Opinion
No. 2 CA-CR 2017-0351
09-07-2018
THE STATE OF ARIZONA, Appellee, v. MATTHEW DEAN GOHN II, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Emily Danies, 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NOT FOR PUBLICATION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 Gila County
No. S0400CR201500476
The Honorable Gary V. Scales, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee Emily Danies, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 After a jury trial, Matthew Gohn was convicted of manslaughter and three counts of endangerment. The trial court imposed concurrent and consecutive terms of imprisonment totaling thirteen years. Gohn argues the court erred by failing to contemporaneously record bench conferences and by admitting gruesome photographs of a victim. He also contends he was denied a fair trial due to prosecutorial misconduct. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to affirming Gohn's convictions. See State v. Granados, 235 Ariz. 321, ¶ 2 (App. 2014). Late on August 14, 2015, Gohn went to a bar in Globe with several friends to celebrate his birthday. While there, Gohn consumed several alcoholic beverages, including ales, beers, and shots of whisky. When the bar closed at 2 a.m. the next morning, a group of people decided to go to "the Pinals"—an isolated campground on a nearby mountain—for an after-party. Gohn offered to drive B.G., S.F., J.S., C.W., and J.H. On the way, Gohn was "showing off his truck," which had "punisher" written across the tailgate and was lifted with forty-inch tires. According to S.F., Gohn kept slowing down and speeding up and was "[g]oing around the corners too fast." C.W. similarly described Gohn's driving as "[p]retty dangerous." Both C.W. and B.G. told Gohn to slow down.
¶3 At the after-party, there was more drinking. Gohn had a handgun and fired it "[b]lindly, out in the hills somewhere." Gohn, B.G., S.F., J.S., and C.W. were the last to leave at about 3 a.m. J.H. got a ride back to town with someone else. Gohn again drove his truck, speeding "faster than when [they] were going out there" and scaring his passengers. He was going so fast that the truck began to "slide and drift."
¶4 The passengers again told Gohn to slow down. When C.W. grabbed Gohn to get his attention, Gohn slowed down, "taunted" them by asking if they were scared, and then sped up again. Gohn lost control going around a curve, causing the truck to rotate sideways and roll over. Gohn, S.F., J.S., and C.W. were all able to climb out of the overturned truck. J.S. and C.W. worked together to pull out B.G.; however, they immediately noticed her body was limp. It was later determined that B.G. died from blunt force trauma to her head as a result of the rollover.
¶5 Gila County Sheriff's deputies responded to the scene and arrested Gohn after performing field-sobriety tests and observing signs of his intoxication. Gohn admitted to deputies that he had "a couple of beers." Subsequent testing of Gohn's blood showed .092 alcohol concentration (AC) approximately four hours after the accident. A retrograde analysis established that Gohn had an AC range of .130 to .207 at the time of the accident.
¶6 A grand jury indicted Gohn for manslaughter (B.G.) and three counts of endangerment (S.F., J.S., and C.W.). He was convicted as charged and sentenced as described above. We have jurisdiction over Gohn's appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Bench Conferences
¶7 Gohn contends the trial court erred by denying his repeated requests to contemporaneously record bench conferences. He maintains "there were sixty-five bench conferences" during the five-day trial and defense counsel "was asked to keep [the substance of those conferences] in his head, throughout subsequent proceedings, . . . and regurgitate it at a later time" for the record.
