                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 ex rel. WILLIAM G. MONTGOMERY, Maricopa
                 County Attorney, Petitioner,

                                        v.

THE HONORABLE JOSE PADILLA, Judge of the SUPERIOR COURT OF
  THE STATE OF ARIZONA, in and for the County of MARICOPA,
                     Respondent Judge,


                MATTHEW COLVIN, Real Party in Interest.

                             No. 1 CA-SA 16-0148
                              FILED 8-9-2016


 Petition for Special Action from the Superior Court in Maricopa County
                        No. CR2015-153609-001 DT
                   The Honorable Jose S. Padilla, Judge

           JURISDICTION ACCEPTED; RELIEF GRANTED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Adena J. Astrowsky
Counsel for Petitioner

Law Office of Carrie M. Spiller, PLLC, Phoenix
By Carrie M. Spiller
Counsel for Real Party in Interest
                    STATE v. HON. PADILLA/COLVIN
                          Decision of the Court



                        MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Samuel A. Thumma
joined.


J O N E S, Judge:

¶1            The State petitions for special action review of the trial court’s
order determining audio recordings of a victim’s 9-1-1 telephone calls were
cumulative and, therefore, inadmissible. For the following reasons, we
accept jurisdiction and grant relief by vacating the court’s order.

                  FACTS AND PROCEDURAL HISTORY

¶2             In the course of its prosecution of Matthew Colvin for the
alleged unlawful imprisonment and assault of Lisa F., the State disclosed
audio recordings of two 9-1-1 telephone calls made by Lisa and a return call
initiated by the dispatcher after Lisa disconnected the second call. The calls
were all made during the course of events that gave rise to the charges
against Colvin. At a bench conference held during voir dire, the trial court
entered an order precluding the audio recordings of the 9-1-1 telephone
calls on the basis that they would be cumulative to Lisa’s anticipated trial
testimony.1 The court did so on its own motion, without listening to the
recordings, holding a hearing, or permitting the parties to provide
additional briefing or argument on their admissibility.

¶3             The State made an unsuccessful motion for reconsideration,
and this petition followed. In the exercise of our discretion, we accept
jurisdiction, recognizing the State has no adequate remedy by appeal. See
Ariz. R.P. Spec. Act. 1(a); State ex rel. Romley v. Fields, 201 Ariz. 321, 323, ¶ 4
(App. 2001); see also Ariz. Rev. Stat. § 13-4032 (2016); Rolph v. Mesa City


1      Colvin argues the trial court never ruled on the admissibility of the
9-1-1 recordings, instead offering only its “leanings toward the[ir]
admissibility.” However, the State clearly evidenced its understanding that
a ruling had been made when it filed a “Motion to Reconsider Court’s Order
Precluding 911 Evidence as Cumulative.” And, in summarily denying the
motion to reconsider, the court offered no explanation to suggest it
considered the issue unresolved or the motion premature.


                                        2
                    STATE v. HON. PADILLA/COLVIN
                          Decision of the Court

Court, 127 Ariz. 155, 158 (1980) (“The state is not authorized to appeal from
a judgment of acquittal . . . even though ‘the acquittal was based upon an
egregiously erroneous foundation.’”) (quoting Arizona v. Washington, 434
U.S. 497, 503 (1978)).

                                DISCUSSION

¶4             The State argues the trial court’s order precluding the 9-1-1
calls was error. We review evidentiary rulings for an abuse of discretion.
State ex rel. Montgomery v. Padilla, 238 Ariz. 560, 564, ¶ 12 (App. 2015) (citing
State v. Bernstein, 237 Ariz. 226, 228, ¶ 9 (2015)). A trial court abuses its
discretion when a “discretionary conclusion was reached without
consideration of the evidence.” Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434,
455-56 (1982) (supplemental op.) (citing Knollmiller v. Welch, 128 Ariz. 34,
36-37 (App. 1980)).

¶5              There is no apparent dispute regarding the relevancy of the 9-
1-1 calls; therefore, they are admissible unless there is some basis to exclude
them. See Ariz. R. Evid. 402. Relevant evidence may be excluded “if its
probative value is substantially outweighed by a danger of . . . needlessly
presenting cumulative evidence.” Ariz. R. Evid. 403. The balancing test
contemplated by Rule 403 is a fact- and context-intensive inquiry, requiring
examination of various factors, including the specific relevant evidence at
issue, the other evidence received at trial, and the nature of the charges. See
Hudgins v. Sw. Airlines, Co., 221 Ariz. 472, 481, ¶ 13 (App. 2009) (noting
“‘probative value’ and ‘the danger of unfair prejudice’ are not easily
quantifiable factors”) (citing State v. Gibson, 202 Ariz. 321, 324, ¶ 17 (2002)).
Generally, the trial court is in the best position to perform this balancing
test. State v. Spencer, 176 Ariz. 36, 41 (1993) (“Rule 403 weighing is best left
to the trial court.”) (citing State v. Robles, 135 Ariz. 92, 95 (1983)).

¶6            The trial court here precluded the 9-1-1 calls without knowing
either the substance of Lisa’s trial testimony or the contents of the
recordings. The court did not make and, without having reviewed this
information, could not have made, any findings regarding the probative
value of the calls or the extent to which their content would overlap with,
rather than corroborate, Lisa’s proposed testimony. This record does not
reflect a proper balancing in finding the calls inadmissible under Rule 403.
Nor could the court properly evaluate whether Lisa’s statements within the
9-1-1 calls were separately admissible as a present sense impression or an
excited utterance pursuant to Arizona Rule of Evidence 803(1) and (2)
without having heard them. For these reasons, the court had no basis upon
which to make an admissibility determination and thereby erred.


                                       3
                  STATE v. HON. PADILLA/COLVIN
                        Decision of the Court

                             CONCLUSION

¶7             We accept jurisdiction and grant relief by vacating the trial
court’s order.




                                   :AA




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