State v. Andrus ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
WALTER MICHAEL ANDRUS, Appellant.
No. 1 CA-CR 13-0367
FILED 08-05-2014
Appeal from the Superior Court in Mohave County
No. S8015CR201101001
The Honorable Lee F. Jantzen, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Terry M. Crist
Counsel for Appellee
Mohave County Legal Defender’s Office, Kingman
By Diane S. McCoy
Counsel for Appellant
STATE v. ANDRUS
Decision of the Court
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Samuel A. Thumma joined.
C A T TA N I, Judge:
¶1 Walter Michael Andrus appeals his conviction for harassing a
public officer and the resulting term of probation. Andrus argues (1) the
evidence was insufficient to support his conviction, (2) the trial court
abused its discretion by limiting his counsel’s cross-examination of the
victim regarding the victim’s residency status, and (3) the court improperly
admitted in evidence a letter from a government lawyer to Andrus. For
reasons that follow, we uphold the trial court’s rulings and affirm Andrus’s
conviction and term of probation.
FACTS AND PROCEDURAL BACKGROUND1
¶2 The victim was the clerk of the Mohave County Moccasin
Justice Court, now known as the North Canyon Justice Court. Andrus
appeared in that court as a result of a ticket for speeding and driving with
an expired license. Over the course of the proceedings, Andrus submitted
several filings, including a “counterclaim” in which he sought millions of
dollars in damages from the victim and from the law enforcement officer
who ticketed him. Andrus later sought billions of dollars in damages from
the victim and the ticketing officer. In other filings, Andrus threatened to
file “liens and encumbrances” against the victim and invoked the use of
liens “as a method of recovery.” Andrus also filed suit against the victim
in Utah, but a Utah court dismissed the case.
¶3 Andrus filed in the Mohave County Recorder’s Office a three-
page document, described in more detail below, in which he identified
himself as a secured creditor and the victim and the justice court as debtors
owing more than $75 billion. Although the recorder’s office accepted the
document for filing, it was recorded as a “notice” rather than a “lien”
because of irregularities within the document and the absence of
1 We view the facts in the light most favorable to upholding the jury’s
verdict. State v. Kindred, 232 Ariz. 611, 613, ¶ 2, 307 P.3d 1038, 1040 (App.
2013).
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STATE v. ANDRUS
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documentation that ordinarily accompanies a nonconsensual lien. Because
the recorder’s office believed the document asserted a nonconsensual lien
against a public employee, the document was indexed in Andrus’s name
only, without reference to the victim or the justice court.
¶4 When contacted by an investigator for the Mohave County
Attorney’s Office, Andrus admitted that he had filed the lien against the
victim and explained why he believed he had a right to do so. Andrus also
indicated that he planned to assert claims against the two justices of the
peace who presided over his case, telling the investigator that the only way
to get someone’s attention was “to make them pay.” In a letter responding
to correspondence from an attorney in the Arizona Attorney General’s
Office representing the victim in Andrus’s “counterclaim,” Andrus
admitted that he had filed a lien against the victim.
¶5 The State charged Andrus with one count of harassment of a
public officer. At trial, Andrus again admitted that he filed the lien against
the victim, but he claimed to have done so without the intent to harass,
annoy, or alarm the victim. The jury convicted Andrus as charged, and the
trial court placed him on three years’ probation.
¶6 Andrus timely appealed. We have jurisdiction under Article
6, Section 9, of the Arizona Constitution and Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033.2
DISCUSSION
I. Sufficiency of the Evidence.
¶7 Andrus argues that the evidence was insufficient to support
his conviction under A.R.S. § 13-2921(B), which provides as follows:
A person commits harassment against a public officer or
employee if the person, with intent to harass, files a
nonconsensual lien against any public officer or employee
that is not accompanied by an order or a judgment from a
court of competent jurisdiction authorizing the filing of the
lien or is not issued by a governmental entity or political
subdivision or agency pursuant to its statutory authority, a
validly licensed utility or water delivery company, a
mechanics’ lien claimant or an entity created under
2 Absent material revisions after the relevant date, we cite the current
version of the statute.
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STATE v. ANDRUS
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covenants, conditions, restrictions or declarations affecting
real property.
