State v. Ristic

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA,
Appellee,

v.

MLADEN RISTIC,
Appellant.

No. 1 CA-CR 19-0137
FILED 7-28-2020

Appeal from the Superior Court in Maricopa County
No. CR2017-152662-001
The Honorable Kathleen H. Mead, Judge

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Eliza Ybarra
Counsel for Appellee

Daniel R. Raynak, PC, Phoenix
By Daniel R. Raynak
Counsel for Appellant
 STATE v. RISTIC
Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined.

M O R S E, Judge:

¶1 Mladen Ristic appeals his convictions and sentences for
sexual assault and sexual abuse. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 We view the facts in the light most favorable to sustaining the
jury verdicts and resolve all reasonable inferences against Ristic. See State
v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).

¶3 Ristic and the Victim are half-siblings that lived in the same
house. In November 2017, Ristic sexually assaulted the Victim. During
their investigation, police recorded three confrontation calls between Ristic
and the Victim. When told by the Victim "I didn't really want to have sex
with you," Ristic replied, "Yeah, I'm sorry." She then asked, "but can you at
least tell me why, though?" He replied, "like I said, you're not ugly, and I
needed some companionship, I guess." In the calls, Ristic never explicitly
admitted to sexual assault, but when the Victim asked him "why did you
make me do that, though," and "why did you make me have oral sex with
you," Ristic did not state that the contact was consensual. Instead, he said
it "just happens real quick" and "I don't know how to answer that."

¶4 When questioned by police, Ristic denied any sexual contact.
But at trial, he admitted sex with the Victim and claimed the encounter was
consensual. Police obtained deoxyribonucleic acid ("DNA") samples from
the Victim's genitalia that matched Ristic. They also obtained DNA from
Ristic's genitalia that matched the Victim.

¶5 At trial, the State presented testimony from the Victim, an
expert on behavior in adult abuse victims, the nurse that treated the Victim,
the Victim's friend with whom the Victim spoke on the night of the assault,
a certified forensic computer examiner, and a DNA analyst.

¶6 The jury convicted Ristic on all counts. The court denied his
post-judgment motion for a new trial based on an alleged disclosure

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violation. The court sentenced Ristic to consecutive terms of 5.25 years
imprisonment for the three sexual assault convictions (Counts 1, 3, 4) and
1.5 years for the sex abuse conviction (Count 2), to be served concurrently
with Count 1. Ristic timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1), 13-4031, and -4033(A).

DISCUSSION

¶7 Ristic raises eight issues on appeal.

I. Evidence of Prior Bad Acts.

¶8 First, Ristic argues that the court erred in allowing testimony
regarding prior bad acts. See Ariz. R. Evid. 404(b) (prohibiting the
introduction of other bad acts into evidence absent a specific exception).
The Victim testified that Ristic "slapped my butt" the day before the assault
and that Ristic stole internet from the neighbors. Because Ristic did not
object to the testimony at trial, "we will not reverse unless the court
committed error that was both fundamental and prejudicial." State v.
Escalante, 245 Ariz. 135, 140, ¶ 12 (2018). Even assuming the admission of
the statements was error, Ristic cannot show both fundamental and
prejudicial error.

¶9 To establish prejudice, Ristic must prove that, absent the
alleged error, there is a reasonable probability that he could have received
a different verdict or sentence. Id. at 144, ¶ 29. "Although evidence of prior
crimes generally is not admissible, courts will not reverse a conviction
based on the erroneous admission of evidence unless there is a reasonable
probability that the verdict would have been different had the evidence not
been admitted." State v. Dann, 205 Ariz. 557, 570, ¶ 44 (2003) (citations and
quotation marks omitted). Ristic argues the testimony hurt his credibility
and that "[p]rior bad acts, by their very nature, are prejudicial."

