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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                GREGORY HARRY WOODY, JR., Appellant.

                             No. 1 CA-CR 14-0851
                              FILED 11-17-2015


           Appeal from the Superior Court in Coconino County
                        No. S0300CR201300673
                  The Honorable Dan R. Slayton, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

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



                      MEMORANDUM DECISION

Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Patricia K. Norris joined.


G O U L D, Judge:

¶1            Gregory Harry Woody, Jr., appeals from his convictions and
sentences on two counts of kidnapping, class two felonies; five counts of
sexual assault, class two felonies; one count of sexual abuse, a class five
felony; and three counts of aggravated assault, class six felonies. Woody
argues the trial court erred by: 1) admitting other act evidence; 2) denying
a motion for mistrial; 3) refusing to hold a Dessureault hearing; 4) admitting
improper expert testimony; 5) admitting inadmissible hearsay; and 6)
giving an incorrect limiting instruction. For reasons that follow, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             Woody’s convictions stem from assaults committed on three
separate occasions against three different victims. In addition to being
choked and beaten, two of the three victims were sexually assaulted. The
third victim was also beaten and had her clothing torn off; however, the
assailant fled before actually sexually assaulting her. The police connected
Woody to all three assaults based on his DNA profile matching DNA
recovered from each of the victims.

¶3             Woody was charged with multiple counts of kidnapping,
sexual assault, and aggravated assault, and one count each of sexual abuse
and attempted sexual assault in regards to the assaults committed against
the three victims. Upon trial to a jury, Woody was acquitted of kidnapping
and attempting to sexually assault the one victim where he fled prior to
committing any sexual assault, but found guilty of the remaining eleven
counts as charged. The trial court sentenced Woody to consecutive and
concurrent aggravated prison terms totaling 113.6 years. Woody timely
appealed.




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                             STATE v. WOODY
                            Decision of the Court

                               DISCUSSION

   A.   Admission of Other-Act Evidence

¶4            Woody contends the trial court erred in admitting other act
evidence in violation of Arizona Rule of Evidence 404(b). Specifically, he
argues the trial court should not have admitted evidence of his encounter
with an undercover female police officer several weeks after the last of the
three assaults, which led to the police obtaining a buccal swab from him for
DNA analysis. We review the admission of other act evidence under Rule
404(b) for abuse of discretion. State v. Gulbrandson, 184 Ariz. 46, 60 (1995).

¶5             Rule 404(b) provides that “evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to show
action in conformity therewith.” Such other-act evidence “may, however,
be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Ariz. R. Evid. 404(b). When other act evidence “is offered for a
non-propensity purpose, it may be admissible under Rule 404(b), subject to
Rule 402’s general relevance test, Rule 403’s balancing test, and Rule 105’s
requirement for limiting instructions in appropriate circumstances.” State
v. Ferrero, 229 Ariz. 239, 242, ¶ 12 (2012). In addition, the State must prove
by clear and convincing evidence the other act occurred and the defendant
committed the act. State v. Terrazas, 189 Ariz. 580, 584 (1997).

¶6             The challenged other act evidence consisted of testimony by
the undercover officer. As part of a multi-agency effort to apprehend the
serial rapist, the officer posed as an intoxicated female in the downtown
area near a bar where the three victims came in contact with their assailant.
The officer first observed Woody standing outside the bar, peering in the
window. After speaking to Woody and telling him she was trying to get to
her stepbrother’s house, Woody asked if he could give her a ride. When the
officer declined, Woody accompanied her as she acted like she was walking
to her fictional stepbrother’s house. As they walked, Woody made several
additional offers of a ride and attempted to hold her hand, pull her next to
him, kiss her, and put his hand under her clothes. At one point, Woody
picked the officer up and threw her over his shoulder, telling her that he
was not going to let her walk. The officer testified that as she attempted to
free herself, Woody put her back down because there were people around
and it appeared he did not want to make a scene. When Woody was
unsuccessful in getting the officer to ride with him, he drove off in his truck.
Before he left, however, the officer obtained the license number and used it
to get his Woody’s name and address. With this information, a detective


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                             STATE v. WOODY
                            Decision of the Court

contacted Woody at his home several days later and was able to get a buccal
swab from him for DNA analysis.

