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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     OVAHL LESEAN DEES, Appellant.

                             No. 1 CA-CR 15-0226
                               FILED 6-21-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-120415-001
              The Honorable Erin Otis, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Terry Reid
Counsel for Appellant
                             STATE v. DEES
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.


G O U L D, Judge:

¶1           Ovahl Lesean Dees appeals his convictions and sentences for
one count of unlawful imprisonment and one count of threatening or
intimidating. For the reasons that follow, we affirm.

                             BACKGROUND1

¶2           On the morning of April 30, 2014, a postal worker was
delivering mail to a large residential complex when she encountered the
victim, who inquired how long it would be before the worker reached her
boyfriend’s mailbox. The victim’s boyfriend, Dees, had lost his mail key,
and the victim asked to meet the postal worker at the mailbox and accept
hand-delivery of Dees’ mail.

¶3            When the postal worker arrived at Dees’ mailbox, however,
the victim was not there, so the worker opted to hand-deliver Dees’ mail to
his front door. When she rang Dees’ doorbell, no one answered. She rang
again and knocked. As Dees was opening the front door, the postal worker
heard a female voice, in a “loud whisper,” say “ma’am, ma’am.” The
worker stepped back in an attempt to locate the source of the whisper and
saw the victim climbing over the second-story balcony. The victim
attempted to “shimmy down” but dropped during her descent. Initially
she landed on her feet, but then fell and appeared hurt.

¶4            Upon seeing the victim fall, Dees quickly moved past the
postal worker toward the victim. The victim looked upset and “started
scooting away” while saying “Get away from me. I don’t want anything to
do with you.” After getting to her feet, the victim began quickly walking
away. At first, Dees followed the victim, but he then returned, took the mail
from the postal worker, and entered his townhouse.



1      We view the trial evidence in the light most favorable to sustaining
the jury’s verdicts. State v. Nelson, 214 Ariz. 196, 196, ¶ 2 (App. 2007).


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                             STATE v. DEES
                           Decision of the Court

¶5            Meanwhile, four police officers (Detectives Stadler,
McKnight, Monnens, and Sergeant Scantlebury) and one probation officer
(Officer Leroy) were stationed in unmarked vehicles near Dees’ townhouse,
waiting to serve him with a probation warrant. Detectives Stadler and
McKnight were parked on the north side of Dees’ residence and the others
were positioned on the south side. They had been sitting outside the
townhouse for approximately fifteen minutes when Detective Stadler saw
the victim fall from the second-story balcony of the townhome. Detective
Stadler then watched Dees emerge from his townhouse and appear to offer
the victim help, but the victim backed away. When the victim stood, she
started to quickly walk away from Dees and he grabbed her. Eventually,
the victim broke free of his grip and started running.

¶6            At that point, Detective Stadler radioed the other vehicle and
alerted those officers of the situation. Detective Monnens ran toward Dees’
townhouse and, as he approached Dees’ residence, he saw Dees retrieve a
bicycle and begin pedaling away. Detective Monnens identified himself as
a police officer and ordered Dees to stop. In response, Dees turned and
looked at the detective, but began pedaling away faster. Detective Stadler
then picked up Detective Monnens and they pursued Dees by vehicle. By
the time the detectives caught up with Dees, however, both he and the
victim had been detained by Sergeant Scantlebury and Detective McKnight.

¶7             The police officers separated Dees and the victim, and then
handcuffed the victim. Detective Monnens spoke with the victim, who said
she and Dees had an argument on the phone while she was running errands
that morning, and she had hung up on him. When she later returned to the
townhouse, Dees was angry that she had “disrespected” him by abruptly
hanging up. The victim then told Dees that she wanted to leave, but he told
her that she was not leaving the townhome and blocked her way to the front
door. The victim said Dees told her he would “bust her kneecaps” if she
tried to leave. After the victim jumped from the balcony, Dees grabbed her,
but she managed to break free.

¶8           At that point, Detective Monnens removed the victim’s
handcuffs and inquired about a foot bandage she was wearing. The victim
explained she had sustained an injury two weeks earlier when she had
previously jumped off the balcony to get away from Dees.

¶9           The State charged Dees with one count of unlawful
imprisonment and one count of threatening or intimidating. The State also
alleged numerous historical prior felonies, aggravating circumstances, and
that Dees committed these crimes while on probation.


