State v. Aguilar

• Decision Date: 16 September 2004
• Docket Number: No. CR-03-0332-PR.,CR-03-0332-PR.
• Citation: 97 P.3d 865,209 Ariz. 40
• Parties: STATE of Arizona, Appellee, v. David Heran AGUILAR, Appellant.
• Court: Arizona Supreme Court

97 P.3d 865

209 Ariz. 40

STATE of Arizona, Appellee, v.David Heran AGUILAR, Appellant.

No. CR-03-0332-PR.

Supreme Court of Arizona, En Banc.

September 16, 2004.

Terry Goddard, Attorney General by Randall M. Howe, Chief Counsel, Criminal Appeals Section and Robert A. Walsh, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender by Joel M. Glynn, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

RYAN, Justice.

¶ 1We granted review to determine whether the aberrant sexual propensity exception to the prohibition against character evidence, codified in Arizona Rule of Evidence 404(c), encompasses sexual assaults against adults when the defendant claims the victims consented.We hold that it can.

I.

¶ 2 In a single indictment, the Maricopa County Grand Jury charged David Heran Aguilar with sexually assaulting four women between November 9, 1999, and May 10, 2001.¹Aguilar admitted that he had sexual contact with three of the women, but claimed that each consented to the contact.Aguilar denied that he knew the fourth woman.The charges involving this woman were later dismissed by the State.

¶ 3 Before trial, Aguilar filed a motion to sever, arguing that he was entitled as a matter of right to three separate trials as to the charges relating to each victim.SeeAriz. R.Crim. P. 13.4(b)(providing that a "defendant shall be entitled as of right to sever offenses joined only by virtue of Rule 13.3(a)(1), unless evidence of the other ... offenses would be admissible under applicable rules of evidence if the offenses were tried separately").Following oral argument on the motion, the trial court found that under Arizona Rule of Criminal Procedure 13.3(a)(1),² the counts as to all victims were properly joined because they involved sufficient "same or similar circumstances."

¶ 4 In addition, with respect to the three victims, the trial court found that the evidence as to each victim would be admissible under Arizona Rule of Evidence 404(c) as to the charges involving the other victims.The trial court noted that "the circumstances and alleged facts as to all counts as to [the victims]: (1)[were] shown by clear and convincing evidence; (2) demonstrate[d] an emotional propensity for sexual deviance; and (3) the prejudice of such facts [did] not outweigh their probative value as to each such count."SeeAriz. R. Evid. 404(c)(1)(A)-(C).Because the offenses involving one victim would be admissible in a trial of the offenses involving another victim, the court held that under Rule 13.4(b) Aguilar would not be entitled to a severance.

¶ 5 The jury returned guilty verdicts on three counts of kidnapping, four counts of sexual assault, and two counts of sexual abuse.³The jury found "not true"the State's allegations of dangerousness with respect to three counts related to one of the victims.

¶ 6 Aguilar appealed his convictions and sentences.Relying on a then recent opinion of the court of appeals, which this court later ordered depublished,⁴the court of appeals reversed.State v. Aguilar, 1 CA-CR 02-0576, mem. decision at 19, ¶ 29(Ariz.App. Sept. 4, 2003).The court held that if Aguilar were granted a separate trial as to each victim, evidence of each incident would be cross-admissible under Rule 404(c) only if the State could show that the conduct charged was abnormal or remarkable.Id. at 8, ¶ 12("[T]his court recently rejected the same argument advanced by the State in the present case, that Rule 404(c) is properly interpreted as applying `not only to cases involving highly unusual sex acts, but also to crimes involving heterosexual contact between adults, that involves conduct that is not abnormal or remarkable except for the fact that one of the parties did not consent to the conduct.'"(quotingFeld v. Gerst,205 Ariz. 91, 96, ¶ 17, 66 P.3d 1268, 1273(App.2003), depublished,206 Ariz. 117, 75 P.3d 1075(2003))).The court noted that the sexual contact in Aguilar's case was between two adults and the sole issue was whether the acts were consensual.Id. at 8, ¶ 13.Thus, the court of appeals concluded that Rule 404(c) did not support joinder of the charged offenses and therefore Aguilar's motion to sever should have been granted by the trial court.⁵Id. at 8-9, ¶ 13.

¶ 7The court of appeals then concluded that "[b]ecause no basis existed for the admission of evidence pursuant to Rule 404(c),"the trial court committed fundamental error when it, as required by Rule 404(c)(2), instructed the jury as to how it should consider the evidence of the other sexual assaults when deciding Aguilar's culpability on the charged offenses.Id. at 11, ¶¶ 17, 19.As a result, the court reversed Aguilar's convictions.Id. at 12-13, ¶ 19.

