State v. Parkinson

554 P.3d 1

The STATE of Arizona, Appellee,

v.Timothy Andrew PARKINSON, Appellant.

No. 2 CA-CR 2023-0046

Court of Appeals of Arizona, Division 2.

Filed July 15, 2024

Appeal from the Superior Court in Pima County, No. CR20210757001, The Honorable Javier Chon-Lopez, Judge. VACATED AND REMANDED

Kristin K. Mayes, Arizona Attorney General, Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals, By Michael T. O’Toole, Assistant Attorney General, Phoenix, Counsel for Appellee

Megan Page, Pima County Public Defender, By Erin K. Sutherland, Assistant Public Defender, Tucson, Counsel for Appellant

Judge Eckerstrom authored the opinion of the Court, in which Judge Kelly concurred and Presiding Judge Brearcliffe dissented.

OPINION

ECKERSTROM, Judge:

¶1 Timothy Parkinson appeals from his convictions and terms of probation for aggravated assault and domestic violence assault. He argues the trial court infringed on his constitutional right to present a complete defense. Because we agree with Parkinson on this issue, we vacate his convictions and remand for a new trial. We reject Parkinson’s remaining claims on appeal.¹

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the jury’s verdicts and resolve all reasonable inferences against Parkinson. See State v. Fierro, 254 Ariz. 35, ¶ 2, 517 P.3d 635 (2022). Parkinson and D.G. were involved in a romantic relationship for around two years. In March 2021, D.G. called 9-1-1 and reported that her boyfriend had attacked her inside his apartment. D.G. declined medical treatment while on the 9-1-1 call. She also declined a strangulation forensic examination. D.G. told the police that Parkinson had strangled her and had "hit her at least eight times with a belt."

¶3 At trial, D.G. testified that Parkinson had been upset with her for spending time with a friend the evening before the incident, prompting him to pack up some of her belongings. The next morning, D.G. asked Parkinson for her car keys so she could go to work. In response, Parkinson "snapped" and attacked her. D.G. testified that he pinned her down on a piece of furniture and choked her. He later also choked her on the ground with two hands until she "started seeing … gray" and she "couldn’t breathe." She said this occurred five or six times, for about a minute each time. Parkinson then struck D.G. with a belt until she grabbed it from him. D.G. testified that she remembered Parkinson kicking her before ultimately leaving the apartment because she called 9-1-1. Afterward, D.G. waited outside the apartment for police to arrive.

¶4 A responding police officer reported observing on D.G.’s body "injuries that were consistent with strikes with a belt, being grabbed by someone, and strangulation around the neck." These included "[r]edness around her throat area, just under her chin," bruising around both sides of the neck and behind the ear, and petechiae, or "blood vessels that have burst," in her ear and in one eye. The officer also observed welts on D.G.’s stomach, as well as redness and bruising on her extremities.

¶5 The state charged Parkinson with one count of aggravated assault and one count of domestic violence assault. At the conclusion of a four-day trial, a jury found him guilty as charged. After a hearing, the trial court denied Parkinson’s motion for new trial. It suspended the imposition of sentence and placed Parkinson on concurrent three-year terms of supervised probation. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

Discussion

I. Preclusion of Defense Evidence

¶6 On August 1, 2022, Parkinson notified the state of his intent to call M.B. as a witness regarding D.G.’s credibility. On September 16—the last business day before trial—the state asked the trial court to preclude certain testimony from M.B., including "any reference to some prior incident" of violence between D.G. and Parkinson. In response, Parkinson emphasized that the evidence—which was broader than had been indicated by the state and included a number of police reports—would be presented not to show D.G.’s violent character, but rather to demonstrate that, in the months before the March 2021 incident, D.G. had made multiple "false allegations" to police in pursuit of her desire "to get [Parkinson] into custody."

