Opinion
No. 2 CA-CR 2020-0045
03-31-2021
THE STATE OF ARIZONA, Appellee, v. FABIAN ORTIZ, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals By Jillian Francis, Assistant Attorney General, Phoenix Counsel for Appellee Robert A. Kerry, Tucson Counsel for Appellant
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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20180515001
The Honorable Jeffrey T. Bergin, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals
By Jillian Francis, Assistant Attorney General, Phoenix
Counsel for Appellee Robert A. Kerry, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Espinosa and Vice Chief Judge Staring concurred. ECKERSTROM, Judge:
¶1 Fabian Ortiz appeals from his convictions and sentences for stalking, kidnapping, aggravated assault, and sexual assault. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the verdicts and resolve all reasonable inferences against Ortiz. State v. Tschilar, 200 Ariz. 427, n.1 (App. 2001). In March 2017, Ortiz began dating A.M., a classmate in his ROTC program. In August, after a number of incidents that frightened her, A.M. told Ortiz she wanted to end the relationship. Ortiz was "really angry" and threatened to shoot himself in front of A.M. She surreptitiously called 9-1-1 and drove Ortiz to the hospital. Police responded, taking Ortiz to the Crisis Response Center, where he was admitted. This incident prompted Ortiz to quit the ROTC program because he feared his CRC admission would prevent the Marine Corps from accepting him. He was angry at A.M. for taking him to the hospital, blamed her for ruining his career, and spoke about hurting her. A.M. obtained a restraining order, but, despite several attempts, she did not serve it on Ortiz.
¶3 In September 2017, A.M. left her apartment early one morning. As she walked to her car, Ortiz "popped out" from behind a building with "a really big rifle" in his hand and demanded that A.M. hand over her phone. After she did so, Ortiz walked her to his car and asked her to get in so they could talk. A.M. did not want to go with Ortiz, but she complied because he was still holding the rifle, which frightened her. He told her not to call the police or he would kill himself.
¶4 After this incident, A.M. left the state to visit family because she was frightened. While she was away, she received a call that Ortiz had killed himself. A.M., "in hysterics" and grieving, returned to Tucson the next day "to figure out what had happened." Ortiz later revealed that he was alive. A.M. was relieved and emotional, and the two resumed their romantic relationship for a week and a half. A.M. soon began to feel afraid again and ended the relationship.
¶5 Ortiz continued to contact A.M. He called and texted her frequently from unknown numbers and expressed his depression and suicidal thoughts, blaming A.M. for how he had "no purpose." In January 2018, Ortiz called A.M. and told her he had contacted people in Mexico to "get revenge" on her so that she would "feel the same pain that he felt not having his career." He told her he had considered hiring someone to kill her, break her knees, or blind her with acid, but that he had concluded it would be too expensive. A.M. held back her tears during the call because she did not want to aggravate or upset Ortiz, but she took notes as he threatened her.
¶6 A few days later, Ortiz surprised A.M. outside her apartment as she returned from an early morning training session. After A.M. refused his invitation to breakfast, Ortiz forced her into his car. He told her she did not have a choice and began "counting down" until she complied out of fear. Once in the driver's seat, he removed a gun from his pocket and placed it in the side pocket of the car door. A.M. did not believe she could run away because she feared Ortiz would shoot her. As Ortiz drove, he told A.M., "[T]his is the way that this weekend is going to go. I'm in charge. There is one bullet in here for you and there is one bullet in here for me." He also told A.M., "I'll let you call your mom before I kill you." A.M. believed she was going to die, and she was afraid.
¶7 Ortiz forced A.M. to contact people who would be expecting her that weekend to tell them she would be absent, reviewing her texts before she sent them. She considered trying to dial 9-1-1, but Ortiz was watching her. Ortiz used her phone to respond to texts from her friends and pretended to be A.M.
¶8 He drove her to several locations throughout the day. At various points, A.M. considered running away or approaching people for help, but she feared Ortiz would shoot her, run after her, or harm others. At one stop, Ortiz warned A.M. not to make a scene or try to seek help. He drove her through the hospital parking lot and told her, "[T]his is the place where you ruined my life."
¶9 At one point, Ortiz drove A.M. back to her apartment complex and said he wanted to go inside to sleep. He showed her some zip ties, telling her he intended to zip tie their feet together so she could not get away. A.M. refused to go inside her apartment because she did not want to put her roommates at risk.