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                              STATE v. DEES
                            Decision of the Court

¶10           At trial, the victim testified that she was in a continuing
relationship with Dees and did not want him “to get in trouble.” She also
acknowledged that she had spoken to Dees numerous times about the case
and they had reviewed the police reports together. She then explained that
on the morning of April 30, 2014, she ran some errands on a bicycle. Dees
called her and she eventually hung up because it was difficult to hold the
phone and maneuver the bicycle at the same time. When she returned to
the residential complex, she spoke briefly with the postal worker about the
mail and then returned to Dees’ townhouse. Dees was a “little upset” and
believed the victim had “disrespected” him by hanging up. The victim
responded that she was running late for work, did not have time to talk
about it, and needed to leave. The victim testified that Dees never touched
her, threatened her, blocked her exit, or told her she could not leave.

¶11            The victim further testified that when the postal worker came
to the front door, the victim called out to her, but only “to signal her to stop
her from leaving.” The victim then decided to leave the townhouse via the
second-story balcony to prevent further “delay.” At the time, she believed
it was easier to jump off the balcony than end the argument with Dees.
After she fell, Dees tried to help her, but the victim was upset and told him
she did not want to see him again and would not come back. The victim
then quickly walked toward the bus stop and was eventually detained by
police officers.

¶12          Notwithstanding her trial testimony, the victim admitted that
she had told Detective Monnens that Dees had prevented her from leaving
the townhouse. She also acknowledged telling Detective Monnens that
Dees had said “good luck getting to work with busted knee caps,” but
explained the detective incorrectly interpreted this “joke” as a threat. On
cross-examination, the victim stated she did not consider herself a victim
and expressed her belief that the seriousness of the statements and situation
had been greatly exaggerated.

¶13          After a seven-day trial, a jury found Dees guilty as charged.
The jury also found two aggravating circumstances: (1) the offenses
involved the infliction or threatened infliction of serious physical injury,
and (2) Dees was on probation at the time of the offenses. After finding that
the State had proven seven prior felony convictions, the trial court
sentenced Dees to an aggravated term of four and one-half years’
imprisonment for the count of unlawful imprisonment, to be served
consecutively to his sentence in an unrelated probation violation case (CR
2012-148615-001DT), and a six months’ term for the count of threatening or
intimidating. Dees timely appealed. We have jurisdiction pursuant to


                                       4
                             STATE v. DEES
                           Decision of the Court

Arizona Revised Statutes sections 12-120.21(A)(1) (2003), 13-4031, and
-4033(A)(1) (2010).

                               DISCUSSION

I.     Preclusion of Specific Act Evidence

¶14            Dees contends the trial court violated his constitutional right
to confront witnesses and present a defense by precluding evidence that the
victim possessed stolen checks at the time police officers detained her.
Specifically, Dees asserts that the victim was “motiv[ated] to lie” to police
officers and portray herself as a victim because she feared prosecution for
her own criminal conduct.

¶15           Evidentiary rulings are generally reviewed for an abuse of
discretion. State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006). “Evidentiary
rulings that implicate the Confrontation Clause, however, are reviewed de
novo.” Id.

¶16            When police officers detained the victim on April 30, 2014, she
was carrying a backpack with six checks she had taken from her mother
without permission. After interviewing the victim about the events of that
morning, Detective Monnens removed her handcuffs and asked to search
her backpack. The victim consented to the search and, after detectives
found the checks, she told them that she had taken them from her mother
and had made two of the checks payable to herself. Subsequent to these
admissions, Detective Monnens began an investigation of the matter and
contacted the victim’s mother, who told him that the bank account had been
closed for some time and she did not wish to prosecute. The State declined
to file charges on that basis.

¶17            Before trial, Dees filed a motion to appoint counsel for the
victim, asserting she may “incriminate herself regarding potential theft and
forgery charges”; the court granted the request. Soon thereafter, the State
moved in limine to preclude Dees from using evidence regarding the
victim’s possession of the checks to impeach her, arguing that such
evidence was both irrelevant and unduly prejudicial. Dees responded that
he had the right to confront and cross-examine the victim regarding the
checks because the evidence was relevant to show her motive to lie when
she was first detained by the officers. After hearing oral argument from the
parties, the trial court precluded the evidence.

¶18         A defendant’s right under the Confrontation Clause to cross-
examine witnesses about their motives or biases is not absolute. Delaware


                                      5
                               STATE v. DEES
                             Decision of the Court

v. Van Arsdall, 475 U.S. 673, 679 (1986). “[T]he Confrontation Clause
guarantees an opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever extent, the
defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)
(emphasis in original). Thus, trial judges have wide discretion in imposing
limits on such cross-examination based on concerns about prejudice,
confusion of the issues, and relevance. Van Arsdall, 475 U.S. at 679; see State
v. Dickens, 187 Ariz. 1, 14 (1996) (citing State v. Oliver, 158 Ariz. 22, 30 (1988))
(stating a court does not violate a defendant’s confrontation rights by
limiting cross-examination to “matters admissible under ordinary
evidentiary rules, including relevance”).

