THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

Not for Publication Rule 111, Rules of the Supreme Court

MEMORANDUM DECISION

ESPINOSA, Judge.

¶1 After a jury trial, Stephen Thomas was found guilty of resisting arrest and sentenced to 3.75 years' imprisonment. On appeal, he argues the trial court erred by admitting evidence of a subsequent arrest and giving the jury a related flight instruction, precluding certain testimony as hearsay, and refusing to give the jury a Willits instruction.1 For the following reasons, we affirm.

Factual Background and Procedural History

¶2 We view the facts in a light most favorable to upholding the defendant's conviction. State v. Mitchell, 204 Ariz. 216, ¶ 3, 62 P.3d 616, 617 (App. 2003). On September 7, 2008, Pinal County Sheriff's Deputy Richerson was driving in his patrol car when he noticed a small, white sports-utility vehicle (SUV) approaching him in his lane of traffic. The SUV turned into a gas station, and the deputy followed, pulling up behind it and activating his emergency lights. The deputy approached the SUV and spoke with the driver, identified as Thomas, and his girlfriend Sherry S. The deputy took Thomas's driver's license and discovered an outstanding warrant for him.

¶3 Another deputy, Lopez, arrived, and both he and Richerson approached Thomas and told him he was being arrested on the warrant. Thomas got out of the car and said the warrant was "no good," the deputies were not going to handcuff him, and he was not going to jail. Richerson reached out to take hold of Thomas's arm, but he pulled away and backed up between the SUV and the open driver's door, balled his fists, and took a defensive fighting stance, again insisting he was not going to jail.

¶4 Richerson drew his Taser, and both deputies repeatedly commanded Thomas to turn around and put his hands behind his back, but Thomas did not comply. Richerson then activated the weapon and struck Thomas with a five-second Taser cycle. Thomas fell to the ground, yelled that he would "kick their f'ing asses," and attempted to get up. He continued to ignore the deputies' commands to stay down and put his hands behind his back, and Richerson commenced another five-second Taser cycle. Because Lopez still was unable to handcuff Thomas after the second cycle, Richerson applied a third cycle that continued until Lopez could control one of Thomas's arms. Lopez was then able to handcuff Thomas.

¶5 After taking Thomas into custody, the deputies learned that the outstanding warrant was non-extraditable and consequently, they had initially lacked the authority to arrest him. Thomas was nevertheless charged with resisting arrest, and he subsequently pleaded guilty to the charge in 2009. He failed to appear for sentencing, however, and a bench warrant was issued for his arrest.

¶6 In September 2011, nearly three years after Thomas's original arrest, Cochise County Sheriff's Deputy McMahan stopped him near Huachuca City after observing that the pickup truck he was driving had a cracked windshield. When McMahan asked for his license, Thomas stated he did not have it with him and said his name was "David Lacy Thomas." McMahan noticed a company identification card hanging from the rearview mirror that bore the name "Clark Thomas" and a picture of Thomas. The deputy ran a check on both names. When he returned to the truck, he saw that the identification card had been removed. McMahan asked Thomas what had happened to the card, and Thomas, after first denying its existence, admitted he had misrepresented his identity because there was a warrant for his arrest and he produced his driver license. Thomas was cooperative and did not resist when McMahan placed him under arrest.

¶7 At a subsequent hearing on the Pinal County charges, Thomas initially requested that the trial court accept his 2009 plea agreement and place him on unsupervised probation. After the court explained it could disregard the stipulated sentence and instead impose any lawful sentence because Thomas had failed to appear for sentencing, it granted Thomas's request to reject the agreement and allow the matter to proceed to trial.

¶8 At trial, the court precluded as hearsay Sherry's testimony that Richerson had told another deputy, shortly after arresting Thomas in 2008, that the arrest was not "righteous." The court admitted evidence of Thomas's 2011 attempt to conceal his identity and instructed the jury on the limited use of such evidence. The court also declined to give the jury a Willits instruction based on the deputies' failure to obtain video surveillance recordings of the incident that were alleged to have been made at the gas station. The jury found Thomas guilty of resisting arrest, and the court sentenced him as described above. We have jurisdiction over this appeal pursuant to A.R.S. §§ 12-120.21, 13-4031, and 13-4033.

Discussion

Evidence of the 2011 Arrest and Flight Instruction

¶9 Thomas contends the trial court improperly admitted evidence of his 2011 arrest in Cochise County and erred by instructing the jury on flight and concealment. He argues, as he did below, that evidence of that arrest was irrelevant to the issue of whether he had resisted arrest in 2008 and that the state sought to introduce the evidence for the improper purpose of demonstrating criminal predisposition, in violation of Rule 404(b), Ariz. R. Evid. We review for an abuse of discretion a trial court's decision to admit other-acts evidence. State v. Villalobos, 225 Ariz. 74, ¶ 18, 235 P.3d 227, 233 (2010).

