author: VÁSQUEZ, Presiding Judge:

text:
    The STATE of Arizona, Appellee, v. Alejandro Ray DUARTE, Appellant.
    No. 2 CA-CR 2017-0349
    Court of Appeals of Arizona, Division 2.
    Filed November 29, 2018
    Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, By Amy M. Thorson, Assistant Attorney General, Tucson, Counsel for Appellee
    Joel Feinman, Pima County Public Defender, By Erin K. Sutherland, Assistant Public Defender, Tucson, Counsel for Appellant
    Presiding Judge Vásquez authored the opinion of the Court, in which Judge Espinosa and Judge Eppich concurred.
   VÁSQUEZ, Presiding Judge:

¶1 After a jury trial, Alejandro Duarte was convicted of burglary, aggravated assault, and three counts of disorderly conduct. The trial court imposed concurrent prison terms, the longest of which was 3.25 years. On appeal, Duarte challenges the sufficiency of the evidence to support his burglary and aggravated assault convictions, arguing that under A.R.S. § 13-1204(A)(4) a "sleeping victim's capacity to resist is not substantially impaired." He also contends the court erred in precluding a victim's prior conviction for impeachment purposes. For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to affirming Duarte's convictions. See State v. Brown , 233 Ariz. 153, ¶ 2, 310 P.3d 29 (App. 2013). Duarte and J.C. had been in an on-again, off-again relationship for several years and had three children, M.D., A.D.J., and A.D. One afternoon in May 2016, Duarte called J.C. several times, threatening to go to J.C.'s house to "[b]reak [her] stuff" and "hurt [her]." J.C. told him not to come over.

¶3 That evening, J.C., her friend V.M., A.D.J., and A.D. went to the mall and got dinner. After returning home, J.C. and A.D.J. went to sleep in J.C.'s bed, A.D. slept in her room, and V.M. fell asleep on the couch in the living room. Later that night, Duarte entered J.C.'s house through the unlocked back door. He went into J.C.'s room and began hitting her. Duarte demanded to "look through [her] phone," grabbed it, and refused J.C.'s requests to return it. He then went outside and threw it on the sidewalk, shattering it.

¶4 A grand jury indicted Duarte for one count of second-degree burglary, aggravated assault on an incapacitated victim (J.C.), and three counts of disorderly conduct (V.M., A.D.J., and A.D.). He was convicted as charged and sentenced as described above. We have jurisdiction over Duarte's appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Sufficiency of the Evidence

¶5 Duarte argues his burglary and aggravated assault convictions "must be reversed because there was insufficient evidence that [J.C.] was incapacitated within the meaning of the statute defining aggravated assault." We review de novo the sufficiency of the evidence and issues of statutory interpretation. State v. Bon , 236 Ariz. 249, ¶ 5, 338 P.3d 989 (App. 2014) ; State v. Latham , 223 Ariz. 70, ¶ 9, 219 P.3d 280 (App. 2009).

¶6 Pursuant to § 13-1204(A)(4), "[a] person commits aggravated assault if the person commits assault as prescribed by [A.R.S.] § 13-1203... while the victim is bound or otherwise physically restrained or while the victim's capacity to resist is substantially impaired." Here, the state agreed J.C. was not bound or physically restrained; thus, the only issue was whether her capacity to resist was substantially impaired. Pursuant to A.R.S. § 13-1507(A), "[a] person commits burglary in the second degree by entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein." Here, the state argued the felony Duarte intended to commit was aggravated assault under § 13-1204(A)(4).

¶7 As he did below, Duarte challenges the meaning of § 13-1204(A)(4), arguing that "[s]leep does not constitute substantial impairment of a victim's capacity to resist because it is a temporary and fleeting state." He reasons that "a sleeping victim's capacity to resist is not substantially impaired" because such a victim "has the ability to immediately awake[n] and defend [him or herself] as soon as the attack begins." This issue requires us to interpret the language of § 13-1204(A)(4).

¶8 When interpreting statutes, our duty "is 'to give effect to the legislature's intent.' " State v. Miller , 226 Ariz. 190, ¶ 12, 245 P.3d 454 (App. 2011) (quoting State v. Hinden , 224 Ariz. 508, ¶ 9, 233 P.3d 621 (App. 2010) ). In doing so, we first consider the language of the statute, State v. Derello , 199 Ariz. 435, ¶ 21, 18 P.3d 1234 (App. 2001), giving "every word and phrase its 'usual and commonly understood meaning unless the legislature clearly intended a different meaning,' " State v. Randles , 235 Ariz. 547, ¶ 8, 334 P.3d 730 (App. 2014) (quoting Bilke v. State , 206 Ariz. 462, ¶ 11, 80 P.3d 269 (2003) ); see also State v. Pena , 235 Ariz. 277, ¶ 6, 331 P.3d 412 (2014) (we may look to dictionaries for common meanings). "When the statute's language is plain and unambiguous, we must follow the text as written." Derello , 199 Ariz. 435, ¶ 21, 18 P.3d 1234.

¶9 The language at issue here is "while the victim's capacity to resist is substantially impaired." § 13-1204(A)(4). This court has previously interpreted that language, applying the common meanings of the words. See In re Maricopa Cty. Juv. Action No. JV123196 , 172 Ariz. 74, 77-78, 834 P.2d 160, 163-64 (App. 1992). Using a dictionary to guide our analysis, we concluded the language also means while the victim's ability to refuse to submit is considerably weakened. See id. at 77, 834 P.2d at 163 (citing Webster's New World Dictionary 209, 703, 1210, 1420 (2d coll. ed. 1982) ).

¶10 In Maricopa County Juvenile Action No. JV123196 , we concluded that § 13-1204(A)(4) did not apply when a juvenile twice sprayed the victim in the face with an unknown substance, "causing tears to form and a burning sensation around the [victim's] eye." 172 Ariz. at 75, 78-79, 834 P.2d at 161, 164-65. The victim was able to flee on his bicycle after the second spray. Id. at 75, 834 P.2d at 161. Notwithstanding that the victim was able to escape, we determined the trial court did not abuse its discretion "in finding that the victim's capacity to resist was substantially impaired" because "after he was sprayed the second time, the victim's vision was blurred to the point where it was difficult for him to ride his bicycle." Id. at 78, 834 P.2d at 164. We explained, "The fact that he did escape may bear on the degree of impairment, but it is not determinative." Id. However, we concluded that "even if the second spray did substantially impair him, the assault was essentially over at that point" because the short distance the juvenile chased the victim after the second spray was "too closely tied to the original assault, and too fleeting." Id. Accordingly, we modified the juvenile's adjudication of delinquency to simple assault rather than aggravated assault. Id. at 78-79, 834 P.2d at 164-65.

¶11 State v. Barnett , 173 Ariz. 282, 842 P.2d 1295 (App. 1991), is the only other published decision addressing the meaning of § 13-1204(A)(4). In that case, the victim testified he had been hit in his eye, dropped to his knees, and felt someone on top of him followed by "a series of electrical shocks on his chest underneath his heart." Barnett , 173 Ariz. at 283, 842 P.2d at 1296. A majority of this court affirmed the defendant's aggravated assault conviction based upon an assault occurring "while the victim [was] physically restrained." Id. at 285, 842 P.2d at 1298. However, the dissenting judge believed the defendant's conviction should have been reduced to simple assault because "the statute requires something more substantial than the momentary restraint that occurred in this case." Id. at 287, 842 P.2d at 1300. As relevant here, the dissenting judge also addressed "whether the victim's capacity to resist was substantially impaired." Id. at 286, 842 P.2d at 1299. "[T]he victim's capacity to resist was impaired" but not "substantially impaired" because "[t]here was no testimony that the victim was ever rendered groggy and disoriented" and the victim testified that he had "continue[d] to fight." Id.

