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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                             No. 1 CA-CR 17-0037
                               FILED 1-11-2018


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201501023
            The Honorable Billy K. Sipe, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Jason Lewis
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant



                       MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.
                             STATE v. SHELLEY
                             Decision of the Court

J O H N S E N, Judge:

¶1            William Shelley appeals his convictions and sentences for
felony endangerment, criminal damage and misdemeanor driving with a
revoked license. For the following reasons, we affirm his convictions and
resulting sentences.

              FACTS AND PROCEDURAL BACKGROUND

¶2             At 80 years old, Shelley normally did not drive his full-size
van because the Motor Vehicle Division ("MVD") had revoked his driver's
license for failing to retake certain driving tests. In addition, Shelley was
unable to walk and, by his own account, his "hearing's been gone since
Korea." On the morning of July 13, 2015, however, some travelling
companions left him and his van in a Kingman drugstore parking lot, and
he decided to drive someplace else.

¶3             Upon leaving the drugstore, Shelley pulled up to an
intersection, stopped at the stop sign, checked both directions and, when he
did not see any traffic coming, entered the intersection to make a left turn.
Immediately after he pulled out, however, a compact sedan travelling at
about 35 miles per hour on the cross street struck Shelley's van, rolling the
van over and heavily damaging the car's front end, causing it to catch fire.
A bystander pulled the sedan's driver out of the car before fire engulfed it;
others pulled Shelley from his van. Within moments, the sedan was
engulfed in flames and was totally consumed before firefighters arrived.

¶4             A grand jury indicted Shelley on single charges of
endangerment, a Class 6 felony; criminal damage, a Class 5 felony; and
driving with a revoked license, a misdemeanor. At trial, the State offered
evidence that five years before the accident, the MVD had directed Shelley
to take a vision test, a written test and a driving test to reinstate his driver's
license, and had revoked his license after he failed to do so. The State
argued Shelley was criminally reckless because he knew he was physically
incapable of safely driving his van, but did so anyway.

¶5            The jury convicted Shelley of the two felonies, and the court
then found him guilty of the misdemeanor and imposed concurrent
sentences, the longest of which was two years. Shelley timely appealed.
We have jurisdiction pursuant to Article 6, Section 9 of the Arizona




                                        2
                           STATE v. SHELLEY
                           Decision of the Court

Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-
120.21(A)(1) (2018), 13-4031 (2018) and -4033(A) (2018).1

                              DISCUSSION

A.     Sufficiency of the Evidence.

¶6             Shelley argues insufficient evidence supports his
endangerment and criminal damage convictions.              We review the
sufficiency of the evidence de novo. State v. Miller, 234 Ariz. 31, 41, ¶ 33
(2013). We will reverse only if no substantial evidence supports the
conviction. State v. Allen, 235 Ariz. 72, 75, ¶ 6 (App. 2014). Substantial
evidence is that which, when "viewed in the light most favorable to
sustaining the verdict, would permit a reasonable person to find a
defendant guilty beyond a reasonable doubt." State v. Martinson, 241 Ariz.
93, 101, ¶ 34 (App. 2016). "Evidence may be direct or circumstantial, but if
reasonable minds can differ on inferences to be drawn therefrom, the case
must be submitted to the jury." State v. Palmer, 229 Ariz. 64, 67, ¶ 11 (App.
2012).2

¶7            "Endangerment" is defined as "recklessly endangering
another person with a substantial risk of imminent death." A.R.S. § 13-
1201(A) (2018). "Criminal damage" is defined as "[r]ecklessly defacing or
damaging property of another person." A.R.S. § 13-1602(A)(1) (2018). Both
crimes require that a defendant act "recklessly," which is defined in A.R.S.
§ 13-105(10)(c) (2018):

       "Recklessly" means, with respect to a result or to a
       circumstance described by a statute defining an offense, that
       a person is aware of and consciously disregards a substantial
       and unjustifiable risk that the result will occur or that the
       circumstance exists. The risk must be of such nature and
       degree that disregard of such risk constitutes a gross
       deviation from the standard of conduct that a reasonable
       person would observe in the situation.

Endangerment therefore requires proof that one knew that his or her
conduct would cause a substantial and unjustifiable risk of imminent death

1      Absent material revision after the date of an alleged offense, we cite
a statute's current version.

2     On appeal, Shelley challenges the two felony convictions but raises
no argument concerning the misdemeanor.


                                      3
                            STATE v. SHELLEY
                            Decision of the Court

to another and then consciously disregarded such risk. Criminal damage
similarly requires proof of conscious disregard of a substantial and
unjustifiable risk that one's conduct will damage the property of another.
The conduct must be a gross deviation from that of a reasonable person in
the situation.

¶8            The record contains evidence from which a reasonable person
could find Shelley guilty of endangerment and criminal damage beyond a
reasonable doubt. Although Shelley argues there was insufficient evidence
to prove that he acted recklessly in driving, the jury heard that he could not
walk without assistance, was hard-of-hearing and had poor vision.
Reasonable jurors could infer that, as a result, Shelley was aware he was
unable to safely drive a van and that his attempt to do so was a gross
deviation from what a reasonable person with his disabilities would do in
that situation.

