State v. Garcia, 1 CA-CR 99-0852.

• Decision Date: 10 July 2001
• Docket Number: No. 1 CA-CR 99-0852.,1 CA-CR 99-0852.
• Citation: 200 Ariz. 471,28 P.3d 327
• Parties: STATE of Arizona, Appellee, v. Jose Nunez GARCIA, Appellant.
• Court: Arizona Court of Appeals

28 P.3d 327

200 Ariz. 471

STATE of Arizona, Appellee, v. Jose Nunez GARCIA, Appellant.

No. -0852.

Court of Appeals of Arizona, Division 1, Department B.

July 10, 2001.

Janet Napolitano, Attorney General, by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, and Consuelo M. Ohanesian, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James Haas, Maricopa County Public Defender, by Lawrence S. Matthew, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

FIDEL, Judge.

¶ 1 Defendant Jose Nunez Garcia was tried by jury on nine counts of child molestation, one count of attempted child molestation, and one count of indecent exposure; six young girls were alleged to be the victims of these counts. Defendant was acquitted of eight of the charges, but convicted of two counts of child molestation, both concerning victim Abby H., and one count of indecent exposure involving victim Sarah H. For the two counts of child molestation, both class 2 felonies and dangerous crimes against children, Defendant was sentenced to consecutive terms of 17 years in prison; for the indecent exposure, a class 6 felony, he was placed on lifetime probation. In this timely appeal, Defendant alleges that all counts must be reversed because the trial court inappropriately admitted evidence of uncharged crimes. In considering that allegation, we address the question, among others, whether evidence of a defendant's uncharged acts must be screened for admissibility pursuant to Rules 403 and 404(c) of the Arizona Rules of Evidence even when the evidence is offered to establish that defendant's lewd disposition toward a particular victim.

BACKGROUND

¶ 2 Defendant moved before trial to sever the two molestation counts involving Abby H. He argued that it would be unfair to try those two counts with those of the other girls because Abby H. was the only victim whose allegations were corroborated by medical evidence. Abby H. had said that Defendant had repeatedly inserted his finger inside her vagina, causing her considerable pain. Dr. Sylvia Strickland, a physician specializing in sexual abuse, testified at the severance hearing that she had examined Abby H. and that the tissue on one side of the girl's hymen was almost totally destroyed. Such an injury, she said, was evidence of repeated, painful molestation. The doctor repeated this evidence at trial.

¶ 3 The trial court denied the motion to sever because evidence of the two counts involving Abby H. would have been admissible at a trial on the other counts to show that Defendant had an aberrant sexual propensity to molest young girls. The court made specific findings concerning these counts pursuant to Rules 404(c) and 403 of the Arizona Rules of Evidence:

I find that the evidence presented is sufficient to permit the trier of fact to find by clear and convincing evidence that the defendant committed the acts complained of in Counts 5 and 6 of the indictment. I find that the commission of those other acts provides a reasonable basis to infer that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the crimes charged in the indictment.

I also find that the evidentiary value of proof of Counts 5 and 6 is not substantially outweighed by danger of unfair prejudice or other factors mentioned in Rule 403 ...

In making this determination and the determination of the Rule 403 balancing test, I have considered the factors set forth in Rule 404(c)(1)(C).... I find that the facts support ... the existence of the factors required by Rule 404(c)(1)(C).

(Emphasis added).

¶ 4 As the severance hearing concluded, the judge advised the prosecutor to proceed with "extreme caution" in permitting the victims to testify about uncharged incidents when Defendant had molested them: "I am not going to permit the victims to get up here and say that this happened, you know, 20, 30, 15 or whatever times during those time periods. The indictment is very specific as to when these alleged incidents occurred."

¶ 5 The trial court reversed this position, however, in response to a motion in limine filed by the prosecutor the following day. The court ruled that the State might introduce

specific acts ... that were committed by the defendant as to each particular victim to show the defendant's lewd disposition or unnatural attitude toward the particular victim.

I find also that it's not necessary to conduct a 404(b) analysis or a 404(c) analysis... I will, however, give limiting instructions at the conclusion of the case to instruct the jurors that they are only to consider those acts to show the defendant's propensity toward the respective victim only as to those respective victims and not toward all the other victims in the case.

¶ 6 After the trial court made this ruling, Defendant unsuccessfully moved to sever each victim's case and have six separate trials.

