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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY, Maricopa

County Attorney, Petitioner ,

v.
THE HONORABLE JOSE PADILLA, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA , Respondent Judge,

MATTHEW COLVIN, Real Party in Interest.

No. 1 CA

- SA 16

- 0148

Petition for Special Action from the Superior Court in Maricopa County

No. CR2015

- 153609

- 001 DT The Honorable Jose S. Padilla , Judge
JURISDICTION ACCEPTE D; RELIEF GRANTED

COUNSEL
Maricopa County Attorney’s Office , Phoenix By Adena J. Astrowsky Counsel for P etitioner
Law Office of Carrie M. Spiller , PLLC , Phoenix By Carrie M. Spiller C ounsel for Real Party in InterestSTATE v. HON. PADILLA/COLVIN Decision of the Court

2 MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Samuel A. Thumma joined.

J O N E S , Judge:

¶1 The State petitions for special action review of the trial court’s order determining audio recording s of a victim’s 9

- 1

- 1 telephone call s w ere cumulative and , therefore, inadmissible. For the following reasons, we accept jurisdiction and grant relief by vacating the court’s order.

FACTS AND PROCEDURAL HISTORY
¶2 In the cour se of its prosecution of Matthew Colvin for the alleged unlawful imprisonment and assault of Lisa F. , the State disclosed audio recording s of two 9

- 1

- 1 telephone calls made by Lisa and a return call initiated by the dispatcher after Lisa disconnected the second call

. The calls were all made during the course of events that gave rise to the charges against Colvin. A t a bench conference held during voir dire, the trial court entered an order precluding the audio recordings of the 9

- 1

- 1 telephone calls on the basis that they would be cumulative to Lisa’s anticipated trial testimony. 1 The court did so on its own motion, without listening to the recordings, holding a hear ing, or permitting the parties to provide additional briefing or argument on their admissibility.
¶3 The State made an unsuccessful motion for reconsideration, and this petition followed. In the exercise of our discretion, w e accept jurisdiction , recognizi ng the State has no adequate remedy by appeal. See Ariz. R.P. Spec. Act. 1(a); State ex rel. Romley v. Fields , 201 Ariz. 321, 323, ¶ 4 (App. 2001) ; see also Ariz. Rev. Stat. § 13

- 4032 (2016); Rolph v. Mesa City

1 Colvin argues the trial court never ruled on the admissibility of the 9

- 1

- 1 recordings, instead offering only its “leanings toward the [ ir ] admissibility.” However, the State clearly evidenced its understanding that a ruling had been made when it filed a “Motion to Reconsider Court’s Order Precluding 911 Evidence as Cumulative.” And, in summarily denying the motion to reconsider , the court offered no explanation to suggest it considered the issue unresolved or the motion premature.STATE v. HON. PADILLA/COLVIN Decision of the Court

3 Court , 127 Ariz. 155, 158 (1980) (“The state is not authorized to appeal from a judgment of acquittal . . . even though ‘the acquittal was based upon an egregiously erroneous foundation.’”) (quoting Arizona v. Washington , 434 U.S. 497, 503 (1978))

.
DISCUSSION
¶4 The State argues the trial court’s order precluding the 9

- 1

- 1 calls was error. We review evidentiary rulings for an abuse of discretion. State ex rel. Montgomery v. Padilla , 238 Ariz. 560, 564, ¶ 12 (App. 2015) (citing State v. Bernstein , 237 Ariz. 226, 228, ¶ 9 (2015)). A trial court abuses its discretion when a “discretionary conclusion was reached without consideration of the evidence.” Grant v. Ariz. Pub

. Serv. Co. , 133 Ariz. 434, 455

- 56 (1982) (supplemental op

. ) (citing Knol l miller v. Welch , 128 Ariz. 34 , 36

- 37 (App. 1980)).
¶5 There is no apparent dispute regarding the relevancy of the 9

- 1

- 1 calls ; therefore, they are admissible unless there is some basis to exclude them

. See Ariz. R. Evid. 402. R elevant evidence may be excluded “if its proba tive value is substantially outweighed by a danger of . . . needlessly presenting cumulative evidence.” Ariz. R. Evid. 403. The balancing test contemplated by Rule 403 is a fact

- and context

- intensive inquiry, requiring examination of various factors, in cluding the specific relevant evidence at issue , the other evidence received at trial , and the nature of the charges

. See Hudgins v. Sw. Airlines
, Co. , 221 Ariz. 472, 481, ¶ 13 (App. 2009) (noting

“ ‘ probative value’ and ‘the danger of unfair prejudice’ ar e not easily quantifiable factors”) (citing State v. Gibson , 202 Ariz. 321, 324, ¶ 17 (2002)). Generally, the trial court is in the best position to perform this balancing
test

. State v. Spencer , 176 Ariz. 36, 41 (1993) (“Rule 403 weighing is best left
t o the trial court.”) (citing State v. Robles , 135 Ariz. 92, 95 (1983)).
¶6 T he trial court here precluded the 9

- 1

- 1 calls without knowing either the substance of Lisa’s trial testimony or the contents of the recordings

. The court did not make and , without having reviewed th is information, could not have made, any findings regarding the probative value of the calls or the extent to which the ir content would overlap with , rather than corroborate , Lisa’s proposed testimony. This record does not refle ct a proper balancing in finding the calls inadmissible under Rule 403. Nor could the court properly evaluate whether Lisa’s statements within the 9

- 1

- 1 calls were separately admissible as a present sense impression or an excited utterance pursuant to Ari zona Rule of Evidence 803(1) and (2) without having heard them. For these reasons, the court had no basis upon which to make an admissibility determination and thereby erred

.STATE v. HON. PADILLA/COLVIN Decision of the Court

4 CONCLUSION
¶7 We accept jurisdiction and grant relief by vacating the trial court’s order.