In re Commitment of Jaramillo

• Decision Date: 25 January 2008
• Docket Number: No. 2 CA-MH 2007-0002-SP.,2 CA-MH 2007-0002-SP.
• Citation: 176 P.3d 28,217 Ariz. 460
• Parties: In re the COMMITMENT OF Wilfredo JARAMILLO.
• Court: Arizona Court of Appeals

176 P.3d 28

217 Ariz. 460

In re the COMMITMENT OF Wilfredo JARAMILLO.

No. 2 CA-MH 2007-0002-SP.

Court of Appeals of Arizona, Division 2, Department A.

January 25, 2008.

Barbara LaWall, Pima County Attorney By Jacob R. Lines, Tucson, Attorneys for Appellee.

Robert J. Hooker, Pima County Public Defender By John F. Palumbo, Tucson, Attorneys for Appellant.

OPINION

HOWARD, Presiding Judge.

¶ 1 After a jury trial, appellant Wilfredo Jaramillo was found to be a sexually violent person and was committed to the Arizona Community Protection and Treatment Center pursuant to Arizona's Sexually Violent Persons (SVP) Act, A.R.S. §§ 36-3701 through 36-3717. On appeal, Jaramillo argues the trial court committed reversible error by admitting evidence of unproven prior acts in violation of Rule 404(c), Ariz. R. Evid. Because the trial court correctly concluded that Rule 404(c) does not apply to this prior-act evidence, we affirm.

Factual and Procedural Background

¶ 2 In 1996, Jaramillo pleaded guilty but insane to attempted sexual conduct with a minor and was committed to the Arizona State Hospital for ten years. In 2006, as Jaramillo neared the end of his commitment, the state filed a petition alleging that Jaramillo is a sexually violent person as defined in § 36-3701(7).

¶ 3 On the second day of trial on that issue, Jaramillo filed a motion in limine to preclude introduction of evidence of prior acts other than those for which there was a "properly authenticated prior conviction[]." At a hearing that day, he contended that evidence of the prior acts should only be admitted if the state satisfied the requirements of Rule 404(c), which provides a procedure for introducing evidence of a person's prior "crimes, wrongs, or acts" to demonstrate a "character trait giving rise to an aberrant sexual propensity to commit the offense charged." The court concluded that Rule 404(c) did not apply and that evidence of the prior acts was admissible to establish Jaramillo's propensity to commit future acts of sexual violence. At trial, psychologist Thomas Fisher, who had evaluated Jaramillo, testified about three prior acts:¹ in 1992, Jaramillo had touched an eleven-year-old female's buttocks and pleaded guilty to annoying a minor; in 1992, he had exposed himself to a woman and touched her buttocks before being escorted from the area; and, in 1993, he had touched a woman's buttocks, crotch, and chest, and prosecution was deferred.²

¶ 4 Based on his interview with Jaramillo and other information, Dr. Fisher's diagnoses included polysubstance abuse; pedophilia, nonexclusive type; and antisocial personality disorder as well as symptoms of schizophrenia and schizoaffective disorder. He testified that the features of Jaramillo's prior acts were important in his diagnoses and noted the prior offenses were factors relevant to determining the risk that Jaramillo would commit future acts of sexual violence. He ultimately opined that it was highly probable Jaramillo would commit future acts of sexual violence unless treated.

Rule 404(c) Analysis

¶ 5 Jaramillo argues the court committed reversible error by admitting evidence of his prior acts without applying Rule 404(c). We review the trial court's decision to admit evidence of prior acts for an abuse of discretion. See Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 506, 917 P.2d 222, 235 (1996) (admission of evidence reviewed for abuse of discretion); see also State v. Aguilar, 209 Ariz. 40, ¶ 29, 97 P.3d 865,874 (2004) (reviewing admission of prior-act evidence for abuse of discretion). But "[a] court abuses its discretion if it commits legal error in reaching a discretionary conclusion." Tritschler v. Allstate Ins. Co., 213 Ariz. 505, ¶ 41, 144 P.3d 519, 532 (App.2006). Jaramillo's argument raises issues regarding interpretation of statutes and court rules, as well as constitutional issues, which are legal questions that we review de novo. See In re Commitment of Flemming, 212 Ariz. 306, ¶ 3, 131 P.3d 478, 479 (App.2006) (issues regarding interpretation of SVP, statutes reviewed de novo); see also Allstate Indem. Co. v. Ridgely, 214 Ariz. 440, ¶ 8, 153 P.3d 1069, 1071 (App.2007) (issues regarding interpretation of court rules reviewed de novo); Robson Ranch Mountains, L.L.C. v. Pinal County, 203 Ariz. 120, ¶ 13, 51 P.3d 342, 347 (App.2002) (issues regarding statutory interpretation and constitutional issues reviewed de novo).