¶8 Control of the courtroom and trial proceedings lies within the discretion of the trial court. See State v. Bible, 175 Ariz. 549, 595 (1993); see also Christy A. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 299, ¶ 31 (App. 2007). However, our supreme court has long "disapproved of the practice of holding unrecorded bench conferences." State v. Hargrave, 225 Ariz. 1, ¶ 61 (2010); see also State v. Bay, 150 Ariz. 112, 115 (1986) ("This practice, if customary, should be immediately discontinued."). Although this practice at times "may be expedient and avoid some delay, it more often leads to confusion and inefficiency, frequently defeating the goal of preserving for appellate review an accurate record of what actually transpired in the trial proceedings." State v. Babineaux, 22 Ariz. App. 322, 324 (1974). But the supreme court "ha[s] never required 'the verbatim reporting of all bench conferences.'" Hargrave, 225 Ariz. 1, ¶ 61 (quoting State v. Berndt, 138 Ariz. 41, 46 (1983)). What is required is a record that is "sufficiently complete to allow 'adequate consideration of the errors assigned.'" Id. (quoting State v. Moore, 108 Ariz. 532, 534 (1972)). The failure to record bench conferences does not constitute reversible error when the defendant has suffered no prejudice. See State v. Paxton, 186 Ariz. 580, 589 (App. 1996); see also State v. Sanchez, 130 Ariz. 295, 301 (App. 1981).
¶9 Based on this clear direction from our supreme court, we conclude, and the state seems to agree, that contemporaneously recording the bench conferences would have been the better practice in this case. See Hargrave, 225 Ariz. 1, ¶ 61; see also Bay, 150 Ariz. at 115. Nonetheless, the record is sufficiently complete for us to consider the issues raised on appeal. See Hargrave, 225 Ariz. 1, ¶ 61.
To the extent the trial court indicated it was the court reporter's responsibility to determine whether to record the bench conferences, we disagree. "A trial judge must control the courtroom to help ensure a fair trial." Bible, 175 Ariz. at 595. The court reporter follows the direction of the court. See id.; see also Ariz. R. Evid. 611(a) ("The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence.").
¶10 The trial court repeatedly allowed Gohn—and the state—to make a record of the issues raised during the unrecorded bench conferences. Cf. id. ¶ 62 (no reversible error when trial court ensured "adequate after-the-fact record was made of the discussions that occurred during each unrecorded conference"). Although Gohn maintains this procedure forced defense counsel "to rely on his memory and notes," Gohn does not argue that the record is somehow incomplete. Indeed, the record shows defense counsel carefully tracked issues addressed in the unrecorded bench conferences and later brought them up on the record. Thus, "[t]his is not a case in which an inadequate record impairs [Gohn's] ability to challenge rulings made by the trial court or preserve objections for appeal." Berndt, 138 Ariz. at 46.
¶11 Gohn nevertheless contends, "Because there is no contemporaneous record of the bench conferences referenced here, there is no way to adequately determine the extent of [the prosecutor's] misconduct," as it relates to that issue on appeal. However, any misconduct during the unrecorded bench conferences occurred outside of the jury's presence and necessarily had no effect on its verdicts. See State v. Williams, 113 Ariz. 14, 16 (1976) ("[R]emarks made outside the hearing of the jurors, even if prejudicial to the appellant, could not keep the jury from exercising an impartial judgment on the merits, and do not warrant a reversal."). Accordingly, Gohn was not prejudiced by the trial court's failure to permit a record of the bench conferences. See Paxton, 186 Ariz. at 589; see also Sanchez, 130 Ariz. at 301.
Prosecutorial Misconduct
¶12 Gohn maintains he was denied a fair trial based on the prosecutor's "cumulative and egregious" misconduct. We review for an abuse of discretion the denial of a motion for a mistrial based on prosecutorial misconduct. State v. Burns, 237 Ariz. 1, ¶ 146 (2015).
¶13 "Misconduct is defined as conduct that '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.'" State v. Martinez, 221 Ariz. 383, ¶ 36 (App. 2009) (quoting Pool v. Superior Court, 139 Ariz. 98, 108-09 (1984)). "To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor's misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process." State v. Goudeau, 239 Ariz. 421, ¶ 193 (2016) (quoting State v. Hughes, 193 Ariz. 72, ¶ 26 (1998)).
