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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOHN RICHARD TACQUARD, Appellant.

No. 1 CA-CR 13-0916

Appeal from the Superior Court in Maricopa County

No. CR2012-133963-001

The Honorable Richard L. Nothwehr, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By William Scott Simon

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Stephen Whelihan

Counsel for Appellant
STATE v. TACQUARD

Decision of the Court

2

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which Judge 

Donn Kessler joined. Presiding Judge John C. Gemmill concurred in part 

and dissented in part.

J O N E S, Judge:

¶1 John Tacquard appeals his conviction and sentence for one 

count of theft of means of transportation. For the following reasons, we 

affirm. 

FACTS1 AND PROCEDURAL HISTORY

¶2 In June 2012, a Phoenix police officer initiated a traffic stop of 

a 1994 Jeep Cherokee (Jeep) driven by Tacquard, after a record check 

revealed the Jeep’s license plate was stolen. Tacquard was alone in the 

vehicle, and further investigation revealed the Jeep was also stolen. The 

vehicle had suffered “extensive damage” — the windshield was cracked, 

the key tumbler had been removed from the steering column leaving the 

column’s internal electronic wiring exposed, the column itself was cracked, 

and the radio and speakers and two interior door panels had been removed. 

Tacquard was arrested and charged with one count of theft of means of 

transportation.2 

¶3 Tacquard defended the charge, arguing he had no reason to 

know the Jeep was stolen when he borrowed it from a friend of a friend. 

Just before opening statements, the State orally moved to preclude any 

witness other than Tacquard from testifying about his belief regarding the 

Jeep’s legal status. The State argued only Tacquard’s state of mind was 

relevant, but conceded that if “he want[ed] to testify as to what some 

 

1 We view the evidence in the light most favorable to sustaining 

Tacquard’s conviction. State v. Butler, 230 Ariz. 465, 468, ¶ 2 (App. 2012). 

2 In pertinent part, “[a] person commits theft of means of 

transportation if, without lawful authority, the person knowingly . . . 

controls another person’s means of transportation knowing or having 

reason to know that the property is stolen.” Ariz. Rev. Stat. (A.R.S.) § 13-

1814(A)(5) (2015).
STATE v. TACQUARD

Decision of the Court

3

[people] may have told [him about the vehicle],” it may qualify as a hearsay 

exception.

¶4 In response, defense counsel stated he intended to offer

testimony that before taking the Jeep, Tacquard asked D.E., whom

Tacquard believed to be the owner, whether the vehicle was “legitimate,” 

to which D.E. responded, “yeah, there’s a bill of sale in the glove box.” 

Defense counsel also stated Tacquard’s long-time friend, A.M., would 

testify he saw a bill of sale in the glove box. Defense counsel argued the 

testimony was being offered to show Tacquard’s state of mind at the time 

he borrowed the Jeep, and the testimony of D.E. and A.M. was relevant to 

establish the fact that Tacquard was told the car was legitimate, and to 

corroborate Tacquard’s version of events.

¶5 The State argued the bill of sale itself, which was not found 

during an inventory search of the vehicle or offered into evidence, was a 

hearsay statement, and, therefore, any testimony regarding its existence 

should be precluded. The State agreed Tacquard could testify he saw a bill 

of sale because it “pertain[ed] to his state of mind potentially[,] as long as 

he didn’t get into any hearsay statements,” but reiterated that the state of 

mind or knowledge of others regarding transactions involving the Jeep was 

irrelevant and hearsay. 

¶6 The trial court granted defense counsel permission to argue

in his opening statement, if he had a good faith basis for doing so, that 

Tacquard himself claimed to see the bill of sale, but noted the bill of sale 

was hearsay and he might be taking a risk in arguing something he may not 

be able to show during trial. Neither party argued the bill of sale in its 

opening statement. 

¶7 The parties, however, broached the subject to the trial court 

again the next day. While defense counsel focused upon whether testimony 

relating to the existence of a bill of sale from witnesses other than Tacquard 

was hearsay, the court was more concerned about whether other 

individuals’ knowledge was relevant without some indication the 

information had been provided to Tacquard. At this juncture, the State 

noted Tacquard could take the stand and say he saw or heard something, 

which under ordinary circumstances might be hearsay, but here would 

relate to his state of mind. However, any other person testifying to his or 

her knowledge of transactions concerning the Jeep, or to the existence of the 

bill of sale was precluded on relevancy and hearsay grounds. The court 

reversed its earlier conclusion regarding the bill of sale, finding that 

testimony that someone saw the document was not necessarily hearsay, but 
STATE v. TACQUARD

Decision of the Court

4

would not allow any witness, other than Tacquard, to testify to his

knowledge of the vehicle without some link showing the testimony was 

relevant to Tacquard’s state of mind. 

