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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       WILLIAM JORDAN, Appellant.

                             No. 1 CA-CR 17-0359
                               FILED 4-3-2018


           Appeal from the Superior Court in Yavapai County
                       No. V1300CR201680129
              The Honorable John David Napper, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee

Craig Williams, Attorney at Law, PLLC, Prescott Valley
By Craig Williams
Counsel for Appellant
                            STATE v. JORDAN
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Patricia A. Orozco1 joined.


B R O W N, Judge:

¶1          William Jordan appeals his convictions for one count of
manslaughter, four counts of aggravated DUI, and one count of criminal
damage. Finding no reversible error, we affirm.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2            In the afternoon or early evening of February 8, 2014, Jordan
and S.S. were driving on an unpaved narrow road in the Coconino National
Forest. They pulled over to allow S.S. to urinate, but after continuing down
the road through some “switchbacks,” their car “fishtailed” and plunged
over the edge, rolling down the hillside. Two witnesses close by raced to
the crash site, called 9-1-1, and observed Jordan, whose speech was
“slurred” and who smelled of alcohol, holding S.S. as she lay unconscious,
struggling to breathe. S.S. died shortly thereafter.

¶3            Law enforcement and other emergency personnel arrived “a
long while” later and treated Jordan, who was walking around, for two rib
fractures. They observed the heavily damaged sport utility vehicle
(“SUV”), owned by S.S., and beer cans strewn about the crash site. After
the SUV was taken to an evidence yard, officers found that the brakes
worked properly and there was no evidence of blood. A blood draw later
revealed Jordan’s blood alcohol content was between 0.16 and 0.22 within
two hours of the accident, and an autopsy showed that S.S. experienced
numerous injuries and died from “multiple blunt force trauma.”

¶4           The State charged Jordan with one count of manslaughter, six
counts of aggravated DUI, and one count of criminal damage. At trial, the
State moved to dismiss two counts of aggravated DUI, which the court
granted. After the State rested, Jordan moved for a judgment of acquittal


1     The Honorable Patricia A. Orozco, retired Judge of the Arizona
Court of Appeals, Division One, has been authorized to sit in this matter
pursuant to Article VI, Section 3 of the Arizona Constitution.


                                     2
                             STATE v. JORDAN
                            Decision of the Court

under Arizona Rule of Criminal Procedure (“Rule”) 20, arguing the State
could not prove he was driving the vehicle because the circumstantial
evidence pointed to no other fact that could be “prove[d] beyond a
reasonable doubt.” The superior court denied the motion, and the defense
rested without introducing additional evidence.

¶5             The jury found Jordan guilty on all counts. Sentencing him as
a repetitive offender and ordering the sentences to run concurrently, the
superior court sentenced Jordan to aggravated sentences of 17 years for
manslaughter, 12 years for each of the four counts of aggravated DUI, and
6 years for criminal damage. This timely appeal followed.

                               DISCUSSION

       A.     Rule 20 Motion and Sufficiency of the Evidence

¶6             Jordan argues the evidence is insufficient to show he was
driving the SUV when the accident occurred and that the superior court, on
that basis, erred in denying his motion for a directed verdict of acquittal
under Rule 20. Neither party disputes that to sustain each of Jordan’s
convictions, the State was required to establish beyond a reasonable doubt
that Jordan was driving the SUV at the time of the accident.

¶7             We review de novo a claim of insufficient evidence, whether
raised on appeal or in a Rule 20 motion, although our review is limited to
whether substantial evidence exists to support the verdict. State v. West, 226
Ariz. 559, 562-63, ¶¶ 15, 19 (2011); see also State v. Hallman, 137 Ariz. 31, 38
(1983) (“[A] judgment of acquittal prior to verdict may be entered only if
there is no substantial evidence to warrant a conviction.”); State v., 196 Ariz.
332, 335, ¶ 22 (App. 1999) (“We will not reverse the trier of fact’s decision if
substantial evidence supports it.”). “Substantial evidence is that which
reasonable persons could accept as sufficient to support a guilty verdict
beyond a reasonable doubt.” State v. Davolt, 207 Ariz. 191, 212, ¶ 87 (2004).
Direct and circumstantial evidence are given equal probative value. State
v. Bible, 175 Ariz. 549, 560 n.1 (1993). “[W]e view the evidence in the light
most favorable to sustaining the verdict, and we resolve all inferences
against the defendant.” Davolt, 207 Ariz. at 212, ¶ 87. Here, contrary to
Jordan’s assertion, substantial evidence shows he was driving the SUV.

