State v. Dominick

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

TERRENCE QUENTIN DOMINICK, II, Appellant.

No. 1 CA-CR 21-0395
FILED 8-25-2022

Appeal from the Superior Court in Maricopa County
No. CR2019-144414-001
The Honorable Glenn A. Allen, Judge, Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant
 STATE v. DOMINICK
Decision of the Court

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined.

F U R U Y A, Judge:

¶1 Terrence Quentin Dominick II appeals his conviction and
sentence for unlawful use of means of transportation, arguing the superior
court erroneously admitted evidence in violation of the rule against hearsay
and the Confrontation Clause. Because sufficient evidence supports his
conviction, even without considering the evidence to which Dominick
objects, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The victim left her car running for “less than a minute” while
she went to retrieve something inside her house. When she returned, the
car was gone. The victim called police, and a dispatcher disseminated
information about the vehicle. An officer soon saw a car resembling the
stolen vehicle run a red light about 3.5 miles from the victim’s home.

¶3 The intersection where the car ran the red light was equipped
with a camera to capture traffic violations. Police retrieved camera footage
that showed the victim’s vehicle running the light. An officer who viewed
the footage recognized a male passenger in the car. Police located and
questioned the passenger, who told them “Terrence” was driving the
vehicle and had picked him up “at Elgin Park,” which was about a quarter
mile from the victim’s house. By researching social media sites, police
found a local “Terrence Dominick” who resembled the driver of the vehicle
in the red-light camera footage. Officers located Dominick near Elgin Park
and questioned him. Dominick admitted he “had” the car, but he denied
stealing it, saying a woman had given it to him, and police found no car
keys on him. Police found the vehicle where Dominick reported last seeing
it—in the parking lot of an apartment complex near the victim’s house. The
State arrested Dominick and charged him with theft of means of
transportation, a class 3 felony.

¶4 Before trial, Dominick moved to preclude admission of the
passenger’s statements that “Terrence” was driving the vehicle and picked

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Decision of the Court

him up “at Elgin Park.” He argued the statements were inadmissible
hearsay and would violate his rights under the Confrontation Clause unless
the passenger testified. The State countered that the passenger’s statements
would be offered exclusively to show their effect on police, illustrating what
prompted them to search for a “Terrence” near Elgin Park. As such, the
passenger’s statements were not being submitted for their truth and were
not hearsay. The court agreed with the State and denied Dominick’s
motion.

¶5 At trial, the State offered evidence, on direct examination,
from two officers about the passenger’s statements. The officer who
investigated the suspect’s identity testified that he became aware at some
point that “the driver’s first name was Terrence.” Dominick did not object
to that testimony. Later, the officer who interviewed the passenger testified
that the passenger told him the driver’s first name was “Terrence” and
“Terrence picked him up at Elgin Park.” Dominick objected. The court
overruled the objection, declining to revisit its earlier ruling.

¶6 A jury found Dominick not guilty of theft of means of
transportation but found him guilty of unlawful use of means of
transportation, a lesser-included offense. The court sentenced Dominick to
five years’ imprisonment with 566 days of presentence incarceration credit.
He timely appealed, and we have jurisdiction under Arizona Revised
Statutes (“A.R.S.”) §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶7 As he did at trial, Dominick argues on appeal that the court
should have excluded the passenger’s statements under the hearsay rule
and the Confrontation Clause. The State argues Dominick criticized the
police investigation, thereby placing it in issue and justifying admission of
the passenger’s statements to show “how the investigation unfolded,”
which it asserts is a permissible non-hearsay use that did not invoke
Confrontation Clause rights to cross-examination. Dominick counters that
his critique of the investigation never challenged how police identified him
as a suspect.

¶8 When a defendant objects at trial to an alleged error, we may
consider such error under the harmless error standard. See State v.
Henderson, 210 Ariz. 561, 567, ¶ 18 (2005). The State establishes that an
alleged error was harmless if it can prove beyond a reasonable doubt that
the error “did not contribute to or affect the verdict or sentence.” Id. This
burden is met if the State demonstrates that “there is overwhelming

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Decision of the Court

additional evidence sufficient to establish the prosecution’s case.” State v.
Fulminante, 161 Ariz. 237, 245 (1988), aff’d, 499 U.S. 279 (1991).

¶9 We need not settle the parties’ dispute over admissibility of
the passenger’s statements because the State has established that even
disregarding the challenged testimony, “overwhelming additional
evidence” sufficiently established its case. Id.

¶10 To convict Dominick of unlawful use of means of
transportation, the jury needed to find that he “[k]nowingly [took]
unauthorized control over another person’s means of transportation.”
A.R.S. § 13-1803(A)(1). Overwhelming evidence outside of the passenger’s
statements established Dominick’s guilt of that offense. He admitted he
“had” the car; jurors could compare his appearance to the red-light camera
footage of the driver; and he did not dispute or otherwise challenge the
victim’s testimony that she did not know him or authorize him to have her
car. The passenger’s statement about being picked up by Dominick “at
Elgin Park” was arguably relevant to whether Dominick stole the vehicle.
But the jury ultimately acquitted him of that charge. And given Dominick’s
admissions and other unchallenged evidence, the statements were
immaterial to the jury’s determination of unlawful use.

CONCLUSION

¶11 We affirm Dominick’s conviction and resulting sentence.

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

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