¶8 Tacquard testified in his own defense. He explained he

borrowed the Jeep from D.E. twenty minutes before being stopped by 

police. He testified that before he took the vehicle, he asked D.E., “is 

everything cool with this vehicle[?]” and D.E. responded, “Yeah, yeah.” 

When Tacquard attempted to testify D.E. also told him a bill of sale was in 

the glove box, the State objected on hearsay grounds and, after limited 

discussion, the matter was dropped without having been ruled upon.

3 A 

few moments later, in apparent explanation of his earlier testimony, 

Tacquard said it was the condition of the vehicle that prompted him to ask 

D.E., “is this vehicle cool[?] Is everything working?” Tacquard again 

attempted to testify as to D.E.’s reference to the bill of sale, but the trial court 

sustained the State’s hearsay objection. 

¶9 Tacquard admitted he did not look inside the vehicle before 

he borrowed it, and although he asserted A.M. looked inside the glove box, 

Tacquard testified he did not talk to A.M. about anything A.M. may have 

seen in the glove box. 

¶10 A.M. also testified on behalf of Tacquard. He testified he was

in the vehicle when Tacquard initially acquired it and searched the glove 

box for insurance paperwork. When he attempted to testify that he saw “a 

piece of paper with a notary stamp on the bottom,” the State objected on 

hearsay grounds, which the trial court sustained. Following A.M.’s 

testimony, the trial court explained, for the record, that although the State 

objected upon hearsay grounds, it sustained the objection upon general 

relevancy grounds because Tacquard did not testify to having seen or 

known any paperwork was in the glove box. 

¶11 Following trial, a jury convicted Tacquard as charged. The 

trial court found Tacquard had two prior historical felonies, and sentenced 

 

3 Following the State’s objection, the trial court stated, seemingly to 

Tacquard: “For the moment it was his own statement. You are only 

supposed to tell us what” — at which point Tacquard interrupted, stating 

“Okay.” The State’s pending objection was not thereafter ruled upon. For 

purposes of this appeal, the parties consider the court’s treatment of the 

matter as indicating the State’s objection was sustained. 
STATE v. TACQUARD

Decision of the Court

5

him to the presumptive prison term of 11.75 years. Tacquard timely 

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

Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1),

4 -2101(A)(1), 13-4031, 

and -4033(A)(1). 

DISCUSSION

¶12 Tacquard argues the trial court abused its discretion by: (1)

precluding Tacquard from testifying D.E. told him the Jeep was 

“legitimate” and there was a bill of sale in the Jeep’s glove box; and (2) 

precluding A.M.’s testimony that he saw a piece of paper containing a 

notary stamp in the Jeep’s glove box. We review evidentiary rulings for an 

abuse of discretion. State v. Garza, 216 Ariz. 56, 66, ¶ 37 (2007) (citing State 

v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006)). 

I. Tacquard’s Testimony

¶13 Tacquard argues the trial court should have allowed him to 

testify to having been told by D.E. that the vehicle was “legitimate” and 

contained a bill of sale in the glove box. Specifically, he argues the 

statements were not hearsay because they were not offered to prove the 

truth of the matter asserted — i.e., that the car was not actually stolen or

there was a bill of sale in the glove box — but rather to explain Tacquard’s 

state of mind, and purported belief that his friend rightfully possessed the 

Jeep, at the time Tacquard took possession. 

¶14 Hearsay is a “‘statement, other than one made by the 

declarant while testifying at the trial or hearing, offered in evidence to 

prove the truth of the matter asserted.’” State v. Rivera, 139 Ariz. 409, 410-

11 (1984) (quoting Ariz. R. Evid. 801(c)). “Words offered to prove the effect 

on the hearer” are not hearsay, and “are admissible when they are offered 

to show their effect on one whose conduct is at issue.” State v. Hernandez, 

170 Ariz. 301, 306 (App. 1991) (citing Rivera, 139 Ariz. at 409, 414). 

¶15 Here, D.E.’s statements were not offered as proof of the matter 

asserted: that D.E. possessed legal title to the Jeep, or that a bill of sale was 

actually in the glove box. Indeed, Tacquard did not dispute the Jeep was 

stolen. Rather, D.E.’s statements were offered to explain why Tacquard 

believed it was all right for him to take possession of the vehicle. Therefore, 

the offered testimony was not hearsay and was admissible for the limited 

 