¶10 At two stops, Ortiz indicated that he wanted A.M. to perform oral sex on him. She repeatedly refused. Ortiz drove to an alley and asked A.M. if the location was private enough. A.M. said, "I don't want to do this. Please don't make me do this." Ortiz told her, "This is going to happen. I'm in charge here." He also said, "I know that this is rape but maybe you can feel some of the pain that I feel." Ortiz then unloaded the gun, pushed A.M.'s head to his crotch, held the gun to the back of her neck, and told her "Don't make me be this guy," before placing the gun back in the door pocket. He then forced A.M.—who was not sure whether there was still a bullet in the gun and was "very scared"—to perform oral sex on him. While she was doing so, Ortiz moved his hand down her back and penetrated her vagina with his fingers.
¶11 After these assaults, Ortiz drove to another location, where he warned A.M. that if he saw her talking to anyone, there would be "consequences." A.M. tried to write "call 9-1-1" and her name in the restroom, but Ortiz kicked open the door and took her away.
¶12 At yet another location, A.M. cried and asked Ortiz to let her go. He handed her the reloaded gun and told her that, if he dropped her off at home, she would "have to be the one to kill [him]." After A.M. refused to shoot him, Ortiz explained how to unload the gun and let her hold the magazine. A.M. ultimately convinced him to put the gun in the trunk. Ortiz repeated that his future was ruined and that A.M. had ruined it for him. As he got back in the car, he became angry and said, "[W]e're going to go back to your place now and we're just going to see how this weekend plays out. You may survive this weekend. I don't know. That's up to you."
¶13 A.M. took the opportunity to run, carrying the ammunition and screaming for help, asking someone to call 9-1-1. Two bystanders saw A.M. running, yelling for help, and asking that someone call the police because she was "being kidnapped." Ortiz chased A.M., and once he caught up to her in the street, he grabbed her and tried to pull her. A.M. dropped all her weight to the ground so Ortiz could not drag her back to the car. He then held her wrists so she could not move. A.M. appeared scared; she was shaking and trying to get away, and one of the bystanders called the police. When officers arrived, A.M. was crying. She asked them to help her get away from Ortiz and handed over a magazine loaded with live bullets. Because A.M. was crying and "sort of hyperventilating," it took her "some time" to calm down sufficiently to be able to provide information to police. After A.M. spoke to the officers, she was transported to the hospital, where she underwent a sexual assault examination. Ortiz told one officer, "I did some bad shit today," and "I done fucked up."
¶14 A grand jury charged Ortiz with stalking, kidnapping, aggravated assault, and two counts of sexual assault. The state alleged that all the counts were domestic violence offenses committed with a deadly weapon. At the conclusion of a seven-day trial, a jury found him guilty as charged. Ortiz unsuccessfully moved for a new trial. The trial court imposed a slightly mitigated sentence of consecutive and concurrent prison terms totaling seventeen years. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Sufficiency of the Evidence of Stalking
¶15 At trial, Ortiz moved for dismissal of all charges on the ground of insufficient evidence. The trial court denied the motion. On appeal, Ortiz challenges this denial only as to the stalking charge.
¶16 Sufficiency of the evidence is a question of law requiring de novo review. State v. West, 226 Ariz. 559, ¶ 15 (2011). We must determine whether the state presented evidence that "reasonable persons could accept as sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." State v. Spears, 184 Ariz. 277, 290 (1996). In making this determination, we must view the evidence in the light most favorable to sustaining the verdict and resolve all inferences against the defendant. Id. "[W]e do not weigh the evidence; that is the function of the jury." State v. Williams, 209 Ariz. 228, ¶ 6 (App. 2004). If jurors could reasonably differ as to whether the evidence establishes the necessary facts, it is sufficient as a matter of law. See State v. Davolt, 207 Ariz. 191, ¶ 87 (2004).
¶17 On the stalking count, the state bore the burden of presenting substantial evidence that Ortiz "intentionally or knowingly engage[d] in a course of conduct" directed toward A.M. that caused her to suffer emotional distress—i.e., "significant mental suffering or distress"—or to reasonably fear for her safety. A.R.S. § 13-2923(A)(1), (D)(2). The statute specifies that a qualifying "course of conduct" includes "direct verbal . . . or other threats, whether express or implied . . . on two or more occasions over a period of time, however short." § 13-2923(D)(1)(a)(i).