¶14 In reviewing cumulative prosecutorial-misconduct claims, we begin by assessing each claim individually. State v. Hulsey, 243 Ariz. 367, ¶ 88 (2018). After considering which claims constitute error, we review the cumulative effect of any error to determine whether it rendered the trial unfair. Id. We will reverse only "if the cumulative effect of the alleged acts of misconduct '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. Bocharski, 218 Ariz. 476, ¶ 74 (2008) (quoting State v. Roque, 213 Ariz. 193, ¶ 155 (2006)).
¶15 Gohn contends the prosecutor committed misconduct by asking questions that the trial court had precluded, repeatedly making "speaking objections and arguments" despite the court's instruction not to, and impugning the integrity of defense counsel. We address each alleged instance in turn.
For each alleged instance of prosecutorial misconduct, Gohn offers insufficient argument and authority to support his position. See Ariz. R. Crim. P. 31.10(a)(7). Accordingly, we could deem the arguments waived. See State v. James, 242 Ariz. 126, n.4 (App. 2017). However, because all the arguments underlie the cumulative-error claim, we nonetheless consider them to the extent we are able to discern them.
Precluded Questions
¶16 Gohn first argues the prosecutor committed misconduct during the redirect examination of S.F. The prosecutor initially asked her, "[C.W.] told the defendant to slow down, correct?" But the trial court sustained Gohn's hearsay objection. The prosecutor then asked, "And [J.S.] told him to slow down, too, correct?" And the court once again sustained an objection based on "hearsay and misconduct."
¶17 Gohn asserts this constituted misconduct because the prosecutor asked a question to which the trial court had sustained an objection. However, we cannot say that the prosecutor's repeated question to the witness was "intentional conduct which the prosecutor [knew] to be improper and prejudicial." Martinez, 221 Ariz. 383, ¶ 36. As the state points out, despite the trial court's decision to sustain the first objection, the question did not present a hearsay issue. See Ariz. R. Evid. 801(c) (hearsay is statement not made while testifying offered to prove truth of matter asserted in statement); State v. Fischer, 219 Ariz. 408, ¶ 33 (App. 2008) ("Statements made as a command are not hearsay if they are not intended as an assertion."). In fact, the court allowed, over Gohn's objection, the prosecutor to ask similar questions of other witnesses. Thus, the record does not clearly establish that the prosecutor understood the question was improper or, for that matter, that it was.
¶18 Next, Gohn contends the prosecutor committed misconduct during his cross-examination of Gohn. During a bench conference, the trial court stated that it would allow the prosecutor to ask Gohn whether defense experts were appointed in this case. However, it cautioned that he could not "ask [Gohn] why nothing was done," reasoning it was protected by the attorney-client privilege and work-product doctrine. Shortly thereafter, the prosecutor asked Gohn, "Did any of these experts ever come up with anything?" Defense counsel moved for a mistrial based on prosecutorial misconduct, which the court denied.
¶19 Gohn argues the prosecutor's question amounted to misconduct because the trial court's ruling was "clear" and the prosecutor disregarded it. The state counters that the court's ruling was not at all clear. After the court ruled the prosecutor could not "ask [Gohn] why nothing was done," the following exchange occurred:
Prosecutor: . . . And I was not going to argue with you, but what I was going to tell you was, I had no intention of asking the defendant why this stuff wasn't done. I was just going to ask him was anything done.The prosecutor interpreted this latter statement to mean he could ask the question. In ruling on Gohn's motion for a mistrial, the court acknowledged that it had "actually said contradictory things." Thus, we see no reason to conclude the prosecutor committed misconduct by asking a question he reasonably believed he could ask in light of the court's direction. See Martinez, 221 Ariz. 383, ¶ 36.
The court: I think that's appropriate.
¶20 Last, Gohn contends the prosecutor committed misconduct by asking Gohn about privileged information. Regarding the blood sample taken by law enforcement, the prosecutor asked, "You were never told by your attorney that this blood was available?" Gohn moved for a mistrial, arguing that the trial court had previously instructed the prosecutor "not to get into privilege[d] information." The motion was denied.
