IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO
THE STATE OF ARIZONA, ) 2 CA-CR 2002-0447
) DEPARTMENT A
Appellee, )
) OPINION
v. )
)
CHARLES SCOTT NEWNOM, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20014011
Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
Terry Goddard, Arizona Attorney General
By Randall M. Howe and Diane M. Acosta Tucson
Attorneys for Appellee
Susan A. Kettlewell, Pima County Public Defender
By Nancy F. Jones Tucson
Attorneys for Appellant
H O W A R D, Presiding Judge.
¶1 After a jury trial, appellant Charles Newnom was convicted of aggravated
domestic violence. On appeal, he claims the trial court erred by allowing the state to
present evidence of his two prior domestic violence convictions to the jury despite his
offering to stipulate to their existence.1 Because the two prior domestic relations
convictions were elements of the offense, we affirm.
¶2 We view the facts in the light most favorable to sustaining the conviction. See
State v. Henry, 205 Ariz. 229, ¶ 2, 68 P.3d 455, 457 (App. 2003). Newnom pushed and
“head butted” his wife, giving her a bump on her forehead. Newnom was eventually
indicted for aggravated domestic violence because he had two prior domestic violence
convictions. See A.R.S. § 13-3601.02. Before trial, he offered to stipulate to the existence
of the prior convictions to avoid having the jury receive that prejudicial information. The
state rejected the offer and the trial court refused to force the state to accept the stipulation
offer. The jury in Newnom’s first trial was unable to reach a verdict. On retrial, Newnom
was convicted as charged and was sentenced to a prison term of 2.25 years. This appeal
followed.
¶3 Newnom argues the trial court erred by refusing to require the state to accept
his stipulation concerning his prior convictions and by failing to preclude the state from
introducing evidence of the prior convictions. The state counters that, pursuant to State ex
rel. Romley v. Galati, 195 Ariz. 9, 985 P.2d 494 (1999), a defendant cannot prevent a jury
from hearing about prior convictions that are elements of a crime. We review a trial court’s
decisions on the admission or exclusion of evidence for an abuse of discretion. State v.
Hensley, 142 Ariz. 598, 602, 691 P.2d 689, 693 (App. 1984). But, we review issues of
1
Because Newnom withdrew by motion the issue concerning his sentence, we do not
address it.
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statutory construction de novo. State v. Casey, 205 Ariz. 359, ¶ 8, 71 P.3d 351, 354
(2003).
¶4 Newnom was charged with aggravated domestic violence pursuant to § 13-
3601.02, which provides in part that “[a] person is guilty of aggravated domestic violence
if the person within a period of sixty months commits a third or subsequent violation of a
domestic violence offense.” In Galati, our supreme court analyzed A.R.S. § 28-1383, the
statute governing aggravated driving under the influence of an intoxicant (DUI), which
provides that a person is guilty of aggravated DUI if that person “[w]ithin a period of sixty
months commits a third or subsequent [DUI].” The Galati court held that the existence of
the prior convictions was an element of aggravated DUI and that the jury must therefore
hear the evidence on that element of the offense in order to decide a defendant’s guilt. Id.
¶¶ 10, 12. The court further held that the defendant was not entitled to a bifurcated trial
even if he was willing to stipulate that he had the prior convictions. Id. ¶ 16.
¶5 Although Galati addressed a different statute, the relevant wording of the
statute at issue here is virtually identical. Thus, we conclude that the reasoning of Galati
controls this case. Under § 13-3601.02, the existence of two or more prior convictions for
domestic violence is an element of the offense of aggravated domestic violence. Newnom
was not entitled to prevent the jury from hearing evidence on the elements of the offense.
See Galati; State v. Geschwind, 136 Ariz. 360, 361-63, 666 P.2d 460, 461-63 (1983).
¶6 Newnom argues, however, that Galati is not controlling, relying on the
concurring justice’s statement that the court had decided only the narrow issue of whether
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the defendant had been entitled to a bifurcated trial under Rule 19.1, Ariz. R. Crim. P., 17
A.R.S. 195 Ariz. 9, ¶ 22, 985 P.2d at 498 (Feldman, J., concurring). But the reasoning of
the majority opinion was much broader than the concurring opinion would suggest. And the
majority specifically disagreed with and vacated the court of appeals’ decision in State v.
Root, 193 Ariz. 442, 973 P.2d 1203 (App. 1998). Galati, 195 Ariz. 93, ¶ 17, 985 P.2d at
497. Citing Rule 403, Ariz. R. Evid., 17A A.R.S., Division One of this court had held in
Root that the trial court had erred by rejecting the defendant’s offer to stipulate to the
existence of prior DUI convictions in an attempt to prevent the jury from hearing the
prejudicial evidence. 193 Ariz. 442, ¶ 11, 973 P.2d at 1206. Root did not involve any
request for a bifurcated trial. Accordingly, Galati was not limited to the denial of a request
for a bifurcated trial. And, in light of the supreme court’s action in vacating Root, we
cannot accept Newnom’s argument.
¶7 Newnom also argues we should instead adopt the reasoning of State v.
Leonard, 151 Ariz. 1, 725 P.2d 493 (App. 1986), in which the court held that the trial court
had erred by refusing to accept a defendant’s stipulation to the existence of prior
convictions under an earlier DUI statute. But Newnom admits that Leonard was decided
at a time when the existence of prior convictions was not an element of the offense.
Leonard, therefore, does not help Newnom.
¶8 Newnom finally argues that, to the extent Galati prevents the use of a
stipulation to avoid presenting prejudicial evidence of prior convictions to the jury, it
conflicts with the United States Supreme Court’s decision in Old Chief v. United States,
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519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997), and should be reconsidered. But
our supreme court was aware of Old Chief when it decided Galati and found Old Chief
distinguishable because the defendant there had contemplated that the jury would hear the
stipulation and because the nature of the prior felony conviction there was not significant.
Galati, 195 Ariz. 9, ¶ 15, 985 P.2d at 497. We have no authority to overrule or disregard
decisions of our supreme court. State v. Sullivan, 205 Ariz. 285, ¶ 15, 69 P.3d 1006, 1009
(App. 2003). Therefore, we cannot conclude that Galati conflicts with Old Chief nor can
we reconsider it. Accordingly, the trial court did not err in refusing to require the state to
accept Newnom’s stipulation to the existence of the prior convictions or in refusing to
preclude the state from introducing evidence about the convictions.
¶9 Newnom’s conviction is affirmed.
____________________________________
JOSEPH W. HOWARD, Presiding Judge
CONCURRING:
___________________________________
JOHN PELANDER, Chief Judge
____________________________________
PETER J. ECKERSTROM, Judge
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