State v. Kader
| Decision Date | 05 November 2013 |
| Docket Number | No. 2 CA-CR 2012-0450,2 CA-CR 2012-0450 |
| Parties | THE STATE OF ARIZONA, Appellee, v. KIM WAYNE KADER Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Court 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED IN PART; VACATED IN PART
Thomas C. Horne, Arizona Attorney General
by Joseph T. Maziarz, Section Chief Counsel, Phoenix
and Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee
Lori J. Lefferts, Pima County Public Defender
by Michael J. Miller, Assistant Public Defender, Tucson
Counsel for Appellant
Judge Miller authored the decision of the Court, in which Presiding Judge Vásquez and Chief Judge Howard concurred.
¶1 Kim Kader was convicted after a jury trial of furnishing harmful items to a minor, seven counts of sexual conduct with a minor less than fifteen years of age, two counts of molestation of a child, kidnapping, and luring a minor for sexual exploitation. Kader appeals from his convictions and sentences and claims the trial court erred with respect to certain evidentiary rulings. He also contends there was prosecutorial misconduct, there was insufficient evidence to sustain his convictions on several counts, and that two of his life sentences were illegal. We affirm his convictions and sentences on all counts but two and four. For the reasons set forth below, we vacate his life sentences on counts two and four and remand for resentencing. We also vacate the criminal restitution order.
¶2 We view the evidence in the light most favorable to sustaining the jury's verdicts. State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In June 2010, S.B., a twelve-year-old boy, came to Tucson for a multi-day visit with Kader at the apartment he shared with his roommate C.N.; both were friends of S.B.'s family. Kader engaged in various acts of sexual conduct with S.B. Upon returning home, S.B. told his family what had occurred, and the police were notified.
¶3 Kader was charged as indicated and convicted of all counts. The trial court imposed seven consecutive life sentences, to follow sentences on the other counts, which were concurrent with each other, the longest being seventeen years. Kader timely appealed his convictions and sentences.
¶4 Kader first argues the trial court erred in permitting a state's expert witness to testify, over his objection, about the long-term effects sexual abuse may have on victims. Kader contends the expert witness's testimony was irrelevant and speculative. We review the admissibility of expert testimony for an abuse of discretion. State v. Salazar-Mercado, 232 Ariz. 256, ¶ 4, 304 P.3d 543, 546 (App. 2013).
¶5 "A fundamental requirement for admission of any evidence is that it be relevant." State v. Fisher, 141 Ariz. 227, 245, 686 P.2d 750, 768 (1984); Ariz. R. Evid. 402 (). Where evidence "has any tendency to make a fact more or less probable" and "the fact is of consequence in determining the action," it is relevant. Ariz. R. Evid. 401.
¶6 Wendy Dutton, a forensic interviewer, testified for the state as an expert on the behavior and characteristics of child sexual abuse victims. On direct examination, Dutton stated that children who experience sexual arousal during the course of abuse are more likely to show trauma symptoms. Dutton was then asked what effect the "experienced arousal or orgasm" during sexual abuse would have on the victim. Kader objected to the question, contending that the effect of arousal during sexual abuse on the victim was speculative, irrelevant, and lacked foundation. Kader's objection was overruled, and Dutton testified that, based on her training, experience, and available literature, children who experience arousal or orgasm during sexual abuse may "feel as though they're responsible for the abuse happening" and that this experience can "impair their sexual response later in life and impairtheir intimate attachments with others." Kader again objected on the grounds that Dutton's testimony was "basically trying to instill some kind of pity . . . or sympathy for what may potentially happen." The trial court overruled Kader's objection, and Dutton continued her testimony, explaining that sexual abuse can lead to issues with acting out and aggressive sexual behavior.
¶7 Kader contends Dutton's testimony about the possibility that S.B. may have problems with intimate relationships or problems with sexual aggression in the future was irrelevant and had "no tendency to make it more or less likely that he was molested or had sexual contact" with Kader. We agree. In this case, Dutton's testimony was not relevant to a fact of consequence in determining whether Kader had molested or sexually abused S.B. Ariz. R. Evid. 401. Therefore, the evidence was inadmissible. Ariz. R. Evid. 402.