¶19           Relevant evidence is admissible unless it is otherwise
precluded by the federal or state constitution, an applicable statute, or rule.
Ariz. R. Evid. 402. Evidence is relevant if it has “any tendency” to make a
fact of consequence in determining the action “more or less probable than
it would be without the evidence[.]” Ariz. R. Evid. 401. Relevant evidence
may be excluded, however, if its probative value “is substantially
outweighed” by a danger of unfair prejudice. Ariz. R. Evid. 403.

¶20            Subject to the limitations of Rule 403, specific instances of a
witness’s conduct, if probative of truthfulness or untruthfulness, may be
explored during cross-examination. Ariz. R. Evid. 608(b); State v. Woods,
141 Ariz. 446, 450 (1984) (explaining a trial court has substantial discretion
to allow cross-examination of a witness about specific acts of misconduct,
but the utility of the evidence must be weighed against the possibility of
prejudice under Rule 403); see also State v. Murray, 184 Ariz. 9, 30 (1995).
When acts of untruthfulness “are wholly unrelated to the matter in issue,”
however, “the evidence may be, in the discretion of the court, properly
excluded under Rules 608(b) and 403.” State v. Oliver, 158 Ariz. 22, 31 (1988)
(applying Rule 608(b)); see also State v. Cook, 151 Ariz. 205, 206 (1986)
(explaining trial courts have the discretion to exclude “acts of mendacity
wholly unrelated to the instant situation”).

¶21           In this case, the trial court ruled that the subject evidence was
inadmissible because the “probative value” of the evidence as to the
victim’s purported motive to lie was “essentially nonexistent.” The court
noted that Dees’ argument was premised on an illogical theory; the victim
lied to inculpate Dees in various crimes under the belief that it would
protect her from possible prosecution for her undetected crimes, yet when
Detective Monnens asked whether he could search her backpack, she not
only consented but volunteered that she had stolen checks from her mother,
with no attempt to fabricate an alternative story. The court also stated that


                                         6
                             STATE v. DEES
                           Decision of the Court

the minimal probative value of the evidence was substantially outweighed
by the danger of undue prejudice; specifically, the evidence would confuse
the jury and waste the jury’s time on a collateral matter.

¶22          Finally, the record shows that a substantial amount of
evidence was available to Dees to impeach the victim’s statements to the
police. As an initial matter, the victim recanted all of her inculpatory
statements to the police at trial. Additionally, she testified that the police
greatly exaggerated her statements and took them out of context.

¶23           Dees argues, however, that the impeachment evidence should
have been admitted because defense counsel are afforded great latitude in
examining a witness’s motive to lie on behalf of the State. In support of this
argument, Dees cites several cases involving witnesses who received
favorable treatment from the State in exchange for cooperation, or who, at
the time statements were made or testimony was given, were otherwise
vulnerable to the pressure of possible prosecution or confinement. See, e.g.,
Davis v. Alaska, 415 U.S. 308, 317-18 (1974) (concluding trial court
erroneously excluded evidence that a key witness was on probation and
therefore particularly “vulnerable” to “undue pressure” from the state);
State v. Melendez, 121 Ariz. 1, 3-4 (1978) (concluding trial court erroneously
precluded defense from attacking the credibility of a key witness by
showing that through “his testimony he was escaping the possibility of a
penalty of death or life imprisonment”); State v. Little, 87 Ariz. 295, 300-01
(1960) (concluding trial court erroneously precluded evidence that the chief
prosecution witness had committed crimes and “that prosecution officials,
knowing that fact, were doing nothing about it in order to induce the
witness to testify in favor of the State”).

¶24            The cases cited by Dees are distinguishable from this case.
Here, the State did not, in exchange for the victim’s testimony, make an
offer of leniency or offer to dismiss charges related to the stolen checks. To
the contrary, the record reflects that Detective Monnens investigated the
checks, but no charges were filed because the victim in that case informed
the detective she did not wish to have the case prosecuted.

II.    Admission of Officer Leroy’s Testimony

¶25          Dees argues the trial court erred by admitting Officer Leroy’s
testimony regarding Dees’ probation status at the trial on aggravating
factors. Specifically, Dees asserts Officer Leroy’s testimony was hearsay
and lacked adequate foundation.