¶8            Michael Loza, a fire captain and paramedic, testified that
when he spoke to Jordan at the crash site, Jordan complained of “left-sided
rib pain” and was “take[n] . . . for medical treatment.” Jordan was walking
around and able to walk up the hill by himself.



                                       3
                             STATE v. JORDAN
                            Decision of the Court

¶9             Adam Hansen, a deputy sheriff, testified that a large boulder,
about the size of a desk and approximately 50 feet from the road, “looked
like it had been hit by the vehicle.” S.S.’s body was “about 15 feet” from the
SUV on the passenger’s side of the vehicle; she had no visible seatbelt
injuries. At the crash scene, Hansen assumed S.S. was the passenger based
mainly on “the amount of damage and where the damage occurred on the
vehicle and the injuries that she sustained.” The passenger side of the
vehicle was “crushed down” while the driver’s side was “virtually in tact
[sic].” Hansen, about the same height as Jordan (six feet), was able to sit
comfortably in the driver’s seat. A person five feet, five inches, about S.S.’s
height, would not, “consistent with [Hansen’s] experience,” have been
“able to operate the pedals with the seat in that position.”

¶10            Marvin Cline, a patrol sergeant with “advanced collision
training,” testified the accident was a rollover and that the debris showed a
general path of where the SUV traveled. The SUV, striking “at least one
large object,” received “contact damage” (damaged caused from hitting an
object) on the passenger’s side of the vehicle and “[v]ery little damage” to
the “driver’s side of the vehicle.” The object coming in contact with the
passenger door “peeled it open like a can.” Cline, working in law
enforcement since the year 2000, had never seen a situation where both
people were ejected and where one person died and the other person was
able to walk around with no serious injuries. Cline also testified that
Jordan’s statement telling S.S. to let him drive was the beginning of an
admission to driving, and that when Jordan stated, “I lied about it and I’ve
been lying about it since it happened,” he was talking about “driving.”

¶11           Jordan told Cline and a detective that he and S.S. were going
to “the hot springs” when the “washboard” took them “off the edge.” After
they “[d]rove for a little ways,” Jordan told S.S. to let him drive; S.S. “was
still driving” while they were smoking. Although he “[p]robably” took
over driving when “she got out to pee,” Jordan stated, “I mean if you were
asking how many miles in I don’t know.” Jordan seemingly agreed to the
following scenario laid out by Cline:

       And we know about where that is because there’s a forest
       service sign and the witnesses said that they’d saw [sic] her
       pee and they pulled off on that forest service and right after
       they passed you and saw you guys pass and you were
       driving. So that’s probably where you switched. . . . [T]hose
       are minor details. . . . [L]ike I said the idea that you didn’t uh
       you guys didn’t get drunk and [] smoke a bunch of marijuana
       down in the valley and then you drove all the way up here


                                       4
                             STATE v. JORDAN
                            Decision of the Court

       . . . with reckless disregard for anybody’s care. You know the
       [] fact of the matter is you [] guys had partied some and then
       you realized I’m in better shape than she is . . . and we’re close.
       You know there’s a difference there.

Additionally, during a discussion on whether Jordan wanted to tell Cline
and the detective anything that they could put in their report or whether he
wanted to “say anything” to the “family of . . . the kids,” Jordan disagreed
with Cline’s statement that Jordan was honest: “I really wasn’t honest[.] I
lied about it and I’ve been lying about it since it happened[.]” Jordan
added, “It kills me that she’s not here . . . and that it’s my fault that she’s
not here.”

