Opinion
No. 1 CA-CR 14-0826
07-12-2016
STATE OF ARIZONA, Appellee, v. ADAM SEAN YANOFSKY, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Myles A. Braccio Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Tennie B. Martin Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR 2013-005009-001
The Honorable Richard L. Nothwehr, Commissioner
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Myles A. Braccio
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Tennie B. Martin
Counsel for Appellant
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Donn Kessler joined. OROZCO, Judge:
¶1 Adam Sean Yanofsky appeals his convictions and sentences for two counts of aggravated assault and one count of resisting arrest. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
We view the facts in the light most favorable to sustaining the verdict, resolving all inferences against Yanofsky. See State v. Whalen, 192 Ariz. 103, 105 (App. 1997).
¶2 In August 2014, City of Mesa police officers responded to a 911 call they believed involved a potential domestic violence victim who had been assaulted earlier in the day, calling to report her attacker had returned. Officers went to the residence and found Yanofsky. Subsequent events resulted in the assault and resisting arrest charges against Yanofsky.
¶3 Before trial, the State noticed its intent to use a recording of the 911 call to explain why police officers responded to the scene and to help the jury understand the officers' state of mind. Yanofsky objected, arguing the call was irrelevant to the charged crimes, prejudicial and not otherwise admissible under Rule 404(b), Arizona Rules of Evidence. The court heard oral argument on the motion and the 911 call was played. The State argued the call was intrinsic to the charged crimes and admissible as evidence of Yanofsky's state of mind and motive.
¶4 At the hearing on the State's motion, the court found the call was part of a "continuous episode" that "does go to motive, lack of - absence of mistake or accident and intent." The court also found "the probative value is significant, because it shows why the [officers] were there, what they thought was happening, and the steps that they took thereafter in interacting with the Defendant." However, the court determined that because the evidence was "intrinsic to the entire chain of events," it need not perform a Rule 404(b) analysis. After listening to the call, the court ordered that the call be redacted to minimize the description of the assault report.
¶5 Yanofsky filed a motion to reconsider, arguing that because the call was not intrinsic to the assault and resisting arrest charges, and because it did not prove any element of the charged crimes, it was inadmissible under State v. Ferrero, 229 Ariz. 239, 243, ¶ 20 (2012). The court denied Yanofsky's motion and conducted a Rule 404(b) analysis. Specifically, the court found the call relevant to show why Yanofsky attempted to prevent officers from entering the house and could be offered for a proper purpose as "evidence of motive and intent of the Defendant." The court further found the "probative value of the evidence is not substantially outweighed by the danger of unfair prejudice."
¶6 Additionally, the final jury instructions included the following limitation:
You have heard evidence of an alleged domestic situation. This evidence is admitted only for the limited purpose of identifying why a peace officer may have acted to investigate the domestic situation or regarding credibility of a witness. The jurors are directed to consider this information only for that limited purpose and not for any other purpose.
¶7 The jury convicted Yanofsky on all three counts, and he timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1, 13-4031 and -4033 (West 2016).
We cite the current version of applicable statutes when no revisions material to this decision have since occurred. --------
DISCUSSION
¶8 Yanofsky argues the court erred in admitting the 911 call. Relying on State v. Hughes, 189 Ariz. 62 (1997), Yanofsky contends that the call is not intrinsic to the charged crimes and the prior domestic violence act mentioned in the call was not contemporaneous to those crimes. He argues that as such, the only possible basis for its admission was to show he acted with a "violent, vengeful character" and therefore should have been excluded. See id. at 70. He also contends the admission was not proper under Rule 404(b), arguing the call was irrelevant because it was unnecessary to prove the elements of the charged crimes. He further argues that, even if the call was relevant, its probative value far outweighed the risk of unfair prejudice considering the number of times "domestic violence" was referenced during trial.
¶9 We review a court's admission of evidence pursuant to Rule 404(b) for an abuse of discretion. State v. Lehr, 227 Ariz. 140, 147, ¶ 19 (2011). Evidence of prior bad acts is not admissible to prove conformity with the previous conduct. Ariz. R. Evid. 404(b). However, it may be admissible if offered for another proper purpose. Id. Prior to admission, the court must conduct a proper Rule 404(b) analysis to determine admissibility.
Before admitting prior bad act evidence, a trial court should determine that: (1) the evidence is proffered to show something other than conduct in conformity with the prior acts, pursuant to rule 404(b); (2) the evidence is legally and logically relevant under rule 402; (3) the probative value of the evidence substantially outweighs the risk of unfair prejudice under rule 403; and (4) defendant has not been denied an appropriate limiting instruction under rule 105.State v. Hyde, 186 Ariz. 252, 276 (1996).
¶10 The record reveals that in admitting the evidence of the call, the court conducted a proper Rule 404(b) analysis. The call was certainly relevant, as it explained the reason police officers encountered Yanofsky in the first place. Moreover, the call evidenced Yanofsky's motive for responding as he did during his interaction with police; to wit, preventing access to the victim. Additionally, the trial court did not abuse its discretion in finding any probative value outweighed any prejudicial effect, and it provided further protection by redacting the call and issuing a limiting instruction. Because we find the court did not abuse its discretion admitting the evidence pursuant to Rule 404(b), we need not determine whether it was intrinsic to the charged crimes.
CONCLUSION
¶11 For the foregoing reasons, we affirm Yanofsky's convictions and sentences.