                                      7
                              STATE v. DEES
                            Decision of the Court

¶26            At the aggravating factors trial, Officer Leroy testified that he
is a probation surveillance officer and his duties primarily involve serving
warrants on probationers. On April 30, 2014, Officer Leroy was tasked with
serving a warrant on Dees. Officer Leroy explained that, given the nature
of his position, he never serves warrants on non-probationers. The
prosecutor then asked Officer Leroy whether Dees was on probation as of
April 30, 2014, and defense counsel objected for lack of foundation. After
the trial court sustained the objection Officer Leroy testified he had received
Dees’ probation file from Dees’ assigned probation officer, Tony Premack,
after the warrant was issued. The State then offered as an exhibit a
sentencing minute entry demonstrating that Dees was placed on a three-
year term of probation in CR 2012-148615-001DT that commenced on
January 30, 2014, approximately three months before the incident giving
rise to the current case. The defense again objected to Officer Leroy’s
testimony about Dees’ probation status, arguing he lacked “any firsthand
knowledge[.]” The trial court overruled the objection, finding “no
admissibility issue,” and advised defense counsel that she could “attack the
weight” of the evidence.

¶27            On cross-examination, Officer Leroy acknowledged that he
was not Dees’ assigned probation officer and had no personal knowledge
of Dees’ alleged probation violations underlying the warrant. He also
agreed that his testimony was based on the documents he had read from
Dees’ file and noted that Dees had denied being on probation when he was
taken into custody. Drawing on this testimony, defense counsel argued to
the jury that the State had failed to meet its burden of proving Dees was on
probation at the time of the offenses, explaining probation can be
“terminated early” and the State had not presented the testimony of Dees’
assigned probation officer to confirm Dees was on probation at the time of
the offenses.

¶28            Generally, out-of-court statements in a police report are
hearsay and inadmissible absent a qualifying exception. Ariz. R. Evid.
801(c), 802; State v. Smith, 215 Ariz. 221, 229, ¶ 28 (2007); see also Ritchie v.
Krasner, 221 Ariz. 288, 302, ¶ 45 (App. 2009) (explaining police reports
properly excluded as hearsay).2 As a corollary, a witness’s “hearsay

2    Citing State v. McGill, 213 Ariz. 147, 159, ¶ 52 (2006), the State argues
that the Confrontation Clause and rules of evidence do not apply to a trial
on aggravators. In McGill, the supreme court held that the Confrontation
Clause does not apply to mitigation rebuttal testimony at a sentencing
hearing. Id. The supreme court clearly distinguished, however, “between



                                       8
                              STATE v. DEES
                            Decision of the Court

recollections” of a written report are equivalent to offering the report into
evidence and are therefore inadmissible. State v. Seymour, 21 Ariz. App.
144, 146 (1973).

¶29           In this case, Officer Leroy’s testimony that he serves warrants
only on probationers was neither hearsay nor lacking in foundation.
Likewise, insofar as Officer Leroy’s testimony that Dees was on probation
was a logical inference, based on his personal experience of serving
warrants only on probationers, it was not hearsay or lacking in foundation.
However, Officer Leroy’s testimony that Dees was on probation may have
been based, at least in part, on statements in the probation file, and was
therefore inadmissible.

¶30           The improper admission of hearsay evidence constitutes
harmless error if it is evident from the record that the evidence had “no
impact” on the jury’s verdict. State v. Bass, 198 Ariz. 571, 582, ¶ 45 (2000).
To satisfy this standard, the record must contain “a body of proof, firmly
convincing on the essential facts,” such that the jury would have convicted
even without the error. Id.

¶31           Here, the State introduced a sentencing minute entry that
reflects Dees was sentenced to a three-year term of probation three months
before the current offenses occurred. Although defense counsel argued that
Dees may have been released early from this sentence, the record does not
support such a claim. Indeed, other than Dees’ self-serving statement to
arresting officers that he was not on probation when he was taken into
custody, the uncontroverted evidence shows that Dees had thirty-three
months remaining on his term of probation at the time of the current
offenses. Given these facts, the evidence was “firmly convincing” such that
even absent Officer Leroy’s hearsay testimony, the jury would have found
the aggravating factor. Therefore, to the extent Officer Leroy relied on out-
of-court statements in testifying that Dees was a probationer, the admission
of such testimony was harmless error.



hearsay used to establish an aggravating factor, to which the Confrontation
Clause applies, and hearsay used to rebut mitigation, to which the
Confrontation Clause does not apply.” Id. at 51; see also State v. Johnson, 212
Ariz. 425, 433, ¶ 25 (2006) (explaining the “rules of evidence govern the
admissibility of information relevant to . . . aggravating circumstances”).
Because the testimony at issue relates to proof of an aggravating factor, the
State’s reliance on McGill is misplaced.



                                      9
                    STATE v. DEES
                  Decision of the Court

                     CONCLUSION

¶32   Dees’ convictions and sentences are affirmed.




                         :AA




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