State v. Hardwick
| Decision Date | 07 November 1995 |
| Docket Number | No. 1,CA-CR,1 |
| Parties | STATE of Arizona, Appellee, v. Arvine Mervin HARDWICK, Appellant. 94-0303. |
| Court | Arizona Court of Appeals |
Arvine Mervin Hardwick ("Defendant") appeals his convictions and sentences on sixteen counts of child molestation, attempted child molestation, sexual conduct with a minor, public indecency, and sexual abuse, all felonies and dangerous crimes against children under Title 13, Chapter 14 of the Arizona Revised Statutes Annotated ("A.R.S."). For the reasons that follow, we reverse the convictions and sentences imposed by the trial court and remand this case for a new trial.
At various times between 1987 and 1990, Defendant resided with his friend Daren, Daren's wife Linda, and Linda's three daughters KA, CA and BA. 2 The three girls were under fifteen years of age at that time. In 1993, KA told her stepmother that Defendant had molested her. The stepmother questioned CA and BA and concluded that Defendant had molested them, too. She contacted the Mesa Police Department. Police interviewed the victims and recorded a "confrontation call" from KA to Defendant in which Defendant made inculpatory statements.
A Maricopa County grand jury indicted Defendant on ten counts of child molestation and attempted child molestation under A.R.S. section 13-1410, three counts of sexual conduct with a minor under A.R.S. section 13-1405, four counts of indecency under A.R.S. section 13-1403, and one count of sexual abuse under A.R.S. section 13-1404. The case proceeded to a jury trial. KA, CA and BA testified to the details of the sex crimes, and the state played the tape recording of KA's confrontation call. Defendant attacked the credibility of the state's witnesses and introduced evidence of his good character. Defendant also testified on his own behalf, refuting the victims' allegations and explaining that his seemingly inculpatory statements during the confrontation call were actually innocent statements that had been misconstrued.
The trial court directed a verdict of acquittal on one count of attempted child molestation. The jury convicted Defendant on sixteen of the seventeen remaining counts. The trial court imposed sixteen consecutive prison sentences, two of which were aggravated, totalling 224 "flat" years of imprisonment. The court also ordered Defendant to pay restitution in the amount of $36,659. Defendant filed a timely notice of appeal. This court has jurisdiction to adjudicate the appeal. Ariz. Const. art. VI, § 9; A.R.S. §§ 12-120.21, 13-4031, 13-4033.
1. Whether there was sufficient evidence to support the convictions on counts 16 and 17;
2. Whether the trial court relied on appropriate factors in aggravating Defendant's sentence on Count 2;
3. Whether the trial court relied on appropriate factors in aggravating Defendant's sentence on Count 6; and
4. Whether the state's repeated references to an otherwise inadmissible document entitled "Child Molesters: A Behavioral Analysis" during cross-examination of Defendant constituted fundamental error, and, if so, whether that error was harmless.
We will discuss the last issue first as it is dispositive of the case.
The state's use of inadmissible hearsay evidence in the form of a document entitled "Child Molesters: A Behavioral Analysis" constituted fundamental error.
During the cross-examinations of Defendant and Defendant's character witnesses, the prosecutor established the following:
. Defendant was over 25 when he married.
. Defendant did not frequently date before his marriage.
. Defendant had a keen interest in children and his friends included children.
. Several of Defendant's child friends were neglected by their own families.
. Defendant was the "nice guy" in the neighborhood to whom children could turn and discuss their problems.
. Defendant had a business where he employed young children.
. Defendant took children out to a coffee shop and treated them to sodas.
. Defendant does not engage in sex with his wife or other adults.
At the conclusion of this line of questioning, the prosecutor asked Defendant, "Based on those traits, isn't it also true you are a classic child molester?" Defendant stated he had no idea, and the prosecutor handed him a document entitled, "Child Molesters: A Behavioral Analysis" marked state's Exhibit 8. The following cross-examination transpired:
The document itself, marked for identification as state's Exhibit 8, was not admitted into evidence.
Defendant argues that his trial counsel was ineffective for failing to object to the above-quoted line of questioning; Defendant asks us to reverse his conviction on that basis on direct appeal rather than obligating him to seek relief under Rule 32 of the Arizona Rules of Criminal Procedure. We do not review an ineffective assistance of counsel claim on direct appeal unless "we may clearly determine from the record that the ineffective assistance claim is meritless." State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989). This is not such a case.
Defendant's counsel did properly object to this line of questioning as both hearsay and improper expert opinion. See 17A A.R.S. Rules of Evid., Rules 701, 801. The trial judge overruled defense counsel's objection, apparently believing that the prosecutor had not yet done anything in violation of those rules. We disagree. Trial counsel stated the grounds for the objection and therefore it was sufficiently preserved for review on appeal. Goodman v. Carson, 84 Ariz. 177, 325 P.2d 819 (1958). Because the trial court incorrectly allowed inadmissible evidence over defense counsel's proper objection, we review for harmless error. State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993), cert. denied, --- U.S. ----, 114 S.Ct. 1578, 128 L.Ed.2d 221 (1994).
The prosecutor's questions to Defendant reiterated passages from a document (Exhibit 8) that purported to establish the traits of child molesters. Identifying common traits of child molesters is the province of experts. State v. Hamilton, 177 Ariz. 403, 868 P.2d 986 (App.1993) (). Information of this nature can only be admitted into evidence in the form of expert testimony or, alternatively, in the form of learned treatises if the proponent has shown that the treatise is reliable authority. Ariz.R.Evid. 803(18).
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