¶ 8The State petitioned for review, arguing that Rule 404(c)'s sexual propensity exception should not be limited to child molestation cases or those involving "highly unusual sex acts."We granted review because this matter involves an interpretation of one of our rules and because of the statewide importance of the issue.We have jurisdiction under Article 6, Section 5.3, of the Arizona ConstitutionandArizona Revised Statutes("A.R.S.")section 12-120.24(2003).

II.

A.

¶ 9"One of the oldest principles of Anglo-American law" is that evidence of other bad acts is not admissible to show a defendant's bad character.David P. Leonard, In Defense of the Character Evidence Prohibition: Foundations of the Rule Against Trial by Character,73 Ind. L.J. 1161, 1162(1998).The rationale for this principle is the recognition that character evidence would have a highly prejudicial effect on a defendant's case — the jury might use the character evidence to improperly conclude that the defendant is a bad person and therefore more likely to have engaged in the charged offense.SeeState v. McFarlin,110 Ariz. 225, 228, 517 P.2d 87, 90(1973).This principle was set forth in the former version of Arizona Rule of Evidence 404(a).⁶¶ 10 But the prohibition on other act evidence is not absolute."[E]vidence of other crimes is admissible when it is offered for any relevant purpose other than to prove the character of a person."Morris K. Udall et al., Arizona Practice: Law of Evidence§ 84(1991).Before 1997, Rule 404(b) codified this maxim as follows:

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.It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.⁷

Although the "listing of relevant purposes" is "not exhaustive," Udall, Arizona Practice: Law of Evidence§ 84, admission of other act evidence most often occurs in cases in which intent, plan, knowledge, identity, or absence of mistake is an issue.E.g., State v. Gulbrandson,184 Ariz. 46, 61, 906 P.2d 579, 594(1995)(finding that evidence of a previous assault was admissible to show motive and intent for subsequent murder);State v. Stuard,176 Ariz. 589, 597-600, 863 P.2d 881, 889-92(1993)(finding evidence of attempted murder admissible to prove identity of the perpetrator of three separate murders);State v. Mosley,119 Ariz. 393, 399, 581 P.2d 238, 244(1978)(finding evidence of trackmarks admissible to prove appellant's knowledge of the nature of the drugs in question and his intent to possess them);State v. Carner,25 Ariz.App. 156, 157, 541 P.2d 947, 948(1975)(finding testimony that the defendant had knowingly purchased stolen goods on ten to fifteen occasions before the charged offense was admissible to prove absence of mistake or accident).

B.

¶ 11 In addition to the most commonly used exceptions, this court has long recognized a common-law propensity exception to the exclusion of evidence of prior bad acts in cases involving charges of sexual misconduct.This exception was first fully articulated in McFarlin,110 Ariz. at 228, 517 P.2d at 90.

In those instances in which the offense charged involves the element of abnormal sex acts such as sodomy, child molesting, lewd and lascivious [conduct], etc., there is sufficient basis to accept proof of similar acts near in time to the offense charged as evidence of the accused's propensity to commit such perverted acts.

Id.This definition pointedly did not include sexual assault.SeeState v. Williams,111 Ariz. 511, 515, 533 P.2d 1146, 1150(1975)("The fact that one woman was raped is not substantial evidence that another did not consent."(citingLovely v. United States,169 F.2d 386, 390(4th Cir.1948))).Consequently, when a defendant was charged with offenses such as sodomy, child molestation, lewd and lascivious conduct, or other similar offenses, and Rule 404(b) did not permit admission of other act evidence, the McFarlin rule permitted the introduction of evidence of other acts if those acts tended to show that a defendant had a "propensity to commit such perverted" offenses.McFarlin,110 Ariz. at 228, 517 P.2d at 90.

¶ 12 In State v. Treadaway,we re-examined the propensity exception and further clarified the rule.116 Ariz. 163, 165-67, 568 P.2d 1061, 1063-65(1977).Treadaway had been convicted of the first-degree murder of a six-year-old boy by strangulation.Id. at 164-65, 568 P.2d at 1062-63.The evidence also established the boy had been sodomized.Id. at 164, 568 P.2d at 1062.The superior court admitted, "for the purpose of showing emotional propensity," that three years before, Treadaway had committed fellatio and anilingus on a thirteen-year-old boy.Id. at 165, 568 P.2d at 1063.We reversed, explaining that the admissibility of other act evidence under the propensity exception "depends initially upon its relevancy, which involves complicated questions of sexual deviancy in a sophisticated area of medical and scientific knowledge."Id. at 167, 568 P.2d at 1065.We further held...