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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    JAMES A. RUNNELS, JR., Appellant.

                             No. 1 CA-CR 18-0358
                              FILED 8-1-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-002202-001
               The Honorable John Christian Rea, Judge

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant
                           STATE v. RUNNELS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Michael J. Brown joined.


T H U M M A, Judge:

¶1            James A. Runnels, Jr., appeals his convictions and resulting
sentences for two felony and five misdemeanor offenses. Runnels argues
the superior court erred in admitting other acts evidence and the sentences
imposed are illegal. Because Runnels has shown no evidentiary error, his
convictions are affirmed. Because Runnels has shown sentencing error, his
sentences are affirmed as modified.

                FACTS AND PROCEDURAL HISTORY

¶2            One afternoon in November 2016, Runnels asked his nephew
to drive him to the home of M.B., the mother of his child. Entering through
an open garage door, Runnels found M.B. in the living area. M.B. told
Runnels to leave, but he refused. Runnels punched M.B. in the head and
pushed her head into the wall so hard it damaged the drywall. M.B. tried
to escape through the backyard gate, but Runnels caught her and dragged
her back inside. When Runnels’ nephew heard the commotion, he went
inside and told Runnels to leave with him, and Runnels did so. M.B. sought
medical care and was treated for a hematoma and a laceration on her scalp.

¶3            The State charged Runnels with various felony and
misdemeanor offenses, most of which were alleged to be domestic violence
offenses and the most serious of which was kidnapping, a Class 2
dangerous felony. The State filed a pretrial notice seeking to admit at trial
evidence of Runnels’ other crimes, wrongs or acts that M.B. knew about,
including prior convictions for attempted murder and aggravated assault
against other female victims. See Ariz. R. Evid. 404(b)(2019).1 At a pretrial
hearing, the State presented evidence that M.B. was aware of Runnels’ other
acts and that this affected her state of mind during the assault, leading her
to believe Runnels was capable of hurting and even killing her.



1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


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                           STATE v. RUNNELS
                           Decision of the Court

¶4            Granting the State’s motion, the court found Runnels
committed these other acts; the evidence was offered for proper purposes
(to show Runnels’ intent and M.B.’s reasonable apprehension of imminent
physical injury, and to explain M.B.’s actions); the probative value of the
evidence was not substantially outweighed by the danger of unfair
prejudice; and any danger of unfair prejudice could be addressed in a
limiting instruction.

¶5           At trial, M.B. testified that when Runnels entered her home,
he pointed a gun at her and threatened to kill her. M.B. testified that she
was aware of Runnels’ 1990 conviction for cutting a woman’s throat, noting
she had seen the scar. She also was aware of Runnels’ 2010 conviction for
assaulting his ex-wife. M.B. testified that her knowledge of these acts
heightened her fear and led her to believe that Runnels could kill her.

¶6             After the State rested, Runnels elected to testify. He admitted
to the prior convictions M.B. testified about, as well as an additional felony
conviction. He also admitted that M.B. knew about the convictions. Runnels
then testified that he never had a gun and that he pushed M.B. into a wall
only after she attacked him. During cross-examination, he sought to
minimize the 1990 conviction as a “scratch” on the victim’s throat.

¶7             After deliberations, the jury convicted Runnels of two
felonies: unlawful imprisonment (Count 2, as a lesser-included offense) and
criminal trespass (Count 3). The jury also convicted Runnels of five
misdemeanors: assault (Count 1, as a lesser-included offense); assault
(Counts 4 and 5); criminal damage (Count 6) and disorderly conduct (Count
7). Apart from disorderly conduct, all offenses were domestic violence
offenses. Given his historical felony convictions, for the felony convictions
(Counts 2 and 3), the court sentenced Runnels as a Category Three
repetitive offender to consecutive, greater than presumptive 4.5-year prison
terms (the sentence for Count 3 to be served consecutive to the sentence for
Count 2). The court also sentenced Runnels to jail terms on the
misdemeanor counts, concurrent to the prison sentence in Count 2.

¶8           This court has jurisdiction over Runnels’ timely appeal
pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona
Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).




