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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GENE EVAN WILENCHIK, Appellant.

No. 1 CA-CR 17-0802 

Appeal from the Superior Court in Maricopa County

No. CR2015-147202-001

The Honorable William R. Wingard, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Jennifer L. Holder

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Rena P. Glitsos

Counsel for Appellant

FILED 3-5-2019
STATE v. WILENCHIK

Decision of the Court

2

MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which 

Presiding Judge David D. Weinzweig and Judge Kent E. Cattani joined.

B E E N E, Judge:

¶1 After having been found guilty of burglary and theft, Gene 

Evan Wilenchik (“Wilenchik”) appeals his conviction and argues the 

superior court erred by permitting unduly prejudicial testimony at trial. 

For the reasons stated below, we affirm Wilenchik’s convictions and 

sentences.

FACTS AND PROCEDURAL HISTORY

¶2 On October 2, 2015, a Circle K surveillance video captured an 

individual entering the store, moving behind the sales counter into an 

employee-only area, and putting cartons of cigarettes into a blue pouch. 

The store clerk, E.W., saw the individual remove the cartons and notified 

police via a 9-1-1 call. Additionally, an off-duty police officer saw a person 

loading a “bag of some sort . . . into the [t]runk” of a vehicle located in the 

Circle K parking lot and then leave “at a high rate of speed.” The off-duty 

officer notified police dispatch and provided a description of the vehicle.

¶3 Based on the Circle K surveillance video and knowledge of 

another investigation, Officers Molenkamp and Freyberger recognized the

individual in the video and his vehicle, a gold Hyundai. Officers used MVD 

records to confirm Wilenchik’s identity, apartment address, and vehicle 

ownership. E.W. subsequently identified Wilenchik from the surveillance 

video and a photo lineup as the person who took the items from the Circle 

K.

¶4 During a police interview, Wilenchik admitted he took 

approximately 13 cartons of cigarettes from behind the counter and put 

them in his car with the intent to sell them. Wilenchik also admitted he was 

the person in the Circle K surveillance video and repeatedly stated he kept 

waiting for police to contact him about the October 2 incident.

¶5 The State charged Wilenchik with one count of burglary, a 

Class 4 felony, and one count of theft, a Class 6 felony.
STATE v. WILENCHIK

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¶6 During trial, Wilenchik first raised the issue of his prior police 

contact and requested “that previous contact [of Wilenchik with the police] 

should not be discussed.” In response, the State agreed to “sanitize” Officer 

Freyberger’s testimony, but also asked the court not to “preclude mention 

of any previous contact,” so that the State could explain how the police 

established Wilenchik’s identity based on the surveillance video and the 

MVD records. Because Officer Freyberger was not scheduled to testify until 

the next day, the trial proceeded without the court ruling on the issue.

¶7 Two officers subsequently testified and each mentioned the 

phrase “investigative lead” during his testimony. The first statement 

referenced Wilenchik as “an investigative lead [in] another case.” The 

second statement mentioned Wilenchik as a named “investigative lead” as 

connected to the current case through a vehicle description.

¶8 After these statements were made, Wilenchik’s counsel asked 

to approach the bench. The parties discussed the content of the second 

statement and established that this testimony referenced the current case. 

The court again declined to make a ruling and stated, “I don’t think [the 

objection] needs a ruling[]. I understand your concern, and I’m sure [the 

State] is going to be very careful with [future verbiage].”

¶9 Later, outside the presence of the jury, Wilenchik’s counsel 

requested “that the State not refer again to the issue of identification as far 

as this investigative lead.” The parties eventually agreed that the State’s 

witnesses would testify that they “recognize[d] him from the 

neighborhood,” rather than as an “investigative lead.” The trial concluded 

without further testimony referencing Wilenchik as an “investigative lead.”

¶10 The jury found Wilenchik guilty as charged, and he was 

sentenced to nine years in prison. Wilenchik 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), 13-4031, 

and -4033(A)(1).

DISCUSSION

I. Wilenchik Preserved His Objection to the Officers’ Testimony.

¶11 The State asserts that Wilenchik failed to preserve for appeal 

the issue of the officers’ testimony pertaining to Wilenchik as an 

“investigative lead” and, therefore, our review is not subject to an abuse of 

discretion standard. To claim an error on admission of evidence, a party 

must timely object or move to strike and also state a specific ground for the 
STATE v. WILENCHIK

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objection. Ariz. R. Evid. 103(a). “[A] specific word is not required to make 

an objection or to preserve an issue for appeal.” State v. Foshay, 239 Ariz. 

271, 277, ¶ 27 (App. 2016) (citation omitted).

