State v. Nash

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TROY MICHAEL NASH, Appellant.

No. 1 CA-CR 23-0188, 1 CA-CR 23-0422
(Consolidated)
FILED 08-20-2024

Appeal from the Superior Court in Maricopa County
No. CR2022-001520-001
The Honorable David W. Garbarino, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Celeste Kinney
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jennifer Roach
Counsel for Appellant
STATE v. NASH
Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Jennifer B. Campbell joined.

B R O W N, Judge:

¶1 Defendant Troy Nash appeals his conviction and resulting
sentence for fraudulent schemes and artifices, a class two felony. He argues
the trial court erred by not granting a mistrial for alleged jury misconduct,
by not admitting statements from an unavailable witness, by admitting
irrelevant and unfairly prejudicial evidence, and because the verdict was
against the weight of the evidence. Because Nash has not shown reversible
error, and because there was substantial trial evidence to support his
conviction, we affirm.

BACKGROUND

¶2 Nash was an automobile wholesaler who did business
through his company, Kofa Auto Brokers, Inc. (“Kofa”). Between 2015 and
2019, a large part of his business consisted of buying used cars from one
dealership, Mercedes-Benz of Scottsdale (“MBS”), and selling them for a
profit to another dealership, Certified Benz and Beemer (“CBB”). Nash
would first negotiate a price with David Robinson, the general sales
manager of MBS. After agreeing on a price, Robinson would let Nash take
the car to find a buyer. In the meantime, Robinson would send the purchase
order to MBS’s accounting office to ensure the car’s title was clear and ready
to transfer. Nash would then meet with CBB’s co-owner and general
manager, Jack Schneider, to discuss selling the car to CBB. Once a deal was
finalized, CBB took control of the car. When the car’s title was ready, Nash
would pick it up from MBS and pay for the car.

¶3 After that, Nash would notify CBB’s title clerk, Felicia Nall,
who then prepared a check for the purchase price. Once Schneider had
signed the check, Nash went to CBB and delivered the title to Nall in
exchange for the check. Under CBB’s policy, wholesalers could not receive
the check without delivering the title. However, at some point, and at
Nash’s request, Nall began releasing checks to him before he delivered the
title (floating him checks). Both Nash and Nall were aware of CBB’s policy,
yet Nall floated Nash checks because he promised to deliver the title within

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a day or two, and she trusted him to make good on those promises. Nall
estimated that she floated checks to Nash on 250 of the approximately 500
cars he sold to CBB between 2016 and 2019, and most of the time, he would
deliver the title within a day or two, as promised. No one else at CBB knew
about Nall floating the checks.

¶4 In July 2018, MBS instituted a new policy requiring Nash to
pay for any titles more than 30 days outstanding before he could pick up
newer titles. The 30-day clock began when the title was ready for pickup.
MBS’s office manager, Tricia Washburn, communicated this policy to Nash
and generally enforced it outside of a few exceptions. Later in 2018, Nash
began taking longer and longer to deliver titles to Nall. He provided
various excuses for the delays, including that he was waiting on money
from wholesalers in Washington, he was out of town, or he was playing
golf. Nall grew concerned but continued floating him checks, hoping it
would allow him to get caught up, as he was still bringing in titles, just later
and later. Unbeknownst to Nash, Nall began doctoring a shared CBB
spreadsheet to hide missing titles. Toward the end of January 2019, Nall
informed her supervisor, Amanda Powell, about certain checks she
released to Nash without receiving title, but she did not explain the full
extent of the situation. On January 29, 2019, Nall refused to float Nash a
check, directing him to talk to Powell about it. Nall did not float him any
more checks after that.

¶5 On February 20, 2019, Schneider discovered that CBB had
paid Nash for a car, but CBB did not have the title. CBB then conducted an
audit and discovered that between November 2018 and January 2019, it had
paid Nash a total of $569,300 for 17 cars, for which CBB did not have titles,
and the dealership had already resold 14 of them. The next day, Schneider
and CBB co-owner Mark Lerner met with Nash, who promised to provide
them the 17 titles within a week. Nash came back a week later and
requested more time, and Schneider obliged. But after another week
passed, Schneider told Nash he had no more time to wait. Soon after,
Schneider discovered that MBS had the 17 titles, and on March 7, he called
MBS requesting them. Both dealerships immediately stopped doing
business with Nash, and as a result, Kofa apparently became insolvent and
Nash declared bankruptcy.

¶6 Several weeks later, MBS’s owner, Charles Theisen, filed a
police report detailing the situation. The report included a statement from
Theisen indicating that after Nash had arranged a buyer for a car, he had
90 days to pay for it and receive the title. Meanwhile, CBB sued MBS, but
the dealerships ultimately settled their dispute, with CBB paying MBS

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$361,000 for the 17 titles. As a result, MBS received about $200,000 less than
Nash was supposed to pay for the 17 cars. For CBB, it paid $361,000 on top
of the $569,300 it had already paid Nash for the cars.