Pursuant to A.R.S. § 13-2921(E), “harassment” is defined as “conduct that
is directed at a specific person and that would cause a reasonable person to
be seriously alarmed, annoyed or harassed and the conduct in fact seriously
alarms, annoys or harasses the person.”
¶8 Andrus asserts that the document he filed was not a valid
nonconsensual lien, as described in § 13-2921, because the county recorder
did not identify or record the document as a lien. Andrus also asserts that
the lien was not filed “against” the victim because the county recorder
indexed the document in Andrus’s name, without referencing the victim.
¶9 “Reversible error based on insufficiency of the evidence
occurs only where there is a complete absence of probative facts to support
the conviction.” State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624
(1996) (citation omitted). “To set aside a jury verdict for insufficient
evidence it must clearly appear that upon no hypothesis whatever is there
sufficient evidence to support the conclusion reached by the jury.” State v.
Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987).
¶10 The evidence was sufficient to support Andrus’s conviction.
The term “lien,” as generally used, refers to “a charge or encumbrance upon
property to secure the payment or performance of a debt, duty, or other
obligation.” Matlow v. Matlow, 89 Ariz. 293, 297–98, 361 P.2d 648, 651 (1961).
As noted above, Andrus repeatedly acknowledged filing the three-page
document, and he repeatedly described or characterized it as a lien.
Moreover, on the first page of the document, Andrus identified the
document as his notice of filing a “UCC1 Filing Filing Statement [sic]” and
a “Lien.” A UCC1 form is a “financing statement.” See U.C.C. Legal Forms
§ 9:506 (“UCC Financing Statement Form UCC1”), available at
http://www.azsos.gov/Business_Services/UCC/ucc_forms.htm.3 Except
as otherwise provided by law, a financing statement such as form UCC1 is
the document a secured creditor must file to perfect a security interest in
property. A.R.S. § 47-9310(A).
¶11 Although the first page of Andrus’s document identified only
the justice court as the debtor, the second page of the document—the
3 Arizona has substantially adopted the Uniform Commercial Code.
Fin. Mgmt. Servs., Inc. v. Familian Corp., 183 Ariz. 497, 499 n.1, 905 P.2d 506,
508 n.1 (App. 1995); see also A.R.S. tit. 47.
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STATE v. ANDRUS
Decision of the Court
“filing” statement Andrus identified in his “notice”—was a document from
the Utah Department of Commerce acknowledging that Andrus had filed a
UCC1 form in Utah. That acknowledgment identified both the victim and
the justice court as debtors and Andrus as the secured party. The
acknowledgment also described the victim’s property on which Andrus
claimed to have a lien. The document’s third page, titled “Notice of Claim
of Maritime Lien,” described the lien and specified the amount of the lien
against the justice court as being in excess of $75 billion. The lien did not
separately name the victim as a debtor, but it identified the victim’s
property on which Andrus claimed to have a lien.
¶12 Andrus’s document, considered as a whole, functioned as a
filing statement and a lien against the victim. The document identified the
names of the debtors and the secured party, and it described the secured
property. See Matlow, 89 Ariz. at 297–98, 361 P.2d at 651; see also A.R.S. § 47-
9502(A) (requirements of a financing statement); A.R.S. § 47-9504
(identification of collateral). Although there were irregularities in the
document, it asserted a claim of a nonconsensual lien against the victim and
gave the public notice of Andrus’s claim. See A.R.S. § 47-9506(A) (stating
that minor errors or omissions do not invalidate a financing statement that
substantially satisfies the requirements of Title 47).
¶13 Andrus also argues the evidence was insufficient to support
his conviction because the county recorder did not “record” the document
as a lien. But a conviction under § 13-2921(B) does not require that the filing
office record the document or that the filing office identify the document as
a lien within its records. A person violates § 13-2921(B) by filing a
nonconsensual lien, which is accomplished by submitting a document that
is accepted by the filing office. See A.R.S. § 47-9516(A).
¶14 Andrus further argues that the evidence was insufficient to
support his conviction because the county recorder did not index the
document in the victim’s name and, therefore, he did not file the lien
“against” the victim. But proper indexing in the debtor’s name is not an
element of the offense. See A.R.S. § 13-2921(B). Furthermore, the failure to
index a record correctly does not alter the effectiveness of the filed
document. See A.R.S. § 47-9517. Although the lien may have been more
difficult to locate because the recorder did not index the document in the
victim’s name or record it as a lien, the document was on file with the
county recorder and was available to the public.
