State v. Carter
| Decision Date | 17 September 2014 |
| Docket Number | No. 2 CA-CR 2013-0313,2 CA-CR 2013-0313 |
| Parties | THE STATE OF ARIZONA, Appellee, v. JAMARI EUGENE CARTER, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Howard Hantaan, Judge
AFFIRMED AS MODIFIED
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Joseph L. Parkhurst, Assistant Attorney General, and
Hoyt S. Hoyt, a student certified pursuant to
Rule 38(d), Ariz. R. Sup. Ct., Tucson
Lori J. Lefferts, Pima County Public Defender
By Erin K. Sutherland, Assistant Public Defender, Tucson
Chief Judge Eckerstrom authored the decision of the Court, in which Judge Espinosa and Judge Vásquez concurred.
¶1 Following a jury trial, appellant Jamari Carter was convicted of pandering and receiving the earnings of a prostitute. The trial court suspended the imposition of sentence and placed Carter on concurrent, four-year terms of probation. On appeal, he challenges the admission of certain evidence, the denial of his request for a mistrial, and the legality of his terms of probation. The state concedes the terms of probation exceed the maximum authorized by law. We modify the disposition but affirm the convictions for the reasons that follow.
¶2 We view the facts in the light most favorable to sustaining Carter's convictions. See State v. Brown, 233 Ariz. 153, ¶ 2, 310 P.3d 29, 32 (App. 2013). On July 5, 2012, an undercover police officer responding to an online escort advertisement met a prostitute, J.G., at a motel room in Tucson. In exchange for her agreement to provide sexual services, the officer gave J.G. $100 in cash that previously had been identified and photocopied. After transferring the money, the officer immediately left the room on a pretext. When other officers entered the room shortly thereafter, they found Catherine Mendez, who is Carter's wife and codefendant, there with J.G. Mendez was holding the $100 in cash along with the cell phone that the undercover officer had called to arrange the encounter.
¶3 Carter was in the motel room next door with his and Mendez's two young children. He initially lied to a police officer about his relationship to Mendez, saying he had met her and J.G. only the day before at a barbeque. J.G.'s effects were in the room with Carter, and he was carrying her credit card in his pocket. He also had two cell phones, one of which contained numerous text messages encouraging prostitution. At trial, Carter testified that this cell phone belonged to Mendez and that she had given it to him so he could transfer photographs of their children from the phone to a computer. The jury convicted Carter of both counts with which he was charged, and this appeal followed the entry of judgment and disposition. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
¶4 Carter first contends the trial court erred in admitting text messages sent and received on the cell phone taken from him at the time of his arrest, arguing there was inadequate evidence he had authored or received those messages. We generally review a trial court's evidentiary rulings for an abuse of discretion. State v. Salamanca, 233 Ariz. 292, ¶ 8, 311 P.3d 1105, 1107-08 (App. 2013). However, Rule 103(a)(1), Ariz. R. Evid., requires that an objection be made with specificity so as "'to allow the adverse party to obviate the objection and to permit the trial court to intelligently rule on the objection and avoid error.'" In re Tiffany O., 217 Ariz. 370, ¶ 5, 174 P.3d 282, 284 (App. 2007), quoting Thompson v. Better-Bilt Aluminum Prods. Co., 187 Ariz. 121, 129, 927 P.2d 781, 789 (App. 1996). If an appellant challenges the admission of evidence on a ground that was not specified in a timely objection below, then we review only for fundamental, prejudicial error. State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683-84 (App. 2008).
¶5 In response to the state's pretrial notice that it intended to introduce evidence from the cell phone taken from Carter, he filed a pretrial motion to preclude its text messages under Rule 901, Ariz. R. Evid., stating they lacked authentication. Carter also characterized the messages as other-act evidence falling within Rule 404(b), Ariz. R. Evid., and he argued there was "no evidenceavailable to suggest who had control or possession of the phone when those messages were being sent and received."
¶6 In support of these general arguments, Carter pointed to evidence tending to show that Mendez had used the phone, including an incoming message that said, "Catherine, call me." He thus maintained there was insufficient evidence the phone "was attributed to . . . Carter." He did not argue that any specific conversations or messages from any particular dates or times should be precluded.
