State v. King
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NOTICE: 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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) Appellee, v. ARABELL MONTREAL KING, Appellant. 1 CA-CR 09-0221 DIVISION ONE FILED: 06-03-2010 PHILIP G. URRY,CLERK BY: GH DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-163607-001 SE The Honorable Barbara L. Spencer, Judge Pro Tempore AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Aaron J. Moskowitz, Assistant Attorney General Attorneys for Appellee James Haas, Public Defender By Karen M. Noble, Deputy Public Defender Attorneys for Appellant Phoenix Phoenix H A L L, Judge ¶1 Arabell Montreal King (defendant) appeals from her convictions and sentences for two counts of forgery, class six felonies. For the reasons that follow, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 We view the facts verdicts in light resolve all most favorable inferences to sustaining the defendant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). and the against The facts relevant to the issue raised on appeal are as follows. ¶3 On August 13, 2008, Chris Martinez asked defendant, his sister-in-law, to deposit a check into his bank account. The check Contrearas (No. 1150) Martinez in was written the amount signed by M.D. (the victim). payable of to $1,925 Chris and Anthony purportedly Defendant drove to a branch of Arizona Federal Credit Union located in Gilbert and deposited the check using the drive-through teller window. Five minutes later, using an A.T.M. at the same branch, defendant withdrew $400 from Martinez account using the A.T.M. card and pin number he provided her. Approximately an hour later, at another Arizona Federal Credit Union branch in Mesa, defendant cashed a check Martinez wrote to her from his checking account in the amount of $1,300. Defendant then met with Martinez and gave him the cash and he gave her $200. ¶4 On August 16, 2008, Martinez again asked defendant to deposit a check into his bank account. written payable to C. Anthony C. The check (No. 1147) was Martinez $1,350 and purportedly signed by the victim. 2 in the amount of Defendant returned to the Gilbert branch of the Arizona Federal Credit Union and deposited the check using the drive-through teller window. A short while later, defendant drove to the Mesa branch of Arizona Federal Credit Union and used Martinez A.T.M. card and pin number to withdraw $320 from the A.T.M. Defendant then drove to a third branch of Arizona Federal Credit Union and cashed a check Martinez wrote to her from his account in the amount of $1,030. Finally, defendant met with Martinez and gave him the cash and he gave her $100. ¶5 On September 2, 2008, the victim checked her Arizona Federal Credit mortgage. Union account online in order to pay her She discovered that her checking account had been depleted and quickly ascertained that two checks she did not issue or authorize had been drawn against her account. The victim went to a branch of the credit union and reported that the two checks had been fraudulently issued. She explained that she knew Martinez, her brother-in-law, but she did not write the checks to him and did not give him permission to possess or write the checks. ¶6 During his investigation of this case, Detective P.V. interviewed defendant defendant 1 defendant of the about her on three Miranda1 occasions. warnings, involvement with Detective the Miranda v. Arizona, 384 U.S. 436 (1966). 3 After checks. advising P.V. asked Defendant acknowledged that she deposited the checks and admitted that she was wrong and she didn t realize that [the victim] would be so upset. Defendant explained that the victim had refused to pay Martinez for work he had done on her vehicle so he took the checks as payment. ¶7 On October 20, 2008, defendant was charged indictment with two counts of forgery, class four felonies. State also alleged that defendant had two historical by The prior felony convictions. ¶8 Defendant pled not guilty and the matter proceeded to trial. The only contested issue was whether defendant knew the checks were forged and possessed them with an intent to defraud the victim. See Ariz. Rev. Stat. (A.R.S.) § 13-2002(A) (2010) (setting forth elements of forgery). Defendant claimed she did not know the checks were forged. ¶9 After a guilty as charged. concurrent, three-day trial, the jury found defendant The trial court sentenced defendant to two presumptive ten-year terms of imprisonment. Defendant appealed, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12120.21(A)(1) (2003), 13-4031, and -4033(A)(1) (2010). DISCUSSION ¶10 the As her sole issue on appeal, defendant contends that trial court erred by admitting 4 evidence, over defense counsel s objection, that she made two A.T.M. withdrawals from Martinez account and cashed two checks Martinez issued from his checking account. Specifically, she claims that this was prejudicial other-act evidence that should have been precluded by Arizona Rules of Evidence 403 and 404(b). I. Rule 404(b) ¶11 Pursuant to Rule 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. review the admission discretion. of other act evidence for an We abuse of State v. Dickens, 187 Ariz. 1, 18, 926 P.2d 468, 485 (1996). ¶12 of Other act evidence is intrinsic when (1) evidence the other inextricably act and evidence intertwined or (2) of the both crime acts charged are part are of a single criminal episode or (3) the other acts were necessary preliminaries to the crime charged. State v. Andriano, 215 Ariz. 497, 502, ¶ 18, 161 P.3d 540, 545 (2007) (quoting Dickens, 187 Ariz. at 18-19 n.7, 926 P.2d at 485-86 n.7 (1996)). When other act evidence is intrinsic to the charged crime, it is not subject to preclusion under Rule 404(b). State v. Nordstrom, 200 Ariz. 229, 248, ¶ 56, 25 P.3d 717, 736 (2001) ( [I]ntrinsic evidence is admissible absent Rule 404(b) analysis. ). 