State v. Aguilar

• Decision Date: 19 March 2008
• Docket Number: No. 2 CA-CR 2007-0126.,2 CA-CR 2007-0126.
• Citation: 218 Ariz. 25,178 P.3d 497
• Parties: The STATE of Arizona, Appellant, v. Roberto Rosadillo AGUILAR, Appellee.
• Court: Arizona Court of Appeals

178 P.3d 497

218 Ariz. 25

The STATE of Arizona, Appellant, v. Roberto Rosadillo AGUILAR, Appellee.

No. 2 CA-CR 2007-0126.

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

March 19, 2008.

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

Robert J. Hooker, Pima County Public Defender By Frank P. Leto, Tucson, Attorneys for Appellee.

OPINION

PELANDER, Chief Judge.

¶ 1 In several recent cases, this court has addressed the meaning and effect of A.R.S. § 13-107, the statute of limitations that applies to criminal actions. See State v. Gum, 214 Ariz. 397, 153 P.3d 418 (App.2007); Taylor v. Cruikshank, 214 Ariz. 40, 148 P.3d 84 (App.2006); State v. Jackson, 208 Ariz. 56, 90 P.3d 793 (App.2004). In this appeal by the state, we must once again determine whether a criminal prosecution is time-barred under § 13-107. The trial court ruled it was and, therefore, dismissed all charges against defendant/appellee Roberto Aguilar.

¶ 2 The primary issue raised is whether a reasonable-diligence standard for discovering that a criminal offense has been committed, as adopted in Jackson, 208 Ariz. 56, ¶¶ 30, 37, 41, 90 P.3d at 802, 803, 804, also applies under § 13-107(E) to the state's identification of the suspect to be charged with the crime, as the trial court ruled. For the reasons stated below, we conclude the court erred in applying Jackson's reasonable-diligence standard to subsection (E), which the legislature added in 1997. See 1997 Ariz. Sess. Laws, ch. 135, § 1. And, contrary to Aguilar's position, we find no reason to reject or deviate from Gum. Accordingly, although we affirm the trial court's dismissal of the sexual abuse and burglary charges against Aguilar because § 13-107(E) does not apply to them, we reverse the dismissal of the sexual assault and kidnapping charges against him and remand the case for further proceedings consistent with this opinion.

Background

¶ 3 The pertinent facts and procedural background are undisputed. Two different victims were sexually assaulted in their homes on September 9 and October 12, 1993. Police officers collected bedding, clothing, and physical evidence from both victims and crime scenes and also obtained deoxyribonucleic acid (DNA) evidence. At the time, police could not match the DNA samples to any particular person.

¶ 4 In November 2000, the Tucson Police Department (TPD) joined the Combined DNA Index System (CODIS), a comprehensive database of DNA samples supplied by local, state, and national agencies. On November 27, 2002, in an unrelated case, police officers collected a sample of Aguilar's DNA. In November 2003, officers asked the TPD crime laboratory to analyze for a possible match the DNA samples from the earlier, unsolved sexual assault cases. In March and April 2006, a senior TPD criminalist matched Aguilar's DNA with the samples taken from the two 1993 crime scenes. At an evidentiary hearing held below, the criminalist explained that the delay between 2003 and 2006 had occurred because the crime laboratory had been "swamped" with handling current cases, processing samples, and responding to various requests in other cases.

¶ 5 In October 2006, a grand jury indicted Aguilar on four counts of sexual assault, three counts of sexual abuse, two counts of kidnapping, and two counts of second-degree burglary arising from the 1993 crimes. Aguilar moved to dismiss the charges, contending the prosecution was time-barred under the seven-year statute of limitations prescribed in § 13-107(B)(1). In response, the state argued the limitations period had not expired because law enforcement had diligently pursued an indictment and because the statute did not begin to run until the spring of 2006, when the state actually discovered Aguilar's identity. After an evidentiary hearing at which the TPD criminalist testified, the trial court dismissed all charges, finding them time-barred. We have jurisdiction of the state's appeal pursuant to A.R.S. § 13-4032(1).

Legal Framework

¶ 6 The current version of § 13-107(B) is unchanged from 1993, when the crimes were committed. See 1985 Ariz. Sess. Laws, ch. 223, § 1; see also Taylor, 214 Ariz. 40, ¶ 19, 148 P.3d at 89. It provides:

Except as otherwise provided in this section, prosecutions for other offenses [not included in § 13-107(A)] must be commenced within the following periods after actual discovery by the state or the political subdivision having jurisdiction of the offense or discovery by the state or the political subdivision that should have occurred with the exercise of reasonable diligence, whichever first occurs.

Because all of the charges against Aguilar fall within § 13-107(B)(1), a seven-year limitations period applies to each.

