Appeal from the Superior Court in Maricopa County The Honorable Susan M. Brnovich, Judge No. CR2008-130121-001
Thomas C. Horne, Arizona Attorney General, Jeffrey A. Zick, Chief Counsel, Criminal Appeals/Capital Litigation, Kent E. Cattani, Former Chief Counsel, Criminal Appeals/Capital Litigation, Jeffrey A. Sparks (argued), Assistant Attorney General, Phoenix, for State of Arizona
Thomas A. Gorman (argued), Attorney at Law, Sedona, for Trent Christopher Benson
JUSTICE TIMMER authored the opinion of the Court, in which CHIEF JUSTICE BERCH, VICE CHIEF JUSTICE BALES, JUSTICE PELANDER, and JUSTICE BRUTINEL joined.
¶1 Trent Christopher Benson was sentenced to death and prison terms after a jury found him guilty of two counts of first degree murder and eight other felonies. We have jurisdiction over this automatic appeal pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 13-4031.
¶2 Benson committed his crimes against four women at different times over a three-year period.
¶3 In November 2004, Benson agreed to pay Alisa to have sex, and she got into his car. By his own account, he "snapped" while Alisa was performing a sexual act. He beat her about her face and head, strangled her to death with a ligature, and severely sexually assaulted her while she was dead or unconscious. Benson then left Alisa's partially clad body in a Mesa alley.
¶4 In August 2007, Benson kidnapped and assaulted Yolanda with the help of an unidentified man. The men abducted Yolanda by approaching her from behind, pulling her into a nearby white car, and rendering her unconscious by placing a chemical-soaked cloth over her mouth and nose. When Yolanda regained consciousness, Benson was sexually assaulting her in a room as the other man watched. The two men then left, but Benson soon returned alone and again sexually assaulted Yolanda. After Benson left, she escaped. Yolanda identified Benson as her attacker in a subsequent photo lineup and at trial.
¶5 In October 2007, Benson took Karen to his house after she agreed to engage in sex for money. After becoming enraged, he hit Karen and strangled her with a ligature. He later told police he sexually assaulted Karen while she was unconscious. Benson dumped her body on a Mesa street and then ran over her body with his car.
¶6 Benson confessed to police that he assaulted Melissa in November 2007. As Melissa walked across a lot, she was choked from behind with a cord. She saw a white car before she fell unconscious. While Melissa was unconscious, Benson severely sexually assaulted and hit her. When Melissa regained consciousness, she was lying on the side of the road.
Arrest and prosecution
¶7 In spring 2008, a woman told Mesa police that an Asian man in a white car had repeatedly attempted to solicit her. She said the man frequented a local bar, and the police began watching him. After the man, later identified as Benson, dropped a cigarette butt, the police retrieved it and took a DNA sample, which revealed a profile that matched profiles developed from swabs taken from all four victims.
¶8 The Mesa police arrested Benson, who confessed to killing Alisa and Karen and to assaulting Melissa. He denied assaulting Yolanda, however, and explained the presence of his DNA on her body by stating he had solicited a "Hispanic chick" around that time who must have been Yolanda.
¶9 The State indicted Benson on two counts of first degree murder, four counts of kidnapping, and four counts of sexual assault. A jury found him guilty on all charges except the sexual assault count concerning Karen, on which it returned a verdict for attempted sexual assault.
¶10 During the aggravation phase, the jury found three aggravating circumstances for each murder. At the penalty phase, the jury determined that Benson should be sentenced to death for each murder. Consistent with those verdicts, the trial court imposed death sentences for the murders and consecutive sentences totaling 135.5 years' imprisonment on the non-capital counts.
I. PRETRIAL ISSUES
A. Motion to sever counts 4 and 5
¶11 Benson first argues that the trial court violated his rights to due process and a fair trial by denying his motions to sever counts 4 and 5, concerning the kidnapping and assault of Yolanda, from the counts related to the other victims. We review these rulings for an abuse of discretion. State v. Hausner, 230 Ariz. 60, 74 ¶ 43, 280 P.3d 604, 618 (2012).
¶12 The state can join charges having "the same or similar character, " but the defendant is entitled to sever as a matter of right, "unless evidence of the other offense . . . would be admissible under applicable rules of evidence if the offenses were tried separately." Ariz. R. Crim. P. 13.3(a)(1), 13.4(b). The trial court ruled that Benson was not entitled to sever the charges because evidence relating to counts 4 and 5 and the remaining counts would be cross-admissible under Arizona Rule of Evidence ("Rule") 404(c).
¶13 Rule 404(c) permits "evidence of other crimes, wrongs, or acts" to be admitted at trial if it shows the defendant "had a character trait giving rise to an aberrant sexual propensity to commit the offense charged." A trial court can admit other-act evidence if, among other things, its evidentiary value is not substantially outweighed by the dangers listed in Rule 403. Rule 404(c)(1)(C)-(D); State v. Aguilar, 209 Ariz. 40, 49 ¶ 30, 97 P.3d 865, 874 (2004). Benson argues the trial court erred by making this finding because the attack on Yolanda was dissimilar to and remote in time from the other crimes. See Rule 404(c)(1)(C)(i)-(ii) (listing dissimilarity and remoteness as factors to consider).
¶14 The trial court did not abuse its discretion. Although the attack on Yolanda differed in some ways from the attacks on the other victims (for example, it involved a second assailant and the use of a chemical to render her unconscious), the attacks did not have to precisely align for the evidence to be cross-admissible. See State v. Lehr (Lehr III), 227 Ariz. 140, 147 ¶ 21, 254 P.3d 379, 386 (2011) (holding that "[a]cts need not be perfectly similar in order for evidence of them to be admitted under Rule 404"); see also Rule 404 cmt. to 1997 amendment ("[T]he rule does not contemplate any bright line test of . . . similarity."). Importantly, the attack on Yolanda bore several similarities to the attacks on the other victims. Benson picked up all victims from the street, rendered them unconscious, placed his mouth on their breasts, and sexually assaulted them while they were unconscious. These similarities provided a reasonable basis for the court to infer that Benson's aberrant sexual propensities in each attack were probative on the charges involving all victims. See Rule 404 cmt. to 1997 amendment (noting Rule 404(c) permits the court "to admit evidence of remote or dissimilar other acts providing there is a 'reasonable' basis . . . to . . . permit an inference that defendant had an aberrant sexual propensity that makes it more probable that he or she committed the sexual offense charged").
¶15 Nor were the offenses so remote in time that evidence of each would not have been cross-admissible due to the danger of unfair prejudice. The attacks on Yolanda, Karen, and Melissa occurred within a three-month period. Although the attack on Alisa occurred two years and nine months before the attack on Yolanda, this time interval did not require the trial court to find that the probative value of the evidence of each attack was substantially outweighed by the danger of unfair prejudice. Cf. State v. Arner, 195 Ariz. 394, 395 ¶ 1, 988 P.2d 1120, 1121 (App. 1999) (holding trial court did not err by permitting evidence that defendant molested another child three years before the victim); Rule 404 cmt. to 1997 amendment (remoteness factor not subject to a "bright line test").
¶16 Benson also argues that the joinder unfairly prejudiced him because his admissions to the other three attacks effectively reduced the State's burden to secure convictions on counts 4 and 5, which were then used as aggravating circumstances in the murder counts. As a consequence, Benson asserts, the State's burden to prove that the death sentences were warranted was also reduced. We disagree. Permitting the jury to consider admissible evidence probative of the attack on Yolanda did not reduce the State's burden of proof.
¶17 The trial court did not abuse its discretion by denying Benson's motions ...