                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
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                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                      LAURA STELMASEK, Appellant.

                             No. 1 CA-CR 15-0393
                                 1 CA-CR 15-0860
                                   (Consolidated)
                               FILED 6-8-2017


           Appeal from the Superior Court in Yavapai County
                        No. P1300CR201100653
              The Honorable Jennifer B. Campbell, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza C. Ybarra
Counsel for Appellee

Yavapai County Public Defender’s Office, Prescott
By Nicole S. Murray
Counsel for Appellant
                           STATE v. STELMASEK
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley1 delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia K. Norris joined.


P O R T L E Y, Judge:

¶1            Laura Stelmasek appeals her convictions and sentences for
first-degree murder, conspiracy to commit first-degree murder, tampering
with physical evidence, and concealment of a dead body. Finding no
reversible error, we affirm.

                              BACKGROUND2

¶2           Stelmasek was married to the victim for about twenty years.
During the year before the victim was killed, their relationship was
turbulent, and Stelmasek confided to friends that she wanted to end the
marriage.

¶3             Amidst the marital turmoil, Stelmasek rekindled a
relationship with her former boyfriend, Marzet Farris. Stelmasek and Farris
exchanged hundreds of emails expressing their desire to be together. They
also plotted to kill the victim. As their plan solidified, Stelmasek told Farris
where all weapons were located inside the Prescott home she shared with
the victim and their daughter, then 16.

¶4            Stelmasek and her daughter drove from Arizona to California
in two cars in late May 2011 to visit friends. Stelmasek separately returned
to Arizona on June 1, 2011, picked up Farris at Sky Harbor airport, and
drove him to a motel in Prescott.




1      The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.

2      We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93, 314 P.3d 1239, 1264 (2013).


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                          STATE v. STELMASEK
                           Decision of the Court

¶5          Later that evening, Farris took a cab to the Stelmaseks’
neighborhood. Hours later, Farris checked out of the motel, leaving
numerous “bloody rags” behind.

¶6            Two days later, Farris flew from Albuquerque, New Mexico
to North Carolina, his home state. The same day, Stelmasek’s daughter
returned home, and Stelmasek told her that her father had left them and
did not want either of them to contact him. The next morning, Stelmasek
told her daughter that “she had to get away,” and then flew to North
Carolina to join Farris.

¶7             The victim’s body was discovered bundled in blankets inside
the Stelmaseks’ van on June 5, 2011, at the Albuquerque airport. By then,
his body was significantly decomposed, and was not immediately
identifiable. Investigators, however, discerned numerous stab wounds.

¶8             Unsure where the victim was murdered, Albuquerque
authorities contacted the Prescott police, and local officers conducted a
welfare check at the Stelmaseks’ home. They found the daughter home
alone, and she did not know where her parents were. Officers showed her
a picture of the blanket the victim had been wrapped in, and she recognized
it as one that had been on her parents’ bed. Officers then obtained a search
warrant for the residence and, using a chemical to detect the presence of
blood, discovered substantial blood residue in the master bedroom and a
trail of blood residue from the master bedroom to the garage.

¶9           On June 14, 2011, Stelmasek and Farris were arrested
together, in North Carolina. Stelmasek was charged with first-degree
murder (Count I), conspiracy to commit murder (Count II), tampering with
physical evidence (Count III), concealing a dead body (Count IV), and child
abuse (Count V).3 The State also alleged three aggravating circumstances.

¶10            At trial, Stelmasek unsuccessfully argued that her
communications to Farris discussing a possible murder of her husband
were only “fantasy” and she did not actually believe that Farris would kill
him. She was convicted by the jury on all counts. She was sentenced to
natural life for murder, a consecutive prison term of twenty-five years to
life for conspiracy to commit murder, a concurrent, presumptive term of
one year imprisonment for tampering with evidence, and a concurrent,


3       Before trial, the court granted Stelmasek’s uncontested motion to
sever the child abuse charge. After the verdicts, the court granted the
State’s motion to dismiss that charge without prejudice.


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                           STATE v. STELMASEK
                            Decision of the Court

presumptive term of one and one-half years’ imprisonment for concealing
a dead body. Stelmasek then timely appealed the convictions and
sentences.

