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State v. McCormick

Court of Appeals of Arizona, Second Division, Department B

September 11, 2013

THE STATE OF ARIZONA, Appellee,
v.
JESUS O. MCCORMICK, Appellant.

Not for Publication Rule 111, Rules of the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20100274002 Honorable Howard Fell, Judge Pro Tempore

Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Joseph L. Parkhurst Tucson Attorneys for Appellee.

Law Offices of Cornelia Wallis Honchar, P.C. By Cornelia Wallis Honchar Tucson Attorney for Appellant.

MEMORANDUM DECISION

PHILIP G. ESPINOSA, Judge

¶1 Following a jury trial, appellant Jesus McCormick was convicted of possession of a deadly weapon by a prohibited possessor.[1] The trial court sentenced him to a presumptive ten-year prison term.[2] On appeal, McCormick argues fundamental error occurred when the court admitted a photograph showing him holding what appears to be a handgun, and asks that we vacate his conviction for prohibited possession and remand for a new trial. For the following reasons, we affirm.

¶2 We review the facts in the light most favorable to sustaining the jury's verdict. State v. Miles, 211 Ariz. 475, ¶ 2, 123 P.3d 669, 670 (App. 2005). A search warrant served on a Tucson residence ("the Iowa house") in March 2008 yielded various items, including two "Ruger" handguns along with "ammunition, high-capacity magazines with ammunition in them, " and documents specifically belonging to McCormick, described as court and medical paperwork, and a police citation or ticket, as well as documents belonging to other individuals that were not of a "personal" nature like the ones belonging to McCormick. "[E]ight or ten" people, including McCormick, were at the Iowa house when the warrant was executed; all of the items related to McCormick, including the handguns, were found in one of the bedrooms labeled "Room F."[3] The police were unable to find any fingerprints on the guns found in Room F.

¶3 Officers also found two photographs in Room F (the "photographs"): one depicted McCormick seated in a vehicle, and a second showed him wearing the same clothing, apparently still seated in the vehicle, while holding what appears to be a handgun. During a police interview at the Iowa house, [4] McCormick indicated the first photograph of the individual in the car was him, but "initially stated [the photograph with the gun] was not him." When the interviewing detective "pointed out" to McCormick that the individual in the second photograph, which appeared to have been taken at the same time, "was obviously him, " McCormick responded, "Dude, that was three or four months ago."

¶4 One detective testified that the two handguns found in Room F were Ruger handguns and looked like the "same kind of gun" as the one McCormick was holding in the photograph. The detective also testified that he is familiar with replica or "Airsoft" guns, and that it can be difficult to determine from a photograph whether a gun is a replica or real.

¶5 Before the trial started, McCormick filed a motion in limine arguing, inter alia, that the photograph of him "holding [a] weapon or simulated weapon" should be precluded because

it is unclear whether it is a real weapon; it is unclear whether it is the same type of weapon as that found in room "F"; there will be no evidence that it is the same weapon as in room "F"; and balancing of probative value versus undue prejudice weighs in favor of preclusion.

Determining the photograph was relevant and "that the probative value outweighs the damage of unfair prejudice, " the trial court denied McCormick's motion. The court further noted that "I guess both counsel agree" the gun in the photograph "looks similar" to the one found in Room F.

¶6 At trial, a detective read a portion of the transcript from a recorded telephone conversation between McCormick and his mother which took place while McCormick was in jail awaiting trial in this matter. McCormick's portion of the conversation follows:

See, and with me they have nothing. All they have is a photo of—that I had a gun, but I did not live in that house, you see? That's—that is going to be the—will be your testimony. I don't know if you will say he lived with me and he would only go visit his brother or . . . that he lived with . . . his girlfriend. . . . I don't know if you want to say that I lived with you or that I lived with my girlfriend. You tell me what you want to say. . . . Think about it, and let me know on . . . Tuesday when you come .... You know what, you tell them ...

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