¶10 Ristic offers only speculation and no record evidence for his
argument. See State v. Dickinson, 233 Ariz. 527, 531, ¶ 13 (App. 2013) (noting
on fundamental error review, defendant must affirmatively prove
prejudice by referring to facts in the record and may not rely upon
speculation). Moreover, the prior acts were far less egregious than the
charged offense. See State v. Via, 146 Ariz. 108, 122 (1985) (finding improper
other-act evidence was harmless when it concerns "conduct far less
egregious than that with which [defendant] was charged."); see also State v.
Vega, 228 Ariz. 24, 29-30, ¶ 22 (App. 2011) ("Significantly, the single act at
the beach about which the older victim briefly testified was far less

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egregious than the acts both victims testified [the defendant] committed a
few months later."). Finally, the evidence against Ristic was overwhelming.
See State v. Ramos, 235 Ariz. 230, 237, ¶ 20 (App. 2014) (finding defendant
failed to prove prejudice when there was overwhelming evidence of guilt).

¶11 Accordingly, Ristic has not established fundamental error
resulting in prejudice.

II. Exclusion of Text Messages.

¶12 Defense counsel sought to question the Victim about a text
message sent three months before the assault. The message is not in our
record. See State v. Rivera, 168 Ariz. 102, 103 (App. 1990) ("An appellate
court will not speculate about the contents of anything not in the appellate
record."). The prosecutor informed the superior court that the message was
from the Victim to one of her friends, "about her taking money for sex" but
that "it's a conversation with these two girls are talking about pretending to
be somebody online." When asked by the court why the message was
relevant, defense counsel responded that "[t]he statement that she makes is
a statement showing motive and bias." The court sustained the objection.

¶13 Otherwise admissible evidence may be excluded "if its
probative value is substantially outweighed by a danger of . . . unfair
prejudice." Ariz. R. Evid. 403; see also A.R.S. § 13-1421 (limiting
admissibility of "evidence of specific instances of the victim's prior sexual
conduct"). Unfair prejudice may exist "if the evidence has an undue
tendency to suggest decision on an improper basis, such as emotion,
sympathy, or horror." State v. Mott, 187 Ariz. 536, 545 (1997). "The trial
court has considerable discretion in determining the relevance and
admissibility of evidence," and its ruling will not be disturbed "absent a
clear abuse of discretion." State v. Amaya–Ruiz, 166 Ariz. 152, 167 (1990).
Abuse of discretion is "an exercise of discretion which is manifestly
unreasonable, exercised on untenable grounds or for untenable reasons."
State v. Woody, 173 Ariz. 561, 563 (App. 1992) (citation omitted).

¶14 The Victim sent the text to a third party long before the
assault. The inflammatory nature of the text created a risk of unfair
prejudice. Furthermore, the court admitted other texts between Ristic and
the Victim. Using these texts, defense counsel cross-examined the Victim
regarding any potential financial motives for the sexual contact and argued
to the jury that the Victim was consenting to the sexual acts in return for
money. The superior court did not abuse its discretion by excluding the
text message.

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III. Victim's State-of-Mind Testimony.

¶15 At trial, defense counsel cross-examined the Victim regarding
why she felt depressed on the day of the sexual assault. The Victim
explained she had learned that her romantic interest had a girlfriend and a
child. When counsel asked what the romantic interest had told the Victim,
the court sustained the State's hearsay objection. Ristic asserts on appeal
that the testimony qualified under the state of mind exception to the
hearsay rule. Because Ristic did not raise this theory at trial, we review for
fundamental error. See Escalante, 245 Ariz. at 140, ¶ 12.

¶16 Hearsay is an out-of-court statement offered to prove the
truth of the matter asserted. Ariz. R. Evid. 801(c). Hearsay is generally not
admissible unless an exception applies. Ariz. R. Evid. 802. Ristic argues
that the testimony was admissible under Arizona Rule of Evidence ("Rule")
803(3) to show the effect that the statement had on the listener's state of
mind. The State argues that the state of mind exception does not apply
because that exception goes to the declarant's, not the listener's, state of
mind. See Ariz. R. Evid. 803(3).

¶17 Both parties' arguments miss the mark. The statement was
not hearsay because Ristic was not offering it for the truth of the matter
asserted. See State v. Rivera, 139 Ariz. 409, 413-14 (1984). Ristic did not seek
to introduce the statement to prove the existence of a romantic interest or a
child but instead to prove the effect this news had on the Victim's state of
mind. See Pub. Serv. Co. of Okla. v. Bleak, 134 Ariz. 311, 320 (1982) (stating
that "words offered as evidence of an utterance which caused a state of
mind in the listener are not within the proscription of [Rule] 802").

