State v. King

• Decision Date: 14 January 2011
• Docket Number: No. 2 CA-CR 2009-0311.,2 CA-CR 2009-0311.
• Citation: 226 Ariz. 253,245 P.3d 938
• Parties: The STATE of Arizona, Appellee, v. Scott Allen KING, Appellant.
• Court: Arizona Court of Appeals

245 P.3d 938 226 Ariz. 253 The STATE of Arizona, Appellee, v. Scott Allen KING, Appellant. No. 2 CA-CR 2009-0311. Court of Appeals of Arizona, Division 2, Department B. Jan. 14, 2011.

Terry Goddard, Arizona Attorney General By Kent E. Cattani and Robert A. Walsh, Phoenix, Attorneys for Appellee.

Emily L. Danies, Tucson, Attorney for Appellant.

OPINION

VÁSQUEZ, Presiding Judge.

¶ 1 Appellant Scott King was convicted after a jury trial of negligent homicide, a dangerous-nature offense. The trial court sentenced him to an enhanced, mitigated, four-year term of imprisonment.¹ On appeal, King argues the court erred in 1) admitting in-court and videotaped demonstration evidence; 2) instructing the jury on accomplice liability; and 3) denying his motion to dismiss the dangerous-nature allegation. For the reasons stated below, we affirm King's conviction but vacate the sentence and remand for resentencing.

Factual and Procedural Background

¶ 2 We view the facts in the light most favorable to upholding the jury's verdict. See State v. Miles, 211 Ariz. 475, ¶ 23, 123 P.3d 669, 675 (App.2005). King was walking to a restaurant with his brother Adam, his cousin Michael M., and his half-brother Matt F. when they saw the victim, Steve G., and three other homeless men panhandling under the Interstate 10 and Craycroft Road overpass. Adam walked over to the men and told them they had to leave. Words were exchanged and Adam kicked Steve in his left side. When Steve attempted to defend himself, Adam responded by punching him in the face four or five times. King then ran to Steve and kicked him twice in the left side. After the altercation, King and the others went to the restaurant.

¶ 3 Shortly thereafter, a police officer responded to a telephone call about the incident. Steve told the officer he was in pain and continuously held his left side; he walked with a limp and had to lean against the officer's car to support himself. The officer then spoke with King and the othersat the restaurant and told them the victim did not want to press charges.

¶ 4 Three days later, Steve was found dead outside his tent. An autopsy revealed that the cause of his death was blunt force trauma. The bottom five ribs on his left side had been fractured, and his spleen had been ruptured by at least one of the ribs, which caused his abdominal cavity to fill with blood. During a videotaped police interview, Michael M. was asked to describe and then demonstrate the force King had used when he kicked the victim, using a chair to represent Steve's body.

¶ 5 King and his brother Adam were charged by indictment with second-degree murder, a class one felony. The state also gave notice of its intent to seek lesser-included instructions and verdict forms on manslaughter and negligent homicide, alleging the offenses were of a dangerous nature. A jury found King guilty of negligent homicide and found the offense to be of a dangerous nature. The trial court sentenced him as described above. This timely appeal followed.

Discussion

I. Courtroom and Video-Taped Demonstrations

¶ 6 King first argues the trial court erred in "allowing a courtroom demonstration of [the] purported force used by [King] with a witness kicking a chair." At trial, Michael M. testified about the altercation between King and Steve. After Michael acknowledged he had told the detective that King had kicked Steve "really hard," he was asked to use a chair to demonstrate for the jury the force used by King when he had kicked Steve. The state then played the videotaped demonstration from Michael's police interview, without sound. King objected to both demonstrations, asserting it was "impossible for the witness to replicate" the force "used on th[e] day in question." The court overruled the objection, stating that the demonstration was "fair examination" of an eyewitness to the incident and that King would have the opportunity to cross-examine Michael and impeach the demonstration evidence.

