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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                             No. 1 CA-CR 13-0916
                              FILED 9-8-2015


          Appeal from the Superior Court in Maricopa County
                       No. CR2012-133963-001
         The Honorable Richard L. Nothwehr, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By William Scott Simon
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Stephen Whelihan
Counsel for Appellant
                           STATE v. TACQUARD
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which Judge
Donn Kessler joined. Presiding Judge John C. Gemmill concurred in part
and dissented in part.


J O N E S, Judge:

¶1            John Tacquard appeals his conviction and sentence for one
count of theft of means of transportation. For the following reasons, we
affirm.

                 FACTS1 AND PROCEDURAL HISTORY

¶2            In June 2012, a Phoenix police officer initiated a traffic stop of
a 1994 Jeep Cherokee (Jeep) driven by Tacquard, after a record check
revealed the Jeep’s license plate was stolen. Tacquard was alone in the
vehicle, and further investigation revealed the Jeep was also stolen. The
vehicle had suffered “extensive damage” — the windshield was cracked,
the key tumbler had been removed from the steering column leaving the
column’s internal electronic wiring exposed, the column itself was cracked,
and the radio and speakers and two interior door panels had been removed.
Tacquard was arrested and charged with one count of theft of means of
transportation.2

¶3            Tacquard defended the charge, arguing he had no reason to
know the Jeep was stolen when he borrowed it from a friend of a friend.
Just before opening statements, the State orally moved to preclude any
witness other than Tacquard from testifying about his belief regarding the
Jeep’s legal status. The State argued only Tacquard’s state of mind was
relevant, but conceded that if “he want[ed] to testify as to what some


1     We view the evidence in the light most favorable to sustaining
Tacquard’s conviction. State v. Butler, 230 Ariz. 465, 468, ¶ 2 (App. 2012).

2      In pertinent part, “[a] person commits theft of means of
transportation if, without lawful authority, the person knowingly . . .
controls another person’s means of transportation knowing or having
reason to know that the property is stolen.” Ariz. Rev. Stat. (A.R.S.) § 13-
1814(A)(5) (2015).


                                       2
                          STATE v. TACQUARD
                           Decision of the Court

[people] may have told [him about the vehicle],” it may qualify as a hearsay
exception.

¶4            In response, defense counsel stated he intended to offer
testimony that before taking the Jeep, Tacquard asked D.E., whom
Tacquard believed to be the owner, whether the vehicle was “legitimate,”
to which D.E. responded, “yeah, there’s a bill of sale in the glove box.”
Defense counsel also stated Tacquard’s long-time friend, A.M., would
testify he saw a bill of sale in the glove box. Defense counsel argued the
testimony was being offered to show Tacquard’s state of mind at the time
he borrowed the Jeep, and the testimony of D.E. and A.M. was relevant to
establish the fact that Tacquard was told the car was legitimate, and to
corroborate Tacquard’s version of events.

¶5            The State argued the bill of sale itself, which was not found
during an inventory search of the vehicle or offered into evidence, was a
hearsay statement, and, therefore, any testimony regarding its existence
should be precluded. The State agreed Tacquard could testify he saw a bill
of sale because it “pertain[ed] to his state of mind potentially[,] as long as
he didn’t get into any hearsay statements,” but reiterated that the state of
mind or knowledge of others regarding transactions involving the Jeep was
irrelevant and hearsay.

¶6           The trial court granted defense counsel permission to argue
in his opening statement, if he had a good faith basis for doing so, that
Tacquard himself claimed to see the bill of sale, but noted the bill of sale
was hearsay and he might be taking a risk in arguing something he may not
be able to show during trial. Neither party argued the bill of sale in its
opening statement.

¶7             The parties, however, broached the subject to the trial court
again the next day. While defense counsel focused upon whether testimony
relating to the existence of a bill of sale from witnesses other than Tacquard
was hearsay, the court was more concerned about whether other
individuals’ knowledge was relevant without some indication the
information had been provided to Tacquard. At this juncture, the State
noted Tacquard could take the stand and say he saw or heard something,
which under ordinary circumstances might be hearsay, but here would
relate to his state of mind. However, any other person testifying to his or
her knowledge of transactions concerning the Jeep, or to the existence of the
bill of sale was precluded on relevancy and hearsay grounds. The court
reversed its earlier conclusion regarding the bill of sale, finding that
testimony that someone saw the document was not necessarily hearsay, but


                                      3
                            STATE v. TACQUARD
                             Decision of the Court

would not allow any witness, other than Tacquard, to testify to his
knowledge of the vehicle without some link showing the testimony was
relevant to Tacquard’s state of mind.