¶15 As noted by the State’s expert, the document Andrus filed
provided all the information necessary to establish a nonconsensual lien
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against the victim. The expert testified that anyone who examined
Andrus’s document would construe it as a nonconsensual lien against all
of the victim’s property, regardless of the validity of Andrus’s claim or the
document he filed. The expert further opined that by filing the document,
Andrus had impaired the victim’s ability to deal with her property, and that
any entity searching for liens against the victim’s property would not have
simply ignored the lien asserted by Andrus, despite the amount of the lien
or other irregularities or deficiencies with the document.
¶16 Because Andrus filed a document sufficient to assert a lien,
we conclude that there was sufficient evidence to support Andrus’s
conviction for harassment of a public officer.
II. Limitation of Cross-Examination of the Victim.
¶17 Andrus argues he was denied his right to confront the victim
because the trial court limited counsel’s cross-examination of the victim
regarding her residency status. Andrus argues that whether the victim lied
about her residency to become and/or maintain her position as a justice of
the peace was a jury question that went to her credibility and was otherwise
relevant for impeachment purposes.
¶18 “The scope of cross-examination is committed to the sound
discretion of the trial court.” State v. Robinson, 165 Ariz. 51, 57–58, 796 P.2d
853, 859–60 (1990). “Evidentiary rulings that implicate the Confrontation
Clause, however, are reviewed de novo.” State v. Ellison, 213 Ariz. 116, 129,
¶ 42, 140 P.3d 899, 912 (2006). In our determination of whether the
Confrontation Clause has been violated, “[t]he appropriate question is
whether there has been any interference with the defendant’s opportunity
for effective cross-examination.” Kentucky v. Stincer, 482 U.S. 730, 744 n.17
(1987).
¶19 When the victim worked as the clerk of the justice court, she
lived in Utah and commuted to work. Andrus filed his lien against the
victim when she worked as the clerk of the court. By the time of trial, the
victim was no longer the clerk of the court, but was an Arizona justice of
the peace and had moved to Arizona.4
4 A justice of the peace must live in the state and be an elector of the
county or precinct in which she exercises her official duties. See A.R.S. § 11-
402 (qualifications of county officers); State v. Lynch, 107 Ariz. 463, 464, 489
P.2d 697, 698 (1971) (stating A.R.S. § 11-402 is applicable to justices of the
peace).
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STATE v. ANDRUS
Decision of the Court
¶20 Andrus sought to cross-examine the victim regarding her
residency and to impeach her with evidence that allegedly showed she
made false statements regarding her residency status to become a justice of
the peace. Andrus claimed he had evidence the victim was not a resident
of Arizona, which he argued went to the victim’s credibility and her
“ulterior motive” “to testify in a certain way” for various reasons. The trial
court held that Andrus’s evidence regarding the victim’s residency was
speculative, and that the issue would require admission of a great deal of
extrinsic evidence and would unnecessarily lengthen the trial. Andrus later
filed a motion for reconsideration and submitted documentation as an offer
of proof to support his claims. The trial court denied the motion, finding
Andrus’s claims were still speculative and that the victim’s residency status
was only marginally relevant.
¶21 We uphold the trial court’s ruling. Whether viewed
individually or collectively, the documents Andrus provided in his offer of
proof did not establish that the victim misrepresented her residency status
during the process of becoming a justice of the peace. And more
importantly, the victim’s residency status was not relevant to the issues
before the jury. The only relevant questions regarding the victim were
whether she was a public officer, and whether a reasonable person in her
situation would have felt harassed by Andrus’s filings. Accordingly, given
the trial court’s discretion in controlling the scope of cross-examination, we
conclude that the court did not abuse its discretion by limiting cross-
examination to avoid an unnecessary “trial within a trial” regarding an
irrelevant issue. See Robinson, 165 Ariz. at 57–58, 796 P.2d at 859–60; see also
Ariz. R. Evid. 403 (allowing exclusion of even relevant evidence if its
probative value is substantially outweighed by the danger of undue delay
or wasting time).