¶7            There was no abuse of discretion by the trial court in allowing
admission of the other act evidence. First, there was clear and convincing
evidence of the other-act in that the officer testified about her contact with
Woody. See State v. Vega, 228 Ariz. 24, 29, ¶ 19 n.4 (App. 2011) (noting
uncorroborated testimony by victim is sufficient to establish proof beyond
a reasonable doubt that an incident occurred). Second, the trial court could
reasonably conclude the other-act evidence was relevant under Rule 402 for
the non-character purpose of proving defendant’s identity as the assailant
by connecting him to both the area and time of day where the victims first
encountered their assailant, use of similar methods to lure the victims to
isolated areas, escalated use of force, and a vehicle consistent with one
involved in two of the three assaults. See Ariz. R. Evid. 401 (defining
“relevant evidence”); State v. Oliver, 158 Ariz. 22, 28 (1988) (observing
“standard of relevance is not very high”).

¶8              Third, the trial court found that the evidence was not subject
to preclusion as unfairly prejudicial under Rule 403. “Because the trial court
is in the best position to balance the probative value of challenged evidence
against its potential for unfair prejudice, the trial court has broad discretion
in this decision.” State v. Connor, 215 Ariz. 553, 564, ¶ 39 (App. 2007)
(citation and internal quotation marks omitted). “Evidence is unfairly
prejudicial only if it has an undue tendency to suggest a decision on an
improper basis, such as emotion, sympathy, or horror.” Gulbrandson, 184
Ariz. at 61. The trial court acted well within its discretion in this decision
given that the other act evidence did not involve felonious acts, and
therefore “did not pose a substantial danger of unfair prejudice or
confusion of the issues.” Vega, 228 Ariz. at 30, ¶ 22-24.

¶9           Finally, the trial court gave a limiting instruction pursuant to
Rule 105 on proper use of the other-act evidence by the jury. Because the
other-act evidence satisfied all the requirements for admission as non-
propensity evidence under Rule 404(b), there was no error in its admission.

   B.   Denial of Motion for Mistrial

¶10             In describing her encounter with Woody, the undercover
officer testified that at one point Woody picked her up and put her over his
shoulder. She testified that she moved and wiggled to get away, and that
Woody eventually put her down because “he didn’t want to make a scene”
in front of some other people that were walking nearby.



                                        4
                             STATE v. WOODY
                            Decision of the Court

¶11            In ruling that the State could introduce evidence of Woody’s
interaction with the undercover officer, the trial court ordered that there
was to be no opinion testimony or conclusions from the officer about what
Woody’s conduct meant. No objection was raised to the officer’s testimony
while she was testifying, but during a subsequent recess Woody moved for
a mistrial, arguing that the officer’s comment “he didn’t want to make a
scene” violated the trial court’s order. The trial court denied the motion,
stating the officer’s testimony could be considered a violation, but found it
was not intentional and that there was no prejudice to Woody.

¶12           A declaration of mistrial is “the most dramatic remedy for
trial error and should be granted only when it appears that justice will be
thwarted unless the jury is discharged and a new trial granted.” State v.
Dann, 205 Ariz. 557, 570, ¶ 43 (2003) (citation omitted). We review a trial
court’s denial of a motion for mistrial for abuse of discretion and reverse
only where there is a “‘reasonable probability’ that the verdict would have
been different had the [improper] evidence not been admitted.” State v.
Hoskins, 199 Ariz. 127, 142–43, ¶ 57 (2000) (citation omitted).

¶13             A mistrial is not required every time a witness unexpectedly
volunteers an inadmissible statement. State v. Adamson, 136 Ariz. 250, 262
(1983). Instead, the remedy rests within the sound discretion of the trial
court, which must evaluate the situation and decide an appropriate course
of action in light of the specific facts and circumstances presented. Id. We
give deference to the trial court’s ruling because it is in the best position to
evaluate “the atmosphere of the trial, the manner in which the objectionable
statements were made, and the possible effect it had on the jury and the
trial.” State v. Bible, 175 Ariz. 549, 598 (1993) (citation omitted).

