State v. Crum
| Decision Date | 03 April 1986 |
| Docket Number | No. 2,CA-CR,2 |
| Citation | 150 Ariz. 244,722 P.2d 971 |
| Parties | The STATE of Arizona, Appellee, v. Richard Blair CRUM, Appellant. 3360. |
| Court | Arizona Court of Appeals |
Appellant and Roger Whitaker were tried jointly on charges of child molestation. Multiple charges were brought against appellant involving two victims, Jay (age 13) and Anthony (age 14), while only one charge stood against Whitaker, relating to Jay. After Count IV against appellant was dismissed, Whitaker was acquitted on his one count, and appellant was convicted on all four remaining counts of child molestation relating to him. He was sentenced to concurrent terms the longest of which was 15.75 years.
Appellant raises five issues on appeal: (1) that evidence relating to appellant's religion was improperly admitted; (2) that evidence of appellant's sexual interest in young boys was impermissible character evidence; (3) that a pornographic homosexual magazine recovered from appellant's home was admitted without proper foundation; (4) that the search and seizure conducted in appellant's home was based on a defective warrant; and (5) that the prosecutor's closing argument was improper.
Appellant contends that the prosecutor improperly introduced religious issues into the trial in various ways: 1) by referring to appellant as "Father Tim"; 2) by asking witnesses questions regarding the chapel in appellant's house and their services as altar boys; 3) by co-defendant's counsel questioning a witness about appellant's counseling qualifications; and 4) by questioning appellant regarding confidentiality and the relationship between appellant's church and the Greek Orthodox Church.
Initially it should be noted that Article 2, § 12 of the Arizona Constitution provides in part that:
"... [N]or shall any person be incompetent as a witness or juror in consequence of his opinion on matters of religion, nor be questioned touching his religious belief in any court of justice to affect the weight of his testimony."
Similarly, Rule 610, Rules of Evidence, 17A A.R.S., provides:
"Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his credibility is impaired or enhanced." (Emphasis added)
This rule prohibits questioning a witness about his religious beliefs to show that because of these beliefs, the witness is more or less likely to be testifying truthfully. "Evidence probative of something other than veracity is not within the prohibition of the rule." 3 J. Weinstein and M. Berger, Weinstein's Evidence p 610 at 610-2 (1985).
References to appellant as "Father Tim" were not improper because they were simply a means of identifying appellant and had nothing to do with his credibility. The jury had been questioned on voir dire about appellant's being known by this appellation, the prosecutor mentioned without objection that appellant was referred to as "Father Tim," the defense attorney used the title, and appellant identified himself to the police as "Father Tim." There was no error. Even if it were error, it was waived by failure to object at trial.
Questioning of child victims about the chapel in appellant's house and their services as altar boys served a legitimate purpose quite separate from witness veracity, which is proscribed by the rules. The prosecutor argued without objection to the jury that appellant utilized altar boy status as his modus operandi to put him into relationships with children so he could later seduce them. Both child victims testified that they had been appellant's altar boys at the chapel in appellant's home. There was therefore a common scheme or plan utilized by appellant which was properly presented to the jury.
Questioning of the co-defendant by his counsel regarding appellant's counseling qualifications, which might have reflected in some way on the legitimacy of his priestly status, was objected to before any answer could be given, and the objection was sustained. Therefore, any problem which might have arisen was foreclosed, and no error occurred.
Finally, the questioning of appellant regarding confidentiality and the relationship between appellant's church, the Orthodox Church, and the Greek Orthodox Church was proper since the prosecutor's questions were all reasonably related to appellant's assertion of the clerical privilege. The privilege is only valid if a confession is made to a cleric "in his professional character in the course of discipline enjoined by the church to which he belongs." A.R.S. § 13-4062(3). Appellant was questioned in this regard only to ascertain whether the privilege was properly invoked.
Appellant contends that the prosecutor's questioning of witnesses concerning statements by appellant that he liked sex with young boys was an improper use of character evidence. We disagree.
A.R.S. § 13-1410 requires "proof beyond a reasonable doubt that the defendant touched the private parts of a child and that the touching was motivated by an unnatural or abnormal sexual interest or intent." (Emphasis added.) United States v. Hester, 719 F.2d 1041, 1043 (9th Cir.1983); State v. Roberts, 126 Ariz. 92, 95, 612 P.2d 1055, 1058 (1980). The jury was instructed as to this requirement.
In this case, it is clear that appellant's statements are relevant to establish the requisite mental state for child molestation. We find no error.
Appellant argues that it was error for the trial court to admit the pornographic homosexual magazines, according to the principles outlined in State v. Natzke, 25 Ariz.App. 520, 544 P.2d 1121 (1976). The court in Natzke held:
In this case the following line of questioning by defense cou...
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State v. Lavers
...is not complete, we must assume that any evidence not available on appeal supports the trial court's actions. State v. Crum, 150 Ariz. 244, 247, 722 P.2d 971, 974 (App.1986) (court rejected argument that affidavit providing basis for search warrant was defective because the affidavit was ne......
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... ... Basically, the trial court was stating the mere possession of pornographic or sexually explicit matter does not show a propensity to engage in similar conduct. See State v. Crum, 150 Ariz. 244, 722 P.2d 971, 974 ... (1986); White v. State, 137 Tex.Crim. 481, 131 S.W.2d 968, 970 (1939). The causal link between possession of pornographic materials and an individual's propensity to commit sexual offenses is tenuous, if not nonexistent. See State v. Vanderham, 78 Or.App ... ...
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