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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                             No. 1 CA-CR 17-0210
                               FILED 2-27-2018


           Appeal from the Superior Court in Coconino County
                         No. S0300CR201600750
                             S0300CR201601045
                  The Honorable Dan R. Slayton, Judge

                                  AFFIRMED


                                   COUNSEL

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

Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant
                            STATE v. MEYERS
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.


W I N T H R O P, Presiding Judge:

¶1     John Leo Meyers (“Meyers”) appeals his conviction and sentence for
attempted second degree murder and aggravated assault. For the
following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2              This appeal arises from an incident that occurred in 2014
between Meyers and his roommate, Earl. On June 20, 2014, Earl went for a
run. When he returned from his run, and began to change his clothes, he
felt a stab to his back. Earl turned, saw Meyers holding a knife, and yelled
at him, but Meyers did not respond.

¶3            Earl attempted to leave the house, but Meyers blocked the
exit. Earl then drew his pocket knife and the two began to fight. At one
point, Earl disarmed Meyers, however, Earl tripped as he tried to exit the
house. In the meantime, Meyers recovered his knife and stabbed Earl in the
head and back. Eventually, Earl exited the house and ran to his neighbor
for help. The neighbor called 911 and waited with Earl for the ambulance
to arrive.1

¶4           In his defense, Meyers testified that on the day of the stabbing,
Earl accused him of stealing his money and marijuana. Then, when Earl
came back from his run, he hit Meyers, and Meyers drew his knife in self-
defense. The two began to fight, each with his own knife, and eventually
Meyers told Earl to leave. After Earl left, Meyers became scared because of
what had happened and left. Meyers immediately went to his employer’s
house, and his boss told him to contact the police. Meyers instead fled to
California.


1      Earl was treated for six stab wounds: three stab wounds to his head,
one stab wound near his kidney, one stab wound to his chest, and one stab
wound to his shoulder.



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                            STATE v. MEYERS
                           Decision of the Court

¶5            In 2016, approximately two years after the stabbing, Meyers
turned himself in to the police. Meyers was arrested and subsequently
interviewed by a detective. During the interview Meyers stated that he fled
the state because he was afraid Earl “could be involved with Drug Dealers.”
On November 23, 2016, Meyers was indicted on one count of attempted
second degree murder and two counts of aggravated assault.

¶6            Before trial, the State moved to preclude Meyers’ statement to
the detective that Meyers fled to California because he was afraid of Earl’s
possible drug connections, and to preclude Meyers from speculating “on
the victim’s associations or supposed drug dealing.”

¶7           In response, Meyers argued that his statement to the detective
should be admitted to explain why he fled to California. The court granted
the State’s motion “to preclude that [specific] statement.” After the court
granted the motion, however, the parties continued to debate exactly what
the court had precluded:

      [The State]: And Your Honor, I don’t know if the court wants
      to address this now. But given the context of the statements
      that were made in the defense interview, in the interview of
      the defendant by Detective [ ], I do have some concerns about
      I just want to make sure the defendant is clear, Mr. Meyers is
      clear about what he is not allowed to be saying about the
      victim if he chooses to testify, particularly improper character
      evidence.

      The Court: The only thing I’ve heard preclusion on is that
      [Earl], he [Meyers] believed him to be involved with or he
      could be a drug dealer.

                                    …

      [The State]: And there were some comments within our
      agreements, defendant made some comments in the
      interview about his feeling on the victim’s character. And we
      have agreed that it shouldn’t come in. And I just want the
      make sure that Mr. Meyers knows when he takes the stand,
      he shouldn’t be saying comments about what he thinks of the
      victim.

      [Meyers’ counsel]: I’m not really sure that—I think that we
      made stipulations about his statement of the victim to [the
      detective]. I don’t think there is any anything that would


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                            STATE v. MEYERS
                           Decision of the Court

       prevent him on the stand from talking about his, the
       knowledge he had at the time of [Earl’s] behavior and so on
       and so forth.

