Opinion
No. 2 CA-CR 2016-0319
09-25-2017
THE STATE OF ARIZONA, Appellee, v. CHRISTOPHER JUDE KAKAR, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee The Stavris Law Firm, PLLC, Scottsdale By Alison Stavris 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NOT FOR PUBLICATION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. 31.24. Appeal from the Superior Court in Pinal County
No. S1100CR201501775
The Honorable Steven J. Fuller, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ECKERSTROM, Chief Judge:
¶1 Christopher Kakar appeals from his conviction and sentence for second-degree trafficking in stolen property, arguing the jury heard improperly admitted evidence. For the following reasons, we affirm.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to sustaining the convictions." State v. Fimbres, 222 Ariz. 293, ¶ 2, 213 P.3d 1020, 1023 (App. 2009), quoting State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). In June 2015, T.F. noticed thirty bales of hay were missing from the stacks on his farm. S.G., a family friend, mentioned Kakar had advertised thirty bales of hay for sale on Facebook. S.G. inquired about the hay, but Kakar told her he had already sold it. When Kakar said he could get more, S.G. ordered fifteen bales. T.F. and his son then wrote their names on several chewing tobacco lids and shoved them into three or four of the bales. The next morning, fifteen more bales were missing from the stacks.
¶3 Later that day, Kakar sold and delivered to S.G. fifteen bales of hay. The next morning, T.F. and officers inspected the bales Kakar had sold to S.G. and found the marked tobacco lids inside.
¶4 After a jury trial, Kakar was convicted of second-degree trafficking in stolen property, and the trial court sentenced him to an enhanced, minimum prison term of ten years. Kakar timely appealed. We have jurisdiction. A.R.S. §§ 13-4031, 13-4033.
Improper Evidence
¶5 Kakar contends the trial court improperly allowed the state to introduce evidence of the thirty stolen bales of hay, for which he was not charged. Although Kakar moved in limine to preclude such testimony, the legal basis for his objection below was unclear. On appeal, he characterizes the objection as improper propensity evidence pursuant to Rule 404(b), Ariz. R. Evid. But the state claims the objection below was relevance and prejudicial impact pursuant to Rules 401 and 403, Ariz. R. Evid., and urges this court to deem Kakar's Rule 404(b) argument waived. See State v. Hamilton, 177 Ariz. 403, 408, 868 P.2d 986, 991 (App. 1993) ("an objection to the admission of evidence on one ground will not preserve issues . . . on other grounds").
¶6 We need not decide which is the proper characterization of the objection Kakar made below because even assuming Kakar's Rule 404(B) claim was properly raised and preserved, it is unavailing. Although "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith," Ariz. R. Evid. 404(b), such evidence may be admissible to "complete the story," State v. Cook, 150 Ariz. 470, 472, 724 P.2d 556, 558 (1986). Evidence of an uncharged crime is admissible when the acts are "so blended or connected . . . that proof of one incidentally involves the other or explains the circumstances of the crime." Id., quoting State v. Villavicencio, 95 Ariz. 199, 200, 388 P.2d 245, 246 (1964).
¶7 Here, the state did not introduce evidence of the prior theft of the thirty bales to prove Kakar's propensity to commit criminal acts. Instead, evidence of the prior theft was necessary to explain why T.F. marked certain bales of hay for later identification, why S.G. alerted T.F. to Kakar's internet advertisement for thirty bales of hay, and why S.G. later assisted in conducting the transaction, which confirmed Kakar had participated in selling recently stolen hay. Thus, we cannot say the court erred by admitting evidence of the thirty uncharged bales of hay.
Kakar also contends the trial court erred by admitting evidence of the thirty uncharged bales because the state did not disclose its intent to offer such evidence as required by Rule 15.1, Ariz. R. Crim. P. But Kakar did not object on this ground below and therefore has waived review for all but fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). Because Kakar does not argue fundamental error on appeal, he has waived the argument. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008). --------
Disposition
¶8 For the foregoing reasons, we affirm Kakar's conviction and sentence.