State v. Jones
| Decision Date | 19 November 1996 |
| Docket Number | Nos. 1,CA-CR,s. 1 |
| Citation | 188 Ariz. 534,937 P.2d 1182 |
| Parties | , 230 Ariz. Adv. Rep. 24 STATE of Arizona, Appellee, v. Richard Lewis JONES, Appellant. 93-0377, 1 93-0388. |
| Court | Arizona Court of Appeals |
Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section and Consuelo M. Ohanesian, Assistant Attorney General, Phoenix, for Appellee.
Sandra Burt Freedman, Scottsdale, for Appellant.
Richard Lewis Jones ("defendant") appeals (i) his convictions and sentences for eight counts of sexual assault, a class 2 felony and dangerous crime against children, and (ii) the revocation of his probation following a conviction on one count of endangerment, a class 6 felony. For the following reasons, we affirm six of defendant's convictions, reverse two of his convictions, and affirm his probation revocation with one modification.
Defendant sexually abused his eldest daughter, CJ, at various times over a ten-year period. CJ was 14 years old when defendant last assaulted her. On October 20, 1992, approximately two weeks after the last assault, CJ, her 13-year-old brother RJ, and her 11-year-old sister SJ reported the abuse to local police.
CJ provided police with details of defendant's assaults, all of which included acts of oral sex as well as penile penetration of CJ's vagina and/or anus. The police investigation led to an indictment charging defendant with eight counts of sexual assault.
In February 1993, shortly after the jury selection process began, CJ, RJ and SJ told the prosecutor that CJ's allegations were false. They said that they had lied to punish defendant for having had an extra-marital relationship, and for the purpose of getting him out of the house.
The case proceeded to trial in March 1993. When CJ, RJ, and SJ failed to appear on the first day of trial, despite a subpoena to do so, they were arrested pursuant to a civil arrest warrant. They were then placed in the Maricopa County juvenile detention center where they remained for approximately one week, until they finished testifying.
CJ testified that her original allegations were true, that defendant had in fact molested her, and that she and her siblings had lied in February to avoid testifying against defendant. RJ's testimony was consistent with CJ's, but SJ testified that the original allegations were false and the February story was true.
A jury convicted defendant on all charges. The court sentenced defendant to aggravated, consecutive 25-year prison terms on all eight counts. Defendant was credited with 223 days of presentence incarceration.
In cause number CR 92-02303, defendant was charged with attempted flight from a law enforcement vehicle in violation of Ariz.Rev.Stat. Ann. ("A.R.S.") section 28-622.01, designated as a class 6 felony pursuant to Ariz.Rev.Stat. Ann. section 13-1001(C)(5). Defendant entered a plea agreement on June 9, 1992, in which he pled guilty to felony endangerment under A.R.S. section 13-1201, a class 6 felony. He received a term of probation. Immediately after sentencing in cause number CR 92-08919, however, the court revoked his probation because of those convictions. The court imposed a 1.5-year sentence on the endangerment charge to be served consecutively to the sentences imposed in CR-92-08919. Defendant was credited with 365 days of presentence incarceration.
Defendant filed a timely notice of appeal in both cases. This court consolidated defendant's appeals by an order dated October 22, 1993. We have jurisdiction to adjudicate the appeal. Ariz. Const. art. VI, § 9; A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-4033(1).
We address the following issues: 2
A. Whether defendant's convictions are supported by substantial evidence;
B. Whether the trial court properly admitted evidence of defendant's prior bad acts;
C. Whether the trial court properly denied defendant's motion for a new trial based on the prosecutor's unsupported statement, in closing argument, that defendant's wife "wouldn't put it past her husband to do those things to his daughter";
D. Whether the trial court properly permitted CJ's examining physician to testify that CJ told him defendant had sex with her;
E. Whether the trial court properly admitted the contents of a note written by CJ to her examining physician during the course of her treatment.
F. Whether the trial court properly permitted a police officer to testify as to the dates of the assaults based on information provided by CJ and recorded in a police report;
G. Whether the mandatory and consecutive sentencing provisions set forth at A.R.S. sections 13-604 and 13-604.01 violate the separation of powers doctrine embodied in Article 3 of the Arizona Constitution; and
H. Whether defendant's eight consecutive 25-year sentences offend the Arizona and federal constitutional prohibitions against cruel and unusual punishment.