¶18 Ortiz contends "[t]here was no evidence presented establishing any course of conduct except a romantic relationship willingly continued by A.M." through the end of October 2017. To the contrary, the state presented evidence that Ortiz stalked A.M. by: (1) appearing outside her apartment with a firearm, demanding her phone, and forcing her into his car in September 2017; and (2) telling her in a January 2018 phone call that he had contacted people in Mexico to "get revenge" on her by killing her, breaking her knees, or blinding her with acid, only deciding not to do so because it would be too expensive. This was sufficient evidence to support the stalking conviction.
¶19 Ortiz argues that A.M. "did not take him seriously and was not really threatened" by the second incident. But A.M. testified that she was holding back tears during this "intense," threatening phone call, and the jury was free to believe her testimony. See State v. Cox, 217 Ariz. 353, ¶ 27 (2007) (credibility of witnesses a question exclusively for jury).
Precluded Evidence
¶20 Before trial, Ortiz filed a "notice of intent to limited use" of "photographs and/or video recordings of sexual acts" between him and A.M., including a number of videos depicting A.M. performing oral sex on Ortiz. The notice specified that Ortiz intended to use the "extremely sexually explicit" photographs and videos for "possible impeachment" of A.M. "and to show the consensual nature of the sexual relationship that existed between her and [Ortiz]." It asserted: "If there is no conflict between the State and the defense relating to the nature and timing of the intimate relationship between Mr. Ortiz and [A.M.], the defense does not intend to use the specific photos and/or videos . . . ." The state did not respond to the notice.
¶21 During his opening statement, Ortiz mentioned that he and A.M. had made recordings of consensual sexual activity during their relationship, including her performing oral sex on him. The state objected, claiming a violation of Arizona's rape shield statute, A.R.S. § 13-1421. The state explained that it had not objected to Ortiz's pretrial notice because it had been limited to seeking admission of the recordings only if A.M. denied reengaging in a sexual relationship with Ortiz. The state argued that, although the existence of a prior sexual relationship between A.M. and Ortiz was relevant, the details of their sexual history were not. The state further urged that the fact that A.M. had previously performed oral sex consensually did not mean that the act was consensual during the incident for which Ortiz had been charged. The state added that it planned to elicit from A.M. that "she had previously performed fellatio on Mr. Ortiz consensually," and that the recordings of such prior acts would be of little probative value but significantly prejudicial.
¶22 The trial court ruled that, if the state elicited testimony from A.M. that she had previously performed oral sex on Ortiz consensually, videos and photographs of her doing so would be excluded as more prejudicial than probative under Rule 403, Ariz. R. Evid. The court further ruled that, if A.M. admitted to prior consensual oral sex with Ortiz, admission of the recordings would also be inconsistent with § 13-1421, "which requires that there be a material fact in issue before such a prior sexual history is explored and becomes admissible." As the state anticipated, A.M. confirmed on direct examination that, throughout the course of their romantic relationship, she engaged in consensual sex with Ortiz, including oral sex.
¶23 On appeal, Ortiz contends the trial court erred in precluding the photographs and videos. He first challenges the court's conclusion under Rule 403 that the evidence was more prejudicial than probative. Trial courts enjoy considerable discretion in determining whether proffered evidence is relevant and admissible, and we will not disturb a ruling excluding evidence without a clear abuse of that discretion. State v. Rose, 231 Ariz. 500, ¶ 62 (2013). Specifically, a balancing of factors under Rule 403 is "a matter particularly and appropriately left to the trial court's discretion." Id. We find no abuse of discretion here.
¶24 Ortiz contends the precluded evidence should have been admitted to show that A.M. willingly performed oral sex on Ortiz in the past and was therefore "probative on the issue whether the sex act was consensual or not." But A.M. acknowledged that fact during her testimony. Photographs and videos were not necessary to further establish that she had done so. Moreover, as A.M. explained on the stand, the sex act that formed the basis for the first sexual assault count was "very different" precisely because, unlike previously, she did not consent. To the contrary, she "said no many times," made clear that she "did not want to perform the oral sex," and he forced her anyway.