¶7 The trial court indicated there was adequate evidence that Carter had possessed and used the cell phone, and the court therefore denied his pretrial motion. During trial, the court did not specify under which rule or rules of evidence the text messages were admitted. A police officer then read to the jury various text messages that had been sent and received on the phone.
¶8 On appeal, Carter highlights a group of text messages with a woman named Shannon, asserting this correspondence was inadmissible other-act evidence lacking authentication. Assuming arguendo that Carter's general objections to the cell phone messages presented this specific issue to the court for resolution, we find no abuse of discretion in the trial court's evidentiary ruling.
¶9 "To authenticate an item of evidence, the 'proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.'" State v. Forde, 233 Ariz. 543, ¶ 74, 315 P.3d 1200, 1220 (2014), quoting Ariz. R. Evid. 901(a). "The trial court 'does not determine whether the evidence is authentic, but only whether evidence exists from which the jury could reasonably conclude that it is authentic.'" State v. King, 226 Ariz. 253, ¶ 9, 254 P.3d 938, 942 (App. 2011), quoting State v. Lavers, 168 Ariz. 376, 386, 814 P.2d 333, 343 (1991). When making this determination, "a flexible approach is appropriate" that "allow[s] a trial court to consider the unique facts and circumstances in each case - and the purpose for which the evidence is being offered." State v. Haight-Gyuro, 218 Ariz. 356, ¶ 14, 186 P.3d 33, 37 (App. 2008).
¶10 As previously noted, the cell phone that contained the text messages was taken from Carter at the time of his arrest, in July 2012. A conversation with Shannon from the prior week begins with a message received from her, asking, "How are you doing stud?" The discussion then turns to various matters relating to her employment and compensation as a prostitute. After receiving advice and reassurance on the topic, Shannon replies, "Thanks baby." A message sent toward the end of the conversation from the phone taken from Carter provides: In addition to these messages, the same cell phone contained various photographs of Carter, Mendez, and their children.
¶11 Although the totality of the evidence from the cell phone confirms that Mendez had shared the phone with Carter and had sometimes received messages on it, there is no indication that any man other than Carter had used the phone during this exchange of messages. Accordingly, there was evidence from which a reasonable jury could conclude that Carter had been the interlocutor with Shannon. See Rodriguez v. State, 273 P.3d 845, 849 (Nev. 2012) (); Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. Ct. 2011) (same). The messages from this conversation were therefore adequately authenticated and properly admitted under Rule 901.
¶12 For the same reasons, the trial court could have found "by clear and convincing evidence," State v. Terrazas, 189 Ariz. 580, 582, 944 P.2d 1194, 1196 (1997), that the outgoing messages had been authored by Carter, as required for a defendant's "other crimes, wrongs, or acts" to be admitted under Rule 404(b). See Haight-Gyuro, 218 Ariz. 356, n.5, 186 P.3d at 37 n.5 (). The incoming messages sent by Shannon were not "acts" committed by Carter or Mendez, and were thus exempt from Rule 404(b). See Terrazas, 189 Ariz. at 582, 944 P.2d at 1196 (). The rule does not apply to the conduct of third parties. See State v. Machado, 226 Ariz. 281, ¶¶ 13-16, 246 P.3d 632, 634-35 (2011). But even if the incoming messages were subject to a similar, heightened evidentiary standard, the trial court did not abuse its discretion in implicitly finding by clear and convincing evidence that Carter had received these messages. See Haight-Gyuro, 218 Ariz. 356, n.5, 186 P.3d at 37 n.5.1
¶13 Except for the foregoing group of messages, Carter has not articulated why other messages from the phone were erroneously admitted. As he did below, he makes a blanket challenge to the messages from the cell phone on the grounds that he was not shown to be their author or recipient. It is not the role of this court, however, to comprehensively audit a trial court's evidentiary rulings. Rather, it is an appellant's burden to develop and support a legal argument demonstrating that the trial court erred. See ...
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