State v. Bynum

• Decision Date: 17 June 2011
• Docket Number: 2 CA-CR 2009-0373
• Parties: THE STATE OF ARIZONA, Appellee, v. MARIUS KEON BYNUM, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee,

v.MARIUS KEON BYNUM, Appellant.

2 CA-CR 2009-0373

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT B

Dated: June 17, 2011

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

Not for Publication Rule 111, Rules of the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY

Cause No. CR200800451

Honorable Wallace R. Hoggatt, Judge

AFFIRMED

Thomas C. Horne, Arizona Attorney General

By Kent E. Cattani and Alan L. Amann

Tucson

Attorneys for Appellee

Gail Gianasi Natale

Phoenix

Attorney for Appellant

KELLY, Judge.

¶1 After a jury trial, Marius Bynum was convicted of one count each of kidnapping, sexual abuse, and threatening or intimidating, and eight counts of sexual assault. He was sentenced to a combination of presumptive, maximum, consecutive, and concurrent prison terms totaling sixty-one years. Bynum appeals his convictions and sentences. He argues the trial court violated his constitutional right to confront his accusers, improperly admitted other-acts testimony under Rule 404, Ariz. R. Evid., and abused its discretion by imposing consecutive terms on the kidnapping and sexual abuse counts. He also argues A.R.S. § 13-1406(C) is unconstitutional. Finding no error, we affirm.

Background

¶2 '"We view the facts in the light most favorable to sustaining the convictions.'" State v. Musgrove, 223 Ariz. 164, ¶ 2, 221 P.3d 43, 45 (App. 2009), quoting State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). In May 2007, L. was walking alone at night when Bynum offered her a ride. L. testified Bynum had given her a false name and told her he "needed to stop by his room" for gas money. L. waited in the vehicle while Bynum went into the room. He then came back to the door and asked L. to come inside "while he changed his shirt." L. agreed, but after some time, she decided "he really didn't want to take [her]" and attempted to leave. Bynum then "grabbed [her] by the neck and threw [her] on the bed."

¶3 During the night, Bynum threatened L. and forced her to engage in multiple sexual acts. L. testified he had threatened her with a hammer, hit her, pulled her hair, and choked her. Bynum forced L. to perform oral sex on him and to have vaginal intercoursewith him. He then ordered her to take a shower while he watched, instructing her "[t]o use soap and shampoo." After the shower, Bynum again ordered L. to perform oral sex on him and forced her to have vaginal intercourse and anal sex with him. When Bynum eventually fell asleep, L. escaped and sought help.

¶4 Detective Angela Davis, the lead case investigator, collected evidence and interviewed Bynum at his workplace. The interview was recorded and transcribed. At trial, Detective John Kosmider, who had been present at the interview, referred to the transcript in testifying about what had been said. Both parties also used the transcript during Bynum's testimony.

¶5 At trial, C. testified she had been raped by Bynum in August 2007. She said Bynum had broken into her house, used a knife and physical violence to force her into multiple sex acts, and given her a false name. Specifically, she testified Bynum had threatened her with the knife, punched her, pulled her hair, and head-butted her. C. told the jury Bynum first forced her to perform oral sex on him and then repeatedly forced her to have vaginal intercourse and to perform and receive oral sex. She also testified he had attempted to engage in forced anal sex, but had been unable to complete the act.

¶6 Bynum admitted to having sex with both L. and C. but asserted the encounters were consensual. The jury found Bynum guilty of eleven of the fifteen counts with which he was charged. This appeal followed.

Discussion

I. Confrontation Clause

¶7 Bynum argues the admission of evidence from Davis's interview of him violated his Confrontation Clause rights because she did not appear at trial.¹ We review de novo Confrontation Clause challenges to the admissibility of evidence.² State v. Boggs, 218 Ariz. 325, ¶ 31, 185 P.3d 111, 119 (2008). Bynum concedes he did not object to the testimony regarding Davis's questioning or the interview and his claim is therefore limited to fundamental error review.³ See id.

¶8 Fundamental error is "'error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.'" State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005), quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). The defendant has the burden "[to] establish both that fundamentalerror exists and that the error . . . caused him prejudice." Id. ¶ 20. Because Bynum has not demonstrated that any error occurred, he has not sustained his burden. See id. ¶ 23 (defendant must first prove error); State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342 (1991) (before considering whether error is fundamental, we must find error).