¶18 But while the statement was not hearsay, it was not
particularly relevant. The defense offered the statement to show the
Victim's mental state on the day of the sexual assault, but the Victim
provided testimony about her mental state, stating that on the day of the
assault she "was very depressed" and she was "upset because I found out
that somebody I was in love with had a child." Ristic fails to show whether
and how the additional testimony would have mattered. See State v.
Dunlap, 187 Ariz. 441, 456-57 (App. 1996) (finding erroneous exclusion of
cumulative evidence did not require reversal). Any error was harmless.

IV. Admission of Expert Witness.

¶19 Next, Ristic argues the trial court erred by allowing the State
to introduce "cold" expert testimony on behavior in adult abuse victims.
We review a trial court's ruling on the admission of evidence for an abuse

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of discretion. State v. Haskie, 242 Ariz. 582, 585, ¶ 11 (2017). And we review
claims raised for the first time on appeal for fundamental, prejudicial error.
See Escalante, 245 Ariz. at 140, ¶ 12.

¶20 The Rules permit expert testimony if "the expert's scientific,
technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue." Ariz. R. Evid.
702(a). Our supreme court directs that "expert testimony that explains a
victim's seemingly inconsistent behavior is admissible to aid jurors in
evaluating the victim's credibility." Haskie, 242 Ariz. at 586, ¶ 16; see also
State v. Salazar-Mercado, 234 Ariz. 590, 594, ¶ 15 (2014) (holding that
testimony that helps the jury understand possible reasons for victim's
inconsistent reporting satisfies Rule 702(a)).

¶21 Ristic complains that the expert testified based solely on her
experience and had no scientific basis for her opinions. However, a witness
may qualify as an expert based on experience alone. See Kumho Tire Co., Ltd.
v. Carmichael, 526 U.S. 137, 156 (1999) ("[N]o one denies that an expert might
draw a conclusion from a set of observations based on extensive and
specialized experience."); State v. Villalobos, 225 Ariz. 74, 81, ¶ 25 (2010) ("A
witness can qualify as an expert through requisite 'knowledge, skill,
experience, training, or education.'" (quoting State v. Davolt, 207 Ariz. 191,
210, ¶ 70 (2004))); see also Ariz. R. Evid. 702 cmt. (2012) ("The amendment is
not intended to . . . preclude the testimony of experience-based experts[.]").

¶22 That happened here. The expert worked as a Police Crisis
Intervention Specialist for the Scottsdale Police Department, had 29 years
of experience working with victims of sexual assault, and regularly trained
law enforcement on victimization and sexual-assault cases. The expert
testified that stress hormones released during a sexual assault can cause a
victim to experience dissociation which makes it difficult "to keep things in
your mind in terms of memory, in terms of sequence or contextual
information." Because the expert's testimony might have helped the jury
understand possible reasons for any inconsistent reporting, her testimony
satisfied Rule 702(a). See Salazar-Mercado, 234 Ariz. at 594, ¶ 15.

¶23 On appeal, Ristic also argues that "[s]cientific research
actually demonstrates the exact opposite, that a victim of an actual sexual
assault will almost always recall the core details." However this goes to the
weight of the testimony, not its admissibility. See State v. Bernstein, 237 Ariz.
226, 230, ¶ 18 (2015) (noting the adversarial system allows the opposing
party to question the reliability and application of an expert's experience
and knowledge). "When the evidence supporting a verdict is challenged on

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appeal, an appellate court will not reweigh the evidence." State v. Lee, 189
Ariz. 590, 603 (1997).

¶24 Therefore, the superior court did not abuse its discretion in
permitting the expert's testimony.

V. Medical Hearsay Exception.

¶25 Ristic also argues the superior court should have excluded the
hearsay testimony of the treating nurse. The nurse's testimony repeated
statements made by the Victim describing the assault and identifying Ristic
as the attacker. The admissibility of hearsay evidence is reviewed for an
abuse of discretion. State v. Bronson, 204 Ariz. 321, 324, ¶ 14 (App. 2003).

