State v. Ploof, 2 CA-CR 2005-0137.

Citation141 P.3d 764
Decision Date31 July 2006
Docket NumberNo. 2 CA-CR 2005-0137.,2 CA-CR 2005-0137.
PartiesThe STATE of Arizona, Appellee, v. Jonathan Michael PLOOF, Appellant.
CourtCourt of Appeals of Arizona

Terry Goddard, Arizona Attorney General, by Randall M. Howe and Robert A. Walsh, Phoenix, for Appellee.

Thomas J. Phalen, Phoenix, for Appellant.

OPINION

VÁSQUEZ, Judge.

¶ 1 Appellant Jonathan Ploof was convicted following a five-day jury trial of three counts of child molestation and one count each of sexual conduct with a minor and attempted child molestation. The trial court sentenced him to mitigated prison terms on each count, four to be served consecutively and two to be served concurrently with another, totaling forty-three years. Ploof argues on appeal the trial court erred in admitting evidence of other acts, in denying his motion to sever the counts, in failing to properly instruct the jury, in allowing the state to amend the indictment without returning the case to the grand jury, in refusing to strike the jury pool after allegedly prejudicial statements by potential jurors, and in admitting improper expert testimony. Ploof also claims, but does not argue, that his sentences violate the Eighth Amendment. We affirm.

Facts

¶ 2 We view the facts in the light most favorable to upholding the verdicts, resolving all reasonable inferences against the defendant. State v. Greene, 192 Ariz. 431, ¶ 12, 967 P.2d 106, 111 (1998). Jonathan Ploof sexually abused three female victims under the age of fifteen. All three victims testified at trial.

¶ 3 The first victim, J., testified that Ploof had molested her when she was thirteen years old. Ploof was thirty-five or thirty-six at the time. J. testified that, while she was watching a movie at Ploof's house during the summer of 1996, with his wife and children present in the same room, Ploof had "massag[ed her] vagina area" under the cover of a blanket. Ploof then digitally penetrated her. That same summer, while they were swimming in the Ploofs' pool, Ploof took J.'s hand and tried to force her to touch his penis.

¶ 4 The second victim, S., testified that, during the summer of 1997, Ploof had sexually molested her. The first time occurred at Ploof's residence when he had massaged S.'s legs to relieve cramps she had suffered following softball practice. Although S. had told Ploof that only her calf muscle had cramped, he rubbed her legs up to her upper, inner thighs. Ploof then touched her vagina over her underwear, but beneath her shorts. Later that summer, this time at S.'s house, Ploof again touched S.'s vagina over her underwear on the pretext of massaging her legs. S. testified that, although Ploof had claimed the touching was accidental, he had continued to touch her in the same manner until she got up and left the room.

¶ 5 The third victim, T., testified that, in the summer of 2002, Ploof had sexually molested her. While in his daughter's room with her present, Ploof had given both girls a back rub. Instead of rubbing T.'s back only, Ploof had continued down her back and "felt" her vagina beneath her underwear.

¶ 6 Before trial, the state moved to admit evidence of other acts in which Ploof had behaved in an inappropriate sexual manner toward two of the three girls. Following an evidentiary hearing at which the victims testified, the trial court denied admission of one of the other acts and admitted the rest. In his appeal, Ploof primarily challenges the trial court's ruling on the admissibility of other acts evidence.

Other Acts Evidence

¶ 7 A trial judge must make three determinations before admitting other acts evidence that shows a defendant has "a character trait giving rise to an aberrant sexual propensity to commit the offense charged." Ariz. R. Evid. 404(c), 17A A.R.S. First, the court must determine that clear and convincing evidence exists "to permit the trier of fact to find that the defendant committed the other act." Ariz. R. Evid. 404(c)(1)(A); see State v. Aguilar, 209 Ariz. 40, ¶ 30, 97 P.3d 865, 874 (2004); State v. Terrazas, 189 Ariz. 580, 582, 944 P.2d 1194, 1196 (1997). Second the court must find that the "commission of the other act provides a reasonable basis to infer that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the crime charged." Ariz. R. Evid. 404(c)(1)(B). Third, the court must also find that the "evidentiary value of proof of the other act is not substantially outweighed by danger of unfair prejudice, confusion of issues, or other factors mentioned in Rule 403." Ariz. R. Evid. 404(c)(1)(C). And, finally, Rule 404(c) requires that the trial judge "make specific findings with respect to each of the prerequisites for admission under the rule." Aguilar, 209 Ariz. 40, ¶ 30, 97 P.3d at 874; see Ariz. R. Evid. 404(c)(1)(D).

