State v. Van Do
| Decision Date | 29 April 2015 |
| Docket Number | No. 2 CA-CR 2014-0166,2 CA-CR 2014-0166 |
| Parties | THE STATE OF ARIZONA, Appellee, v. LAM VAN DO, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Paul E. Tang, Judge
The Honorable John E. Davis, Judge
The Honorable Howard Hantaan, Judge
AFFIRMED
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Jonathan Bass, Assistant Attorney General, Tucson
Counsel for Appellee
Lori J. Lefferts, Pima County Public Defender
By Erin K. Sutherland, Assistant Public Defender, Tucson
Counsel for Appellant
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred.
¶1 Following a jury trial, Lam Van Do was convicted of one count of sexual abuse. On appeal, he argues the trial court erred by allowing the admission of other acts evidence, by ordering restitution for medical expenses related to the victim's suicide attempts after the crime, and by sentencing him to a year of jail time as a condition of probation. For the following reasons, we affirm.
¶2 "We view the facts in the light most favorable to upholding the jury's verdict[]." State v. Tucker, 231 Ariz. 125, ¶ 2, 290 P.3d 1248, 1253 (App. 2012). Do and K.B. worked together at a restaurant, and Do frequently harassed K.B. at work by hugging, kissing, and touching her inappropriately despite her protestations. This culminated in a final incident in April 2012, during which Do approached K.B. from behind, began to hug her, and wrapped one of his hands around her right breast. K.B. reported the incident to the police.
¶3 Do was indicted on and convicted of one count of sexual abuse for touching K.B.'s breast without her consent. The trial court imposed a three-year term of probation with sex offender conditions and sentenced him to a one-year jail term as a condition of probation. The court also awarded K.B. $10,538.51 in restitution, which included restitution for medical expenses incurred as a result of two suicide attempts that followed Do's sexual abuse. We havejurisdiction over Do's appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1), (3).
¶4 Do argues the trial court erred by admitting evidence that he inappropriately touched K.B. on prior occasions because the evidence "did not fall within a recognized exception" to the prohibition in Rule 404(b), Ariz. R. Evid., against admitting other acts evidence to show propensity.1 Do challenges the admission of evidence that he hugged K.B. "every time they worked together" and would kiss her on the cheek, that in one incident he ran his hand up her leg and to her buttocks while she was preparing food, and that he tried to hug her when she arrived to work on the day of the charged incident. "We review court's decision to admit other acts evidence for [an] abuse of discretion." State v. Villalobos, 225 Ariz. 74, ¶ 18, 235 P.3d 227, 233 (2010).
¶5 On the state's motion, the trial court held a hearing to determine the admissibility of this other acts evidence. During the hearing, the court asked Do if his defenses to the charge of sexual abuse included consent or accidental conduct, to which he replied, See A.R.S. § 13-1404(A) ().2 In a ruling issued more than ten monthsbefore trial, the court ruled that "whether or not [Do] committed a sexual abuse . . . unintentionally or by mistake or accident is at issue" and that the other acts evidence was admissible to rebut the defense of mistake or accident.
¶6 On appeal, Do minimally challenges the trial court's pretrial decision to admit the other acts evidence, which the court correctly determined was admissible to show intent and absence of mistake or accident. See Ariz. R. Evid. 404(b); Villalobos, 225 Ariz. 74, ¶ 19, 235 P.3d at 233. Accordingly, we reject that challenge.3
¶7 Do further argues, however, the trial court erred in allowing the evidence because he never presented a consent or accident defense at trial. Rather, he denied the incident occurred. Do contends that "it was clear from [his] opening statements that [consent or accident] would no longer be raised as . . . defense[s] and were therefore not at issue." Thus, he claims, the court's earlier ruling "became erroneous."