5 ¶13 During opening argument, the prosecutor informed the jury that defendant [n]ot only . . . deposit[ed] [the victim s] checks, but she also made withdrawals on the same date. Defense counsel immediately objected and the trial court heard argument from both parties on the matter outside the presence of the jury. the State Defense counsel requested a mistrial, arguing that was attempting criminal acts. The behavior associated to introduce prosecutor with the evidence responded withdrawals, of that uncharged defendant s namely, going to different branches to make A.T.M. withdrawals and cash checks, provided evidence that defendant knew the victim s checks were forged and that she was an active participant in the scheme. ¶14 that Initially, defendant the made trial two court A.T.M. ruled that withdrawals the from evidence Martinez account was admissible because those withdrawals were part of the same transaction as the deposits of the victim s checks, but evidence that defendant cashed two of Martinez checks was inadmissible Defense because counsel again they were argued clearly that 404(B) evidence of evidence. the A.T.M. withdrawals would raise [a] question in the jury s mind and lead the jurors to believe that defendant had stolen Martinez A.T.M. card. The prosecutor countered that the State was not alleging that the A.T.M. card was stolen or that defendant had committed any criminal acts other than those charged. 6 Instead, the prosecutor argued that Martinez lawfully provided defendant with his card and pin number and the withdrawals were part of their overarching forgery scheme. The trial court then recessed and took the matter under advisement. ¶15 After a brief recess, the trial court ruled that the A.T.M. withdrawals were part of the same transaction and were evidence of defendant s intent to defraud the victim. The trial the court then reversed its earlier ruling regarding checks drawn against Martinez account and found that they were also admissible because defendant s cashing of those checks was part of a single criminal episode. ¶16 Following the trial court s evidentiary ruling, the State resumed its opening argument and again informed the jury that defendant made withdrawals from Martinez account, but specifically stated that Martinez had given her permission to do so and that she had lawful possession of his A.T.M. card and pin number. When the State called Detective P.V. to testify about his questioning of defendant, he stated that defendant legally possessed and withdrawals. used Martinez A.T.M. card to make the Detective P.V. also testified that the two checks defendant cashed against Martinez account were legal checks. On cross-examination, defense counsel also elicited testimony from the detective that the checks defendant Martinez account were lawfully deposited. 7 cashed against ¶17 Defendant contends that the trial court abused its discretion by finding her A.T.M. and check-cashing withdrawals from Martinez account were intrinsic evidence of the charged crimes and therefore not subject to Rule 404(b) preclusion. We disagree. ¶18 Defendant s A.T.M. and check-cashing withdrawals from Martinez account were not discrete offenses, identical to but occurring at different times than the ones charged, which we have held are not intrinsic. State v. Garcia, 200 Ariz. 471, 477, ¶ 33, 28 P.3d 327, 333 (App. 2001). Rather, these events occurred within hours of defendant s deposits of the victim s checks and the withdrawals provided both Martinez and defendant an immediate monetary benefit from the forgeries. Indeed, with regard the to check number 1147, defendant amount deposited with the victim s check. withdrew precise Thus, the withdrawals were closely related to the charged crimes and, as the trial court found, part of a single criminal episode and therefore intrinsic evidence of the underlying forgeries. II. Rule 403 ¶19 Evidence having any tendency to make the existence of any fact that is of consequence . . . more probable or less probable is relevant and generally admissible. 401, 402. Ariz. R. Evid. Pursuant to Rule 403, however, relevant evidence may be excluded if its probative value is substantially outweighed 8 by the danger of unfair prejudice, confusion of the issues, or misleading the jury. To establish that the evidence was unfairly prejudicial, [defendant] had to show that it suggested a decision on an improper basis, such as emotion, sympathy, or horror. Higgins v. Assmann Electronics, Inc., 217 Ariz. 289, 299, ¶ 39, 173 P.3d 453, 463 (App. 2007) (internal quotation omitted). We review a trial court s ruling on prejudice for an abuse of discretion [b]ecause the trial court is best situated to conduct the Rule 403 balance. State v. Canez, 202 Ariz. 133, 153, ¶ 61, 42 P.3d 564, 584 (2002). ¶20 The only disputed issue at trial was whether defendant knew the checks were forged and possessed them with the intent to defraud the victim. Evidence of defendant s unusual behavior after she made the deposits, namely, making separate withdrawals at multiple credit union branches, in combination with her receipt of $300 from Martinez, was highly relevant and probative in that it undermined defendant s claim knowledge that the checks were forged. that she had no This evidence did not confuse the issues or mislead the jury; rather, it was directly related to the defense and the crimes charged. Thus, although the evidence substantially undermined defendant s claims, it was 9 not unduly prejudicial and the trial court did not abuse its discretion by admitting it.2 CONCLUSION ¶21 Defendant s convictions and sentences are affirmed. /s/ PHILIP HALL, Judge CONCURRING: /s/ DIANE M. JOHNSEN, Presiding Judge /s/ PATRICK IRVINE, Judge 2 Defendant argues that the trial court failed to make an express Rule 403 finding on the record. Although a trial court conducting a Rule 403 analysis should explain its weighing process on the record, see Shotwell v. Donahoe, 207 Ariz. 287, 295-96, ¶ 33, 85 P.3d 1045, 1053-54 (2004), we decline to find reversible error on this basis, see Higgins, 217 Ariz. at 29899, ¶ 37, 173 P.3d at 462-63. 10
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