¶11           Subsequently, the trial court ordered Stelmasek to pay
restitution of $2,603.08 for funeral expenses and travel costs. She timely
filed an appeal from that order. This court consolidated the appeals, and
we have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”)
sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).4

                                DISCUSSION

    I.     Admission of Stun Gun Evidence

¶12           Stelmasek contends the trial court improperly admitted
evidence regarding the purchase of a stun gun. She argues the evidence
was irrelevant because there was no proof that a stun gun was used to
commit the murder. In addition, she asserts the stun gun evidence lacked
sufficient foundation because the State failed to present any direct evidence
that she purchased the weapon.

¶13           We review a trial court’s evidentiary ruling for an abuse of
discretion. State v. Ellison, 213 Ariz. 116, 129, ¶ 42, 140 P.3d 899, 912 (2006).
“Absent a clear abuse of discretion, we will not second-guess a trial court’s
ruling on the admissibility or relevance of evidence.” State v. Rodriguez, 186
Ariz. 240, 250, 921 P.2d 643, 653 (1996).

¶14            Before trial, Stelmasek moved to preclude any reference to the
purchase of a stun gun from a California military surplus store on June 1,
2011, arguing the evidence was irrelevant, “unreliable and unsubstantiated
innuendo.” After a hearing, the court denied the motion, concluding
Stelmasek’s challenges to the evidence went to its weight, not its
admissibility.

¶15          At trial, and consistent with its pretrial representations to the
court, the State introduced evidence that Stelmasek called the military
surplus store the evening of May 31, 2011, approximately forty minutes
before the store closed. Before and after this call, Stelmasek and Farris
exchanged calls and texts. The following morning, and before the store
opened at 10:00 a.m., Stelmasek and Farris again exchanged numerous calls
and texts. Between 10:00 a.m. and 10:30 a.m., service to Stelmasek’s cell

4     We cite to the version of the statute in effect at the time of trial unless
otherwise noted.


                                       4
                           STATE v. STELMASEK
                            Decision of the Court

phone switched to the cell tower that serviced the military surplus store,
though several other cell towers were in closer proximity to the residence
she was visiting. During this thirty-minute period, Stelmasek called Farris
four times.

¶16           No employee from the military surplus store could identify
Stelmasek as a customer, and there was no available surveillance video
from June 1, 2011. However, store personnel produced the first sales receipt
of June 1, 2011, which reflected a cash purchase of a stun gun and pepper
spray.

¶17          An Albuquerque medical investigator testified that she did
not observe any burn marks consistent with a stun gun on the victim’s
body. She explained, however, that the level of decomposition and loss of
blood compromised her ability to evaluate the body, and specifically stated
that burn marks may have been inflicted but rendered indiscernible by the
decomposition.     Likewise, a forensic pathologist testified that
decomposition may have obscured any injury to the body caused by a stun
gun.

¶18           Relevant evidence is admissible unless it is otherwise
precluded by the federal or state constitution, an applicable statute, or rule.
Ariz. R. Evid. 402. Evidence is relevant if it has “any tendency” to make a
fact of consequence in determining the action “more or less probable than
it would be without the evidence.” Ariz. R. Evid. 401.

¶19             In this case, the State charged Stelmasek with premeditated
murder, under a theory of accomplice liability, and conspiracy to commit
murder. Given the charges and the State’s framing of the case, the issues
before the jury included whether Stelmasek: (1) solicited, aided, or enabled
Farris to kill her husband, and (2) entered an agreement with Farris that one
of them would kill the victim. See A.R.S. §§ 13-301, -1003, and -1105.
Because she contested the State’s theory and evidence, the evidence that
Stelmasek purchased a device designed to immobilize a person the day of
the murder tended to make a fact of consequence more probable.
Specifically, the evidence that Stelmasek obtained a weapon that could
subdue a person, and was in near constant communication with Farris
during its acquisition, tended to show that she intended to kill her husband,
acted with intent to aid in her husband’s murder, and had agreed with
Farris that one of them would commit the offense.

