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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DEANNA LELAND,

Plaintiff/Appellant,

v.

AUTO NATION HONDA CHANDLER, et al.,

Defendants/Appellees.

No. 1 CA-CV 19-0133 

Appeal from the Superior Court in Maricopa County

No. CV2016-096139

The Honorable David M. Talamante, Judge, Retired

AFFIRMED

COUNSEL

Goldberg & Osborne, LLP, Phoenix

By Ryan Lamb

Counsel for Plaintiff/Appellant

Stinson, LLP, Phoenix

By Lonnie J. Williams, Jr., Carrie M. Francis

Counsel for Defendants/Appellees

FILED 1-9-2020
LELAND v. AUTO NATION, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which 

Presiding Judge Kenton D. Jones and Judge James B. Morse Jr. joined.

J O H N S E N, Judge:

¶1 Deanna Leland appeals the judgment entered upon a jury

verdict in favor of AutoNation Honda Chandler ("AutoNation") and others 

in her personal-injury case. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Leland, Leland's mother, and Leland's sister, Wendy Navarro,

went to an AutoNation dealership to shop for a car.1 Because Leland's 

mother had trouble walking, an AutoNation sales associate, Elmer 

Orellana, drove the group around the car lot in one of the dealership's four

golf carts. Leland's mother sat in the front passenger seat and Navarro and 

Leland sat, unrestrained, in the cart's rear seat, which faced backward. 

After slowing the cart to allow the group to view some cars more closely, 

Orellana began to accelerate and Leland fell off the cart and onto the 

pavement, striking her head and sustaining injuries. Orellana contacted his 

supervisor, John Salazar, who called paramedics. Leland sued AutoNation, 

Orellana and others, alleging Orellana's negligence, imputed to 

AutoNation through respondeat superior, caused her to be thrown from the 

golf cart and injured.

¶3 Before trial, Leland moved in limine to preclude all evidence 

of her four prior felony convictions. The superior court denied the motion 

but ruled the defendants could advise the jury only "that Plaintiff ha[d] a 

felony conviction and of her release date from prison." Nonetheless, 

Leland's counsel opted to "draw the sting" by preemptively questioning 

Leland about all of her convictions during direct examination. On crossexamination, AutoNation's counsel further questioned Leland about the 

1 "[O]n appeal from a judgment entered on a jury verdict, this court 

must view the evidence in a light most favorable to the prevailing party and 

must give that party all the reasonable inferences arising from that 

favorable view of the evidence." Frazier v. Sw. Sav. & Loan Ass'n, 134 Ariz. 

12, 14 (App. 1982).
LELAND v. AUTO NATION, et al.

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3

nature of her four convictions (one count of shoplifting, two counts of 

solicitation to commit shoplifting and one count of possession of drug

paraphernalia).

¶4 Later in the trial, AutoNation offered in evidence 

photographs of golf carts it uses to drive customers around its lot. Leland 

objected, citing lack of foundation and arguing no witness had testified that 

any of the photographs depicted the golf cart involved in the incident. The 

superior court admitted the photographs. At the close of evidence, the 

superior court declined Leland's request for a jury instruction on spoliation 

of evidence regarding the golf cart from which she fell, finding Leland had 

not shown the cart was destroyed or otherwise unavailable for inspection.

¶5 The jury returned a unanimous verdict for AutoNation and 

the superior court entered final judgment against Leland. Leland timely 

appealed. We have jurisdiction pursuant to Article 6, Section 9, of the 

Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-

120.21(A)(1) (2020) and -2101(A)(1) (2020).2

DISCUSSION

¶6 We review the superior court's rulings on admission of 

evidence, including prior convictions, for an abuse of discretion. State v. 

Lopez, 234 Ariz. 465, 469, ¶ 19 (App. 2014) (evidence); State v. Beasley, 205 

Ariz. 334, 338, ¶ 19 (App. 2003) (prior convictions). We review the superior 

court's refusal to give a jury instruction for an abuse of discretion. State v. 

Lewis, 236 Ariz. 336, 346, ¶ 44 (App. 2014). We review questions of law de 

novo. Lopez, 234 Ariz. at 469, ¶ 19.

A. Admission of Leland's Prior Felony Conviction.

¶7 Leland argues the superior court erred by allowing evidence 

of her four prior felony convictions because any probative value of the 

convictions was substantially outweighed by unfair prejudice. In 

addressing this contention, we note that the court ruled that AutoNation 

could offer evidence of just one conviction; the jury heard about all of them 

only because Leland's counsel opened the door to the issue by choosing to 

ask her about more than one felony on direct examination.