III. Admission of Correspondence from an Assistant Attorney
General.
¶22 Andrus argues the trial court erred by admitting in evidence
a letter written by an assistant attorney general warning Andrus not to file
a false lien against the victim. The assistant attorney general noted in the
letter that filing such a false lien could be construed to be harassment and
could constitute a class 1 misdemeanor under A.R.S. § 33-420(E). At the
time he wrote the letter, the assistant attorney general was not aware that
Andrus had already filed a lien against the victim.
¶23 Andrus responded with his own letter in which he argued in
relevant part that the victim had “acted outside of law and office” and had
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gone “into dishonor and defaulted.” Andrus further wrote, “Also, your
letter postdates some matters in which you express interest. Among others
are the maritime liens dated June 7, 2011 naming [the justice court and the
victim] as debtors[.]” Andrus went on to explain why he had a right to
assert a lien against the victim “in the amount of the accrued liability.” The
State offered the letter in evidence during the prosecutor’s cross-
examination of Andrus. When Andrus made a hearsay objection, the State
argued that the letter was admissible to show Andrus’s intent, not to prove
the truth of the matters asserted in the letter. The trial court overruled
Andrus’s objection without explanation.
¶24 On appeal, Andrus argues the letter was inadmissible hearsay
and violated his right to confront the assistant attorney general. While
Andrus raised a hearsay objection before the trial court, he did not reference
the Confrontation Clause. Accordingly, we review Andrus’s hearsay
argument for abuse of discretion, see State v. Amaya-Ruiz, 166 Ariz. 152, 167,
800 P.2d 1260, 1275 (1990), but we review his Confrontation Clause
argument only for fundamental, prejudicial error. See State v. Hamilton, 177
Ariz. 403, 408, 868 P.2d 986, 991 (App. 1993) (“[A]n objection to the
admission of evidence on one ground will not preserve issues relating to
the admission of that evidence on other grounds.”); see also State v.
Henderson, 210 Ariz. 561, 567-69, ¶¶ 19-26, 115 P.3d 601, 607-09 (2005)
(defining fundamental error as prejudicial error going to the foundation of
the case).
¶25 The trial court did not abuse its discretion by denying
Andrus’s hearsay objection. “‘Hearsay’ means a statement that: (1) the
declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the
statement.” Ariz. R. Evid. 801(c); see also State v. Rogovich, 188 Ariz. 38, 42,
932 P.2d 794, 798 (1997) (“Testimony not admitted to prove the truth of the
matter asserted by an out-of-court declarant is not hearsay[.]”). Here, the
State did not offer the letter to prove the truth of the matter asserted. The
letter, along with Andrus’s response to that letter, were offered to prove
Andrus’s intent when he filed the lien and to prove he persisted with that
intent even in light of the assistant attorney general’s letter. Because
Andrus testified that he did not file the lien with the intent to harass the
victim, it was within the trial court’s discretion to admit the assistant
attorney general’s letter, along with Andrus’s response, as evidence of
Andrus’s state of mind and to show his intent.
¶26 Andrus’s Confrontation Clause argument is similarly
unavailing. The Confrontation Clause applies only to “[t]estimonial
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statements of witnesses absent from trial” offered to prove the truth of the
matter asserted. Crawford v. Washington, 541 U.S. 36, 59 & n.9 (2004). A
“testimonial statement” is a statement that has the “primary purpose of
creating an out-of-court substitute for trial testimony.” Michigan v. Bryant,
131 S. Ct. 1143, 1155 (2011). If the statement did not have that primary
purpose, “the admissibility of [that] statement is the concern of state and
federal rules of evidence, not the Confrontation Clause.” Id.
¶27 The assistant attorney general’s letter was not a testimonial
statement and, therefore, did not implicate the Confrontation Clause.
Moreover, even if the letter were testimonial, the Confrontation Clause
would not have barred its use because it was offered for purposes other
than to prove the truth of the matter asserted. See Crawford, 541 U.S. at 59
n.9. Accordingly, Andrus has not established error, much less fundamental
error.
CONCLUSION
¶28 For the foregoing reasons, we affirm Andrus’s conviction and
sentence of probation.
:gsh
9