Opinion
No. 1 CA-CR 10-0752
05-22-2012
STATE OF ARIZONA, Appellee, v. BENJAMIN SCOTT HAMMAR, Appellant.
Thomas Horne, Arizona Attorney General Phoenix By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Jeffrey L. Sparks, Assistant Attorney General Attorneys for Appellee Bruce Peterson, Maricopa County Legal Advocate Phoenix By Frances J. Gray, Deputy Legal Advocate Attorneys 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(Not for Publication -Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2008-048110-001 DT
The Honorable Warren J. Granville, Judge
The Honorable Brian S. Rees, Judge Pro Tem
AFFIRMED
Thomas Horne, Arizona Attorney General PhoenixDOWNIE, Judge
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section Jeffrey L. Sparks, Assistant Attorney General
Attorneys for Appellee
Bruce Peterson, Maricopa County Legal Advocate Phoenix
By Frances J. Gray, Deputy Legal Advocate
Attorneys for Appellant
¶1 Benjamin Scott Hammar appeals his conviction and sentence for second degree murder. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
We view the facts in the light most favorable to sustaining the jury's verdict and resolve all reasonable inferences against Hammar. State v. Vendever, 211 Ariz. 206, 207 n.2, ¶ 1, 119 P.3d 473, 474 n.2 (App. 2005). We refer to various witnesses in this criminal proceeding by their first names.
¶2 On January 31, 2008, Chris and Merritt drove from California to Phoenix in Merritt's truck. They met Hammar at the home he shared with his girlfriend, Ellacia. Over the course of the evening, Hammar became "sloppy drunk." At one point, Hammar told a friend named Kim that Merritt had guns and a nice truck and said "something about jacking [Merritt] and it would be a heck of a come up." Kim later saw Merritt in his truck, with Hammar standing next to the open door. Hammar put Merritt in a headlock and punched him in the face. Merritt was angry that he "got hit for no reason" and left for Angie's house, where Chris and Hammar later arrived.
¶3 In the early morning of February 1, Hammar left Angie's house. Later that morning, Merritt found his truck window broken and several items missing, including a Glock 9mm handgun that had been secured in a lockbox. Merritt called his father to obtain the gun's serial number, and he called the police to report the incident.
¶4 Later that day, Merritt, Chris, and Hammar went to Ellacia's. Merritt and Hammar were together in the backyard. Chris was in the front yard when he heard a gunshot that "sounded close," and then saw Hammar walk from the backyard holding Merritt's handgun. Chris was frightened and walked away, but Hammar followed him, firing the gun once or twice as they walked. Hammar also had Merritt's cell phone and gun magazines.
¶5 David, Chris, and Hammar returned to Ellacia's. Hammar backed Merritt's truck up to the backyard gate and dragged Merritt's body to it; Chris helped him lift the body into the truck bed. Hammar drove the truck into the desert. Chris watched Hammar pull Merritt's body onto the roadway and drag it into a wash.
¶6 When Ellacia arrived home, she found her gate open and blood in the backyard. She called police, who discovered a pool of blood, as well as Merritt's wallet, identification, and a handwritten note containing the serial number of his handgun. Testing revealed that the blood was Merritt's.
¶7 Hammar was arrested at approximately 1:15 a.m. on February 2. He had in his possession Merritt's gun, two loaded magazines, and the key to Merritt's truck. Hammar was also wearing Merritt's sweatshirt, which was stained with Merritt's blood. Gunshot residue testing revealed Hammar may have "discharged a firearm, may have been in close proximity of a firearm discharged, or may have contacted something with [gunshot residue] on it." Later that day, Chris went to police headquarters and explained what had happened, omitting his role in moving Merritt's body. Chris eventually admitted his involvement and led police to the body. Merritt had been killed by a single gunshot to the back of his head with a 9mm bullet from a Glock-type handgun.
¶8 Hammar was charged with second degree murder, a class 1 dangerous felony. He requested a competency examination, claiming a 2007 brain injury had left him with memory impairment that rendered him unable to assist in his defense. The court appointed two experts, Dr. Segal and Dr. Mogrovejo, to evaluate Hammar. At an ensuing evidentiary hearing, the court considered written reports from these two doctors and heard testimony from the defense expert, Dr. Sullivan, and the neurosurgeon who removed a blood clot from Hammar's brain in 2007. The court found Hammar competent to stand trial.
