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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                         CRAIG DWAYNE JUSTICE,
                                Appellant.

                             No. 1 CA-CR 13-0904
                               FILED 7-23-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-118843-001
                 The Honorable M. Scott McCoy, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By David Simpson
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Louise Stark
Counsel for Appellant
                            STATE v. JUSTICE
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Kent E. Cattani joined.


O R O Z C O, Judge:

¶1             Craig Dwayne Justice (Defendant) timely appeals from his
convictions for second degree murder and leaving the scene of a fatal injury
accident. Defendant argues on appeal that the trial court erred when it
permitted the State to present evidence that he was on parole at the time of
the collision in support of the charge of leaving the scene of the accident.
He also argues the trial court should have sua sponte given a limiting
instruction. For reasons set forth below, we find no abuse of discretion and
affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            On the morning of the collision, Defendant and his wife were
driving home from a party at a friend’s house at which Defendant had been
drinking. On the drive home, Defendant was involved in a traffic
altercation with two men in a pickup truck. Darrin, the driver of the truck,
admitted that he had also been drinking. According to Darrin, he and
Defendant got out of their vehicles and argued in the street, then Defendant
hit him in the mouth and fractured his jaw before driving off in Darrin’s
truck, leaving Darrin and his friend at the scene. Defendant was driving
the truck when, minutes later, he ran a stop sign approximately half a mile
away and hit an SUV, killing the driver.

¶3           A witness who lived near the intersection heard the crash and
immediately called 911. She saw “two people in front of the truck leaving.”
The witness asked the man and woman, if anyone was hurt, but they did
not respond. The witness also saw a white car “on the other side,” facing
in the opposite direction of the pickup truck, and saw a “blonde woman”
getting the man into the back passenger door of the car before the woman
“went round to the driver’s side” and “accelerated” away. The man
appeared to have some difficulty in getting into the car, and the witness
heard the woman telling the man to get in. The car drove off while the
passenger door was still open. As the car went down the street, the witness
saw the woman turn her right blinker on “like she was going to take a right


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                            Decision of the Court

turn,” but then the woman turned her lights off and turned left. The woman
also did not stop at a stop sign, just went through it. The car was headed in
the direction of the trailer complex in which Defendant lived at the time.
All this time, the witness was on the telephone with 911, describing events
and relaying the license plate number of the white car.

¶4             Based on the 911 call, police broadcasted a description of a
white Lincoln that had been seen leaving the scene as well as a description
of its occupants. Shortly thereafter, police received a report that a “hit-and-
run” victim had arrived at a nearby hospital. A Maricopa County Sheriff’s
deputy drove to the hospital and located the white Lincoln parked in the
parking lot. He also found Defendant, who was being treated for several
injuries including a “large 5 centimeter long, mildly displaced and
comminuted right mid-femoral shaft fracture” and a “curvilinear laceration
on the right forehead.” Defendant gave the deputy several versions of
events. He first stated that he had stopped to render assistance to the two
men in the truck but that a “racial misunderstanding” occurred and that
they proceeded to hit him and he fought back. He also told the deputy that
he had hit both of them and gotten into their truck because his wife had left
him and driven off in their white car. He then stated that someone pulled
him out of the pickup truck and ran him over with it. However, when the
deputy explained that the truck was found half a mile from the location of
the initial altercation, Defendant denied driving the truck. Defendant’s
Blood Alcohol Content was between .146 and .174 percent within two hours
of driving.

¶5            Defendant did not testify at trial, but his wife testified and
maintained that they had been the subject of an attempted car-jacking by
the men in the pickup truck and that Defendant sustained his injuries when
he was run over by them. She maintained that she never saw the SUV and
was unware of any collision. She testified that the only reason they left the
location where the woman was on the telephone was to take Defendant to
the hospital because he needed immediate medical attention.

