State v. Ives
| Decision Date | 07 November 1996 |
| Docket Number | No. CR-95-0360-PR,CR-95-0360-PR |
| Citation | 187 Ariz. 102,927 P.2d 762 |
| Parties | , 229 Ariz. Adv. Rep. 75 STATE of Arizona, Appellee. v. Craig Alan IVES, Appellant. |
| Court | Arizona Supreme Court |
Defendant Ives was charged with four counts of child molestation. The four counts alleged defendant "directly or indirectly touch[ed] the private parts" of each of three victims. Defendant moved to sever, contending that because the counts were joined pursuant to Rule 13.3(a)(1), Ariz. R.Crim. P. (allowing joinder of similar offenses), he was entitled to severance as a matter of right under Rule 13.4, Ariz. R.Crim. P. The trial judge denied the motion, holding the counts were properly joined pursuant to Rule 13.3(a)(3) (), and, therefore, defendant was not entitled to sever the counts as a matter of right under Rule 13.4.
At trial, each of the three victims testified. To resolve the issues presented by this appeal, a reasonably detailed summary of the trial testimony is helpful. T.C., the named victim in Count I, was ten years old at the time of her testimony. She testified that defendant, on separate occasions when she was eight, touched her "private parts" by "patt[ing] [her] on the butt," rubbing her "front private" under her dress but over her panties, and "touching ... skin to skin on [her] butt." T.C. also testified that defendant licked her in her ear. On at least two of these occasions, T.C.'s sister was present in the same room during the molestation but apparently saw nothing. T.C. told her sister about these incidents approximately two weeks after they occurred. The state alleged these acts occurred about nineteen months before the trial.
The second victim, L.M., was nine years old when she testified. She stated that defendant picked her up "by [her] bottom" in order to help her reach some plates which were in a cabinet. L.M. testified that defendant then asked her where some cups were located and picked her up a second time to get them. She could not remember how defendant picked her up the second time. At the time of these touchings, both L.M.'s sister and father were at home with her.
Later, after L.M.'s mother returned home, defendant invited L.M. to have a drink of his soda while he sat on the living room couch. When she stood next to him, he rubbed her on her "bottom." Defendant then offered her another drink. L.M. testified she was scared when defendant looked at her and "his eyes got big." She went to the couch and defendant rubbed her on her "front" or "nocha" (vagina) and "bottom," over her pants but under her dress. L.M. told her mother what happened soon thereafter. She testified that as defendant left, he passed by a window, looked in at L.M., put his finger to his lips, and motioned for her to be quiet. The state claimed these acts occurred about thirty-eight months before trial.
The third victim to testify was C.H. She was fifteen years old at the time of trial. She testified that while she, her family, and defendant were painting her house, defendant waved her over to him and touched her vagina over her clothes. C.H. also testified that on another occasion, defendant took her mother, brother, and C.H. to the store in his truck. While her mother was in the store, defendant again motioned C.H. over to him and touched her vagina over her clothing. C.H.'s brother, who was also in the truck at the time, was apparently distracted and saw nothing. C.H. told her father what happened that evening. The state alleged that these acts occurred sometime between June 1, 1985, and January 31, 1986, which placed the events between seven and eight years before trial.
Defendant renewed his motion to sever following the testimony of the three victims. The trial judge again denied the motion. Moreover, the trial judge permitted the state, under Rule 404(b), Ariz. R. Evid., to introduce the testimony of a fourth girl, T.J., as a witness of "other acts." 1 T.J. was fifteen years old at the time of her testimony. She testified that eleven years earlier, when she was four years old, defendant touched her vagina over her clothing after he had been pushing her on a swing. Her parents and brother were inside her house at the time. T.J. testified that on a different occasion, defendant touched her over her bathing suit while she was standing in a backyard pool.
T.J. described two other incidents. In one, defendant again touched her vagina over her swim suit. In the other, he repeatedly rubbed her vagina over her clothing while the two were reading on a couch in her living room. T.J. testified that it was unlikely she would have been home alone in any of these instances. The acts took place in the summer of 1982, at least three years prior to any of the activities described by the three victims.
Defendant presented evidence that one of the victims, L.M., had told defendant's previous counsel that she had never "been touched in the area that she used to go to the bathroom." Defendant testified in his own defense and denied ever having touched any of the girls in a sexual manner. The only touching which defendant admitted was steadying L.M. in order for her to get plates down and drying off T.J. at the request of her parents.
In its closing argument, the state relied heavily on the fact that defendant was charged with several similar crimes:
[O]ne thing that you've learned through this trial is that the victims' testimony ... is very similar.... He picks [L.M.] up by the buttocks.... Real similar to the type of touching he did with respect to [T.C.].... Keep in mind with respect to [T.C.] and [L.M.] .... almost identical conduct.... [W]hat [this consistency] tells us is that ... this is the way the defendant touches little girls.... And so by using the similarities in each case ... it helps us to see that the girls are being truthful.
(Emphasis added.) Defendant responded in his own closing argument by attacking the credibility of the victims' testimony. In particular, he pointed out the inconsistencies in T.C.'s testimony, relying in part on the following exchange from her cross-examination of T.C.:
The jury convicted defendant on all counts. The trial judge, noting his own opinion that the sentence was "unduly high," nevertheless followed the statutory sentencing scheme and sentenced defendant to sixty-eight years flat time: four consecutive, presumptive seventeen-year sentences to be served day for day. Defendant filed a motion to vacate judgment and sentence on the basis of newly-discovered evidence that L.M. had not only recanted to defendant's former counsel, but had also recanted to the previous prosecutor and to her mother. Defendant contended that this evidence would probably have changed the verdict and, therefore, requested a new trial as to all counts. The trial court granted the motion only as to the count involving L.M. At the state's request, the dismissal was without prejudice.
The court of appeals affirmed the convictions on the remaining three counts in a memorandum decision. Defendant petitioned this court to review the issue of whether "the trial court incorrectly concluded that the counts against [Ives] were properly joined as part of a 'common scheme or plan,' and whether evidence of each count, as well as other bad act evidence, would have been inadmissible at separate trials on each of the other counts had those counts been severed for trial." We granted review and have jurisdiction pursuant to Ariz. Const. art. VI, § 5(3), Ariz.Rev.Stat. Ann. (A.R.S.) § 12-120.24, and Ariz. R.Crim. P. 31.19.
1. Whether defendant was entitled to a severance as a matter of right.
2. Whether denial of a severance, if error, was harmless error.
Rule 13.3(a)(1), Ariz. R.Crim. P., allows joinder of offenses if they "[a]re of the same or similar character." Rule 13.3(a)(3) allows joinder of offenses "alleged to have been a part of a common scheme or plan." Rule 13.4(b) grants to the defendant the right to sever offenses joined by virtue of Rule 13.3(a)(1) (). Thus, if offenses are joined only because they are "of the same or similar character," the defendant may always sever them.
However, even if defendant is entitled to severance as a matter of right, the denial of severance is reversible error only if the evidence of other crimes would not have been admitted at trial "for an evidentiary purpose anyway." State v. Stuard, 176 Ariz. 589, 596-97, 863 P.2d 881, 888-89 (1993) (quoting Morris K. Udall, et al., Arizona Practice: Law of Evidence § 84, at 184 n. 14 (3d ed. 1991) [hereinafter "Arizona Evidence "]; see also State v. Van Winkle, 186 Ariz. 336, 340, 922 P.2d 301, 305 (1996) (). Th...
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