Court of Appeals of Arizona, Second Division, Department B
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause Nos. CR20071585,
CR20071766 (Consolidated) Honorable Peter J. Cahill, Judge Honorable Michael Cruikshank, Judge Honorable Hector Campoy, Judge.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and David A. Sullivan Tucson Attorneys for Appellee
Lori J. Lefferts, Pima County Public Defender By Frank P. Leto Tucson Attorneys for Appellant
VIRGINIA C. KELLY, Presiding Judge
¶1 In 2008, appellant Raul Herrera was convicted after a jury trial of two counts of sexual conduct with a minor under the age of fifteen, one count of sexual exploitation of a minor under the age of fifteen, and one count of kidnapping. Herrera argues the trial court erred in admitting evidence of other acts and in precluding evidence of the victim's prior sexual history. He also contends the testimony of the state's expert, Wendy Dutton, improperly invaded the province of the jury and therefore constituted fundamental error. For the following reasons, we affirm.
¶2 "We construe the evidence in the light most favorable to sustaining the verdict[s], and resolve all reasonable inferences against the defendant." State v. Greene, 192 Ariz. 431, ¶ 12, 967 P.2d 106, 111-12 (1998). In 2007, Herrera's stepdaughter, A.M., told a friend she was being molested by Herrera. A.M. then reported the abuse to her school guidance counselor. The state charged Herrera with three counts of sexual conduct with a minor under the age of fifteen and two counts of sexual exploitation of a minor under the age of fifteen. The indictment alleged that these counts were dangerous crimes against children. Herrera also was charged with one count of kidnapping.
¶3 The three sexual conduct charges alleged Herrera "ha[d] the victim masturbate him, " had "plac[ed] his penis inside the victim's vulva, " and "ha[d] the victim place her mouth on his penis." The sexual exploitation charges alleged Herrera had possessed two digital photographs of A.M. "engaging in actual or simulated oral sex." And, the kidnapping count alleged Herrera had kidnapped the victim "with the intent to inflict . . . physical injury or a sexual offense on her."
¶4 Herrera was convicted, as specified above, of four of the six counts. The jury found him not guilty of the other counts. The trial court sentenced Herrera to presumptive, consecutive prison terms totaling 60.5 years. We affirmed the convictions and sentences on appeal, State v. Herrera, 226 Ariz. 59, 243 P.3d 1041 (App. 2010), and Herrera filed a petition for review in our supreme court. The supreme court granted review, vacated this court's opinion, and remanded the matter to this court for reconsideration in light of the supreme court's decision in State v. Ferrero, 229 Ariz. 239, 274 P.3d 509 (2012). State v. Herrera, 230 Ariz. 387, 285 P.3d 308 (2012). We then stayed the appeal and remanded the case to the trial court, directing it to determine whether certain other-act evidence previously admitted as intrinsic to the charged offenses was admissible under Rule 404(c), Ariz. R. Evid. After the court issued its ruling in May 2012, we vacated the stay of the appeal, revested jurisdiction in this court, and permitted the parties to submit supplemental briefs addressing any issues related to the trial court's ruling. We now address Herrera's arguments on appeal.
I. Other-Acts Evidence
¶5 Before trial, in compliance with Rule 15.1(b)(7), Ariz. R. Crim. P., the state filed a notice disclosing its intent to introduce at trial various uncharged acts allegedly committed by Herrera. This evidence included two portions of a videotape taken by Herrera that displayed A.M. with her breasts exposed. In one segment, Herrera was directing her to jump up and down; in the other she was making a sexually explicit statement. The state's notice also included evidence of statements made by A.M. to law enforcement officers describing uncharged acts committed by Herrera before and during the time period within which the indictment alleged the charged offenses had been committed.
¶6 Herrera filed an objection to the admission of this evidence citing the following grounds: (1) there was insufficient evidence establishing he had committed the uncharged acts; (2) the evidence was improper character evidence under Rule 404, Ariz. R. Evid., and was not admissible under the exception created by Rule 404(c) because the acts did not show he had a character trait giving rise to an aberrant sexual propensity; and, (3) the danger of unfair prejudice outweighed the evidence's probative value. The state thereafter disclosed its intent to introduce a videotape made by Herrera that depicted "the victim's genitalia." Herrera also filed an objection to this evidence, incorporating his previous objections to other-acts evidence, and arguing there was inadequate foundation and the evidence should at least be "edited such that only those segments identified by the alleged victim as being herself are view[ed] by the jury."
¶7 After a hearing, Judge Cruikshank ruled that the two portions of videotape depicting A.M.'s exposed breasts were admissible because the evidence was intrinsic to the charged offenses, and would be admitted if the state provided sufficient foundation to establish that A.M. was the person depicted in the videotape segments. Judge Cruikshank ruled that A.M.'s statement to law enforcement officers about other acts also was intrinsic to the charged offenses and therefore admissible. The judge added that because the other-act evidence was admissible under the intrinsic-evidence principle, he was not required to analyze the admissibility of the proffered evidence under Rule 404(b) or Rule 404(c).
¶8 Subsequently, Judge Campoy held a hearing regarding the admissibility of the images of genitalia, which were derived from the videotape. He ruled that one image was admissible because A.M. had identified herself as the person portrayed in that image but that the full videotape and another image were inadmissible due to inadequate foundation. Defense counsel then asked Judge Campoy to reconsider Judge Cruikshank's previous rulings on any acts that had occurred in Yuma (hereinafter "Yuma Acts"), arguing they were inadmissible because they had occurred before the period covered by the indictment. Although Judge Campoy refused to reconsider Judge Cruikshank's previous rulings on other-acts evidence, he commented, nevertheless, that the challenged evidence "would be part and parcel and intrinsic to the charges."
¶9 At trial, Herrera objected when the prosecutor asked A.M. where her first sexual contact with Herrera had taken place, arguing the evidence was irrelevant. Judge Cahill overruled the objection and the victim responded, "Yuma." Herrera again objected and, following a bench conference, the judge stated he "ha[d] independently looked at the arguments of counsel" and overruled Herrera's objection to evidence relating to the Yuma Acts.
¶10 On remand, the trial court concluded the evidence that previously had been deemed intrinsic to the charged crimes was not intrinsic, but nonetheless was admissible under Rule 404(c). The court made explicit findings to support its determination.
a. Limited Remand
¶11 In his supplemental brief, Herrera argues it was improper for this court to remand the case to the trial court to determine the admissibility of the other-act evidence under Rule 404(c). He also contends the state "forfeited its opportunity for a post-appeal remand by inviting the error" and the scope of the remand was wrongfully limited.
¶12 Herrera maintains that ordering a limited remand to develop the record "violates Ferrero's direct holding" and that "Ferrero does not authorize a new 404(c) hearing." In support of this contention, he relies on the final disposition in Ferrero: the supreme court agreed with the court of appeals' decision to remand that case to the trial court for a new trial. 229 Ariz. 239, ¶ 29, 274 P.3d at 515. However, Ferrero did not announce a general rule prohibiting a limited remand where evidence has been characterized erroneously as intrinsic. Id. And we reject Herrera's suggestion that in State v. Coghill, 216 Ariz. 578, 169 P.3d 942 (App. 2007), this court held that when other-act evidence has been admitted erroneously, the case must be remanded for a new trial. Rather, we concluded that the defendant was entitled to a new trial because the trial court had erred when it admitted evidence that was unnecessary, irrelevant, ...