I.     Motion in Limine re Other Act Evidence

¶6             Several months before trial, the State moved in limine to
preclude Defendant from raising a necessity defense by arguing that he left
the accident scene to obtain medical assistance. The State also filed a motion
in limine to introduce evidence that Defendant was on parole at the time of
the offenses, “should the Defendant choose to testify” and claim that he left
the scene to obtain medical treatment. At a motions hearing, defense
counsel agreed that Defendant would not raise a necessity defense. The


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                           Decision of the Court

State agreed that defense counsel could introduce evidence of Defendant’s
injuries in connection with his theory that Defendant was not driving the
truck. In light of defense counsel’s concession regarding the necessity
defense, the State also agreed that it would not introduce evidence that
Defendant was on parole at the time of the collision. However, the State
announced its intention to introduce that evidence in rebuttal if Defendant
suggested “some issue or some reason for leaving the scene.” Defense
counsel objected to the motion on the grounds that it was “not timely” and
because the evidence was barred by the injunction against discussing
penalties at trial. The trial court deferred ruling on the State’s motion
“based on the State’s agreement” that it would not raise the issue of parole
in its case in chief or in opening statements. The court also advised defense
counsel that he was on notice of the State’s intentions if Defendant wished
to brief any issues.

¶7            During cross-examination of a sheriff’s deputy, defense
counsel attempted to elicit statements that were made by Defendant’s wife
to the deputy who spoke with her at the hospital while Defendant was
being treated. Counsel argued wife’s statements were admissible as
“excited utterances” or present sense impressions. The State made a
hearsay objection to the line of questioning and argued that Defendant
could call Defendant’s wife to testify as a witness. The State argued that,

       [I[f the defense is going to attempt to get out some sort of
       medical necessity through [Defendant’s wife], I am renewing
       that I would like to be able to get into an alternate theory as
       to why they left, if that’s what is going to come out as to
       [Defendant’s wife].

The trial court sustained the State’s hearsay objections.

¶8             After the State rested and the trial court denied Defendant’s
Rule 20 motion, defense counsel announced that it would call Defendant’s
wife as a witness. The trial court asked the State to identify what in wife’s
testimony would “trigger the parole status being relevant[.]” The State
responded that Defendant’s parole status was relevant “from the get go”
because it was the reason Defendant left the scene. The fact that Defendant
had been drinking in violation of his parole and was involved in a fatal
traffic accident, in a truck that did not belong to him, made both Defendant
and his wife realize that Defendant needed to leave the scene. Thus,
according to the State, any attempt by the wife to say that Defendant was
“so badly injured” they needed to “seek immediate medical attention”
would open the door. Defense counsel objected, arguing that “it was


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                             Decision of the Court

inherently prejudicial to start arguing penalties,” there was ample evidence
that Defendant’s injuries required medical attention, the State was simply
“trying to impute sinister motives” to Defendant and his wife’s actions
without any supporting proof, and the evidence was “inherently
prejudicial under 403.” The trial court ruled that the evidence was
admissible and Defendant could ask for a limiting instruction. Defense
counsel never asked for a limiting instruction.

¶9            Defendant’s wife testified that she alone was driving the
white Lincoln because Defendant did not have a driver’s license and “he
had been drinking alcohol.” She maintained that Defendant had been run
over by the men in the pickup truck and that she drove him from the scene
to the hospital because Defendant was so badly injured that she thought he
was “going to bleed to death.” In an attempt to “[draw] the sting,” the
following exchange occurred:

       [Defense Counsel]: Okay. And from there in this whole
       process, an argument is being posited that maybe you were
       deliberately trying to get [Defendant] away from the accident
       because he was on parole at the time?

       [Wife]: Didn’t even cross my mind.

During cross-examination, the following exchange occurred:

       [Prosecutor]: Well, [defense counsel] asked you the question
       that [Defendant] was on parole and you answered yes, he
       was?

       [Wife]: Well, then I did.

       [Prosecutor]: Okay. So is that a possible reason . . .

       [Wife]: [Y]ou’re getting me all confused and you’re trying to
       put words into my mouth. I was scared for my husband’s life.
       I picked him up. I put him in the car.

