State v. Romero

Decision Date29 September 1981
Docket NumberNo. 5101,5101
Citation634 P.2d 954,130 Ariz. 142
PartiesSTATE of Arizona, Appellee, v. Clarence Albert ROMERO, Appellant.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., David R. Cole, Asst. Atty. Gen., Phoenix, for appellee.

Wade Church, Phoenix, for appellant.

GORDON, Justice:

Appellant Clarence Albert Romero was convicted by a jury of child molestation, a class 2 felony, in violation of A.R.S. § 13-1410. 1 The trial court sentenced appellant to seven years, the presumptive sentence under A.R.S. § 13-701(B) for a nondangerous, nonrepetitive class 2 felony. Taking jurisdiction pursuant to A.R.S.Const. Art. 6, § 5(3), and Rule 47(e)(5) of the Rules of the Supreme Court, we affirm.

At about 6:00 p. m. on October 20, 1978, the six-year old victim and her twin brother were playing in their front yard in Phoenix, Arizona. A man drove up and asked the children what color underwear they were wearing. The boy said that his underpants were white, and the girl said that hers were pink. The man told the victim he did not believe her, so she raised her dress to show him she was telling the truth.

The man then gave the boy a quarter and asked him for a glass of water. When the boy went inside his house, the man stuck his hand inside the victim's panties and rubbed her vagina. When the boy came out with the glass of water, the man removed his hand. He asked the boy to go back inside and get more water and some ice cubes. When the boy returned to the house, the man repeated the molestation. The victim testified that she could see inside the man's car and saw that his pants were down and he was "shaking his penis." When the boy returned and another car drove by, the man removed his hand from the victim's panties, and drove away.

The victim, crying, ran into her house and told her twelve-year old sister what had just happened. The sister went outside as two cars drove by the house. The twin brother pointed to the second car and said, "That's the one." The older sister jumped on her bicycle and chased the car. She pursued it for several blocks, got a look at the driver, and obtained the license plate number.

The plate number was reported to the police. They ran a records check on it and discovered that the car was registered to appellant's daughter. The police talked to appellant later that night, and he told them he had been the only person driving his daughter's car that day. He also stated that at the time of the molestation, he was either at home or at a friend's house.

On appeal from his conviction, appellant raises five issues: (1) Did the trial court err in admitting evidence of a prior bad act that occurred on January 16, 1978?; (2) Was his pretrial identification suggestive, thus tainting the in-court identifications?; (3) Did the prosecutor engage in misconduct during trial by looking at notes the appellant wrote to his counsel?; (4) Did the prosecutor fail to properly disclose a list of witnesses as required by Rule 15.1(a) of the Rules of Criminal Procedure?; and (5) Did the trial court err in not ordering a mental examination before sentencing? We will address each issue individually.

THE PRIOR BAD ACT

At trial, appellant's defenses were that he was at a bar when the molestation occurred and that he was misidentified. To prove identity, the prosecution introduced evidence of a prior bad act. On January 16, 1978, about 9 months before the charged molestation, appellant had accosted two other six-year olds a girl and a boy. The girl testified that as she and her friend were walking home from kindergarten, the appellant drove up waving around a pair of panties. He talked with the two children, and they could see that his pants were pulled down to his knees. Both children positively identified appellant and his car when he subsequently drove through the neighborhood. Appellant was arrested and pled guilty in city court to a breach of the peace.

Appellant argues that the prior bad act should not have been used either substantively or to impeach his character witnesses' knowledge of his reputation. He asserts that the prior act was not sufficiently similar to the instant charge, it was not near enough in time to the instant charge, and it was not sufficiently proved, especially because it resulted in a conviction for a breach of the peace.

Evidence of bad acts other than those for which a defendant is currently on trial are generally inadmissible. Rule 404(a), Rules of Evidence; State v. Rose, 121 Ariz. 131, 589 P.2d 5 (1978). Such acts are admissible as substantive evidence, however, to prove identity. Rule 404(b), Rules of Evidence. To come within this exception, the prior act must not be too misleading or prejudicial. Rose, supra. In deciding whether to admit a prior bad act, the trial court is given broad discretion. State v. Brown, 125 Ariz. 160, 608 P.2d 299 (1980); Rose, supra. The trial court properly exercised its discretion in the instant case.