¶21 On appeal, Gohn contends this constituted misconduct because the prosecutor "disregarded the [trial] court's order . . . about privileged information." However, we have found nothing in the record to indicate the court entered an "order about privileged information" before the prosecutor asked this question. Instead, the following occurred:
[Prosecutor]: . . . And it's true that neither you, nor your attorney, have ever complained about any inaccuracies in the transcript, have you?Even assuming this exchange should have somehow put the prosecutor on notice that the question about Gohn's blood sample was improper, we cannot say the prosecutor intentionally asked the question with the intent to prejudice Gohn. See id.
[Defense counsel]: Your honor, I object to anything that has to do with my representation of Mr. Gohn. That's privileged and inappropriate for comment.
The court: Sustained.
Speaking Objections
¶22 Gohn next argues that the prosecutor committed misconduct by "ignoring the judge's orders" and making "speaking objections and arguments." Gohn directs us to three specific instances and suggests the trial court erred in denying his related motion for a mistrial.
¶23 On multiple occasions, the trial court directed both parties to avoid "speaking objections" and instead to request bench conferences. During one bench conference after defense counsel had challenged the prosecutor's "speaking objection," the court noted that it had "cautioned both parties, but especially [the prosecutor]," to "stop doing [the] speaking objections." Addressing the prosecutor, the court added, "I think you know you're doing them, and I'm going to admonish you to not do them any more." Based on the court's suggestion that the prosecutor knew he was doing something that the court had directed him not to—and given that the speaking objections continued even after this admonition—we conclude that the conduct was intentional and improper. See id.
¶24 However, we are confident beyond a reasonable doubt that any error was harmless. See Hulsey, 243 Ariz. 367, ¶ 88; see also Bible, 175 Ariz. at 588 (error harmless "if we can say, beyond a reasonable doubt, that the error did not contribute to or affect the verdict"). "Arizona law does not explicitly prohibit speaking objections, but '[t]o the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.'" State v. Lynch, 238 Ariz. 84, ¶ 17 (2015) (quoting Ariz. R. Evid. 103(d)), rev'd on other grounds, ___ U.S. ___, 136 S. Ct. 1818 (2016). Gohn does not argue, and the record does not reflect, that the prosecutor incorporated inadmissible evidence into his speaking objections. See Lynch, 238 Ariz. 84, ¶ 17. We have reviewed each of the instances to which Gohn has directed us, and none of them presented the jury with information that would have improperly affected its verdicts—they were limited to short explanations and legal argument.
Impugning Integrity of Defense Counsel
¶25 We first address the two instances of purported misconduct—wherein the prosecutor made statements about defense counsel "sugar coating" a witness's testimony and creating delay—that occurred during bench conferences. Because the jury was not present for these statements, we fail to see how the prosecutor knew his conduct was prejudicial, or for that matter that it actually was prejudicial. See Martinez, 221 Ariz. 383, ¶ 36; see also Williams, 113 Ariz. at 16. As we stated above, the prosecutor's conduct outside of the jury's presence could not have "infected the trial with unfairness." Goudeau, 239 Ariz. 421, ¶ 193 (quoting Hughes, 193 Ariz. 72, ¶ 26).
¶26 We likewise address the next three instances of purported misconduct together. Gohn argues the first occurred in response to defense counsel's objection when the prosecutor showed a witness a photograph. Defense counsel objected to the prosecutor "putting [the photograph] in front of the jury, when it's not admitted." In response, the prosecutor stated, "Judge, [defense counsel]'s had these photographs for probably two years now. I don't know what the objection is." The trial court later denied Gohn's motion for a mistrial based on prosecutorial misconduct. As he did below, Gohn reasons that this disparaged defense counsel because "[a]ll the jury heard was that [defense counsel] had apparently not done his job during the 'two years now' that he had access to the photographs."