¶14            Here, the officer’s remark that Woody put her down because
he did not want to make a scene was brief and not the sort of comment that
would cause the jury to react negatively to Woody. Nor is there anything
indicating that the prosecutor intentionally elicited the remark or that the
jury was influenced by it. Under these circumstances, the trial court did not
abuse its discretion in denying the motion for mistrial. State v. Miller, 234
Ariz. 31, 40, ¶ 25 (2013).

   C.   Refusal to Hold Dessureault Hearing

¶15           Woody argues that the trial court erred by refusing to hold a
hearing pursuant to State v. Dessureault, 104 Ariz. 380 (1969), in regards to
in-court identifications by two of the victims. We review this issue for
abuse of discretion. State v. Prion, 203 Ariz. 157, 160, ¶ 14 (2002).



                                       5
                            STATE v. WOODY
                           Decision of the Court

¶16            The purpose of a Dessureault hearing is to determine whether
a pre-trial identification procedure was unduly suggestive. 104 Ariz. at 384.
At such a hearing, it is the State’s burden to prove by clear and convincing
evidence that the pretrial procedure employed by the police was not unduly
suggestive and would not taint the in-court identification. Id. “Pretrial
identifications which are fundamentally unfair implicate the due process
clause of the Fourteenth Amendment.” Prion, 203 Ariz. at 160, ¶ 14. To
establish a due process violation, a defendant must show “the
circumstances surrounding the pretrial identification created a substantial
likelihood of irreparable misidentification and that the [S]tate was
responsible for the suggestive pretrial identification.” Id.

¶17            There was no abuse of discretion by the trial court in denying
the request for a Dessureault hearing. There is no State involvement in any
pretrial identification of Woody by the victims. Neither of the two victims
made a pretrial identification of Woody to the police, nor were they even
shown a lineup that included Woody. Thus, there was no need to conduct
a hearing on the suggestibility of non-existent police procedures involving
Woody. See State v. Cartwright, 155 Ariz. 308, 311 (1987) (“[T]here was no
need to hold a Dessureault hearing because the witness had not participated
in any pretrial identification procedures.”).

¶18           During cross-examination, the two victims testified that they
recognized Woody as their assailant after independently viewing pictures
of him published in the Arizona Daily Sun following his arrest. Woody
concedes that our supreme court held in Prion that a defendant’s picture
published in a newspaper does not constitute “[S]tate action,” but urges
that this holding be changed, arguing that the booking photo published in
the newspaper must have been obtained from the State and therefore
should be considered “[S]tate action.” See Prion, 203 Ariz. at 160, ¶ 15. As
an intermediate appellate court, we are bound by our supreme court’s
decisions and cannot modify, disregard, or overrule them. State v. Smyers,
207 Ariz. 314, 318, ¶ 15 n.4 (2004).

¶19           Additionally, we do not agree with defendant’s contention
that the police, by providing the booking photo published in the
newspaper, engaged in state action requiring a Dessureault hearing. The
newspaper was responsible for publishing the photograph, not the police,
and there is no evidence that the police arranged for or encouraged the
victims’ surreptitious viewing of the photograph. See State v. Nordstrom,
200 Ariz. 229, 241, ¶¶ 23-24 (2001) (holding there was no state action
potentially tainting a pretrial identification where a witness identified the



                                     6
                             STATE v. WOODY
                            Decision of the Court

defendant based on a news broadcast of his arraignment). Accordingly, we
find no error.

   D. Admission of Expert Testimony

¶20           Over objection, the forensic sexual assault nurse examiner
who examined the victims following the assaults was permitted to testify
that strangulation interferes with a person’s ability to remember certain
things that occur during traumatic situations, but that memory may return
over time. Woody argues the trial court erred in allowing this testimony.

¶21             The sole objection raised by Woody during the nurse’s
testimony was lack of foundation. However, during a recess after the nurse
had completed her testimony, Woody moved to strike the testimony on the
effects of strangulation, re-urging his foundation objection and additionally
arguing that the testimony did not otherwise meet the standards for
admissibility under Rule of Evidence 702. The trial court denied the motion
to strike, ruling that the proper foundation had been laid for the testimony.
We review a trial court's rulings on the admissibility of expert testimony for
abuse of discretion. State v. Boyston, 231 Ariz. 539, 544, ¶ 14 (2013).

