State v. Herrera
| Decision Date | 10 February 2011 |
| Docket Number | No. 2 CA-CR 2008-0273.,2 CA-CR 2008-0273. |
| Citation | 226 Ariz. 59,243 P.3d 1041 |
| Parties | The STATE of Arizona, Appellee, v. Raul HERRERA III, Appellant. |
| Court | Arizona Court of Appeals |
Terry Goddard, Arizona Attorney General By Kent E. Cattani and David A. Sullivan, Tucson, Attorneys for Appellee.
Robert Hirsh, Pima County Public Defender By Frank P. Leto, Tucson, Attorneys for Appellant.
¶ 1 In 2008, appellant Raul Herrera was convicted after a jury trial of two counts of sexual conduct with a minor under fifteen, one count of sexual exploitation of a minor under fifteen, and one count of kidnapping. Herrera argues the trial court erred in admitting evidence of other acts and in precluding evidence of the victim's prior sexual history. He also contends the testimony of the state's expert, Wendy Dutton, improperly invaded the province of the jury. For the following reasons, we affirm.
¶ 2 "We construe the evidence in the light most favorable to sustaining the verdict[s], and resolve all reasonable inferences against the defendant." State v. Greene, 192 Ariz. 431, ¶ 12, 967 P.2d 106, 111-12 (1998). In 2007, Herrera's stepdaughter told a friend she was being sexually abused by her stepfather. She then reported the abuse to her school guidance counselor. The state charged Herrera with three counts of sexual conduct with a minor under fifteen and two counts of sexual exploitation of a minor under fifteen. The indictment alleged that these counts were dangerous crimes against children. Herrera also was charged with one count of kidnapping.1
¶ 3 The three sexual conduct charges alleged Herrera had "ha[d] the victim masturbate him," had "plac[ed] his penis inside the victim's vulva," and "ha[d] the victim place her mouth on his penis." The sexual exploitation charges alleged Herrera had possessed two digital photographs of his stepdaughter "engaging in actual or simulated oral sex." And, the kidnapping count alleged Herrera had kidnapped the victim "with the intent to inflict ... physical injury or a sexual offense on her."
¶ 4 Herrera was convicted, as specified above, of four of the six counts. The jury found him not guilty of the two remaining counts. The trial court imposed presumptive, consecutive prison terms totaling 60.5 years. This appeal followed. Although Herrera's opening brief includes a lengthy recitation of the entire case history,2 he raises three specific contentions on appeal. We address these in turn.
¶ 5 Before trial, in compliance with Rule 15.1(b)(7), Ariz. R.Crim. P., the state filed a notice disclosing its intent to introduce at trial various uncharged acts allegedly perpetrated by Herrera. This evidence included two portions of a videotape taken by Herrera that displayed the victim with her breasts exposed. In one portion, Herrera was instructing her to jump up and down; in the other she was making a sexually explicit statement. The evidence also included statements made by the victim to law enforcement officers describing uncharged acts perpetrated by Herrera before and during the time period within which the indictment alleged the charged offenses had been committed.
¶ 6 Herrera opposed the admission of this evidence on the following grounds: there was insufficient evidence establishing he had committed the uncharged acts; the evidence was improper character evidence under Rule 404, Ariz. R. Evid., and was not admissible under the exception created by Rule 404(c) because the acts did not show he had a character trait giving rise to an aberrant sexual propensity; and, the danger of unfair prejudice outweighedthe evidence's probative value. The state later disclosed its intent to introduce a videotape made by Herrera that depicted "the victim's genitalia." Herrera objected to this evidence as well, incorporating his previous objections to other-acts evidence, and arguing there was inadequate foundation and the evidence should at least be "edited such that only those segments identified by the alleged victim as being herself are view[ed] by the jury."
¶ 7 After a hearing, Judge Cruikshank ruled that the two portions of videotape depicting the victim's breasts were admissible because the evidence was intrinsic to the charged offenses, and that the court would admit the evidence as long as the state was able to introduce sufficient foundation evidence establishing that the person depicted in the videotape portions was the victim. Judge Cruikshank ruled that the victim's statements to law enforcement officers about other acts also was intrinsic to the charged offense and, consequently, admissible as well. The judge added that because the other-act evidence was admissible under the intrinsic-evidence principle, he was not required to analyze the admissibility of the proffered evidence under Rule 404(b) or Rule 404(c).
¶ 8 Subsequently, Judge Campoy 3 held a hearing regarding the admissibility of the images of genitalia, which were derived from the videotape. He ruled that one image was admissible because the victim had identified herself as the person portrayed in that image but that the full videotape and another image were inadmissible due to inadequate foundation. Defense counsel then asked Judge Campoy to reconsider Judge Cruikshank's previous rulings on the other-acts evidence, claiming that some of the other acts were not intrinsic to the charged offenses because they had occurred when the victim and Herrera had lived in Yuma (hereinafter "Yuma Acts"), before the time during which the charged offenses allegedly had been committed. Although Judge Campoy refused to reconsider Judge Cruikshank's previous rulings, he commented, nevertheless, that the challenged evidence "would be part and parcel and intrinsic to the charges."