I. Whether the detention during trial of CJ, RJ, and SJ denied defendant a fair trial.
J. Whether the trial court erred in naming the underlying offense in revoking defendant's probation in cause no. CR 92-02303.
We begin with an issue not raised by defendant. Our review of the record reveals that there was insufficient evidence to support two of defendant's eight convictions. Insufficiency of the evidence is fundamental error. State v. Jannamon, 169 Ariz. 435, 439-40, 819 P.2d 1021, 1025-26 (App.1991).
The indictment charged defendant with the following counts of sexual assault against CJ: I, oral contact; II, intercourse; III, oral contact; IV, oral contact; V, oral contact; VI, oral contact; VII, intercourse; and VIII, intercourse; totalling five counts of oral contact and three counts of intercourse. The jury found defendant guilty of each count, specifying the nature of the sexual assault on the verdict form.
CJ, however, testified to only seven assaults: three acts of oral contact and four counts of intercourse. There was no evidence of an eighth assault from any source. We therefore conclude that one of defendant's convictions for oral contact must be reversed for insufficient evidence.
Additionally, one of defendant's convictions for sexual assault by oral contact was supported only by evidence of sexual intercourse, rather than oral contact. We therefore conclude that another of defendant's convictions for oral contact must be reversed for insufficient evidence. 3
The oral contact counts in the indictment were alleged to have occurred in the following time periods: Count I, on or about October 1992; Counts III and IV, between March and June 1992; and Counts V and VI, on or about July 1992. Count I is supported by CJ's testimony that an act of fellatio occurred in September or October 1992. Count III is supported by CJ's testimony that an act of fellatio occurred between March and June 1992. Count V is supported by CJ's testimony that a second act of fellatio occurred in September or October 1992. 4 Thus, the counts not supported by the evidence are Counts IV and VI.
Although the eight sexual assaults charged in the indictment took place in 1992, the state moved in limine to admit evidence that defendant had committed sexual assaults against CJ from the time she was five years old. The state grounded its motion in Rule 404(b) of the Arizona Rules of Evidence (the "Rules"), asserting that the evidence showed a common plan, scheme or design, opportunity, preparation, identity, corroboration or continuing course of conduct, or was necessary to complete the story. The trial court ruled that the evidence was admissible under Rule 404(b) to "complete the story" and to show absence of mistake or accident, motive or opportunity. The trial court also determined that the probative value of the evidence outweighed its prejudicial value.
Defendant argues that the prior acts were admitted solely to show his propensity to commit the crimes charged; that such evidence was inadmissible in the absence of foundational medical expert testimony under State v. Treadaway, 116 Ariz. 163, 568 P.2d 1061 (1977); that the prejudicial impact of the evidence outweighed its probative value; and that admission of the evidence was reversible error.
We need not, however, reach the issue of whether the prior acts were admissible under the enumerated exceptions set forth in Rule 404(b), because we reject defendant's argument on the basis of State v. Garner, 116 Ariz. 443, 447, 569 P.2d 1341, 1345 (1977). In Garner, our Supreme Court held that "[i]n a case involving a sex offense committed against a child, evidence of a prior similar sex offense committed against the same child is admissible to show the defendant's lewd disposition or unnatural attitude toward the particular victim." (Emphasis added.) The state, therefore, did not need to rely on an exception to Rule 404(b) since this particular type of evidence is admissible to show propensity. Id.; State v. Rojas, 177 Ariz. 454, 460, 868 P.2d 1037, 1043 (App.1993).
Moreover, a Treadaway hearing is unnecessary where, as here, the prior bad acts are similar in nature and involve the same victim. "Expert testimony is not needed, and remoteness is not an issue ... when similar molestations occur incessantly over a long period of time against the same victim." Rojas, 177 Ariz. at 460, 868 P.2d at 1043. Here, defendant's assaults followed the same pattern over a course of several years, and CJ was his only victim. The case on which defendant relies, State v. Hopkins, 177 Ariz. 161, 866 P.2d 143 (App.1993), is inapposite because it involved evidence of defendant's prior sexual molestation of family members other than the victim. Accordingly, the trial court did not err by admitting evidence of defendant's prior sexual acts against CJ.
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