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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              DEANNA LELAND,
                               Plaintiff/Appellant,

                                         v.

               AUTO NATION HONDA CHANDLER, et al.,
                        Defendants/Appellees.

                              No. 1 CA-CV 19-0133
                                FILED 1-9-2020


            Appeal from the Superior Court in Maricopa County
                           No. CV2016-096139
             The Honorable David M. Talamante, Judge, Retired

                                   AFFIRMED


                                    COUNSEL

Goldberg & Osborne, LLP, Phoenix
By Ryan Lamb
Counsel for Plaintiff/Appellant

Stinson, LLP, Phoenix
By Lonnie J. Williams, Jr., Carrie M. Francis
Counsel for Defendants/Appellees
                    LELAND v. AUTO NATION, et al.
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge James B. Morse Jr. joined.


J O H N S E N, Judge:

¶1            Deanna Leland appeals the judgment entered upon a jury
verdict in favor of AutoNation Honda Chandler ("AutoNation") and others
in her personal-injury case. For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             Leland, Leland's mother, and Leland's sister, Wendy Navarro,
went to an AutoNation dealership to shop for a car.1 Because Leland's
mother had trouble walking, an AutoNation sales associate, Elmer
Orellana, drove the group around the car lot in one of the dealership's four
golf carts. Leland's mother sat in the front passenger seat and Navarro and
Leland sat, unrestrained, in the cart's rear seat, which faced backward.
After slowing the cart to allow the group to view some cars more closely,
Orellana began to accelerate and Leland fell off the cart and onto the
pavement, striking her head and sustaining injuries. Orellana contacted his
supervisor, John Salazar, who called paramedics. Leland sued AutoNation,
Orellana and others, alleging Orellana's negligence, imputed to
AutoNation through respondeat superior, caused her to be thrown from the
golf cart and injured.

¶3            Before trial, Leland moved in limine to preclude all evidence
of her four prior felony convictions. The superior court denied the motion
but ruled the defendants could advise the jury only "that Plaintiff ha[d] a
felony conviction and of her release date from prison." Nonetheless,
Leland's counsel opted to "draw the sting" by preemptively questioning
Leland about all of her convictions during direct examination. On cross-
examination, AutoNation's counsel further questioned Leland about the


1       "[O]n appeal from a judgment entered on a jury verdict, this court
must view the evidence in a light most favorable to the prevailing party and
must give that party all the reasonable inferences arising from that
favorable view of the evidence." Frazier v. Sw. Sav. & Loan Ass'n, 134 Ariz.
12, 14 (App. 1982).


                                     2
                    LELAND v. AUTO NATION, et al.
                         Decision of the Court

nature of her four convictions (one count of shoplifting, two counts of
solicitation to commit shoplifting and one count of possession of drug
paraphernalia).

¶4             Later in the trial, AutoNation offered in evidence
photographs of golf carts it uses to drive customers around its lot. Leland
objected, citing lack of foundation and arguing no witness had testified that
any of the photographs depicted the golf cart involved in the incident. The
superior court admitted the photographs. At the close of evidence, the
superior court declined Leland's request for a jury instruction on spoliation
of evidence regarding the golf cart from which she fell, finding Leland had
not shown the cart was destroyed or otherwise unavailable for inspection.

¶5            The jury returned a unanimous verdict for AutoNation and
the superior court entered final judgment against Leland. Leland timely
appealed. We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-
120.21(A)(1) (2020) and -2101(A)(1) (2020).2

                               DISCUSSION

¶6            We review the superior court's rulings on admission of
evidence, including prior convictions, for an abuse of discretion. State v.
Lopez, 234 Ariz. 465, 469, ¶ 19 (App. 2014) (evidence); State v. Beasley, 205
Ariz. 334, 338, ¶ 19 (App. 2003) (prior convictions). We review the superior
court's refusal to give a jury instruction for an abuse of discretion. State v.
Lewis, 236 Ariz. 336, 346, ¶ 44 (App. 2014). We review questions of law de
novo. Lopez, 234 Ariz. at 469, ¶ 19.

A.     Admission of Leland's Prior Felony Conviction.

¶7            Leland argues the superior court erred by allowing evidence
of her four prior felony convictions because any probative value of the
convictions was substantially outweighed by unfair prejudice.               In
addressing this contention, we note that the court ruled that AutoNation
could offer evidence of just one conviction; the jury heard about all of them
only because Leland's counsel opened the door to the issue by choosing to
ask her about more than one felony on direct examination.

¶8            Arizona Rule of Evidence 609 governs the admissibility of
prior convictions offered to impeach a witness's credibility. Rule 609(a)(1)

2      Absent material revision after the relevant date, we cite the current
version of a statute or rule.


                                      3
                     LELAND v. AUTO NATION, et al.
                          Decision of the Court

provides, in relevant part: "[F]or a crime that, in the convicting jurisdiction,
was punishable by death or by imprisonment for more than one year, the
evidence: (A) must be admitted, subject to Rule 403, in a civil case . . . ." In
turn, Arizona Rule of Evidence 403 provides that "[t]he court may exclude
relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence." The superior court "has wide discretion"
in deciding whether to admit evidence under Rule 609. Blankinship v.
Duarte, 137 Ariz. 217, 219 (App. 1983).

