State v. Uriarte, 1 CA-CR 97-0351.

• Citation: 194 Ariz. 275,981 P.2d 575
• Decision Date: 23 March 1999
• Docket Number: No. 1 CA-CR 97-0351.,1 CA-CR 97-0351.
• Parties: STATE of Arizona, Appellee, v. Jesse Aurelio URIARTE, Appellant.
• Court: Court of Appeals of Arizona

981 P.2d 575

194 Ariz. 275

194 Ariz. 275

STATE of Arizona, Appellee, v. Jesse Aurelio URIARTE, Appellant.

No. 1 CA-CR 97-0351.

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

August 27, 1998.

Review Denied March 23, 1999.

Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, R. Wayne Ford, Assistant Attorney General, Phoenix, for Appellee.

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

OPINION

EHRLICH, Judge.

¶ 1 Jesse Aurelio Uriarte ("defendant") appeals his convictions and sentences for two counts of child molestation and one count of sexual conduct with a minor, class 2 felonies and dangerous crimes against children in the first degree. We affirm two of the convictions and sentences; we reverse the third conviction and remand that count for a new trial. In so deciding, we hold that a victim who is a minor has a right to a parent's presence at trial, even if the parent is to testify and the rule excluding witnesses has been invoked. We hold also that a period of community supervision following a term of prison is not a part of the length of a sentence which must be counted in determining the number of jurors.

FACTUAL¹ AND PROCEDURAL BACKGROUND

¶ 2 The defendant was indicted on three counts of child molestation, two counts of sexual conduct with a minor and one count of public sexual indecency, each count involving his sister-in-law, R.J., who was 12-years-old during the summer of 1994 when the behavior occurred. The acts took place at the home of the defendant and his wife, who is R.J.'s sister, Toni Uriarte.

¶ 3 There were four occasions alleged. The first incident occurred when the defendant inserted his finger inside R.J.'s vagina (Count I).

¶ 4 During the second episode, the defendant got into bed with R.J., penetrated her vagina digitally (Count II), then attempted intercourse by inserting his penis inside her vagina (Count IV). Next, he placed R.J.'s hand on his penis and had her masturbate him (Count III). Toni later discovered the defendant and R.J. together in bed.

¶ 5 A third incident took place while R.J. was in the kitchen, when the defendant approached her from behind and digitally penetrated her vagina (Count V). Toni also was in the kitchen.

¶ 6 On the fourth occasion, the defendant masturbated in front of R.J. until he ejaculated (Count VI). He and R.J. were alone in a bedroom.

¶ 7 R.J. disclosed these occurrences to her mother, R.A., about one year later. By that time, R.A. had noticed that R.J. had become increasingly uncomfortable with the defendant and reluctant to go to her sister's house.

¶ 8 The incidents were reported to the police. A detective arranged a "confrontation call" between R.J. and the defendant in an attempt to have the defendant make admissions about his sexual conduct with R.J. In consequence, during the call, the defendant made numerous statements acknowledging prior sexual activity with R.J. Additionally, after he was arrested, the defendant told the detective that R.J. had masturbated him, and he did not deny penetrating R.J. digitally. He also admitted that Toni had discovered him in bed with R.J.

¶ 9 The jury found the defendant guilty on Counts I and III. It was unable to reach a verdict on Count II, and it acquitted him of the remaining counts. Upon retrial, he was found guilty on Count II.

¶ 10 The defendant was sentenced to concurrent, mitigated prison terms of ten years on Counts I and III and to a consecutive, mitigated term of 13 years on Count II. Now on appeal, he raises the following issues:

1. Whether the rule of exclusion of witnesses was violated when R.A. testified since she had been present during the trial as the mother of the victim;

2. Whether the trial court erred in permitting R.A. to testify regarding threats made by Toni;

3. Whether the court committed fundamental error in denying the defendant a twelve-person jury at the second trial;

4. Whether the court applied an erroneous standard of admissibility to evidence of other acts introduced during the second trial; and

5. Whether guarantees against double jeopardy were violated when evidence regarding Counts IV, V and VI, of which the defendant was acquitted after the first trial, was introduced during the second trial.

DISCUSSION

1. The Exclusion of Witnesses

¶ 11 At the commencement of the first trial, the court ordered that prospective witnesses be excluded during the proceedings. On the last day of the trial, the state called R.A. to testify in rebuttal. The defendant objected, arguing that, because R.A. had been in the courtroom for prior testimony, allowing her to testify would violate the court's order barring witnesses. The court overruled the objection, concluding that "the statutes and rules read together are meant to allow the parent of a child to be declared a victim, and exercise all the victim's rights," including the right to be present during trial.

