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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     KIM MICHAEL GREWE, Appellant.

                             No. 1 CA-CR 17-0172
                               FILED 3-20-2018


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201600402
            The Honorable Steven F. Conn, Judge (Retired)

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael Valenzuela
Counsel for Appellee

Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
                            STATE v. GREWE
                           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            Kim Michael Grewe (“Grewe”) appeals his conviction and
sentence for failure to remain at the scene of an accident involving injury.
Grewe argues insufficient evidence supports his conviction, and he
challenges the trial court’s order granting the State’s motion in limine. For
the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY1

¶2            Grewe was driving his motorcycle in the late morning when
he struck the victim who was crossing the street. The victim spun and fell
to the ground. Grewe continued driving and, shortly thereafter, a witness
who observed the accident confronted Grewe at an intersection and told
him he had “run over some guy.” The collision caused pain and bruising
on the victim’s leg and side.

¶3            The State charged Grewe with one count of failure to remain
at the scene of an accident involving injury, a class 5 non-dangerous felony.
The jury found Grewe guilty, and the court imposed two years of
supervised probation. Grewe timely appealed. We have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1)
(2016), 13-4031 (2010), and 13-4033(A)(1) (2010).




1      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against Grewe. See State v.
Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citing State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).



                                     2
                             STATE v. GREWE
                            Decision of the Court

                                 ANALYSIS

       I.     Sufficiency of Evidence

¶4             A “driver of a vehicle involved in an accident resulting in
injury” must “[i]mmediately stop the vehicle at the scene of the accident or
as close to the accident scene as possible” and “[r]emain at the scene of the
accident until the driver has fulfilled the requirements of section 28-663
[duty to give information].” A.R.S. § 28-661(A)(1)-(2) (2017).2 If the driver
fails to do so, and he knew someone was injured or he could have
reasonably anticipated that the collision caused an injury, he will be held
criminally liable. State v. Porras, 125 Ariz. 490, 493 (App. 1980).

¶5             Grewe argues the evidence was insufficient to support his
conviction because the State failed to prove that the victim was injured and
that Grewe knew or should have known that the motorcycle collision
caused the injury. We will reverse a case based on insufficient evidence if
“there is a complete absence of probative facts to support the conviction.”
State v. Soto-Fong, 187 Ariz. 186, 200 (1996) (quoting State v. Scott, 113 Ariz.
423, 424-25 (1976)). See also State v. Arredondo, 155 Ariz. 314, 316 (1987) (“To
set aside a jury verdict for insufficient evidence, it must clearly appear that
upon no hypothesis whatever is there sufficient evidence to support the
conclusion reached by the jury.” (citation omitted)). We address claims of
insufficient evidence de novo. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011).

¶6             The evidence established Grewe was travelling between 5 and
8 miles per hour when a mirror on his motorcycle struck the victim, causing
the mirror to rotate 180 degrees. Grewe testified that, immediately after the
collision, he noticed that his motorcycle’s mirror “kept going around and
around, it was unscrewing.” Grewe also testified that, at the time of the
collision, the victim “slammed into my shoulder, it’s like I had a bad charley
horse on my shoulder; and I seen him, he fell down, bounced off me. . . .
[T]he center of [the victim’s] chest hit my shoulder.” The victim testified
that he had crossed about two street lanes when he was hit by something
and fell. The victim further testified that, after the incident, he noticed pain
and bruising on his side and leg.

¶7            The foregoing evidence is sufficient for a reasonable juror to
find that the collision injured the victim. Furthermore, based particularly


2     We cite the current version of this statute because no revisions
material to this decision have occurred since the relevant date.



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                             STATE v. GREWE
                            Decision of the Court

on Grewe’s testimony that the collision knocked the victim off his feet and
spun the motorcycle mirror around, and that he, Grewe, experienced pain
in his shoulder, a juror could reasonably conclude Grewe knew, or should
have known, the collision also injured the pedestrian he struck. 3 The trial
evidence was, therefore, sufficient to support the verdict.

       II.    Evidence of Fault

¶8            The morning of the trial’s first day, the State moved in limine
to preclude Grewe from presenting evidence of the victim’s purported fault
in causing the collision with Grewe’s motorcycle. The State specifically
sought to preclude evidence of other instances where the victim crossed the
street in a reckless manner, and evidence that either party caused the
accident or was at fault. Over Grewe’s objection, the court granted the
State’s motion, reasoning it was irrelevant under § 28-661 whether Grewe
or the victim caused the accident. Grewe then unsuccessfully moved for a
mistrial, arguing the State’s motion was untimely.

¶9              Grewe argues the court erred in granting the State’s motion in
limine because evidence that the victim caused the accident by crossing the
street in a bizarre manner was relevant to determine whether Grewe
reasonably knew that the collision injured the victim. We generally review
a trial court’s evidentiary rulings for abuse of discretion. State v. Davolt, 207
Ariz. 191, 208, ¶ 60 (2004).

