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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
LARRY JAMES RADY, JR., Appellant.
No. 1 CA-CR 20-0118
FILED 1-26-2021
Appeal from the Superior Court in Maricopa County
No. CR2018-144942-001
The Honorable John R. Hannah, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By David R. Cole
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Robert W. Doyle
Counsel for Appellant
STATE v. RADY
Decision of the Court
MEMORANDUM DECISION
Presiding Judge D. Steven Williams delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.
W I L L I A M S, Judge:
¶1 Larry James Rady, Jr. appeals his conviction and sentence for
misconduct involving weapons. Because Rady has shown no error, we
affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 In July 2018, Rady was shot in the leg. While at the
hospital receiving treatment for his wound, Rady was interviewed by the
police. Rady told police officers he was shot by an unknown subject while
smoking a cigarette on his back porch. Officers were dispatched to Rady’s
residence and, shortly after arrival, they encountered Rady’s roommate,
Cynthia Flagg. Flagg told the officers Rady shot himself and described
Rady as her “boyfriend.” Two days after the shooting, Rady contradicted
his initial statement and told police the shooting occurred when he was
moving a safe and a gun fell out, hit the floor, and discharged.
¶3 At the time of the shooting, Rady was on probation for a
prior felony conviction and was prohibited from possessing firearms. The
state charged Rady with two counts of misconduct involving weapons
occurring on different dates, both Class 4 felonies (“Count One” and
“Count Three”); and unlawful discharge of a firearm, a Class 6 felony,
(“Count Two”). Rady entered a plea agreement, resolving Counts Two
and Three, but proceeded to trial on Count One.
¶4 At trial, the state was required to prove beyond a reasonable
doubt Rady knowingly possessed a deadly weapon while classified as a
prohibited possessor. A.R.S. § 13-3102(A)(4).
¶5 Rady’s probation officer, Kimberly Peterson, testified she
visited Rady’s home twice between May and June of 2018. When asked by
the prosecutor which room was Rady’s, Peterson responded she believed
Rady and Flagg shared a bedroom. The prosecutor then asked Peterson
whether, based on her observations, she believed Rady and Flagg to be
boyfriend and girlfriend. Defense counsel objected on the grounds that the
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STATE v. RADY
Decision of the Court
question called for speculation. The trial court overruled the objection,
and Peterson testified it appeared that Rady and Flagg were in a romantic
relationship.
¶6 Flagg testified she did not recall telling police that Rady was
her boyfriend or that he had shot himself. Instead, Flagg denied that Rady
was her boyfriend and testified that she accidentally shot Rady while
attempting to remove the gun from a safe in her room. Flagg maintained
she did not share her bedroom with Rady.
¶7 The jury found Rady guilty as charged and the trial court
sentenced him to a presumptive ten-year prison term. Rady timely
appealed. We have jurisdiction under Article 6, Section 9, of the Arizona
Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
¶8 Rady presents only one issue on appeal, contending the trial
court committed reversible error by allowing Peterson to testify she
believed Rady and Flagg shared a bedroom and were romantically
involved. Rady argues such testimony called for speculation and
constituted improper opinion testimony.
¶9 It is well established that decisions regarding the admission
or exclusion of evidence are left to the sound discretion of the trial court
and will be reversed on appeal only when they constitute a clear and
prejudicial abuse of the court’s discretion. State v. Ayala, 178 Ariz. 385, 387
(App. 1994). To grant Rady the relief he requests, we must conclude the
trial court abused its discretion, and that Rady was prejudiced “sufficient
to create a reasonable doubt about whether the verdict might have been
different had the error not [occurred].” Id.1
¶10 Relying only on State v. Reimer, 189 Ariz. 239 (App. 1997) to
support his argument that Peterson’s testimony requires us to overturn
the conviction, Rady has failed to show how the court abused its
discretion. In Reimer, this court concluded the trial court abused its
discretion when it admitted into evidence a police officer’s opinion
testimony on the truthfulness of another witness’ statements. 189 Ariz. at
1 The state seemingly concedes Rady’s contention that Peterson’s
testimony called for speculation. We disagree. State v. Solis, 236 Ariz. 242,
249, ¶ 23 (App. 2014) (appellate court is not bound by the state’s
concession of error).
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STATE v. RADY
Decision of the Court
241 (noting that the Arizona Rules of Evidence do not permit an expert or
lay witness to opine on the truthfulness of a statement made by another
witness as it usurps the function of the jury to determine the credibility of
the witness). Here, while Peterson’s testimony contradicted that of Flagg,
she did not opine on the truthfulness of the statements made by Flagg.
Reimer is inapplicable.
¶11 Furthermore, lay witnesses, such a Peterson, may testify to
relevant evidence and may provide inferences or opinions which are
rationally based on the perceptions of the witness and helpful in
understanding the witness’ testimony or determining a fact in issue. Ariz.
R. Evid. 701; Ayala, 178 Ariz. at 387; see also United States v. Freeman, 619
F.2d 1112, 1120 (5th Cir. 1980) (finding witnesses’ testimony about their
“‘impression’ and ‘understanding’ of appellants’ relationship to each
other” was admissible lay opinion testimony). How much weight to give
Peterson’s testimony, including whether to accept it as credible, was
within the province of the jury. See State v. Boggs, 218 Ariz. 325, 335, ¶ 39
(2008) (“Determining veracity and credibility lies within the province of
the jury . . . .”); see also Estate of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz.
283, 287, ¶ 12 (2000) (“The credibility of a witness’ testimony and the
weight it should be given are issues particularly within the province of the
jury.”) (quoting Kuhnke v. Textron, Inc., 140 Ariz. 587, 591 (App. 1984)).
¶12 Because Peterson’s testimony was rationally based upon her
perceptions and helpful in determining a fact in issue, the court did not
abuse its discretion in allowing the testimony.
CONCLUSION
¶13 Because Rady has shown no error, his conviction and
sentence are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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