¶8            Tacquard testified in his own defense. He explained he
borrowed the Jeep from D.E. twenty minutes before being stopped by
police. He testified that before he took the vehicle, he asked D.E., “is
everything cool with this vehicle[?]” and D.E. responded, “Yeah, yeah.”
When Tacquard attempted to testify D.E. also told him a bill of sale was in
the glove box, the State objected on hearsay grounds and, after limited
discussion, the matter was dropped without having been ruled upon.3 A
few moments later, in apparent explanation of his earlier testimony,
Tacquard said it was the condition of the vehicle that prompted him to ask
D.E., “is this vehicle cool[?] Is everything working?” Tacquard again
attempted to testify as to D.E.’s reference to the bill of sale, but the trial court
sustained the State’s hearsay objection.

¶9            Tacquard admitted he did not look inside the vehicle before
he borrowed it, and although he asserted A.M. looked inside the glove box,
Tacquard testified he did not talk to A.M. about anything A.M. may have
seen in the glove box.

¶10           A.M. also testified on behalf of Tacquard. He testified he was
in the vehicle when Tacquard initially acquired it and searched the glove
box for insurance paperwork. When he attempted to testify that he saw “a
piece of paper with a notary stamp on the bottom,” the State objected on
hearsay grounds, which the trial court sustained. Following A.M.’s
testimony, the trial court explained, for the record, that although the State
objected upon hearsay grounds, it sustained the objection upon general
relevancy grounds because Tacquard did not testify to having seen or
known any paperwork was in the glove box.

¶11            Following trial, a jury convicted Tacquard as charged. The
trial court found Tacquard had two prior historical felonies, and sentenced


3     Following the State’s objection, the trial court stated, seemingly to
Tacquard: “For the moment it was his own statement. You are only
supposed to tell us what” — at which point Tacquard interrupted, stating
“Okay.” The State’s pending objection was not thereafter ruled upon. For
purposes of this appeal, the parties consider the court’s treatment of the
matter as indicating the State’s objection was sustained.




                                         4
                           STATE v. TACQUARD
                            Decision of the Court

him to the presumptive prison term of 11.75 years. Tacquard timely
appealed. We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1),4 -2101(A)(1), 13-4031,
and -4033(A)(1).

                                DISCUSSION

¶12             Tacquard argues the trial court abused its discretion by: (1)
precluding Tacquard from testifying D.E. told him the Jeep was
“legitimate” and there was a bill of sale in the Jeep’s glove box; and (2)
precluding A.M.’s testimony that he saw a piece of paper containing a
notary stamp in the Jeep’s glove box. We review evidentiary rulings for an
abuse of discretion. State v. Garza, 216 Ariz. 56, 66, ¶ 37 (2007) (citing State
v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006)).

I.     Tacquard’s Testimony

¶13            Tacquard argues the trial court should have allowed him to
testify to having been told by D.E. that the vehicle was “legitimate” and
contained a bill of sale in the glove box. Specifically, he argues the
statements were not hearsay because they were not offered to prove the
truth of the matter asserted — i.e., that the car was not actually stolen or
there was a bill of sale in the glove box — but rather to explain Tacquard’s
state of mind, and purported belief that his friend rightfully possessed the
Jeep, at the time Tacquard took possession.

¶14           Hearsay is a “‘statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.’” State v. Rivera, 139 Ariz. 409, 410-
11 (1984) (quoting Ariz. R. Evid. 801(c)). “Words offered to prove the effect
on the hearer” are not hearsay, and “are admissible when they are offered
to show their effect on one whose conduct is at issue.” State v. Hernandez,
170 Ariz. 301, 306 (App. 1991) (citing Rivera, 139 Ariz. at 409, 414).

