State v. Rose
| Decision Date | 22 April 2019 |
| Docket Number | No. 2 CA-CR 2018-0136,2 CA-CR 2018-0136 |
| Citation | 441 P.3d 999,246 Ariz. 480 |
| Parties | The STATE of Arizona, Appellee, v. Aaron Michael ROSE, Appellant. |
| Court | Arizona Court of Appeals |
Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, By Tanja K. Kelly, Assistant Attorney General, Tucson, Counsel for Appellee
Harriette P. Levitt, Tucson, Counsel for Appellant
¶1 Aaron Michael Rose appeals his convictions after a jury trial on two counts of sexual conduct with a minor under the age of fifteen. We affirm.
¶2 Rose contends the trial court committed fundamental error by admitting, under Rule 404(c), Ariz. R. Evid., evidence of his juvenile delinquency adjudication for child molestation. The state contends that the evidence was properly admitted. The sole issue on appeal is whether the court erred because Rule 404(c) does not permit the admission of evidence of other crimes, wrongs or acts committed by a juvenile as evidence of a character trait giving rise to an aberrant sexual propensity to commit a criminal sexual offense.
¶3 We view the facts in the light most favorable to upholding the trial court’s rulings and jury’s verdict. See State v. Gay , 214 Ariz. 214, ¶¶ 2, 4, 150 P.3d 787, 790 (App. 2007). Rose was indicted on two counts of sexual conduct with a minor under the age of fifteen, a class two felony and dangerous crime against children in the first degree. Between December 2015 and August 2017, when Rose was thirty-six to thirty-eight years old, he engaged in the charged acts with the son of his then-girlfriend. The boy was between the ages of three and five at the time of the crimes. At trial, the state sought to introduce evidence under Rule 404(c) of Rose’s prior juvenile delinquency adjudication for child molestation as evidence of Rose’s aberrant sexual propensity to commit the acts charged in this case. In that matter, Rose, then fourteen, was found to have molested a five- to six-year-old boy in a similar manner.
¶4 Rose opposed the admission of the evidence arguing that expert witness testimony was necessary to demonstrate that he had a "continuing emotional propensity" to commit the crime, that the acts were dissimilar to the current charged offenses and remote in time, and that their admission would be unduly prejudicial. The trial court found the 1994 adjudication admissible under Rule 404(c). At the conclusion of the three-day trial, Rose was convicted on both counts, and the jury found the aggravating factor that the victim was age twelve or under at the time of each crime. Rose was sentenced to two consecutive life sentences, and he timely appealed. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).
¶5 Rose did not assert below the ground he now asserts on appeal—that his 1994 adjudication was inadmissible by virtue of its being a juvenile adjudication. Consequently, he did not preserve the issue for harmless error review. As he must, he argues that the trial court’s error in admitting this other-acts evidence was fundamental and prejudicial error. State v. Henderson , 210 Ariz. 561, ¶¶ 18-19, 115 P.3d 601, 607 (App. 2005). We therefore review the court’s ruling admitting this other-acts evidence for fundamental error.
¶6 To establish fundamental, prejudicial error, a defendant must show trial error exists and that the error either went to the foundation of the case, deprived him of a right essential to his defense, or was so egregious that he could not possibly have received a fair trial. State v. Escalante , 245 Ariz. 135, ¶ 21, 425 P.3d 1078, 1085 (2018). If a defendant can make that showing, he must also demonstrate resulting prejudice. Id. If a defendant shows the error was so egregious that he could not have received a fair trial, however, then he has necessarily shown prejudice and must be granted a new trial. Id ."[T]he first step in fundamental error review is determining whether trial error exists." Id. (citing Henderson , 210 Ariz. 561, ¶ 23, 115 P.3d 601, 608 ).
¶7 We review the trial court’s interpretation and application of court rules de novo . State v. Winegardner , 243 Ariz. 482, ¶ 5, 413 P.3d 683, 685 (2018). "We interpret court rules according to the principles of statutory construction." State v. Aguilar , 209 Ariz. 40, ¶ 23, 97 P.3d 865, 872 (2004). "But when the rule’s language is unambiguous, ‘we need look no further than that language to determine the drafters’ intent.’ " Id .
¶8 Rules 404(a) and (b) read together serve as an exception to the general principle, provided by Rules 401 and 402, Ariz. R. Evid., that all relevant evidence is admissible in criminal cases. Rules 404(a) and (b) bar evidence of "other crimes, wrongs, or acts" to prove a defendant’s character or trait for the purpose of proving "action in conformity therewith." Rule 404(c), however, serving itself as an exception to Rules 404(a) and (b), permits admission of other-acts evidence for this purpose when the defendant is charged with having committed a "sexual offense."
