State v. Kiper
| Decision Date | 16 August 1994 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 181 Ariz. 62,887 P.2d 592 |
| Parties | STATE of Arizona, Appellee, v. Richard D. KIPER, Appellant. 92-0947. |
| Court | Arizona Court of Appeals |
Richard D. Kiper (defendant) appeals from his convictions and the sentences imposed on one count of fraudulent schemes and artifices and five counts of theft. His appeal raises three issues:
1. Did the trial court err in permitting the state to introduce evidence that defendant had a criminal background?
2. Did the prosecutor commit fundamental error by making improper arguments concerning defendant's prior convictions?
3. Did the trial court err in refusing to further examine a juror about her guilty verdicts after the jury had unanimously confirmed the verdicts when polled by the court?
For the reasons that follow, we affirm.
On appeal, we view the evidence at trial in the light most favorable to sustaining the verdict, resolving all reasonable inferences against defendant. State v. Atwood, 171 Ariz. 576, 596, 832 P.2d 593, 613 (1992), cert. denied, 506 U.S. 1084, 113 S.Ct. 1058, 122 L.Ed.2d 364 (1993). Defendant was employed from 1983 to 1990 as a parttime bookkeeper at an Arabian horse farm owned by Bud and Louise Adams in Scottsdale, Arizona. Shortly after the Adamses fired defendant in March 1990, they discovered that he had embezzled $84,000 from them over a period of five years by altering payroll checks made payable to defendant and his wife.
Defendant was indicted on one count of fraudulent schemes and artifices in violation of A.R.S. § 13-2310, a class 2 felony, and five counts of theft in violation of A.R.S. § 13-1802, each a class 3 felony. The state subsequently amended the indictment to allege that defendant had five prior felony convictions.
A mistrial was declared during defendant's first trial because of juror misconduct. At his second trial, the jury found defendant guilty of all offenses as charged. After the verdicts were rendered, defendant admitted to his five prior felony convictions. The trial court sentenced defendant to six concurrent prison terms, the longest being 18.75 years on the fraudulent schemes charge. In addition, defendant was ordered to pay $84,000 in restitution and $600 in felony assessment fees. Defendant timely appealed.
Prior to his first trial, defendant made a motion in limine requesting that the state be precluded from introducing evidence of his prior felony convictions: two counts of arson and three counts of larceny that had occurred in Florida in June and August 1975. The trial court granted the motion.
As part of his defense, defendant alleged that the charges against him were false and brought by the Adamses in retaliation for public accusations he made of improper conduct by the Arabian Horse Association. During the direct examination of a defense witness, defendant's counsel elicited testimony that, shortly before defendant was terminated by the Adamses, Bud Adams, the immediate past president of the association, did not want defendant working on the association's books because, among other things, "[h]e had some things in his background that they found out about." When defendant's counsel completed his direct examination, the prosecutor requested permission from the trial court to develop the fact that defendant's "background" involved a criminal record. In arguing the admissibility of this evidence, the prosecutor stated:
My position is the door should be open to continue the line of questioning as to what was the information. I have not objected to the hearsay nature of it. It goes to the motivation of the people who's throwing him off the property; it goes to their state of mind concerning his--as to why they are taking certain actions. The defense in this case is there is some kind of conspiracy against him to get him because of the fact that he's made trouble for them at the Arizona Horse Association, and this, if you will, will lay truth to that misconception that their concern was that this guy is known to them now to be a convicted felon for theft and they don't want him handling the books.
Defendant's counsel responded that he had not intended to have the witness mention defendant's background, that the witness's answer was unexpected, and that the evidence proposed by the prosecutor about defendant's criminal background was unfairly prejudicial. The trial court weighed the probative value of the proposed evidence against its prejudicial effect and ruled that the state could establish that defendant had a "criminal record," but would not be permitted to get into the specifics of defendant's prior convictions.
Defendant claims the trial court erred in permitting the state to show that he had a prior criminal history. He argues that there was no legitimate basis for admitting this evidence and that its admission violated Rule 404(b), Arizona Rules of Evidence. Defendant further argues, in the alternative, that if the evidence were in fact relevant, the trial court erred in not excluding it pursuant to Rule 403.
The trial court has considerable discretion in determining relevance and admissibility of evidence, and its ruling will not be disturbed absent a clear abuse of that discretion. State v. Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d 1260, 1275 (1990), cert. denied, 500 U.S. 929, 111 S.Ct. 2044, 114 L.Ed.2d 129 (1991). Rule 401 defines "relevant evidence" as "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 without the evidence." This standard of relevance is not particularly high. State v. Oliver, 158 Ariz. 22, 28, 760 P.2d 1071, 1077 (1988). We find no abuse of discretion in the trial court's determination that the existence of defendant's criminal history was relevant to rebuttal of his conspiracy theory.
