from the Superior Court in Cochise County Nos. CR201400035
and CR201500869 (Consolidated) The Honorable John F.
Kelliher, Jr., Judge
Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief
Counsel By David A. Sullivan, Assistant Attorney General,
Tucson Counsel for Appellee
and Brereton, PLC, Tucson By Ivan S. Abrams and Nicholas
Brereton Counsel for Appellant
Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Staring and Judge Eppich concurred.
ECKERSTROM, Chief Judge
Alleging numerous errors, Wendy Todd appeals from her
convictions and sentences for six counts stemming from an
incident in which she fired a gun at a home. For the reasons
that follow, we affirm.
and Procedural History
"We view the facts in the light most favorable to
sustaining the convictions." State v. Robles,
213 Ariz. 268, ¶ 2 (App. 2006). In December 2013, Todd
became estranged from her friend, F.O., following a dispute
over a "dolly and pickaxe" she had loaned him. In
January 2014, F.O. telephoned Todd and asked her to come to
his home to talk. During the visit, the two struggled over a
gun that Todd had brought with her and, at another point,
Todd broke the glass door on F.O.'s microwave by punching
it. F.O. asked Todd to leave, and less than one minute after
she left, a bullet penetrated his wall, shattering the glass
of a picture frame. When deputies reviewed video footage
captured by surveillance cameras that F.O. had installed on
his property, they saw Todd had fired two shots as she rode
by on a motorcycle.
After leaving F.O.'s house, Todd went to the home of
another friend, M.O., where deputies found and arrested her.
During the arrest, Todd became argumentative, began hitting
the partition and window of a patrol vehicle, and spit in a
deputy sheriff's face. Upon release after her arrest,
Todd admitted to M.O. that she had fired a gun in the air as
she drove by F.O.'s house.
Following trial, the jury found Todd guilty of two counts
each of knowingly discharging a firearm at a residential
structure, intentionally discharging a firearm from a motor
vehicle at an occupied structure, and aggravated
assault. The trial court sentenced Todd to a
combination of consecutive and concurrent prison terms
totaling 35.25 years. Todd appealed; we have jurisdiction.
See A.R.S. §§ 13-4031, 13-4033(A)(1).
Todd first complains the trial court erred by precluding
certain impeachment evidence, arguing the credibility of F.O.
and M.O. was central to the case. Specifically, she complains
the court should have allowed evidence of M.O.'s
"15-year-old conviction, " should not have
sanitized F.O.'s convictions, and should have allowed
evidence of pending and potential charges against both men.
We review a trial court's evidentiary rulings for an
abuse of discretion, State v. Uriarte, 194 Ariz.
275, ¶ 21 (App. 1998), including the admissibility of
prior convictions, State v. Beasley, 205 Ariz. 334,
¶ 19 (App. 2003).
Todd argues the trial court should have allowed her to
impeach M.O.'s testimony with evidence of his
then-fifteen-year-old conviction for trafficking
methamphetamine. Rule 609(a), Ariz. R. Evid., permits
litigants to attack a witness's character for
truthfulness with evidence of a criminal conviction. However,
"if more than 10 years have passed since the
witness's conviction or release from confinement for it,
whichever is later, " admissibility is more narrowly
restricted. Ariz. R. Evid. 609(b). Such evidence is
admissible only if its probative value "substantially
outweighs its prejudicial effect, " admission is
"supported by specific facts and circumstances, "
and the proponent gives the adverse party reasonable written
notice. Id. These requirements are "consistent
with the notion that a criminal conviction's probative
value regarding a witness' credibility declines as it
becomes more remote in time." Joseph M. Livermore et
al., Arizona Law of Evidence § 609:2, at 359
(4th ed. 2008). Consequently, "Rule 609(b) permits the
admission of remote prior convictions 'very rarely and
only in exceptional circumstances.'" State v.
Green, 200 Ariz. 496, ¶ 20 (2001), quoting
S. Rep. No. 93-1277, at 15.
Here, evidence of M.O.'s fifteen-year-old conviction does
not meet the elevated requirements of Rule 609(b). First, the
offense was of low probative value because it occurred over
ten years before M.O. testified and the record does not
contain specific facts or circumstances indicating the
probative value of that conviction substantially outweighs
its prejudicial effect. See Ariz. R. Evid.
609(b)(1); Green,200 Ariz. 496, ¶¶ 8-9.
Also, the ...