¶10          Relevant evidence is generally admissible. Ariz. R. Evid. 402.
“Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Ariz. R. Evid. 401. A trial court
does not abuse its discretion by excluding irrelevant evidence. See Ariz. R.
Evid. 402.

¶11           Here, whether the victim or Grewe was at fault for the
accident was not relevant to determining Grewe’s guilt. The applicable
statute applies to drivers who are involved in an accident resulting in an
injury to another person. A.R.S. § 28-661(A). Criminal culpability is not
limited to those who cause vehicular accidents resulting in injury. The
victim’s apparent reckless manner in crossing streets was also irrelevant to



3     Grewe told the investigating officer that “he took the brunt of the
damage[,]” indicating Grewe also believed the victim sustained at least
some damage.


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                            STATE v. GREWE
                           Decision of the Court

whether Grewe should have known that the collision resulted in the
victim’s injury.

¶12          In any event, Grewe testified as follows:

      [T]his guy is coming, you know, and he’s got his arms down
      to his side and tilted forward like, what does he think, he’s a
      missile, like a motorcycle? I said hey. I only yelled hey twice.
      The first time I yelled hey to get his attention. I thought he’s
      going to stop, because it’s like he’s aiming at me, and why
      would anybody do that. And then he’s not slowing down a
      bit.

                                     ...

      So then he falls on the ground and I looked down and he’s
      getting up, and I’m thinking what’s he going to do for an
      [encore]? He just run across the street when I’m yelling at him
      to stop, he runs into me. I’m thinking I’m not sticking around
      to see what is he going to do, strangle me, or stick a knife in
      me.

      Q. Let me stop you there. Then, is your perception that
      you’re running into him, or he’s running into you?

      A. I didn’t run, he ran. That’s what I was saying at the scene.
      I kept saying he hit me. I kept saying he hit me. . . . [H]e tilted
      forward, running as fast as he can do, with his hands straight
      down at the sides.

                                     ...

      I couldn’t avoid him because I kept getting the impression
      when I yelled hey the second time, it seemed like he was
      homing in on my voice.

                                     ...

      And if the [victim] hadn’t did everything that he did, the guy
      would have walked home, I would have went to my meeting,
      and that would have been the end of it.

                                     ...




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                             STATE v. GREWE
                            Decision of the Court

       [I]t was like he was aiming at me; and he didn’t run like a
       regular person[], and -- and he looked kind of strange; got his
       arms like somebody coming off a ski jump or something, and
       I’m thinking I couldn’t believe it and I yelled hey, as loud as I
       could.

                                     ...

       I said hey because he’s running, he’s not walking; so I was
       trying to get his attention before he comes over and hits me.

¶13           Based on the above testimony and during his closing
argument, Grewe argued that he perceived the victim to be positioned as a
“missile coming after him.” Thus, Grewe did not necessarily think the
accident injured the man because he thought he was the one being attacked.
Grewe further testified that the injured pedestrian was “an odd fellow,
maybe a dangerous fellow, [and] someone he certainly wanted to get away
from.”

¶14            Based on the foregoing evidence and argument, and despite
the irrelevance of the victim’s fault and erratic behavior of crossing the
street in front of Grewe, Grewe was able to present his “no fault” defense
to the jury. Consequently, any possible error in precluding evidence of fault
did not prejudice Grewe.

¶15            Regarding Grewe’s contention that the trial court erred in
denying his mistrial motion, we find no abuse of discretion. Grewe argues
Arizona Rule of Criminal Procedure 16.1 required the State to seek
suppression of the “fault” evidence by written motion no later than 20 days
before trial. Ariz. R. Crim. P. 16.1(c) (noting the court may preclude any
defense if not raised 20 days before trial, “unless the basis was not then
known and could not have been known through reasonable diligence, and
the party raises it promptly after the basis is known”). Grewe argues the
State learned the basis of its motion in limine before Rule 16.1’s 20-day limit
because the State heard a witness describe the victim’s habit of crossing
streets recklessly at a defense-witness’ interview six weeks before trial and
based on Grewe’s noticed defense of lack of knowledge regarding the
victim’s injury or that the accident caused the injury. Thus, according to
Grewe, the State’s verbal motion made on the first day of trial was untimely
and a mistrial was warranted.

¶16           We disagree. The record establishes that the State first
became aware that Grewe would potentially interject fault as a trial issue
right before trial commenced. The State immediately objected to Grewe’s


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                           STATE v. GREWE
                          Decision of the Court

anticipated evidence and moved to preclude it. Accordingly, the court
acted within its discretion pursuant to Rule 16.1 to preclude the evidence.
As a result, a mistrial based on the State’s untimeliness would have been
inappropriate. See State v. Rankovich, 159 Ariz. 116, 121 (1988) (finding
motions for new trial are disfavored and should be granted with great
caution). The court did not err in denying Grewe’s motion for mistrial.

                             CONCLUSION

¶17          Grewe’s conviction and sentence are affirmed.




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




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