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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   PATRICK COREY TRACEY, Appellant.

                             No. 1 CA-CR 18-0225
                              FILED 6-25-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-133540-001
            The Honorable Julie Ann Mata, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Maricopa County Legal Defender’s Office, Phoenix
By Grace M. Guisewite
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee
                             STATE v. TRACEY
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which Acting
Presiding Judge Paul J. McMurdie and Vice Chief Judge Peter B. Swann
joined.


J O N E S, Judge:

¶1            Patrick Tracey appeals his convictions and sentences for
possession of dangerous drugs, possession of drug paraphernalia, and
shoplifting. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            On July 14, 2016, Tracey was captured on Kmart surveillance
video putting on a new pair of boots, placing his old boots in the new-boot
box, and exiting the store without paying for the boots on his feet.1 Tracey
was also filmed on surveillance video blowing his nose into a tissue and
using the tissue to conceal a baggie, later determined to contain 1.27 grams
of methamphetamine, in a store trash can. After a store loss prevention
officer pulled the drugs from the trash can, Tracey admitted throwing them
into the trash before law enforcement arrived. Tracey was charged with
possession of a dangerous drug, possession of drug paraphernalia, and
shoplifting.

¶3             After the State provided notice of its intent to attack Tracey’s
credibility through the introduction of seven prior felony convictions if he
chose to testify at trial, the trial court held a hearing to determine their
admissibility. After considering the parties’ arguments, the court found “in
part the probative value [of the prior convictions] does outweigh the
prejudicial effect,” limited the State to using three prior convictions, and
ordered the nature of the offenses be sanitized.

¶4           At trial, Tracey admitted he left the store without paying for
the new boots and, after finding methamphetamine in his pocket he
believed belonged to his brother, “threw them out . . . [b]ecause [he] didn’t


1      We view the facts “in the light most favorable to sustaining the
verdict[s].” State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013) (citing State v.
Stroud, 209 Ariz. 410, 412, ¶ 6 (2005)).


                                      2
                             STATE v. TRACEY
                            Decision of the Court

want to get anyone else into trouble.” Tracey also admitted to three
unspecified felony convictions, one each in the years 2004, 2005, and 2007.

¶5             The jury found Tracey guilty as charged, and the trial court
sentenced him as a non-dangerous, repetitive offender to concurrent,
presumptive terms of 10 years’ imprisonment for possession of a dangerous
drug, 3.75 years’ imprisonment for possession of drug paraphernalia, and
6 months’ jail time for shoplifting. The court also credited Tracey with forty
days of presentence incarceration. Tracey timely appealed, and we have
jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-
120.21(A)(1),2 13-4031, and -4033(A)(1).

                               DISCUSSION

¶6             Tracey argues the trial court erred in admitting his 2004, 2005,
and 2007 convictions for impeachment purposes. Even assuming error,
however, we will still affirm a decision to allow prior convictions as
impeachment evidence if the error is harmless beyond a reasonable doubt.
State v. Beasley, 205 Ariz. 334, 340, ¶ 27 (App. 2003) (citing State v. Dunlap,
187 Ariz. 441, 456 (App. 1996)). Error is harmless when “the guilty verdict
actually rendered . . . was surely unattributable to the error.” State v. Green,
200 Ariz. 496, 501, ¶ 21 (2001) (quoting State v. Bible, 175 Ariz. 549, 588
(1993)). Such is the case here.

¶7             Tracey relies on State v. Green to argue the error was not
harmless because “his credibility was the crux of his defense.” See id. at
¶ 22. Although the degree a defendant’s credibility impacts his defense is
a consideration in the harmless-error analysis, we do not believe it warrants
reversal in light of the overwhelming evidence against Tracey presented in
this record. See State v. Reese, 26 Ariz. App. 251, 253 (App. 1976) (“In
determining whether the use of a prior invalid conviction for impeachment
purposes is harmless in the circumstances of a given case, the courts have
looked principally to the strength of the evidence against the defendant
independent of the prior conviction.”) (collecting cases). Unlike the
defendant in Green, the State’s case against Tracey was not circumstantial.
See Green, 200 Ariz. at 501, ¶ 22. Rather, the State presented uncontroverted
video evidence such that the jury was able to watch Tracey commit the
offenses. See State v. Ennis, 142 Ariz. 311, 318 (App. 1984) (concluding error
in admitting prior conviction as impeachment evidence was harmless in



2      Absent material changes from the relevant date, we cite the current
version of rules and statutes.


                                       3
                             STATE v. TRACEY
                            Decision of the Court

part because “[t]he state’s case was not circumstantial in nature and there
is substantial evidence in the record to support the verdict”).

