Opinion
2 CA-CR 2011-0140
02-07-2013
THE STATE OF ARIZONA, Appellee, v. JAMES CAULDWELL THOMAS, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Joseph T. Maziarz, and David A. Sullivan Attorneys for Appellee Mark A. Suagee, Cochise County Public Defender Attorney for Appellant
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.
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY
Cause No. CR201000707
Honorable James L. Conlogue, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz,
and David A. Sullivan
Tucson
Attorneys for Appellee
Mark A. Suagee, Cochise County Public Defender
Bisbee
Attorney for Appellant
VÁSQUEZ, Presiding Judge. ¶1 After a jury trial, James Thomas was convicted of transportation of methamphetamine for sale. The trial court sentenced him to a mitigated 7.5-year prison term. On appeal, Thomas contends the trial court erred by denying his motion for a mistrial, or, in the alternative, to preclude evidence as a sanction for a discovery violation by the state and in making several evidentiary rulings. He also argues the prosecutor committed misconduct. For the reasons set forth below, we affirm.
Factual Background and Procedural History
¶2 We view the facts in the light most favorable to upholding Thomas's conviction. See State v. Molina, 211 Ariz. 130, ¶ 2, 118 P.3d 1094, 1096 (App. 2005). On August 3, 2010, an interagency narcotics task force was conducting surveillance of a "known meth house" in Sierra Vista. Around 9:45 p.m., officers saw a dark-colored pickup truck arrive at the house. A male and female got out of the truck, went inside the house, and, after a few minutes, returned and drove away in the truck. This information was relayed over the radio to other officers who followed the truck and eventually stopped it for speeding. Although the officers activated their emergency lights, the truck continued for half a mile before stopping. When one of the officers approached, he observed the driver, Thomas, talking on his cellular telephone. Thomas and the passenger, Jennifer Perry, appeared nervous. They denied having drugs, and a search of the truck revealed none. However, Perry eventually admitted possessing methamphetamine after a canine officer told her that his drug-detection dog had alerted to where she had been sitting in the vehicle. Perry then retrieved a clear bag containing 13.6 grams of methamphetamine from her vagina. She explained that Thomas initially had the methamphetamine and when the officers turned on their emergency lights, "he threw it at [her]" and told her to put it "[w]here [her] vagina is." ¶3 Thomas was indicted for one count of transportation of methamphetamine for sale having a weight of more than nine grams. At trial, the state elicited testimony from Detective Curtis Wilkins that Linda Siplivy, a "known dealer," had been arrested in an unrelated case that same night in Sierra Vista. When she was arrested, Siplivy had approximately 1.8 ounces of methamphetamine "concealed in a bag in her crotch" (the Siplivy evidence). Wilkins testified that a search of Siplivy's cellular telephone revealed she and Thomas had made several calls to each other that day. ¶4 Thomas was convicted as charged and sentenced as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Immediately after making this statement, Perry answered "[n]o" to the prosecutor's question, "did he tell you to put [the methamphetamine] somewhere specific." However, Perry was recalled to testify the following day, and she admitted telling the investigating officers on the night of her arrest that Thomas had told her to put the methamphetamine "in [her] vagina."