¶8 But Do never informed the trial court that he had abandoned these potential defenses or asked the court to reconsider its previous ruling in light of his change in trial strategy. Nor did he object at trial to K.B.'s testimony detailing these other acts. And, despite discussions with the court about an instruction to the jury that it could "consider these [other] acts to establish . . . intent, knowledge, and absence of mistake or accident," he never objected to this instruction or requested a change in the instruction to reflect that he had not presented these defenses at trial.
¶9 The trial court was not required to glean from Do's opening statement that he had abandoned the defenses of consent, mistake, or accident and then sua sponte reverse its prior ruling. Rather, if he wanted to preserve this issue for appeal, Do had an obligation to raise it by, at the very least, objecting to K.B.'s testimony on the other acts and giving the court an opportunity to reconsider its prior ruling in light of his change in trial strategy. See State v. Lopez, 217 Ariz. 433, ¶ 6, 175 P.3d 682, 684 (App. 2008) (); see also State v. Vermuele, 226 Ariz. 399, ¶ 10, 249 P.3d 1099, 1102 (App. 2011) (). Having failed to do so, he has forfeited review of this issue for all but fundamental, prejudicial error. See Lopez, 217 Ariz. 433, ¶ 6, 175 P.3d at 684. And "[t]o prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice." State v. Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d 601, 607 (2005).
¶10 Do has not shown that admission of the other acts evidence caused him prejudice. The trial court instructed the jury that it could not consider these other acts as propensity evidence. And although the court instructed the jury that it could consider these other acts as evidence to establish intent, knowledge, or the absence of mistake or accident, the court also instructed the jury that when "determin[ing] the facts . . . [it] may find that some instructions no longer apply."
¶11 "We presume that the jurors followed the court's instructions." State v. Newell, 212 Ariz. 389, ¶ 68, 132 P.3d 833, 847 (2006). Consequently, we presume the jury did not consider the other acts as propensity evidence. We also presume that it disregarded the instruction that it could use the evidence to establish intent, knowledge, and absence of mistake or accident because Do's case at trial did not put his mental state or mistake or accident at issue.
¶12 Do argues, however, that the state "relied on the other act evidence to bolster its claim that the charged act had happened" and that, in State v. Terrazas, 189 Ariz. 580, 944 P.2d 1194 (1997), our supreme court "recognized, even with a limiting instruction, such evidence is likely to influence the jury's decision on the issue." But the state, echoing the jury instructions, admonished the jury in its closing argument not to "use those other acts to say, well, if he did these things before he must have done this this time." And in Terrazas, the defendant was convicted following a bench trial, and the trial court in that case "stated that he probably would have reached a different conclusion if he had not received and considered [improper] prior bad act evidence." 189 Ariz. at 581, 584, 944 P.2d at 1195, 1198. Contrary to what Do suggests, Terrazas does not stand for the proposition that limiting instructions are ineffective to prevent a jury from improperly using other acts evidence as propensity evidence.
¶13 Relying on State v. Smith, 123 Ariz. 243, 599 P.2d 199 (1979), Do also appears to contend that the improper admission of other acts evidence is necessarily "prejudicial to a defendant's right to a fair trial." Yet, Smith itself undercuts this proposition. In Smith, our supreme court ruled that a police officer's testimony referring to other offenses committed by the defendant "was not so prejudicial as to require a mistrial or a reversal" and that, in light of other evidence presented by the defendant, "[a]ny error that might have resulted . . . was . . . harmless." Id. at 250-51, 599 P.2d at 206-07. Thus, Smith does not support Do's contention that any improper admission of this evidence must have prejudiced his case.
¶14 Consequently, Do has failed to meet his burden to show he suffered prejudice from any alleged error in admitting evidence of other inappropriate conduct with K.B. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. And we conclude the trial court did not abuse its discretion in allowing this evidence. See Villalobos, 225 Ariz. 74, ¶ 18, 235 P.3d at 233.
¶15 Do next argues the trial court erred in awarding restitution for medical expenses incurred as a result of two suicide attempts by K.B. because these expenses were consequential losses that did not flow directly from Do's criminal conduct but instead from K.B.'s "voluntary...
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