¶27 The next instance occurred during redirect examination while the prosecutor was reviewing a portion of a witness's statement to law enforcement:
Q. Well, [defense counsel] failed to point out that just a couple of lines down—in fact, the very next question and answer, you also told Detective Campbell that at times, he would be driving 60 miles an hour, right?The third instance occurred moments later in response to a hearsay objection by defense counsel. The prosecutor stated, "It's redirect. [The victim] sugar coated the defendant's driving on cross . . . ." Gohn summarily suggests these latter two instances constitute "unwarranted abuse" of defense counsel and the victim.
A. Yes.
[Defense counsel]: Your Honor, I object to the form of the question with regard—
The court: In what regard?
[Defense counsel]: My failure to do . . . something. That is inappropriate.
¶28 We are unconvinced that any of these instances "amounts to intentional conduct which the prosecutor [knew] to be improper and prejudicial." Martinez, 221 Ariz. 383, ¶ 36 (quoting Pool, 139 Ariz. at 108); see also State v. Bailey, 132 Ariz. 472, 479 (1982) ("[P]rosecutor may not insinuate that [a witness] is unethical or incompetent without properly admitted evidence to support it."). Instead, even assuming they amount to error, they appear to be in the nature of "negligence, mistake, or insignificant impropriety." Martinez, 221 Ariz. 383, ¶ 36 (quoting Pool, 139 Ariz. at 108). Moreover, the trial court was in the best position to evaluate what effect, if any, the prosecutor's conduct had on the jury, and it concluded the prosecutor's conduct did not warrant a mistrial. See State v. Bailey, 160 Ariz. 277, 279 (1989). Notably, with regard to the second instance, the trial court struck the improper part of the question. The court also instructed the jury that arguments of counsel are not evidence and that, "If an objection to a question was sustained, you must disregard the question and you must not guess what the answer to the question might have been." We presume jurors follow the instructions they are given. State v. McCurdy, 216 Ariz. 567, ¶ 17 (App. 2007).
Cumulative Error
¶29 Gohn contends that cumulative error occurred because the above instances "paint a picture of a prosecutor who repeatedly committed misconduct in a way that likely influenced the jury's verdict[s]" and denied him a fair trial. He did not make a cumulative-error argument below, see State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005), or argue on appeal that fundamental error occurred, see State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008). However, because the denial of a fair trial constitutes fundamental error, we nonetheless address his argument. See State v. Hernandez, 170 Ariz. 301, 307 (App. 1991).
¶30 The claimed instances of prosecutorial misconduct in this case were all non-errors or harmless errors. Although the prosecutor was contentious at times, we cannot say the cumulative effect establishes that he "intentionally engaged in improper conduct and did so with indifference, if not a specific intent, to prejudice [Gohn]." Bocharski, 218 Ariz. 476, ¶ 74 (quoting Roque, 213 Ariz. 193, ¶ 155). Based on defense counsel's similar behavior, we agree with the state that "the jury had . . . no reason to favor one side over the other."
Quoting Pool, 139 Ariz. at 103, Gohn argues that "similar misconduct on the part of the defense does not entitle the prosecutor 'to engage in abusive, argumentative and harassing conduct.'" We agree, and only point out that both attorneys engaged in this behavior to show the overall atmosphere of the trial. See State v. Newell, 212 Ariz. 389, ¶ 60 (2006) ("The 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.'" (quoting Hughes, 193 Ariz. 72, ¶ 26)).
¶31 Moreover, given the overwhelming evidence of guilt, we conclude beyond a reasonable doubt that the challenged conduct by the prosecutor did not prejudice Gohn. See A.R.S. §§ 13-105(10)(c), 13-1103(A)(1), 13-1201(A); see also State v. Morris, 215 Ariz. 324, ¶ 67 (2007) (no prejudice from prosecutorial misconduct given overwhelming evidence of defendant's guilt). Gohn admitted he had several alcoholic drinks the night of the accident, and his AC was above the legal limit. See A.R.S. § 28-1381(A)(2) (unlawful to drive if person has AC of .08 or more within two hours of driving). S.F., C.W., and J.S. all testified that Gohn sped up the mountain in an unsafe manner. C.W. and B.G. told Gohn to slow down, with B.G. telling him that "she had to get back to her daughter." Once they stopped, C.W. "got in [Gohn's] face" and they went "toe to toe about" Gohn's driving because C.W. was extremely upset and B.G. was "sick to her stomach."