¶7 In May 2022, Nash was charged with one count of fraudulent
schemes and artifices, two counts of theft by control, and five counts of theft
by misrepresentation, all class 2 felonies. He pled not guilty to all counts.
Nash filed a pretrial motion in limine seeking to preclude evidence of his
personal finances and debts from being admitted at trial, arguing it was
irrelevant or, alternatively, unfairly prejudicial. In response, the State
argued that Nash’s finances were relevant to show that he knew he could
not pay for the titles. The court denied the motion, finding that his personal
finances were “relevant to his motivation and intent.”

¶8 Trial was set for March 2, 2023. The State originally planned
to call Theisen as a trial witness, but he began suffering from a serious
medical condition. Before trial, the State was alerted to Theisen’s condition
and notified defense counsel in writing on February 16, 2023 that he would
likely be unable to testify. The State submitted a statement from Theisen’s
physician recommending that he not participate in the proceedings due to
health concerns. At a hearing on February 22, the parties discussed the
possibility of Theisen testifying virtually, and the court informed Nash if he
wanted Theisen to testify, he would probably need to continue the trial to
allow Theisen to recover. Nash opted not to request a continuance and
instead subpoenaed Theisen, hoping he could testify virtually.

¶9 The following day, Nash moved to admit statements from
Theisen’s email contained in the police report if Theisen was unavailable,
under the residual hearsay exception of Arizona Rule of Evidence (“Rule”)
807. The court denied the motion, finding that Nash had not shown that
Theisen’s statements were “supported by sufficient guarantees of
trustworthiness.” Ariz. R. Evid. 807(a)(1). On March 2, the first day of trial,
Theisen moved to quash the subpoena ordering him to testify. On day two
of trial, the State called Vern Foutz, the general manager of MBS. He
testified that Theisen was not involved in MBS’s day-to-day operations, that
he had briefed Theisen on the Nash situation before Theisen filed the police
report, and that Theisen had no prior knowledge of Nash.

¶10 The next day, after argument from Theisen’s attorney, the
court granted his motion to quash the subpoena. With Theisen officially
unavailable, Nash again requested that the court admit Theisen’s
statements under the residual hearsay exception. See Ariz. R. Evid. 807.
The court denied the request, reaffirming that the statements do not meet

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Rule 807’s trustworthiness requirement, especially in light of Foutz’s
testimony.

¶11 Washburn testified during day three of the trial. While
breaking for lunch, the court received the following written question from
Juror 3:

“I am concerned about Juror 9’s ability to judge this case fairly
and impartially based on several statements he has made in
the Jury Chambers: 1) On Monday, 3/6, Juror 9 stated: ‘I’m
surprised the questionnaire didn’t ask about our opinions on
used car salesmen because most people think they’re all scam
artists.’ 2) On Tuesday, 3/7, Juror 9 said, ‘I’m not sure why
they even have us here, the verdict is already obvious.’ 3) On
Tuesday, 3/7, Juror 9 said he didn’t know we weren’t allowed
to discuss the case yet among jurors.”

¶12 After conferring with the attorneys, the court and the
attorneys then questioned each juror individually.1 Juror 3 estimated that
five or six jurors heard the “used car salesmen” comment, and the “vast
majority” heard the “I’m not sure why we’re here” comment. Juror 9
acknowledged making the “used car salesmen” comment but claimed to
“[not] really have an opinion on them.” Juror 9 also acknowledged making
the “I’m not sure why we’re here” comment and explained: “So far a lot of
[the trial] has been in regards to the debts, not in regards to the charges that
are being brought up.” Six other jurors reported hearing this comment.
Additionally, two jurors reported that some jurors had been discussing the
case, but only about trying to understand the structure of each business and
how the witnesses fit within that structure.

¶13 It also came out that Juror 11 made a remark about wanting
to hear Nash testify, and Juror 10 responded that they did not think that
would happen. When asked about it, Juror 11 explained: “I just would like
to hear his side of the story is all, you know? Everybody is talking about it
from their point of view and I wanted to hear him say it from his own
words.” Juror 10 explained that experience watching television shows led
Juror 10 to believe that Nash would not testify. Three other jurors reported
hearing this discussion.

¶14 In total, five jurors reported hearing no discussion of the case.
Six of the other nine jurors confirmed that they could remain fair and

1 There were 14 jurors at trial, two of whom were alternates.

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impartial, while Jurors 3, 9, and 15 were never asked that question. After
the questioning, the State asked that Juror 9 be removed, and Nash moved
for a mistrial, citing concerns about the jury holding it against him if he did
not testify. The court denied the motion for a mistrial and expressed its
intent to release Juror 9. Nash, however, objected, and the court kept Juror
9 on the jury. The court then reread the pertinent preliminary instructions
to the jury, including a portion of the admonition, reminding the jurors not
to “discuss any aspect of the case with each other” until deliberations.