¶25 Ortiz also emphasizes that some of the excluded evidence included "communication and consensual sex acts during the period alleged in the stalking count." He argues that the "graphic sexual images" should have been admitted to show that, because A.M. resumed her relationship with Ortiz for a brief period of time after he faked his death, she must not have suffered emotional distress as a result of the stalking behaviors that occurred before and after that time. But A.M. testified that she briefly resumed her relationship with Ortiz for a short period of time after he revealed he was still alive. She testified expressly that they "did have consensual sex" during this brief resumption of their romantic relationship. Thus, Ortiz had no evidentiary need to present graphic photographs or videos of this undisputed previous sexual activity.
¶26 Ortiz also challenges the trial court's reliance on the rape shield statute. But we have already concluded that the evidence was properly precluded on the ground that its prejudicial impact outweighed its probative value. We therefore need not address whether the trial court erred in further finding that its admission would violate that statute.
Motion for Mistrial
¶27 During summation, the state addressed the telephone conversation in which Ortiz told A.M. that he had considered hiring someone from Mexico to "get revenge" on her: "Second set of threats. The threats you know are happening on January 20 and January 21, because you have the specific date because [A.M.] talks to [her friend]. She texts [her friend] about the threats [Ortiz] has just made to her."
¶28 Near the end of its summation, the state also argued, "Ortiz was innocent because of [the] presumption" that every defendant is innocent until proven guilty, "and only because of that presumption. But now," after the jury had heard all the evidence, "now he is guilty." Ortiz immediately objected on the ground that the state had misstated the law, an objection the trial court overruled.
¶29 After the court called a recess, Ortiz moved for a mistrial due to the state's mention of a text message that was not in evidence and the argument regarding Ortiz's guilt, which he characterized as "totally inappropriate" and "a complete misstatement of the law." The state argued that any misstatement of the evidence had been inadvertent and that the comment regarding Ortiz being guilty based on the evidence was "appropriate argument." The trial court denied the motion for mistrial. Ortiz now challenges that denial on appeal.
¶30 A mistrial is "the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted." State v. Adamson, 136 Ariz. 250, 262 (1983). "[T]he trial court is in the best position to determine the effect of a prosecutor's comments on a jury," State v. Newell, 212 Ariz. 389, ¶ 61 (2006), and we therefore "defer to the trial judge's discretionary determination," State v. Dann, 205 Ariz. 557, ¶ 43 (2003). We will not overturn a trial court's denial of a mistrial for allegedly improper argument absent "a clear abuse of discretion." Newell, 212 Ariz. 389, ¶ 61. Ortiz has established no such abuse here.
¶31 The state agrees that no text message between A.M. and her friend was in evidence to corroborate Ortiz's threatening phone call. The state's reference to the text message in summation was therefore improper. See State v. Roscoe, 184 Ariz. 484, 497 (1996) (argument "clearly improper because it referred to matters not in evidence"). But that phone call had been otherwise corroborated by other properly admitted evidence: A.M.'s testimony and her contemporaneous, time-stamped electronic notes. Furthermore, the court instructed the jury that it was required to consider only the evidence presented at trial and that what the lawyers say is not evidence. We therefore fail to see how this misstatement of the evidence prejudiced Ortiz. A mistrial was not warranted.
¶32 Ortiz also contends the prosecutor's statement regarding Ortiz's guilt was a misstatement of law requiring a mistrial. Prosecutors are afforded wide latitude in closing arguments. State v. Goudeau, 239 Ariz. 421, ¶ 196 (2016). They may "summarize the evidence, make submittals to the jury, urge the jury to draw reasonable inferences from the evidence, and suggest ultimate conclusions." Id. We agree with the trial court that the challenged comment was "argument as opposed to implying the state of the law." In context, the argument neither expressed the prosecutor's personal opinion of Ortiz's guilt nor purported to describe the state's burden of proof. See State v. Acuna Valenzuela, 245 Ariz. 197, ¶¶ 83-84 (2018). Rather, it was proper argument that the evidence admitted at trial was sufficient to allow the jury to conclude Ortiz was guilty as charged. See State v. King, 110 Ariz. 36, 42 (1973) (improper for prosecutor to express personal opinion as to defendant's guilt or "argue matters which were not or could not have been introduced as evidence"). Ortiz has cited no Arizona case supporting a contrary conclusion.