The State also charged Hammar with misconduct involving weapons. That count was severed for purposes of trial. Hammar pled guilty to that charge after his murder trial, and he was sentenced to a concurrent presumptive 10-year prison term.
¶9 After a jury trial, Hammar was found guilty and was sentenced to an aggravated, 18-year prison term. He timely appealed. We have jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031 and -4033.
DISCUSSION
I. Competence to Stand Trial
A. Competency Determination
¶10 Hammar contends the trial court applied an incorrect legal standard in making its competency ruling. The record reflects otherwise.
¶11 "Competency focuses on an extremely narrow issue: whether whatever is afflicting the defendant has so affected his present capacity that he is unable to appreciate the nature of the proceedings or to assist his counsel in conducting his defense." State v. Steelman, 120 Ariz. 301, 315, 585 P.2d 1213, 1227 (1978) (citation omitted). "Since competency to stand trial is essentially a factual question to be decided on a case by case basis, our role as an appellate court is merely to determine whether the trial court's finding is supported by reasonable evidence . . . ." State v. Ferguson, 26 Ariz. App. 285, 286, 547 P.2d 1085, 1086 (1976) (citations omitted).
Hammar does not contend he was unable to appreciate the nature of the proceedings, challenging only the determination that he was able to assist in his defense.
¶12 Hammar argued below that "brain damage" rendered him unable to assist his counsel. Dr. Sullivan testified that Hammar's short-term memory and his ability to retain and evaluate new information were "profoundly impaired" by brain trauma, that his "working memory" could not retain information "longer than just a few seconds," and that his short-term recall was "about five or six seconds." Dr. Sullivan further testified Hammar was "extremely suggestible and extremely compliant," raising concerns about his ability to consult with counsel, make his own decisions, or help challenge a witness's testimony. According to Dr. Sullivan, Hammar's ability to assist counsel was "potentially . . . severely compromised by the extreme nature of his memory impairment."
¶13 The court-appointed experts disagreed with Dr. Sullivan's assessment. According to Dr. Segal, Hammar could "register and recall three out of three objects at different intervals throughout the interview," "spell WORLD forward and backward," and "follow a complex, three step command with no difficulty." Dr. Segal also reported that Hammar related the "events he [was] accused of, including the location of the alleged crime, the time frame of the alleged crime, that the alleged victim was male, and that the alleged victim was shot." Dr. Segal believed Hammar could recognize possible "distortions" in testimony and "the need to inform his attorney in such an instance." Dr. Mongrovejo concluded Hammar's memory "appeared intact," that he had a "legal strategy," and that he was "willing to work with his attorney in his own defense." Both court-appointed experts believed Hammar was competent to stand trial.
¶14 "[T]he determination of competency to stand trial is always and exclusively a question for the court." Bishop v. Superior Court (Roylston) , 150 Ariz. 404, 409, 724 P.2d 23, 28 (1986). The trial court is not bound by the opinions of court-appointed experts and is not "required to accept or reject expert testimony in toto and may rely on particular views of one or more experts even though he or she may disagree with the expert's ultimate conclusion." State v. Bishop, 162 Ariz. 103, 107, 781 P.2d 581, 585 (1989) ("Bishop III") (citations omitted). The court may "rely on some testimony from one expert and other testimony from another expert and draw [its] own conclusions." Id.
¶15 The court here received conflicting expert evidence. It noted that Dr. Sullivan's findings suggested a person who "would not be able to really function" -- a conclusion it found inconsistent with evidence that Hammar required no follow-up medical care after surgery and worked for two years before the murder. The court ultimately rejected Dr. Sullivan's testimony and accepted the court-appointed experts' opinions. Such a decision was well within the trial court's discretion.
¶16 The record also refutes Hammar's contention that the trial court applied an incorrect legal standard to the competency determination. In issuing its ruling, the court stated, inter alia, that Hammar "does understand the nature and object of the proceedings and is able to assist his attorney, and is therefore competent pursuant to the statute." (Emphasis added.)