¶26 The medical hearsay exception applies to "[a] statement that
(A) is made for—and is reasonably pertinent to—medical diagnosis or
treatment; and (B) describes medical history; past or present symptoms or
sensations; their inception; or their general cause." Ariz. R. Evid. 803(4).
"The rationale underlying the Rule 803(4) exception . . . is that doctors will
seek and patients will give reliable information to further necessary medical
treatment." State v. Robinson, 153 Ariz. 191, 199 (1987). A statement to a
doctor concerning the events of a sexual assault "in most cases is pertinent
to diagnosis and treatment," but the identity of the alleged attacker "would
seldom, if ever, be sufficiently related." State v. Jeffers, 135 Ariz. 404, 421
(1983) (quoting United States v. Iron Shell, 633 F.2d 77, 84 (8th Cir. 1980)).

¶27 Our courts use a two-part test to determine admissibility
under Rule 803(4): first, whether the declarant's apparent motive aligned
with receiving medical care; and second, whether it was "reasonable for the
physician to rely on the information in diagnosis or treatment." Robinson,
153 Ariz. at 199 (quoting Jeffers, 135 Ariz. at 420-21).

¶28 The record indicates that the Victim's statements to the nurse
were elicited in the course of treatment and nothing in the record suggests
that the Victim's "motive in making these statements was other than as a
patient seeking [or at least needing] treatment." Iron Shell, 633 F.2d at 84.
Considering all the circumstances, the Victim's statements to the nurse
describing the assault meet the requirements of Rule 803(4). See Jeffers, 135
Ariz. at 420-21.

¶29 The Victim's statement naming Ristic as her attacker requires
further analysis. See id. at 421. The State argues the identity of the Victim's
attacker was also relevant because the nurse had a responsibility to avoid
placing her back into a dangerous environment where she was at risk. See

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Robinson, 153 Ariz. at 200 (recognizing an exception to Jeffers in child sexual
abuse cases); see also State v. Sullivan, 187 Ariz. 599, 602 (App. 1996)
(expanding the Robinson exception to nonsexual child abuse cases). While
Robinson left open the possibility that "sexual molestation by a father, other
relative, or family friend may be different and require different treatment
than those resulting from abuse by a stranger," 153 Ariz. at 200, we need
not decide whether the testimony was admissible because any error was
harmless.

¶30 Ristic concedes "there was no question that the Victim and the
Defendant had sex." Thus, the hearsay testimony identifying Ristic
addressed an undisputed issue and did not prejudice Ristic. See State v.
Williams, 133 Ariz. 220, 226 (1982) (finding erroneous admission of hearsay
evidence was harmless when issue is uncontested). Additionally, the
Victim's hearsay statements introduced via the nurse were nearly identical
to the testimony the Victim provided at trial, and the erroneous admission
of cumulative evidence is also harmless error. See id.; see also State v. Hoskins,
199 Ariz. 127, 144, ¶ 66 (2000) (finding any error harmless where alleged
hearsay statement was restated during declarant's testimony during trial).

VI. Disclosure of Raw Data.

¶31 Ristic argues the superior court erred in permitting testimony
about a Skype call the Victim made on the night of the assault. Defense
counsel cross-examined the State's certified forensic computer examiner
who testified about a call the Victim described as a video call. The call log
entered into evidence did not indicate that the call was a video call. On
redirect, the witness testified that a review of the raw data was needed to
verify the nature of the call. Defense counsel objected to the witness's
conclusion based on hearsay and an alleged lack of disclosure regarding the
raw data. The court overruled the objection and permitted the forensic
expert to answer. The witness testified that he had verified "the data base
that these existed, and it was a Skype call."

¶32 Ristic filed a motion for new trial raising this issue. During
oral argument on the motion, the prosecutor said the defense was told
about the data. Specifically, the prosecutor stated that the extraction report
provided to the defense states that: "All data acquired during the
examination will be retained by the Phoenix Police Department Digital
Forensic's Investigation Unit, and is available for additional examination if
requested." Defense counsel did not specifically rebut this claim. The
superior court denied the motion because defense counsel was afforded the
opportunity to extensively cross-examine the witness and argue the issue

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to the jury. Although Ristic appeals the denial of his trial objection, he does
not appeal the denial of the motion for new trial.