¶10 Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action." Ariz. R. Evid. 401. Here, the trial court allowed the state to call Deputy McMahan to testify to "[t]he fact that he made the stop, that Mr. Thomas used a false name . . . and then later admitted that he was Mr. Thomas, and he was aware of the existence of the warrant." Thomas contends the circumstances of that stop were irrelevant because he already had admitted guilt in 2008 and thus was not trying to avoid prosecution.

¶11 The state responds that evidence of other acts is admissible for any relevant purpose except to show character or action in conformity therewith, citing State v. Ramirez Enriquez, 153 Ariz. 431, 737 P.2d 407 (App. 1987), and that rather than showing a disposition toward criminality, the circumstances surrounding Thomas's 2011 arrest showed his knowledge and consciousness of guilt, a permissible purpose under Rule 404(b), Ariz. R. Evid. See also State v. Conroy, 131 Ariz. 528, 532, 642 P.2d 873, 877 (App. 1982) (concealment of identity permits inference of guilty knowledge and admissible as evidence supporting guilt).

¶12 The relevance of Thomas's 2011 arrest strikes us as marginal at best, but we need not resolve the issue because even assuming it was erroneously admitted, we conclude the error was harmless. Such is the case if we can say beyond a reasonable doubt that the error did not contribute to or affect the verdict. State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993). "The inquiry on review `is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.'" State v. Eastlack, 180 Ariz. 243, 251, 883 P.2d 999, 1007 (1994), quoting Sullivan v. Louisiana, 508 U.S. 275, 278 (1993).

¶13 Evidence of the relatively uneventful 2011 arrest was unlikely to have influenced the jury in finding that Thomas resisted arrest in 2008. McMahan testified that Thomas had told him the reason he lied was because he knew "he had a warrant out for him," which the deputy confirmed was for failure to appear, and Thomas said he did not want his company truck impounded. Since Thomas did not testify at trial and place his credibility in issue, at most the evidence indicated a desire to avoid impoundment of the truck and repercussions for failing to appear.

¶14 The evidence of Thomas's conduct during the 2008 arrest came from the three individuals present at the scene with Thomas: the two arresting deputies and Thomas's girlfriend, Sherry. The deputies, Richerson and Lopez, testified independently and with corroborative detail about Thomas's defiant conduct when they had attempted to arrest him in 2008. In contrast, Sherry testified that Thomas had gotten out of the car, cooperatively holding his hands up, but the deputy had nevertheless immediately used his Taser. Thomas's theory of defense was that the officers had conspired to falsify his resistance in order to justify their use of excessive force during an unauthorized arrest. As noted above, the evidence of Thomas's attempt to mislead the arresting officer in 2011 would have gone to his credibility had he testified about the 2008 events. See State v. Greer, 17 Ariz.App. 162, 164, 496 P.2d 152, 154 (App. 1972) ("`When one takes the stand in his own defense he of course puts his credibility as a witness in issue.'"), quoting Fagundes v. United States, 340 F.2d 673, 677 (1963). But we conclude beyond a reasonable doubt that, under the specific evidence presented here, it did not impact the jury's determination of the credibility of the other eyewitnesses. Cf. Carter v. State, 722 So.2d 1258, 1262 (Miss. 1998) (erroneous admission of evidence of prior "shoot-out" harmless in view of eyewitness testimony, despite defendant's denial of eyewitness accounts).

¶15 Nor can we agree with Thomas's assertion that the evidence of his 2011 arrest was "excessively prejudicial" and "tend[ed] to suggest that the jury should reach its decision on an improper basis, such as emotion, sympathy or horror," citing State v. Van Adams, 194 Ariz. 408, 984 P.2d 16 (1999). Deputy McMahan testified that he had stopped Thomas because of a "severely cracked windshield," and he did not suggest Thomas had been engaged in flight or had at any point tried to flee. Thomas's attempted concealment was relatively innocuous given his explanation, and we cannot say the trial court should have found this evidence unduly prejudicial. Moreover, even if the court's flight instruction was erroneously given, it nevertheless conveyed that the jury could consider Thomas's reasons for hiding or concealing evidence, which, as noted above, were expressly presented, and that such conduct did not prove guilt.2 Accordingly, under the particular circumstances of this case, we conclude beyond a reasonable doubt that evidence of the 2011 arrest and the flight instruction provided to the jury did not affect the verdict.

Preclusion of Hearsay Testimony

¶16 Thomas next argues the trial court improperly precluded as hearsay Sherry's testimony about Richerson and Lopez's discussion regarding the validity of Thomas's Pinal County arrest. He argues the testimony should have been admitted as a present sense impression or statement against interest. Because this argument is raised for the first time on appeal, we review only for fundamental error. See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005).