¶10           The State did not further pursue this line of questioning with
Defendant’s wife. However, during the State’s rebuttal, it called a parole
supervisor from the Arizona Department of Corrections who testified that,
at the time of the collision, Defendant was on parole from a felony
committed in Georgia. The witness also testified that among the terms and
conditions of Defendant’s parole were the conditions to “not consume or
use any form of alcohol . . . to obey all city, county and state laws . . . and . .


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                            Decision of the Court

. inform [his] parole officer within one working day of any contact . . . with
any law enforcement officer . . . [and] not engage[] in any assaultive, violent
or criminal behaviors or activities of any sort.”

¶11          Following this witness’s testimony, the jury submitted two
questions asking why Defendant was on parole. The parties agreed and the
jury was instructed that the reason Defendant was on parole was not
relevant and not something with which the jury need be concerned.

¶12          Defendant did not request a limiting instruction either that
day or when final instructions were agreed upon later in the day. The trial
court consequently did not give a limiting instruction regarding
Defendant’s parole status.

¶13            In closing arguments, the State argued that the evidence
established that Defendant was the driver of the pickup truck and that he
left the scene of the accident when he could simply have stayed there and
called or waited for medical assistance. During rebuttal closing, the State
argued that the fact that Defendant was on parole gave him the “motive to
flee.” According to the State, because of his parole status, Defendant knew
he was in “a world of trouble” if the police arrived, so they drove away
without even waiting for the car doors to close. In response to specific
comments by defense counsel in closing, the State argued:

       Now, the defense has argued that consuming liquor, the
       parole officer testified that in response to a question only
       about the alcohol, that it was a minor violation, probably
       wouldn’t have done much. But there’s a lot more that’s going
       on here. One, he’s driving a vehicle that doesn’t belong to
       him without the permission of the owner. Two, he’s
       committed at least two traffic violations: Speeding - - in fact,
       criminal speeding; and running a stop sign. Three, he’s
       caused a collision. And four, at a minimum, he’s injured
       somebody. At the most, he’s killed somebody. But he doesn’t
       know either one of those because he didn’t stop to check to
       see whether anybody is injured. . . . What he did is he got up,
       he went to the vehicle, got in it, and they fled going home. At
       any point he could have called 911.

The jury subsequently found Defendant guilty of second degree murder
and leaving the scene of a fatal injury accident as charged. Defendant
timely appealed and we have jurisdiction pursuant to Article 6, Section 9 of




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                             STATE v. JUSTICE
                            Decision of the Court

the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-
120.21.A.1, 13-4031 and -4033.A.1 (West 2015).1

                                DISCUSSION

II.    Admission of felony parole status

¶14            On appeal, Defendant argues that the “litany” of violations he
committed by “taking the truck, driving drunk without a license, running
the stop sign and knowing the accident was serious” was sufficient
“motive” to show a guilty mind. Defendant argues that, while the State
may have claimed his felony parole status was relevant to show motive, it
actually used it as character evidence to impeach his and his wife’s
testimony and as “substantive evidence” to convince jurors that it had
proven the charges. Contrary to Defendant’s contentions, our review
reveals that the State did not use the evidence for an improper purpose.

¶15            We review a trial court’s admission of evidence for an abuse
of discretion. State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006). “Absent a clear
abuse of discretion, this court will not second-guess a trial court’s ruling on
the admissibility or relevance of evidence.” State v. Spreitz, 190 Ariz. 129,
146 (1997) (internal punctuation omitted).

¶16            Four provisions of the Arizona Rules of Evidence control the
admission of other act evidence: Rule 404(b) requires that the evidence be
admitted for a proper purpose; Rule 402 requires that the evidence be
relevant; Rule 403 requires that the danger of unfair prejudice not outweigh
the probative value; and Rule 105 requires that the trial court give a limiting
instruction upon request. State v. Terrazas, 189 Ariz. 580, 583 (1997). While
Rule 404(b) prohibits the introduction of other act evidence “to prove the
character of a person in order to show action in conformity therewith,” it
permits such evidence for other purposes, “such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity or absence of
mistake or accident.” Thus evidence of other acts is admissible if it is
relevant and admitted for one of the proper purposes. State v. Beasley, 205
Ariz. 334, 337, ¶ 14 (App. 2003) (citation omitted). “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.” Ariz. R. Evid. 401.