¶9             Shelley argues it is not reasonable to infer that he could not
safely drive simply from the fact that he had not taken the tests required to
have his driver's license reinstated. He argues the State offered "no
evidence of the degree of vision loss, hearing loss, or driving skills loss."
But Shelley himself admitted he should not have been driving, testifying,
"No, I can't get a driver's license reinstated. I can't see and I can't hear and
I got no business driving," adding a moment later that he "can't read or
write."

¶10           Further, as to the risk Shelley created, the State presented
evidence that the other driver needed a bystander's help to make it out of
the sedan only moments before it became engulfed in flames; it was
therefore reasonable for the jury to find that Shelley created a substantial
risk of imminent death to the victim.

B.     Admissibility of MVD Notices.

¶11            Shelley next argues the superior court erred in admitting a
2010 letter from the MVD advising him that he needed to resubmit to vision
testing and take written and practical driving tests to have his license
reinstated, and another letter informing him that the MVD had revoked his
driver's license because he had failed to take the tests. Because Shelley's
attorney did not object to the admission of these letters, our review is
limited to fundamental error. See Ariz. R. Evid. 103(a)(1); State v. Butler, 230
Ariz. 465, 471, ¶ 21 (App. 2012). Fundamental error is error that is
fundamental to the case, strips from the defendant a right essential to the
defense, and is of such magnitude that the defendant could not have



                                       4
                            STATE v. SHELLEY
                            Decision of the Court

possibly received a fair trial. Id. at ¶ 22. The defendant has the burden to
establish "that (1) error exists, (2) the error is fundamental, and (3) the error
caused him prejudice." Id. at 472, ¶ 22 (quoting State v. Smith, 219 Ariz. 132,
136, ¶ 21 (2008)).

¶12           Shelley was not prejudiced by the admission of the letters
because he testified to the supposedly impermissible inferences he argues
the jury might have drawn from the letters. On cross-examination, Shelley
admitted he knew the MVD had revoked his driver's license because he had
failed to take the vision and driving tests. Although he argues on appeal
that he was prejudiced because the jury could infer that he did not take the
tests because he could not pass them, on cross-examination he did not
dispute that his physical limitations prevented him from driving safely.
Indeed, as recounted above, he testified he had "no business driving." Even
if Shelley had objected to the introduction of the MVD notices when the
State offered them, his later admissions on cross-examination would have
constituted a waiver of that objection. See Miller v. Schafer, 102 Ariz. 457,
461 (1967) ("The admission of improper evidence is not reversible error if
later waived by the objecting party.").

¶13            The superior court also addressed Shelley's related concerns
about relevance and unfair prejudice when it denied Shelley's motion for a
directed verdict under Arizona Rule of Criminal Procedure 20. The court
found the MVD documents showed Shelley "was aware of a substantial risk
and consciously disregarded that risk because he continued to drive,
despite the corrective action notice that was sent to him from the motor
vehicle division." Relevant evidence is admissible unless, inter alia, it is
unfairly prejudicial. Ariz. R. Evid. 402, 403. Evidence is relevant if it alters
the probability of a consequential fact. Ariz. R. Evid. 401; Yauch v. Southern
Pacific Transp. Co., 198 Ariz. 394, 401-02, ¶ 19 (App. 2000). Whether Shelley
knew he should not have been driving was a fact bearing on recklessness,
and the MVD letters make it more probable that Shelley knew he should
not have been driving.

¶14           Relevant evidence may be excluded if its probative value is
substantially outweighed by unfair prejudice, which is the "undue
tendency to suggest decision on an improper basis, such as emotion,
sympathy or horror." State v. Escalante-Orozco, 241 Ariz. 254, 274, ¶ 48 (2017)
(quoting State v. Mott, 187 Ariz. 536, 545 (1997)). Here we cannot say that
the MVD letters unfairly prejudiced Shelley. In short, the superior court
did not err when it admitted the MVD letters, much less fundamentally so.




                                       5
                            STATE v. SHELLEY
                            Decision of the Court

C.     Jury Instructions.

¶15           Shelley finally argues the superior court erred when it failed
to instruct the jury on the culpable mental state of criminal negligence.
Shelley did not object to the jury instructions at trial and thus "has forfeited
the right to seek relief for all but fundamental, prejudicial error, and we
limit our review accordingly." State v. Juarez-Orci, 236 Ariz. 520, ___, ¶ 11
(App. 2015). We review jury instructions de novo to ensure that they
comport with applicable law and are "substantially free from error" when
viewed as a whole. Id. at ___, ¶ 12.

¶16           Shelley argues criminal negligence is a lesser-included
culpable mental state of recklessness and thus the superior court erred
when it failed to give the jury a criminal negligence instruction. Shelley
contends that if the jury had been so instructed it could have found that he
was not reckless. He also admits, however, that Arizona has criminalized
neither negligent endangerment nor negligent damage to property.

¶17           Shelley is correct that criminal negligence is a lesser-included
culpable mental state to recklessness, but he offers no authority for the
proposition that the court should instruct a jury on negligence when a
defendant is charged with endangerment or criminal damage, much less
that it should do so sua sponte. The court did not err in failing to give such
an instruction here. See State v. James, 231 Ariz. 490, 492-93, ¶ 8-9 (App.
2013) (reversing conviction for "reasonable apprehension" aggravated
assault, a crime requiring proof of intentional conduct, because court
instructed jury on knowing and reckless culpable mental states). The
instructions the court gave here accurately comported with applicable law.

                                CONCLUSION

¶18           For the foregoing reasons, we affirm Shelley's convictions and
resulting sentences.




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




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