Discussion
Admission of Siplivy Evidence
¶5 Thomas first challenges the admission of the Siplivy evidence. He argues the trial court erred in denying his motion for a mistrial, or, in the alternative, to preclude the evidence based on the state's failure to disclose it before trial. He also maintains the evidence was irrelevant, unfairly prejudicial, and admitted for an improper purpose under the Arizona Rules of Evidence. ¶6 The Siplivy evidence was first mentioned at trial during the state's opening statement when the prosecutor explained that officers had searched Thomas's cellular telephone and had discovered "three or four text messages . . . from people asking him for drugs, basically methamphetamine." The prosecutor continued, "They look at the call logs, and it turns out that [Thomas] had been in contact with another methamphetamine dealer who herself that very day later on gets arrested carrying two ounces of meth in her vaginal cavity area." Although Thomas did not object when the comments were made, later that afternoon he moved for a mistrial or alternatively that the Siplivy evidence be precluded because it had not been properly disclosed. Thomas admitted that the prosecutor had disclosed via electronic mail (email) five calls between Thomas and Siplivy that had occurred on August 3, but claimed he "ha[d] not received any disclosure reports or anything on . . . Siplivy's arrest and discovery of the two ounces of methamphetamine" that had been concealed in her vagina. Thomas also argued the Siplivy evidence was not relevant. ¶7 The trial court ordered the prosecutor to produce a copy of the email and revisited the issue the following day. Although the prosecutor conceded formal disclosure had not been made, as his email suggested it would be, he insisted Thomas knew Wilkins would testify, the connection between Thomas and Siplivy should have been apparent, and the Siplivy evidence was relevant because it was "circumstantial evidence of a connection between one meth dealer to another meth dealer, and it [went] to his knowledge about the body carrying trend." After reviewing the email, the court allowed the state to introduce the Siplivy evidence. ¶8 We first address Thomas's contention that the trial court abused its discretion by denying his motion for a mistrial and his motion to preclude the state from using the Siplivy evidence because it had not been disclosed properly. We review the denial of a motion for a mistrial for an abuse of discretion, State v. Alvarez, 228 Ariz. 579, ¶ 12, 269 P.3d 1203, 1206 (App. 2012), but review de novo the interpretation of court rules, State v. Martinez, 226 Ariz. 464, ¶ 6, 250 P.3d 241, 243 (App. 2011). "In interpreting rules, we apply the same principles we use in interpreting statutes." State v. Petty, 225 Ariz. 369, ¶ 7, 238 P.3d 637, 640 (App. 2010). We thus endeavor to "determine and give effect to our supreme court's intent in promulgating the rule, . . . 'keeping in mind that the best reflection of that intent is the plain language of the rule.'" Osterkamp v. Browning, 226 Ariz. 485, ¶ 14, 250 P.3d 551, 555 (App. 2011), quoting Potter v. Vanderpool, 225 Ariz. 495, ¶ 8, 240 P.3d 1257, 1260 (App. 2010) (internal citation omitted). ¶9 Rule 15.1, Ariz. R. Crim. P., requires the state to disclose to the defendant specific information and materials at certain times. Rule 15.1(b) lists eleven categories of disclosure that must be disclosed before trial, including:
(1) The names and addresses of all persons whom the prosecutor intends to call as witnesses in the case-in-chief together with their relevant written or recorded statements, [and]If the court finds the prosecutor has failed to make a required disclosure, the court shall order disclosure and impose any sanction it deems appropriate. Ariz. R. Crim. P. 15.7(a). ¶10 Thomas asserts the prosecutor had a duty but failed to disclose the reports related to Siplivy's arrest. Citing Rule 15.1(b)(3), Thomas maintains that although the reports were not prepared for his case, they nevertheless were "[p]resented as a part of the state's case." In response, the state contends Rule 15.1(b)(3) does not apply to the Siplivy evidence because the Siplivy reports have no connection with the particular offense committed by Thomas. ¶11 The