B. Memory Impairment
¶17 Hammar contends the court "simply declar[ed] that the memory impairment did not exist, suggesting instead that it was manufactured by [Hammar] and Dr. Sullivan." The record does not support this characterization. The trial court never suggested memory impairment "did not exist." It simply questioned whether the impairment was as severe as Dr. Sullivan opined. Additionally, because of the differing expert opinions, the court questioned Dr. Sullivan's belief that Hammar was not malingering. The court noted that cross-examination called into question the objectivity of some of the tests Dr. Sullivan used, reasoning that test results might be attributable to Hammar simply choosing to perform poorly. In any event, the court was not required to accept Dr. Sullivan's testimony, but was free to choose among the various expert opinions presented and to reach an independent conclusion. Bishop III, 162 Ariz. at 107, 781 P.2d at 585.
¶18 Hammar also argues the court should have addressed the Ferguson factors used to determine the competency of an "amnesiac defendant." 26 Ariz. App. at 286-87, 547 P.2d at 1086-87. Ferguson, though, does not require courts to address the enumerated factors every time a defendant claims amnesia. Moreover, we held in Ferguson that the court did not err in ruling the defendant competent, even though medical evidence established that his ability to testify about the timeframe of the offense was "virtually non-existent," because the defendant could understand the charges and assist in his defense. Id. at 288, 547 P.2d at 1088. An amnesia claim merely places a defendant capable of understanding the proceedings and of assisting counsel "in the same position 'as any defendant who alleges that at the time of the crime he was insane or very intoxicated or completely drugged, or a defendant whose mind allegedly went blank or who blacked out or who panicked and contends or testifies that he does not remember anything.'" Id. (citation omitted).
¶19 The record supports the trial court's competency determination.
II. Third-Party Culpability Evidence
¶20 Hammar next contends the trial court improperly precluded evidence supporting his defense that Chris killed Merritt and used Hammar as a fall guy by taking advantage of Hammar's memory impairment. We review a ruling regarding the admissibility of third-party culpability evidence for an abuse of discretion. State v. Prion, 203 Ariz. 157, 161, ¶ 21, 52 P.3d 189, 193 (2002) (citation omitted). "It is permissible for a defendant to attempt to show that another person committed the crime for which he is charged, but it remains in the trial court's discretion to exclude the evidence if it offers only a possible ground of suspicion against another." Id. (citations omitted).
A. Character Evidence
¶21 Hammar argues the trial court erroneously relied on Rule 404(b), Arizona Rules of Evidence ("Rule"), to exclude evidence that: (1) Merritt had a violent temper and "rapid bi-polar-like mood shifts" that placed him "in dangerous situations with others in the past"; (2) Chris angered easily, frequently hit his girlfriend and physically attacked her male friend, and often carried a gun; (3) Chris possessed a gun with ammunition in February 2009; and (4) Chris suffered from bi-polar disorder with "mania and homicidal ideations."
¶22 To some extent, the record suggests that the trial court did rely on Rule 404(b). See State v. Machado, 226 Ariz. 281, 284, ¶ 16, 246 P.3d 632, 635 (2011) (third-party culpability evidence is not governed by Rule 404(b)). We will, however, affirm the trial court if it was correct for any reason. State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (citations omitted). The record here demonstrates that the court focused on the proper threshold question and stated that "the only test" pertinent to its ruling was whether the evidence was "relevan[t]." See State v. Gibson, 202 Ariz. 321, 323, ¶ 13, 44 P.3d 1001, 1003 (2002) ("Initially, the court must determine if the proffered evidence is relevant."). The relevancy determination focuses on "the effect evidence has upon the defendant's culpability." Prion, 203 Ariz. at 161, ¶ 24, 52 P.3d at 193. Evidence is relevant if it has a tendency to "create a reasonable doubt that the defendant committed the offense." Gibson, 202 Ariz. at 323-24, ¶¶ 15-16, 44 P.3d at 1003-04.
However, the court also discussed the inapplicability of Rule 404(b) and asked defense counsel to explain how evidence of Chris's "violent character" was admissible. Defense counsel cited Prion in rejecting the court's characterization of the evidence as "violent character" evidence, instead arguing it was admissible as "motive" evidence. In this context, the court's statement that it was excluding the evidence "based on" Rule 404(b) is understandable.