¶22           Rule 702 provides:

       A witness who is qualified as an expert by knowledge, skill,
       experience, training, or education may testify in the form of
       an opinion or otherwise if:

       (a) the expert’s scientific, technical, or other specialized
       knowledge will help the trier of fact to understand the
       evidence or to determine a fact in issue;

       (b) the testimony is based on sufficient facts or data;

       (c) the testimony is the product of reliable principles and
       methods; and

       (d) the expert has reliably applied the principles and methods
       to the facts of the case.

¶23           “Whether a witness is qualified as an expert is to be
construed liberally.” State v. Delgado, 232 Ariz. 182, 186, ¶ 12 (App. 2013).
“If an expert meets the ‘liberal minimum qualifications,’ her level of
expertise goes to credibility and weight, not admissibility.” Id.; see also State




                                       7
                            STATE v. WOODY
                           Decision of the Court

v. Davolt, 207 Ariz. 191, 210, ¶ 70 (2004) (“The degree of qualification goes
to the weight given the testimony, not its admissibility.”).

¶24            Here, the witness was a licensed registered nurse with nearly
forty years of experience, including extensive experience with sexual
assault victims. In addition, the witness testified that she had received
training through the International Association of Forensic Services on the
topics of effects of strangulation, memory loss, and the brain. Given this
witness’s training and experience, the trial court did not err in concluding
that the witness had sufficient specialized knowledge to testify as an expert
on the effects of strangulation.

¶25           On appeal, Woody argues that the nurse’s expert testimony
regarding strangulation and memory should not have been admitted
because the testimony did not satisfy the four subsections to Rule 702.

¶26           Rule 702 was amended in 2012 to include the subsections to
conform to “the reliability-assessment framework” announced in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). State v. Salazar-
Mercado, 234 Ariz. 590, 593, ¶ 9 (2014). “The amended rule imposes a
‘gatekeeper’ obligation on trial judges to admit only relevant and reliable
expert testimony.” Id. However, the comment to Rule 702 explains that the
2012 amendment was not intended to preclude expert testimony based on
experience. See Ariz. R. Evid. 702, Comment to 2012 Amendment (“The
amendment is not intended to supplant traditional jury determinations of
credibility and the weight to be afforded otherwise admissible testimony,
nor is the amendment intended to permit a challenge to the testimony of
every expert, preclude the testimony of experience-based experts, or
prohibit testimony based on competing methodologies within a field of
expertise.”).

¶27            Woody did not request a Daubert hearing or make an offer of
proof to challenge the general admissibility of the expert testimony, and
there is nothing in the record indicating that the testimony by the sexual
assault nurse examiner on the effect of strangulation on memory loss and
retrieval is not the type of expert testimony properly admissible under Rule
702. See Delgado, 232 Ariz. at 187, ¶ 17 (upholding testimony under Rule
702 by physician as “strangulation expert” based on medical training and
experience). Accordingly, on this record, we are unable to conclude the trial
court erred in admitting the nurse’s expert testimony.




                                     8
                              STATE v. WOODY
                             Decision of the Court

   E.   Admission of Hearsay Evidence

¶28            Woody argues that the trial court erred by admitting hearsay
evidence during the prosecutor’s cross-examination of him. At issue are
statements made by Woody during a police interview that his mother-in-
law told him about a flashlight missing from their vehicle. We review a
trial court’s ruling on the admissibility of evidence under the hearsay rule
for abuse of discretion. State v. Tucker, 205 Ariz. 157, ¶ 41 (2003).

¶29           A flashlight was recovered at the scene of the first assault.
During cross-examination at trial, Woody agreed that when a detective first
asked him about a flashlight in his vehicle when interviewed following his
arrest, he denied having any knowledge of it. Upon further questioning by
the prosecutor, Woody acknowledged that his initial answer to the
detective’s question was false. When the prosecutor began questioning
Woody about his subsequent statements to the detective indicating he had
knowledge of a flashlight in the vehicle, defense counsel objected on
hearsay grounds to the prosecutor confronting Woody with the statements
he made about his mother-in-law telling him about the flashlight missing
from the vehicle. The trial court overruled the objection and permitted the
prosecutor to question Woody about his statements to the detective.