4 Absent material revisions from the relevant date, we cite a statute’s 

current version. 
STATE v. TACQUARD

Decision of the Court

6

purpose of demonstrating Tacquard’s state of mind. See State v. Schmid, 109 

Ariz. 349, 355 (1973) (finding statements introduced to demonstrate their 

effect on the hearer, and not to prove the truth of the words offered, are 

admissible to show a defendant’s state of mind). 

¶16 Having concluded exclusion of the statements was error, we 

turn to whether that error was harmless. See State v. Ellison, 213 Ariz. 116, 

131, ¶ 51 (2006); State v. Alvarez, 228 Ariz. 579, 581, ¶ 8 (App. 2012). Under 

harmless error review, we will affirm a conviction “if the state, ‘in light of 

all the evidence,’ can establish beyond a reasonable doubt the error did not 

contribute to or affect the verdict.” State v. Valverde, 220 Ariz. 582, 585, ¶ 11 

(2009) (quoting State v. Bible, 175 Ariz. 549, 588 (1993)). The relevant inquiry 

is “‘whether the guilty verdict actually rendered in this trial was surely 

unattributable to the error.’” Id. (quoting State v. Anthony, 218 Ariz. 439, 

446, ¶ 39 (2008)). 

¶17 The record reflects Tacquard had ample reason to know the 

Jeep was stolen, and the exclusion of his testimony regarding his 

conversation with D.E. did not affect the verdict. The arresting officer 

testified that, in response to his questioning as to whether Tacquard knew 

the Jeep was stolen, Tacquard stated “he didn’t care as long as it got him 

from point A to point B.” Moreover, the officer testified Tacquard admitted 

having started the vehicle with a “screwdriver type tool,” which the officer 

explained is commonly the case with stolen vehicles. Officers located two 

screwdrivers and two pairs of needle-nose pliers in the vehicle; a key was 

never located.

5 Another officer testified that the type of damage the interior 

of the Jeep had suffered — specifically, the forcibly removed key tumbler 

and cracked steering column — was commonly found in stolen vehicles. 

The condition of the Jeep alone apparently caused Tacquard sufficient

concern to prompt him to ask whether the vehicle was “cool,”6 even before 

he proceeded to start the vehicle with a screwdriver. Furthermore, 

 

5 Tacquard testified he only received a “broken piece of a key” from 

D.E. that did not have “teeth and grooves” on it, but was just the “tab” of 

the key. 

6 The record is unclear as to whether Tacquard was inquiring as to the 

mechanical operability, or the legal status, of the Jeep. Viewing the facts in 

the light most favorable to sustaining the conviction, this testimony 

supports the inference that Tacquard was aware, simply from the physical 

appearance of the Jeep, that it was not, in fact, cool. 
STATE v. TACQUARD

Decision of the Court

7

Tacquard testified he was aware both D.E. and A.M. had histories of 

involvement with law enforcement. 

¶18 Although Tacquard’s testimony was relevant in determining 

whether he knew the vehicle was stolen, it could not overcome or explain 

away the myriad of other circumstances that provided him reason to know 

the Jeep was stolen. And, Tacquard was apparently prepared to testify only 

that D.E. told him a bill of sale was in the glove box — not that the bill of 

sale applied to the Jeep or was issued to D.E. Because we can say beyond 

any reasonable doubt that the error did not contribute to the verdict, we 

find the exclusion of Tacquard’s testimony was harmless. 

II. A.M.’s Testimony 

¶19 Next, Tacquard argues the trial court abused its discretion by 

precluding A.M. from testifying to having seen a bill of sale in the glove box

of the Jeep on relevancy grounds. “[W]e review the trial court’s 

determination of the relevancy and admissibility of evidence for abuse of 

discretion.” State v. Rutledge, 205 Ariz. 7, 10, ¶ 15 (2003) (citing State v. 

Amaya-Ruiz, 166 Ariz. 152, 167 (1990)). A court abuses its discretion when 

“the reasons given by the court for its action are clearly untenable, legally 

incorrect, or amount to a denial of justice.” State v. Mieg, 225 Ariz. 445, 447, 

¶ 9 (App. 2010) (internal quotation and citation omitted). 