¶15 The State then called Nall, Schneider, and a detective as
witnesses. After the State rested in its case in chief, Nash moved for a
judgment of acquittal, which the court denied, and Nash did not call any
witnesses. Before closing arguments, the court expressed concern about
Schneider’s potentially prejudicial testimony that Nash had used CBB’s
money to go to Hawaii, upgrade his wife’s wedding ring, and buy a house.
After discussion, the State agreed not to reference the vacation or the
wedding ring in closing but did plan to reference a check from Kofa paid to
“escrow” in January 2019. The court ultimately decided against instructing
the jury not to consider the purchases, and the State referenced the escrow
payment in closing.

¶16 The jury found Nash guilty of fraudulent schemes and
artifices, not guilty on five theft counts, and failed to reach a verdict on the
other two theft counts, for which the court declared a mistrial and
dismissed without prejudice. Nash filed a motion for new trial, which the
court denied. After being sentenced as a repetitive offender to 9.25 years’
imprisonment, Nash timely appealed, and we have jurisdiction under
A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1), (2).

DISCUSSION

¶17 Nash argues the trial court erred by (1) denying a mistrial for
jury misconduct, (2) precluding Theisen’s statements, (3) failing to preclude
evidence of Nash’s personal expenditures, and (4) denying a new trial on
these three grounds, and because the verdict was against the weight of the
evidence.

I. Juror Misconduct

¶18 Nash contends the trial court abused its discretion by denying
his motion for a mistrial after multiple jurors had discussed the case, in
violation of his right to a fair and impartial jury. See State v. Clabourne,
142
Ariz. 335, 344
(1984) (“A defendant has the right to a fair and impartial
jury.”); State v. Macias,
249 Ariz. 335, 339, ¶ 11
(App. 2020) (“[J]urors in a

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criminal case are not to discuss trial evidence amongst themselves until the
conclusion of evidence.”). Granting a new trial for juror misconduct is
warranted “only if a defendant shows actual prejudice or if prejudice may
be fairly presumed from the facts.” State v. Burns,
237 Ariz. 1, 26, ¶ 112
(2015). “But ‘[p]rejudice cannot be presumed’” unless “’the jury received
and considered extrinsic evidence on the issues.’” State v. Nelson,
229 Ariz.
180, 185, ¶ 12
(2012) (citation omitted). Here, because there is no showing
that the jury considered extrinsic evidence, Nash had to show actual
prejudice. See
id.
¶19 Mistrial is the “most dramatic remedy for trial error and
should be granted only when it appears that justice will be thwarted unless
the jury is discharged and a new trial granted.” State v. Speer,
221 Ariz. 449,
462, ¶ 72
(2009) (citation omitted). “The trial judge is in the best position to
determine whether a particular incident calls for a mistrial because the trial
judge is aware of the atmosphere of the trial, the circumstances surrounding
the incident, the manner in which any objectionable statement was made,
and the possible effect on the jury and the trial.” State v. Williams,
209 Ariz.
228, 239, ¶ 47
(App. 2004). Therefore, we review the denial of a motion for
mistrial for a clear abuse of discretion. State v. Murray,
184 Ariz. 9, 35
(1995).

¶20 Nash asserts that the denial of a mistrial was error because of
“the pervasiveness of the jury misconduct, the timing of the violation, the
jurors’ lack of candor, and the number of constitutional rights affected.” For
the following reasons, we conclude that the trial court did not abuse its
discretion.

¶21 First, two jurors reported discussions about the witnesses and
their roles within MBS. Because these discussions do not reasonably relate
to the ultimate issue of guilt, reminding all the jurors of the admonition was
an appropriate response by the court. See State v. Miller,
178 Ariz. 555, 557
(1994) (noting that the court’s response to juror misconduct “should be
‘commensurate with the severity of the threat posed’”) (citation omitted);
see also State v. Payne,
233 Ariz. 484, 511, ¶ 103
(2013) (concluding the trial
court did not abuse its discretion in refusing to strike a juror whose
statements “did not reveal that she was biased or had made up her mind
before hearing all the evidence”).

¶22 Second, Juror 3 reported that Juror 9 commented that “most
people think [used car salesmen are] all scam artists,” and “I don’t know
why we’re here.” We do not consider whether Juror 9 remaining on the
jury made it less impartial because Nash invited such error by objecting to
Juror 9’s removal. See State v. Robertson,
249 Ariz. 256, 260, ¶ 16
(2020)

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(“[T]he invited error doctrine only applies when the facts show the party
urging the error initiated, or at least actively defended, the error rather than
passively acquiescing in it.”). Juror 3 was the only juror who reported
hearing the “used car salesmen” comment, and other than Juror 3, the six
jurors who reported hearing the “I don’t know why we’re here” comment
all indicated that they could remain fair and impartial. Juror 3’s responses
to individual questions revealed no indication that these comments affected
Juror 3’s ability to be impartial. And after questioning the jurors, the court
reread the admonition to the jury. The court thus did not abuse its
discretion by denying Nash’s motion for a mistrial based on Juror 9’s
comments. See State v. Gallardo,
225 Ariz. 560, 569, ¶ 40
(2010) (recognizing
the presumption that “jurors follow the court’s instructions”); Burns,
237
Ariz. at 26, ¶ 111
(finding no abuse of discretion in denying a motion for
mistrial after jurors expressed potential bias but the court interviewed the
jurors and verified they could remain impartial); State v. Montano,
136 Ariz.
605
, 606–07 (1983) (holding it was not an of abuse discretion to refuse to
dismiss a jury panel after the entire panel heard a prejudicial remark
because each juror confirmed that they could remain fair and impartial).