¶30            Hearsay is an out-of-court statement offered in evidence to
prove the truth of the matter asserted and is generally inadmissible. Ariz.
R. Evid. 801(c), 802. However, statements by a party opponent, regardless
of their nature, are not hearsay. See Ariz. R. Evid. 801(d)(2)(A) (providing
that statements by an opposing party are not hearsay); State v. Cruz, 218
Ariz. 149, 161, ¶ 51 (2008) (holding defendant’s out-of-court, inculpating
statement to police officer is party admission under Rule 801(d)(2)). It is
not essential for admission that the party have firsthand knowledge of the
matter asserted in his statement. Joseph M. Livermore, et al., Arizona Law
of Evidence § 801:6, at 480 (Rev. 4th ed. 2008). “The only limitation . . . to the
use of an opposing party’s words is the rule of relevance.” Id. at 482. Here,
no relevance objection was raised to Woody’s statements and there is no
question that his statements were relevant in light of the flashlight found at
the scene and his initial false denial of knowledge of the flashlight. There
was no error by the trial court in overruling the hearsay objection to
Woody’s statements regarding his knowledge of the flashlight.

   F.   Limiting Instruction for Other-Act Evidence

¶31           The trial court instructed the jury with respect to the other-act
evidence as follows:



                                        9
                              STATE v. WOODY
                             Decision of the Court

       Evidence of other interactions with [an undercover police
       officer] has been presented. You may consider these
       interactions only if you find that the State has proved by clear
       and convincing evidence that the defendant committed these
       acts. You may only consider these acts to establish the
       defendant’s intent, plan, or identity. You must not consider
       these acts to determine the defendant’s character or character
       trait or to determine that the defendant acted in conformity
       with the defendant’s character or character trait and therefore
       committed any of the charged offenses.

¶32            Woody argues that the portion of the instruction informing
jurors that they “may only consider these acts to establish the defendant’s
intent, plan, or identity” is an incorrect statement of the law. According to
Woody, the use of the phase “to establish” tells the jurors “that if they find
[his] acts with [the officer] occurred, that in itself establishes his identity as
the assailant in this case, notwithstanding the relative strength or weakness
of other identification evidence.” We disagree.

¶33           “The purpose of jury instructions is to inform the jury of the
applicable law in understandable terms.” State v. Noriega, 187 Ariz. 282, 284
(App. 1996). We review the instructions as a whole “to determine if they
adequately reflected the law.” State v. Cordova, 198 Ariz. 242, 245, ¶ 11 (App.
1999). “We will reverse only if the instructions, taken together, would have
misled the jurors.” State v. Doerr, 193 Ariz. 56, 65, ¶ 35 (1998).

¶34           The language of the limiting instruction fully and correctly
instructed the jury on the limited use of the other-act evidence. Read in
context, the challenged language merely informed the jury of the limited
purposes for which evidence of Woody’s interaction with the undercover
officer could be considered. There is nothing in the instruction requiring
that the jury find that the other-act evidence proved “defendant’s intent,
plan, or identity,” nor did the instruction direct the jury to ignore any other
evidence they found pertinent to guilt or innocence.

¶35           Additionally, in reading the jury instructions as a whole, it is
clear the subject instruction did not invite the jurors to disregard other
evidence relevant to Woody’s identity. The jurors were instructed to
“consider what testimony to accept and what to reject” in deciding the facts
of this case. Further, the instruction regarding the victim’s in-court
identifications specifically advised the jurors to “consider any other
evidence in establishing the identity of the defendant.” The jurors were also




                                       10
                            STATE v. WOODY
                           Decision of the Court

instructed to “determine the importance to be given to the evidence
regardless of whether it is direct or circumstantial.”

¶36           Accordingly, the trial court did not err in instructing the jury
on other-act evidence.

                              CONCLUSION

¶37           For the foregoing reasons, we affirm Woody’s convictions
and resulting sentences.




                                  :ama




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