¶12 Here, J.C. purportedly was incapacitated not by a chemical spray to the face or a stun gun, but by sleeping. Sleep is defined as "[a] natural periodic state of rest for the mind and body, in which the eyes are usually close[d] and consciousness is completely or partially lost, so that there is a decrease in bodily movement and responsiveness to external stimuli." The American Heritage Dictionary 1646 (5th ed. 2011). Based on this common definition, we conclude that sleeping plainly renders a "victim's capacity to resist ... substantially impaired." § 13-1204(A)(4). Put another way, being unconscious considerably reduces an individual's ability to refuse to submit. See Maricopa Cty. Juv. Action No. JV123196 , 172 Ariz. at 77, 834 P.2d at 163.

¶13 We recognize that sleeping may be "temporary and fleeting," as Duarte points out. See The American Heritage Dictionary 1646 (5th ed. 2011). However, the plain language of § 13-1204(A)(4) does not require an ongoing substantial impairment of the victim's capacity to resist during an entire prolonged assault. And we will not read such a requirement into the statute. See State v. Womack , 174 Ariz. 108, 111, 847 P.2d 609, 612 (App. 1992) ("[C]ourts will not read into a statute something that is not within the manifest intent of the Legislature as gathered from the statute itself." (alteration in Womack ) (quoting Collins v. Stockwell , 137 Ariz. 416, 420, 671 P.2d 394, 398 (1983) ) ). Notably, a defendant could cause considerable harm in a short amount of time while the victim is sleeping, before he or she wakes up. Accordingly, the relevant language of § 13-1204(A)(4) is clear and unambiguous, and sleep renders a "victim's capacity to resist ... substantially impaired." See Bon , 236 Ariz. 249, ¶ 5, 338 P.3d 989 ; Latham , 223 Ariz. 70, ¶ 9, 219 P.3d 280.

¶14 Duarte nevertheless contends § 13-1204(A)(4) has three subparts and the third "general capacity to resist" subpart can be characterized as a " 'catch-all' provision." He reasons that the third subpart "must be construed in the same light as the other two subparts" and, thus, "the incapacitation must rise to the same level, meaning that whatever circumstance exists, in order to be substantial, it must leave the victim in a position to where the victim has virtually no ability to fight back." However, because the language of § 13-1204(A)(4) is plain and unambiguous, we need not resort to considering the statutory scheme as a whole. See Derello , 199 Ariz. 435, ¶ 21, 18 P.3d 1234 ; see also State ex rel. Montgomery v. Harris , 237 Ariz. 98, ¶ 13, 346 P.3d 984 (2014) ; State v. Ross , 214 Ariz. 280, ¶ 22, 151 P.3d 1261 (App. 2007). In any event, we fail to see how a victim has any ability to fight back while sleeping-he or she is unconscious and, thus, defenseless. Cf. Barnett , 173 Ariz. at 286, 842 P.2d at 1299 (victim perceived assault and continued to fight after being attacked).

¶15 Turning to the facts of this case, we must determine whether the state presented sufficient evidence that Duarte committed an assault on J.C. while her capacity to resist was substantially impaired. See §§ 13-1203(A), 13-1204(A)(4). In doing so, we view the evidence in the light most favorable to sustaining the jury's verdict and resolve all inferences against Duarte. See State v. Felix , 237 Ariz. 280, ¶ 30, 349 P.3d 1117 (App. 2015).

¶16 We will uphold a conviction if it is supported by substantial evidence. State v. Saez , 173 Ariz. 624, 627, 845 P.2d 1119, 1122 (App. 1992). "Substantial evidence is such proof that 'reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.' " State v. Sharma , 216 Ariz. 292, ¶ 7, 165 P.3d 693 (App. 2007) (quoting State v. Mathers , 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) ). "If reasonable [persons] may fairly differ as to whether certain evidence establishes a fact in issue, then such evidence must be considered as substantial." State v. Davolt , 207 Ariz. 191, ¶ 87, 84 P.3d 456 (2004) (alteration in Rodriguez ) (quoting State v. Rodriguez , 186 Ariz. 240, 245, 921 P.2d 643, 648 (1996) ). Substantial evidence may be direct or circumstantial. State v. Pena , 209 Ariz. 503, ¶ 7, 104 P.3d 873 (App. 2005).

¶17 Here, J.C. testified that she had been sleeping when Duarte began "hitting [her]" and she woke up. She also stated that because she had been sleeping she did not hear him coming and she "[c]ould [not] fight back." To the extent others testified inconsistently about when J.C. woke up-before or after Duarte first hit her-that was a factual issue for the jury to resolve. See State v. Manzanedo , 210 Ariz. 292, ¶ 3, 110 P.3d 1026 (App. 2005) (jury resolves conflicts in evidence). The state therefore presented substantial evidence from which reasonable jurors could have found Duarte guilty of aggravated assault beyond a reasonable doubt. See Sharma , 216 Ariz. 292, ¶ 7, 165 P.3d 693.

¶18 Duarte additionally challenges the sufficiency of the evidence to support his burglary conviction because "[t]he only theory of burglary presented to the jury was entering into the home to commit an assault upon an incapacitated victim." He therefore reasons, "Because there was insufficient evidence of intent to commit an assault upon an incapacitated victim because sleep does not meet the statutory definition for incapacitation, there was likewise insufficient evidence to support the conviction for burglary." But we have already rejected Duarte's argument that sleeping does not satisfy § 13-1204(A)(4).

¶19 Assuming without deciding that a conviction under § 13-1204(A)(4) requires the assault to be committed with knowledge that the victim is incapacitated, we further disagree with Duarte that the state did not present sufficient evidence that he "was aware [J.C.] was asleep and intended to assault her while she was asleep." See § 13-1507(A). Duarte had threatened to hurt J.C. earlier in the day. At approximately 10 p.m., Duarte entered the unlocked back door to J.C.'s house without knocking or otherwise announcing himself, walked past V.M. who had been sleeping on the couch, and found J.C. lying in her bed. He then hit J.C. multiple times. This evidence establishes that Duarte intended to assault J.C. while she was sleeping. See State v. Bearup , 221 Ariz. 163, ¶ 16, 211 P.3d 684 (2009) (defendant's conduct and comments circumstantial evidence of intent); see also State v. Wilson , 120 Ariz. 72, 74, 584 P.2d 53, 55 (App. 1978) ("Obviously there are times when intent may be inferred from conduct where it is plainly indicated as a matter of logical probability."). The state presented substantial evidence from which reasonable jurors could have found Duarte guilty of burglary beyond a reasonable doubt. See Sharma , 216 Ariz. 292, ¶ 7, 165 P.3d 693.

Impeachment Evidence

¶20 Duarte argues the trial court erred in precluding evidence of J.C.'s thirteen-year-old criminal conviction for attempted hindering prosecution. He contends the prior conviction was admissible for impeachment purposes under Rules 608 and 609, Ariz. R. Evid. We review the preclusion of evidence for a clear abuse of discretion. State v. Davis , 205 Ariz. 174, ¶ 23, 68 P.3d 127 (App. 2002).