¶32 Nevertheless, on the drive back, Gohn's speeding continued. The passengers again told Gohn to slow down, but he only "taunted" them and sped up. C.W. rolled up his window because he "felt like [he] was going to fall out." Gohn lost control, and the truck rolled over multiple times. B.G. died as a result, and the others suffered minor injuries. In light of this evidence, Gohn's trial was not "so infected . . . with unfairness as to make the resulting conviction a denial of due process." Goudeau, 239 Ariz. 421, ¶ 193 (quoting Hughes, 193 Ariz. 72, ¶ 26); cf. State v. Newell, 212 Ariz. 389, ¶ 70 (2006) (despite comments being improper, they were not so prejudicial as to deprive defendant of right to fair trial).
Photographs
¶33 Gohn lastly contends the trial court erred by admitting two "gruesome" photographs of B.G. We review the decision to admit a photograph for an abuse of discretion. Morris, 215 Ariz. 324, ¶ 69. In doing so, we consider three factors: "the photograph's relevance, its tendency to inflame the jury, and its probative value compared to its potential to cause unfair prejudice." State v. Hampton, 213 Ariz. 167, ¶ 17 (2006).
¶34 A photograph "is relevant if it aids the jury in understanding any issue in dispute." State v. Amaya-Ruiz, 166 Ariz. 152, 170 (1990); see also Ariz. R. Evid. 401 (evidence relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action"). Photographs of a victim's body may be relevant to identify the victim, show the nature and location of the fatal injury, corroborate the evidence, establish the atrociousness of the crime, illustrate the testimony, or support the state's theory of the case. State v. Anderson, 210 Ariz. 327, ¶ 39 (2005). "[E]ven if the defendant stipulates to the manner of death, some photographs of victims depicting important aspects of the crime are relevant to show what actually occurred." State v. Roscoe, 184 Ariz. 484, 494 (1996); see also State v. Purcell, 117 Ariz. 305, 309 (1977) (photographs could assist jury in determining whether killing was first- or second-degree murder or manslaughter).
¶35 However, gruesome photographs may not be introduced "for the sole purpose of inflaming the jury." State v. Gerlaugh, 134 Ariz. 164, 169 (1982). Although gruesome photographs have "some potential to inflame the jury," their probative value may still outweigh any danger of unfair prejudice, making them admissible. State v. Burns, 237 Ariz. 1, ¶ 62 (2015); see also Ariz. R. Evid. 403 (court may exclude relevant evidence if probative value substantially outweighed by danger of unfair prejudice).
¶36 At issue here are Exhibits 7 and 15. Exhibit 7 is a photograph showing the accident scene with Gohn's truck upside down in the roadway and B.G.'s bloody body lying on the pavement a few feet away. Exhibit 15 is a close-up photograph of Gohn's overturned truck with B.G.'s feet and lower legs in the foreground.
¶37 At trial, Gohn objected to the admission of these photographs, arguing that "they [were] not relevant to any fact of consequence." He reasoned that the photographs "went to largely uncontested issues" regarding "the victim's death, the extent of her injuries, or the manner of her demise." In response, the prosecutor argued that the photographs were relevant because they depicted the accident scene, which assisted the accident reconstructionist in reaching his conclusions, and showed "the ferocity of the crash" in light of Gohn's "challenge [to the] speed calculation." Specifically with regard to Exhibit 7, the prosecutor pointed out that he had chosen that photograph because it was not "overly gruesome" and showed how B.G. died "in a fero[cio]us crash." The court admitted the photographs, finding them "relevant to the reconstruction of the damage."