¶8 Arizona Rule of Evidence 609 governs the admissibility of 

prior convictions offered to impeach a witness's credibility. Rule 609(a)(1)

2 Absent material revision after the relevant date, we cite the current 

version of a statute or rule.
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provides, in relevant part: "[F]or a crime that, in the convicting jurisdiction, 

was punishable by death or by imprisonment for more than one year, the 

evidence: (A) must be admitted, subject to Rule 403, in a civil case . . . ." In 

turn, Arizona Rule of Evidence 403 provides that "[t]he court may exclude 

relevant evidence if its probative value is substantially outweighed by a 

danger of one or more of the following: unfair prejudice, confusing the 

issues, misleading the jury, undue delay, wasting time, or needlessly 

presenting cumulative evidence." The superior court "has wide discretion" 

in deciding whether to admit evidence under Rule 609. Blankinship v. 

Duarte, 137 Ariz. 217, 219 (App. 1983).

¶9 Here, the court acted well within its discretion when it chose 

to allow the jury to be told that Leland was convicted of a felony and of the 

date she was released from incarceration. First, it is undisputed that 

Leland's convictions fell under Rule 609(a) because fewer than ten years 

had passed since her convictions or release from incarceration. See Ariz. R. 

Evid. 609(b). Thus, under Rule 609(a)(1)(A), the superior court was required

to admit the evidence subject to Rule 403's balancing test.

¶10 Second, the danger of unfair prejudice from the jury's learning 

of a single felony conviction did not substantially outweigh the probative 

value of that conviction. Evidence of Leland's prior felony was especially 

probative because her credibility was a central issue in the case. See 

Blankinship, 137 Ariz. at 220 (importance of witness credibility a factor to 

consider in Rule 609 analysis). Leland gave inconsistent accounts about the 

incident during her deposition and at trial concerning whether, for 

example, the golf cart was going around a corner at the time she fell off. 

She also testified the rear seat of the golf cart lacked seatbelts, contradicting 

a photograph of one of the dealership's golf carts in evidence. And Navarro

was the only other known witness who saw Leland fall. Whether 

AutoNation acted negligently therefore heavily depended on whether the 

jury believed Leland's testimony. As such, evidence that she had a felony 

conviction was highly probative.

¶11 Leland argues, however, that unfair prejudice resulted even 

though the court sanitized the evidence because it "allowed the jury to 

speculate as to why she was convicted and when her convictions took 

place." According to Leland, this left her little choice but to draw the sting 

by "delving into the details of each."

¶12 We are unpersuaded. "Our case law has consistently 

approved of sanitization as a means of limiting prejudicial effect." State v. 

Montano, 204 Ariz. 413, 426, ¶ 66 (2003). The superior court soundly 
LELAND v. AUTO NATION, et al.

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exercised its discretion to admit evidence of only one of Leland's prior 

convictions. That Leland's counsel opted to question her not just about one 

felony, as the superior court had allowed, evinces a deliberate trial strategy, 

not unfair prejudice.

¶13 Lastly, Leland's reliance on Blankinship is misplaced. We held 

there that the superior court erred by admitting evidence of the plaintiff's 

prior felony conviction under Rule 609. 137 Ariz. at 219-21. But that case is 

readily distinguishable because (1) the felony there was over ten years old 

and thus was subject to a much more stringent balancing test under Rule 

609, (2) the superior court admitted the evidence for improper purposes, 

not to impeach the witness's credibility, and (3) the plaintiff's credibility 

was not a crucial issue in the case. Id. None of those circumstances applies

here. Accordingly, we conclude the superior court did not abuse its 

discretion in ruling that AutoNation could offer evidence of one of Leland's 

prior felony convictions.

B. Admission of the Golf Cart Photographs.

¶14 Leland next argues the superior court erred by admitting the 

photographs of the golf carts because none of AutoNation's witnesses could 

identify which specific golf cart was involved in the incident. According to 

Leland, this caused prejudice because it gave the jury the impression "the 

golf cart Leland fell from was one of the golf carts depicted in those photos 

and had the safety features depicted in those photos."

¶15 "To satisfy the requirement of authenticating or identifying an 

item of evidence, the proponent must produce evidence sufficient to 

support a finding that the item is what the proponent claims it is." Ariz. R. 

Evid. 901(a). "For photographic or video evidence, the authenticating 

evidence frequently takes the form of witness testimony that the 

photograph or video accurately portrays whatever it purportedly depicts." 

State v. Haight-Gyuro, 218 Ariz. 356, 358, ¶ 9 (App. 2008). Applying those 

principles here, the appropriate inquiry is whether AutoNation provided 

"some evidence from which a jury could conclude" the photographs

accurately depicted the golf cart at the time of the incident. Id. at 359, ¶ 10.

¶16 AutoNation presented sufficient evidence from which the 

jury could conclude the golf carts in the photographs accurately 

represented the then-current condition of the cart from which Leland fell. 

See id. Although no one took a photograph of the specific golf cart on the 

day of the incident, AutoNation later photographed the dealership's carts 
LELAND v. AUTO NATION, et al.

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from different angles, and each photograph showed the rear seats were

equipped with safety features such as seatbelts and handrails.

