Court of Appeals of Arizona, First Division, Department E
Appeal from the Superior Court in Maricopa County Cause No. CR2011-104792-001, The Honorable Robert E. Miles, Judge.
Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Section Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee
Nicole Farnum Phoenix Attorney for Appellant
DIANE M. JOHNSEN, Chief Judge
¶1 David Mark Buot appeals his conviction and sentence for second-degree murder. He argues the superior court erred in admitting other-act evidence and violated his due-process rights by precluding expert testimony about a character trait of impulsivity. We hold the court did not err in allowing the other-act evidence and conclude that impulsivity evidence of the sort Buot sought to offer is not admissible on a charge of second-degree murder.
FACTS AND PROCEDURAL BACKGROUND
¶2Buot was driving his SUV at more than 40 miles an hour down a city street when he suddenly swerved into oncoming traffic and slammed head-on into a sedan, killing its driver. Buot's wife testified that just prior to the crash, Buot had been arguing with her on his cell phone from his car. She testified Buot had become enraged and "screamed that he was going to drive his car into oncoming traffic." When a bystander phoned her with news of the crash a short while later, she responded, "Oh, my God. He did this on purpose." Buot later admitted to his wife and her friend that he had intentionally swerved into oncoming traffic. The jury convicted Buot of second-degree murder, and the court sentenced him to an aggravated term of 22 years.
¶3 We have jurisdiction of Buot's 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) (West 2013), 13-4031 (West 2013) and -4033(A)(1) (West 2013).
A. Other-Act Evidence.
¶4Buot first argues the superior court erred in allowing witnesses to testify that many times before the crash, he had threatened to kill himself by driving into oncoming traffic. The State filed a notice of intent to offer the testimony to rebut Buot's defense that the collision had been an accident. At a hearing before the trial began, Buot's counsel told the court that he was considering changing his defense to lack of intent. The court deferred deciding before trial whether to admit the evidence. At trial, Buot did not object when the State examined his wife and other witnesses about his prior threats to drive into oncoming traffic. In settling final jury instructions, Buot's counsel agreed that the court should instruct the jury that it could consider the evidence for "motive, intent, absence of mistake or accident."
¶5 We ordinarily review evidentiary rulings for abuse of discretion. State v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046, 1054 (1997) . The superior court has discretion to admit other-act evidence offered for a proper purpose under Arizona Rule of Evidence ("Rule") 404(b) if its relevance under Rule 401 is not substantially outweighed by the potential for unfair prejudice under Rule 403 and if the court gives a limiting instruction if requested under Rule 105. Id.Because Buot failed to seek a ruling on this evidence at trial and failed to object when the testimony was offered, we review only for fundamental error. See State v. Henderson, 210 Ariz. 561, 568, ¶ 22, 115 P.3d 601, 608 (2005). Buot accordingly bears the burden of establishing that the court erred, that the error was fundamental and that the error caused him prejudice. Id. at ¶¶ 23, 26.
¶6 The superior court did not err, much less commit fundamental error prejudicing Buot, in allowing evidence of Buot's prior threats to kill himself by driving into oncoming traffic. The indictment charged that Buot committed second-degree murder by causing the victim's death without premeditation, either intentionally or knowingly or recklessly under circumstances manifesting extreme indifference to human life. In his opening statement, Buot's counsel repeatedly referred to the collision as an accident and contended Buot lacked the requisite intent. Buot's prior threats accordingly were highly probative to show his intent, his motive and the absence of accident, all permissible purposes for admitting the evidence. See Ariz. R. Evid. 404(b) (evidence of other crimes, wrongs or acts may be admissible "as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident").
¶7 Buot argues he was unfairly prejudiced by admission of the prior threats because they might have caused the jury to convict "based on his character in general." We do not agree. The court properly instructed the jury that it could not consider Buot's prior threats for the purpose of establishing his character or his propensity to act in conformity therewith, but could consider them only to ...