¶9             Here, the court acted well within its discretion when it chose
to allow the jury to be told that Leland was convicted of a felony and of the
date she was released from incarceration. First, it is undisputed that
Leland's convictions fell under Rule 609(a) because fewer than ten years
had passed since her convictions or release from incarceration. See Ariz. R.
Evid. 609(b). Thus, under Rule 609(a)(1)(A), the superior court was required
to admit the evidence subject to Rule 403's balancing test.

¶10            Second, the danger of unfair prejudice from the jury's learning
of a single felony conviction did not substantially outweigh the probative
value of that conviction. Evidence of Leland's prior felony was especially
probative because her credibility was a central issue in the case. See
Blankinship, 137 Ariz. at 220 (importance of witness credibility a factor to
consider in Rule 609 analysis). Leland gave inconsistent accounts about the
incident during her deposition and at trial concerning whether, for
example, the golf cart was going around a corner at the time she fell off.
She also testified the rear seat of the golf cart lacked seatbelts, contradicting
a photograph of one of the dealership's golf carts in evidence. And Navarro
was the only other known witness who saw Leland fall. Whether
AutoNation acted negligently therefore heavily depended on whether the
jury believed Leland's testimony. As such, evidence that she had a felony
conviction was highly probative.

¶11           Leland argues, however, that unfair prejudice resulted even
though the court sanitized the evidence because it "allowed the jury to
speculate as to why she was convicted and when her convictions took
place." According to Leland, this left her little choice but to draw the sting
by "delving into the details of each."

¶12          We are unpersuaded. "Our case law has consistently
approved of sanitization as a means of limiting prejudicial effect." State v.
Montano, 204 Ariz. 413, 426, ¶ 66 (2003). The superior court soundly


                                       4
                     LELAND v. AUTO NATION, et al.
                          Decision of the Court

exercised its discretion to admit evidence of only one of Leland's prior
convictions. That Leland's counsel opted to question her not just about one
felony, as the superior court had allowed, evinces a deliberate trial strategy,
not unfair prejudice.

¶13            Lastly, Leland's reliance on Blankinship is misplaced. We held
there that the superior court erred by admitting evidence of the plaintiff's
prior felony conviction under Rule 609. 137 Ariz. at 219-21. But that case is
readily distinguishable because (1) the felony there was over ten years old
and thus was subject to a much more stringent balancing test under Rule
609, (2) the superior court admitted the evidence for improper purposes,
not to impeach the witness's credibility, and (3) the plaintiff's credibility
was not a crucial issue in the case. Id. None of those circumstances applies
here. Accordingly, we conclude the superior court did not abuse its
discretion in ruling that AutoNation could offer evidence of one of Leland's
prior felony convictions.

B.     Admission of the Golf Cart Photographs.

¶14           Leland next argues the superior court erred by admitting the
photographs of the golf carts because none of AutoNation's witnesses could
identify which specific golf cart was involved in the incident. According to
Leland, this caused prejudice because it gave the jury the impression "the
golf cart Leland fell from was one of the golf carts depicted in those photos
and had the safety features depicted in those photos."

¶15           "To satisfy the requirement of authenticating or identifying an
item of evidence, the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it is." Ariz. R.
Evid. 901(a). "For photographic or video evidence, the authenticating
evidence frequently takes the form of witness testimony that the
photograph or video accurately portrays whatever it purportedly depicts."
State v. Haight-Gyuro, 218 Ariz. 356, 358, ¶ 9 (App. 2008). Applying those
principles here, the appropriate inquiry is whether AutoNation provided
"some evidence from which a jury could conclude" the photographs
accurately depicted the golf cart at the time of the incident. Id. at 359, ¶ 10.

¶16           AutoNation presented sufficient evidence from which the
jury could conclude the golf carts in the photographs accurately
represented the then-current condition of the cart from which Leland fell.
See id. Although no one took a photograph of the specific golf cart on the
day of the incident, AutoNation later photographed the dealership's carts




                                       5
                    LELAND v. AUTO NATION, et al.
                         Decision of the Court

from different angles, and each photograph showed the rear seats were
equipped with safety features such as seatbelts and handrails.

¶17            At trial, Orellana testified the photographs showed the golf
carts he had driven at the dealership and accurately represented the golf
cart he was driving at the time of the incident. He also testified there were
no differences among any of the dealership's four golf carts. In addition,
Salazar testified the photographs showed the exact golf carts used by the
dealership in August 2014, that the safety features in the photographs were
present when the incident occurred, and that the dealership had not
acquired any other carts since the incident. Based on this testimony, the
jury could reasonably conclude that the photographs accurately
represented the golf cart involved in the incident.