Motion for New Trial
¶33 After trial, Ortiz filed a motion for a new trial based on the state's closing argument, which Ortiz alleged included reference to facts not in evidence and vouching for A.M. The trial court denied the motion, finding that "prosecutorial misconduct, if any, did not rise to a level that would affect the due process right of [Ortiz] for a fair trial." Ortiz challenges this ruling on appeal, pointing to a number of statements by the prosecution he continues to characterize as misconduct. Ortiz contends he was denied a fair trial due to "a consistent pattern" of prosecutorial error and urges us to vacate his convictions and sentences.
Ortiz's characterization notwithstanding, our supreme court recently reasoned that "[w]hen reviewing the conduct of prosecutors in the context of 'prosecutorial misconduct' claims, courts should differentiate between 'error,' which may not necessarily imply a concurrent ethical rules violation, and 'misconduct,' which may suggest an ethical violation." In re Martinez, 248 Ariz. 458, ¶ 47 (2020). Accordingly, because Ortiz has alleged no ethical violation, we use the term "prosecutorial error."
¶34 "Motions for new trial are disfavored and should be granted with great caution. Moreover, deciding whether a defendant is entitled to a new trial is within the sound discretion of the trial court." State v. Rankovich, 159 Ariz. 116, 121 (1988) (citation omitted). We will not disturb the denial of a new trial motion absent "an affirmative showing that the trial court abused its discretion and acted arbitrarily." State v. Durham, 111 Ariz. 19, 23 (1974). Ortiz has made no such showing here.
¶35 Most of the statements challenged by Ortiz in his motion for a new trial and again on appeal were proper inferences based on the evidence elicited at trial. They were reasonable extrapolations from A.M.'s direct testimony that: (a) her roommate reacted to Ortiz's reappearance in A.M.'s life after he faked his death with some hesitation, which angered Ortiz; (b) A.M. got into Ortiz's car on the day of the first stalking incident against her wishes because Ortiz was holding the "very big rifle," which frightened her; (c) A.M. did not tell the police the truth after that incident out of fear that Ortiz—who had warned her not to call the police because he would kill himself if he saw an officer—would indeed shoot either himself or a police officer if he was approached by law enforcement; and (d) she was not certain at the time of the sexual assaults that Ortiz's gun was empty. The prosecutor's arguments regarding each of these aspects of A.M.'s testimony—all plainly relevant—were supported by the evidence. See State v. Morris, 215 Ariz. 324, ¶ 52 (2007) (even when evidence does not "compel the conclusion" argued by prosecutor, argument proper if "record includes sufficient evidence to permit the prosecutor to make such an argument").
¶36 Ortiz next points to the state's discussion of a photograph of A.M. posing with Ortiz's rifle early in their relationship, before she began to feel afraid. He argues that characterizing the image as "a foolish, a silly, an ill-advised picture" was "the personal opinion of counsel and was a form of vouching." We fail to see how this criticism of A.M.'s decision to pose for the photograph constitutes vouching. It neither "place[d] the prestige of the government" behind A.M. through an assurance of her veracity nor "suggest[ed] that information not presented to the jury" supported A.M.'s testimony. State v. King, 180 Ariz. 268, 276-77 (1994) (describing the "two forms of impermissible prosecutorial vouching" (quoting State v. Vincent, 159 Ariz. 418, 423 (1989))).
¶37 Ortiz also argues the prosecution vouched for A.M.'s character by "praising her" for bravery, service, honor, valor, and putting others before herself. In context, the challenged remarks explained how A.M. could have been frightened for herself during the stalking and kidnapping incidents while simultaneously caring for and worrying about the well-being of Ortiz and others. Such comments also provided a context for the jury to assess A.M.'s credibility regarding the reasons she did not report Ortiz's stalking behavior to police, seek enforcement of her restraining order, or attempt to more aggressively escape the kidnapping. It was well within the bounds of proper argument for the state to explain its theory regarding the emotional complexities of the case. See Goudeau, 239 Ariz. 421, ¶ 196 (permissible for state to "urge the jury to draw reasonable inferences from the evidence"). Nor did the comments suggest the prosecutor's assessment of A.M.'s character was based on information not presented to the jury. They therefore do not constitute impermissible prosecutorial vouching. See King, 180 Ariz. at 276-77.