The prior bad act of January, 1978 was "sufficiently similar" to the crime charged. See Brown, supra. In both cases, the appellant accosted a six-year old boy and a six-year old girl near a schoolyard. Appellant drove up in a car to meet all the victims and used underwear or talk about it to gain the victim's attention. In the first incident, he drove his own car; in the second incident he drove his daughter's car. His pants were lowered in both instances. Each time, one of the children identified the appellant's car when he drove through the neighborhood again after the molestation. The acts were sufficiently similar to raise a reasonable inference that the same person committed both crimes. See State v. Jerousek, 121 Ariz. 420, 590 P.2d 1366 (1979).

The acts were also sufficiently close in time. In State v. La Mountain, 125 Ariz. 547, 611 P.2d 551 (1980), the prior acts and the crime charged occurred fifteen months apart. In State v. Finley, 108 Ariz. 420, 501 P.2d 4 (1972), prior bad acts occurring over a five-year period were admitted. Thus, the nine month interval in the instant case is not unusually long. More importantly, there is no showing of prejudice due to the elapsed time.

Finally, sufficient evidence of the prior bad act was produced at trial. Although the January, 1978 incident resulted only in a breach of the peace conviction, the underlying facts were relevant to the instant case.

"(W)here the identity of the defendant is the question in issue, any fact which tends to establish the identity has probative value and if offered for that purpose it is receivable. Other acts or crimes may be shown if they are relevant, regardless of their criminal character."

State v. Francis, 91 Ariz. 219, 222, 371 P.2d 97, 99 (1962). The January, 1978 incident was admissible as a prior bad act regardless of whether it was also a crime. One of the victims of the prior bad act and her mother testified at trial. This was a sufficient quantum of evidence to allow admission of the act. See State v. Jerousek, 121 Ariz. 420, 590 P.2d 1366 (1979). Therefore, the prior bad act was properly admitted as substantive evidence of appellant's identity.

As part of the defense, several character witnesses testified to appellant's good reputation in the community. To impeach these witnesses' knowledge of appellant's reputation, the prosecutor asked two of them if they had heard of appellant's arrest for the January, 1978 incident. Appellant's attorney objected to these questions, and his objections were sustained. On appeal appellant urges us to find that these references to the January, 1978 incident unduly prejudiced his case. Since evidence of the prior bad act had previously come out in the state's case-in-chief, the additional references could have caused appellant no undue prejudice. In fact, the trial court could have allowed these questions because a person's arrests, even if they do not result in conviction, would be within the knowledge of people truly familiar with that person's reputation. See Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). It is within the trial court's discretion to exclude such questions, but there was no error in asking them as the prosecutor had a legal and factual basis for the questions, he had received the court's permission before trial to ask such questions, and the acts were already in evidence. We find no error in the prosecutor's attempted use of the prior bad act to impeach appellant's character witnesses.

PRETRIAL IDENTIFICATION

After the molestation, both the victim and her sister, who had chased the car, gave a description of the assailant to the police. Based on this description, the identification of appellant's daughter's car as the one driven by the assailant, and appellant's admission that he was the only person driving that car on the day of the molestation, the police assembled a photographic lineup consisting of five pictures, including appellant's. The police then showed the lineup to the victim and her sister, separately. Both girls immediately and positively identified appellant's picture as that of the molester. After each girl picked out appellant's picture, the police told her that she had picked out the "right" picture.

Appellant alleges that the lineup was unduly suggestive both because none of the pictures resembled the description of the molester given to the police and because of the police comment that each girl had picked the correct photograph. Our review of the description and photographs show that appellant's argument is not supported by the facts. Although the description given to the police is not identical to appellant's, it does sufficiently resemble him. The five pictures used in the lineup all look very much alike. That the victim and her sister immediately and positively identified appellant from a group of five similar pictures refutes his argument that the procedure was not...

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