plain language of Rule 15.1(b)(3) requires the prosecutor to disclose law enforcement reports prepared "in connection with the particular crime with which the defendant is charged." The Siplivy reports were prepared in connection with Siplivy's arrest for possessing 1.8 ounces of methamphetamine, not in connection with Thomas's separate arrest for transporting methamphetamine for sale. The prosecutor therefore was not required to disclose the Siplivy reports pursuant to Rule 15.1(b)(3). ¶12 Citing the comment to Rule 15.1(b), Thomas nevertheless argues the arrest of another person, if intended to be used in an unrelated case, is a collateral issue requiring disclosure. The comment to Rule 15.1(b) provides: "To implement the pretrial motion requirements . . . , the prosecutor is required to notify the defendant of all potential collateral issues not already revealed by the Rule 15.1(a) disclosures. In addition, he is required automatically to turn over all written or recovered materials relating to such issues." Thus, although Rule 15.1(b) lists eleven categories of disclosure, the comment indicates that a "wider scope of collateral issues" must also be disclosed. State v. Hyde, 186 Ariz. 252, 267, 921 P.2d 655, 670 (1996). ¶13 We agree with Thomas that the Siplivy evidence is a "collateral issue" raised by the state in its case against Thomas. Notably, the prosecutor complied with Rule 15.1(b)(1), at least partially, by disclosing Wilkins as a witness and the telephone records showing the calls between Siplivy and Thomas. To the extent the police reports, concerning the "collateral" Siplivy evidence, contained Wilkins's "relevant written . . . statements," the state arguably was required to disclose them as well. See Ariz. R. Crim. P. 15.1(b)(1). But given the prosecutor's email identifying Wilkins as a witness and connecting Thomas and Siplivy through their telephone calls, we conclude this "collateral issue" was sufficiently disclosed because the nature of the testimony was readily apparent. See State v. Wallen, 114 Ariz. 355, 361, 560 P.2d 1262, 1268 (App. 1977) ("The criminal discovery rules do not require the state to provide a word-by-word preview to defense counsel of the testimony of the state's witnesses."). Indeed, in his objection below, Thomas acknowledged being "aware of [the Siplivy] case." And although the prosecutor notified Thomas by email that Wilkins was available for an interview, none was ever requested or conducted before trial. ¶14 Even assuming a disclosure violation, the imposition of sanctions is within the trial court's sound discretion, and that decision will not be reversed on appeal absent a clear abuse of discretion. State v. Armstrong, 208 Ariz. 345, ¶ 40, 93 P.3d 1061, 1069-70 (2004). The sanction "should have a minimal effect on the evidence and merits of the case." State v. Towery, 186 Ariz. 168, 186, 920 P.2d 290, 308 (1996). A declaration of a mistrial is "the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted," State v. Adamson, 136 Ariz. 250, 262, 665 P.2d 972, 984 (1983), and "[p]recluding evidence is rarely an appropriate sanction," Towery, 186 Ariz. at 186, 920 P.2d at 308. Here, the trial court offered Thomas an opportunity to interview Wilkins before he testified. Although Thomas initially declined, he apparently did meet with Wilkins prior to his testimony. We thus conclude the court's resolution of the disclosure issue was appropriate. See State v. Roque, 213 Ariz. 193, ¶ 51, 141 P.3d 368, 385-86 (2006) (short continuance appropriate sanction for disclosure violation). ¶15 Thomas next asserts the Siplivy evidence was other act evidence admitted in violation of Rule 404(b), Ariz. R. Evid. Thomas contends the evidence was offered for an improper purpose and was highly prejudicial. We conclude that Rule 404(b) does not apply here. ¶16 Rule 404(b) provides: "[E]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." In State v. Machado, 226 Ariz. 281, ¶ 16, 246 P.3d 632, 635 (2011), our supreme court clarified, "[t]he admission of third-party culpability evidence is governed by the standards of Rules 401 through 403 of the Arizona Rules of Evidence, not by Rule 404(b)." Although the Siplivy evidence—offered by the state to prove Thomas had committed the offense—was not third-party