¶38 Having failed to establish that any of the challenged comments constitute prosecutorial error, Ortiz's claim of cumulative prosecutorial error also fails. See Morris, 215 Ariz. 324, ¶¶ 47, 67. Ortiz has not shown that the trial court abused its discretion or acted arbitrarily in denying his motion for a new trial, and we therefore decline to disturb that ruling. See Durham, 111 Ariz. at 23.
Alleged Other-Act Evidence
¶39 Finally, Ortiz contends "fundamental error occurred when A.M. was allowed to testify to a multitude of irrelevant and prejudicial character evidence barred by" Rule 404(b), Ariz. R. Evid. As Ortiz appears to concede, he waived all but review for fundamental, prejudicial error by failing to object at trial to the testimony he now characterizes as "irrelevant and inadmissible 404(b) evidence." State v. Escalante, 245 Ariz. 135, ¶ 12 (2018).
¶40 Ortiz contends A.M. was "inappropriately" permitted to testify about the September 2017 incident when he surprised her with a rifle outside her apartment and the January 2018 threatening phone call in which Ortiz told A.M. that he had considered hiring someone to kill or harm her. Ortiz argues this evidence was "not relevant to the offense in question." We cannot agree. Both of these aspects of A.M.'s testimony were the state's primary evidence of stalking, count one of the indictment on which Ortiz was tried. Simply put, such testimony cannot be correctly characterized as "other act" or "character" evidence.
In his reply brief, Ortiz contends that, even if the evidence was admissible as to the stalking charge, the trial court erred in failing to provide a limiting instruction to ensure that the jury did not consider it as probative of Ortiz's propensity to commit the other charged acts. But Ortiz has waived this argument by failing to raise it in his opening brief. See State v. Lopez, 217 Ariz. 433, n.4 (App. 2008).
¶41 The other aspects of A.M.'s testimony to which Ortiz now objects related to: (a) an incident early in the relationship in which Ortiz got upset, took his rifle into the bathroom, and discharged it, frightening A.M.; (b) a telephone conversation that led A.M. to believe Ortiz had shot his nephew; (c) Ortiz mentioning that he had considered "doing something" to the ROTC unit after he withdrew, which A.M. understood to mean "shooting up the unit"; (d) the incident when Ortiz faked his own death; and (e) other references to Ortiz's depression, crying, and suicidal ideations. All of this evidence that Ortiz had repeatedly "behaved in an erratic, suicidal manner with a gun" was relevant to providing context for the jury and explaining why A.M. would reasonably fear Ortiz's stalking threats and his behavior on the day of the kidnapping. Because A.M.'s emotional reactions to Ortiz's actions were key elements of the charges in this case, the challenged evidence was highly probative and properly admitted. See State v. Ferrero, 229 Ariz. 239, ¶ 23 (2012) (other-act evidence that "completes the story" or provides key background admissible if not proffered to show defendant prone to committing crimes or "otherwise a bad person" (quoting United States v. Green, 617 F.3d 233, 249 (3d Cir. 2010))); State v. Cook, 150 Ariz. 470, 472-73 (1986) (jury entitled to have evidence of crime "fixed in the background of the accompanying events" and other-act evidence admissible if necessary for "full story [to] be understood"). The evidence was also relevant to the state's theory of the case: that Ortiz had extreme reactions and blamed A.M. for ruining his career, which culminated in him committing these crimes against her. See Ariz. R. Evid. 404(b)(2) (other-act evidence admissible to prove motive and intent); see also State v. Fulminante, 161 Ariz. 237, 247 (1998) (evidence of prior acts, "together with defendant's expressions to get even with the victim, show a continuing state of mind from which a jury could properly infer" motive); Cook, 150 Ariz. at 472-73 (other-act evidence admissible if "help[ful] to explain the state's theory").
As the state correctly notes, Rule 404(b) relates only to conduct, whereas the admissibility of statements is governed by hearsay rules. State v. Huerstel, 206 Ariz. 93, ¶ 69 (2003). Not only were Ortiz's statements not "other acts" governed by Rule 404(b); they were party admissions and therefore not hearsay. See Ariz. R. Evid. 801(d)(2)(A).
¶42 Ortiz has failed to establish any error. Thus, he has also failed to establish fundamental error. See Escalante, 245 Ariz. 135, ¶ 21 ("first step in fundamental error review is determining whether trial error exists").
Disposition
¶43 We affirm Ortiz's convictions and sentences.