¶21 In 2004, J.C. pled guilty to attempted first-degree hindering prosecution. Four days before trial in this case, Duarte filed a notice of his intent to use J.C.'s prior conviction for impeachment under Rule 609. He attached a copy of J.C.'s signed plea agreement and sentencing minute entry. The day before trial, Duarte also filed a motion in limine to cross-examine J.C. about "her prior involvement in hindering a prosecution," citing Rule 608(b) and arguing that her conviction was probative of her truthfulness.

¶22 The trial court heard argument on the issue just before J.C. testified at trial. The state asserted that J.C.'s "very old conviction" did not "bear on [her] propensity for testimonial untruthfulness" because the elements of hindering prosecution do not require an untruthful act. It therefore reasoned that the prior conviction was not appropriate impeachment evidence. In reply, Duarte stated that a defense investigator had obtained police reports from the incident and that J.C.'s prior conviction "was because of her false statements to law enforcement specifically." He therefore maintained the conviction was "very probative" because J.C.'s testimony "drives this entire case."

¶23 The trial court precluded evidence of J.C.'s prior conviction. With regard to Rule 609, the court noted, "[T]here are an untold number of ways that a person can attempt to hinder prosecution, which goes from lying to police all the way to not informing police, and not informing police is not lying to police." Thus, based on "[what was] presented to it through the plea agreement," the court concluded that J.C. was not necessarily convicted of "a crime of dishonesty." The court further explained the conviction was more than ten years old, Duarte did not give the state reasonable written notice that he intended to use the conviction, and "there [were] no specific facts or circumstances from which [it] could find that the probative value substantially outweigh[ed the] prejudicial effect." Similarly, with regard to Rule 608, the court reasoned that it did not "have anything in front of [it] from which [it] could actually conclude that this" prior conviction "goes to truthfulness or untruthfulness of the witness."

Rule 609

¶24 On appeal, Duarte contends J.C.'s prior conviction was admissible under Rule 609(a)(2) because it involved "an element of untruthfulness." Alternatively, he argues the conviction was admissible under Rule 609(a)(2) because "the factual basis clearly established that the offense involved lying to police officers while they were conducting an investigation."

¶25 When attacking a witness's character for truthfulness, evidence of a prior criminal conviction "must be admitted if the court can readily determine that establishing the elements of the crime required proving-or the witness's admitting-a dishonest act or false statement." Ariz. R. Evid. 609(a)(2). "[W]hether a prior conviction is admissible for impeachment purposes under Rule 609(a)(2) depends on the statutory language of the underlying offense and whether the conviction required proof of a dishonest act or false statement." State v. Winegardner , 243 Ariz. 482, ¶ 13, 413 P.3d 683 (2018). "[T]he phrase 'dishonest act or false statement' should be construed narrowly to include only those crimes that involve deceit, untruthfulness, or falsification." Id. ¶ 12.

¶26 Winegardner is instructive. There, the issue was whether a shoplifting conviction pursuant to A.R.S. § 13-1805(A) is automatically admissible as involving "a dishonest act or false statement." Winegardner , 243 Ariz. 482, ¶ 1, 413 P.3d 683 (quoting Ariz. R. Evid. 609(a)(2) ). Turning to the language of § 13-1805(A), our supreme court noted that "multiple subsections of the statute include elements of dishonesty and false statement"

while "others do not." Id. ¶¶ 14 -15. Because the statute "indicates that a conviction may or may not involve elements of dishonesty or false statement," the court concluded that a shoplifting conviction is not per se admissible under Rule 609(a)(2). Id. ¶ 17. Yet, the court added that a shoplifting conviction might be admissible where "the record provided to the [trial] court" shows that the particular conviction involved "a dishonest act or false statement." Id. ¶ 18. Because Winegardner provided the trial court with "no information showing that [the victim's shoplifting conviction] involved a dishonest act or false statement," that court "did not abuse its discretion when it precluded evidence regarding the conviction." Id. ¶ 25.

¶27 Turning to J.C.'s conviction for first-degree hindering prosecution, a person commits that offense "if, with the intent to hinder the apprehension, prosecution, conviction or punishment of another for any felony, the person renders assistance to the other person." A.R.S. § 13-2512(A). And a person "renders assistance" to another by knowingly:

1. Harboring or concealing the other person; or
2. Warning the other person of impending discovery, apprehension, prosecution or conviction. This does not apply to a warning given in connection with an effort to bring another into compliance with the law; or
3. Providing the other person with money, transportation, a weapon, a disguise or other similar means of avoiding discovery, apprehension, prosecution or conviction; or
4. Preventing or obstructing by means of force, deception or intimidation anyone from performing an act that might aid in the discovery, apprehension, prosecution or conviction of the other person; or
5. Suppressing by an act of concealment, alteration or destruction any physical evidence that might aid in the discovery, apprehension, prosecution or conviction of the other person; or
6. Concealing the identity of the other person.

A.R.S. § 13-2510.

¶28 Like shoplifting, the offense of hindering prosecution can occur in multiple ways, not all of which necessarily involve "a dishonest act or false statement." Ariz. R. Evid. 609(a)(2). For example, as the state points out, warning another of impending discovery under § 13-2510(2) involves "a true statement, just one in contravention of law enforcement." And providing another with money under § 13-2510(3) does not involve "deceit, untruthfulness, or falsification." Winegardner , 243 Ariz. 482, ¶ 12, 413 P.3d 683. Therefore, J.C.'s conviction was not per se admissible under Rule 609(a)(2).

¶29 In addition, Duarte did not provide the trial court with any documentation showing that J.C.'s conviction in particular was one involving "a dishonest act or false statement." Ariz. R. Evid. 609(a)(2). Although Duarte referred to police reports, he only provided the court with copies of J.C.'s plea agreement and sentencing minute entry, which simply mentioned §§ 13-2510 and 13-2512 generally without identifying the relevant subsection upon which J.C.'s conviction was based. On appeal, Duarte suggests, "[T]he court had access to the file where it could have looked at the presentence report which corroborated counsel's statement" that J.C.'s conviction "involved lying to police officers." But Duarte had the burden of proof on this issue. See Winegardner , 243 Ariz. 482, ¶ 20, 413 P.3d 683 ; see also Burden of Proof , Black's Law Dictionary (10th ed. 2014) ("A party's duty to prove a disputed assertion or charge...."). It was not incumbent on the court to research the issue for itself. Thus, the court did not abuse its discretion in precluding evidence of J.C.'s conviction under Rule 609(a)(2). See Davis , 205 Ariz. 174, ¶ 23, 68 P.3d 127.

¶30 Moreover, Rule 609(b) provides, "if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later," evidence of a prior conviction is admissible only if "its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect" and "the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use." These additional requirements are "consistent with the notion that a criminal conviction's probative value regarding a witness' credibility declines as it becomes more remote in time." State v. Todd , 244 Ariz. 374, ¶ 6, 418 P.3d 1147 (App. 2018) (quoting Joseph M. Livermore et al., Arizona Practice: Law of Evidence § 609:2 (4th ed. 2008) ).

¶31 Here, J.C.'s prior conviction was more than ten years old. The trial court found the additional two requirements of Rule 609(b) also weighed against admission. Specifically, the court concluded that four days before trial was not reasonable notice of Duarte's intent to use J.C.'s prior conviction, and we cannot say that determination was erroneous. Cf. Ariz. R. Crim. P. 16.1(b) ("Parties must make all motions no later than 20 days before trial...."). We likewise cannot say the court erred in finding that the probative value of J.C.'s prior conviction did not outweigh its prejudicial effect. See Todd , 244 Ariz. 374, ¶ 6, 418 P.3d 1147 ; see also State v. Connor , 215 Ariz. 553, ¶ 39, 161 P.3d 596 (App. 2007) ("Because '[t]he trial court is in the best position to balance the probative value of challenged evidence against its potential for unfair prejudice,' the trial court has broad discretion in this decision." (alteration in Connor ) (quoting State v. Harrison , 195 Ariz. 28, ¶ 21, 985 P.2d 513 (App. 1998) )). This analysis further supports our conclusion that the court did not abuse its discretion in precluding J.C.'s conviction.