¶ 12 At the second trial, the defendant renewed this objection to R.A.'s testimony. The objection again was overruled.

¶ 13 The defendant contends that permitting R.A. to testify was reversible error. We disagree. R.J., as a victim who is a minor, had a right to her parent's continuing presence in the courtroom with her, although her mother later would testify.

¶ 14 Section 13-4403(C) of The Victim's Rights Implementation Act, ARIZ.REV.STAT. ANN. ("A.R.S.") section 13-4401 et seq. (Supp. 1997), states: "If the victim is a minor the victim's parent ... may exercise all of the victim's rights on behalf of the victim." Those rights include the prerogative "to be present at ... all criminal proceedings where the defendant has the right to be present." ARIZ. CONST. art. 2, § 2.1(A)(3).

¶ 15 The defendant argues that A.R.S. section 13-4403(C) permits a parent to exercise the victim's rights only "on behalf" of the victim, meaning "instead of" and not "in addition to" the victim. Since R.J. was present throughout the trial, he insists that she had no right to R.A.'s presence in the courtroom.

¶ 16 We reject this constricted interpretation. Rather, we accept the standard definition of "behalf" as encompassing "benefit" and "support." See BLACK'S LAW DICTIONARY 155 (6th ed.1990); WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 198 (1969). This refutes any meaning of the phrase "on behalf of" that would limit a parent's exercise of a minor's rights to situations in which the victim was unable to exercise her rights personally. As would be commonsensical, section 13-4403(C) gives a victim who is a minor the benefit of parental support during proceedings which will be difficult for the child.²

¶ 17 This poses a conflict between the Victim's Rights Implementation Act and the Arizona Rules of Court governing the exclusion of witnesses from trial proceedings. While both ARIZ. R.CRIM. P. 9.3(a)³ and ARIZ. R. EVID. 615⁴ exempt a victim from the general rule of exclusion, neither rule relieves the parent of a victim who is a minor to attend proceedings with her child, with the exception, not applicable here, of the parent of a child who is incapacitated or killed by the defendant.⁵

¶ 18 We resolve this conflict by giving effect to the Arizona Constitution as implemented by statute. The Victim's Bill of Rights amended the Constitution to provide that "the legislature, or the people by initiative or referendum, have the authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims by this section...." ARIZ. CONST. art. 2, section 2.1(D). It is not disputed that The Victim's Rights Implementation Act is a valid exercise of the legislative authority.

The provisions of the Implementation Act (A.R.S. §§ 13-4401 to -4437) are generally in accord with our interpretation of the powers granted in § 2.1(D) of the Arizona Constitution. Aside from the offending provision involved here regarding law-enforcement officers' right to decline pretrial interviews, the Implementation Act does just what the legislature is empowered to do under their "authority to define, implement, preserve, and protect the rights guaranteed to victims." For example, the Act specifies the manner in which a victim who is unable to exercise a right may be represented by someone else. See A.R.S. § 13-4403. It describes in far more detail than the constitutional provision information to which a victim is entitled, who must provide the information, and when it must be provided. See, e.g., A.R.S. §§ 13-4405 to -4417.

These provisions, and the Implementation Act in general, illustrate the type of power the voting public granted to the legislature by giving it the power "to define, implement, preserve, and protect the rights guaranteed to victims." The people, in their legislative power, enacted a constitutional provision setting forth victims' rights, but they could not hope to do so with the specificity required to address all of the procedural and substantive issues that might accompany the enactment of such a bill.

State v. Roscoe, 185 Ariz. 68, 73, 912 P.2d 1297, 1302 (1996).

¶ 19 Because the Constitution, as implemented by lawful statute, and the rules as are pertinent to this case cannot be reconciled, we give effect to the constitutional guarantee. See State v. Pierce, 59 Ariz. 411, 414, 129 P.2d 916, 917 (1942) (Procedural court rules will yield in the presence of "a specific constitutional provision affecting the matter."); see also Miller v. Heller, 68 Ariz. 352, 357, 206 P.2d 569, 573 (1949) (Other than the federal constitution, the state constitution is supreme.). Thus, a parent is permitted to attend trial proceedings with and on behalf of a victim who is a minor, even if the parent's testimony is required. It was correct to allow R.A. to testify.

2. Impeachment of Toni Uriarte

¶ 20 R.A. testified that, on the day before an earlier trial date, Toni, uninvited, had...