¶ 7 On appeal, King contends there was insufficient foundation for the courtroom demonstration,² and the "videotape statement was impermissible hearsay." ³ We review a trial court's evidentiary decisions for an abuse of discretion. State v. Dann, 220 Ariz. 351, ¶ 122, 207 P.3d 604, 626 (2009). In general, "demonstrative evidence is relevant if it illustrates or explains testimony and will be admitted if its probative value outweighs the danger of unfair prejudice." State v. Luzanilla, 176 Ariz. 397, 405, 861 P.2d 682, 690 (App.1993), vacated in part on other grounds by 179 Ariz. 391, 880 P.2d 611 (1994). "[T]he conditions of a demonstration must be similar to those being duplicated in order for the demonstration to be admissible." State v. Mincey, 130 Ariz. 389, 408, 636 P.2d 637, 656 (1981). "However, when the experiment is not a purported replication but is more in the nature of a demonstration, it is appropriately admitted if it fairly illustrates a disputed trait or characteristic." Volz v. Coleman Co., 155 Ariz. 563, 565, 748 P.2d 1187, 1189 (App.1986), reversed in part on other grounds by 155 Ariz. 567, 748 P.2d 1191 (1987). "This is a determination which, absent abuse, is left to the discretion of thetrial court." Mincey, 130 Ariz. at 408, 636 P.2d at 656.

¶ 8 King contends the trial court erred in admitting the courtroom and videotaped demonstrations because they were not properly authenticated pursuant to Rule 901, Ariz. R. Evid. He asserts that "kicking an empty chair in a courtroom, or kicking an empty chair in a police station where it hit the wall, does not authentically demonstrate either what [Michael M.] saw [King] do, nor the 'force' of a kick [Michael M.] may have seen [King] inflict on [Steve]." King also asserts the demonstration did not accurately show "the place on [Steve's] body where the kick may have landed."

¶ 9 Rule 901(a) provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." 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. Lavers, 168 Ariz. 376, 386, 814 P.2d 333, 343 (1991). "[A] flexible approach is appropriate, allowing a trial court to consider the unique facts and circumstances in each case—and the purpose for which the evidence is being offered—in deciding whether the evidence has been properly authenticated." State v. Haight-Gyuro, 218 Ariz. 356, ¶ 14, 186 P.3d 33, 37 (App.2008).

¶ 10 Here, the demonstration evidence was offered by the state to show the force King had used when he kicked Steve; it was not offered to "replicate" the actual assault. Michael M. acknowledged he was an eyewitness to the altercation and he had seen King kick Steve in the side. And, when he was asked to describe the force King had used, Michael M. stated that it was "really hard." He also stated that he had viewed the videotape before testifying and verified it was the tape of his demonstration for the police. As to both demonstrations, when Michael M. was asked to show the force King had used, presumably he did so. See Ariz. R. Evid. 901(b)(1) (testimony of witness with knowledge that matter is what it is claimed to be satisfies foundation requirements under Rule 901). And, the trial court properly concluded that whether the demonstrations accurately showed the force King had used was a "factual determination for the jury...." See State v. Williams, 209 Ariz. 228, ¶ 6, 99 P.3d 43, 46 (App.2004) (weighing of evidence is role for jury). Thus, the trial court did not err on this basis in allowing the demonstrations to be presented.

¶ 11 Citing Rule 403, Ariz. R. Evid., King next argues the evidence was not relevant and, even if it was relevant, "that the prejudicial effect of a jury watching someone kicking a chair ... far outweighed any probative value of the demonstration." However, he neither develops this argument nor presents additional authority to support this claim on appeal. "[O]pening briefs must present significant arguments, supported by authority, setting forth an appellant's position on the issues raised. Failure to argue a claim usually constitutes abandonment and waiver of that claim." State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989). The argument is without merit in any event.

¶ 12 As the trial court pointed out, given the difficulty of describing in words what he had seen, Michael M.'s demonstration was probative because he was an eyewitness to the altercation. Evidence generally is admissible if it is relevant. Ariz. R. Evid. 402. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ariz. R. Evid. 401. Here, the demonstrations related to whether the force of the kicks was sufficient to cause or contribute to Steve's fatal injuries and, thus, they were relevant. And because the jury heard testimony that King ran at Steve and kicked him "really hard," as well as expert testimony that such a kick could have caused the fatal injury, any prejudicial impact of the demonstration evidence was cumulative to other properly admitted evidence. Furthermore, the court took reasonable measures to reduce the potential unfair prejudice of the videotape by muting the sound.

¶ 13 Contrary to King's additional argument, nothing in State v. Mincey, 130 Ariz. 389, 636 P.2d 637 (1981) suggests Michael M.'s demonstration was inadmissible because he was not an expert. Rule 701, Ariz. R. Evid., provides that when the witness is not testifying as an expert, "testimony in the form of opinions or inferences [is admissible if] those opinions or inferences ... are (a) rationally based on the perception of the witness and (b) helpful to a...