State v. Marshall

• Citation: 197 Ariz. 496,4 P.3d 1039
• Decision Date: 20 April 2000
• Docket Number: No. 1 CA-CR 99-0105.,1 CA-CR 99-0105.
• Parties: STATE of Arizona, Appellee, v. Charles MARSHALL, Appellant.
• Court: Arizona Court of Appeals

4 P.3d 1039

197 Ariz. 496

STATE of Arizona, Appellee, v. Charles MARSHALL, Appellant.

No. -0105.

Court of Appeals of Arizona, Division 1, Department E.

April 20, 2000.

Janet Napolitano, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, and Consuelo M. Ohanesian, Assistant Attorney General, Phoenix, for Appellee.

Dean W. Trebesch, Maricopa County Public Defender by Anna M. Unterberger, Deputy Public Defender, Phoenix, for Appellant.

OPINION

GERBER, Judge.

¶ 1 The defendant, Charles Marshall, appeals from his convictions and sentences on seventeen counts of sexual conduct with a minor under the age of fifteen, three counts of molestation of a child and one count of sexual exploitation of a minor under fifteen, all committed against his girlfriend's sister. He raises the following issues on appeal: (1) that the trial court erred in denying his request to sever counts; (2) that the trial court erred in denying his motion for a mistrial; (3) that the trial court improperly limited his arguments thereby depriving him of his defense; (4) that there was insufficient evidence to support the charges of child molestation; (5) that the trial court erred in refusing to give the jury a lesser-included offense instruction on the charge of sexual misconduct with a minor; and (6) that there was insufficient evidence to support the charges of sexual conduct with a minor. We disagree and affirm Marshall's convictions.

Severance of Counts 17 and 18

¶ 2 Marshall contends that the trial court erred in refusing to sever Counts 17 and 18 of the amended indictment, which charged Marshall with engaging in sexual conduct with the then nine-year-old victim in March 1995. The remaining crimes were allegedly committed against the victim, by then aged ten, over four days in October 1996. Marshall videotaped those offenses. Before trial, Marshall unsuccessfully sought to sever Counts 17 and 18 from the conduct appearing on the videotape.

¶ 3 Arizona Rule of Criminal Procedure 13.3(a)(1)(1998) permits joinder of offenses that are of the same or similar character. If the offenses are joined solely by virtue of Rule 13.3(a)(1), a defendant is entitled to severance as a matter of right. See Ariz. R.Crim. P. 13.4(b) (Supp.1999). Nevertheless, denial of severance results in reversible error only if the evidence of other crimes would not have been otherwise admitted at trial for evidentiary purposes. See State v. Stuard, 176 Ariz. 589, 596-97, 863 P.2d 881, 888-89 (1993).

¶ 4 Marshall claims that the trial court erred in concluding that joinder was proper because the evidence was admissible under Arizona Rule of Evidence 404(b) to prove common scheme or plan, motivation or intent and to rebut the noticed defenses, including lack of sexual motivation. We need not consider this contention, however, because the evidence admissible to prove the aberrant sexual acts charged in the other counts was also admissible to prove Marshall's propensity to commit Counts 17 and 18, and vice versa. See State v. Jones, 188 Ariz. 534, 539, 937 P.2d 1182, 1187 (App.1996) (finding 404(b) analysis unnecessary when similar sex offense committed against same victim was admissible to show defendant's lewd disposition or unnatural attitude toward particular victim).

¶ 5 Marshall concedes that evidence of other acts is admissible in sexual misconduct cases if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the crime charged. See Ariz. R. Evid. 404(c) (Supp.1999). He claims, however, that reversal is required because the trial court failed to make formal findings from which it could be concluded (1) that Marshall committed the acts alleged in Counts 17 and 18; (2) that such acts would reasonably support an inference of aberrant sexual propensity; and (3) that the evidentiary value of the other acts was not outweighed by the danger of unfair prejudice. See Ariz. R. Evid. 404(c)(1).

¶ 6 The victim testified that Marshall had committed each of the alleged acts. Even if, arguendo, her testimony alone was insufficient to constitute clear and convincing evidence that Marshall committed Counts 17 and 18, the videotape evidence of the remaining counts was sufficient proof that he had committed those acts to warrant their admission in a separate trial on Counts 17 and 18. See State v. Terrazas, 189 Ariz. 580, 582, 944 P.2d 1194, 1196 (1997) (requiring proof by clear and convincing evidence that defendant committed prior bad acts). Furthermore, that the acts were committed against the same victim and were similar in nature justified the admission of evidence of each act in proof of the others. See Jones, 188 Ariz. at 539, 937 P.2d at 1187.