¶12            Dr. Mark Fischione, a forensic pathologist, testified that S.S.
had a laceration and “lots of abrasions” on her head; an “avulsion”2 six
inches by five inches on the left side of her back, which penetrated to her
rib cage; torn lung tissue; lacerations on her lung, spleen, and liver; multiple
rib fractures; abrasions on her back, front, arms, and legs; and a fractured
pelvis. S.S.’s injuries, as well as no blood in the vehicle, were “consistent
with her not staying in that [SUV],” meaning she was “catapulted out of the
vehicle.” Because the “driver’s side [was] pretty pristine” and the
passenger side had sharp metal, and because of “several things that point
to her being the passenger and really none that point to her being the
driver,” Fischione believed S.S. was in the passenger seat at the time of the
accident. The avulsion on S.S.’s back was caused by a sharp object, such as
“sharp metal . . . as she flew from the vehicle” or “something sharp as she
was catapulted out beyond the vehicle”; a rock likely did not cause the
avulsion because there would have been “bruising around it.” Nothing on
the driver’s side of the vehicle was “sharp enough” to have caused the
injury to S.S.’s shoulder, yet sharp material on the passenger’s side could
have caused the injury. A person in the passenger seat, or who had been
ejected during the rollover, would not have survived the crash in this case
with only “minor injuries.” Jordan suffered “minor injur[ies]” (two rib
fractures on his left side), which were “consistent with his left side hitting
up against the inside part of the door” on the driver’s side.

¶13            C.W. and V.E., on a road trip together in Arizona, each
testified that before the crash they passed an SUV, saw a female urinating
on the passenger side of the road, and another person in the driver’s seat.
C.W. did not know at the time whether the person in the driver’s seat was

2     Fischione described an “avulsion” as the “tearing of the skin, going
deep into the body.”


                                       5
                              STATE v. JORDAN
                             Decision of the Court

male or female, but V.E. saw a male in the driver’s seat. Both went to the
scene of the accident, saw the vehicle was the SUV they had passed earlier,
and saw that the only occupants were a man and a woman. Although
Jordan told her S.S. was driving, V.E. did not believe him at the time.

¶14            Given the circumstantial evidence outlined above, together
with Jordan’s arguably incriminating statements made to the detectives,
reasonable persons could find beyond a reasonable doubt that Jordan was
driving the SUV at the time of the accident. Unlike Jordan suggests in his
briefing, accident reconstruction is not necessarily required to prove that he
was driving the SUV. And even assuming the jury did not consider
Jordan’s statements to Cline as an admission that he was driving, the
circumstantial evidence is sufficient to show Jordan was indeed driving
when the accident occurred. Therefore, substantial evidence supports the
jury’s verdicts and the court did not abuse its discretion in denying Jordan’s
Rule 20 motion.

¶15           Jordan argues in his opening and reply briefs that several
pieces of evidence or testimony are “conflicting,” “hyperbole,” “not
believable,” “biased,” not credible or truthful, and otherwise
untrustworthy. These are jury considerations unsuited for appellate
review. See State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004) (“[I]t was
for the jury to weigh the evidence and determine the credibility of the
witnesses.”).

¶16           In his reply brief, Jordan abandoned the arguments raised in
his opening brief that portions of C.W.’s and V.E.’s testimonies were
admitted in violation of Arizona Rules of Evidence 403 and 404(b), stating
those rules “have no bearing on the case.” Thus, we do not consider them.
See State v. Foshay, 239 Ariz. 271, 273 n.2, ¶ 5 (App. 2016) (declining to
consider an argument in part because the appellant “abandoned” the
“argument in his reply brief”).

¶17            Jordan also asserts that (1) he did not “receive a fair trial”; (2)
portions of C.W.’s and V.E.’s testimonies were inadmissible hearsay with
“no indicia of reliability . . . from the un-named source(s)”; (3) the court
erred in “not allow[ing] further inquiry or answers” regarding the alleged
inadmissible portions of C.W.’s and V.E.’s testimonies; and (4) Dr. Fischione
testified “about areas outside of his expertise.” We find these assertions
waived because Jordan fails to develop them. See State v. Moody, 208 Ariz.
424, 452 n.9, ¶ 101 (2004) (finding waiver because the defendant “[m]erely
mention[ed] an argument”); State v. Greenberg, 236 Ariz. 592, 598, ¶ 24 (App.
2015) (finding an argument waived because the defendant did not “present


                                        6
                            STATE v. JORDAN
                           Decision of the Court

significant arguments, supported by authority, setting forth his position”
(internal quotation omitted)).