       [The State]: Well, I’m glad we’re bringing this up, then. . . .
       And I would just want Mr. Meyers admonished that he
       should not be making comments relating to that or related to
       prior violent behavior, assaultive behavior or . . . drug dealer
       associations or that type of statement.

       The Court: Okay. All right. I understand your point. I
       understand Mr. [Meyers] modified it in that there has to be
       some room for I think the defendant to offer a characterization
       when they are offering or they are presenting a self-defense,
       if you will.

                                     …

       The Court: And so here’s what I would propose. Mr. Meyers,
       there are certain statements that you made that are not going
       to be allowed. I’ve already ruled on those. I never know what
       the testimony is going to be and how it’s going to be
       presented. I rely on the attorneys to craft their questions in
       such a way that they are designed not to elicit improper
       testimony that may result in a mistrial.

¶8             The trial court then confirmed its ruling on the State’s motion
in its minute entry, which granted “the Motion to Preclude the Defendant’s
statement regarding drug dealers.”

¶9            At trial, the State argued that Meyers’ flight was evidence of
his guilt. Specifically, in its closing argument, the State argued that:

       [Meyers] was well aware of what he did that night and well
       aware that it wasn’t justified. It wasn’t self-defense. He knew
       immediately that he was in big trouble. And that’s why he
       ran. He didn’t run because he was scared. . . . He was running
       to avoid the police, to avoid being caught because he knew he
       was in trouble. He knew he did something really stupid.

¶10           In his defense, Meyers testified that he fled and never called
the police because Earl had previously threatened and assaulted him and
he did not think the police would listen to him because Meyers had a
previous assault charge. At the close of trial, the court instructed the jury


                                      4
                            STATE v. MEYERS
                           Decision of the Court

that it could consider evidence of Meyers’ running, but also that the jury
could consider his reasons for running, and that running, by itself, did not
prove that Meyers was guilty of the alleged crime.

¶11            The State also requested that the trial court instruct the jury
on voluntary intoxication, to which Meyers objected, arguing the
instruction would confuse the jury. The court granted the State’s request
after considering the evidence, which included a picture of Meyers’ trash
filled with eleven beer cans; testimony that Meyers bought a thirty pack of
beer on the day of the stabbing; and Earl’s testimony that Meyers had been
drinking that day. The State additionally referenced Meyers’ potential
intoxication in its opening and closing arguments, arguing Meyers attacked
Earl in a “drunken rage.” After granting the State’s request for a voluntary
intoxication jury instruction, the court allowed Meyers to modify the
proposed instruction and adopted Meyers’ modified version for the final
instruction.2

¶12          After deliberation, the jury found Meyers guilty on all counts.
The court then sentenced Meyers to concurrent sentences of twelve years’
imprisonment for count one, attempted second degree murder; seven years’
imprisonment for count two, aggravated assault; and ten years’
imprisonment for count three, aggravated assault.3

¶13           Meyers filed a timely notice of appeal. We have appellate
jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and



2     The final voluntary intoxication instruction read: “[i]t is not a
defense to any charged offense if the offense was committed due to
temporary intoxication resulting from the voluntary consumption of
alcohol.”

3       At the sentencing hearing the trial court granted Meyers 185 days
pre-incarceration credit, however, in its sentencing minute entry it granted
Meyers 217 days pre-incarceration credit. Neither party has raised this
issue on appeal. Generally, a court’s oral statements at a hearing control
over its written minute entry. State v. James, 239 Ariz. 367, 368, ¶ 7 (App.
2016). In this case, however, it is unclear whether either of the court’s pre-
incarceration credit calculations are correct. Without any cross-appeal from
the State, we affirm the grant of 217 days of pre-incarceration credit. See
State v. Dawson, 164 Ariz. 278, 282-83 (1990).




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                             STATE v. MEYERS
                            Decision of the Court

Arizona Revised Statutes sections 12-120.21(A)(1) (2016), 13-4031 (2010),
and 13-4033(A) (2010).

