State v. Vega
| Decision Date | 18 August 2011 |
| Docket Number | No. 1 CA-CR 10-0126,1 CA-CR 10-0126 |
| Parties | STATE OF ARIZONA, Appellee, v. JOSE VICENTE MONTANO VEGA, Appellant. |
| Court | Arizona Court of Appeals |
Appeal from the Superior Court in Maricopa County
Cause No. CR2009-113985-001 DT
The Honorable Richard J. Trujillo, Judge (Retired)
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Michael O'Toole, Assistant Attorney General
Attorneys for Appellee
Bruce F. Peterson, Maricopa County Legal Advocate
By Frances J. Gray, Deputy Legal Advocate
Attorneys for Appellant
Phoenix
¶1 A jury convicted Jose Vincente Montano Vega of five sex crimes committed against his two nieces when they were six and 11 years old, respectively. On appeal he argues the superior court erred by admitting evidence of an earlieruncharged offense he allegedly committed against the older girl. We conclude the court erred, but we affirm the convictions because the error was harmless.
¶2 Vega was charged with two counts each of child molestation and sexual conduct with a minor, Class 2 felonies, and one count of sexual abuse, a Class 3 felony and dangerous crime against children.
¶3 Prior to trial and pursuant to Arizona Rule of Criminal Procedure 15.1(a), the State disclosed a police report relating an allegation by the older of the two victims that Vega improperly touched her at the beach in Mexico a few months before the Arizona incidents on which the charges were based. When the prosecutor began to examine the victim about the beach incident at trial, Vega objected that the evidence was inadmissible under Arizona Rules of Evidence 403 and 404. Citing State v. Garner, 116 Ariz. 443, 569 P.2d 1341 (1977), the prosecutor responded that uncharged acts committed against a victim are admissible without notice or hearing under Rules 403 and 404. The court noted it agreed with the prosecutor's understanding of Garner. It overruled Vega's objection and, after asking the witness when the beach incident occurred, allowed the testimony without making express findings supporting admissibility of the evidence. Over a defense objection, thecourt later instructed the jury that it could consider evidence of the beach incident in determining whether Vega has a character trait that predisposes him to commit abnormal or unnatural sexual acts.
¶4 After the jury convicted Vega on all charges, the court sentenced him to two concurrent 17-year terms of incarceration, a consecutive five-year term and two consecutive life terms without the possibility of release for 35 years.
¶5 Vega timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4031 (2010) and -4033(A)(1) (2010).1
¶6 We review a superior court's ruling on the admissibility of evidence for abuse of discretion. State v. Robinson, 165 Ariz. 51, 56, 796 P.2d 853, 858 (1990). An abuse of discretion occurs if the court errs in applying the law. Merlina v. Jejna, 208 Ariz. 1, 3, ¶ 6, 90 P.3d 202, 204 (App. 2004). An abuse of discretion also occurs when the superior court refuses or fails to exercise its discretion in ruling on amatter. State v. Garza, 192 Ariz. 171, 175, ¶ 16, 962 P.2d 898, 902 (1998).
¶7 The State argues that Vega has abandoned any challenge to the relevance of the beach incident and any argument that the evidence was unduly prejudicial. It argues that on appeal, Vega objects only to the superior court's failure to make specific findings supporting the admissibility of the evidence pursuant to Arizona Rule of Evidence 404(c). It contends we should review that issue only for fundamental error because Vega did not object at trial to the court's failure to make specific findings supporting admissibility. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005).
¶8 The State misconstrues Vega's arguments on appeal. Vega does not argue only that the superior court failed to make findings required by Rule 404(c); he also argues the court erred by admitting the evidence without considering the specific factors required for admissibility under Rule 404(c). Vega expressly and unambiguously objected to the admission of the evidence on the ground that the court had failed to consider the requirements of Rule 404(c). Accordingly, we reject the State's assertion that Vega forfeited appellate review of this issue except for fundamental error.
¶9 Arizona Rule of Evidence 404 sets forth the principle "that evidence of other bad acts is not admissible to show a defendant's bad character." State v. Aguilar, 209 Ariz. 40, 42, ¶ 9, 97 P.3d 865, 867 (2004). Pursuant to Rule 404(b), however, evidence of other crimes may be admissible when offered to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." See Aguilar, 209 Ariz. at 43, ¶ 10, 97 P.3d at 868 (quoting Ariz. R. Evid. 404(b)).