¶20          Moreover, we disagree with Stelmasek’s argument that the
stun gun evidence was irrelevant because she and Farris never mentioned



                                      5
                           STATE v. STELMASEK
                            Decision of the Court

the use of a stun gun in their emails and the State failed to prove the weapon
was used on the victim. There was no trial evidence that ruled out the use
of a stun gun during the murder, and the purchase of a stun gun tends to
demonstrate that Stelmasek conspired and actively participated in the
murder, regardless of the emailed plans or the manner in which Farris
ultimately killed the victim. Or, stated differently, a murder is premediated
when the perpetrator acts with intention or knowledge and such intention
or knowledge precedes the killing by any length of time sufficient to permit
reflection, A.R.S. §§ 13-1101(1), -1105, and that evidence is not irrelevant
even if the planned means of committing the murder remains fluid or
subject to change.

¶21            Likewise, because the requisite elements of conspiracy to
commit murder are established once a person agrees with another that at
least one of them will commit a murder, the fact that the eventual method
of killing deviates from the conspirators’ plans does not make the evidence
irrelevant. See A.R.S. § 13-1003, -1105. Therefore, because the stun gun
receipt had some tendency to make a fact of consequence more probable, it
was relevant, but only if the State offered sufficient proof that Stelmasek
was the purchaser. See Ariz. R. Evid. 104(b) (“When the relevance of
evidence depends on whether a fact exists, proof must be introduced
sufficient to support a finding that the fact does exist. The court may admit
the proposed evidence on the condition that the proof be introduced
later.”).

¶22            “[A]s a condition precedent to admissibility,” a party seeking
to introduce evidence must produce proof “sufficient to support a finding
that the matter in question is what its proponent claims.” State v. George,
206 Ariz. 436, 446, ¶ 30, 79 P.3d 1050, 1060 (App. 2003) (citing Ariz. R. Evid.
901(a)). “This standard is satisfied if the evidence can be identified by its
distinctive characteristics, taken in conjunction with the circumstances of
the case.” Id. (citing Ariz. R. Evid. 901(b)(4)).

¶23            The authentication requirement of Rule 901 may be satisfied
by circumstantial evidence. State v. Best, 146 Ariz. 1, 2, 703 P.2d 548, 549
(App. 1985).       Indeed, a party may rely upon circumstantial and
corroborating evidence, as well as the evidence, to establish its authenticity.
See State v. Lavers, 168 Ariz. 376, 388, 814 P.2d 333, 345 (1991). In ruling on
admissibility, “[t]he question for the trial judge is not whether the evidence
is authentic, but only whether evidence exists from which the jury could
reasonably conclude that it is authentic.” State v. Wooten, 193 Ariz. 357, 368,
¶ 57, 972 P.2d 993, 1004 (App. 1998).



                                      6
                           STATE v. STELMASEK
                            Decision of the Court

¶24           Applying the principles here, the State presented sufficient
foundation for the admission of the stun gun evidence. Stelmasek does not
dispute that the store receipt is a valid document evidencing the purchase
of a stun gun on the morning in question. Rather, she challenges the lack
of direct evidence that she was the purchaser. Although there was no direct
evidence that she purchased the stun gun, the State presented substantial
circumstantial and corroborating evidence that Stelmasek purchased the
stun gun. It is uncontroverted that she called the military surplus store
shortly before closing time the evening before the murder. And she does
not contest that the only time her phone was serviced by the cell tower
located near the military surplus store during her visit to California was
between 10:00 a.m. and 10:30 a.m. on June 1, 2011; a period corresponding
to the time the stun gun was purchased. Given these facts, the trial court
did not abuse its discretion by admitting the stun gun evidence.

   II.    Preclusion of Farris’s Police Interview Statements

¶25            Stelmasek contends the trial court improperly precluded
Farris’s interview statements to authorities following his arrest.
Specifically, she argues the ruling prevented her from fully presenting her
defense that Farris acted alone in killing the victim and did so without her
knowledge or agreement.

¶26            Before trial, the State moved in limine to preclude all evidence
of Farris’s police interview statements that Stelmasek “didn’t do anything”
and was, herself, a “victim.” Citing Farris’s testimony from his own trial,
in which he admitted that he had lied when he made those statements, the
State argued the statements failed to comport with the Rule 804(b)(3)
hearsay exception for statements against interest.

