State v. Williams

• Decision Date: 26 October 2004
• Docket Number: No. 1 CA-CR 03-0640.,1 CA-CR 03-0640.
• Citation: 99 P.3d 43,209 Ariz. 228
• Parties: STATE of Arizona, Appellee, v. Todd M. WILLIAMS, Appellant.
• Court: Arizona Court of Appeals

99 P.3d 43

209 Ariz. 228

STATE of Arizona, Appellee, v. Todd M. WILLIAMS, Appellant.

No. -0640.

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

October 26, 2004.

Terry Goddard, Attorney General, by Randall M. Howe, Chief Counsel, Criminal Appeals Section and Joseph T. Maziarz, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender, by Theresa M. Armendarez, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

WINTHROP, Judge.

¶ 1 Todd M. Williams ("Appellant") appeals his convictions for public sexual indecency to a minor and public sexual indecency. Appellant contends that insufficient evidence supports his convictions; that prior act evidence was improperly admitted pursuant to Rules 404(b) and (c) of the Arizona Rules of Evidence; and that the trial court erred when it denied his motion for mistrial or, in the alternative, his motion to strike testimony and admonish the jury. We have jurisdiction to decide Appellant's timely appeal pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4031 (2001), and 13-4033(A) (2001). For the reasons that follow, we affirm Appellant's convictions and sentences.¹

ANALYSIS

I. Sufficiency of the Evidence

¶ 2 Appellant contends that insufficient evidence supports his convictions. In short, Appellant argues that the evidence was insufficient because, according to Appellant:

1. Five witnesses testified that they believed Appellant was home at or around the time of the incident;

2. There were discrepancies between the victims' description of the vehicle and the actual appearance of Appellant's vehicle; and

3. After the incident, one victim could not identify Appellant from a photographic lineup, and she only identified him after hearing the other victim identify him in court.

¶ 3 "We construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant." State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998) (citation omitted); see also State v. Fulminante, 193 Ariz. 485, 494,

¶ 27, 975 P.2d 75, 84 (1999) (stating that, in reviewing the record, we draw all reasonable inferences that support the verdict). As charged, the applicable provisions of A.R.S. § 13-1403 (2001) provide that a person commits public sexual indecency by intentionally or knowingly engaging in an act of "sexual contact" when another person is present and the defendant acts recklessly regarding whether the other person, as a reasonable person, would be offended or alarmed by the act. See A.R.S. § 13-1403(A)(1). If a defendant engages in such activity and is reckless whether a minor under the age of fifteen years is present, that defendant commits public sexual indecency to a minor. See A.R.S. § 13-1403(B).

¶ 4 On December 2, 2002, at approximately 4:20 p.m., the two victims, "A.L." and "A.S.," were walking home from school. A.L. was fourteen years old and A.S. was fifteen years old. As the victims stood on the corner of 30th Street and Roosevelt in Phoenix, Appellant drove past them. He eventually drove up to the corner and stopped beside them. When the victims looked inside Appellant's vehicle, they could see that his pants were down and he was masturbating.

¶ 5 The victims did not get Appellant's license number at that time. However, they recognized both Appellant and his vehicle when they saw him in the area the next day. A.L. wrote down Appellant's license plate number and provided it to the police, who determined that the vehicle belonged to Appellant. Both victims identified Appellant as the person they had seen in the vehicle masturbating. The jury also heard evidence regarding how Appellant had engaged in the same conduct on four prior occasions.

¶ 6 Appellant's arguments regarding the sufficiency of the evidence go merely to weight and credibility. However, we do not weigh the evidence; that is the function of the jury. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989)

. "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)). "To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury." State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987) (citation omitted). Although the record contains some conflicting evidence, it was for the jury to weigh the evidence and determine the credibility of the witnesses. See State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App.1995). Given the record before us, we find the evidence sufficient to support Appellant's convictions.