                                  ANALYSIS

¶14           On appeal, Meyers argues the trial court erred by precluding
him from fully testifying about why he fled to California. Meyers
additionally argues the court erred by providing a voluntary intoxication
instruction to the jury. We address each issue in turn.

       I.     Preclusion of Evidence

¶15            Meyers argues his potential testimony explaining that he fled
to California because he was afraid of Earl’s possible drug connections was
necessary to support his self-defense claim and to rebut the State’s
argument that he fled because he was guilty. Meyers, however, fails to
distinguish the trial court’s ruling precluding the admission of his prior
statement to the detective from his ability to fully testify at trial about the
reason he fled to California.4 Although Meyers conflates these issues, they
are distinguishable, and the record does not support Meyers’ contention
that the court precluded him from testifying at trial that he fled to California
because he was afraid of Earl’s possible drug connections.

¶16           We review a trial court’s ruling to preclude certain evidence
for an abuse of discretion. State v. Davis, 205 Ariz. 174, 178, ¶ 23 (App. 2002).
A court abuses its discretion if its ruling is based on insubstantial evidence
or an error of law. State v. Cowles, 207 Ariz. 8, 9, ¶ 3 (App. 2004) (citation
omitted).5 In determining whether the trial court abused its discretion we
acknowledge that the United States Constitution guarantees defendants “a
meaningful opportunity to present a complete defense.” State v. Foshay, 239
Ariz. 271, 279, ¶ 36 (App. 2016) (quoting State v. Machado, 224 Ariz. 343, 351,
¶ 12 (App. 2010), aff’d, 226 Ariz. 281 (2011) (internal quotation omitted)). A
defendant is deprived of the opportunity to present a complete defense if


4     The State also mischaracterizes the trial court’s ruling as broadly
precluding Meyers “from speculating that Earl had drug connections.”

5       Even if a trial court abused its discretion in precluding certain
evidence, its ruling will not be overturned if the error was harmless. State
v. Fish, 222 Ariz. 109, 114, ¶ 8 (App. 2009) (finding an error is harmless if
“the actual verdict rendered ‘was surely unattributable to the error’”
(quoting State v. Anthony, 218 Ariz. 439, 446, ¶ 39 (2008))).



                                       6
                             STATE v. MEYERS
                            Decision of the Court

he is unable to introduce evidence pertinent to an issue in his case. Id.
(quoting State v. Fleming, 117 Ariz. 122, 125 (1977)).6

¶17           The record does not support Meyers’ contention that the trial
court abused its discretion in precluding his prior statement to the detective
that Earl was possibly involved with drug dealers as hearsay. Nor does the
record support Meyers’ argument that preclusion of this statement
prevented him from having a meaningful opportunity to present his
defense to the underlying charges.

¶18             A defendant has a fundamental right to testify in his own
defense. See U.S. v. Pino-Noriega, 189 F.3d 1089, 1094 (9th Cir. 1999). This
right, however, does not trump applicable rules of evidence. Id. Thus, a
court will generally preclude a defendant’s prior exculpatory, self-serving
statement as hearsay unless the statement qualifies under a hearsay
exception. State v. Barger, 167 Ariz. 563, 566-67 (App. 1990). See also State v.
Wooten, 193 Ariz. 357, 366, ¶ 47 (App. 1998) (finding a defendant’s hearsay
statement is admissible if it fits within a recognized exception to the hearsay
rule). Meyers testified at length about his version of the events, and his
belief that, at all times, he was acting in self-defense. Meyers’ statement to
the detective two years’ later that he fled to California because he feared
Earl’s possible drug-dealing connections does not go to the issue of self-
defense, but rather is an exculpatory statement because it attempts to
retroactively justify the reason he left after the stabbing and the inference of
guilt that arises from fleeing. Although Meyers argued the statement
should be admitted to show his state of mind, the trial court ultimately
granted the State’s motion to preclude Meyers’ statement. We find no
abuse of discretion in precluding this self-serving pretrial statement, which
if allowed by the court would have improperly bolstered Meyers’ trial
testimony. After precluding Meyers from testifying that he told the
detective that he fled to California because of Earl’s drug-dealing
connections, the court informed Meyers and his counsel that he had the
right to testify at trial as to why he left the state, to the extent permitted by
the rules of evidence.