¶17 At trial, Orellana testified the photographs showed the golf 

carts he had driven at the dealership and accurately represented the golf 

cart he was driving at the time of the incident. He also testified there were 

no differences among any of the dealership's four golf carts. In addition, 

Salazar testified the photographs showed the exact golf carts used by the 

dealership in August 2014, that the safety features in the photographs were 

present when the incident occurred, and that the dealership had not 

acquired any other carts since the incident. Based on this testimony, the 

jury could reasonably conclude that the photographs accurately 

represented the golf cart involved in the incident.

¶18 Leland contends, however, that because AutoNation did not 

isolate the subject golf cart, "it is unknown what changes may have occurred 

to that golf cart before the photos were taken." But Salazar testified 

AutoNation made no changes to the carts since August 2014, and the jury 

had discretion as the factfinder to decide whether to credit his testimony. 

See Harris v. Murch, 18 Ariz. App. 466, 467 (1972) ("[T]he credibility of the 

witnesses and the weight to be given their testimony are matters peculiarly 

within the province of the jury.").

¶19 Although Leland argues Henderson v. Breesman, 77 Ariz. 256 

(1954), should guide the result here, that case is inapposite. There, our 

supreme court affirmed the superior court's exclusion of a photograph of 

the plaintiff's car offered to show damages resulting from an accident, 

explaining "[t]here was evidence the car was not in the same condition as at 

the time of the accident" and deferring to the superior court's discretion. 

Henderson, 77 Ariz. at 262. In contrast, as noted, Salazar testified the 

dealership had made no changes to the golf carts since the date of Leland's 

fall. And, like the supreme court in Henderson, we must defer to the 

superior court's "sound discretion" in deciding to admit or exclude 

evidence. See State v. Meraz, 152 Ariz. 588, 589 (1987).

¶20 Last, Leland argues no foundation existed for admitting the 

photographs because Salazar could not testify to when they were taken. But 

Arizona law does not require a witness to identify the precise date a 

photograph was taken; the issue is whether evidence shows that the 

photograph accurately depicts its subject at the relevant time. See State v. 

Lee, 80 Ariz. 213, 214-15 (1956). In sum, we conclude the superior court did 

not abuse its discretion by admitting the photographs of the golf carts.
LELAND v. AUTO NATION, et al.

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C. Refusal to Give Spoliation Jury Instruction.

¶21 Leland finally argues the superior court erred by refusing to 

give the jury a spoliation instruction because AutoNation failed to 

segregate or preserve the golf cart involved in the incident. As a result, 

Leland argues this left the jury "with the impression that the photos 

accurately depicted the golf cart involved in the accident."

¶22 The superior court "must give a requested instruction if: (1) 

the evidence presented supports the instruction, (2) the instruction is 

proper under the law, and (3) the instruction pertains to an important issue, 

and the gist of the instruction is not given in any other instructions." 

DeMontiney v. Desert Minor Convalescent Ctr., Inc., 144 Ariz. 6, 10 (1985).

¶23 Spoliation is defined as "[t]he intentional destruction of 

evidence" or "[t]he destruction, or the significant and meaningful alteration 

of a document or instrument." McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 

244, 259, ¶ 51, n.15 (App. 2013) (citation omitted). Litigants have a duty to 

preserve relevant evidence. Souza v. Fred Carries Contracts, Inc., 191 Ariz. 

247, 250 (App. 1997). "When a party breaches that duty . . . a trial court has 

discretion to impose sanctions," including "instruct[ing] the jury that it may 

infer that destroyed evidence would have been unfavorable to the position 

of the offending party." McMurtry, 231 Ariz. at 260, ¶ 51. "In determining 

whether an adverse inference instruction is appropriate, the trial court has 

substantial discretion, but should consider any bad faith or intentional 

destruction and whether the loss of evidence prejudiced the party"

requesting the instruction. Id. (quotation omitted).

¶24 Here, a spoliation instruction was not appropriate because 

Leland offered no evidence that AutoNation destroyed, altered or 

otherwise failed to preserve the specific golf cart involved in the incident. 

As explained, supra ¶ 17, Orellana and Salazar testified that the dealership's 

four golf carts were identical to each other and had not changed since 

August 2014. Leland points to no evidence showing otherwise, and her 

assertions to the contrary amount to pure speculation. See DeMontiney, 144 

Ariz. at 9-10 (evidence must be presented to support requested jury 

instruction).

¶25 Further, the golf carts were available for Leland to inspect at 

any time, and she was free to argue or present her own evidence that the 

photographs of the golf carts did not accurately portray the cart from which 

she fell. See Strawberry Water Co. v. Paulsen, 220 Ariz. 401, 411, ¶ 30 (App. 

2008) (no abuse of discretion in denying spoliation instruction when
LELAND v. AUTO NATION, et al.

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plaintiffs could challenge opponent's evidence by introducing their own,

and remaining evidence was available for inspection). Therefore, we 

conclude the superior court did not abuse its discretion in declining to give 

a spoliation instruction.

CONCLUSION

¶26 For the above reasons, we affirm the superior court's 

judgment. We award AutoNation its costs on appeal, upon compliance 

with Arizona Rule of Civil Appellate Procedure 21. See A.R.S. § 12-342(A) 

(2020).