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State v. Todd

Court of Appeals of Arizona, Second Division

April 9, 2018

The State of Arizona, Appellee,
v.
Wendy Gail Todd, Appellant.

          Appeal from the Superior Court in Cochise County Nos. CR201400035 and CR201500869 (Consolidated) The Honorable John F. Kelliher, Jr., Judge

          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By David A. Sullivan, Assistant Attorney General, Tucson Counsel for Appellee

          Abrams and Brereton, PLC, Tucson By Ivan S. Abrams and Nicholas Brereton Counsel for Appellant

          Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Staring and Judge Eppich concurred.

          OPINION

          ECKERSTROM, Chief Judge

         ¶1 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.

         Factual and Procedural History

         ¶2 "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.

         ¶3 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.

         ¶4 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.[1] 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).

         Impeachment Evidence

         ¶5 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).

         Fifteen-Year-Old Conviction

         ¶6 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.

         ¶7 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, ΒΆΒΆ 8-9. Also, the ...


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