                               NOTICE: NOT FOR PUBLICATION.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.

                   RYAN FRANK CRANDALL, Appellant.

                              No. 1 CA-CR 12-0342
                               FILED 3-27-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-119307-001
               The Honorable Kristin C. Hoffman, Judge

                                    AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Cory Engle
Counsel for Appellant
                          STATE v. CRANDALL
                           Decision of the Court



                        MEMORANDUM DECISION

Presiding Judge Maurice Portley delivered the decision of the Court, in
which Judge John C. Gemmill and Judge Kent E. Cattani joined.


P O R T L E Y, Judge:

¶1            Ryan Frank Crandall appeals his conviction and sentence for
aggravated assault, a class 4 felony. He contends that the trial court erred
in granting the State’s motion precluding a witness from testifying about
an alleged violent act by the victim that Crandall also witnessed an hour
before the assault. Because we find no abuse of discretion, we affirm.

           FACTUAL1 AND PROCEDURAL BACKGROUND

¶2           The victim and Crandall met at a neighborhood barbeque in
April 2011. Later that evening, several people at the barbeque, including
Crandall and the victim, went to the Riff Raff Bar. After spending a
couple of hours drinking and socializing at the bar, Crandall, the victim,
and another man climbed into the bed of Crandall’s truck, while another
person drove them back to Crandall’s house. On the way back, an El
Mirage police officer saw Crandall and the other man standing up and
dancing or jumping around the truck bed. The officer pulled over the
truck and the driver was subsequently arrested for DUI.

¶3           During the traffic stop, Crandall and the victim got into an
argument in front of the officer. They separately returned to Crandall’s
house, had another short verbal altercation while in front of the house, but
stopped when the victim moved away and started talking to a woman.
Crandall then moved towards the victim and punched him in the face,
causing his nose to bleed. Crandall then threw the victim to the ground,
put his hand over victim’s mouth and nose and said, “You’re done, good
night.” Other people pulled Crandall off the victim, and the victim was
taken to a hospital emergency room. The victim had a broken nose,
dislocated shoulder, and broken foot. Crandall was subsequently

1 We review the evidence in the light most favorable to sustaining a
conviction, and resolve all reasonable inferences against a defendant.
State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3, 110 P.3d 1026, 1027 (App. 2005).



                                     2
                           STATE v. CRANDALL
                            Decision of the Court

charged, tried, and convicted of aggravated assault, and sentenced to
prison for 2.5 years, with thirty-four days of presentence incarceration
credit.

                                DISCUSSION

¶4             Just before opening statements, the State successfully moved
to preclude the testimony of Charlie Anaya. Crandall wanted Anaya, who
had been at the Riff Raff Bar, to testify that the victim was “mad dogging”
at that bar; that is, the victim walked between Anaya and a woman he was
talking to, bared his teeth and growled like a dog. Crandall claimed that
the testimony was relevant to his justification defense because it
demonstrated (1) that the victim was more than likely the initial aggressor
in the later event, (2) Crandall’s state of mind; and (3) that Crandall’s
actions toward the victim were reasonable.

¶5            We review evidentiary rulings for abuse of discretion. State
v. Fish, 222 Ariz. 109, 114, ¶ 8, 213 P.3d 258, 263 (App. 2009). We will not
disturb the exclusion of evidence absent an abuse of discretion and
resulting prejudice. State v. Ayala, 178 Ariz. 385, 387, 873 P.2d 1307, 1309
(App. 1994).

       I.     Other Act Evidence

¶6             The trial court excluded Anaya’s testimony pursuant to
Arizona Rule of Evidence (“Rule”) 404(b). The Rule, entitled “[o]ther
crimes, wrongs or acts,” precludes the introduction of other acts to prove
the character of a person and that the person acted in conformity. Ariz. R.
Evid. 404(b). Other act evidence, however, can be admitted to show
“proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Id.; Fish, 222 Ariz. at 122-23,
¶ 42, 213 P.3d at 271-72. For example, if the victim has a felony conviction
that the defendant knows about, the conviction may be admissible under
Rule 404(b) because it is relevant to a defendant’s state of mind. See State
v. Taylor, 169 Ariz. 121, 125, 817 P.2d 488, 492 (1991) (citing State v. Jeffers,
135 Ariz. 404, 417, 661 P.2d 1105, 1118 (1983) (“The list of ‘other purposes’
in rule 404(b) . . . is not exclusive; if evidence is relevant for any purpose
other than that of showing the [person’s] criminal propensities, it is
admissible even though it refers to his prior bad acts.”)).