¶ 7 In 1997, the legislature amended § 13-107 by adding subsection (E), which provides: "The period of limitation does not run for a serious offense as defined in [A.R.S.] § 13-604 during any time when the identity of the person who commits the offense or offenses is unknown." 1997 Ariz. Sess. Laws, ch. 135, § 1. That provision took effect on July 21, 1997, and applies to charges of sexual assault and kidnapping, both of which are statutorily defined as serious offenses. § 13-604(W)(4)(e) and (j).

¶ 8 Seven years after the statute was amended, this court decided Jackson, in which the alleged victim had for several years denied that any offense had been committed against her. There, we concluded "the seven-year limitation period under [§ 13-107(B)] begins `when the authorities know or should know in the exercise of reasonable diligence that there is probable cause to believe a criminal [offense] has been committed.'" 208 Ariz. 56, ¶ 30, 90 P.3d at 802, quoting State v. Wilson, 573 N.W.2d 248, 254 (Iowa 1998) (second alteration in Jackson). We further stated "[p]robable cause exists `when reasonably trustworthy information and circumstance would lead a person of reasonable caution to believe that a suspect has committed an offense.'" Id. ¶ 31, quoting State v. Hoskins, 199 Ariz. 127, ¶ 30, 14 P.3d 997, 1007-08 (2000).

¶ 9 In Jackson, assuming any offense had been committed, the identity of the suspect was known. Id. at 59, n. 3, & 64, n. 14. Therefore, we did not address the question whether it is the government's discovery of only an offense or of both the offense and the offender that triggers the running of the limitations period. Id. at 64, n. 14. Nor did we address the effect, if any, of § 13-107(E), because the state conceded that the 1997 statutory amendment did not affect the case. Jackson, 208 Ariz. 56, 59, n. 3, 90 P.3d at 796 n. 3.

¶ 10 Two years after Jackson, this court decided Taylor. There, unlike in Jackson, the state knew immediately that offenses had been committed. Taylor, 214 Ariz. 40, ¶¶ 3, 5, 148 P.3d at 85, 86. The issue presented in Taylor, and not addressed in Jackson, was "whether the statute requires discovery of an offense or discovery of the offender." Id. ¶ 13. Based on "the language, historical context, and purposes" of § 13-107(B), we concluded that "the limitation period run[s] from the time the state either discovered or, with the exercise of reasonable diligence should have discovered, that an offense had been committed." Taylor, 214 Ariz. 40, ¶ 27, 148 P.3d at 91. Because the state knew the crimes in Taylor had been committed in 1994, the indictments filed in 2006, after completion of DNA analyses, were untimely. Id. ¶¶ 3, 5-6, 29.

¶ 11 Significantly, in Taylor, as in Jackson, the state did not argue § 13-107(E) applied to toll the statute of limitations. Rather, the parties agreed that the case was governed by the version of § 13-107 in effect in 1994, when the offenses were committed. Taylor, 214 Ariz. 40, ¶ 8, 148 P.3d at 86.

¶ 12 More recently, in Gum, two victims were sexually assaulted in 1991, but the assailant's identity was not discovered until 2002. 214 Ariz. 397, ¶¶ 2-3, 153 P.3d at 420. Shortly thereafter the defendant was indicted. Id. ¶ 4. Upholding the trial court's refusal to dismiss the charges as time-barred, Division One of this court concluded that § 13-107(E) "applies to cases in which the existing limitations period had not yet expired on the amendment's effective date" and "extends the limitations period in such cases." Id. ¶ 13. The court stated: "Whether characterized as a tolling provision or an extension of the limitations period, A.R.S. § 13-107(E) serves to extend the limitations period for all offenses included in subsection (E) for which the limitations period was unexpired on July 21, 1997." Gum, 214 Ariz. 397, ¶ 29, 153 P.3d at 426. Because the seven-year limitations period for Gum's offenses had not expired by that date and because the sexual assault charges were serious offenses within subsection (E), the court ruled "the limitations period was extended and Gum's prosecution was not time-barred." Id.

Discussion

¶ 13 The state argues the trial court erroneously dismissed the sexual assault and kidnapping charges against Aguilar because the legislature's addition of § 13-107(E) in 1997 tolled or extended the limitations period for those serious offenses until the state discovered Aguilar's identity in 2006 through DNA testing. The state also argues that, contrary to our holding in Taylor, the limitations period did not commence until "discovery of [both] the crimes and Defendant's identity" and, therefore, none of the charges should have been dismissed on limitations grounds. We address those contentions in reverse order, guided by the following principles.

¶ 14 "We review an order granting a motion to dismiss criminal charges for an abuse of discretion or for the application of an incorrect legal interpretation." State v. Lemming, 188 Ariz. 459, 460, 937 P.2d 381, 382 (App.1997); see also Taylor, 214 Ariz. 40, ¶ 10, 148 P.3d at 87. We construe criminal statutes of limitations "liberally in favor of the accused and against the prosecution." State v. Fogel, 16...