State v. McCurdy

169 P.3d 931, 216 Ariz. 567, 515 Ariz. Adv. Rep. 11, 2007 Ariz. App. LEXIS 200
CourtCourt of Appeals of Arizona
DecidedOctober 24, 2007
Docket2 CA-CR 2006-0049
StatusPublished
Cited by39 cases

This text of 169 P.3d 931 (State v. McCurdy) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McCurdy, 169 P.3d 931, 216 Ariz. 567, 515 Ariz. Adv. Rep. 11, 2007 Ariz. App. LEXIS 200 (Ark. Ct. App. 2007).

Opinions

OPINION

ESPINOSA, Judge.

¶ 1 Appellant Thomas McCurdy was convicted after a jury trial of robbery and prohibited possession of a weapon. The court sentenced him to an aggravated prison term of six years for robbery, to be served concurrently with a presumptive, 4.5-year term for prohibited possession. He argues the trial court erred when it: (1) admitted hearsay evidence, (2) denied his motion for judgment of acquittal that claimed there was insufficient evidence he had a prior felony conviction, (3) used a foreign conviction that was invalid for use in Arizona to enhance his sentence, (4) based his sentence on improper aggravating circumstances, and (5) refused to correct the presentence report. We affirm his convictions but remand the case for re-sentencing in light of the trial court’s failure to determine whether the foreign conviction properly could be used to enhance his sentence and its reliance on an improper aggravating circumstance in pronouncing sentence.

Factual and Procedural Background

¶ 2 We state the evidence in the light most favorable to sustaining the convictions. See State v. Mangum, 214 Ariz. 165, ¶ 3, 150 P.3d 252, 253 (App.2007). In February 2005, a man approached a bank teller wearing a gray-blue, wool “ski cap and large sunglasses and a coat.” The man started to hand the teller a note across the counter, on which the teller could read the word “rob” or “robbery.” As the teller reached for the note, the man retrieved it and said, “Put all the money on the counter, and I don’t want no dye.”1

¶3 The teller activated a silent alarm, which alerted security staff and started cameras recording his station. He then gave the man all the money in his cash drawer, about $1,300, including several “bait bills” and a security tracking device. After the man left the bank, law enforcement officers eventually traced the tracking device to a white minivan belonging to McCurdy. Inside the van, officers found clothing similar to what the robber was described as wearing, a tan vest with a bundle of money and the tracking device inside, a silver revolver, and a hat. Witnesses recalled McCurdy’s driving the van “kind of fast” to his motor home shortly after the robbery.

¶ 4 At trial, to prove McCurdy had a prior felony conviction both as an element of the prohibited possessor charge and for sentence enhancement and aggravation, the state produced a certified copy of documents related [571]*571to a 1997 California felony conviction. After redacting the documents to omit prejudicial information about the details of the conviction, the trial court admitted them into evidence. The exhibit identified the California felon in question as Thomas Greg McCurdy with a date of birth of September 12, 1958. It also included the felon’s driver’s license number and a signature of the felon appearing to read “T.G. McCurdy” together with a Louisiana address. The California documents do not contain a photograph, fingerprint, or even a physical description of the felon.

¶5 Former jail supervisor Sean Stewart testified — based on a standard form jail admission document and having viewed a video of McCurdy’s booking process — that McCurdy had arrived at the Pima County jail on April 15, 2005, reporting his birth date as September 12, 1958, and his weight as 195 pounds. Over McCurdy’s hearsay objections, the trial court also admitted a Pima County jail “Inmate Personal Property Receipt” for a Thomas McCurdy dated the same date. This receipt bears a signature that appears similar to the signature of the felon convicted in California, although likewise contains no photograph, physical description, or fingerprint connecting it to McCurdy. The jury found the existence of the prior conviction had been proven beyond a reasonable doubt and found McCurdy guilty of prohibited possession and robbery. The trial court adopted the jury’s finding that McCurdy had a prior conviction and used that conviction to both enhance and aggravate McCurdy’s robbery sentence.

Hearsay Objections

¶ 6 McCurdy first contends the trial court erred by admitting the Pima County jail property receipt and allowing Stewart to testify to the information contained on the Pima County jail admission form over his hearsay objections.2 “We review a trial court’s ruling on the admissibility of evidence for a clear abuse of discretion.” State v. King, 213 Ariz. 632, ¶ 7, 146 P.3d 1274, 1277 (App.2006).

¶7 Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ariz. R. Evid. 801(e), To be admissible, a court must find that the out-of-court statement fits within one of the many exceptions to the rule against hearsay. State v. Tucker, 205 Ariz. 157, ¶ 41, 68 P.3d 110, 118 (2003). Whether business records are sufficiently reliable to satisfy the hearsay exception in Rule 803(6), Ariz. R. Evid., is for the trial court to determine in the exercise of its sound discretion. Larsen v. Decker, 196 Ariz. 239, ¶ 19, 995 P.2d 281, 285 (App.2000); State v. Petzoldt, 172 Ariz. 272, 275, 836 P.2d 982, 985 (App.1991).

¶ 8 McCurdy argues the property receipt, and the information from the jail admission form as relayed by Stewart, were inadmissible hearsay. At trial, McCurdy objected to both documents on hearsay grounds, and the judge deferred ruling until after he heard Stewart’s testimony to determine whether appropriate foundation had been provided. When Stewart testified, McCurdy again objected, claiming Stewart could not lay the necessary foundation for the information he repeated. The trial court eventually admitted the property receipt as a business record, but sustained the objection to the jail admission form on the ground that it was “a current jail card” and, thus, unduly prejudicial under Rule 403, Ariz. R. Evid., Stewart’s testimony reciting the contents of the form was not stricken, however. The next day, McCurdy re-urged his objection to the property receipt, claiming Stewart was neither the custodian of records nor a “qualified witness” as required by the rule. The court disagreed, finding Stewart was qualified for purposes of the rule, and also clarified that the jail admission form had been excluded on the ground that it was unduly prejudicial.

¶ 9 Rule 803(6) requires either the custodian of records or “other qualified witness” testify that the record was made 1) [572]*572contemporaneously, or nearly so, with the underlying event; 2) “by, or from information transmitted by, a person with first hand knowledge acquired in the course of a regularly conducted business activity”; 3) completely in the course of that activity; and 4) as a regular practice for that activity. Portions of the business record that “indicate a lack of trustworthiness” or “lack an appropriate foundation” shall not be admitted. Ariz. R. Evid. 803(6), Stewart testified he was “a supervisor of the security services section” of the Pima County jail, had supervised intake of new inmates at the jail for “maybe a year” during the “eight or nine years” he had been a sergeant, and had actually worked as an “ID tech” for two to three years.

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Cite This Page — Counsel Stack

Bluebook (online)
169 P.3d 931, 216 Ariz. 567, 515 Ariz. Adv. Rep. 11, 2007 Ariz. App. LEXIS 200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mccurdy-arizctapp-2007.