                                       3
                           STATE v. CRANDALL
                            Decision of the Court

              A. Reasonableness/Defendant’s State of Mind

¶7            The Arizona Supreme Court has held that a defendant
arguing self-defense may introduce specific acts of violence or aggression
by a victim that the defendant observed or knew about before the alleged
crime to show that the defendant’s response was reasonable. See State v.
Santanna, 153 Ariz. 147, 149, 735 P.2d 757, 759 (1987); accord State v. Connor,
215 Ariz. 553, 558-59, ¶¶ 13-14, 161 P.3d 596, 601-02 (App. 2007).
Although the State argues that the evidence can only be admitted in a
homicide case, we find the argument unpersuasive. See State v. Zamora,
140 Ariz. 338, 340-41, 681 P.2d 921, 923-24 (App. 1984) (permitting defense
in an aggravated assault case to introduce specific instances of the victim’s
possession of a gun, of which the defendant was aware; evidence was
relevant to the defendant’s state of mind at the time of the incident).

¶8             Specific acts by the victim, which influence defendant’s state
of mind, are admissible “only if the defendant knew of them . . . or if they are
directed toward third persons relating to or growing out of the same
transaction, or so proximate in time and place and circumstances as would
legitimately reflect upon the conduct or motives of the parties at the time
of the affray.” Connor, 215 Ariz. at 559, ¶ 13, 161 P.3d at 602 (quoting
Zamora, 140 Ariz. at 340, 681 P.2d at 923) (emphasis added). Evidence of
an alleged act may be precluded if it relates to a single act and could
potentially distract jurors and unfairly prejudice the victim. Fish, 222 Ariz.
at 121, ¶ 34, 213 P.3d at 270.

¶9            Here, the totality of the trial evidence supports the court’s
ruling. Although Crandall witnessed the “mad-dogging” incident and it
was arguably relevant to his state of mind, the act of “mad-dogging” was
not necessarily violent; there were no physical or verbal threats. Anaya,
who was at the bar, was not part of the neighborhood party at the bar.
The “growling” incident was not directed at Crandall. Moreover, because
Anaya did not know the victim and there was a question of whether he
could identify the victim as the person who engaged in “mad-dogging,”
his testimony could have potentially distracted the jurors. 2 Finally, there
were intervening circumstances that occurred after Crandall witnessed the
“mad-dogging” and when he assaulted the victim.

2 Because Anaya did not know the victim before the incident, the defense
also needed to call a defense investigator to establish the foundation that
he showed Anaya a photographic line-up and that Anaya was sixty to
seventy percent sure that he had the run-in with the victim.



                                       4
                          STATE v. CRANDALL
                           Decision of the Court

              B. Corroboration/Defendant’s Credibility

¶10           Crandall argues on appeal that Anaya’s testimony should
have been admissible “to rebut the state’s argument that the defendant
fabricated or exaggerated the victim’s acts during the incident.” At trial,
however, Crandall only argued that Anaya’s testimony was admissible to
show that the victim was likely the first aggressor and that Crandall’s
state of mind was affected such that he reasonably believed the victim was
going to harm him. Crandall never renewed his request to have Anaya
testify and never argued that Anaya’s testimony would corroborate his
version of the events and his credibility. Given that Crandall did not
specifically make the arguments to the trial court he now raises on appeal,
we review the ruling for fundamental error. See State v. Lopez, 217 Ariz.
433, 434, ¶ 4, 175 P.3d 682, 683 (App. 2008) (“[A] general objection is
insufficient to preserve an issue for appeal. And an objection on one
ground does not preserve the issue on another ground. When a party fails
to object properly, we review solely for fundamental error.”); see also State
v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005).

¶11            For Crandall to obtain relief for this proffered evidence
purpose, he must show that a fundamental error exists and that it caused
him prejudice. See Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607. The
defendant has the burden of persuasion. Id. at ¶ 19. Relief cannot be
granted unless the error went to the case’s foundation, took away a right
essential to defendant’s defense, or eliminated defendant’s ability to have
a fair trial. Id. “Fundamental error is clear, egregious, and of such
dimension that it denied the defendant a fair trial.” State v. Rutledge, 205
Ariz. 7, 13, ¶ 32, 66 P.3d 50, 56 (2003). Crandall cannot show fundamental
error.