culpability evidence, we nonetheless find Machado's reasoning instructive. There, the court noted that the rule's "central purpose is to protect criminal defendants from unfair use of propensity evidence" to establish their guilt. Machado, 226 Ariz. 281, ¶ 14, 246 P.3d at 634. And here, like in Machado, there is no such risk where the other act was committed by a third person. ¶17 Thomas also suggests the trial court admitted the Siplivy evidence in violation of Rule 403, Ariz. R. Evid., because it was unfairly prejudicial. Because Thomas did not argue below that the evidence should have been precluded on Rule 403 grounds, he has forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005); State v. Williams, 209 Ariz. 228, ¶ 22, 99 P.3d 43, 49 (App. 2004). "To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice." Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607. ¶18 Rule 403 provides: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice . . . ." The state contends the Siplivy evidence was probative because it demonstrated Thomas's "connection to the methamphetamine trade and his knowledge about how those involved in that enterprise carry their drugs." We disagree. Wilkins testified that a search of Siplivy's cellular telephone revealed she had made calls to and received calls from Thomas on August 3. But Wilkins did not testify about the substance of those conversations and there was no other evidence that Thomas and Siplivy had ever discussed Siplivy, or for that matter any other woman, concealing drugs in her vagina. Accordingly, the Siplivy evidence simply could not have established Thomas's knowledge that women involved in the drug trade carried drugs in this manner. ¶19 But, assuming without deciding that the trial court erred in admitting the Siplivy evidence and that the error was fundamental, Thomas has not met his burden of showing he was prejudiced. See Henderson, 210 Ariz. 561, ¶ 26, 115 P.3d at 608. To show prejudice, Thomas must establish that a reasonable jury, absent any error in admitting the evidence, could have reached a different result. See id. ¶ 27. Here, the state presented evidence that Thomas had visited a house suspected of illegal methamphetamine activity, that he possessed methamphetamine after leaving the house, and that he instructed Perry to hide the methamphetamine in her vagina when officers initiated a traffic stop. In an interview with officers, Thomas admitted he knew "the methamphetamine was in there, and he admitted to driving . . . Perry." Perry testified that Thomas had told her he was selling methamphetamine "to catch up on some bills," and officers testified that he had text messages on his cellular telephone from individuals who wanted to purchase drugs. See State v. Chavez, 225 Ariz. 442, ¶¶ 8-9, 239 P.3d 761, 763 (App. 2010) (text messages from "prospective buyers [who] wanted to purchase drugs" from defendant admissible "as circumstantial evidence that [defendant] had drugs for sale"). Indeed, Thomas "concedes that the State presented abundant evidence to prove [his] guilt," including a "partial confession." He has thus failed to show he was prejudiced by the admission of the Siplivy evidence.
. . . .
(3) All then existing original and supplemental reports prepared by a law enforcement agency in connection with the particular crime with which the defendant is charged,
. . . .
Nor do the Siplivy reports fall in any of the other Rule 15.1(b) disclosure categories. Thomas seems to suggest disclosure also was required pursuant to Rule 15.1(b)(7). But that rule requires the prosecutor to provide "[a] list of all prior acts of the defendant," and Siplivy's arrest is not a prior act of Thomas.
In Machado, the court overruled the holding in State v. Tankersley, 191 Ariz. 359, ¶ 39, 956 P.2d 486, 496 (1998), that Rule 404(b) "applies to other acts of third persons as well as those of defendants." Tankersley, like Machado, addressed third-party culpability evidence.
Thomas argues the trial court "did not engage in any evaluation of the relevance of the evidence in light of the prejudice caused by" its admission. But he has conflated Rule 402, Ariz. R. Evid., which allows admission of relevant evidence, and Rule 403, which requires a weighing of probative value and unfair prejudice.