¶27           After a hearing on the State’s motion, the court found Farris’s
statements were circumstantially against his interest, though he never
expressly identified himself as “the culprit” during the interview. The court
further found, however, that Farris’s characterization of Stelmasek as a
victim and claim that she took no part in the murder were “in complete
contradiction” to his sworn trial testimony, and therefore “unreliable at
best.” On that basis, the court precluded all evidence of Farris’s police
interview statements.

¶28           We review the admissibility of third-party culpability
evidence for an abuse of discretion. State v. Prion, 203 Ariz. 157, 161, ¶ 21,
52 P.3d 189, 193 (2002). The normal restrictions on hearsay apply to third-
party culpability evidence. State v. Machado, 224 Ariz. 343, 358, ¶ 40, 230



                                      7
                          STATE v. STELMASEK
                           Decision of the Court

P.3d 1158, 1173 (App. 2010), abrogated on other grounds as recognized in State
v. Nottingham, 231 Ariz. 21, 26 n.4, ¶ 13, 289 P.3d 949, 954 n.4 (App. 2012)).
Because Stelmasek offered Farris’s statements to prove she played no role
in the victim’s murder, the statements were plainly hearsay. See Ariz. R.
Evid. 801(c) (defining hearsay as “a statement that: (1) the declarant does
not make while testifying at the current trial or hearing; and (2) a party
offers in evidence to prove the truth of the matter asserted”).

¶29            Pursuant to Rule 804(b)(3), a defendant may offer a hearsay
statement as evidence tending to exonerate the defendant if: (1) the
declarant is unavailable, (2) the statement tended to subject the declarant to
criminal liability at the time the statement was made such that “a reasonable
person in the declarant’s position” would have made the statement “only if
the person believed it to be true,” and (3) “corroborating circumstances
clearly indicate its trustworthiness.” Accordingly, a trial court determining
the admissibility of a statement under this exception “must examine any
evidence that corroborates or contradicts the statement to find whether a
reasonable person could conclude that the statement is true.” Machado, 224
Ariz. at 358, ¶ 40, 230 P.3d at 1173 (internal quotations omitted).

¶30            The State does not contest that Farris, charged as a
codefendant, was unavailable to testify. Although Farris did not directly
inculpate himself during the police interview, the State concedes, consistent
with the trial court’s finding, that his “statements were circumstantially
against [his] interest.” Therefore, the only question remaining is whether
corroborating     circumstances     clearly    indicate    the   statements’
trustworthiness.

¶31           On this record, there are no corroborating circumstances
demonstrating the statements are true and reliable. Farris testified that he
lied throughout his police interview. He also testified that Stelmasek
stabbed the victim to death, and explained that he initially believed
Stelmasek was a victim because he had been “duped” and “played.” More
importantly, Farris’s claim that Stelmasek was innocent of any wrongdoing
is undermined by the following: (1) her emails to Farris provide
overwhelming evidence that she was not a passive, uninformed bystander,
but an active conspirator in the murder; (2) she rejected Farris’s suggestion
that she pursue an alternative means of leaving her husband and originated
the idea of murdering him; and (3) she disclosed the location of all the
weapons in her home in response to Farris’s email containing a detailed
murder plan. Moreover, Stelmasek’s post-murder conduct undermines
Farris’s claim that she was innocent of any wrongdoing. Most notably, she
told her daughter that the victim had left them, then flew across the country


                                      8
                          STATE v. STELMASEK
                           Decision of the Court

to reunite with Farris, then failed to respond to her daughter’s calls and
texts.

¶32           Likewise, any contention that the victim abused Stelmasek is
contradicted by substantial evidence. Although Stelmasek, in her emails
to Farris, described her husband as controlling and alluded to possible
abuse, there was myriad testimony from neighbors and friends describing
that she was quite assertive with the victim; those witnesses denied seeing
any physical abuse. Therefore, because there is only minimal evidence
corroborating Farris’s statements, and the overall record substantially
contradicts them, the court did not abuse its discretion by excluding Farris’s
police interview statements.

   III.   Preclusion of Other Acts Evidence

¶33           Stelmasek contends the trial court improperly excluded
evidence of Farris’s other acts. Specifically, she asserts the court infringed
on her right to present a full defense by excluding evidence that Farris had
previously assaulted another girlfriend, J.S., with a knife and attacked her
boyfriend. Stelmasek claims the evidence would have demonstrated that
Farris was both spontaneously violent and manipulative.

