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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

TIMOTHY JOHN CARSLAKE, Appellant. 

No. 1 CA-CR 23-0383 

Appeal from the Superior Court in Mohave County 

No. S8015CR202201327 

The Honorable Derek C. Carlisle, Judge 

AFFIRMED 

COUNSEL 

Arizona Attorney General’s Office, Phoenix 

By Alice M. Jones 

Counsel for Appellee 

Zachary Law Group, PLC, Phoenix 

By Jessica Zachary 

Counsel for Appellant

FILED 09-12-2024
STATE v. CARSLAKE 

Decision of the Court 

2 

MEMORANDUM DECISION 

Judge Anni Hill Foster delivered the decision of the Court, in which 

Presiding Judge Cynthia J. Bailey and Judge Angela K. Paton joined. 

F O S T E R, Judge: 

¶1 Timothy Carslake appeals his convictions for failure to 

comply with sex offender registration requirements as a transient, in 

violation of A.R.S. § 13-3822(A), and failure to comply with the sex offender 

identification requirement, in violation of A.R.S. § 13-3821(J). This Court 

affirms for the reasons below. 

FACTS AND PROCEDURAL HISTORY 

¶2 In November 2022, Carslake was arrested in Arizona on a 

warrant issued in California for a parole violation. While awaiting 

processing at the police station, Carslake acknowledged to the arresting 

officer that he failed to register as a sex offender as required by a prior 

Colorado conviction. He claimed the requirement was unfair and he would 

not comply with it. Further investigation showed that Carslake was living 

as a transient and working in Arizona. The State subsequently charged him 

with one count of failure to register as a transient sex offender and one 

count of failure to obtain identification as mandated by sex offender 

registration laws. See A.R.S. §§ 13-3822(A), 13-3821(J), and 13-3824. Carslake 

pled not guilty to both charges. 

¶3 At trial, the State introduced evidence to prove Carslake’s 

prior conviction in Colorado required him to register as a sex offender. The 

State also introduced evidence that he failed both to register and carry 

proper sex offender identification as Arizona requires. Carslake did not 

object to the introduction of this evidence. 

¶4 After the court provided jury instructions, which included a 

limiting instruction as to Carslake’s prior convictions, the jury found 

Carslake guilty on both counts. Carslake timely appealed. This Court has 

jurisdiction under Ariz. R. Crim. P. 31 and A.R.S. §§ 12-120.21(A)(1), 13-

4031, and -4033(A)(1). 
STATE v. CARSLAKE 

Decision of the Court 

3 

DISCUSSION 

¶5 On appeal, Carslake argues the trial court erred by allowing 

testimony and exhibits regarding his warrants, parole, absconder, and 

fugitive status at the time of his arrest. He also contends the court erred by 

failing to conduct bench conferences on the record. 

¶6 Because Carslake did not object to these alleged errors in the 

superior court, he must show fundamental error. State v. Escalante, 245 Ariz. 

135, 140, ¶ 12 (2018). To prevail under fundamental error review, a 

defendant must show: (1) the superior court erred, and (2) the error was 

fundamental—meaning “the error went to the foundation of the case, . . . 

took from the defendant a right essential to his defense, or . . . was so 

egregious that he could not possibly have received a fair trial.” Id. at 142, 

¶ 21 (emphasis omitted). If the error went to the foundation of the case or 

took away an essential right to the defendant’s defense, the defendant must 

also show prejudice; if he shows the error was so egregious that he could 

not possibly have received a fair trial, prejudice is presumed. Id. 

¶7 “Establishing prejudice from fundamental error varies 

depending on the nature of the error and the unique case facts.” Id. at 144, 

¶ 29. Prejudice is determined under an objective standard, requiring a 

defendant to show that “without the error, a reasonable jury could have 

plausibly and intelligently returned a different verdict.” Id. at ¶ 31. In 

reviewing whether a defendant has made the requisite showing, a 

reviewing court “should examine the entire record, including the parties’ 

theories and arguments as well as the trial evidence.” State v. Murray, 250 

Ariz. 543, 552, ¶ 30 (2021) (internal quotations omitted). Also pertinent to 

this inquiry is “the amount of error-free evidence” in support of the guilty 

verdict. State v. Fierro, 254 Ariz. 35, 41–42, ¶ 21 (2022) (internal quotations 

omitted). 

A. Although the State’s failure to provide notice is error, it does not 

constitute fundamental error because Carslake showed no prejudice. 