¶19          As noted, Meyers exercised his fundamental right to testify in
his defense at trial, and consequently, his testimony was subject to
reasonable limitations—such as the trial court precluding the admission of

6      The State argues Meyers failed to raise this issue before the trial
court, and thus, this issue is subject to fundamental error review. Meyers,
however, objected to the court’s preclusion ruling, which preserved this
issue for a harmless error review on appeal.


                                       7
                            STATE v. MEYERS
                           Decision of the Court

prior out-of-court self-serving statements, which are inadmissible under the
Arizona Rules of Evidence. See Ariz. R. Evid. 801(c), 802. Contrary to
Meyers’ argument on appeal, the court only precluded Meyers from
improperly bolstering his testimony with the admission of his prior
statement to the detective that he fled to California because of Earl’s drug
connections, and did not categorically preclude Meyers from testifying that
he fled to California because he feared Earl’s potential drug connections.
Instead, the court reserved its ruling regarding the admission of Meyers’
testimony on this issue subject to how the information was raised and
presented at trial. Thus, Meyers could have testified that he fled to
California because he feared Earl’s drug connections if this testimony was
otherwise admissible under the Arizona Rules of Evidence.

¶20            We cannot say, on this record, that the trial court abused its
discretion in precluding Meyers’ statement to the detective. Nor can we
say, based on the court’s ruling, that Meyers was prohibited from testifying
that he fled to California because he was afraid of Earl’s drug connections.
Meyers chose to testify instead that he fled because of Earl’s prior threats
and assaultive behavior, and not because of concerns about Earl’s potential
drug connections. This decision was entirely within his control.7

       II.    Voluntary Intoxication Jury Instruction

¶21           On appeal, Meyers argues that the trial court abused its
discretion by issuing a voluntary intoxication jury instruction because the
instruction was confusing and irrelevant to Meyers’ justification of self-
defense.

¶22           We review the trial court’s decision to grant a jury instruction
for an abuse of discretion. State v. Johnson, 205 Ariz. 413, 417, ¶ 10 (App.
2003). A court may provide a jury instruction “on any theory reasonably
supported by the evidence.” Id. (citing State v. Tschilar, 200 Ariz. 427, 436,
¶ 36 (App. 2001)). We look to jury instructions as a whole to determine
whether they have misled the jury, and we will not reverse a case if only an
isolated portion of the jury instructions was misleading. State v. Guerra, 161
Ariz. 289, 294 (1989).

¶23          At trial evidence was admitted that Meyers had bought a
thirty pack of beer and had been drinking on the night of the stabbing.

7     There is no offer of proof in the record to show that Meyers’ potential
testimony as to possible drug connections would have been anything other
than pure speculation.



                                      8
                             STATE v. MEYERS
                            Decision of the Court

Additionally, there was photo evidence showing Meyers’ trash filled with
beer cans. From this, a jury could reasonably conclude that Meyers was
intoxicated on the night of the stabbing. Even if other evidence tended to
prove that Meyers was not intoxicated, there was sufficient evidence on
which the court could give the voluntary intoxication jury instruction.
Moreover, the court allowed Meyers to modify the proposed jury
instruction to reflect his desired language while still accurately stating the
law. Meyers, however, argues that even the modified instruction was
improper because he did not raise an intoxication defense. In response, the
State argues the voluntary intoxication jury instruction was necessary to
help the State carry its burden of proving that Meyers committed a
voluntary act—regardless of whether he was intoxicated—by stabbing Earl.
We agree and find that the court did not abuse its discretion in instructing
the jury on voluntary intoxication because the instruction was relevant to
the State’s theory and consistent with the admitted evidence.

                              CONCLUSION

¶24           Meyers’ conviction and sentence are affirmed.




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




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