¶9 In such a case, other-acts evidence is admissible under Rule 404(c)"if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged." The trial court may admit such evidence if it finds (1) "the evidence is sufficient to permit the [jury] to find that the defendant committed the other act," (2) 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," and (3) the evidentiary value of the other-act evidence is not substantially outweighed by the factors stated in Rule 403, Ariz. R. Evid. (). Ariz. R. Evid. 404(c). On its face, Rule 404(c) makes no distinction between the admission of evidence of another crime, wrong, or act the defendant committed as a juvenile and one he committed as an adult. See id. Nonetheless, Rose would have this court add to the rule, by judicial fiat, an additional restriction on the admission of such other-acts evidence, namely, that no evidence of an act committed when the defendant was a juvenile may be admitted under Rule 404(c).
¶10 Rose argues that any admission of other-acts evidence otherwise allowable under the plain reading of Rule 404(c) is impermissible and reversible fundamental error because "juvenile offenders are far different from adult offenders," and, as shown by other rules of evidence, juvenile adjudications must be treated differently from adult convictions. Rose also argues that the admission of such evidence under Rule 404(c) violates a criminal defendant’s Fifth, Sixth, and Fourteenth Amendment rights under the United States Constitution, and his rights under article 2, §§ 23 and 24 of the Arizona Constitution.1 The state argues principally that Rose has failed to show fundamental error—including prejudice—because under its plain language, Rule 404(c) does not prohibit the use of juvenile crimes as other-acts evidence.
¶11 Initially, Rose argues that Rules 608 and 609, Ariz. R. Evid., are "instructive" on this question. Those rules, read together, do not permit the admission of evidence of a defendant’s juvenile delinquency adjudication as impeachment evidence bearing on his credibility—that is, to prove his character trait for "truthfulness or untruthfulness." Because these rules treat juvenile delinquency adjudications differently from adult convictions for credibility determinations, Rose argues that such adjudications and convictions ought to be treated differently under Rule 404(c) for propensity determinations. We do not agree.
¶12 Rose is, in effect, asking us to apply the reasoning of a rule on impeachment to a question of propensity and then, having done so, read into Rule 404(c) a limitation not expressly put there by the supreme court or, at any time since its adoption in 1997, imposed otherwise statutorily by the legislature. That the supreme court distinguished juvenile delinquency adjudications from adult convictions in Rules 608 and 609, but made no corresponding distinction between juvenile other-acts evidence and adult other-acts evidence in Rule 404(c), supports the conclusion that it intended that there be none. Moreover, the legislature in A.R.S. § 8-207(B) provided that "[t]he disposition of a juvenile in the juvenile court may not be used against the juvenile in any case or proceeding other than a criminal or juvenile case in any court." (Emphasis added.) By expressly allowing the use of juvenile adjudications in criminal cases, this statute does not betray any public policy against using them for the purposes of Rule 404(c).
¶13 Rose then asks us to apply here the principles of Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) and Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), addressing the punishment that may be levied against juvenile defendants. Rose wants this court to extend the general reasoning of those cases—that "children are constitutionally different" for the purposes of punishment—to this evidentiary matter. In Graham , extending its then-recent Eighth Amendment cases,2 the United States Supreme Court pronounced that "The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide." 560 U.S. at 82, 130 S.Ct. 2011. In Miller , the Court, still extending, held that "mandatory life-without-parole sentences for juveniles violate the Eighth Amendment." 567 U.S. at 470, 132 S.Ct. 2455.
¶14 We are constrained by the Supremacy Clause to follow the United States Supreme Court in matters on which it may and does authoritatively speak...
To continue reading
Request your trial
- Shepherd v. Costco Wholesale Corp.
-
State v. Severin
..."action in conformity therewith," Rule 404(c) does "when the defendant is charged with having committed a 'sexual offense.'" State v. Rose, 246 Ariz. 480, ¶ 8 (App. 2019). The court did not err in finding evidence of Severin's prior conviction was admissible and the lack of undue prejudice.......
-
State v. Rose
...and the trial court imposed two consecutive life sentences. This court affirmed Rose's convictions and sentences on appeal. State v. Rose, 246 Ariz. 480 (App. 2019). In February 2020, Rose filed a notice of post-conviction relief, and the trial court appointed counsel.[1] In his subsequentl......