Rule 608

¶32 Duarte also asserts that J.C.'s prior conviction "was admissible under Rule 608 because it was a specific instance of misconduct involving untruthfulness to law enforcement officers conducting an investigation." He insists that "[l]ying to the police while they are conducting an investigation is unquestionably an act that speaks to a person's veracity as a witness."

¶33 On cross-examination, the trial court may allow "specific instances of a witness's conduct," including criminal convictions, "to be inquired into if they are probative of the character for truthfulness or untruthfulness." Ariz. R. Evid. 608(b) ; see State v. Woods , 141 Ariz. 446, 450, 687 P.2d 1201, 1205 (1984). However, the court must exercise its discretion "to determine whether the probative value of the conduct is substantially outweighed by the danger of unfair prejudice, confusion, or waste of time." State v. Murray , 184 Ariz. 9, 30, 906 P.2d 542, 563 (1995) ; see Ariz. R. Evid. 403.

¶34 As discussed above, the record before the trial court did not establish that J.C.'s prior conviction for first-degree hindering prosecution was an instance of untruthfulness. Cf. Woods , 141 Ariz. at 449-50, 687 P.2d at 1204-05 (no abuse of discretion by trial court in ruling that charge of theft by fraud was not probative of truthfulness). Duarte nevertheless argues that "any purported prejudice would not outweigh the probative value of [J.C.'s prior conviction], particularly because this was a criminal case and the evidence was related to the accuser and her credibility as a witness." But the potential prejudice of a prior conviction is greater where the conviction is so remote that it no longer reasonably reflects the witness's credibility. See Todd , 244 Ariz. 374, ¶ 6, 418 P.3d 1147 ; see also State v. Harvill , 89 Ariz. 340, 342, 362 P.2d 663, 665 (1961). Accordingly, we cannot say the trial court abused its discretion in precluding evidence of the conviction under Rule 608(b). See Davis , 205 Ariz. 174, ¶ 23, 68 P.3d 127.

Disposition

¶35 For the foregoing reasons, we affirm Duarte's convictions and sentences.

      Under § 13-1203(A), a person commits assault by "[i]ntentionally, knowingly or recklessly causing any physical injury to another person," "[i]ntentionally placing another person in reasonable apprehension of imminent physical injury," or "[k]nowingly touching another person with the intent to injure, insult or provoke such person."

      The trial court granted Duarte's motion for a judgment of acquittal "as it relate[d] to theft as an underlying offense to commit the burglary."

      Section 13-1204(A)(4) was previously numbered § 13-1204(A)(8). See 2007 Ariz. Sess. Laws, ch. 47, § 1; 2005 Ariz. Sess. Laws, ch. 166, § 3; 2005 Ariz. Sess. Laws, ch. 124, § 3. The subsection has not substantively changed since it was added in 1977. See 1977 Ariz. Sess. Laws, ch. 142, § 61.

      At oral argument, Duarte suggested our conclusion would lead to absurd results because § 13-1204(A)(4) could then apply to a surprise attack where the victim failed to perceive the danger. We do not address this issue, however, because that is not the case before us.

      Duarte also suggests the preclusion of J.C.'s prior conviction violated his Confrontation Clause rights. However, Duarte only generally referred to his "right to cross-examine [J.C.]" under the United States and Arizona constitutions in his motion in limine below. Thus, Duarte arguably failed to preserve this issue for appeal. See State v. Lopez , 217 Ariz. 433, ¶ 4, 175 P.3d 682 (App. 2008) (objection on one ground does not preserve issue on another); see also State v. Escalante , 245 Ariz. 135, ¶ 12, 425 P.3d 1078 (2018) (argument not raised below reviewed for fundamental, prejudicial error). Regardless of what standard we apply, however, no error occurred. The right of confrontation "is not without boundary, and trial judges 'retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on ... cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." State v. Carreon , 210 Ariz. 54, ¶ 36, 107 P.3d 900 (2005) (quoting State v. Cañez , 202 Ariz. 133, ¶ 62, 42 P.3d 564 (2002) ). As discussed below, the preclusion of J.C.'s prior conviction was reasonable based on its remoteness and unclear bearing on J.C.'s credibility.

      Although the presentence report is part of our supplemental record on appeal, it was not before the trial court at the time of its ruling. Accordingly, we do not consider it. See State v. Herrera , 232 Ariz. 536, ¶ 24, 307 P.3d 103 (App. 2013) (appellate court's review limited to trial court's record).

      Although counsel discussed by email J.C.'s prior conviction the month before Duarte's trial, the record contains no indication by defense counsel that she intended to impeach J.C. with the conviction until the notice was filed.

      At trial, the state explained that if the trial court allowed evidence of J.C.'s prior conviction, that would "open the door" for the state to discuss the details of the conviction and how Duarte was involved.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Petitioner, v. April Rose TRAVIS, Respondent.
    Supreme Court Case No. 16SC584
    Supreme Court of Colorado.
    March 4, 2019
    Attorneys for Petitioner: Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado
    Attorneys for Respondent: Megan A. Ring, Public Defender, Kamela Maktabi, Deputy Public Defender, Denver, Colorado
    En Banc
   JUSTICE HART delivered the Opinion of the Court.

¶1 On the day her trial was set to begin, April Travis told the court that she was hoping she could have more time "to look for and pay for an attorney." The trial court denied the request to continue the case, noting that the trial had previously been continued and Travis was already being represented by a public defender. Travis appealed that decision, arguing that her request to look for a lawyer was an invocation of her Sixth Amendment right to be represented by counsel of her choice. A division of the court of appeals agreed, concluding that because Travis had invoked that right, the trial court was required to make a record that it had reviewed each of the factors elaborated in our decision in People v. Brown , 2014 CO 25, 322 P.3d 214.

¶2 The right to be represented by counsel of the defendant's choosing is not implicated by a bare request to "look for and pay for" a new lawyer. The trial court was therefore not obligated to review the Brown factors, and its decision to deny Travis's trial-day continuance request was not an abuse of discretion. Accordingly, we reverse the decision of the court of appeals and remand for proceedings consistent with this opinion.

I. Facts and Procedural History

¶3 On November 20, 2011, Travis and her roommate, a disabled woman for whom Travis was acting as a caregiver, got into a fight. Travis punched her roommate in the face, hit her with a mop handle multiple times, tore out clumps of her hair, and stabbed her in the arm with a kitchen knife. Travis was charged with two counts of assault in the second degree and felony menacing.

¶4 On January 19, 2012, the public defender filed an entry of appearance. On June 4, 2012, Travis entered a not guilty plea as to all charges, and the court set Travis's case for trial on November 26, 2012. Prior to the November 2012 trial date, Travis requested a continuance so that she could investigate what she described as issues regarding the victim's character. The People objected to this request for a continuance, but the trial court found good cause and continued the jury trial. The case was reset for trial on April 15, 2013.

