthfulness of a witness’s
statement by another witness is not permitted because it is “nothing more
than advice to jurors on how to decide the case.” Moran, 151 Ariz. at 383,
728 P.2d at 253. Contrary to Lucas’s contention, however, the victim’s
grandmother did not offer an opinion on the truthfulness of any particular
statements by her grandchild.




                                     5
                            STATE v. LUCAS
                           Decision of the Court

¶15            The testimony Lucas challenges was elicited by the
prosecutor during redirect examination of the grandmother in response to
matters that defense counsel raised during cross-examination.
Specifically, the grandmother admitted that the victim was not always
truthful with her. During redirect, the prosecutor simply clarified the
nature of the untruthful statements the victim may have told the
grandmother and had her describe his nature in general. To the extent the
testimony could be considered an opinion rather than merely descriptive
in nature, it fell well within the type of opinion testimony regarding a
witness’s character for truthfulness allowed by the Rules of Evidence. See
Ariz. R. Evid. 608(a) (“A witness’s credibility may be attacked or
supported by testimony about the witness’s reputation for having a
character for truthfulness or untruthfulness, or by testimony in the form of
an opinion about that character. But evidence of truthful character is
admissible only after the witness’s character for truthfulness has been
attacked.”). The trial court did not abuse its discretion in overruling
Lucas’s objections to the challenged testimony.

      D.     Motion for New trial

¶16            Lucas argues that the trial court erred in denying his motion
for new trial. The motion was based on the State’s disclosure of police
reports concerning the victim after the conclusion of trial. The reports
detailed that the victim had thirteen contacts with the police, including
reports of alleged offenses committed against the victim; reports of
incidents in which the victim was alleged to have committed an offense;
and a report concerning the victim and his grandmother’s eviction from
their apartment after Lucas was charged in the instant case. Lucas asserts
that the reports constituted exculpatory impeachment material that the
State was required to disclose pursuant to Brady v. Maryland, 373 U.S. 83
(1963). The trial court denied Lucas’s motion for new trial, finding that the
contacts referenced in the police reports would not have been admissible
at trial, and that even if some of the incidents had been admissible, they
would not have changed the verdict.

¶17           We review a trial court’s denial of a motion for new trial for
an abuse of discretion. Hoskins, 199 Ariz. at 142 ¶ 53, 14 P.3d at 1012.
“Motions for new trial are disfavored and should be granted with great
caution.” State v. Rankovich, 159 Ariz. 116, 121, 765 P.2d 518, 523 (1988).
Thus, we will reverse a denial of a motion for new trial “only when there
is an affirmative showing that the trial court abused its discretion and
acted arbitrarily.” State v. Mincey, 141 Ariz. 425, 432, 687 P.2d 1180, 1187
(1984).


                                     6
                             STATE v. LUCAS
                            Decision of the Court

¶18           In Brady, the Supreme Court held that “suppression by the
prosecution of evidence favorable to an accused . . . violates due process
where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at
87. “The mere possibility that an item of undisclosed information might
have helped the defense, or might have affected the outcome of the trial,
does not establish ‘materiality’ in the constitutional sense.” United States v.
Agurs, 427 U.S. 97, 109–10 (1976). Evidence is considered “material” for
purposes of Brady only if “there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would
have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985).

¶19           As Lucas acknowledged in his motion for new trial, the late
disclosed information would have been relevant solely for impeachment
purposes. Lucas argues that the victim’s prior contacts with the police
could have been used to attack his credibility. The trial court, however,
has discretion under Arizona Rule of Evidence 608(b) whether to permit a
defendant to attack a witness’s credibility by inquiring on cross-
examination into specific instances of conduct. State v. Murray, 184 Ariz. 9,
30, 906 P.2d 542, 563 (1995). The trial court also has considerable discretion
to exclude relevant evidence if “its probative value is substantially
outweighed by the danger of . . . unfair prejudice, confusing the issues,
[or] misleading the jury.” Ariz. R. Evid. 403; see also State v. Harrison, 195
Ariz. 28, 33 ¶ 21, 985 P.2d 513, 518 (App. 1998) (holding that because “the
trial court is in the best position to balance the probative value of
challenged evidence against its potential for unfair prejudice . . . it has
broad discretion in deciding the admissibility.”). Given these standards,
the trial court did not abuse its discretion in finding that the various
incidents Lucas indicates he would have sought to raise in cross-
examination would have been inadmissible.