¶23 Third, three jurors reported hearing the discussion between
Jurors 10 and 11 about whether Nash would testify. Except for Juror 15, all
jurors who reported either participating in or overhearing this discussion
indicated they could remain fair and impartial. See Burns,
237 Ariz. at 26, ¶
111
; Montano, 136 Ariz. at 606–07. And Juror 15’s questioning revealed no
indication that hearing this discussion affected Juror 15’s ability to be fair
and impartial. See Nelson,
229 Ariz. at 185, ¶ 12
. Therefore, for the same
reasons laid out in the previous paragraph, the court acted within its
discretion in declining to order a mistrial based on the jurors’ statements
about whether Nash would testify.

¶24 Nash argues the jurors’ stories conflicted, “five jurors
changed their answers in response to further questioning,” and due to this
“lack of candor . . . the jurors’ claims that they could be fair and impartial
should not have been given much weight.” However, we do not assess the
credibility of jurors. See State v. Colorado,
256 Ariz. 97, 102, ¶ 23
(App. 2023)
(recognizing that trial courts have the “task of weighing credibility when a
juror gives assurances of impartiality,” and because they “observe and
assess the juror personally,” appellate courts defer to those credibility
findings).

¶25 We also reject Nash’s assertion that, because the jurors
violated the admonition “only one or two days after” it was read to them,
the “presumption of jurors following the jury instructions was refuted by

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the jurors’ conduct.” Nash has not cited any authority supporting that
proposition, and nothing in the record shows that the jury violated the
admonition after it was reread to them. After questioning each of the jurors,
instructing the jury of the admonition for a second time was an adequate
and appropriate remedy, and the court did not abuse its discretion by
denying Nash’s motion for a mistrial.

II. Unavailable Witness’s Statements

¶26 Before trial, Nash filed a motion requesting admission of
Theisen’s statements in the police report under the Rule 807 residual
hearsay exception. The trial court denied the motion. Nash argues the
court erred by refusing to admit Theisen’s statements because they were
admissible under Rule 807 and several other hearsay exceptions, and
precluding the statements violated his compulsory process and due process
rights. Generally, we review a trial court’s ruling on the admissibility of
evidence for abuse of discretion. State v. Dann,
220 Ariz. 351, 365, ¶ 66
(2009). When an issue is raised for the first time on appeal, we review the
ruling for fundamental, prejudicial error. See State v. Escalante,
245 Ariz.
135
, 140, ¶ 12 (2018). Under that standard of review, Nash has the burden
of showing that the error (1) went to the foundation of his case or denied
him a right essential to his defense, and it prejudiced him, or (2) was so
egregious as to deny him the possibility of a fair trial. See
id. at 142, ¶ 21
.

¶27 We review the court’s refusal to admit Theisen’s statements
under Rule 807 for harmless error, but we review Nash’s remaining
arguments relating to those statements under the fundamental error
standard of review. See State v. Henderson,
210 Ariz. 561, 567
, ¶¶ 18–19
(2005) (“Reviewing courts consider alleged trial error under the harmless
error standard when a defendant objects at trial . . . [f]undamental error
review, in contrast, applies when a defendant fails to object to alleged trial
error.”).

A. Rule 807 Residual Hearsay Exception

¶28 Nash argues the trial court erred by refusing to admit
Theisen’s statements under the residual hearsay exception. See Ariz. R.
Evid. 807. Under Rule 807(a), hearsay that is not admissible under any
other exception may be admitted if:

(1) the statement is supported by sufficient guarantees of
trustworthiness--after considering the totality of
circumstances under which it was made and evidence, if any,
corroborating the statement; and

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(2) it is more probative on the point for which it is offered than
any other evidence that the proponent can obtain through
reasonable efforts.
Id.
In deciding whether a statement is sufficiently trustworthy under the
residual exception, courts “consider ‘the spontaneity, consistency,
knowledge, and motives of the declarant . . . to speak truthfully,’ among
other things.” Burns,
237 Ariz. at 20, ¶ 69
(citation omitted). The trial court
denied Nash’s request to admit Theisen’s statements under Rule 807,
finding that the statements did not contain the required guarantees of
trustworthiness.