¶5 At the pretrial conference, which was held five days before the rescheduled trial, Travis's counsel explained to the court that they had been unsuccessful in their attempts to serve the witness who was the basis for Travis's previous motion to continue. The witness was not an eyewitness to the events that formed the basis for the charges, but would, apparently, have spoken to the victim's character and credibility. The trial court told Travis that even if she was unable to secure this witness for trial, he would not grant an additional continuance.

¶6 On the morning of trial, Travis made the following request: "My request was that I was going to look for and pay for an attorney. I don't feel this case is fair regarding [the victim]. There's a lot of stuff that needs to come out about her. I don't think it's fair to me." The court then stated:

Well, Ms. Travis, I understand that. This case has been pending for a very long time. You have had plenty of time to decide if you were wanting to hire counsel. [Your public defenders] are extremely experienced and careful attorneys. They have filed all of the appropriate motions. They have worked very hard on your case.
There are rulings that the Court makes that are the Court's responsibility. [Your public defenders] filed motions and made requests, some of which I granted and some of which I denied. Regardless of who the attorney is standing in front of me, I make legal decisions. I don't base them on personalities.
The Court is not going to continue this case. If you are dissatisfied with their representation because you think that they are not adequately representing you and you wish to proceed to trial on your own today, I can advise you and you can do that.
It is not something that I advise anybody who is faced, certainly not with a felony that carries a mandatory prison sentence, to do. It is always a person's right. I can advise someone of that right but having presided over this case for as long as I have, I know how hard [your public defenders] have been working on your behalf.
There's nothing apparent to me that would indicate that they're providing you with inadequate or ineffective assistance of counsel.
...
If you want to make a record, Ms. Travis, that's up to you. ... Are there other things you wanted to present to me today?

Travis responded, "No." The court next asked whether Travis wanted to proceed with her appointed counsel, to which Travis responded, "Yes." The case then proceeded to trial, and the jury convicted Travis.

¶7 On appeal, Travis argued that her statement that she wanted "to look for and pay for" an attorney was an invocation of her Sixth Amendment right to counsel of her choice. The court of appeals agreed, concluding that our decision in Brown required the trial court to make a record that it had reviewed the eleven factors set out in that decision even when there is no suggestion that new counsel has been identified or retained. We granted the People's petition for certiorari.

II. Applicable Law

¶8 The Sixth Amendment to the United States Constitution has long been interpreted to afford a criminal defendant the right to be represented by counsel of his or her choice. U.S. Const. amend. VI. We recently recognized that the "right to hire counsel of choice includes the right to fire that counsel." Ronquillo v. People , 2017 CO 99, ¶ 4, 404 P.3d 264, 266. This right, however, is not absolute. It does not, for example, "extend to a defendant who requires counsel to be appointed for him." Id. at ¶ 18, 404 P.3d at 268. Indigent defendants have a right to effective assistance of counsel, but not to counsel of their choice. Id. Further, there are times when "judicial efficiency or 'the public's interest in maintaining the integrity of the judicial process,' may be deemed more important than the defendant's interest in being represented by a particular attorney."

Brown , ¶ 17, 322 P.3d at 219 (quoting Rodriguez v. Dist. Court , 719 P.2d 699, 706 (Colo. 1986) ).

¶9 In Brown , we considered how a defendant's right to be represented by the counsel of his choice should be balanced against the public's interest in the fairness and efficiency of the judicial system when a defendant asks for a continuance to allow a newly retained lawyer to prepare to represent him at trial. Brown had retained a private attorney who entered an appearance, filed a written motion for continuance, and appeared in court with Brown several days before the trial was set to begin to argue that he needed additional time to prepare. The court denied the requested continuance. We held that when a defendant appears in court, even on the eve of trial, and asks for a continuance to allow newly retained counsel to prepare, the trial court must conduct a multi-factor balancing test to determine whether to grant the continuance. See id. at ¶ 24, 322 P.3d at 221.

¶10 The Brown "counsel of choice" factors are: (1) the defendant's actions surrounding the request and apparent motive for making the request; (2) the availability of chosen counsel; (3) the length of continuance necessary to accommodate chosen counsel; (4) the potential prejudice of a delay to the prosecution beyond mere inconvenience; (5) the inconvenience to witnesses; (6) the age of the case, both in the judicial system and from the date of the offense; (7) the number of continuances already granted in the case; (8) the timing of the request to continue; (9) the impact of the continuance on the court's docket; (10) the victim's position, if the Victims' Rights Act applies; and (11) any other case-specific factors necessitating or weighing against further delay. Id.

¶11 A few years later, we held in Ronquillo that "the right to counsel of choice includes the right to fire retained counsel" and to do so without a showing of good cause. ¶ 27, 404 P.3d at 269-70. In that case, Ronquillo had been represented by retained counsel, but the lawyer-client relationship had broken down to such an extent that Ronquillo wanted to fire his attorney and seek representation from the public defender. The trial court found that Ronquillo could only seek a continuance to fire his attorney and seek public representation if he could demonstrate "good cause" for the firing. We held that the right to retain counsel of choice encompasses a right to fire that attorney without any showing of good cause. If a defendant desires to terminate his chosen counsel and seek appointed counsel, we concluded that "the court should determine whether the defendant is entitled to a continuance under the test we set out in Brown ." Id. at ¶ 35, 404 P.3d at 270.

¶12 Trial courts have broad discretion in deciding whether to grant or deny a continuance. In Brown and Ronquillo , we explained that a trial court making that decision when the Sixth Amendment right to counsel of choice is at issue must demonstrate that it weighed the full range of factors that might affect its exercise of discretion. When the right to counsel of choice is not at issue, the specific findings set forth in Brown are not required. Instead, a reviewing court will look at the "total circumstances manifested by the record in [the] case" and " 'particularly [at] the reasons presented to the trial judge at the time the request [was] denied.' " People v. Hampton , 758 P.2d 1344, 1353-54 (Colo. 1988) (quoting Ungar v. Sarafite , 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964) ). A trial court's decision to grant or deny a continuance will only be disturbed on appeal if the decision was "manifestly arbitrary, unreasonable, or unfair." People v. Crow , 789 P.2d 1104, 1106 (Colo. 1990) ; see also Brown , ¶ 19, 322 P.3d at 219.

III. Analysis

¶13 This case presents a different factual situation than either Brown or Ronquillo , and the factual differences are dispositive. When Travis informed the court on the morning of trial that she wanted a continuance so that she could "look for and pay for an attorney," she did not trigger the assessment required by Brown .

¶14 While we decline to limit Brown to its precise circumstances-where a lawyer had entered an appearance, filed a motion for continuance, and appeared before the trial court-we can certainly say that Brown does not apply where, as here, the defendant expresses a general interest in retaining counsel, but has not identified replacement counsel or taken any steps to retain any particular lawyer.

¶15 The inapplicability of Brown to this circumstance can be demonstrated by the fact that at least two of the Brown factors-availability of chosen counsel and amount of time needed for that counsel to prepare for trial-cannot even be speculated about in this instance. True, in Ronquillo we observed that, in the absence of a specifically identified new counsel, the district court could still conduct the analysis required by Brown , drawing "on its own experience to make assumptions about when counsel will likely be available and how long counsel will likely need to prepare." Ronquillo , ¶ 36, 404 P.3d at 271. In that case, however, Ronquillo sought to proceed with appointed counsel and his eligibility to be represented by appointed counsel was uncontested. Thus, while the precise identity of the court-appointed counsel who would take on his case was not known, the fact that he would be represented by appointed counsel was known. The circumstances here are far more uncertain and would require an unrealistic level of speculation by the trial court. Travis's vague request to "look for and pay for an attorney" did not identify any such lawyer or even demonstrate her ability to retain that lawyer.