¶8             Moreover, unlike the defendant in Green, Tracey did not deny
participating in the events giving rise to the criminal charges. See Green, 200
Ariz. at 501, ¶ 22. To the contrary, Tracey confessed to taking the boots and
disposing of the methamphetamine shortly after he was apprehended.
During his trial testimony, Tracey acknowledged the facts underlying the
offenses, seeking only to negate the element of intent through his testimony
that he only left the store to get money from his girlfriend to pay for the
boots and did not know there was methamphetamine in his pocket until
immediately before attempting to dispose of it. But the objective evidence
— leaving the old boots in the new-boot box and disposing of the drugs
immediately upon apprehension — strongly negate Tracey’s suggestion
that he lacked intent, notwithstanding the impeachment evidence. See State
v. Hatch, 225 Ariz. 409, 413, ¶ 15 (App. 2010) (concluding error in admitting
prior convictions as impeachment evidence was harmless where the
evidence showed the defendant was interrupted in the course of the crime
and later admitted the elements of the crimes of which he was convicted);
State v. Bolton, 182 Ariz. 290, 303 (1995) (concluding error in admitting prior
convictions as impeachment evidence was harmless when the defendant’s
testimony “was wholly independent of his prior convictions and was at
least as damaging to him as evidence of those convictions”)

¶9            Finally, unlike the defendant in Green, the record does not
suggest the jury gave any particular thought to the prior convictions. See
Green, 200 Ariz. at 501, ¶ 22. Jurors here did ask questions suggesting they
were considering Tracey’s version of events. However, the inquiries
focused entirely upon his actions — specifically, what else he did or could
have done to get his girlfriend’s attention and the circumstances
surrounding his “discovery” of the methamphetamine in his pocket. For
example, jurors wanted to know if Tracey had a cell phone, why he left the
store wearing the boots instead of leaving them at the checkout to get his
girlfriend, and whether he had had reason to reach into the pocket with the
methamphetamine earlier in the day. Unlike Green, the jurors’ questions
were not focused on the nature or existence of Tracey’s prior convictions.
Thus, the questions did not suggest the jurors were considering Tracey’s
credibility generally or outside the practicalities of his nonsensical
explanation, or otherwise indicate the jurors gave any significant weight to
the prior convictions. Contra id. at 498, 501, ¶¶ 5, 22 (considering jurors’
questions regarding the nature of the defendant’s prior convictions as
indicative that “knowledge of the defendant’s past convictions may have
had some effect” on their verdicts).


                                      4
                             STATE v. TRACEY
                            Decision of the Court

¶10           The record contains overwhelming evidence of guilt such that
we are convinced beyond a reasonable doubt that the verdicts were not
affected by the evidence of Tracey’s prior convictions for unspecified felony
offenses. See Beasley, 205 Ariz. at 340, ¶ 27 (concluding error in admitting
prior convictions as impeachment evidence was harmless when “[t]he
defendant was literally caught with a smoking gun,” eyewitnesses
observed the events, and the defendant steadfastly refused to implicate
other participants); contra Green, 200 Ariz. at 501, ¶ 22 (concluding error in
admission of prior convictions as impeachment evidence was not harmless
where the evidence was entirely testimonial, the defendant denied the
charge, and the juror questions suggested the existence of defendant’s past
convictions affected their verdict); State v. Malloy, 131 Ariz. 125, 129 (1981)
(concluding error in admission of prior convictions as impeachment
evidence was not harmless where the defendant “intended to present his
defense through his own testimony, denying that he had committed the
[charged offense] and explaining his presence at the scene of the crime. . . .
[but] [b]ecause of the trial court’s erroneous ruling, . . . decided not to take
the stand. . . . [and] was, therefore, unable to present this defense”).
Therefore, Tracey fails to prove reversible error.

                               CONCLUSION

¶11           Tracey’s convictions and sentences are affirmed.




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

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