¶ 7 Defendant also asked the court to analyze under Rule 403 whether the probative value of the uncharged act testimony outweighed the danger of unfair prejudice. The trial court, however, did not undertake a 403 analysis with respect to the evidence of uncharged acts, and the six children and Defendant testified as follows:

1. Abby H.

¶ 8 Count 5 of the indictment alleged that Defendant had molested Abby H. at her home between June 19, 1993, and June 18, 1994. Count 6 alleged the same for the period between June 19, 1993, and December 31, 1996. These were the two molestation counts that resulted in convictions.

¶ 9 Abby H. was born on June 16, 1989. She testified that she had known Defendant, whom she called "Uncle Joe," her entire life. He was a frequent visitor to her home and would sometimes take her and her sisters to the movies and to the Salt River. On occasion, Defendant would participate in sleep-overs at her home. When this happened Defendant, Abby, and her sisters would sleep next to each other on blankets or sleeping bags on the living room floor. Abby H. said that during a "lot" of these sleep-overs Defendant would stick his hands in her underwear "and put his finger up my private" and "wiggle it around." Although this was painful, Abby never told Defendant to stop because "he would tell me it's okay."

¶ 10 Abby H. also said that on some trips to the Salt River Defendant had her touch his "private" when the other girls were playing in the water.

2. Chelsea P.

¶ 11 Count 1 of the indictment alleged that Defendant molested Chelsea P. between January and December 1996 while she was at Abby H.'s home. Chelsea P. was born on May 28, 1990. She testified that on more than one occasion while he pushed her on a swing, Defendant would "squeeze" her "privates." Defendant was acquitted of count 1.

3. Adele H.

¶ 12 Adele H., Abby H.'s sister, was born November 2, 1991. Counts 2 and 3 alleged that Defendant molested Adele H. once at her home and once at the movies, both events occurring between November 2, 1995, and December 25, 1996. Adele testified that when Defendant took her to the movies, she would sit on his lap and he would touch her underneath her clothes. She also testified that he touched her "private area" during sleep-overs. Defendant was acquitted of counts 2 and 3.

4. Amanda H.

¶ 13 Amanda H., another of Abby H's. sisters, was born on November 25, 1987. Count 4 alleged that Defendant molested Amanda H. at her home between November 25, 1994, and November 24, 1996. Amanda testified that Defendant would "rub" her "private area" when she rode with him in his car or company truck. She also testified that Defendant would say, "Give me a few rubs. I'll give you some candy." Defendant was acquitted of Count 4 5. Jamie R.

¶ 14 Jamie R. was born July 9, 1990. Count 7 alleged that Defendant molested her at Abby H.'s home by touching her genitals with his foot. This incident allegedly occurred between August 15, 1996, and December 31, 1996. Defendant was acquitted of Count 7.

¶ 15 Jamie testified that Defendant visited her home two or three times a week, and would take her and other children on outings. Jamie testified that on a sleep-over at Abby H.'s house Defendant had touched her "private part" with his fingers. She also testified that Defendant had touched her more than once, and that sometimes he would try to put his "private part" inside her: "He tried to but he couldn't." Jamie R. also testified that one time Defendant photographed her "private area."

¶ 16 Jamie R.'s mother, Barbara B., also testified. She said that just before Christmas of 1996 Defendant had come to her home for a visit. Barbara, Defendant, and Jamie were playing a "game" and tickling each other under a blanket. Barbara got kind of sleepy and was just "sitting there." Then, she picked up the blanket and "noticed my daughter had ahold of [Defendant's] dick." Defendant was "very into it, very content." Barbara testified that she then pulled the blanket away and asked Defendant to leave.

6. Sarah H.

¶ 17 Counts 8 and 9 alleged that Defendant molested Sarah H. twice during trips to the Salt River between December 23, 1994, and December 22, 1996. Count 10 alleged that he attempted to molest her, and Count 11 alleged that he exposed himself to her, both during the same period of time. Defendant was acquitted of counts 8, 9, and 10, but convicted of count 11.

¶ 18 Sarah H. testified that she was born on December 23, 1988, and that she grew up with Abby H. and her sisters, whose mother babysat her. Sarah referred to Defendant as "Uncle Joey." She testified that Defendant would take the girls on trips to the Salt River, and that one time when she was in Defendant's car, he showed her his "private" and offered her candy if she would touch it. She testified that Jaime R. was present in the car during this incident. Jaime R., however, did not remember the incident. She also testified that on other trips to the river Defendant would set the girls on his lap and touch them under their clothing. She said these...