¶16 Because the specific on-the-record findings required by Brown are not required in the circumstances presented here, the trial court's decision to deny the continuance should be reviewed to determine whether the decision was "a clear abuse of discretion." Crow , 789 P.2d at 1106. In denying Travis's requested continuance, the trial court considered the fact that the case had already been continued once before as well as the fact that the case had been pending "for a very long time." The court also noted that Travis's request to continue her case seemed to be based upon her disappointment with the court's evidentiary rulings. The court assured Travis that these rulings were made not based upon the identity of her attorney but rather upon the law. And the court informed Travis that she had a right to represent herself if she no longer wanted to be represented by her public defenders. See Ronquillo , ¶ 38, 404 P.3d at 271. Nothing in the trial court's consideration of the circumstances here reflects an abuse of discretion.

IV. Conclusion

¶17 Because the right to be represented by counsel of the defendant's choosing is not implicated by a vague request to "look for and pay for an attorney" and because the trial court's decision to deny Travis's trial-day continuance request was not an abuse of discretion, we reverse the decision of the court of appeals.

      We granted certiorari to review the following issues:
      1. Whether the eleven-factor balancing test in People v. Brown , 2014 CO 25, 322 P.3d 214, applies when a defendant does not invoke her right to counsel of choice, but rather requests additional time only to decide whether to look for replacement counsel and possibly invoke her right to counsel of choice.
      2. If People v. Brown , 2014 CO 25, 322 P.3d 214, applies in this case, whether reversal is required only if the defendant can show prejudice and that the prejudice could have been cured by a continuance.
      3. Whether the court of appeals erred in concluding that any error in denying the continuance cannot be harmless.

      And, recall, a defendant who receives court-appointed counsel is not entitled to choose specifically who that counsel will be. See Ronquillo , ¶ 18, 404 P.3d at 268.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant v. Amber Anne THRELKEL, Defendant-Appellee.
    Supreme Court Case No. 18SA263
    Supreme Court of Colorado.
    March 11, 2019
    Attorneys for Plaintiff-Appellant: George H. Brauchler, District Attorney, Eighteenth Judicial District, Jacob Edson, Chief Deputy District Attorney, Centennial, Colorado
    Attorneys for Defendant-Appellee: Megan A. Ring, Public Defender, Alaina Almond, Deputy Public Defender, Stephanie Howard, Deputy Public Defender, Centennial, Colorado
    En Banc
   JUSTICE SAMOUR delivered the Opinion of the Court.

¶1 As part of an extensive narcotics investigation that spanned almost all of 2017, law enforcement deputies obtained arrest warrants for the defendant, Amber Anne Threlkel, and her significant other, Robert Allen, based on their alleged distribution of controlled substances. The deputies executed the warrants on December 7, 2017. That evening, they observed a truck owned by Allen leave the residence he shared with Threlkel; they suspected that Allen and Threlkel were both in the truck. As the deputies attempted to perform a traffic stop, the truck evaded them, causing them to momentarily lose sight of it. But they eventually spotted the truck again, stopped it, and apprehended the driver, Allen, within a mile of the home. Although there was no passenger in the truck, Threlkel was located a couple of hundred yards from it, attempting to hitch a ride. It was a frigid and snowy night, the roads were slippery, and there was no easy access on foot between the home and the location of the stop. A deputy who recognized Threlkel detained her. Threlkel was later arrested pursuant to her outstanding warrant.

¶2 Threlkel was charged with multiple drug-related offenses. Before trial, she filed several motions to suppress. The trial court granted one of them, finding that the deputies lacked reasonable, articulable suspicion to stop her. The court thus suppressed all evidence and observations derived from Threlkel's stop, including her statements. It later clarified its ruling at the prosecution's request. It explained that its suppression order included the deputies' observations and investigation before they contacted Threlkel. Therefore, observed the court, the prosecution would not be allowed to mention at trial that Threlkel was even at the location where she was detained.

¶3 We now reverse. We conclude that the deputies had reasonable, articulable suspicion to detain Threlkel. We further conclude that, even if the trial court's contrary ruling had been correct, there is no authority to suppress the deputies' observations and investigation before they contacted Threlkel. Accordingly, we remand this matter to the trial court for further proceedings consistent with this opinion.

I. Facts and Procedural History

¶4 In early 2017, deputies from the Arapahoe County Sheriff's Office narcotics team launched an extensive drug-related investigation of Threlkel and Allen. At some point, the deputies obtained arrest warrants for the couple based on their alleged distribution of controlled substances. At approximately 7 p.m. on December 7, 2017, Deputy Wood and other narcotics deputies were surveilling the home shared by Threlkel and Allen, looking for an opportunity to execute the warrants. They were hoping to catch Threlkel and Allen away from the home. Allen's truck was parked in front of the residence. While the deputies did not see anyone enter the truck, they noticed that it remained outside the home with its headlights on for a long period of time. This led Deputy Wood to suspect that both Allen and Threlkel were in the truck.

¶5 When the truck drove away from the home, the narcotics team asked Deputy Rivers, a patrol deputy, to conduct a traffic stop and contact the occupants of the truck pursuant to the outstanding arrest warrants. Although he did not have information about the identity of the truck's occupants, Deputy Rivers was told that the driver was believed to be male and that the passenger was believed to be female.

¶6 As Deputy Rivers arrived at the residential community where the home is located, he started looking for the truck. It was snowing, there were freezing temperatures, and the roads were icy. Upon spotting the truck, Deputy Rivers turned around so that he could get behind it. While he and other deputies were in pursuit, the truck started driving erratically and evading them. The truck then pulled over, only to take off again. The deputies temporarily lost sight of it, but located it shortly thereafter. They subsequently observed the truck crash through a private gate. They also saw what appeared to be a white bag fly out of the passenger window, which supported their belief that there was a passenger in the truck. The truck eventually stopped within a mile of the home and Allen was apprehended. There was no passenger in the truck.

¶7 Moments after Allen was detained, a nearby driver informed Deputy Rivers that she had just seen a white female in a white coat walking southbound, away from the location of the truck, trying to hitch a ride. Deputy Rivers then saw a white female wearing a white coat on foot within a couple of hundred yards of where the truck had stopped; there was no easy access by foot between the home and that area. Because Allen was being held in his patrol car, Deputy Rivers decided to contact the female on foot. However, a member of the narcotics team, Deputy Daly, beat him to the punch.

¶8 Deputy Daly did not testify at the hearing. However, Deputy Rivers was aware that Deputy Daly had been involved in this investigation, knew about the arrest warrants, and could recognize Threlkel. More importantly, by the time Deputy Rivers reached the female, Deputy Daly "had already visually identified her" as Threlkel. Deputy Daly temporarily detained Threlkel in order to confirm her arrest warrant. Once the warrant was verified, Threlkel was arrested.

¶9 Threlkel was subsequently charged with multiple drug-related offenses. Before trial, she filed three motions to suppress. The trial court held an evidentiary hearing during which the prosecution presented testimony from Deputy Rivers and Deputy Wood. Threlkel did not present any testimonial evidence.

¶10 The trial court found that both deputies were credible and that their testimony had no reliability issues. Yet, it ruled that the deputies violated Threlkel's rights under the Fourth Amendment because they lacked a reasonable, articulable suspicion to detain her. The trial court seemed troubled by the fact that Deputy Daly did not testify since he was the deputy "who [was] able to identify Ms. Threlkel as being the one the warrant was valid for." Notably, the trial court acknowledged Deputy Rivers's uncontroverted testimony that "Deputy Daly ... knew that the white female that was pointed out by [the] unknown driver was Ms. Threlkel." But it nevertheless suppressed all evidence and observations derived from Threlkel's stop, including her statements, because it felt that there were important details missing in the testimony provided by Deputies Rivers and Wood.