¶17 Hearsay is a statement "the declarant does not make while testifying at the current trial or hearing . . . offer[ed] in evidence to prove the truth of the matter asserted in the statement," Ariz. R. Evid. 801(c), and is inadmissible unless an exception to the rule applies, see Ariz. R. Evid. 802, 803. The "present sense impression" exception applies if the statement "describ[es] or explain[s] an event or condition, made while or immediately after the declarant perceived it." Ariz. R. Evid. 803(1). For this exception to apply, the statement must meet three requirements: it "must describe an event or condition, that was perceived by the declarant, and . . . must be made immediately after the event." State v. Tucker, 205 Ariz. 157, ¶ 43, 68 P.3d 110, 119 (2003).

¶18 Thomas proffered evidence that shortly after his 2008 arrest, Sherry had heard Richerson tell another deputy, "[T]his isn't a righteous arrest." The proffered testimony appears to meet the Tucker test; we therefore agree with Thomas that it would have qualified as a present sense impression. However, this does not necessarily provide grounds for reversal because the evidence was properly excluded as cumulative. Under Rule 403, Ariz. R. Evid., evidence may be excluded if its probative value is substantially outweighed by a danger of "needlessly presenting cumulative evidence." Here, although the court did not allow Sherry to testify that she overheard the deputies stating that the arrest had not been initially authorized, that testimony would have been repetitive of Deputy Richerson's own testimony at trial to the same effect.3 We therefore cannot say Sherry's testimony was improperly excluded. See State v. Boteo-Flores, 230 Ariz. 551, ¶ 7, 288 P.3d 111, 113 (App. 2012) ("We are required to affirm a trial court's ruling if legally correct for any reason. . . ."). Accordingly, we find no fundamental error.4 Our resolution of this issue makes it unnecessary to address Thomas's statement-against-interest argument.

Willits Instruction

¶19 Thomas lastly argues the trial court improperly denied his request to give the jury a Willits instruction based on the state's failure to obtain and preserve video surveillance footage recorded at the gas station, which Thomas alleges depicted his Pinal County arrest. We again review the trial court's decision for an abuse of discretion. See State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995).

¶20 A Willits instruction informs the jury that if it finds the state "has lost, destroyed or failed to preserve material evidence that might aid the defendant and they find the explanation for the loss inadequate, they may draw an inference that th[e] evidence would have been unfavorable to the state." State v. Youngblood, 173 Ariz. 502, 506, 844 P.2d 1152, 1156 (1993), citing Willits, 96 Ariz. 184, 393 P.2d 274. "A defendant is entitled to a Willits instruction only upon proof that (1) the state failed to preserve material evidence that was accessible and might have tended to exonerate him, and (2) there was resulting prejudice." Bolton, 182 Ariz. at 308-09, 896 P.2d at 848-49. Such an instruction is inappropriate, however, "if the defendant fails to demonstrate that the absent evidence would have exonerated him." State v. Broughton, 156 Ariz. 394, 399, 752 P.2d 483, 488 (1988). Mere speculation that the evidence could potentially exonerate a defendant does not mandate a Willits instruction. See State v. Dunlap, 187 Ariz. 441, 464, 930 P.2d 518, 541 (App. 1996). And the instruction "is not given merely because a more exhaustive investigation could have been made." State v. Murray, 184 Ariz. 9, 33, 906 P.2d 542, 566 (1995).

¶21 Gordan G., an employee of the gas station, was the only witness to testify about the video. He described the station's video surveillance system, noting that cameras were focused on the gas pumps but had no audio. According to him, the system recorded a vehicle being blocked in place near the gas pumps by police cars, after which the driver got out, showed his open hands, walked around the front of the vehicle, and dropped to the ground where he was apparently taken into custody. Gordan stated he recognized some of the individuals in the video as law-enforcement officers and he was unaware of any other event in which a Taser had been used at the station. He also said that two officers later came to the gas station and asked to view the video, but he was unsure whether they were Pinal County Sheriff's deputies, or whether they had taken the video with them.

¶22 Because of the generalized nature of Gordan's testimony about the video, we cannot say the trial court abused its discretion by declining to give a Willits instruction. Gordan acknowledged that due to the poor quality of the footage, he could not identify the persons in the video, including the arrestee, nor could he be sure whether the reason the suspect in the video dropped to the ground was because he had been struck by a Taser. Gordan also informed the court that he did not remember the exact day the video had been recorded, and thus he could not establish that the video he had watched depicted the arrest at issue here. Finally, Gordan did not describe the suspect standing between his vehicle and the vehicle door, as both deputies and Sherry stated Thomas had done, but instead said that the suspect had walked around the front of the vehicle and dropped to the ground. Accordingly, a Willits instruction properly was refused.

Disposition

¶23 For all of the foregoing reasons, Thomas's conviction and sentence are affirmed.

VIRGINIA C. KELLY, Presiding Judge, PETER J. ECKERSTROM, Judge, Concurring.