¶15           Here, D.E.’s statements were not offered as proof of the matter
asserted: that D.E. possessed legal title to the Jeep, or that a bill of sale was
actually in the glove box. Indeed, Tacquard did not dispute the Jeep was
stolen. Rather, D.E.’s statements were offered to explain why Tacquard
believed it was all right for him to take possession of the vehicle. Therefore,
the offered testimony was not hearsay and was admissible for the limited

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



                                       5
                           STATE v. TACQUARD
                            Decision of the Court

purpose of demonstrating Tacquard’s state of mind. See State v. Schmid, 109
Ariz. 349, 355 (1973) (finding statements introduced to demonstrate their
effect on the hearer, and not to prove the truth of the words offered, are
admissible to show a defendant’s state of mind).

¶16           Having concluded exclusion of the statements was error, we
turn to whether that error was harmless. See State v. Ellison, 213 Ariz. 116,
131, ¶ 51 (2006); State v. Alvarez, 228 Ariz. 579, 581, ¶ 8 (App. 2012). Under
harmless error review, we will affirm a conviction “if the state, ‘in light of
all the evidence,’ can establish beyond a reasonable doubt the error did not
contribute to or affect the verdict.” State v. Valverde, 220 Ariz. 582, 585, ¶ 11
(2009) (quoting State v. Bible, 175 Ariz. 549, 588 (1993)). The relevant inquiry
is “‘whether the guilty verdict actually rendered in this trial was surely
unattributable to the error.’” Id. (quoting State v. Anthony, 218 Ariz. 439,
446, ¶ 39 (2008)).

¶17             The record reflects Tacquard had ample reason to know the
Jeep was stolen, and the exclusion of his testimony regarding his
conversation with D.E. did not affect the verdict. The arresting officer
testified that, in response to his questioning as to whether Tacquard knew
the Jeep was stolen, Tacquard stated “he didn’t care as long as it got him
from point A to point B.” Moreover, the officer testified Tacquard admitted
having started the vehicle with a “screwdriver type tool,” which the officer
explained is commonly the case with stolen vehicles. Officers located two
screwdrivers and two pairs of needle-nose pliers in the vehicle; a key was
never located.5 Another officer testified that the type of damage the interior
of the Jeep had suffered — specifically, the forcibly removed key tumbler
and cracked steering column — was commonly found in stolen vehicles.
The condition of the Jeep alone apparently caused Tacquard sufficient
concern to prompt him to ask whether the vehicle was “cool,”6 even before
he proceeded to start the vehicle with a screwdriver.          Furthermore,




5      Tacquard testified he only received a “broken piece of a key” from
D.E. that did not have “teeth and grooves” on it, but was just the “tab” of
the key.

6      The record is unclear as to whether Tacquard was inquiring as to the
mechanical operability, or the legal status, of the Jeep. Viewing the facts in
the light most favorable to sustaining the conviction, this testimony
supports the inference that Tacquard was aware, simply from the physical
appearance of the Jeep, that it was not, in fact, cool.


                                       6
                           STATE v. TACQUARD
                            Decision of the Court

Tacquard testified he was aware both D.E. and A.M. had histories of
involvement with law enforcement.

¶18           Although Tacquard’s testimony was relevant in determining
whether he knew the vehicle was stolen, it could not overcome or explain
away the myriad of other circumstances that provided him reason to know
the Jeep was stolen. And, Tacquard was apparently prepared to testify only
that D.E. told him a bill of sale was in the glove box — not that the bill of
sale applied to the Jeep or was issued to D.E. Because we can say beyond
any reasonable doubt that the error did not contribute to the verdict, we
find the exclusion of Tacquard’s testimony was harmless.

II.    A.M.’s Testimony

¶19            Next, Tacquard argues the trial court abused its discretion by
precluding A.M. from testifying to having seen a bill of sale in the glove box
of the Jeep on relevancy grounds. “[W]e review the trial court’s
determination of the relevancy and admissibility of evidence for abuse of
discretion.” State v. Rutledge, 205 Ariz. 7, 10, ¶ 15 (2003) (citing State v.
Amaya-Ruiz, 166 Ariz. 152, 167 (1990)). A court abuses its discretion when
“the reasons given by the court for its action are clearly untenable, legally
incorrect, or amount to a denial of justice.” State v. Mieg, 225 Ariz. 445, 447,
¶ 9 (App. 2010) (internal quotation and citation omitted).

