State v. Williams

• Decision Date: 13 June 1995
• Docket Number: CA-CR,No. 1,1
• Citation: 898 P.2d 497,182 Ariz. 548
• Parties: STATE of Arizona, Appellee, v. Jason Charles WILLIAMS, Appellant. 93-0461.
• Court: Arizona Court of Appeals

Page 497

898 P.2d 497

182 Ariz. 548

STATE of Arizona, Appellee, v. Jason Charles WILLIAMS, Appellant.

No. 1 CA-CR 93-0461.

Court of Appeals of Arizona,

Division 1, Department B.

June 13, 1995.

[182 Ariz. 551] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Appeals Section, and Jack Roberts, Asst. Atty. Gen., Phoenix, for appellee.

M. Ruth O'Neill, Tucson, for appellant.

OPINION

KLEINSCHMIDT, Presiding Judge.

The Defendant, Jason Charles Williams, appeals his convictions and sentences for armed robbery, kidnapping, burglary and eight counts of sexual assault. He raises many issues on appeal. With one exception, relating to the consecutive sentence for kidnapping, we find no merit to Williams' claims, and we affirm his convictions and sentences.

FACTS AND PROCEDURAL BACKGROUND

We view the facts in the light most favorable to sustaining the verdicts. See, e.g., State v. Atwood, 171 Ariz. 576, 596, 832 P.2d 593, 613 (1992), cert. denied, 506 U.S. 1084, 113 S.Ct. 1058, 122 L.Ed.2d 364 (1993). The sixteen-year-old victim testified that on December 17, 1992, she was alone in her parents' home in Eager, Arizona. A man she identified at trial as Williams knocked on her door and asked to use her telephone. Once inside, Williams demanded money and stated, while patting his waist, that he had a gun. The victim said she had $12 in her bedroom. After following her to her bedroom and taking her money, Williams bound the victim's hands with green duct tape. He produced a knife and cut and removed the victim's clothing.

The Defendant then sexually assaulted the victim. First, he forced her to perform fellatio while holding a knife to her head. She bit him, and he removed his penis from her mouth and struck her face with his hand and threatened to kill her. He then forced her to perform fellatio again. A third act of oral sexual contact occurred when Williams placed his mouth on the victim's breasts and vagina. He then inserted his penis into her vagina. He subsequently took the victim to a bathroom where he bent her over a bathroom counter and engaged in anal intercourse. Either before or after this act of anal intercourse, Williams inserted his fingers in the victim's vagina. Next, the Defendant withdrew his penis, had the victim reposition herself facing a different direction, and again engaged in anal intercourse, causing the victim to fall. For the third act of anal intercourse, Williams forced the victim to lie on her back on the bathroom floor. The record does not disclose exactly how long all this took, but it appears from the testimony that there was no lapse of time between the various sexual acts.

When Williams finished his assaults, he told the victim he would kill her if she told anyone what he had done. He then cut the tape from her wrists, crumpled it, and left the house. He apparently took the tape with him since it was not found in the house.

Eventually, a friend of the victim came to the house and called the Eager police. The victim described her assailant as a black male, wearing white overalls and a dark T-shirt. While the police were preparing a "be on the look out" bulletin, they learned that earlier that day a man behaving suspiciously and matching the victim's description of her assailant approached C.G., a resident of the nearby town of St. Johns, and asked to use her telephone. The police were given a description of that man's vehicle--a small, black Mitsubishi with tinted windows, bearing Texas license number GDX 333. In Eager, the victim's neighbor provided police with a similar description of the suspect and his car.

Upon receiving the bulletin, a Catron County, New Mexico, deputy sheriff drove to U.S. Highway 180 which runs from Springerville and Eagar into New Mexico. The deputy saw a vehicle that matched the description in the bulletin. Although one letter of the license number was different from the number described in the bulletin, the deputy stopped the vehicle, saw that the driver Williams, matched the description of the suspect, and arrested him. In searching for weapons, the deputy saw a wad of green duct tape on the floor in front of the driver's seat. He also saw a roll of the tape in the car.

An Eagar police officer went to New Mexico to interview Williams. Williams admitted that he had driven through Springerville, St. Johns, and Eagar and that he had been in someone's home in Springerville. He also made statements indicating that he may have stopped at the victim's home. Williams never specifically denied that he raped the victim; he only indicated that he could not recall committing the offenses.