¶29 Nash first contends that Theisen’s statements were not
spontaneous because they “followed an internal investigation at MBS.”
However, a spontaneous statement is generally more trustworthy. See State
v. Tucker,
205 Ariz. 157, 166, ¶ 42
(2003) (“We assume, as a general matter,
that when the declarant has had little time to reflect on the event she has
perceived, her statement will be spontaneous and therefore reliable.”); see
also Ariz. R. Evid. 803(1)–(2) (exceptions to the rule against hearsay for
spontaneous statements). Thus, Nash’s argument that Theisen’s statements
were not spontaneous weighs against admission of those statements. Nash
also asserts that Theisen’s statements were consistent because Theisen
never “contacted the [police] to modify, correct or retract his statement.”
Because there is no subsequent statement or testimony from Theisen on the
90-day policy to compare with his original statements, consistency does not
favor either side. Likewise, the improper motive factor is neutral.

¶30 As to the knowledge factor, Nash argues “there is nothing in
the record suggesting that [] Theisen lacked knowledge about the wholesale
business or his policy for payment, [90] days from the sale date.” The
record shows otherwise. Both MBS employees testified that Theisen was
not involved in MBS’s day-to-day operations, and Foutz testified that
anything Theisen learned about MBS came from Foutz. Also, according to
Foutz, Theisen did not know who Nash was until Foutz briefed him shortly
before filing the police report. Theisen’s lack of personal knowledge of the
statements’ content weighs strongly against their trustworthiness. See Ariz.
R. Evid. 602 (requiring a fact witness to have “personal knowledge of the
matter” to testify about that matter). Similarly, his lack of personal
knowledge leads to the conclusion that his statements to the police were not
more probative as to MBS’s business practices than the testimony of those
who handled such matters. See Ariz. R. Evid. 807(a)(2).

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¶31 Finally, nothing in the record corroborates Theisen’s claim
that MBS allowed Nash up to 90 days to pay for the cars he had arranged
to sell. Notably, neither Foutz, MBS’s general manager, nor Washburn,
who handled MBS’s day-to-day accounting work, were aware of a 90-day
policy. Because Theisen’s statements were not “supported by sufficient
guarantees of trustworthiness,” the court did not abuse its discretion by
ruling it was inadmissible under Rule 807. See Ariz. R. Evid. 807.

B. Rule 803(8) Public Record Exception

¶32 Nash argues Theisen’s statements in the police report were
admissible under the public records hearsay exception. See Ariz. R. Evid.
803(8). Under Rule 803(8), a “record or statement of a public office” is
admissible if:

(A) it sets out:

...

(ii) a matter observed while under a legal duty to report, but
not including, in a criminal case, a matter observed by
law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case,
factual findings from a legally authorized investigation; and

(B) the opponent does not show that the source of information
or other circumstances indicate a lack of trustworthiness.

¶33 The State argues the police report is inadmissible because
“Rule 803’s plain language excludes matters observed by law-enforcement
personnel.” See
id.
But that exception only applies to evidence offered
against a defendant in a criminal case. See
id.
Here, Nash offered the police
report against the State, which Rule 803(8) explicitly allows.
Id.
(stating
that “factual findings from a legally authorized investigation” are
admissible “in a civil case or against the government in a criminal case”)
(emphasis added). But for the same reasons discussed in the previous
section, the State has shown that the circumstances surrounding Theisen’s
statements “indicate a lack of trustworthiness” and are thus inadmissible
under the public records exception. See Ariz. R. Evid. 803(8)(B).

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C. Rule 801(d)(2)(B) Adopted Statement

¶34 Nash argues Theisen’s statements from the police report were
admissible as non-hearsay under Rule 801(d)(2)(B),2 which states that an
opposing party’s statement is not hearsay if it “is offered against an
opposing party and . . . is one the party manifested that it adopted or
believed to be true.” Statements are adopted when a party “affirmatively
agrees . . . or expounds on the statements by adding [their] own
‘explanations and comments.’” State v. Anderson,
210 Ariz. 327, 339, ¶ 36
(2005) (citation omitted).

¶35 At the start of the police investigation, an officer interviewed
Charles Theisen and included several of Theisen’s statements in a report;
each statement began with some variation of “Chuck stated,” “Chuck
advised,” or “Chuck explained.” The officer also copied and pasted an
email from Theisen into the report, marking it in quotation marks. The
report contained no commentary or explanation from the officer on
Theisen’s statements. See
id.
Therefore, nothing in the report suggests the
officer manifested or believed Theisen’s statements to be true; as such, they
are not admissible as an adopted statement. See Ariz. R. Evid. 801(d)(2)(B).

¶36 Nash argues that by merely including the statements in his
report, the officer manifested his belief that they were true, contending “[i]f
he believed the statement was false, he would not have investigated it.”
This argument is based on a false premise. Officers initiate investigations
to determine whether allegations are true, not because they know
allegations are true. Theisen’s statements are inadmissible under Rule
801(d)(2)(B).