¶ 6 Under Arizona's SVP statutes, a person may be civilly committed if the state proves, beyond a reasonable doubt, that the person is a sexually violent person. See § 36-3707(A), (B); In re Leon G., 204 Ariz. 15, 1128, 59 P.3d 779, 787 (2002). A sexually violent person is one who "[h]as ever been convicted of or found guilty but insane of a sexually violent offense . . ." and "[h]as a mental disorder that makes the person likely to engage in acts of sexual violence." § 36-3701(7). As our supreme court has interpreted the second part of the definition, the state must prove, beyond a reasonable doubt, that the person has a mental disorder as defined by the statute "that predisposes the person to commit sexual acts to such a degree that he or she is dangerous to others" and that "the mental disorder makes it highly probable that the person will engage in acts of sexual violence." Leon G., 204 Ariz. 15, ¶ 28, 59 P.3d at 787 (emphasis omitted). A mental disorder makes it highly probable that a person will engage in acts of sexual violence if it impairs or tends to overpower the person's ability to control his behavior. Id.

¶ 7 The legislature has provided that, in an SVP trial, "[t]he Arizona rules of evidence . . . apply" and the court "may admit evidence of past acts that would constitute a sexual offense pursuant to [A.R.S.] § 13-1420 and the Arizona rules of evidence." § 36-3704(B). Jaramillo acknowledges that, by enacting this statute, the legislature intended that prior acts be admissible but contends the rules of evidence do not permit admission of prior acts to prove a person's propensity to commit a future act. He argues that this creates a potential conflict between § 36-3704(B) and the rules of evidence and notes that, where such a conflict exists and cannot be reconciled, the statute is unconstitutional. See Encinas v. Pompa, 189 Ariz. 157, 159, 939 P.2d 435, 437 (App.1997) ("[T]he legislature may enact procedural rules so long as they merely supplement, but do not contradict, existing court-made rules."). Finally, he argues that the conflict can be reconciled by interpreting § 36-3704(B) to permit introduction of prior acts only when they are admissible under.Rule 404(c).³ The state, on the other hand, contends no conflict exists because the rules of evidence permit the use of relevant prior acts in this circumstance without regard to Rule 404(c).⁴

¶ 8 Relevant evidence is generally admissible. Ariz. R. Evid. 402. But "[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion." Ariz. R. Evid. 404(a). Similarly, "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith," although it may be admissible for some other purpose. Ariz. R. Evid. 404(b). Rule 404(e) provides an exception to that general rule in "criminal case[s] in which a defendant is charged with having committed a sexual offense, or . . . civil easels] in which a claim is predicated on a party's alleged commission of a sexual offense." In those cases, evidence of "other crimes, wrongs, or acts may be admitted by the court if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged." Id. Rule 404(c) then provides a procedure for admitting such evidence.

¶ 9 Although SVP cases are civil in nature, In re Commitment of Conn, 207 Ariz. 257, ¶ 7, 85 P.3d 474, 476 (App.2004), they are not "predicated on a party's alleged commission of a sexual offense." Ariz. R. Evid. 404(c). Instead, they are predicated on the person's having a prior conviction for a sexually violent offense, not an "alleged commission," and a mental disorder that makes the person likely to commit future acts of sexual violence. See § 36-3701(7). Thus, as Jaramillo acknowledges, Rule 404(c) by its plain language does not apply to SVP proceedings. Jaramillo nevertheless contends that the rules of evidence do not otherwise provide for the admission of other-act evidence in this context and that interpreting Rule 404(c) to apply here would "deli I no violence" to the rule and would effectuate legislative intent.

¶ 10 The rules of evidence, however, do provide for the admission of relevant evidence, such as the prior acts here. See Ariz. R. Evid. 402. Rule 404 is designed to prevent the circumstantial use of character evidence to prove action in conformity with that character on a particular occasion. See Ariz. R. Evid. 404(a); see also Joseph M. Livermore et al., Arizona Law of Evidence § 404.1, at 87-88 (4th ed.2000). But evidence of prior acts is admissible for other purposes. Ariz. R. Evid. 404(b). When the state introduces evidence of prior acts in SVP cases, it is not to show action on a particular occasion in conformity with bad character. Beyond proving a predicate conviction, the state need not prove action on a particular occasion at all. Instead, the prior acts are used to help demonstrate that the person will likely engage in acts of sexual violence in the future and therefore presents a danger to the community. See Leon G., 204 Ariz. 15, ¶ 28, 59 P.3d at 787.

¶ 11 Under Rule 405(b), Ariz. R. Evid., specific instances of conduct are admissible when a character trait "is an essential element of a charge, claim or defense." A character trait is an essential element of a charge, claim, or defense if it is "an operative fact which, under substantive law,...