All relevant evidence is admissible unless otherwise prohibited by law. Rule 402. Rule 404(b) precludes evidence that is offered solely to show the character of a defendant to prove disposition to criminality. 1 State v. Ramirez Enriquez, 153 Ariz. 431, 432, 737 P.2d 407, 408 (App.1987). Evidence relevant for any purpose other than showing criminal propensities remains admissible even though it refers to a defendant's prior bad acts. State v. Jeffers, 135 Ariz. 404, 417, 661 P.2d 1105, 1118, cert. denied, 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983). Of course, the evidence must not be too misleading or prejudicial. State v. Rose, 121 Ariz. 131, 136, 589 P.2d 5, 10 (1978). Because the trial court is best able to balance the probative value versus the prejudicial effect, it is afforded wide discretion in deciding the admissibility of such evidence. State v. Via, 146 Ariz. 108, 122, 704 P.2d 238, 252 (1985) cert. denied,475 U.S. 1048, 106 S.Ct. 1268, 89 L.Ed.2d 577 (1986).
Rule 403 permits the trial court to exclude relevant evidence that is confusing, misleading, cumulative, or unfairly prejudicial. A determination of the admissibility of evidence under Rule 403 is within the sound discretion of the trial court. Readenour v. Marion Power Shovel, 149 Ariz. 442, 450, 719 P.2d 1058, 1066 (1986). Moreover, in reviewing the trial court's ruling, we must look at the evidence in the light most favorable to the proponent, maximizing its probative value and minimizing its prejudicial effect. State v. Castro, 163 Ariz. 465, 473, 788 P.2d 1216, 1224 (App.1989).
We find no error by the trial court in not excluding evidence of defendant's criminal background under either Rule 404(b) or Rule 403. The evidence was relevant and admitted for a purpose other than establishing criminal propensity. The trial court expressly weighed the prejudice of admitting this evidence against its probative value before deciding to admit it. Moreover, to reduce the prejudice to defendant, the trial court ruled that the evidence would be limited to the mere mention that defendant had a criminal record. Under the circumstances, we find no abuse of discretion in the trial court's decision to allow this evidence to be introduced.
Defendant next contends that the prosecutor engaged in misconduct by making improper closing arguments. However, defendant did not object at trial to the prosecutor's arguments. Absent a finding of fundamental error, failure to raise an issue at trial waives the right to raise the issue on appeal. State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991).
Error is fundamental when it reaches " 'the foundation of the case or takes from defendant a right essential to his defense,' " or is an " 'error of such dimensions that it cannot be said it is possible for a defendant to have had a fair trial.' "
Id. at 155, 812 P.2d at 628, quoting State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988).
Defendant asserts that the prosecutor improperly argued that defendant's prior criminal record established that he was a "bad guy" and therefore more likely to have committed the charged offenses, thus violating Rule 404(b). Defendant identifies two instances where he claims this occurred. One statement he points to consists of the prosecutor telling the jury during his rebuttal argument that "you can draw inferences from his background." This statement, however, was made as part of the following argument:
You know, I notice Mr. Kiper is not smiling now, but during this trial from time to time and when I looked...
To continue reading
Request your trial
-
State v. Hansen
...are over, (2) the result is announced in open court, and (3) the jury is polled and no dissent is registered.” State v. Kiper, 181 Ariz. 62, 68, 887 P.2d 592, 598 (App.1994) ; accord State v. Webb, 186 Ariz. 560, 563, 925 P.2d 701, 704 (App.1996). ¶ 11 This statement is an oversimplificatio......
-
State v. Olague
...coerced, harassed, intimidated, or felt themselves to be in physical danger.” Jacobson , 765 F.2d at 15 ; accord State v. Kiper , 181 Ariz. 62, 68, 887 P.2d 592, 598 (App. 1994).¶ 20 Here, as the trial court noted, the juror who alleged she had been coerced voiced no such concern when she w......
-
State v. Anaya
...at trial.¶15 Trial courts have "considerable discretion in determining relevance and admissibility of evidence." See State v. Kiper, 181 Ariz. 62, 65 (App. 1994). But, in this case, although the fact that R.C. had been transported to the hospital was relevant because it had some bearing on ......
-
People v. Bento
...the jury is to be discharged once the verdicts have been recorded. (See Ariz. Rules Crim. Proc., rule 22.5a.) In State v. Kiper (1994) 181 Ariz. 62, 67-68, 887 P.2d 592, 597-598, the jury returned guilty verdicts in open court on all charges against the defendant, and affirmed their verdict......