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Prosecutorial Misconduct
¶20 Thomas next argues the prosecutor's intentional use of the Siplivy evidence combined with additional incidents of misconduct during argument and examination of witnesses at trial constitute cumulative error. Thomas concedes he failed to raise his prosecutorial misconduct arguments below. He has therefore forfeited the issue absent fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. ¶21 "Prosecutorial misconduct 'is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial.'" State v. Aguilar, 217 Ariz. 235, ¶ 11, 172 P.3d 423, 426-27 (App. 2007), quoting Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984). To prevail on a claim of prosecutorial misconduct, "[t]he defendant must show that the offending statements, in the context of the entire proceeding, 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" State v. Newell, 212 Ariz. 389, ¶ 60, 132 P.3d 833, 846 (2006), quoting State v. Hughes, 193 Ariz. 72, ¶ 26, 969 P.2d 1184, 1191 (1998). ¶22 Thomas first contends the prosecutor engaged in misconduct by failing to disclose the Siplivy evidence. He maintains the prosecutor presented the Siplivy evidence during his opening statement to "intentionally . . . surprise [him]" and to "deprive[ him] of any meaningful opportunity to respond." But, as we have already concluded, the prosecutor complied with the disclosure rules by notifying Thomas that Wilkins would be called as a witness and by providing him with the records of the calls between Siplivy and Thomas. See Ariz. R. Crim. P. 15.1(b)(1). Thomas acknowledges that he generally was aware of the circumstances of Siplivy's arrest. Accordingly, we are not persuaded by his argument that he was surprised by the evidence. Moreover, Thomas has failed to show any intentional misconduct by the prosecutor; indeed, the prosecutor's email demonstrates his intent to disclose the Siplivy evidence. See Pool, 139 Ariz. at 108-09, 677 P.2d at 271-72 (misconduct must be "intentional conduct which the prosecutor knows to be improper and prejudicial"). We thus find no misconduct, let alone misconduct amounting to fundamental error, in the manner in which the prosecutor disclosed the Siplivy evidence. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. ¶23 Thomas next argues the prosecutor committed misconduct because he "engaged in . . . argument and questioning of witnesses which, on the record as a whole, constitute cumulative error." According to Thomas, these errors included the prosecutor's references during opening statement and closing argument to the Siplivy evidence, which he used to "bolster his argument that Siplivy was 'another drug dealer,' with whom [Thomas was] associated." Thomas also contends the prosecutor erred by referring to the house the officers had been surveilling as a "meth house" and by repeatedly referring to "other drug dealers" to imply Thomas was guilty by association. Thomas maintains "the prosecutor . . . essentially shifted the burden of proof to [him]" to introduce "evidence that he was not associated with drug dealers." ¶24 Even if an incident does not by itself warrant reversal, it "may nonetheless contribute to a finding of persistent and pervasive misconduct, . . . if the cumulative effect of the incidents shows that the prosecutor intentionally engaged in improper conduct and 'did so with indifference, if not a specific intent, to prejudice the defendant.'" State v. Roque, 213 Ariz. 193, ¶ 155, 141 P.3d 368, 403 (2006), quoting Hughes, 193 Ariz. 72, ¶ 31, 969 P.2d at 1192. We therefore review the alleged incidents for error and to determine if any of them "should count toward [Thomas]'s prosecutorial misconduct claim." See id. We then determine the cumulative effect of any such errors on the fairness of Thomas's trial. See id. ¶25 First, we agree the prosecutor's statements, made during opening statement and closing argument, about Siplivy and her association with Thomas were improper. "[P]rosecutors have wide latitude in presenting their closing arguments to the jury: excessive and emotional language is the bread and butter weapon of counsel's forensic arsenal." State v. Jones, 197 Ariz. 290, ¶ 37, 4 P.3d 345, 360 (2000) (internal citation omitted). "However, such argument must not be based on matters which were not or could not have been received in evidence." State v. Woods, 141 Ariz. 446, 455, 687 P.2d 1201, 1210 (1984). Here, the prosecutor's comments that Siplivy was a "known dealer" with whom Thomas had numerous telephone conversations suggested improperly that