¶18           To the extent Jordan suggests the testimony given by C.W.
and V.E. constitutes fundamental error, we find no prejudice. See State v.
Henderson, 210 Ariz. 561, 567, ¶ 20 (2005) (requiring defendant to establish
error and prejudice in fundamental error review). Jordan argues their
testimony suggested he was a “bad man who lied,” but the superior court
sustained Jordan’s objection after C.W.’s testimony suggested Jordan was
untruthful about having children. Once the objection was sustained, C.W.’s
and V.E.’s testimonies did not suggest Jordan was a “bad man who lied,”
but simply explained that they spoke to police after “read[ing] some things”
or reading an article that caused them to no longer be concerned about “the
children.” Additionally, prior to deliberations, the court instructed the jury
as follows: “If the court sustained an objection to a lawyer’s question, you
must disregard it and any answer given.” We presume the jury followed
the instruction and did not consider the answer suggesting Jordan was
untruthful.3 See State v. Newell, 212 Ariz. 389, 403, ¶ 69 (2006).

       B.     Arizona Rule of Evidence 106

¶19            On the third day of trial, Jordan’s counsel asked the court for
a ruling on whether one of Jordan’s statements to a police officer, which
was recorded in the officer’s report, was admissible because he anticipated
a hearsay objection. Jordan, in response to an officer’s question about “how
the collision happened,” told the officer that he and S.S. “were talking and
that she said that ‘I can’t stop. I can’t stop.’” After oral argument on
whether the statement was inadmissible hearsay, the court denied the
motion to admit Jordan’s “statements to the police officer about what the
victim said during the accident.”

¶20            Relying on Arizona Rule of Evidence 106, Jordan argues the
superior court should have allowed him to introduce this evidence because
the State introduced his “other statements” and S.S.’s statement during the
accident was “an important factor in proving that [S.S.] was driving when
the accident happened.”

¶21           Although Jordan did not raise Arizona Rule of Evidence 106
in the superior court, he requests that we review this issue for fundamental


3     For the same reason, we find no prejudice in Jordan’s assertion that
the superior court erred in not striking C.W.’s answer after the objection
was sustained, especially in the absence of a request to do so.


                                      7
                             STATE v. JORDAN
                            Decision of the Court

error. See State v. Peltz, 242 Ariz. 23, 27, ¶ 7 (App. 2017). “To prevail under
this standard of review, a defendant must establish both that fundamental
error exists and that the error in his case caused him prejudice.” Henderson,
210 Ariz. at 567, ¶ 20. 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.” Id. at ¶ 19 (internal quotation omitted).

¶22             Under Arizona Rule of Evidence 106, “[i]f a party introduces
all or part of a writing or recorded statement, an adverse party may require
the introduction, at that time, of any other part—or any other writing or
recorded statement—that in fairness ought to be considered at the same
time.” “[H]owever, only the portion of a statement necessary to qualify,
explain or place into context the portion already introduced need be
admitted.” State v. Cruz, 218 Ariz. 149, 162, ¶ 58 (2008) (internal quotation
omitted).

¶23           Here, Jordan fails to establish error, let alone fundamental,
prejudicial error. As far as we can tell, his statement to police that S.S. said
she could not stop at the time of the accident does nothing to qualify,
explain, or place into context his other statements to police, and Jordan fails
to show otherwise. Simply because the State used Jordan’s other statements
to show he had confessed does not mean all of Jordan’s exculpatory
statements must be admitted under this rule. See id. (“Rule 106 does not
create a rule of blanket admission for all exculpatory statements simply
because an inculpatory statement was also made.”). And as the State
contends, other witnesses testified that Jordan claimed S.S. was the driver.

                                CONCLUSION

¶24           We affirm Jordan’s convictions and sentences.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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