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                            STATE v. RUNNELS
                            Decision of the Court

                               DISCUSSION

I.     Runnels Has Not Shown The Court Erred In Admitting Other Acts
       Evidence.

¶9            Runnels argues the court erred when it admitted his 1990 and
2010 convictions as other acts evidence under Rule 404(b), an issue this
court reviews for an abuse of discretion. State v. Carver, 16 Ariz. 167, 175
(1989).2 Other acts evidence generally is not admissible to show the
character of a person but may “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). To be
admissible,

              a proper purpose must be shown under Rule
              404(b), it must be relevant under Rule 402, the
              probative value of the evidence must not be
              substantially outweighed by its potential
              prejudicial effect under Rule 403, and the court
              must give a proper limiting instruction if
              requested under Rule 105.

State v. Acuna Valenzuela, 245 Ariz. 197, 207 ¶ 12 (2018). Runnels argues the
other act evidence was unfairly prejudicial and that, despite receiving a
limiting instruction, the jury considered the evidence for an improper
purpose.

¶10           Here, the other act evidence had substantial probative value,
because the State had to prove beyond a reasonable doubt that M.B. was “in
reasonable apprehension of imminent physical injury.” A.R.S. § 13-
1203(A)(2); see State v. Tassler, 159 Ariz. 183, 185 (App. 1988) (finding other
act evidence “was independently admissible . . . to prove the reasonable
apprehension of the [victims] of potential violent conduct by the
defendant”). That the evidence was adverse to Runnels does not mean that
it was unfairly prejudicial. See State v. Schurz, 176 Ariz. 46, 52 (1993)
(“[E]vidence which is relevant and material will generally be adverse to the
opponent.”).



2Although stating that admission of the other acts evidence also violated
his rights to due process and fundamental fairness, because Runnels fails to
present a developed argument, any such claims are waived. State v. Carver,
160 Ariz. 167, 175 (1989).


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                            STATE v. RUNNELS
                            Decision of the Court

¶11            The superior court made multiple efforts to limit any danger
of unfair prejudice in admitting the other acts evidence. See Payne, 233 Ariz.
at 504, ¶ 58 (“When other act evidence is admissible but prejudicial, the trial
court must ‘limit the evidence to its probative essence . . . by excluding
irrelevant or inflammatory detail.’”) (citation omitted). The names of the
offenses that Runnels was convicted of—attempted murder and aggravated
assault—were redacted from the exhibit used at trial and were not
mentioned in the witness’ testimony. It was only after Runnels testified that
the jury learned these were felony convictions and that he served significant
prison sentences for them. Any prejudicial effect is further mitigated by the
fact that the jury would have learned of Runnels’ felony convictions
anyway when the State impeached Runnels during cross examination as
authorized by Ariz. R. Evid. 609.

¶12           The court also mitigated any danger of unfair prejudice by
giving an appropriate limiting instruction. See State v. Hyde, 186 Ariz. 252,
276–77 (1996) (concluding “that the trial court afforded defendant adequate
protection against unfair prejudice” when it offered to give a limiting
instruction). Although Runnels argues that jurors consider other acts
evidence for an improper purpose once it is admitted, this court presumes
jurors follow the court’s instructions, including limiting instructions. State
v. Dann, 205 Ariz. 557, 570 ¶ 46 (2003). The State further limited any unfair
prejudice during closing arguments by emphasizing that the evidence
should only be used for its proper purpose: to inform the jury of M.B.’s state
of mind during the assault. Cf. State v. Lehr, 227 Ariz. 140, 147 ¶ 24 (2011)
(finding harmless error when court failed to give a limiting instruction,
focusing on State’s closing urging the jury to consider the evidence only for
its proper purpose). Accordingly, Runnels has not shown the court erred in
admitting the other acts evidence.

II.    Sentencing Issues.

¶13             Runnels raises two sentencing issues. Because Runnels did
not object to either issue before the superior court, he has forfeited all but
fundamental, prejudicial error review. See State v. Henderson, 210 Ariz. 561,
567 ¶¶ 19–20 (2005). Accordingly, Runnels must establish that “(1) error
exists, (2) the error is fundamental, and (3) the error caused him prejudice.”
State v. Smith, 219 Ariz. 132, 136 ¶ 21 (2008); accord State v. Escalante, 245
Ariz. 135, 142 ¶ 21 (2018).