Thomas was guilty by his association with Siplivy and not by his own conduct. See State v. Valle, 196 Ariz. 324, ¶ 23, 996 P.2d 125, 131 (App. 2000) (no correlation between gang affiliation and charge of marijuana possession). ¶26 We do not, however, reach the same conclusion regarding the "meth house" references. As the state points out, the prosecutor's characterization of the house under surveillance as a "meth house" was supported by the evidence. The first witness to testify—one of the officers surveilling the house—used the phrase "known meth house," and the prosecutor simply continued to refer to it as such during questioning. Counsel are "permitt[ed] . . . wide latitude in drawing reasonable inferences from the evidence," and we see nothing improper about the inferences drawn by the prosecutor in this case. State v. Gastelo, 111 Ariz. 459, 461, 532 P.2d 521, 523 (1975); see also State v. Bruce, 125 Ariz. 421, 424, 610 P.2d 55, 58 (1980) (prosecutor's characterization of defendant as "pimp" supported by evidence and not improper). ¶27 Finally, Thomas argues the prosecutor committed misconduct by eliciting testimony from various witnesses regarding Thomas's connection to "other drug dealers." He acknowledges there "were few objections [to] these alleged errors" below and his claims therefore are subject to review for fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. With the exception of the references to Siplivy, which we have already addressed, we conclude Thomas's argument lacks merit. The majority of the references to other drug dealers occurred when law enforcement witnesses testified about text messages Thomas had received from various individuals who wanted to purchase drugs. This evidence was admissible "as circumstantial evidence that [Thomas] had drugs for sale." Chavez, 225 Ariz. 442, ¶¶ 8-9, 239 P.3d at 763. And, other references about "drug dealers" related to individuals that had some connection to the "known meth house" from which Thomas apparently had obtained the drugs found in his possession just before his arrest. Notably, much of the detailed information about some of the other individuals either was elicited by Thomas during cross-examination or invited by his questioning. Finally, we also find unpersuasive Thomas's contention that the prosecutor "shifted the burden of proof" as a result of this evidence having been admitted. Jurors are presumed to follow the instructions they are given. Newell, 212 Ariz. 389, ¶ 68, 132 P.3d at 847. And, here, the jury was told that the state has the burden of proving the defendant guilty beyond a reasonable doubt. ¶28 Considering the allegations of error in combination, "[t]he instances of alleged misconduct identified by [Thomas] do not warrant reversal when considered cumulatively. The record does not reflect pervasive misconduct that deprived him of a fair trial." State v. Manuel, 229 Ariz. 1, ¶ 33, 270 P.3d 828, 834 (2011).
Audio Recording
¶29 Thomas next argues the trial court erred in admitting the audio recording of Perry's police interview. The admission of evidence is within the trial court's sound discretion and will not be disturbed on appeal absent an abuse of discretion. State v. Davolt, 207 Ariz. 191, ¶ 60, 84 P.3d 456, 473 (2004). ¶30 At trial, Perry testified that Thomas initially had the methamphetamine, and, when the officers pulled them over, "he threw it at [her]" and told her to put it "[w]here [her] vagina is." She admitted she had been charged with possession of methamphetamine for sale for her involvement in the incident and was facing a ten-year prison term. On cross-examination, Perry also admitted that by testifying against Thomas, she was "hoping that the charges w[ould] be reduced" and "[she could] get probation." The next day, the prosecutor moved to admit an audio recording of an interview between officers and Perry that occurred shortly after her arrest on August 3. Thomas objected to the recording as hearsay, and the prosecutor explained it contained prior consistent statements to rebut Thomas's "implied . . . notion that there was recent fabrication" to obtain the benefit of a plea deal. After establishing that the recording contained both prior consistent and inconsistent statements, the court overruled Thomas's objection, finding he had raised a claim of recent fabrication. ¶31 Thomas argues the trial court erred in admitting the recording "as a prior consistent statement without any analysis of the time at which the motive to fabricate arose." He asserts Perry "had a motive to fabricate from the time she was asked to exit [Thomas]'s