¶18            Leland contends, however, that because AutoNation did not
isolate the subject golf cart, "it is unknown what changes may have occurred
to that golf cart before the photos were taken." But Salazar testified
AutoNation made no changes to the carts since August 2014, and the jury
had discretion as the factfinder to decide whether to credit his testimony.
See Harris v. Murch, 18 Ariz. App. 466, 467 (1972) ("[T]he credibility of the
witnesses and the weight to be given their testimony are matters peculiarly
within the province of the jury.").

¶19            Although Leland argues Henderson v. Breesman, 77 Ariz. 256
(1954), should guide the result here, that case is inapposite. There, our
supreme court affirmed the superior court's exclusion of a photograph of
the plaintiff's car offered to show damages resulting from an accident,
explaining "[t]here was evidence the car was not in the same condition as at
the time of the accident" and deferring to the superior court's discretion.
Henderson, 77 Ariz. at 262. In contrast, as noted, Salazar testified the
dealership had made no changes to the golf carts since the date of Leland's
fall. And, like the supreme court in Henderson, we must defer to the
superior court's "sound discretion" in deciding to admit or exclude
evidence. See State v. Meraz, 152 Ariz. 588, 589 (1987).

¶20            Last, Leland argues no foundation existed for admitting the
photographs because Salazar could not testify to when they were taken. But
Arizona law does not require a witness to identify the precise date a
photograph was taken; the issue is whether evidence shows that the
photograph accurately depicts its subject at the relevant time. See State v.
Lee, 80 Ariz. 213, 214-15 (1956). In sum, we conclude the superior court did
not abuse its discretion by admitting the photographs of the golf carts.




                                     6
                    LELAND v. AUTO NATION, et al.
                         Decision of the Court

C.     Refusal to Give Spoliation Jury Instruction.

¶21          Leland finally argues the superior court erred by refusing to
give the jury a spoliation instruction because AutoNation failed to
segregate or preserve the golf cart involved in the incident. As a result,
Leland argues this left the jury "with the impression that the photos
accurately depicted the golf cart involved in the accident."

¶22          The superior court "must give a requested instruction if: (1)
the evidence presented supports the instruction, (2) the instruction is
proper under the law, and (3) the instruction pertains to an important issue,
and the gist of the instruction is not given in any other instructions."
DeMontiney v. Desert Minor Convalescent Ctr., Inc., 144 Ariz. 6, 10 (1985).

¶23            Spoliation is defined as "[t]he intentional destruction of
evidence" or "[t]he destruction, or the significant and meaningful alteration
of a document or instrument." McMurtry v. Weatherford Hotel, Inc., 231 Ariz.
244, 259, ¶ 51, n.15 (App. 2013) (citation omitted). Litigants have a duty to
preserve relevant evidence. Souza v. Fred Carries Contracts, Inc., 191 Ariz.
247, 250 (App. 1997). "When a party breaches that duty . . . a trial court has
discretion to impose sanctions," including "instruct[ing] the jury that it may
infer that destroyed evidence would have been unfavorable to the position
of the offending party." McMurtry, 231 Ariz. at 260, ¶ 51. "In determining
whether an adverse inference instruction is appropriate, the trial court has
substantial discretion, but should consider any bad faith or intentional
destruction and whether the loss of evidence prejudiced the party"
requesting the instruction. Id. (quotation omitted).

¶24            Here, a spoliation instruction was not appropriate because
Leland offered no evidence that AutoNation destroyed, altered or
otherwise failed to preserve the specific golf cart involved in the incident.
As explained, supra ¶ 17, Orellana and Salazar testified that the dealership's
four golf carts were identical to each other and had not changed since
August 2014. Leland points to no evidence showing otherwise, and her
assertions to the contrary amount to pure speculation. See DeMontiney, 144
Ariz. at 9-10 (evidence must be presented to support requested jury
instruction).

¶25            Further, the golf carts were available for Leland to inspect at
any time, and she was free to argue or present her own evidence that the
photographs of the golf carts did not accurately portray the cart from which
she fell. See Strawberry Water Co. v. Paulsen, 220 Ariz. 401, 411, ¶ 30 (App.
2008) (no abuse of discretion in denying spoliation instruction when



                                      7
                    LELAND v. AUTO NATION, et al.
                         Decision of the Court

plaintiffs could challenge opponent's evidence by introducing their own,
and remaining evidence was available for inspection). Therefore, we
conclude the superior court did not abuse its discretion in declining to give
a spoliation instruction.

                              CONCLUSION

¶26         For the above reasons, we affirm the superior court's
judgment. We award AutoNation its costs on appeal, upon compliance
with Arizona Rule of Civil Appellate Procedure 21. See A.R.S. § 12-342(A)
(2020).




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




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