¶8 Having made this determination, we next examine whether the trial court's admission of this evidence was harmless. See State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993). "Error is harmless if it can be shown beyond a reasonable doubt that the error did not affect the verdict." State v. Jones, 185 Ariz. 471, 486, 917 P.2d 200, 215 (1996). Kader argues the admission of Dutton's testimony was not harmless error because it appealed to the sympathy of the jury and the central issue in the trial was S.B.'s credibility. When assessed in the context of all the evidence presented at trial, however, the irrelevant portions of Dutton's testimony constituted harmless error.
¶9 Dutton testified as a "blind" or "cold" expert and plainly stated she did not "know any of the facts of the case" to guard against "purposefully or inadvertently tailor[ing] [her] testimony to fit the facts of the case." Dutton's statements with respect to possible long-term effects of child sexual abuse on victims were presented in generalized, clinical terms and dealt with a wide range of mere possibilities. In addition, although S.B.'s credibility was at issue during the trial, Dutton's testimony was not improper opinion testimony on the "accuracy, reliability or credibility" of S.B.'s testimony. State v. Lindsey, 149 Ariz. 472, 475, 720 P.2d 73, 76 (1986) (). Rather, Dutton testified about the general behavioral characteristics of child sexual abuse victims.
¶10 The jury was presented with other evidence upon which it could assess S.B.'s credibility. S.B. provided lengthy and detailed testimony, the credibility of which the jury could determine for itself. The jury also had physical evidence with which to evaluate S.B.'s credibility, including transparent tape and pornographic magazines found in Kader's room, both of which corroborated S.B.'s testimony describing separate incidents of sexual conduct. In addition, S.B's DNA1 was found on a personal massager belonging to Kader. The trial court also properly instructed the jurors that they were not bound by any expert opinion and should give an opinion only the weight they believed it deserved. We presume they followed this instruction. See State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996).
¶11 Therefore, although Dutton's testimony about possible long-term effects of child sexual abuse victims had no relevance on the issue of whether Kader had committed the charged offenses, we conclude, in the context of all the evidence presented at trial, that it was harmless beyond a reasonable doubt. See State v. Ring, 204 Ariz. 534, ¶ 45, 65 P.3d 915, 933 (2003) (), quoting Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991); State v. McKinley, 157 Ariz. 135, 137-38, 755 P.2d 440, 442-43 (App. 1988) ().
¶12 Kader next argues the trial court erred in admitting his roommate's testimony about Kader's perceived medical ailments. He contends the evidence was inadmissible because it was privileged information disclosed pursuant to Rule 11.7, Ariz. R. Crim. P. We interpret criminal procedure rules de novo and first look to the plain language of a rule as "'the best and most reliable index of [the rule's] meaning.'" State ex rel. Thomas v. Newell, 221 Ariz. 112, ¶ 7, 210 P.3d 1283, 1285 (App. 2009), quoting State v. Hansen, 215 Ariz. 287, ¶ 7, 160 P.3d 166, 168 (2007). In addition, "[w]hether an evidentiary privilege exists is a question of law that we review de novo." State v. Archibeque, 223 Ariz. 231, ¶ 5, 221 P.3d 1045, 1048 (App. 2009).
¶13 A defendant's statement during a Rule 11.5, Ariz. R. Crim. P., competency hearing is privileged and inadmissible during trial. Ariz. R. Crim. P. 11.7. Rule 11.7(b)(1) specifically provides:
No statement of the defendant obtained under these provisions, or evidence resulting therefrom, concerning the events which form the basis of the charges against the defendant shall be admissible at the trial of guilt or innocence, or at any subsequent proceeding to determine guilt or innocence, without his or her consent.
¶14 Rule 11.7(b)(1) codifies the holding that it is fundamentally unfair for a court to compel a psychiatric examination and then to allow the court-appointed psychiatrist to relay a defendant's incriminating statements to the jury. State v. Tallabas, 155 Ariz. 321, 323, 746 P.2d 491, 493 (App. 1987); see also State...
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