A jury found Williams guilty of armed robbery, kidnapping, first-degree burglary and eight counts of sexual assault. The jury also found all of the offenses to be dangerous. The trial court sentenced Williams to aggravated consecutive sentences on every count except that the burglary and robbery sentence were concurrent.

THE EVIDENCE OF PRIOR ACTS WAS PROPERLY ADMITTED

The Defendant contends that the trial court improperly admitted evidence of three prior acts which the prosecution claimed the Defendant committed: (1) robbing a motel in Seligman, Arizona; (2) knocking on the door of a residence in St. Johns, Arizona, and asking to use the phone; and (3) asking to use the phone at another residence in Springerville, Arizona. The State asserts that it offered the evidence of these prior acts to prove the Defendant's intent to rob, his motive, his modus operandi, and his identity.

The Defendant claims that the evidence of the motel robbery should not have been admitted because it was not relevant since the prosecution did not sufficiently prove that the Defendant committed the robbery and because its probative value did not outweigh its prejudicial effect. He also claims that the instruction the court gave about the motel robbery did not limit the jury to considering the evidence only as to the issues of intent, motive, modus operandi or identity. See Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 1502, 99 L.Ed.2d 771 (1988). As to the evidence of the Defendant's attempts to use the phone at the homes in St. Johns and Springerville, he claims that the evidence was not relevant because the prosecution did not sufficiently prove that it was the Defendant who appeared at those homes. We will discuss each of these prior acts separately.

Under Rule 404(b) of the Arizona Rules of Evidence, evidence of other crimes, wrongs, or acts is not admissible to prove a defendant's criminal character. State v. Fierro, 166 Ariz. 539, 547, 804 P.2d 72, 80 (1990). Such evidence may be admissible, however, for other proper purposes including proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Ariz.R.Evid. 404(b); State v. Stuard, 176 Ariz. 589, 597, 863 P.2d 881, 889 (1993). Although the State claims that the evidence of the Seligman robbery was offered to prove intent, motive, and identity, it is clear that as a practical matter, proof of identity was the only legitimate purpose for introducing the evidence.

"The identity exception to Ariz.R.Evid. 404(b) applies if identity is in issue, 'and if the behavior of the accused both on the occasion charged and on some other occasion is sufficiently distinctive, then proof that the accused was involved on the other occasion tends to prove his involvement in the crime charged.' " Stuard, 176 Ariz. at 597, 863 P.2d at 889 (quoting Arizona Evidence § 84, at 183-84). Behavior is sufficiently distinctive in this context if the characteristics of the behavior on each occasion are so unusual and distinctive as to be like a signature. Id. "While identity in every particular is not required, there must be similarities between the offenses in those important aspects 'when normally there could be expected to be found differences.' " State v. Roscoe, 145 Ariz. 212, 217, 700 P.2d 1312, 1317 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 525 (1985).

The evidence elicited at the Defendant's trial regarding the Seligman robbery was that about eight or nine hours before the victim in Eager was assaulted, an African-American male, wearing bib overalls, robbed the Supai Motel in Seligman. Seligman is about 250 miles northwest of Eager. The Seligman victims testified that the robber was armed with a knife, and one of them said that the robber used green duct tape to bind his hands. This victim was cut during a short and unsuccessful attempt to wrest the knife from the robber. Blood found on the Defendant's clothing and on the roll of tape discovered in his vehicle was consistent with this victim's blood.

There were similarities between the robbery in Seligman and the robbery and assault in Eagar. First, both acts were committed by a person wearing bib overalls. Although the description of the color of the overalls was not identical, one of the victims in the Seligman robbery testified that it was dark at the time of the robbery. Second, in each instance, the perpetrator bound the wrists of the victim of the crimes with unusual green duct tape. We find the similarities of a person wearing bib overalls and binding the wrists of his victims with unusual green duct tape to be sufficiently distinctive to indicate that the same person may have committed each of those crimes. The fact that the Defendant robbed a motel in Seligman tends to show that he was driving east across Arizona, augmenting his finances by robbery. This makes it more likely that he is the man who committed the robbery and assault in Eager. The Defendant asserts that the evidence of the Seligman robbery was unduly prejudicial. Prejudicial it no doubt was, but we cannot say that the trial judge abused his discretion in finding the evidentiary value of the evidence on the issue of identity outweighed its prejudicial effect. See State v. Via, 146 Ariz. 108, 122, 704 P.2d 238, 252 (1985), ...