¶33 On appeal, Ristic does not identify the disclosure rule
allegedly violated by the State. Therefore, Ristic has waived the argument.
See State v. Henry, 224 Ariz. 164, 172, ¶ 27 (App. 2010) (holding that failure
to properly develop an argument results in waiver of that issue); see also
Ariz. R. Crim. P. 31.10(a)(7).

¶34 Even if we did not find the argument waived, and assuming
the State was required but failed to disclose the raw data, Ristic shows no
prejudice. See State v. Tucker, 157 Ariz. 433, 439 (1988) (providing that "even
if there is a failure to remedy a discovery violation, a subsequent conviction
will not be reversed on that account unless the defendant can demonstrate
prejudice from the violation"). There was no dispute that the call was a
Skype call. As defense counsel stated, "[t]he question[] was, was it an audio
Skype call or was it a video Skype call?" Ristic argued to the jury that no
Skype video call took place. He fails to show what prejudice resulted from
the failure to review the data. Because the challenged testimony only stated
that the call was a "Skype call" without reference to video, Ristic has not
demonstrated prejudice from any discovery violation. Thus, we find no
reversable error.

VII. Deleted Text Messages.

¶35 Ristic also argues the superior court erred when it precluded
defense counsel's question about deleted text messages. Defense counsel
asked the Victim's friend if the Victim had ever asked the friend to delete
text messages. The court sustained the State's relevance objection. See Ariz.
R. Evid. 402. The superior court's rulings on the admissibility of evidence
are reviewed for an abuse of discretion. Amaya–Ruiz, 166 Ariz. at 167. We
find no abuse of discretion.

¶36 First, defense counsel's question at trial was not narrowed to
the relevant time period and thus had little relevance to the issues before
the jury. See Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 90, ¶ 25 (App. 1998)
(as corrected) ("Otherwise relevant evidence may be excluded if it is too
remote in time from the proposition being proved.").

¶37 Second, Ristic claims the question went to "the credibility of
the Victim, who was trying to delete certain text messages." But Ristic never
asked the Victim if she asked this friend to delete messages, nor did he
attempt to offer the friend's messages as evidence, so the question had little
impeachment value. See Hernandez v. State, 203 Ariz. 196, 200, ¶ 15 (2002)

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(noting "impeachment evidence must be relevant under Rules 401 and
402").

¶38 Finally, the Victim admitted deleting text messages on her
own phone and testified on redirect that the "only text messages that were
deleted on the phone were the ones between" the Victim and a different
friend. Those deleted texts were admitted at trial. Ristic suggests that it
was unfair to preclude his question about deleted text messages when the
State was allowed to introduce the Victim's previously deleted text
messages. But Ristic stipulated to the introduction of those deleted
messages so his claims of unfairness are unfounded.

¶39 Accordingly, we find no abuse of discretion.

VIII. Alleged Prosecutorial Misconduct.

¶40 Finally, Ristic asserts that statements by the prosecutor in
closing argument constituted prosecutorial misconduct. Because Ristic did
not object to the alleged misconduct at trial, we review for fundamental
error. See Escalante, 245 Ariz. at 140, ¶ 12. "We will reverse a conviction for
prosecutorial misconduct if (1) misconduct is indeed present; and (2) a
reasonable likelihood exists that the misconduct could have affected the
jury's verdict, thereby denying [the] defendant a fair trial." State v.
Velazquez, 216 Ariz. 300, 311, ¶ 45 (2007) (citation and quotation marks
omitted).

¶41 Ristic argues the prosecutor committed prosecutorial
misconduct by vouching for the honesty or dishonesty of witnesses. A
prosecutor commits impermissible "vouching: (1) where the prosecutor
places the prestige of the government behind its witness; [or] (2) where the
prosecutor suggests that information not presented to the jury supports the
witness's testimony." State v. Vincent, 159 Ariz. 418, 423 (1989). In
reviewing statements made during closing arguments, we look to the
context as well as the entire record and the totality of the circumstances.
State v. Goudeau, 239 Ariz. 421, 466, ¶ 196 (2016).