2 Nash claims that he moved to admit Theisen’s statements as a Rule
801(d)(2)(B) adopted statement during trial, pointing to three occasions
when defense counsel said the statements were adopted into the police
report. But that claim is not supported by the record. On two of the
occasions, defense counsel was merely explaining which parts of the
statements he wanted to admit. In the third instance, he stated that the
statements were adopted to argue that they were trustworthy under Rule
807, not that they were admissible under Rule 801(d)(2)(B). We therefore
review this argument for fundamental, prejudicial error only. See Escalante,
245 Ariz. at 140, ¶ 12.

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D. Rule 804(b)(3) Statement Against Interest

¶37 Nash argues Theisen’s statements are admissible under the
Rule 804(b)(3) statement against interest hearsay exception. Under that
provision, an exception to the rule against hearsay applies if: (1) the
declarant is unavailable, and (2) when the statement was made, “it was so
contrary to the declarant’s proprietary or pecuniary interest” that “a
reasonable person in the declarant’s position would have only made [it] if
[they] believed it to be true.” Ariz. R. Evid. 804(b)(3).

¶38 According to Nash, the following statements in the police
report were contrary to Theisen’s proprietary or pecuniary interests: “Nash
always paid to get titles of cars he was entrusted with within 90 days of
selling the cars [and . . .] Nash’s time period was 90 days.” Nash argues
that Theisen reporting a 90-day policy for payment instead of a 30-day
policy was against Theisen’s interests because it helped Nash’s case, and
Theisen could not recover restitution unless Nash was convicted.

¶39 Assuming, without deciding, that reporting the 90-day policy
was contrary to Theisen’s interests, it is unclear how Theisen would have
known this when making the statements. The MBS employees’ testimony
strongly indicates that Theisen was unaware of the unwritten 30-day policy,
that he was not involved in day-to-day operations, and that neither
employee had mentioned the 30-day policy to him. Thus, Theisen likely
did not choose to report the 90-day policy instead of a 30-day policy. The
more plausible explanation is that he reported the 90-day policy, believing
it would further his interests, as such a policy would impose a deadline on
Nash to pay for the cars. Theisen’s statements were not admissible under
Rule 804(b)(3).

E. Compulsory Process

¶40 Nash asserts that the “combination of rulings, quashing the
subpoena and preventing [] Nash from presenting [Theisen’s] statement to
the jury, violated his right to compulsory process.” “In all criminal
prosecutions, the accused shall . . . have compulsory process for obtaining
witnesses in his favor.” U.S. Const. amend. VI. A criminal defendant’s
right of compulsory process is incorporated against the states through the
Fourteenth Amendment. See Washington v. Texas,
388 U.S. 14
, 19–20 (1967).
However, the government need not produce witnesses for the defense;
accordingly, “there is no violation of the right to compulsory process when
the unavailability of the witness has not resulted from the suggestion,

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STATE v. NASH
Decision of the Court

procurement, or negligence of the government.” State v. Stewart,
131 Ariz.
407
, 409–410 (App. 1982).

¶41 Nash first argues that quashing Theisen’s subpoena violated
his right to compulsory process. He asserts that Theisen’s unavailability
resulted from the government’s conduct because the court granted the
motion to quash, and “the State filed information about [Theisen’s] medical
condition with the court.” Theisen’s unavailability, however, was caused
by his medical condition, not by the State. Theisen’s attorney moved to
quash the subpoena and argued it in court, not the State. Nash has not
shown that Theisen’s unavailability “resulted from the suggestion,
procurement, or negligence of the government.” See
id.
¶42 Nash argues his compulsory rights were violated by the court
not allowing Theisen to testify virtually, asserting that Theisen’s medical
information did not “address whether alternate accommodations, such as
testifying by video or with frequent breaks, might address his health
concerns.” Although Nash suggested virtual testimony to the court on the
second day of trial, when the motion to quash was argued the next day,
Nash did not request virtual testimony or ask Theisen’s attorney if it would
be feasible. Because the court never denied any request for Theisen to
testify virtually, there was no state action necessary for a compulsory
process violation. State v. Ferguson,
149 Ariz. 200, 204
(1986) (“[T]he
government is under no obligation to . . . produce, witnesses for the
defense.”).

F. The Right to Present a Complete Defense

¶43 Nash contends that excluding Theisen’s statements in the
police report violated his constitutional right to present a complete defense.
Because Nash did not raise this objection in the trial court, we review only
for fundamental error resulting in prejudice.3 See Escalante,
245 Ariz. 140
, ¶
12. “Under the Due Process Clause of the Fourteenth Amendment, criminal

3 Nash claims that he raised due process concerns in his argument to
the trial court. However, the only time defense counsel mentioned “due
process” was in the middle of arguing for a mistrial and a continuance
based on juror misconduct. In the same sentence, he alleged a
Confrontation Clause violation. It is unclear whether his due process
objection pertains to juror bias, Theisen’s statements, or a Confrontation
Clause issue. Because “the court had no opportunity to correct [the] error,”
Nash failed to preserve the due process issue. See State v. Lopez,
217 Ariz.
433, 435, ¶ 6
(App. 2008).

