Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Yavapai County No. P1300CR201300547 The Honorable Tina R. Ainley, Judge
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee
Thomas K. Kelly, P.C., Prescott By Thomas K. Kelly Counsel for Appellant
Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Andrew W. Gould joined.
¶1 Appellant Robert Duane Barker, II, appeals from his convictions and sentences for one count of Assault Per Domestic Violence, a class 2 misdemeanor, and one count of Disorderly Conduct Per Domestic Violence, a class 1 misdemeanor. On appeal, Barker argues the superior court should not have admitted a recording of a prior consistent statement of the victim - his wife ("KB") - because he had only attempted to impeach her testimony by pointing out inconsistencies and exaggerations in her prior statements to police and in her trial testimony. See Ariz. R. Evid. 801(d)(1)(B). As we explain, the court did not abuse its discretion in admitting the recording. Accordingly, we affirm Barker's convictions and sentences.
¶2 During the State's case-in-chief, KB testified that on November 7, 2012, Barker attacked her without provocation. During cross-examination, Barker attempted to impeach KB's credibility by suggesting she had lied to police from the beginning of their investigation and throughout, pointing out inconsistencies in what she had told police about the altercation and her trial testimony. Barker thus highlighted that, after meeting with her divorce attorneys "just several days after November 7, 2012, " she had added "operative terms" to her original statement to police. Barker cross-examined KB further as follows:
[Counsel:] [KB], would you agree with me that someone could make up a story to gain an advantage in a pending divorce case?
[Counsel:] If they made up a story, it may entitle them to remain in the [marital] residence until a judge made a final decision as to what
[sic] was going to occupy that house in the divorce. ...