¶11 At a later status hearing, the trial court clarified its ruling at the prosecution's request. It indicated that its suppression order went beyond the evidence and observations derived from Threlkel's stop-the order also included the deputies' observations and investigation before they contacted Threlkel. According to the court, Threlkel was "not arrested at the scene" because "[t]here's no evidence to indicate that she was even there." Therefore, concluded the court, the prosecution would not be allowed to introduce evidence at trial that the deputies contacted Threlkel at all.

¶12 The prosecution then brought this interlocutory appeal.

II. Analysis

¶13 The prosecution argues that the trial court erred both in ruling that the deputies lacked reasonable, articulable suspicion to detain Threlkel and in suppressing evidence preceding their contact with her. We agree. We conclude that the deputies had reasonable, articulable suspicion to detain Threlkel. We further conclude that, even if the trial court's contrary ruling had been correct, there is no authority to suppress the deputies' observations and investigation before they contacted Threlkel. Accordingly, we reverse and remand for additional proceedings consistent with this opinion.

¶14 We first set forth the applicable standard of review, followed by the relevant legal principles. We then address the merits of the prosecution's appeal, discussing in turn the trial court's finding of no reasonable, articulable suspicion and the trial court's suppression of the deputies' observations and investigation preceding their contact with Threlkel.

A. Standard of Review

¶15 Our review of a trial court's order addressing a defendant's motion to suppress involves "a mixed question of law and fact." People v. Gothard , 185 P.3d 180, 183 (Colo. 2008). We defer to the trial court's factual findings and do not disturb them "if they are supported by competent evidence in the record." People v. Castaneda , 249 P.3d 1119, 1122 (Colo. 2011). However, "the trial court's legal conclusions are subject to de novo review." People v. Pitts , 13 P.3d 1218, 1222 (Colo. 2000).

B. Relevant Legal Principles

¶16 The Fourth Amendment to the United States Constitution protects individuals against unreasonable searches and seizures by police. People v. Cox , 2018 CO 88, ¶ 7, 429 P.3d 75, 78. But the Fourth Amendment does not prohibit all contact of citizens by law enforcement. People v. Fields , 2018 CO 2, ¶ 11, 411 P.3d 661, 665. Rather, it aims "to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals." Imm. & Nat. Serv. v. Delgado , 466 U.S. 210, 215, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) (quoting United States v. Martinez-Fuerte , 428 U.S. 543, 554, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) ).

¶17 There are "two distinct levels of seizure of a person" that implicate the Fourth Amendment: an investigatory stop and an arrest. Fields , ¶ 12, 411 P.3d at 665. The former is the "less intrusive of the two." Id. It is justified when there is "reasonable articulable suspicion to believe that the detainee is committing, has committed, or is about to commit a crime," and its scope is limited "to a brief detention to confirm or dispel that suspicion." Id. The latter is the "more intrusive of the two." Id. It is justified when there is "probable cause to believe a crime has been committed by the detainee." Id. In this case, we are concerned only with the less intrusive type of seizure-an investigatory stop.

¶18 An officer's investigatory stop complies with the Fourth Amendment when three criteria are met: (1) there is "an articulable and specific basis in fact for suspecting (i.e., a reasonable suspicion) that criminal activity has taken place, is in progress, or is about to occur"; (2) the purpose of the intrusion is reasonable; and (3) the intrusion's character and scope are "reasonably related to its purpose." People v. Reyes-Valenzuela , 2017 CO 31, ¶ 11, 392 P.3d 520, 522-23 (quoting People v. Salazar , 964 P.2d 502, 505 (Colo. 1998) ). Because the trial court found that the first prong-reasonable, articulable suspicion-was not satisfied, it did not address the second and third prongs. Hence, only the first prong is at issue in this appeal.

¶19 To determine whether an officer had a reasonable, articulable suspicion to conduct an investigatory stop, we consider "whether there were specific and articulable facts known to the officer, which taken together with reasonable inferences from these facts, created a reasonable suspicion of criminal activity to justify the intrusion into the defendant's personal security." Id. at ¶ 12, 392 P.3d at 523 (quoting Salazar , 964 P.2d at 505 ). This requires us to consider the totality of the circumstances. Id. Rather than focus on the subjective intent of the officer, we objectively analyze whether, under all the circumstances present, a reasonable and articulable suspicion existed. Id.

¶20 An officer is entitled to draw reasonable inferences from all the circumstantial evidence "even though such evidence might also support other inferences." Id. at ¶ 14, 392 P.3d at 523 (quoting Castaneda , 249 P.3d at 1122 ). It is for this reason that the Supreme Court has cautioned against engaging in a "divide-and-conquer analysis" that results in the dismissal of factors simply because they have plausible innocent explanations. Id. (quoting United States v. Arvizu , 534 U.S. 266, 274-75, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) ). Indeed, a reasonable, articulable suspicion may be present "even where innocent explanations are offered for conduct." Id. (quoting Castaneda , 249 P.3d at 1122 ). Nor can we discount acts which, in isolation, appear to be innocent. Id. at ¶ 13, 392 P.3d at 523. Several such acts "may add up to a reasonable, articulable suspicion of criminal activity." Id. As the United States Supreme Court has recognized, "innocent behavior frequently will provide the basis for a showing of probable cause,"

Illinois v. Gates , 462 U.S. 213, 243 n.13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), which is a more demanding standard than reasonable, articulable suspicion. The relevant inquiry is not whether the defendant's conduct is innocent or guilty, "but the degree of suspicion that attaches to particular types of noncriminal acts." Reyes-Valenzuela , ¶ 13, 392 P.3d at 523 (quoting United States v. Sokolow , 490 U.S. 1, 10, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) ).

¶21 When we consider a challenge to an investigatory stop, we are not limited to an officer's observations because an officer is entitled to rely on information supplied by another person, including a fellow officer. See id. at ¶ 15, 392 P.3d at 523. An officer who does not personally possess reasonable, articulable suspicion may still lawfully make an investigatory stop under the fellow-officer rule if: "(1) he acts at the direction or as a result of communications with another officer, and (2) the police as a whole possess a sufficient basis to make the [stop]." People v. Arias , 159 P.3d 134, 139 (Colo. 2007). "The purpose of the fellow officer rule is to allow law enforcement agencies to work together as a team," instead of requiring that each officer personally and independently "possess the particularized information necessary to make the [stop]." Id. When an investigation is expanded so as to include officers not at the scene of an alleged crime, the fellow-officer rule "operates to integrate those outside officers and make them part of the coordinated investigation." People v. Swietlicki , 2015 CO 67, ¶ 27, 361 P.3d 411, 416 (quoting Grassi v. People , 2014 CO 12, ¶ 14, 320 P.3d 332, 336 ). Through the rule, "information that the police possess as a whole" is "impute[d] ... to an individual officer." Grassi , ¶ 13, 320 P.3d at 336.

¶22 While the fellow-officer rule "impute[s] information from officers who possess it to those who do not," we have made clear that "it does not require a linear chain of communication from one officer to the next." Id. at ¶ 17, 320 P.3d at 337. Instead, "the rule pools the collective knowledge of officers" working together as a cohesive unit in a coordinated investigation. Id. Moreover, so long as the police remain engaged in such a coordinated investigation, "the rule encompasses information that the police as a whole possess at the time of the relevant action,"-i.e., at the time of the challenged search or seizure. Id. at ¶ 18, 320 P.3d at 337.