¶ 7 The trial court expressly found that the prejudicial effect of joinder did not outweigh the probative value under Arizona Rule of Evidence 403. While the videotape evidence was certainly damning, we disagree with Marshall's contention that any risk of unfair prejudice outweighed the value of that evidence to prove Counts 17 and 18. Nor was the conduct alleged in Counts 17 and 18 so remote in time as to require severance. See Comment to 1997 Amendment to Rule 404 (Supp.1999) (rejecting bright-line test for remoteness, notwithstanding language to the contrary in State v. Treadaway, 116 Ariz. 163, 568 P.2d 1061 (1977)). Under the circumstances, the trial court's failure to set forth specific findings as required by Rule 404(c) was at most harmless error. Joinder of the offenses did not deprive Marshall of a fair trial. See Ariz. R.Crim. P. 13.4(a) (Supp.1999) (providing for severance if necessary to promote fair determination of guilt or innocence).

Undisclosed Bad Acts

¶ 8 Marshall claims that the trial court erred in failing to declare a mistrial with respect to Counts 17 and 18 after the victim testified as to other uncharged bad acts committed by him. Count 17 charged Marshall with performing oral sex on the victim. Count 18 alleged that Marshall had the victim perform oral sex during the same occasion. During her trial testimony, the victim first described the act alleged in Count 18. The prosecutor, in an attempt to elicit testimony supporting Count 17, asked whether Marshall did anything to any part of the victim's body. She responded that Marshall had penetrated her vagina with his penis and his fingers. She then described the act alleged in Count 17. Surprised by the allegations of uncharged acts of digital and penile penetration, defense counsel objected under Arizona Rule of Evidence 404(b) and Arizona Rule of Criminal Procedure 15.1.

¶ 9 After an unrecorded bench conference, the trial court sustained the objection but did not instruct the jury to disregard any portion of the testimony. Defense counsel subsequently asked to make a record on the issue, contending that the court should have granted a mistrial or, alternatively, given a cautionary instruction. The court denied the motion for mistrial but afforded Marshall an opportunity to submit a curative instruction. He did not do so.

¶ 10 When a witness unexpectedly volunteers an inadmissible statement, the remedy rests largely within the discretion of the trial court. See State v. Adamson, 136 Ariz. 250, 262, 665 P.2d 972, 984 (1983). A declaration of a mistrial, the most dramatic remedy for trial error, should be granted only when it appears that justice will otherwise be thwarted. See id. We review a trial court's denial of a motion for mistrial under an abuse of discretion standard. See State v. Gulbrandson, 184 Ariz. 46, 62, 906 P.2d 579, 595 (1995).

¶ 11 Marshall concedes that the prosecutor was completely surprised by the victim's testimony yet contends that a mistrial was required as a sanction for the State's violation of the discovery rules. See Ariz. R.Crim. P. 15.1 (setting forth State's disclosure obligations). According to Marshall, the prosecutor's duty to disclose information possessed by persons within the prosecutor's control under Rule 15.1(d) includes a duty to predict the trial testimony of a victim, particularly when, as here, the victim has declined a defense interview.

¶ 12 Under certain circumstances, a prosecutor may be held accountable for the failure of those within her control to timely disclose material evidence. See State v. Towery, 186 Ariz. 168, 186-87, 920 P.2d 290, 308-09 (1996) (prosecutor could be accountable for failure of expert to transmit nine-month-old report until less than week before trial). However, Marshall cites no authority requiring the prosecutor to be clairvoyant. Nor do we believe that the discovery rules are subject to such a broad interpretation. See State v. Mosley, 119 Ariz. 393, 400, 581 P.2d 238, 245 (1978) (concluding that neither letter nor spirit of Rule 15.1 applied to situation where prosecutor first received notice of defendant's "track marks" during trial). Barring willful ignorance or other bad faith, a prosecutor cannot reasonably be required to disclose in advance information the victim unexpectedly reveals for the first time during trial. See State v. Piper, 113 Ariz. 390, 392, 555 P.2d 636, 638 (1976) (holding that victim does not become agent of state, for purpose of Rule 15.1(d), simply by cooperating with prosecutor).

¶ 13 Furthermore, a mistrial based upon a claim of evidentiary error is warranted only when the jury has been exposed to improper evidence and the error might have affected the verdict. See Gulbrandson, 184 Ariz. at 62,906 P.2d at 595. Had the other acts been disclosed prior to trial, they would have undoubtedly been admissible either as evidence of Marshall's propensity to commit aberrant sex offenses upon the victim or because they were so much part and parcel of the criminal episode involving Counts 17 and 18 so as to be "intrinsic" to the charged offenses. See State v. Dickens, 187 Ariz. 1, 18 n. 7, 926 P.2d 468, 485 n. 7 (1996) (intrinsic evidence includes that which is...