¶20          Moreover, as the trial court further noted, the issue at trial
centered on the jury’s squaring Lucas’s trial testimony with his recorded
confession to the police. Any evidence of the victim’s prior inconsistent
statements about other unrelated incidents would have had minimal
impact on the outcome of the trial because the only real issue was which
of Lucas’s contradictory statements was the truth. Under these
circumstances, the trial court did not abuse its discretion in finding that
the information in the police reports concerning the victim would not
have changed the outcome of the trial if it had been made available to
Lucas before trial.




                                      7
                             STATE v. LUCAS
                            Decision of the Court

¶21            As part of his challenge to the denial of his motion for new
trial, Lucas asserts that the trial court erred in not holding an evidentiary
hearing on the motion. But the trial court could have properly concluded
that a hearing was unnecessary to decide the motion. The trial court heard
the evidence presented at trial and had found that the non-disclosed
police reports did not contain matters that would have been admissible,
and that even if some portion would have been admissible for
impeachment purposes, no reasonable probability exists that it would
have changed the verdicts. A hearing would not have helped the trial
court resolve the motion.

       E.     Convictions on Lesser-Included Offenses

¶22           Lucas contends that his convictions for both transfer of
dangerous drugs and involving or using a minor in a drug transaction are
based on the same conduct and violate the prohibition against double
jeopardy because the first is a lesser-included offense of the latter. We
review alleged double jeopardy violations de novo. State v. Braidick, 231
Ariz. 357, 359 ¶ 6, 295 P.3d 455, 457 (App. 2013). The State confesses error,
and we agree.

¶23           The federal and state double jeopardy clauses provide that a
person may not be twice put in jeopardy for the same offense. U.S. Const.
amend V; Ariz. Const. art II, § 10; State v. Eagle, 196 Ariz. 188, 190 ¶ 5, 994
P.2d 395, 397 (2000). Conviction on both a greater and lesser offense
violates double jeopardy rights. State v. Ortega, 220 Ariz. 320, 328 ¶ 25, 206
P.3d 769, 777 (App. 2008). “[A] crime is a lesser[-]included offense if the
crime is composed solely of some but not all of the elements of the greater
crime so that it is impossible to commit the greater offense without
committing the lesser.” State v. Kamai, 184 Ariz. 620, 622, 911 P.2d 626, 628
(App. 1995). As charged in this case, the crime of transfer of a dangerous
drug is a lesser-included offense of the crime of involving or using a
minor in a drug transaction as the latter consists of all the elements of
transfer of a dangerous drug with the one additional element that the
transfer be to a minor. A.R.S. §§ 13-3407(A)(7), -3409(A)(2). Thus, Lucas’s
convictions for the greater and lesser drug offenses with respect to each of
the two incidents violate the prohibition against double jeopardy.

¶24           When a defendant has been convicted and sentenced for two
offenses in violation of double jeopardy, the remedy is to vacate the lesser
conviction. State v. Jones, 185 Ariz. 403, 407, 916 P.2d 1119, 1123 (App.
1995). Both transfer of a dangerous drug and involving or using a minor
in a drug transaction are class 2 felonies, A.R.S. §§ 13-3407(B)(7), -3409(B).


                                      8
                             STATE v. LUCAS
                            Decision of the Court

The trial court, however, imposed four-year prison terms on the
convictions for involving or using a minor in a drug transaction and five-
year prison terms on the convictions for transfer of dangerous drugs.
Consequently, we consider the convictions for involving or using a minor
in a drug transaction the lesser offenses in the instant case. Jones, 185 Ariz.
at 407-08, 916 Ariz. at 1123-24. We therefore vacate the convictions on
counts 5 and 6 for involving or using a minor in a drug transaction and
vacate the resulting four-year prison sentences imposed on counts 5 and 6.

                              CONCLUSION

¶25           For the foregoing reasons, we vacate the convictions and the
resulting sentences on counts 5 and 6 for involving or using a minor in a
drug transaction. We affirm Lucas’s other convictions and sentences.




                                  :mjt




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