II. Admission of Evidence Pursuant to Rule 404(b)

¶ 7 Appellant also contends that the trial court abused its discretion by admitting evidence of prior acts pursuant to Rule 404(b) of the Arizona Rules of Evidence. The evidence concerns four prior incidents in which Appellant engaged in the same conduct as that charged in the instant case. We will refer to those prior incidents as the Julie C. incident, the Jennifer M. incident, the Jennalee L. incident, and the Robby R. incident.

A. Factual Background

¶ 8 The Julie C. incident occurred on October 29, 1993. Julie was thirty-two years old at the time and was walking her seven year-old daughter home from school. As they crossed the street, Julie noticed a car waiting to turn and made eye contact with the driver. Once across the intersection, Julie and her daughter continued to walk, and the same car came up behind them, passed them, turned around, and parked on the side of the street on which they were walking. As Julie passed the car, she looked inside and saw that the driver had his pants down and was masturbating. The driver did not speak to Julie or her daughter. Julie wrote down the car's license plate number, and it was determined that the vehicle was registered to Appellant. On January 18, 1994, Julie identified Appellant from a photographic lineup.

¶ 9 At the June 6, 2003 pretrial hearing to determine the admissibility of the prior acts in the instant case, Julie could not identify Appellant. However, at trial on June 10, 2003, Julie explained that she was nervous on June 6 and did not want to look for Appellant in the courtroom. Julie claimed that she recognized Appellant later at the June 6 hearing, but did not want to interrupt the proceedings. At trial (on June 10), Julie identified Appellant as the driver she observed in 1993. Although Appellant pleaded guilty to public sexual indecency following the Julie C. incident, the jury was not informed that Appellant had been convicted.

¶ 10 The Jennifer M. incident occurred on May 13, 1999, when Jennifer was fifteen years old. Jennifer was walking home from school after she was sent home early, at approximately noon. As she walked home, a vehicle slowly passed by, and the driver stared at her. The vehicle turned around several times to pass her. Each time the vehicle passed, the driver stared at her. The final time the vehicle approached Jennifer, she could see that the driver's pants were down and he was masturbating. The driver said something to Jennifer that she could not recall. She was able to get the license plate number of the vehicle, which was registered to Appellant. Jennifer, was not present at the June 6, 2003 evidentiary hearing, but identified Appellant from a photographic lineup shortly after the incident and at trial in the instant case. ¶ 11 The Jennalee L. incident occurred on October 1, 1999, when Jennalee was thirteen years old. As she walked home from school, she was followed by a vehicle. The vehicle would occasionally park, and the driver would watch her. The vehicle eventually pulled up beside Jennalee, and the driver asked her for directions. As Jennalee looked into the vehicle, she saw that the driver was masturbating. Jennalee identified Appellant from a photographic lineup shortly after the incident, at the June 6 hearing, and at trial in the instant case.

¶ 12 The Robbie R. incident occurred on October 2, 1999. Robbie, who was thirty-six years old at the time, was riding her bicycle home from the movies. As she did so, she noticed a vehicle following her. After she got off her bike to walk it across the street, the vehicle pulled up beside her, and the driver asked for directions. As Robbie looked in the vehicle, she noticed that the driver was masturbating. Robbie identified Appellant from a photographic lineup shortly after the incident, at the June 6 hearing, and at trial in the instant case. Appellant was charged with the Jennifer M., Robbie R., and Jennalee L. incidents in a single action in 1999. He pleaded guilty to public sexual indecency on the count that involved Jennalee L. The jury was not informed of Appellant's conviction.

B. Discussion

¶ 13 We review the admission of evidence pursuant to Rule 404(b) for an abuse of discretion. State v. Van Adams, 194 Ariz. 408, 415, ¶ 20, 984 P.2d 16, 23 (1999). Evidence of prior acts is admissible pursuant to Rule 404(b) if relevant and admitted for a proper purpose, such as to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See id. The trial court ruled that all four prior acts were admissible to prove identity.² Appellant raises three arguments on appeal as to why some or all of this evidence should not have been admitted pursuant to Rule 404(b). First, Appellant contends that the 1993 Julie C. incident was too remote in time. Second, Appellant contends that the Robbie R. incident was too dissimilar to the instant offenses. Third, Appellant contends that...