¶34           Before trial, the State moved to preclude all evidence of
Farris’s other acts related to J.S. In response, Stelmasek argued the other
acts were third-party culpability evidence that tended to prove Farris acted
alone in murdering the victim. At a hearing on the motion, the court stated
that the evidence would be irrelevant if the parties simply stipulated that
Farris had already been convicted of the murder, to which defense counsel
replied, “I don’t disagree with you.” The State declined to stipulate to
Farris’s conviction, but avowed that it would not put forward any evidence
or argument that Stelmasek stabbed the victim, and would only pursue a
theory of accomplice liability for the murder. Based on that avowal, the
court questioned how the evidence of Farris’s prior acts remained relevant,
and defense counsel acknowledged that “perhaps” the evidence lost “its
relevancy.” The court then granted the State’s motion, concluding the
prejudicial impact of the evidence outweighed any remaining probative
value.

¶35           The admission of third-party culpability evidence is governed
by Rules 401 through 403, not Rule 404(b). State v. Machado, 226 Ariz. 281,
284, ¶ 16, 246 P.3d 632, 635 (2011); Prion, 203 Ariz. at 161, ¶ 22, 52 P.3d at
193. Accordingly, when evaluating the admissibility of third-party
culpability evidence, the general rules of evidence apply and evidence



                                      9
                           STATE v. STELMASEK
                            Decision of the Court

“must simply be relevant and then subjected to the normal 403 weighing
analysis between relevance, on the one hand, and prejudice or confusion on
the other.” Prion, 203 Ariz. at 161, ¶ 22, 52 P.3d at 193. Third-party
culpability evidence “is relevant only if it tends to create a reasonable doubt
as to the defendant’s guilt.” State v. Alvarez, 228 Ariz. 579, 581, ¶ 4, 269 P.3d
1203, 1205 (App. 2012) (internal quotation omitted).

¶36            Although evidence that Farris previously attacked another
girlfriend and her boyfriend may have further inculpated him, that
evidence would not have exculpated Stelmasek. Indeed, Farris’s capacity
for violence and manipulation was not in dispute. The prosecutor, during
opening statements, informed the jury that Farris “almost certainly” was
the one who “plunged the knife” into the victim, and during closing
argument, characterized Farris as “clearly [] dangerous, deadly, distorted,
[and] demented.” Given the evidence and the State’s theory, Farris’s role
as the primary actor in the murder did not lessen Stelmasek’s culpability or
controvert the overwhelming evidence that she acted as an accomplice and
co-conspirator. See Alvarez, 228 Ariz. at 582, ¶ 9, 269 P.3d at 1206
(concluding third-party culpability evidence was not relevant because,
even if the third party was culpable, he could have acted as the defendant’s
accomplice and the evidence did not suggest that someone other than the
defendant committed the crime). Therefore, the court did not abuse its
discretion by precluding the evidence as irrelevant.

¶37           Moreover, even if the evidence was minimally relevant, any
error in its exclusion was harmless. First, it was cumulative to other
evidence at trial. See State v. Dunlap, 187 Ariz. 441, 456-57, 930 P.2d 518, 533-
34 (App. 1996) (explaining an erroneous evidentiary ruling excluding
cumulative evidence was harmless beyond a reasonable doubt). Stelmasek
presented numerous emails Farris wrote vividly describing violent acts he
threatened to commit on the victim and boasting about his ability to
“abuse[],” “break,” and “control[]” people. Second, the record uniformly
demonstrates that Stelmasek solicited her husband’s murder, and provides
no factual basis to begin to conclude that Farris pressured or manipulated
her into committing the crimes. Therefore, the exclusion of Farris’s prior
acts did not affect the verdict and, if error, was harmless. See State v.
Anthony, 218 Ariz. 439, 446, ¶ 39, 189 P.3d 366, 373 (2008).




                                       10
                 STATE v. STELMASEK
                  Decision of the Court

                      CONCLUSION

¶38   We affirm Stelmasek’s convictions and sentences.




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




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