¶8 Carslake contends that because the State did not give him 

proper notice under Arizona Rule of Evidence (“Rule”) 404(b)(3) the court 

improperly admitted evidence of his criminal history. But Carslake argues 

only that the admitted evidence was highly prejudicial and unnecessary 

given that the State had already argued a motive in this case. He does not 

establish prejudice. 
STATE v. CARSLAKE 

Decision of the Court 

4 

1. The State failed to provide notice. 

¶9 Because the notice requirement serves as a condition 

precedent to admissibility of Rule 404(b) evidence, the offered evidence is 

inadmissible if the court decides that the notice requirement was not met. 

The State conceded that proper notice under Rule 404(b)(3) was not 

provided regarding the other act evidence. This failure was error, but as 

noted above, the analysis does not stop there. 

¶10 Prejudice may exist “if the evidence has an undue tendency 

to suggest decision on an improper basis, such as emotion, sympathy, or 

horror.” State v. Mott, 187 Ariz. 536, 545 (1997). The prejudicial impact must 

substantially outweigh its probative value, and “because the trial court is in 

the best position to balance the probative value of the challenged evidence 

against its potential for unfair prejudice, it has broad discretion to make that 

determination.” State v. Salamanca, 233 Ariz. 292, 296, ¶ 17 (App. 2013) 

(cleaned up). 

¶11 Here, Carslake filed a motion in limine five days before trial, 

which demonstrates he knew that the State might present evidence of his 

prior convictions at trial. The court heard oral argument on his motion, 

including Carslake’s concession that the information relating to his 

convictions had probative value. Thus, he had the opportunity to be heard 

on the issue. The court denied Carslake’s motion after finding that the 

evidence was relevant. See State v. Collins, 111 Ariz. 303, 305 (1974) 

(“[E]vidence of another offense which tends to prove a motive for the 

present offense is admissible.”); see also Ariz. R. Evid. 404(b); State v. 

Andriano, 215 Ariz. 497, 503, ¶ 26 (2007) (evidence of defendant’s extramarital affairs was admissible under Rule 404(b) to prove motive). But 

additional evidence presented at trial negates any possibility of prejudice. 

Carslake himself admitted he was required to register, and the State used 

his knowledge of that requirement to demonstrate his motive for 

absconding and his reasons for moving around. Carslake failed to show 

how the denial of the motion in limine was fundamental error. 

2. The evidence regarding Carslake’s active warrants and 

absconder status was not prejudicial. 

¶12 Carslake also argues that the introduction of his active 

warrant for a parole violation and evidence of his absconder status created 

unfair prejudice that outweighed their probative value. Because Carslake 

did not object to this evidence during trial, this Court reviews for 

fundamental error. Escalante, 245 Ariz. at 140, ¶ 12. 
STATE v. CARSLAKE 

Decision of the Court 

5 

¶13 Rule 404(b)(1) prohibits the admission of “other crimes, 

wrongs, or acts . . . to prove the character of a person in order to show action 

in conformity therewith.” The rule provides exceptions which allow 

admission of this evidence “for other purposes, such as proof of motive, 

opportunity, intent, preparation, plan, knowledge, identity, or absence of 

mistake or accident.” Ariz. R. Evid. 404(b)(2). Once a proper purpose is 

established, other act evidence “must also be relevant under Rule 402; the 

probative value of the evidence must not be substantially outweighed by 

the potential unfair prejudice under Rule 403; and the court must give an 

appropriate limiting instruction if requested under Rule 105.” State v.

Hulsey, 243 Ariz. 367, 381–82, ¶ 45 (App. 2018) (internal quotations omitted). 

“The 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.” Ariz. R. Evid. 

403. 

¶14 Carslake argues that the warrant and absconder status 

evidence was not relevant because he did not dispute many of the elements 

of both charged offenses. But it was. The State has the burden to show it 

proved the elements of the charged offenses; if it did not provide that 

evidence, Carslake could have argued the State failed to meet its burden of 

proof. See State v. Clark, 249 Ariz. 528, 533, ¶ 16 (App. 2020) (“Both the 

Arizona and United States Constitutions guarantee every criminal 

defendant the right to have a jury find him guilty of all the elements of the 

crime with which he is charged and the state must prove each element of 

the offense, beyond a reasonable doubt.” (cleaned up)). The State needed to 

demonstrate that Carslake had knowledge of his registration requirement. 

See State v. Garcia, 156 Ariz. 381, 384 (App. 1987) (knowledge required for 

conviction of failing to register). Here, Carslake’s California parole 

violation for failing to register and his absconder status show he knew he 

had to register and was trying to avoid doing so. The evidence was relevant. 