¶9 Bynum maintains his rights under the Confrontation Clause were violated because he could not cross-examine Davis on her "testimonial statements" in the interview. But he fails to identify any specific statement as "testimonial." See Ariz. R. Crim. P. 31.13(c)(1)(vi). Instead, he claims the trial court should have precluded evidence of the interview in its entirety under Crawford v. Washington, 541 U.S. 36 (2004) because Davis was absent from trial and he had no prior opportunity to cross-examine her. See State v. Parks, 211 Ariz. 19, ¶ 30, 116 P.3d 631, 637 (App. 2005) (witness's out-of-court testimonial statement "may not be admitted at trial unless the declarant is unavailable and the accused received a prior opportunity to cross-examine the witness"). In Crawford, the United States Supreme Court concluded that even if an out-of-court statement was reliable, it could not be admitted if it violated the right of the accused to confront the witnesses against him. 541 U.S. at 68-69; see also U.S. Const. amend. VI. But the Confrontation Clause does not apply to all out-of-court statements—only those that are testimonial. See Davis v. Washington, 547 U.S. 813, 821 (2006) ("Only [testimonial] statements . . . cause the declarant to be a 'witness' within the meaning of the Confrontation Clause.").

¶10 In Davis's interview of Bynum, most of her statements were questions related to the investigation. She also made some accusatory statements—telling Bynumhe had misidentified a person related to the investigation, that he smelled like beer, and that the victim disputed the sex had been consensual. None of these statements are prohibited by the Confrontation Clause.

¶11 In Crawford, the Court defined testimony as "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." 541 U.S. at 51. The "'use of a statement to prove something other than the truth of the matter asserted'" does not violate a defendant's Confrontation Clause rights. Boggs, 218 Ariz. 325, ¶ 32, 185 P.3d at 120, quoting State v. Smith, 215 Ariz. 221, ¶ 26, 159 P.3d 531, 539 (2007). Davis's questions to Bynum were not solemn declarations or affirmations made for the purpose of proving a fact; instead they were questions made for the purpose of eliciting information from him. Thus, her questions were not testimonial, and their admission did not violate the Confrontation Clause.

¶12 Additionally, the admission of accusatory statements made by Davis does not violate the Confrontation Clause. Our supreme court has recognized that confronting a suspect with accusatory statements is a "valid interrogation technique" that does not violate the Confrontation Clause. See id. ¶¶ 29-35 (no Confrontation Clause violation in admission of detective's accusations in interview that codefendant had told police that defendant "did all the shootin[g]"; such accusations a valid interrogation technique and not made for purpose of trial testimony); State v. Roque, 213 Ariz. 193, ¶¶ 69-70, 141 P.3d 368, 388-89 (2006) (no Confrontation Clause violation where videotaped recording of detective's interview of defendant contained repeated statements by detective of non-testifying witness because statements merely a valid interrogation technique).

¶13 Nor was there a Confrontation Clause violation based on the admission of out-of-court statements by L. or Bynum. To the extent that Davis attributed to L. an out-of-court statement that the sex was not consensual, the Confrontation Clause was not violated because L. was present for trial and subject to cross-examination. And Bynum's own statements to Davis were properly admitted as non-hearsay admissions by a party-opponent through the testimony of Kosmider, who was present when the statements were made. See Ariz. R. Evid. 801(d)(2) (statement not hearsay if offered against party and is party's own statement).

¶14 "Had [Bynum] objected at trial, he might well have been entitled to an instruction that the statements . . . were introduced as part of the interrogation and could not be used to prove the truth of the matters asserted." Boggs, 218 Ariz. 325, ¶ 35, 185 P.3d at 120. But, because Bynum's Confrontation Clause rights were not violated, we find no error, let alone fundamental error, in the trial court's admission of statements from Davis's interview of Bynum. See Lavers, 168 Ariz. at 385, 814 P.2d at 342.

II. Other-Acts Evidence

¶15 Bynum next argues the trial court violated his rights under the Fifth, Seventh, and Fourteenth Amendments to the United States Constitution and article II, § 10 of the Arizona Constitution when it admitted evidence that Bynum had raped C. He asserts that the admission of C.'s testimony violated the prohibition against double jeopardy, because a different jury had found him not guilty of the charges related to...