¶ 8 Ploof broadly claims the trial court erred in admitting "irrelevant and prejudicial [Rule] 404(c) evidence and testimony."1 He opposed the state's motion to admit other acts evidence, arguing that the alleged other acts did not demonstrate he is the "type of person who has a propensity to commit child molestation or sexual conduct with a minor." Ploof also argued the evidence should have been precluded because the potential for prejudicial impact outweighed the probative value of the evidence. We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. State v. Tankersley, 191 Ariz. 359, ¶ 37, 956 P.2d 486, 496 (1998); State v. Garcia, 200 Ariz. 471, ¶ 25, 28 P.3d 327, 331 (App.2001).

¶ 9 At the evidentiary hearing on the motion, two victims testified about inappropriate behavior by Ploof. Following the hearing, the court ruled that the state would be permitted to introduce evidence that, following some roughhousing, Ploof had pinned J. to the ground and "looked her up and down," that Ploof had offered J. a pair of his wife's "pink lace" underwear, that he had peered through a door jamb to watch S. while she changed into her swimsuit, and that he had stared between S.'s legs while in his swimming pool. The court precluded the state from introducing evidence that Ploof had entered a bathroom and watched one of the victims shower.

¶ 10 The trial court addressed the requirements of Rule 404(c)(1)(A) through (C) in the following manner:

With regard to the allegations that Mr. Ploof held [J.] down and looked her up and down when he was on top of her, that evidence will be permitted.

The evidence that Mr. Ploof offered his wife's underwear to [J.] will be admitted.

And all of the alleged acts with regard to [S.] that she testified to yesterday will be admitted.

As to those acts that I've admitted, I find that the evidence as to all of those acts is sufficient from which the jury could find by clear and convincing evidence that the acts did occur. Secondly, I find that the acts provide a reasonable basis to infer that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the crimes charged as to said victims. And third, the evidentiary value of that evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or other factors enumerated under Rule 403 of the Rules of Evidence.

¶ 11 Ploof contends the other acts the trial court admitted were not proved by clear and convincing evidence. See Ariz. R. Evid. 404(c)(1)(A); Terrazas, 189 Ariz. at 582, 944 P.2d at 1196. We disagree. Each of the victims who testified at the hearing provided detailed accounts only about the other acts that Ploof had committed against her. And the other acts committed were similar in nature to the charged offenses. Admission of the other acts evidence was appropriate under these circumstances. See State v. Marshall, 197 Ariz. 496, ¶ 6, 4 P.3d 1039, 1042 (App.2000); State v. Jones, 188 Ariz. 534, 539, 937 P.2d 1182, 1187 (App.1996). And Ploof cites no authority for the proposition that the victims' testimony standing alone cannot constitute clear and convincing evidence. The court therefore did not abuse its discretion in determining that clear and convincing evidence existed that would permit a jury to find Ploof had committed the other acts. See Ariz. R. Evid. 404(c)(1)(A).

¶ 12 Ploof next argues the other acts evidence failed the Rule 404(c)(1)(B) requirement because there was no expert testimony to support it. Quoting from Aguilar, however, Ploof claims there must be a "`"reasonable" basis, by way of expert testimony or otherwise, to support relevancy, . . . that the commission of the other act permits an inference that defendant had an aberrant sexual propensity that makes it more probable that he or she committed the sexual offense charged.'" 209 Ariz. 40, n. 10, 97 P.3d 865, 872 n. 10, quoting Ariz. R. Evid. 404 cmt. to 1997 amendment (emphasis added). Ploof fails to quote the rest of the footnote, which states, in relevant part, that "`[t]he present codification of the rule permits admission of evidence of the other act either on the basis of similarity or closeness in time, supporting expert testimony, or other reasonable basis that will support such an inference.'" Id., quoting Ariz. R. Evid. 404 cmt. to 1997 amendment. "[T]he rule requires that the other act evidence must lead to a reasonable inference that the defendant had a character trait that gives rise to an aberrant sexual propensity to commit the charged sexual offense." Id. ¶ 27.

¶ 13 The trial court found that the other acts evidence "provide[d] a reasonable basis to infer that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the crimes charged." Contrary to Ploof's argument, "when the other `incident is both similar and near in time to the crimes for which' an accused is charged, expert testimony is not a necessary predicate for admission." Id. ¶ 13, quoting State v. Corcoran, 119 Ariz. 573, 577, 583 P.2d 229, 233...

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