                                      5
                           STATE v. RUNNELS
                           Decision of the Court

       A.     The Superior Court Erred In Imposing Concurrent Jail And
              Prison Terms.

¶14            Runnels argues the court committed fundamental error
resulting in prejudice when it sentenced him to concurrent jail and prison
terms. For the Class 1 misdemeanors (Counts 4, 5, and 7), the court
sentenced him to six months in jail; for the Class 2 misdemeanors (Counts
1 and 6), four months in jail. The court ordered that these jail sentences run
concurrent with the 4.5-year prison term for Count 2. Runnels received 126
days of presentence incarceration credit for these six counts. When the State
challenged the legality of imposing concurrent jail and prison terms, the
court declined to make a modification, stating: “Well, if the sentences have
to be modified, the Court’s intent is nine years.”

¶15            The State concedes that the concurrent jail and prison terms
are error. See A.R.S. § 13–707(A) (“A sentence of imprisonment for a
misdemeanor shall be for a definite term to be served other than a place
within custody of the state department of corrections.”) (emphasis added);
State v. Harris, 134 Ariz. 287, 287 n.1 (App. 1982) (noting misdemeanor jail
term may not be concurrent with prison term). Accordingly, the
misdemeanor sentences imposed cannot stand. The question, then, is
whether a remand is necessary or whether the sentences can be modified
on the record presented.

¶16           Although challenging the misdemeanor jail terms, Runnels
does not directly challenge the felony sentences imposed. If the
misdemeanor sentences were vacated and this matter was remanded for
resentencing, at very best, Runnells would receive credit for time served on
the misdemeanors; at worst, he would be given up to six additional months
in jail, to be served after serving the prison sentences for the felony
convictions.

¶17             As noted above, the record is clear that the court intended to
sentence Runnels to a total of nine years in custody. Cf. State v. Hanson, 138
Ariz. 296, 304 (App. 1983) (no error when court later modifies a sentence
when “its intent is clearly expressed in the record”). Runnels and the State
both note that the “trial court expressed that its ‘intent [was] nine years.’”
Given that the misdemeanor sentences imposed cannot stand, and given
this clear statement of intent, the concurrent sentences on the misdemeanor
convictions are modified as follows: (1) the Class 1 misdemeanor sentences
(Counts 4, 5 and 7) are modified from six months in jail to 126 days in jail
with credit for time served and (2) the Class 2 misdemeanor sentences
(Counts 1 and 6) are modified from four months in jail to 126 days in jail


                                      6
                            STATE v. RUNNELS
                            Decision of the Court

with credit for time served. Thus, as modified, the sentences are for Runnels
to serve two consecutive 4.5-year prison terms, totaling nine years,
consistent with the stated intent of the sentencing judge. See A.R.S. § 13-
4037(A); State v. Gourdin, 156 Ariz. 337, 339-40 (App. 1988) (modifying an
illegal sentence by adjusting the length of the prison sentence so that it met
the parties’ expectations at sentencing).

       B.    The Nunc Pro Tunc Order Correcting The Nature Of The
             Count 1 Conviction And Resulting Sentence Benefitted
             Runnels And Did Not Constitute Fundamental Error
             Resulting In Prejudice.

¶18            For Count 1, the jury convicted Runnels of the lesser-included
offense of assault, a Class 2 misdemeanor. At sentencing, the court referred
to Count 1 as a Class 1 misdemeanor conviction and sentenced him to six
months in jail. Later, the court issued a nunc pro tunc order, noting that
Count 1 was a Class 2 misdemeanor conviction and reducing the sentence
to four months in jail. Runnels has not shown that this correction was a
resentencing (for which Runnels had the right to be present), but instead is
similar to a court’s favorable adjustment to presentence incarceration credit,
which is not considered a resentencing. See State v. Cruz–Mata, 138 Ariz.
370, 376 (1983) (crediting defendant with appropriate amount of credit
without remanding for resentencing). Moreover, although challenging this
nunc pro tunc order on appeal, Runnels shows no resulting prejudice. In
fact, the order benefitted Runnels because it decreased his jail sentence from
six to four months. Thus, Runnels has not shown that this nunc pro tunc
order constituted fundamental error resulting in prejudice.

                               CONCLUSION

¶19           Because Runnels has shown no reversible error, his
convictions and resulting sentences for Counts 2 and 3 are affirmed. For the
remaining offenses (Counts 1, 4, 5, 6 and 7), his convictions are affirmed
and his sentences are modified so that they are each for 126 days in jail, with
credit for time served, all imposed concurrently.




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


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