¶23 The court asked defense counsel to articulate any link between the proffered evidence and the murders, to which counsel conceded, "[t]here's nothing that relates specifically here." Upon further questioning, defense counsel stated: "There's nothing that we have seen that indicates that on that particular day, or even previously, that there was any kind of animus" between Chris and Merritt. The "fact" that Chris and Merritt had violent tempers, that Chris possessed a gun or was bi-polar with homicidal ideations, or that he had a history of domestic violence, establishes neither opportunity nor motive for Merritt's murder. Without some evidence of animosity, grievance, or dispute between Chris and Merritt, the proffered defense evidence was more akin to "throw[ing] strands of speculation on the wall" to see if any stick. Machado, 226 Ariz. at 284 n.2, ¶ 16, 246 P.3d at 35 n.2. On this record, the court did not err in excluding the evidence.
B. Memory Impairment
¶24 Prior to trial, the State moved to exclude testimony from Dr. Sullivan and Hammar's neurosurgeon about the severity of Hammar's memory impairment. Hammar countered that the evidence was relevant to his third-party culpability defense because it showed Chris knew Hammar had a "terrible memory" and could thus "lie with impunity" about Hammar's involvement because Hammar "wouldn't be able to say, 'That didn't happen.'" But Hammar agreed the testimony was necessary only if the State suggested the brain injury and surgery did not occur or that Hammar's memory deficits or suggestibility did not exist. The trial court deferred ruling until relevant witnesses testified.
¶25 Ellacia testified that a few months before the murder, Hammar was hit in the head with a baseball bat, causing him to suffer seizures and require surgery. She further testified that after the surgery, Hammar continued to have seizures and blackouts, where he "didn't know where he was or what was going on"; that he had frequent memory lapses; that he would forget what she told him or tell her things "over and over about every 15 or 20 minutes"; and that he forgot entire periods of time. Ellacia also testified Chris started "hanging out" with Hammar right after the surgery, that Chris knew of Hammar's memory problems, and that Chris would "mess with" him by saying, for example, that Hammar had consumed "a whole 12 pack" of beer when he had not. On redirect examination, Ellacia testified Hammar's memory problems increased when he drank alcohol. The State also asked Ellacia if she had advised Hammar's doctors about his memory problems and noted that Ellacia had characterized them as being about "minor things" during a pretrial interview.
¶26 After Ellacia testified, defense counsel asked the court to revisit the evidentiary issue, arguing the jury was entitled to hear about the extent of Hammar's memory impairment. The court ruled that Hammar had established the relevant facts -- i.e., that Chris knew of Hammar's memory issues and could "manipulat[e]" him, and that the "scientific" explanation would create a "403 issue" for the jury.
Rule 403 allows the court to exclude relevant evidence "if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."
¶27 Hammar argues the court should have allowed medical evidence about the severity of his impairment because the State discredited his evidence. We conclude otherwise. Although Ellacia testified Hammar's memory problems worsened when he drank, she also testified in depth about his impairment, its effect on their daily lives, and explained that "the memory issues were already there before [Hammar] started drinking." Additionally, Chris testified about Hammar's inability to recall the fight with Merritt when Chris asked about it the following morning. Angie, a medical assistant, also testified Hammar had memory problems and rated "a 9 or so" on a 1 to 10 scale. On this record, we find no abuse of discretion in precluding the medical testimony.
Hammar also claims the court erred by excluding the testimony "based solely on the erroneous assumption that evidence related to the human brain is admissible only if the defendant raises an insanity defense." (Emphasis added.) As discussed supra, the court excluded the testimony under Rule 403(b).
III. Other Evidentiary Rulings
A. Hammar's Statements
¶28 Pursuant to Rule 404(b), the State sought to admit evidence that Hammar picked a fight with Merritt the night before the murder and made comments about "jacking" him for his guns and truck. After briefing and an evidentiary hearing, the court allowed Chris and Kim to testify about these "other acts."
¶29 We will affirm a trial court's ruling if it is legally correct for any reason. Perez, 141 Ariz. at 464, 687 P.2d at 1219. Rule 404(b) allows admission of "other crimes, wrongs or acts" to demonstrate "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
¶30 The evidence at issue was admissible under Rule 404(b) to demonstrate motive and intent and to explain how and why Hammar ended up in possession of Merritt's property and, ultimately, why he killed Merritt. It was also relevant and admissible under 404(b) to establish Hammar's "identity" as the shooter, especially given his third-party culpability defense. See State v. Phillips, 202 Ariz. 427, 435, ¶ 31, 46 P.3d 1048, 1056 (2002) (photograph of defendant holding two handguns, one of which matched description of gun used in robbery, relevant to whether defendant committed robbery).