1     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.


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                             STATE v. JUSTICE
                            Decision of the Court

¶17            Here, the State sought to introduce evidence of Defendant’s
parole status to impeach his wife’s testimony that the only reason they left
the scene was to get Defendant medical assistance as quickly as possible.
The State argued Defendant’s parole status gave him and his wife a motive
to flee the scene before police arrived. Thus, rather than simply waiting for
emergency medical assistance to arrive, the two drove away taking evasive
action in order to avoid being caught in violation of his parole because of
his drinking and driving and having caused the collision.2 The trial court
agreed that the evidence was admissible for this purpose, noting that
“being on parole would be a very good reason to leave the scene or strong
motive to leave the scene.” The evidence was clearly relevant to explain
Defendant’s reason for leaving the scene and introduced for the proper
purpose of proving Defendant’s motive for doing so. Furthermore, it
became even more relevant in light of his wife’s denial that any collision
had occurred and her explanation that they left the scene simply to seek
medical assistance. See, e.g., Beasley, 205 Ariz. at 337, ¶¶ 13-14 (defendant’s
statements that he fled because he had been mistakenly released from jail
and did not want to return were admissible under Rule 404(b) to prove
motive for fleeing); State v. Rivers, 190 Ariz. 56, 60-61 (App. 1997) (evidence
that defendant failed drug test properly admitted to establish motive for
defendant to escape from custody). The trial court did not abuse its
discretion in admitting evidence of defendant’s parole status as relevant to
establish his motive for leaving the scene of the collision.3


2       Defendant’s wife admitted that she heard the witness at the scene
speaking with someone on the telephone and relaying the license plate of
their car, but that, because assistance did not come fast enough, she needed
to take Defendant to the hospital herself. A question from the jury
remarked upon the fact that Defendant’s wife heard the woman speaking
on the phone and asked why the wife decided to “move someone that is
badly injured if [she] knew help was on the way.” Defendant’s wife replied
that she did not hear the woman say 911, but only “heard her say my license
plate and thanked her for calling and asked her to tell them we’re going to
the hospital.”

3      Defendant’s argument that the State used the evidence as improper
character evidence to show that Defendant “was a person who would drive
drunk, cause a fatal accident and leave the scene based upon his being a
felon on parole” is simply not borne out by the record. Defendant also
suggests that the evidence was “superfluous” because the fact that he was
drinking and driving gave him more than enough motive to flee. However,



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                            Decision of the Court

¶18           Defendant next argues that the evidence was unfairly
prejudicial and should have been excluded on that basis. The trial court
considered the issue and determined that the probative value of the
evidence was not outweighed by a danger of prejudice. See Ariz. R. Evid.
403. We find no abuse of discretion in the trial court’s determination.

¶19            Any evidence that is relevant and material will generally be
harmful to a defendant, but it is only when evidence is unfairly prejudicial
that it need be excluded. State v. Schurz, 176 Ariz. 46, 52 (1993). “Unfair
prejudice” is applied to describe evidence that has an undue tendency to
suggest a decision on an improper basis such as emotion, sympathy or
horror. Id. While the evidence of Defendant’s parole status may have been
“adversely” probative, in the sense that all relevant evidence generally is, it
was not unfairly prejudicial in that it did not suggest a decision on an
improper basis such as “emotion, sympathy or horror.” See id. Certainly
the State did not use it to that effect in its arguments to the jury.
Furthermore, once counsel attempted to suggest that Defendant was not the
driver of the pickup but rather a victim and to offer a medical emergency
reason for failing to remain at the scene, the probative value of evidence of
the alternative reason for leaving outweighed potential prejudice. In
addition, the trial court took steps to mitigate any potential for prejudice
from the knowledge that the parole was for a felony by instructing jurors,
when they inquired, that the nature of the underlying felony was not
something they either should consider or speculate about because it was
not part of the case. Finding no indication in the record to the contrary, we
presume the jury followed the trial court’s instruction. See State v. LeBlanc,
186 Ariz. 437, 439 (1996) (“Jurors are presumed to follow instructions.”).