¶7 On the first morning of trial, the state filed a motion in limine contending that any testimony from M.B. elicited to show D.G.’s "violent character" or to raise doubts regarding D.G.’s honesty would be inadmissible under Rules 404(a) and 608, Ariz. R. Evid. The state further urged the trial court to preclude as irrelevant any evidence of "conflicting no-contact orders" D.G. and Parkinson had obtained against each other, and "[w]hether there was an attempt-to-locate out, for law enforcement to speak with" D.G. In response, Parkinson reiterated that the evidence was not being offered to show D.G.’s violent character, but instead to show "her motive, her bias, her prejudice in testifying." In particular, he argued it would show that, in January and February 2021, D.G. had been "attempting to fabricate charges against [Parkinson] to punish him because she believed he was cheating." He advised that D.G. had been arrested after the February 2021 incident and was ordered not to contact Parkinson, but that she had violated the order, "sneaking into his apartment" and stealing things. This led Parkinson to contact police for enforcement of the no-contact order, as well as the issuance of an attempt-to-locate that was in place on the date of the incident in March 2021.

¶8 Citing Rule 608, the trial court granted the state’s motion to preclude evidence of the prior acts of violence between D.G. and Parkinson. It ruled that M.B. could testify regarding his opinion of D.G.’s truthfulness, not the bases for his opinion or specific instances of D.G.’s conduct. The court further concluded Parkinson had not shown by clear and convincing evidence that the other acts between the parties had "occurred as stated." It thus precluded any testimony regarding "any no-contact orders that were in place" or any attempt-to-locate. Finally, it found that even if evidence of the prior acts was relevant, it should be precluded under Rule 403, Ariz. R. Evid., because it posed "a danger of unfair prejudice, confusing the issues."

¶9 Later that day, Parkinson made an offer of proof, including several police reports, the no-contact order against D.G., and evidence of his February efforts to get police to enforce that order and keep D.G. out of his apartment. One police report in particular, generated after the February 2021 incident, shows that D.G. initially called 9-1-1 complaining that Parkinson had "dislocated her shoulder." A responding officer observed no sign of injury, noting that D.G. appeared to have "full range of motion" and that there was no observable "injury to [D.G.’s] person." When officers instead arrested D.G. for this incident, she "advised it was not fair she was getting arrested" and "asked if she could snitch on [M.B.] and Parkinson" for unrelated criminal behavior. Parkinson stated this evidence would corroborate testimony from himself and from M.B. that D.G. had lied to police on multiple occasions to "fabricate charges against him." He reiterated that the evidence was offered to show "motive, bias, and prejudice" on the part of D.G. during her testimony at trial. The trial court accepted Parkinson’s offer of proof but affirmed its prior ruling. Although the testimony would have been corroborated by police reports and the no-contact order, the court reiterated its conclusion that Parkinson had not shown by clear and convincing evidence that the prior acts had occurred. It further repeated that the evidence should be excluded under Rule 403 given "the dangers of unfair prejudice and confusion of the issues and having mini trials."

¶10 The next day, the trial court denied Parkinson’s motion to reconsider this ruling.² Consequently, although M.B. testified at trial, his testimony was limited to saying only "what he kn[ew] about [D.G.’s] truthfulness," specifically that, during the course of their friendship, he did not observe her to be a credible or truthful person. Parkinson was not permitted to inquire into "observed instances of jealousy" or "instances of [D.G.] making accusations" against Parkinson that he argued were relevant to motive.

¶11 Parkinson then testified. He averred that by the morning of the incident, he had ended the romantic relationship and had asked D.G. to move out of his apartment, but she had refused. He also told the jury that D.G. had developed jealousy during the relationship and that, although she was honest "for the most part," at times she would "lie by omission or misstate the truth" to "elicit sympathy" or "if she was covering up for something that she felt embarrassed or guilty about." However, in deference to the trial court’s evidentiary ruling, Parkinson’s counsel did not attempt to question him about the January or February 2021 incidents or attempt to introduce the police reports, the no-contact order, or the attempt-to-locate to impeach D.G.’s version of the events during its questioning of any witnesses. Parkinson was also specifically prevented from testifying about D.G.’s alleged history of self-harm.

¶12 On appeal, Parkinson argues the trial court’s evidentiary rulings infringed on his constitutional right to present a complete defense, including the right to confront adverse witnesses. Specifically, he argues the court erred by precluding evidence of D.G.’s other acts, which he would have presented in the form of testimony and police reports to show D.G. was not credible and had a motive or plan to fabricate the attack.

[1, 2] ¶13 We review a trial court’s determination of the relevance and admissibility of evidence for abuse of discretion. State v. Rose, 231 Ariz. 500, ¶ 62, 297...