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STATE v. NASH
Decision of the Court

prosecutions must comport with prevailing notions of fundamental
fairness,” which requires “that criminal defendants be afforded a
meaningful opportunity to present a complete defense,” subject to their
compliance with constitutional procedural rules. See California v. Trombetta,
467 U.S. 479, 485
(1984); Nevada v. Jackson,
569 U.S. 505, 509
(2013) (citing
cases).

¶44 Nash cites Chambers v. Mississippi,
410 U.S. 284, 302
(1973) for
the proposition that applying the evidentiary rules must comport with the
“fundamental standards of due process.” He claims he could not present a
complete defense “because the court mechanistically applied the hearsay
rules.” See
id.
(“[T]he hearsay rule may not be applied mechanistically to
defeat the ends of justice.”). Yet Nash does not explain how the court
mechanically applied the rules or how that application violated his right to
present a complete defense. U.S. v. Adams,
271 F.3d 1236, 1243
(10th Cir.
2001) (noting that the defendant “confuses a fundamental right, the right to
present a theory of defense, with one that is not fundamental, the right to
present that theory in whatever manner and with whatever evidence he
chooses”). Thus, Nash has not shown that the exclusion of Theisen’s
statements violated his right to present a complete defense. See, e.g., State
v. Carlson,
237 Ariz. 381, 393, ¶ 37
(2015) (concluding that the exclusion of
evidence “did not violate [defendant’s] right to present a defense or to a fair
trial” because he “does not explain how the trial court applied the rules of
evidence in a ‘mechanistic’ way”).

¶45 Because Nash has not shown that the court abused its
discretion in refusing to admit Theisen’s statements, he has not established
that error occurred, much less fundamental error resulting in prejudice.

III. Admission of Nash’s Purchases

¶46 Nash argues the testimony about his Hawaii trip, wedding
ring upgrade, and house purchase was not relevant because there was no
connection between those purchases and the funds Kofa received from
CBB. “Irrelevant evidence is not admissible.” Ariz. R. Evid. 402. “Evidence
is relevant if: (a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” Ariz. R. Evid. 401. “We review the trial court’s
determination of relevance for an abuse of discretion.” State ex rel. Thomas
v. Duncan,
216 Ariz. 260, 264, ¶ 13
(App. 2007).

¶47 To convict Nash of fraudulent schemes and artifices, the State
had to prove beyond a reasonable doubt that “(1) pursuant to a scheme or

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STATE v. NASH
Decision of the Court

artifice to defraud, (2) [Nash] knowingly obtained any benefit, (3) by means
of false or fraudulent pretenses, representations, promises, or material
omissions.” State v. Griffin,
250 Ariz. 651
, 656, ¶ 17 (App. 2021); A.R.S.
§ 13-2310(A). Also, as the jury was instructed, the State was required to
“prove that the scheme or artifice to defraud was intended to defraud,
meaning it was intended to mislead another person for the purpose of
gaining some benefit.” See State v. Bridgeforth,
156 Ariz. 60, 64
(1988).

¶48 At trial, Nash asserted that he did not intend to defraud and
merely mismanaged his business. On appeal, the State argues, as it did at
trial, that the purchases were relevant because they allowed the jury to infer
“that Nash did not merely mismanage his business but instead used the
money to buy a house, ring, and trip.”

¶49 Proving intent to defraud required the State to show Nash
had no intent to deliver titles in one to two days as he had promised. See
id.
(“There is nothing illegal about a business failing and customers losing
deposits,” but fraud occurs “if a business receives money based on
promised performance which was never intended to be carried out.”).
Further, intent to defraud may be proved by showing the defendant used
money obtained in the scheme for personal purposes. See State v. West,
173
Ariz. 602, 610
(App. 1992) (concluding there was sufficient evidence to
support intent to defraud in part because defendant “spent the money
received in advance on personal expenditures and gambling activities”).
Nash argues that, unlike what occurred in West, the State did not show he
used CBB’s money for the Hawaii trip, the wedding ring, or the house.
However, no such showing is required by § 13-2310. See Griffin, 250 Ariz.
at 655–56, ¶ 13 (noting that the application of § 13-2310 is not limited to
“specific circumstances” and “must be broad enough to cover all of the
varieties [of fraud] made possible by boundless human ingenuity”)
(quoting State v. Haas,
138 Ariz. 413, 424
(1983)).