III.   Limiting Instruction

¶20           Finally, Defendant argues that the trial court committed
reversible error because it failed to give a limiting instruction regarding the
parole status evidence. Rule 105 provides that a trial court shall give a
limiting instruction when evidence is admissible for one purpose but not
for another purpose “upon timely request.” See also Terrazas, 189 Ariz. at
583 (Rule 105 requires that trial court give limiting instruction upon request)
(emphasis added). Defendant concedes that he did not request a limiting
instruction, but contends that the trial court had an “imperative duty” to


the fact that the State may have evidence of other motives does not preclude
it from presenting evidence of any one motive even though less prejudicial
evidence of motive may exist. State v. Hargrave, 225 Ariz. 1, 8-9, ¶ 14 (2010).
Furthermore, Defendant does not cite any authority for his argument.


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                            Decision of the Court

give a limiting instruction and that the court’s failure to do so sua sponte
resulted in fundamental error that requires reversal of his convictions. We
disagree.

¶21            “Experienced defense counsel may very well consider it good
trial strategy to fail to ask for such an instruction or to object to such an
instruction if proposed.” State v. Hernandez, 7 Ariz. App. 200, 205 (App.
1968), abrogation on other grounds recognized by State v. Harvill, 106 Ariz. 386,
391 (1970). Here the trial court expressly offered to give a limiting
instruction when it ruled it would admit evidence of Defendant’s parole
status. Defense counsel made no request at that time nor when the final
jury instructions were discussed and settled.

¶22            A trial court is not required, sua sponte, to give a limiting
instruction on other act evidence. State v. Miles, 211 Ariz. 475, 483, ¶ 31
(App. 2005) (citing State v. Taylor, 127 Ariz. 527, 530 (1980)). Our supreme
court has “repeatedly held that, if a defendant wants an instruction limiting
the effect of certain evidence he must request it, and the failure of the trial
court to so instruct is not error in the absence of a request therefor.” Taylor,
127 Ariz. at 530.

¶23             “If a party fails to object to an error or omission in a jury
instruction, we review only for fundamental error.” State v. Finch, 202 Ariz.
410, 415, ¶ 19 (2002). To prevail on fundamental error review, a defendant
“must establish both that fundamental error exists and that the error in his
case caused him prejudice.” State v. Henderson, 210 Ariz. 561, 567, ¶ 20
(2005). However, before we engage in fundamental error review, we must
first find that the trial court committed some error. State v. Lavers, 168 Ariz.
376, 385 (1991). Contrary to Defendant’s assertions, because the trial court
here was not required to give a limiting instruction in the absence of a
request by Defendant, Defendant has failed to prove that any error, let
alone fundamental error, occurred in his case. See also Taylor, 127 Ariz. at
530, (without the request of counsel, this court will not find that trial court’s
failure to give limiting instruction deprived defendant of right essential to
defense or of a fair trial).




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                            Decision of the Court



¶24             Defendant’s reliance on State v. Canedo, 125 Ariz. 197 (1980) in
support of his argument is misplaced. Unlike in the present case, in Canedo
the defendant specifically requested a limiting instruction. Id. at 200.
Canedo therefore is not dispositive in this case. See also Taylor, 127 Ariz. at
530. The trial court took no action that deprived Defendant of any essential
right or of a fair trial. Had Defendant desired to lessen any potential danger
of misuse of his parole status, he could have requested a limiting or
cautionary instruction as the trial court invited him to do.

                               CONCLUSION

¶25          For the foregoing reasons, we affirm Defendant’s convictions
and sentences.




                                    :ama




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