Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Gila County No. CR201100290 The Honorable Peter J. Cahill, Judge
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Section Chief Counsel, Phoenix and Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee
Emily Danies, Tucson Counsel for Appellant
Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Howard and Judge Miller concurred.
VÁSQUEZ, Presiding Judge:
¶1 After a jury trial, Sherri Dashney was convicted of one count of fraudulent schemes and artifices, one count of theft, and two counts of forgery. The trial court sentenced her to enhanced, aggravated, concurrent prison terms, the longest of which was nineteen years. On appeal, Dashney argues the court erred by denying her motion to preclude a witness from testifying about Dashney's plea agreement, restitution, and sentencing in a prior case. For the reasons stated below, we affirm.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to sustaining [Dashney's] convictions." State v. Brown, 233 Ariz. 153, ¶ 2, 310 P.3d 29, 32 (App. 2013). In November 2010, pursuant to a plea agreement, Dashney was convicted in four different cause numbers of two counts of theft and two counts of fraudulent schemes and artifices. The agreement provided: "At or before the time of sentencing, [Dashney] must pay at least $5, 000 to the Clerk of the Superior Court to be applied toward the restitution owed." Sentencing was set for February 14, 2011.
¶3 At that time, Dashney was self-employed, cleaning and maintaining over one-hundred houses that were in foreclosure, including a residence previously occupied by B.B. and another one owned by M.H. On February 11, Dashney deposited a $3, 000 check purportedly from B.B. into her bank account. On February 14, the morning of the sentencing, Dashney deposited a $2, 000 check purportedly from M.H. into her account. Dashney then obtained a $5, 000 cashier's check drawing on funds from her bank account. She used the cashier's check to pay $5, 000 toward the restitution.
¶4 Several days later, the checks were returned to Dashney's bank because B.B.'s account had previously been closed and M.H.'s check had an invalid routing number. The bank initiated a fraud investigation. According to B.B., he did not know Dashney and did not write her a check, although he admitted he may have left some checks at his prior residence. The check bearing M.H.'s signature was dated January 25, 2011, but M.H. had died in August 2008. Based on this evidence, a grand jury indicted Dashney with one count of fraudulent schemes and artifices, one count of theft, and two counts of forgery under the cause number in this case.
¶5 Before trial, Dashney filed a motion to preclude the testimony of Cathy Joerns, a probation officer who had interviewed Dashney before her sentencing in the prior case concerning, among other things, her ability to pay the restitution. According to Dashney, Joerns was "expected to testify . . . about [her] prior criminal case, employment, [and] income, " as well as the $5, 000 cashier's check tendered for the payment of restitution. Dashney argued that Joerns's testimony would be irrelevant and prejudicial. After a hearing, the trial court denied Dashney's motion.
¶6 Dashney was convicted as charged and sentenced as described above. This timely appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21 ...