¶ 9 At trial, Herrera objected when the prosecutor asked the victim where the first sexual contact between her and Herrera had taken place, arguing the evidence was irrelevant. Judge Cahill overruled the objection and the victim responded, "Yuma." Herrera again objected and, following a bench conference, the court stated it "ha[d] independently looked at the arguments of counsel" and overruled Herrera's objection to evidence relating to the Yuma Acts.
¶ 10 "We review the [trial] court's decision to admit other acts evidence for [an] abuse of discretion." State v. Villalobos, 225 Ariz. 74, ¶ 18, 235 P.3d 227, 233 (2010). Similarly, a trial court's decision to admit evidence and overrule a relevancy objection is reviewed for an abuse of discretion. See State v. Wood, 180 Ariz. 53, 61-62, 881 P.2d 1158, 1166-67 (1994). A ruling is an abuse of discretion when "the reasons given by the court ... are clearly untenable, legally incorrect, or amount to a denial of justice." State v. Chapple, 135 Ariz. 281, 297 n. 18, 660 P.2d 1208, 1224 n. 18 (1983).
¶ 11 Rule 404(b) provides that "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." In other words, other-act evidence is generally inadmissible for the purpose of " 'show[ing] that the defendant is a bad person or has a propensity for committing crimes.' " State v. Hargrave, 225 Ariz. 1, ¶ 10, 234 P.3d 569, 576 (2010), quoting State v. McCall, 139 Ariz. 147, 152, 677 P.2d 920, 925 (1983). But the rule also provides that evidence of other acts may be offered "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Ariz. R. Evid. 404(b); see also State v. Dickens, 187 Ariz. 1, 19, 926 P.2d 468, 486 (1996). Additionally, in cases involving charges of sexual misconduct, other-acts evidence is admissible under Rule 404(c) toprove the "defendant ha[s] a character trait giving rise to an aberrant sexual propensity."
¶ 12 Evidence of other acts also may be admitted if the evidence is intrinsic to the charged offense. This ground for admitting other-acts evidence is independent of, and without regard to, Rule 404, the exceptions the rule provides, and an analysis under the rule. See State v. Nordstrom, 200 Ariz. 229, ¶ 56, 25 P.3d 717, 736 (2001). Evidence is intrinsic "when 'evidence of the other act and evidence of the crime charged are "inextricably intertwined" or both acts are part of a "single criminal episode" or the other acts were "necessary preliminaries" to the crime charged.' " Id., quoting Dickens, 187 Ariz. at 19 n. 7, 926 P.2d at 486 n. 7. Thus, Rule 404(b) is not implicated when evidence is intrinsic to the charged offense because the probative value of such evidence does not depend solely on an inference of criminal propensity. See Dickens, 187 Ariz. at 19 n. 7, 926 P.2d at 486 n. 7; State v. Baldenegro, 188 Ariz. 10, 15-16, 932 P.2d 275, 280-81 (App.1996); see also United States v. Soliman, 813 F.2d 277, 279 (9th Cir.1987) (), quoting United States v. Aleman, 592 F.2d 881, 885 (5th Cir.1979).
¶ 13 Herrera argues the other-acts evidence was not intrinsic to the crimes charged. He asserts the trial court should have conducted an analysis under Rule 404 and had it done so, the evidence would not have been admissible under any of the exceptions to the general rule precluding admission of character evidence. Relying, in part, on State v. Garcia, he maintains that because the Yuma Acts purportedly were committed before the charged offenses, they were not intrinsic, but were, as the court in Garcia described the other acts in that case, "discrete offenses, identical to but occurring at different times than the ones charged." 200 Ariz. 471, ¶ 33, 28 P.3d 327, 333 (App.2001). He also argues that the acts purportedly committed within the time frame of the charged offenses...
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State v. Herrera
...to presumptive, consecutive prison terms totaling 60.5 years. We affirmed the convictions and sentences on appeal, State v. Herrera, 226 Ariz. 59, 243 P.3d 1041 (App.2010), and Herrera filed a petition for review in our supreme court. The supreme court granted review, vacated this court's o......
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State v. Herrera
...to presumptive, consecutive prison terms totaling 60.5 years. We affirmed the convictions and sentences on appeal, State v. Herrera, 226 Ariz. 59, 243 P.3d 1041 (App. 2010), and Herrera filed a petition for review in our supreme court. The supreme court granted review, vacated this court's ......
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State v. Churchwell
...be admitted only" if certain conditions are met. See State v. Gilfillan, 196 Ariz. 396, ¶ 16, 998 P.2d 1069, 1074 (App. 2000); State v. Herrera, 226 Ariz. 59, ¶ 30, 243 P.3d 1041, 1050 (App. 2010). Section 13-1421(B) provides that the "standard for admissibility of [such] evidence... is by ......
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The State Of Ariz. v. Churchwell
...be admitted only" if certain conditions are met. See State v. Gilfillan, 196 Ariz. 396, ¶ 16, 998 P.2d 1069, 1074 (App. 2000); State v. Herrera, 226 Ariz. 59, ¶ 30, 243 P.3d 1041, 1050 (App. 2010). Section 13-1421(B) provides that the "standard for admissibility of [such] evidence... is by ......