¶50 The jury could infer that Nash used the 17 checks from CBB
to pay for his Hawaii trip, the wedding ring, and the house purchase, and
in turn, it could infer that he intended to defraud CBB by using at least a
portion of the money for personal purchases instead of obtaining the titles
as promised. See Griffin, 250 Ariz. at 656, ¶ 14 (“[I]ntent to defraud, like any
state of mind, may be inferred from other evidence.”). So, evidence of the
purchases was relevant because it had a tendency to make it more probable

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STATE v. NASH
Decision of the Court

that Nash used CBB’s checks for personal reasons, which is consequential
in proving that Nash intended to defraud CBB. See Ariz. R. Evid. 401.4

¶51 Alternatively, Nash argues that any probative value of the
purchases was “greatly outweighed by the risk of prejudice, confusing the
issues, or misleading the jury” and thus the court erred by not excluding
them under Rule 403. See Ariz. R. Evid. 403 (“The court may exclude
relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.”). Nash also contends that the evidence
of the purchases “created confusion for the jurors because it was offered to
prove [] Nash’s mental state . . . to show he enriched himself with CBB
funds, which would show that pursuant to a fraudulent scheme, he
knowingly obtained a benefit.” However, as explained, evidence of a
defendant using fraudulently obtained money for personal expenditures is
a proper basis for a jury to find intent to defraud. We therefore conclude
that the superior court did not abuse its discretion in finding that the
probative value of this evidence was not substantially outweighed by the
danger of unfair prejudice. See Ariz. R. Evid. 403; State v. Mott,
187 Ariz.
536, 545
(1997) (“Unfair prejudice results if the evidence has an undue
tendency to suggest decision on an improper basis . . . .”).

IV. Motion for New Trial

¶52 Finally, Nash argues the trial court erred by denying his
motion for a new trial, which asserted the verdict was contrary to the
weight of the evidence.5 We review the denial of a motion for new trial for
an abuse of discretion. State v. Hoskins,
199 Ariz. 127, 142, ¶ 52
(2000). The
trial court may grant a new trial if “the verdict is contrary to law or the
weight of the evidence.” Ariz. R. Crim. P. 24.1(c)(1). On appeal, we do not

4 Nash asserts “there was information in the record showing that [he]
did not use CBB funds for the house or ring.” He cites an excerpt from a
deposition in his bankruptcy proceeding, where he states that he used his
wife’s money for the ring upgrade and that a friend loaned him money for
the house. Evidence is not irrelevant or prejudicial merely because it is
disputed. Nash was free to introduce evidence at trial that the funding
came from separate sources. He has not shown error.

5 Nash also argues the court erred in denying his motion for new trial
based on three other grounds argued in the motion. Because we addressed
(and rejected) those grounds in Sections I–III, we do not revisit them.

17
STATE v. NASH
Decision of the Court

reweigh the evidence. State v. Fischer,
242 Ariz. 44, 52, ¶ 28
(2017). Instead,
we decide “whether, resolving every conflict in the evidence in support of
the order, substantial evidence supports the trial judge’s order.”
Id.
¶53 To support Nash’s conviction, the State was required to prove
that: “(1) pursuant to a scheme or artifice to defraud, (2) [he] knowingly
obtained any benefit, (3) by means of false or fraudulent pretenses,
representations, promises, or material omissions.” See Griffin, 250 Ariz. at
656, ¶ 17 (citing A.R.S. § 13-2310(A)). The trial court found that the State
met its burden of proof because it “demonstrated that [Nash] omitted
material information from CBB to continue to obtain checks from CBB, i.e.,
that [MBS] had placed restrictions on which titles [Nash] could obtain” and
Nash’s “benefit was that he received checks from CBB for his company.”

¶54 Contrary to Nash’s assertion, there was substantial evidence
of his scheme to obtain payment for MBS’s cars from CBB before paying
MBS for them. We also reject his argument that the State failed to prove he
personally benefitted from the scheme because “there was no forensic
accounting.” The evidence showed that payments for 17 cars were
deposited in Kofa’s bank account for a total of $569,300, and Nash never
paid CBB or MBS for those cars. It was the jury’s role to decide whether to
believe that evidence.

¶55 Nor do we find persuasive Nash’s contention that “there was
no evidence of a misrepresentation or material omission” because he
received funds from CBB “through his established course of dealing with
them.” He argues this case is analogous to State v. Johnson,
179 Ariz. 375,
376
(1994), where the defendant was hired as a truck driver and used
company-issued gas cards for personal gas purchases. Our supreme court
vacated the conviction, concluding that the defendant had not made any
false pretenses or misrepresentations, instead he breached the implied trust
of his employer, which was not sufficient for fraudulent schemes and
artifices.
Id.
at 379–81. Here, there was evidence that Nash made false
representations to Nall that he would deliver titles within a day or two of
picking up checks.

¶56 Finally, the evidence showed that Nash was aware of MBS’s
policy requiring him to pay for outstanding titles before obtaining newer
titles and did not inform CBB of that policy. Therefore, the jury could
reasonably conclude that Nash obtained the checks from CBB, knowing he
could not deliver those titles within a couple of days as promised. Because
the verdict was supported by substantial evidence, we conclude the court
did not abuse its discretion in denying Nash’s motion for new trial.

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STATE v. NASH
Decision of the Court

CONCLUSION

¶57 We affirm Nash’s conviction and sentence.

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

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