¶31 The court instructed the jury it could consider evidence of the altercation and of Hammar's threats: (1) only if it found the State had proved the acts by "clear and convincing evidence" and (2) only as proof of Hammar's "motive, intent, plan and/or knowledge," but not as proof of any character or character trait that Hammar acted in conformity with in committing the crime. We presume that jurors follow their instructions. State v. Velazquez, 216 Ariz. 300, 312, ¶ 50, 166 P.3d 91, 103 (2007). Moreover, the State did not use the evidence to argue criminal propensity, but contended it was evidence of Hammar's "motive[,] . . . his intent, his plan, his knowledge."
B. Merritt's Statements
¶32 Hammar also argues the court erroneously admitted statements by Merritt to his father and Chris about his truck being burglarized and his gun stolen. He contends these statements violated his rights under the Confrontation Clause.
¶33 The Confrontation Clause protects a defendant's right to "confront the witnesses against him" and precludes admission of "testimonial" statements by witnesses who are unavailable at trial if a defendant had no prior opportunity to cross-examine them. State v. Parks, 211 Ariz. 19, 24-25, ¶¶ 24, 30, 116 P.3d 631, 636-37 (App. 2005). Testimonial statements include those "that declarants would reasonably expect to be used prosecutorially" and "statements made under 'circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'" Id. at 25, ¶ 28, 116 P.3d at 637 (citation omitted). We review de novo alleged Confrontation Clause violations. Id. at 24, ¶ 23, 116 P.3d at 636 (citation omitted).
¶34 It is clear from this record that, when Merritt made the challenged statements to Chris and his father, he was simply sharing information with a friend and a family member. "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Crawford v. Washington, 541 U.S. 36, 51 (2004). The fact Merritt asked his father for the serial number of the stolen handgun, which he would presumably provide when reporting the theft to the police, does not make his statement testimonial.
State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964).
¶35 Hammar next claims the trial court should have given a Willits instruction about the lockbox cable in Merritt's truck. To warrant a Willits instruction, a defendant must show: (1) the State failed to preserve material and reasonably accessible evidence having a tendency to exonerate him, and (2) this failure resulted in prejudice. State v. Speer, 221 Ariz. 449, 457, ¶ 40, 212 P.3d 787, 795 (2009) (citations omitted). The missing evidence must possess "exculpatory value that is apparent before it is destroyed." State v. Davis, 205 Ariz. 174, 180, ¶ 37, 68 P.3d 127, 133 (App. 2003). Whether a Willits instruction is warranted is a question for the trial court; we will not reverse its decision absent a clear abuse of discretion. Perez, 141 Ariz. at 464, 687 P.2d at 1219. "A trial court does not abuse its discretion by denying a request for a Willits instruction when a defendant fails to establish that the lost evidence would have a tendency to exonerate him." Speer, 221 Ariz. at 457, ¶ 40, 212 P.3d at 795 (citation omitted).
¶36 Merritt's father and Chris testified that Merritt secured the gun lockbox to the truck's interior with a cable. The cable was in the truck when officers impounded it, but it was not taken into evidence. Merritt's father testified the cable was not in the truck when officers released the vehicle to him. Detective Butcher testified defense counsel asked her to locate the cable, but she was "unable to do so."
¶37 Hammar argued the missing cable was exculpatory because whoever broke into the truck would probably have touched it, and he was denied the ability to analyze it to determine "if perhaps Chris['s] . . . DNA and fingerprint[s]" were on it. The court declined a Willits instruction, noting that "whether the cable itself had any DNA or fingerprints" was speculative and that such evidence was not sufficiently material because, while both parties connected the burglary to the murder, the State "had not intended or tried to prove [the burglary] as a" 404(b).
¶38 We agree. Whether the missing cable would have produced DNA or fingerprint evidence is entirely speculative; thus, it possessed no "exculpatory value that [was] apparent" before it was lost. Davis, 205 Ariz. at 180, ¶ 37, 68 P.3d at 133. Even if the cable lacked Hammar's DNA or fingerprints, or contained someone else's, such evidence would merely establish that someone else had touched the cable at some point in time. See, e.g., State v. Strong, 185 Ariz. 248, 251, 914 P.2d 1340, 1343 (App. 1995) (no error in failing to give Willits instruction based on failure to preserve possible fingerprints where such evidence would not possess exculpatory value). Because Hammar's claim that the cable would have produced exculpatory evidence was conjecture, the court did not err in refusing a Willits instruction.