¶12           Evidence that sustains or impeaches a witness’s credibility is
generally admissible. Jeffers, 135 Ariz. at 417, 661 P.2d at 1118. In Jeffers,
for example, the defendant’s prior assaults were admitted to counter the
defense’s insinuation that a witness had fabricated her story to gain
immunity. Id. (noting that evidence of the defendant’s prior assaults
explained why the witness was scared, did not immediately report a
murder, and was not now lying). Similarly, here it would appear as
though the victim’s prior act of “mad-dogging” should be admissible to
counter the State’s insinuation that the defendant lied about who was the
initial aggressor of the assault. See id. Crandall, however, could have
called witnesses to the actual assault to testify, if they could, that the
victim was the initial aggressor in order to counter the insinuation that
Crandall was lying about who was the initial aggressor.


                                      5
                          STATE v. CRANDALL
                           Decision of the Court

¶13           Moreover, because there were other witnesses to Crandall’s
assault, the exclusion of Anaya’s “mad-dogging” testimony was not
prejudicial. In fact, there was direct evidence from people who saw the
interaction between the victim and Crandall that suggested that the victim
was the aggressor. For example, the police officer who stopped the truck
leaving the bar testified that the victim and defendant were yelling at each
other. Crandall’s neighbor testified that she saw the victim approach
Crandall to yell at him and that the victim yelled at two other individuals
before the assault. The jury, as a result, had to weigh the credibility of the
witnesses and decide the facts.

       II.    Character Evidence/Initial Aggressor

¶14           Crandall also contends that the court should have allowed
Anaya’s testimony to demonstrate the victim’s character for violence
pursuant to Rule 404(a)(2). The Rule provides that an accused may offer
evidence of a victim’s character trait by reputation or opinion evidence to
show conformity. Ariz. R. Evid. 404(a)(2). Rule 405, however, limits the
evidence to testimony regarding a general character trait and does not
include specific acts that were unknown to the defendant. Fish, 222 Ariz.
at 118, ¶ 28, 213 P.3d at 267. “[E]vidence of specific acts of violence by a
victim generally is inadmissible under Rule 404(a) unless the victim’s
character is an essential element of a claim or defense under Rule 405(b) or
the evidence is admissible under Rule 404(b).” Id. at 117, ¶ 21, 213 P.3d at
266. Here, because Crandall was not aware of the “mad-dogging”
incident, the evidence was only admissible if the victim’s character was an
essential element of his defense.

¶15           The victim’s character, however, is not an essential element
of self-defense. Id. at 119, ¶ 29, 213 P.3d at 268. Accordingly, Crandall
was limited under Rule 405 to general reputation testimony and could not
elicit the one act of “mad-dogging” to demonstrate the victim’s general
reputation. Consequently, the court did not abuse its discretion by
precluding the victim’s action in the bar to attempt to demonstrate that he
was the initial aggressor.

       III.   Harmless Error

¶16            However, even if excluded evidence should have been
admitted to show Crandall’s reasonableness and state of mind or that the
victim was the first aggressor, a conviction will not be reversed unless
there is a reasonable probability that the verdict would have been
different if the evidence had been introduced. See State v. Van Adams, 194


                                      6
                           STATE v. CRANDALL
                            Decision of the Court

Ariz. 408, 416, ¶ 23, 984 P.2d 16, 24 (1999) (noting that admission of
testimony that was irrelevant and emotional was harmless error); see also
State v. Lacy, 187 Ariz. 340, 348-49, 929 P.2d 1288, 1296-97 (1996). We
review an alleged trial error under the harmless error standard when a
defendant objects at trial. Henderson, 210 Ariz. at 567, ¶ 18, 115 P.3d at 607.
As a result, the State has the burden “to prove beyond a reasonable doubt
that the error did not contribute to or affect the verdict or sentence.” Id.

¶17          Any possible error in precluding Anaya’s proposed
testimony was harmless. There were several witnesses to the aggravated
assault and none testified that Crandall’s aggressive conduct precipitated
the attack. Because the eyewitnesses testified, the exclusion of Anaya’s
testimony about the “growling” at the bar was harmless.

¶18           Moreover, Crandall testified about the bar incident and that
he found it confrontational. He then referred to his testimony during
closing argument to attempt to convince the jury that the victim was the
aggressor. Because the jurors were aware of the incident without Anaya’s
testimony, they had to weigh the testimony and determine credibility of
all the witnesses in deciding the facts of what happened and whether the
State proved its case beyond a reasonable doubt. Consequently, any
possible error by the preclusion of Anaya’s testimony was harmless.

                              CONCLUSION

¶19           Based on the foregoing, we affirm Crandall’s conviction and
sentence.




                                   :MJT




                                      7