¶20 Under Arizona Rule of Evidence 401, evidence is relevant if: 

“(a) it has any tendency to make a fact more or less probable than it would 

be without the evidence; and (b) the fact is of consequence in determining 

the action.” Tacquard argues testimony from A.M., that A.M. had seen a 

bill of sale in the glove box, tended to make it more probable that D.E. 

actually told Tacquard the bill of sale was in the glove box. But as the trial 

court ruled, what A.M. saw had no relevance to the charge in the case: 

whether Tacquard knew or had reason to know the Jeep was stolen. 

¶21 The only fact of consequence here is whether Tacquard drove 

the vehicle with a legitimate belief that D.E. was its rightful owner. 

Tacquard testified that while he saw A.M. check the glove box, he did not 

have any conversations with A.M. about what may have been located there. 

Nor did he look in the glove box himself to confirm D.E.’s statements or 

direct A.M. to do so. Because A.M.’s observations were never relayed to 

Tacquard, they could not have bolstered Tacquard’s reliance on D.E.’s 

statements, or impacted his state of mind as to that issue. Moreover, 

according to A.M., he was not acting to confirm D.E.’s statements or under 

Tacquard’s direction, but just happened to notice a bill of sale while looking 
STATE v. TACQUARD

Decision of the Court

8

in the glove box for another purpose. With no nexus between what A.M. 

saw and Tacquard’s knowledge, the testimony is of A.M. is irrelevant.

¶22 Therefore, the trial court did not abuse it discretion in 

excluding A.M.’s testimony regarding his observation of the bill of sale in 

the glove box as irrelevant. 

CONCLUSION

¶23 For the foregoing reasons, we affirm Tacquard’s conviction 

and sentence. 

G E M M I L L, Judge, concurring in part and dissenting in part,

¶24 I respectfully dissent because I disagree with the majority’s 

harmless error analysis regarding the exclusion of Tacquard’s testimony of 

what D.E. said to him about the status of the vehicle. See supra ¶ 4. I agree 

with the majority’s resolution of the issue regarding A.M.’s testimony. 

¶25 The majority correctly concludes that the trial court erred in 

sustaining the State’s objection when Tacquard attempted to testify that 

D.E. had told him the Jeep was legitimate and there was a bill of sale in the 

glove box. See supra ¶¶ 4, 8, 15. This evidence was not hearsay because it 

was offered as evidence of Tacquard’s state of mind. Because Tacquard’s 

defense was that he neither knew nor had reason to know that the Jeep was 

stolen, the evidence was crucial. The majority errs, I respectfully submit, 

by deciding the erroneous exclusion of this evidence was harmless beyond 

a reasonable doubt.

¶26 Although there is ample evidence supporting the jury’s 

determination of guilt, this wrongly excluded evidence went to the heart of 

Tacquard’s defense: that he did not knowingly control another person’s 

means of transportation. When the evidence of guilt is overwhelming and 

the erroneously excluded or admitted evidence does not affect the central 

issue determining guilt, it is easier to conclude that harmless error has 

occurred. In this instance, however, the excluded evidence was the primary 

component of Tacquard’s defense, and I cannot say beyond a reasonable 

doubt that this error did not contribute to or affect the jury’s verdict. 

¶27 It is difficult for an appellate court to assess the weight, 

credibility, and potential significance of excluded evidence. If Tacquard 

had been allowed to explain what D.E. had told him, the jury may have 
STATE v. TACQUARD

Gemmill, J. Concurring in part and Dissenting in part

9

chosen to believe him and reached a different result. That we may assess 

an acquittal to be unlikely does not automatically mean that the error was 

harmless. As the United States Supreme Court has explained: 

From presuming too often all errors to be “prejudicial,” the 

judicial pendulum need not swing to presuming all errors to 

be “harmless” if only the appellate court is left without doubt 

that one who claims its corrective process is, after all, guilty. 

In view of the place of importance that trial by jury has in our 

Bill of Rights, it is not to be supposed that Congress intended 

to substitute the belief of appellate judges in the guilt of an 

accused, however[] justifiably engendered by the dead 

record, for ascertainment of guilt by a jury under appropriate 

judicial guidance, however cumbersome that process may be.

Bollenbach v. United States, 326 U.S. 607, 615 (1946).

¶28 Because I cannot conclude that the error was harmless beyond 

a reasonable doubt, I would reverse and remand for a new trial.