¶20            Under Arizona Rule of Evidence 401, evidence is relevant if:
“(a) it has any tendency to make a fact more or less probable than it would
be without the evidence; and (b) the fact is of consequence in determining
the action.” Tacquard argues testimony from A.M., that A.M. had seen a
bill of sale in the glove box, tended to make it more probable that D.E.
actually told Tacquard the bill of sale was in the glove box. But as the trial
court ruled, what A.M. saw had no relevance to the charge in the case:
whether Tacquard knew or had reason to know the Jeep was stolen.

¶21          The only fact of consequence here is whether Tacquard drove
the vehicle with a legitimate belief that D.E. was its rightful owner.
Tacquard testified that while he saw A.M. check the glove box, he did not
have any conversations with A.M. about what may have been located there.
Nor did he look in the glove box himself to confirm D.E.’s statements or
direct A.M. to do so. Because A.M.’s observations were never relayed to
Tacquard, they could not have bolstered Tacquard’s reliance on D.E.’s
statements, or impacted his state of mind as to that issue. Moreover,
according to A.M., he was not acting to confirm D.E.’s statements or under
Tacquard’s direction, but just happened to notice a bill of sale while looking



                                       7
                          STATE v. TACQUARD
                           Decision of the Court

in the glove box for another purpose. With no nexus between what A.M.
saw and Tacquard’s knowledge, the testimony is of A.M. is irrelevant.

¶22          Therefore, the trial court did not abuse it discretion in
excluding A.M.’s testimony regarding his observation of the bill of sale in
the glove box as irrelevant.

                              CONCLUSION

¶23           For the foregoing reasons, we affirm Tacquard’s conviction
and sentence.



G E M M I L L, Judge, concurring in part and dissenting in part,

¶24          I respectfully dissent because I disagree with the majority’s
harmless error analysis regarding the exclusion of Tacquard’s testimony of
what D.E. said to him about the status of the vehicle. See supra ¶ 4. I agree
with the majority’s resolution of the issue regarding A.M.’s testimony.

¶25           The majority correctly concludes that the trial court erred in
sustaining the State’s objection when Tacquard attempted to testify that
D.E. had told him the Jeep was legitimate and there was a bill of sale in the
glove box. See supra ¶¶ 4, 8, 15. This evidence was not hearsay because it
was offered as evidence of Tacquard’s state of mind. Because Tacquard’s
defense was that he neither knew nor had reason to know that the Jeep was
stolen, the evidence was crucial. The majority errs, I respectfully submit,
by deciding the erroneous exclusion of this evidence was harmless beyond
a reasonable doubt.

¶26           Although there is ample evidence supporting the jury’s
determination of guilt, this wrongly excluded evidence went to the heart of
Tacquard’s defense: that he did not knowingly control another person’s
means of transportation. When the evidence of guilt is overwhelming and
the erroneously excluded or admitted evidence does not affect the central
issue determining guilt, it is easier to conclude that harmless error has
occurred. In this instance, however, the excluded evidence was the primary
component of Tacquard’s defense, and I cannot say beyond a reasonable
doubt that this error did not contribute to or affect the jury’s verdict.

¶27            It is difficult for an appellate court to assess the weight,
credibility, and potential significance of excluded evidence. If Tacquard
had been allowed to explain what D.E. had told him, the jury may have


                                     8
                         STATE v. TACQUARD
           Gemmill, J. Concurring in part and Dissenting in part

chosen to believe him and reached a different result. That we may assess
an acquittal to be unlikely does not automatically mean that the error was
harmless. As the United States Supreme Court has explained:

       From presuming too often all errors to be “prejudicial,” the
       judicial pendulum need not swing to presuming all errors to
       be “harmless” if only the appellate court is left without doubt
       that one who claims its corrective process is, after all, guilty.
       In view of the place of importance that trial by jury has in our
       Bill of Rights, it is not to be supposed that Congress intended
       to substitute the belief of appellate judges in the guilt of an
       accused, however[] justifiably engendered by the dead
       record, for ascertainment of guilt by a jury under appropriate
       judicial guidance, however cumbersome that process may be.

Bollenbach v. United States, 326 U.S. 607, 615 (1946).

¶28          Because I cannot conclude that the error was harmless beyond
a reasonable doubt, I would reverse and remand for a new trial.




                                   :ama




                                          9