C. Application

1. The Deputies Had Reasonable, Articulable Suspicion to Stop Threlkel

¶23 The first question we must address is whether the trial court erred in finding that the deputies lacked reasonable, articulable suspicion to stop Threlkel. We conclude that it did.

¶24 The trial court faltered from the outset when it determined that no reasonable, articulable suspicion could be shown without testimony from Deputy Daly, the deputy who stopped Threlkel. As the trial court acknowledged, Deputy Rivers credibly testified that he was aware that Deputy Daly had been involved in this investigation and knew both that Threlkel had an outstanding arrest warrant and that "the white female that was pointed out by [the] unknown driver was Ms. Threlkel." This uncontroverted testimony, alone, established reasonable, articulable suspicion to stop Threlkel.

¶25 But the trial court reasoned that this testimony was not sufficient because it felt that certain important details were missing. For example, it pointed out that it lacked information related to: the fact that there was only one person found in the truck and there were "no footprints that could potentially tie Ms. Threlkel and her location to getting out of the truck"; "how long the truck was stopped or whether it was even possible for someone to get out of the truck" before Allen was detained; whether there was enough time for someone to exit the truck while the deputies lost sight of it during their pursuit; and where the deputies lost sight of the truck during their pursuit and whether there were footprints in that area.

¶26 The trial court misapplied the reasonable, articulable suspicion standard. In effect, the trial court required the deputies to rule out the potential innocent alternative: that the female stopped was someone other than Threlkel who just happened to be walking and asking for a ride, in a residential community, during a frigid and snowy night, less than a mile away from her home, and just a couple of hundred yards from the location where the truck was stopped and Allen was detained. However, the fact that an innocent explanation may be imagined does not defeat the deputies' reasonable, articulable suspicion. See Reyes-Valenzuela , ¶ 14, 392 P.3d at 523. Instead, the deputies were entitled to draw reasonable inferences from all the circumstantial evidence even if the evidence might also support other inferences. See id. The proper inquiry was whether, considering all the circumstances together, the deputies had an objectively reasonable basis to believe that the female they stopped was Threlkel.

¶27 Here, it is clear that, even without the missing details identified by the trial court, the deputies had a reasonable, articulable suspicion to believe that the female they stopped was Threlkel:

• Threlkel and Allen were the subjects of a nearly year-long narcotics investigation that culminated in their arrest warrants.
• The truck had earlier been parked outside the home for some time with its headlights on.
• As the truck evaded them, the deputies observed what appeared to be a white bag thrown out of the front passenger window, which supported their belief that there was a passenger inside.
• When the deputies finally stopped the truck, they confirmed that Allen was the driver.
• Although there was no passenger in the truck, the deputies were aware that they had temporarily lost sight of it during their pursuit.
• Shortly after detaining Allen, the deputies saw a white female within a couple of hundred yards from the truck.
• Both she and the truck were within a mile of the home.
• There was no easy access by foot from the home to the area where the deputies spotted her.
• She was on foot, moving away from the truck, and attempting to hitch a ride.
• And this was a residential community; it was a frigid and snowy night; and the roads were slippery.

In short, there were specific and articulable facts known to the deputies, which considered together and in conjunction with the fair inferences drawn from those facts, created a reasonable suspicion that the female spotted shortly after Allen's detention was Threlkel.

¶28 The trial court seemed to give short shrift to these facts and inferences because Deputy Rivers did not know what Threlkel looked like and the record does not reflect when he was notified that the female contacted was identified as Threlkel. But Deputy Rivers did not stop Threlkel-Deputy Daly did. And, as we mentioned, the evidence at the hearing indisputably established, and the trial court acknowledged, that Deputy Daly was involved in this investigation and knew what Threlkel looked like and that she was wanted on an arrest warrant.

¶29 In any event, to the extent the trial court focused on Deputy Rivers's personal knowledge, it erred in finding that it was insufficient to justify Threlkel's stop. The knowledge personally possessed by Deputy Rivers, though limited, was sufficient to form a reasonable, articulable suspicion that the female located just a couple of hundred yards from the truck had exited the truck during or after the deputies' pursuit and was the person the narcotics team was attempting to arrest. Under all the circumstances, that was a reasonable inference, if not the most reasonable inference, for Deputy Rivers to draw.

¶30 There is an additional, independent ground to support our determination that Deputy Rivers had a reasonable, articulable suspicion to stop Threlkel: the fellow-officer rule. The trial court applied this rule, but did so incorrectly. We conclude that the rule imputed the collective knowledge of all the narcotics deputies to Deputy Rivers because both of its requirements were met. See Swietlicki , ¶ 27, 361 P.3d at 416. First, Deputy Rivers acted at the direction of or as a result of communications with other deputies. Id. Specifically, the narcotics deputies asked Deputy Rivers to conduct a traffic stop of the truck and communicated to him that they believed there were two occupants in the truck, a male driver and a female passenger, and that both had outstanding warrants for their arrest. Second, at the time of the challenged seizure, the narcotics team, as a whole, possessed a reasonable, articulable suspicion to stop Threlkel and to believe that the female spotted shortly after Allen's detention was, in fact, Threlkel. Id.

2. No Authority Exists to Suppress Evidence Gathered Prior to Threlkel's Stop

¶31 Having concluded that the trial court erred in finding there was no reasonable, articulable suspicion to stop Threlkel, the remaining question is whether it had authority to suppress evidence obtained before Threlkel was contacted. We conclude that it did not.

¶32 A few weeks after excluding all evidence and observations derivative of Threlkel's stop, the trial court compounded the error by extending its suppression order to any observations and investigation preceding Threlkel's stop. The trial court did not cite any authority in support of this ruling, and our research has unearthed none.

¶33 The United States Supreme Court adopted the exclusionary rule to give effect to the Fourth Amendment's guarantee against unreasonable searches and seizures. Casillas v. People , 2018 CO 78M, ¶ 19, 427 P.3d 804, 809-10. But the exclusionary rule is limited in scope: It prohibits "the use of improperly obtained evidence at trial, as well as evidence later discovered and found to be derivative of an illegality ." Id. (emphasis added) (internal citations omitted). It has never been applied to suppress evidence obtained before an illegality occurred. Such application would be inconsistent with the rule's purpose "to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." Herring v. United States , 555 U.S. 135, 144, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). Hence, in addition to incorrectly finding that the deputies lacked reasonable, articulable suspicion to stop Threlkel, the trial court mistakenly suppressed evidence obtained before Threlkel was contacted.

III. Conclusion

¶34 We conclude that the trial court erred in finding that the deputies lacked reasonable, articulable suspicion to stop Threlkel. We further conclude that the trial court aggravated that error by extending its suppression order to include any observations and investigation preceding the stop. Accordingly, we reverse the trial court's suppression order and remand the matter for further proceedings consistent with this opinion.

      Deputy Wood testified that they had other grounds to stop the truck: its unlawfully altered suspension and the lack of a visible front license plate.

      This interlocutory appeal was properly filed pursuant to section 16-12-102(2), C.R.S. (2018) (requiring the People to certify that the appeal is not taken for purposes of delay and that the evidence is a substantial part of the proof of the charge pending against the defendant), and C.A.R. 4.1(a) (same).

      In a per curiam order, we previously denied Threlkel's motion to dismiss this appeal as untimely.