¶15 Carslake argues that the evidence was unfairly prejudicial 

and not relevant. Specifically, he challenges the evidence that he allegedly 

cut off his ankle monitoring device, absconded from parole and failed to 

register in California. However, the probative value of the evidence was 

high because it contradicted much of Carslake’s story and provided a 

motive for him to avoid registering. Additionally, the State asked the court 

to provide limiting instructions in accordance with Rule 105, which the 

court did. The evidence of Carslake’s guilt was immense, which included a 

recording of Carslake saying that he knew he had a duty to register, he did 

not register and he refused to register. As noted above, while the evidence 
STATE v. CARSLAKE 

Decision of the Court 

6 

was harmful to Carslake’s case, it was not unfairly prejudicial, and the court 

has discretion in weighing the probative value over the prejudicial impact. 

State v. Harrison, 195 Ariz. 28, 33, ¶ 21 (App. 1998). 

¶16 Regardless, evidence of Carslake’s California convictions 

could have been admitted for impeachment because Carslake testified at 

trial. See Ariz. R. Evid. 609. Carslake maintained that the Colorado 

convictions, which required the California conviction, were “fictitious” and 

were all dismissed, a fact that the State refuted. Therefore, the evidence 

could have been presented to the jury for impeachment purposes under 

Rule 609. Carslake has failed to establish prejudice. 

B. The off-the-record bench conferences did not deprive Carslake’s 

right to a meaningful appeal. 

¶17 Carslake argues that several off-the-record bench conferences 

during trial deprived him of a meaningful right to appeal due to an 

incomplete record. Carslake claims this constitutes fundamental error, as it 

impinges on his right to a complete trial record under Article 2, Section 24, 

of the Arizona Constitution. Carslake has not specified any particular 

prejudice from the lack of recording or transcription, only that he was 

prejudiced by it. 

¶18 Because Carslake did not object to the off-the-record bench 

conferences at trial, this Court reviews for fundamental error only. See State 

v. Hamilton, 177 Ariz. 403, 409 (App. 1993). “[A]bsent a timely objection or 

some demonstrable prejudice, the failure to make a contemporaneous 

record of a bench conference does not constitute fundamental error.” State 

v. Scott, 187 Ariz. 474, 476 (App. 1996). Even if a trial record is incomplete, 

this Court must assume that it supports the judgment unless there is “‘at 

least a credible and unmet allegation of reversible error.’” Id. (quoting State 

v. Schackart, 175 Ariz. 494, 499 (1993)) (emphasis omitted). 

¶19 The transcripts provide essential context to the subject of the 

off-the-record conferences. Four of the five bench conferences Carslake now 

challenges involved issues not raised in this appeal. The first bench 

conference, initiated by the court, stemmed from the introduction of 

photographs of Carslake’s vehicles and the residence where they were 

parked. The second and third bench conferences involved the introduction 

of evidence contained on a court database and whether a document offered 

for evidence was authentic. The fourth bench conference occurred when the 

State offered the release questionnaire on which Carslake had indicated he 

was homeless. Carslake objected to admission of the questionnaire and 
STATE v. CARSLAKE 

Decision of the Court 

7 

asked for a bench conference. The final bench conference occurred after the 

jury was polled and before the court gave the jury release instructions. 

¶20 The only potentially substantive issue arose in the fourth 

bench conference regarding admission of the release questionnaire. As 

context, the State was questioning Carslake about his residence and asked 

him questions about the release questionnaire but failed to offer it into 

evidence. After Carslake’s counsel conducted redirect, the State offered the 

questionnaire into evidence. Carslake’s counsel objected and asked for a 

bench conference. Once trial resumed on the record, the court overruled 

Carslake’s objection and admitted the evidence. Carslake did not ask the 

court to elaborate on the record or summarize the bench conference. In State 

v. Paxton, 186 Ariz. 580 (App. 1996), this Court held that although off-therecord bench conferences are generally disapproved, absent a timely

objection or some demonstrable prejudice, the failure to make a

contemporaneous record of a bench conference does not constitute

fundamental error. 186 Ariz. at 589. As noted above, Carslake has the

burden to show he was prejudiced by these off-the-record conferences, and

he has failed to do so. See State v. Johnson, 247 Ariz. 166, 185, ¶ 41 (2019).

CONCLUSION 

¶21 For the following reasons, Carslake’s convictions are 

affirmed.