A. Statements Summarizing Evidence.

¶42 The first statements by the prosecutor Ristic challenges are:

"what he did was he lied and we know he lied, ladies and
gentlemen, because the fact his DNA is found on her inner
vaginal swab." (emphasis added).

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"And as I said before, the one person we know lied is the
defendant because when he talked to Detective Theriault, he
said he didn't do anything other than maybe grope her . . . But
ladies and gentlemen, the DNA proves otherwise." (emphasis
added).

Ristic asserts that the statement "we know he lied" constituted prosecutorial
misconduct because "credibility was paramount to the verdict."

¶43 These statements were not vouching because they did not
place the prestige of the government behind the evidence or suggest
knowledge on the part of the government untethered to the evidence.
Instead, the prosecutor made the comments when summarizing the
inconsistencies between Ristic's statement to police—that he did not have
sexual contact with the Victim and the DNA evidence showing that he had
sexual contact with the Victim. See, e.g., United States v. Ruiz, 710 F.3d 1077,
1086 (9th Cir. 2013) (stating that it is permissible to use the words "we
know" to describe the evidence where prosecutor "did so only to 'marshal
evidence actually admitted at trial and reasonable inferences from the
evidence, not to vouch for witness veracity or suggest that evidence not
produced would support a witness's statements'" (quoting United States v.
Younger, 398 F.3d 1179, 1191 (9th Cir. 2005))).

¶44 Even if the prosecutor should not have used the phrase "we
know," any error was not fundamental or prejudicial. In State v. Acuna
Valenzuela, our supreme court found that a prosecutor's statement "[w]e
know the defendant attempted to shoot and kill Perla," did not constitute
fundamental error. 245 Ariz. 197, 218, ¶¶ 83-85 (2018). The court was
concerned by the prosecutor's use of "we know" because of the "fine
contextual line between the use of 'we know' inclusively, i.e., to describe
evidence and outline inferences from that evidence with the jury, and the
use of 'we know' in an exclusive manner, i.e., to refer to the State
collectively." Id. at ¶ 85. But the court concluded that the pronoun usage,
by itself, does not rise to the level of fundamental, prejudicial error.
Id. Here, the prosecutor referenced Ristic's undisputed initial lie about
having sex with the Victim, so using "we know" falls on the inclusive side
of that "fine contextual line" and was not fundamental error.

B. Statement Summarizing Defense's Theory.

¶45 The third comment related to the multiple confrontation calls
the Victim made at the direction of the lead investigator. During closing,
defense counsel criticized the lead investigator, but noted that another

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detective, who assisted the lead investigator, "looks like she knows what
she is doing." On appeal, Ristic challenges the following statement from
the State's rebuttal argument:

"[A]pparently Defense is okay with [the detective's] way of
accomplishing a confrontation call and I had [the detective]
go through the confrontation call process. So I don't know
what [the lead investigator] did improperly. It was very clear
[the detective] said multiple confrontation calls are done all
the time." (emphasis added).

¶46 A prosecutor may present "fair rebuttal to an area opened by
defense," State v. Gillies, 135 Ariz. 500, 510 (1983), and argue that the State's
case was not contradicted, State v. Byrd, 109 Ariz. 10, 11 (1972). The record
shows that the prosecutor's comments permissibly criticized and rebutted
Ristic's theory that multiple confrontation calls were improper, without
impermissibly vouching for the State's witnesses or attacking defense
counsel. See State v. Hulsey, 243 Ariz. 367, 390, ¶ 99 (2018) (collecting cases
and stating that commentary on a defense theory is common but
"[a]rgument that impugns the integrity or honesty of opposing counsel is .
. . improper" (quoting State v. Hughes, 193 Ariz. 72, 86, ¶ 59 (1998))).

¶47 Thus, we find no misconduct. The court's instruction to the
jury that what the lawyers said was not evidence further "negated" any
hypothetical error or prejudice. State v. Morris, 215 Ariz. 324, 336-37, ¶ 55
(2007).

CONCLUSION

¶48 For the foregoing reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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