¶38 On appeal, Gohn again asserts that "Exhibits 7 and 15 were . . . not necessary to prove the cause or manner of death or to help any witness describe the injuries to the victim." He further maintains, "The jury could have gained the same information from Exhibit 18 and the testimony of the victims, officers, and the accident reconstructionist." He therefore argues that "the 403 weighing should have been clear" and that "the trial court abused its discretion in admitting Exhibits 7 and 15."
¶39 With regard to Exhibit 15, we cannot say the trial court abused its discretion. See Morris, 215 Ariz. 324, ¶ 69. Although some aspects of the photograph—including the upside-down truck and scattered debris—were generally depicted in other photographs, it nonetheless shows the nature of the accident and illustrates the witnesses' testimony. See Anderson, 210 Ariz. 327, ¶ 39. The photograph is not unduly inflammatory given that it only shows B.G.'s lower legs and feet. See Morris, 215 Ariz. 324, ¶ 71 (photographs of victim's hands or feet and nude body from distance not gruesome); see also Roscoe, 184 Ariz. at 494-95 (photograph of victim's feet not gruesome). Although the photograph shows blood on the ground, it is several feet from the body and is obscured. Cf. State v. Harding, 141 Ariz. 492, 499 (1984) (photograph not showing result of violence to victim except gag around mouth not gruesome). It is thus not "of a nature to incite passion or inflame the jury." State v. Chapple, 135 Ariz. 281, 288 (1983). Because it is a "fair representation[] of what happened here," the photograph "cannot be said to be unfairly prejudicial." State v. Rienhardt, 190 Ariz. 579, 584 (1997).
¶40 It is a closer question with regard to Exhibit 7. Like Exhibit 15, Exhibit 7 is relevant to show the nature and location of the accident and B.G.'s fatal injury. See Anderson, 210 Ariz. 327, ¶ 39. In addition, it is relevant to show Gohn's recklessness. See §§ 13-105(10)(c), 13-1103(A)(1), 13-1201(A). However, the photograph is gruesome—it shows B.G.'s bloody body and head injuries. That said, "In prosecuting a crime of this nature, the state must be allowed some latitude to show what actually occurred." Amaya-Ruiz, 166 Ariz. at 171. And we agree with the state that the deputy's "unobjected-to live testimony . . . was more detailed and arguably more graphic than the visual image itself." Accordingly, we cannot say the trial court clearly abused its discretion in admitting the photograph. See Morris, 215 Ariz. 324, ¶ 69; see also State v. Cooperman, 232 Ariz. 347, ¶ 17 (2013) (trial courts have "considerable discretion" in deciding whether to exclude evidence under Rule 403).
Although Gohn suggests that Exhibit 18 was a sufficient substitute for Exhibit 15, Exhibit 18 was not admitted and is not part of the record on appeal. We thus have no way to compare the photographs. See State v. Herrera, 232 Ariz. 536, ¶ 24 (App. 2013) (appellate court's review limited to record before trial court); see also State v. Mendoza, 181 Ariz. 472, 474 (App. 1995) ("It is the defendant's duty, as the party seeking relief, to prepare the record in such a manner as to allow the appellate court to pass upon the questions raised on appeal."). --------
¶41 However, even assuming the trial court erred in admitting the photographs, we are satisfied beyond a reasonable doubt that any error would have been harmless. See Bible, 175 Ariz. at 588. As described above, the state presented overwhelming evidence of Gohn's guilt without the photographs. See State v. Spreitz, 190 Ariz. 129, 142 (1997) (admission of gruesome autopsy photographs harmless in light of overwhelming evidence against defendant). Accordingly, no reversible error occurred with regard to the admission of Exhibits 7 and 15.
Disposition
¶42 For the foregoing reasons, we affirm Gohn's convictions and sentences.