¶12 Here, Wilenchik requested that his previous contact with the 

police not be discussed and objected to specific testimony that mentioned 

the contact. Supra, ¶¶ 6-9. Additionally, on multiple occasions, the parties 

discussed the implications of testimony relating to Wilenchik’s prior police 

contact, and the State agreed to “sanitize” witness testimony on this issue. 

Supra, ¶¶ 6, 8.

¶13 Thus, the record provides sufficient evidence that Wilenchik 

raised the issue. Therefore, we review the admission of prior act evidence 

under Rule 404(b) for abuse of discretion. State v. Scott, 243 Ariz. 183, 187, 

¶ 14 (App. 2017) (citations omitted).

II. The Court Properly Admitted the Officers’ Testimony.

¶14 Generally, Rule 404(b) provides that evidence of other crimes, 

wrongs, or acts is not admissible to prove conformity with a character trait 

but may be admissible for other purposes, such as proving identity. Ariz. 

R. Evid. 404(b). “The purpose of Rule 404(b) is to keep from the jury 

evidence that the defendant is prone to commit crimes or is otherwise a bad 

person.” State v. Hardy, 230 Ariz. 281, 289, ¶ 34 (2012) (citation omitted). 

Moreover, “[t]he court may exclude relevant evidence if its probative value 

is substantially outweighed by a danger of . . . unfair prejudice.” Ariz. R. 

Evid. 403.

¶15 Here, Wilenchik claims he was prejudiced by the testimony 

that he was an “investigative lead.” One officer, however, testified that 

Wilenchik was a named “investigative lead” in the current case. This 

statement does not relate to “other crimes, wrongs, or acts” and is not 

covered by Rule 404(b). (Emphasis added.) The other officer mentioned 

that the vehicle in the current case “kind of reminded [him] of another 

vehicle where there was an investigative lead from another case.”

¶16 This testimony, however, was presented to rebut Wilenchik’s 

“mistaken identity” defense and show that Wilenchik was the individual 

depicted in the Circle K surveillance video. See State v. Padilla, 122 Ariz. 

378, 379 (1979) (holding the testimony about the defendant’s prior drug 

contacts with an undercover officer was admissible under Rule 404(b) 

because he had “given notice of a defense of mistaken identity” and the 

evidence “tended to prove the accuracy of the identification of [the 

defendant] by the officers”); State v. Lamar, 144 Ariz. 490, 497 (App. 1984) 
STATE v. WILENCHIK

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(“However, evidence of prior bad acts, another offense or misconduct, is 

admissible to show the complete story even though other prejudicial facts 

are revealed thereby.”). Thus, this testimony was admissible under Rule 

404(b).

¶17 Wilenchik also claims that, in establishing identity, the 

witnesses testified to additional information that was unfairly prejudicial. 

The court has discretion to exclude otherwise admissible evidence “if its 

probative value is substantially outweighed by a danger of . . . unfair 

prejudice.” Ariz. R. Evid. 403. “The danger to be avoided by excluding 

evidence of other offenses is that the jury may conclude that the defendant 

is a ‘bad man’ and convict on lesser evidence than would ordinarily be 

necessary to support a conviction.“ State v. Brown, 125 Ariz. 160, 161 (1980) 

(quoting State v. Babineaux, 22 Ariz. App. 322, 325 (App. 1974)). However, 

“not all harmful evidence is unfairly prejudicial,” State v. Shurz, 176 Ariz. 

46, 52 (1993), and, although “evidence that makes a defendant look bad may 

be prejudicial in the eyes of jurors, it is not necessarily unfairly so,” State v. 

Guarino, 238 Ariz. 437, 440, ¶ 9 (2015) (citation omitted).

¶18 Here, the questioned testimony linked the description of the 

vehicle in the current case to a vehicle description that was an investigative 

lead in another case. Such a vague, unproven link to a vehicle, rather than 

to a person, and without an indication that the investigative lead related to 

a similar crime, would not encourage the jury to assume Wilenchik was “a 

‘bad man’ and [therefore] convict on lesser evidence.” See Brown, 125 Ariz. 

at 161. Accordingly, the superior court did not abuse its discretion in 

permitting this testimony. See State v. Jones, 197 Ariz. 290, 305, ¶ 34 (2000) 

(recognizing that “testimony about prior bad acts does not necessarily 

provide grounds for reversal”).

¶19 Moreover, any arguable error in permitting the testimony at 

issue was harmless. The reference to a vehicle being similar to a vehicle 

where there was an investigative lead from another case was not repeated 

or emphasized, and was not otherwise used to establish guilt. Indeed, here 

there was overwhelming evidence of guilt: two eye witnesses to the offense, 

a surveillance video, and Wilenchik’s own inculpatory statements. Supra, 

¶¶ 2-4. Accordingly, any possible error was harmless.
STATE v. WILENCHIK

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CONCLUSION

¶20 For the foregoing reasons, we affirm Wilenchik’s convictions 

and sentences.