vehicle." Thomas also suggests the recording was hearsay to the extent it included Perry answering "a series of inquiries" about other individuals and implied he was "mixed up with a seemingly endless number of people dealing drugs." ¶32 Contrary to Thomas's assertion, the trial court found the inference of recent fabrication had been raised during "cross-examination [the previous day]." In any event, Thomas never argued below that Perry's motive to lie arose at the time of her arrest, but instead challenged the admissibility of the recording on hearsay grounds. "And an objection on one ground does not preserve the issue on another ground." State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683 (App. 2008). He has therefore forfeited this issue for all but fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. Because Thomas does not argue the error is fundamental, and because we find no error that can be so characterized, the argument is waived. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008) (fundamental error review waived when defendant fails to argue fundamental error on appeal). ¶33 But even assuming the audio recording was admitted improperly to the extent it included extraneous information about other individuals, the error was harmless. For the reasons discussed above and in light of the overwhelming evidence of Thomas's guilt, we conclude that portion of the recording did not contribute to the jury's verdict. See State v. Fulminante, 193 Ariz. 485, ¶ 49, 975 P.2d 75, 90 (1999). Indeed, most of the information about the individuals referred to on the recording already had been introduced to the jury through other evidence, including Perry's trial testimony. See State v. Williams, 133 Ariz. 220, 226, 650 P.2d 1202, 1208 (1982) (erroneous admission of cumulative evidence constitutes harmless error).
Text Messages
¶34 Before trial, Thomas filed a motion to preclude the state from introducing text messages discovered on his cellular telephone at the time of his arrest. The messages included questions such as, "Do you have a shirt," "What size hat do you wear," and "Do u have any work." Citing Chavez, 225 Ariz. 442, 239 P.3d 761, the trial court denied Thomas's motion, finding the messages were not hearsay and there was "no constitutional impediment to their admission." At trial, officers testified that the text messages were sent to Thomas from individuals who wanted to buy drugs. We review a trial court's ruling on the admissibility of evidence over an objection on hearsay grounds for an abuse of discretion. State v. Tucker, 205 Ariz. 157, ¶ 41, 68 P.3d 110, 118 (2003). ¶35 Hearsay is a "statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." Ariz. R. Evid. 801(c). A "statement" is defined as "a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion." Ariz. R. Evid. 801(a). In Chavez, this court upheld the admission of text messages from unidentified senders indicating the defendant had drugs for sale because they were not offered to prove the truth of the matter asserted— "that the prospective buyers wanted to purchase drugs from [the defendant]." 225 Ariz. 442, ¶ 9, 239 P.3d at 763. Rather, they were offered as circumstantial proof that the defendant had drugs for sale. Id. As part of our reasoning, we discussed the advisory committee note to Rule 801(a), Fed. R. Evid., the federal counterpart to Rule 801(a), Ariz. R. Evid., and explained, "words or conduct not intended as assertions are not hearsay even when offered as evidence of the declarant's implicit belief of a fact." Id. ¶¶ 7-8. ¶36 We see no meaningful distinction between the facts of this case and those in Chavez, and we cannot say the trial court abused its discretion in reaching the same conclusion. Thomas nevertheless contends that Chavez "should be reconsidered." Citing the dissenting opinion in State v. Palmer, 229 Ariz. 64, 270 P.3d 891 (App. 2012), he argues that our supreme court did not include the advisory committee's note to Rule 801(a) in our rules and, although our rules are modeled after the federal rules, our supreme court deviates from the federal rules as it sees fit. But "[a] dissent has no precedential value." Gonzalez v. Arizona, 624 F.3d 1162, 1200 (9th Cir. 2010). And, in light of our clear case law, we decline Thomas's invitation to reconsider the issue.
Disposition
¶37 For the foregoing reasons, Thomas's conviction and sentence are affirmed.
______________
GARYE L. VÁSQUEZ, Presiding Judge
CONCURRING: ______________
VIRGINIA C. KELLY, Judge
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PHILIP G. ESPINOSA, Judge