¶10 Rule 404(c) contains another exception to the general rule of exclusion. It applies when defendants are charged with certain sex offenses and allows other-act evidence "relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged." See Aguilar, 209 Ariz. at 46, ¶ 20, 97 P.3d at 871. Rule 404(c) allows such evidence only if the superior court first makes specific findings relating to sufficiency of proof, relevance and undue prejudice.2 The rule also requires that when other-actevidence is admitted to show an aberrant sexual propensity, "the court shall instruct the jury as to the proper use of such evidence." Rule 404(c)(2).
¶11 As noted above, the superior court adopted the State's argument that under Garner, evidence of the beach incident was admissible pursuant to Rule 404(b) because it concerned a prior offense against the victim of a charged offense. See Garner, 116 Ariz. at 447-48, 569 P.2d at 1345-46. On appeal, Vega argues this court held in State v. Garcia, 200 Ariz. 471, 476, ¶ 31, 28 P.3d 327, 332 (App. 2001), that an uncharged sex act against the victim of a charged offense is not admissible pursuant to Rule 404(b) but only may be admitted pursuant to Rule 404(c). The State argues that Rule 404(c), which our supreme court adopted in 1997, 20 years after Garner, does not restrict the admission of evidence of uncharged acts against the victim of a charged offense. It contends that the admissibility of such evidence is governed by subpart b of Rule 404, not subpart c. ¶12 The State, however, does not explain on appeal how Garner might have allowed the jury to consider evidence of the beach incident in considering the charges against Vega involving the younger girl; nor does it contend that the beach evidence was intrinsic to those charges.3 Even if evidence of the beach incident were admissible on the charges involving the younger girl pursuant to Rule 404(b), an issue we do not decide, the superior court erred by instructing the jury that it could consider the evidence in determining whether Vega has a character trait that predisposed him to commit abnormal or unnatural sexual acts. Rule 404(b) does not allow use of evidence for that purpose. State v. Hargrave, 225 Ariz. 1, 10, ¶ 23, 234 P.3d 569, 578 (2010).
¶13 Of course Rule 404(c) does allow evidence offered to show a character trait that predisposes the defendant to commit abnormal or unnatural sexual acts, but only if the superior court makes the findings set out in Rule 404(c)(1)(A) through (C). State v. Prion, 203 Ariz. 157, 164, ¶ 43, 52 P.3d 189, 196 (2002) (). Because the superior court failed to consider whether evidence of the beach incident was admissible pursuant to Rule 404(c) and make the findings that Rule 404(c)(1) requires, the court erred in instructing the jury that it could consider the evidence in deciding whether Vega has a character trait that predisposed him to committing the charged acts against the younger girl.
¶14 Error to which a defendant has objected at trial is not reversible if it is harmless. Henderson, 210 Ariz. at 567, ¶ 18, 115 P.3d at 607. State v. Green, 200 Ariz. 496, 501, ¶ 21, 29 P.3d 271, 276 (2001) (quoting State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993)). The State has the burden of showing that the error was harmless. State v. Anthony, 218 Ariz. 439, 446, ¶ 39, 189 P.3d 366, 373 (2008).
¶15 In Aguilar, the Rule 404(c) issue arose because the superior court had denied the defendant's pretrial motion to sever sexual assault charges against him arising from separate incidents involving four women. 209 Ariz. at 41, ¶¶ 2-3, 97P.3d at 866. The defendant sought separate trials on the charges involving each victim. Id. at ¶ 3. Pursuant to Arizona Rule of Criminal Procedure 13.4(b), the defendant was entitled to severance "unless evidence of the other offense or offenses would be admissible under applicable rules of evidence if the offenses were tried separately." See Aguilar, 209 Ariz. at 41, ¶ 3, 97 P.3d at 866. After oral argument, the superior court denied the motion to sever because it concluded the evidence as to each victim would be admissible on the other charges pursuant to Arizona Rule of Evidence 404(c). Id. at ¶ 4.
¶16 The supreme court held the superior court erred in finding pursuant...
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