IV. Sufficiency of the Evidence
¶39 At the conclusion of the State's case, Hammar moved for a judgment of acquittal pursuant to Rule 20, Arizona Rules of Criminal Procedure. He argued there was no "legally substantial evidence that the death was a homicide" and that the fatal gunshot was "not inconsistent with a suicide." Hammar also maintained that, even if there had been a homicide, there was no substantial evidence that he shot Merritt. He claims the only evidence the State produced consisted of Chris's statements and the fact he had a gun when arrested, with "no evidence that the fatal shot was fired by that weapon." According to Hammar, "[n]o reasonable person would accept Chris['s] testimony," given its inconsistencies.
¶40 The trial court denied the motion, noting that Chris's credibility was an issue for the jury. It further found that, "where the victim was shot [and] where the victim was found," the absence of a weapon at the scene, and the fact Hammar "was found with the victim's gun and the victim's blood on him" constituted substantial evidence the injury was not self-inflicted. The court concluded the evidence was sufficient to submit the case to the jury.
¶41 We review the denial of a judgment of acquittal for an abuse of discretion. State v. Sullivan, 187 Ariz. 599, 603, 931 P.2d 1109, 1113 (App. 1996). A trial court has no discretion to enter a judgment of acquittal if reasonable minds could differ on inferences to be drawn from the evidence. State v. Just, 138 Ariz. 534, 545, 675 P.2d 1353, 1364 (App. 1983). A judgment of acquittal is appropriate only if there is a complete lack of "substantial evidence" to support a conviction. Ariz. R. Crim. P. 20(a); State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997). "Substantial evidence is more than a mere scintilla and is such proof that 'reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.'" State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1980). Substantial evidence may be comprised of both circumstantial and direct evidence, and "[a] conviction may be sustained on circumstantial evidence alone." State v. Blevins, 128 Ariz. 64, 67, 623 P.2d 853, 856 (App. 1981) (citation omitted). When reviewing for sufficiency of the evidence, we determine whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have convicted the defendant of the crime in question. State v. Montano, 204 Ariz. 413, 423, ¶ 43, 56 P.3d 61, 71 (2003). If conflicts exist in the evidence, we resolve them in favor of sustaining the verdict. State v. Salman, 182 Ariz. 359, 361, 897 P.2d 661, 663 (App. 1994) (citation omitted).
¶42 The State presented substantial evidence that Hammar intentionally, knowingly or recklessly shot and killed Merritt. In addition to Chris's testimony, there was physical evidence: Hammar had Merritt's gun and truck keys and was wearing a sweatshirt with Merritt's blood on it when arrested. Gunshot residue testing revealed Hammar may have "discharged a firearm, may have been in close proximity of a firearm discharged, or may have contacted something with [gunshot residue] on it." Other physical evidence corroborated Chris's version of events, including spent 9mm shell casings in locations where Chris testified Hammar was randomly shooting the handgun.
¶43 Insofar as Hammar contends Chris was not credible, we have consistently rejected insufficient evidence claims based on challenges to the credibility of witnesses. See, e.g., State v. Hall, 204 Ariz. 442, 455, ¶ 55, 65 P.3d 90, 103 (2003); State v. Dickens, 187 Ariz. 1, 21, 926 P.2d 468, 488 (1996) abrogated on other grounds by State v. Ferrero, 2012 WL 119220 (Apr. 11, 2012). "No rule is better established than that the credibility of witnesses and the weight and value to be given to their testimony are questions exclusively for the jury." State v. Cox, 217 Ariz. 353, 357, ¶ 27, 174 P.3d 265, 269 (2007) (citation omitted). Furthermore, "[e]vidence is no less substantial simply because the testimony is conflicting or reasonable persons may draw different conclusions therefrom." State v. Mercer, 13 Ariz. App. 1, 2, 473 P.2d 803, 804 (1970) (citations omitted).
CONCLUSION
¶44 For the reasons stated, we affirm Hammar's conviction and sentence.
___________________________
MARGARET H. DOWNIE, Judge
CONCURRING:
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PATRICIA K. NORRIS, Presiding Judge
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MAURICE PORTLEY, Judge