State v. Matthews ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
TOLLIE BERNON MATTHEWS, III,1 Appellant.
No. 1 CA-CR 20-0478
FILED 9-30-2021
Appeal from the Superior Court in Maricopa County
No. CR2019-002041-001
The Honorable Susanna C. Pineda, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
1This caption is amended as reflected. The amended caption shall be used
on all further documents filed in this appeal.
STATE v. MATTHEWS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge D. Steven Williams delivered the decision of the Court, in
which Judge David B. Gass and Judge James B. Morse Jr. joined.
W I L L I A M S, Judge:
¶1 Tollie Bernon Matthews, III appeals his convictions and
sentences for manslaughter, two counts of aggravated assault, two counts
of endangerment, and two counts of aggravated driving under the
influence (“DUI”). He argues the superior court erred by admitting
evidence of his prior DUI conviction as other-act evidence under Arizona
Rule of Evidence 404(b). For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 J.N. was driving southbound on Dysart Road with his friend,
A.M., in the passenger seat when Matthews’ vehicle struck them from
behind, launching them into oncoming traffic. J.N.’s vehicle collided with
two other vehicles and caught fire. A.M. died at the scene. J.N. and the
occupants of the other two vehicles were injured but survived.
¶3 Matthews, who had fallen asleep with his foot on the
accelerator, continued south at a high rate of speed, ultimately coming to a
stop after hitting a curb. Police interviewed Matthews at the scene and
observed that Matthews’ eyes were “droopy” and “watery,” “his speech
was slow and slurred,” “he was swaying,” and he “was having a hard time
maintaining his balance,” indicating he was “under the influence of
something.”
¶4 Matthews was arrested and his blood was drawn pursuant to
a search warrant. After initial denials, Matthews later admitted that he had
taken two Oxycodone pills fifteen minutes before driving. The blood draw
revealed that Matthews had both Oxycodone and Alprazolam (also known
as Xanax) in his system. Sedation and problems with balance and
coordination are side effects of both drugs—side effects that can interfere
with a person’s ability to drive.
¶5 At the time of the collision, Matthews had a prior
misdemeanor conviction for DUI and was required to have an ignition
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STATE v. MATTHEWS
Decision of the Court
interlock device on any vehicle he drove. Although he was aware of this
requirement, the vehicle did not have an ignition interlock device.
¶6 The State charged Matthews with manslaughter, a Class 2
dangerous felony (Count 1); two counts of aggravated assault, each a Class
3 dangerous felony (Counts 2 and 3); two counts of endangerment, each a
Class 6 dangerous felony (Counts 4 and 5); and two counts of aggravated
DUI, each a Class 4 felony (Counts 6 and 7).
¶7 The jury found Matthews guilty as charged. The trial court
sentenced Matthews to concurrent fifteen-year terms of imprisonment for
Counts 1 and 2 and imposed lesser concurrent terms of imprisonment for
Counts 3 through 5. As to Counts 6 and 7, the court imposed a consecutive
five-year probation tail. This timely appeal followed. 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 Matthews argues the court erred by admitting evidence of his
prior DUI conviction under Arizona Rule of Evidence 404(b) to show he
understood the risk of causing a collision while driving under the influence.
Because Matthews did not raise an objection either before or during trial,
he forfeited appellate relief absent fundamental, prejudicial error. See State
v. Escalante, 245 Ariz. 135, 145, ¶ 38 (2018).
¶9 Rule 404(b) prohibits evidence of other acts “to prove the
character of a person in order to show action in conformity therewith” but
allows such evidence “for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Ariz. R. Evid. 404(b)(1)-(2). Evidence of a prior crime,
act, or wrong may be introduced to prove a defendant’s mental state if it is
similar to the act for which the defendant is on trial. State v. Woody, 173 Ariz.
561, 563 (App. 1992). Admissibility, however, does not hinge on the prior
act being factually identical to the crime at issue. Id. Rather, the act may be
admitted under Rule 404(b) if it can permit the jurors to infer that the
defendant had knowledge of the consequences of the act in question. Id.¶10 Before trial, the State moved under Rule 404(b) to admit
evidence of Matthews’ prior DUI conviction to show the mental state of
criminal recklessness. At trial, the court ruled the prior DUI conviction was
admissible under Rule 404(b) to show Matthews was “on notice” of the risk
of driving while impaired and provided the jury a limiting instruction to
consider evidence of the prior DUI only as it related to Matthews’ mental
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STATE v. MATTHEWS
Decision of the Court
state in the current matter. At Matthews’ insistence, no evidence was
admitted concerning the circumstances under which Matthews’ prior DUI
occurred. We review for an abuse of discretion the trial court’s decision to
admit evidence under Rule 404(b). State v. Beasley, 205 Ariz. 334, 337, ¶ 14
(App. 2003).
¶11 Matthews argues the court erred in admitting the prior DUI
conviction to prove his mental state because it was “too remote in time” and
because there was no evidence demonstrating that the prior DUI was
factually similar to the instant DUI. Matthews has shown no error.
¶12 Evidence of a prior DUI is relevant to the issue of whether a
defendant “was made aware of the risks he posed to others in driving while
under the influence,” Woody, 173 Ariz. at 563, and a nine-year gap between
the prior act and the current offense does not automatically preclude its
admissibility, see State v. Fernane, 185 Ariz. 222, 226 (App. 1995) (as
corrected) (noting that a fifteen-year gap between prior acts and current
offenses did not automatically preclude the admissibility of the evidence).
While Matthews complains there was a lack of evidence to show his prior
DUI was sufficiently similar to the instant case, it is sufficient that he has a
prior conviction for driving under the influence and there was evidence in
this case that Matthews was, again, driving under the influence at the time
of the collision. See Woody, 173 Ariz. at 563 (recognizing that a defendant’s
prior act can be introduced to prove a defendant’s mental state when the
prior act is similar enough to the act for which the defendant is on trial, such
that a jury can infer that the defendant had knowledge of the consequences
of the act in question).
¶13 But even if the admission of Matthews’ prior DUI constituted
error, Matthews has failed to show prejudice. See State v. Martin, 225 Ariz.
162, 166, ¶ 14 (App. 2020) (“To warrant reversal under fundamental error
review . . . [d]efendant must show prejudice; that is, he must show that
absent error, a reasonable jury could have reached a different result.”).
¶14 The State produced substantial evidence of Matthews’ guilt,
including that Matthews was aware of and had previously experienced the
side effects of Oxycodone and Alprazolam, that both drugs, known for their
sedative effects, were found in his blood, that Matthews initially denied and
then admitted to law enforcement that he had taken two Oxycodone fifteen
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STATE v. MATTHEWS
Decision of the Court
minutes prior to driving,2 and, by his own account, had fallen asleep while
driving. The State also presented the testimony of multiple witnesses who
saw Matthews’ vehicle barrel into J.N.’s vehicle setting off the chain of
events that led to A.M.’s death and injuries to three others. Given the nature
and extent of the evidence, Matthews has failed to show fundamental error.
See State v. Naranjo, 234 Ariz. 233, 247, ¶ 64 (2014) (finding that improperly
admitted other-acts evidence did not constitute fundamental, prejudicial
error “[g]iven the nature and extent” of the other evidence presented).
CONCLUSION
¶15 Matthews’ convictions and sentences are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
2 Although at trial Matthews denied taking drugs the morning of the
collision, the credibility of Matthews’ trial testimony and the weight given
to his testimony was within the province of the jury. See State v. Bustamante,
229 Ariz. 256, 258, ¶ 5 (App. 2012).
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