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In re Donald P.

Court of Appeals of Arizona, First Division, Department B

August 27, 2013

IN RE THE MATTER OF DONALD P.

Not for Publication – Rule 28, Arizona Rules of Civil Appellate Procedure

Appeal from the Superior Court in Mohave County Cause No. S8015CV201200205 The Honorable Lee Frank Jantzen, Judge

Matthew J. Smith, Mohave County Attorney Kingman By James J. Zack, Chief Deputy County Attorney Attorneys for Appellee

Ronald S. Gilleo, Mohave County Legal Defender Kingman By Diane S. McCoy, Deputy Legal Defender Attorneys for Appellant

MEMORANDUM DECISION

DONN KESSLER, Presiding Judge

¶1 Appellant, Donald P., appeals from an order of commitment entered pursuant to Arizona Revised Statutes ("A.R.S.") section 36-3705 (Supp. 2012)[1] finding Appellant to be a sexually violent person ("SVP") pursuant to A.R.S. § 36-3701(7) (Supp. 2012). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In 2002, Appellant was convicted of sexual conduct with a minor, a class six felony, and attempted sexual assault, a class three felony, and sentenced to a total of 10.75 years' imprisonment for these crimes. In February 2012, prior to Appellant's scheduled release from prison, the Mohave County Attorney filed a petition for detention alleging that Appellant was an SVP pursuant to A.R.S. § 36-3701(7).[2] The petition alleged that Appellant suffered from a mental disorder as defined in A.R.S. § 36-3701(5)[3] that makes him likely to engage in acts of sexual violence.

¶3 Prior to trial, Appellant's counsel filed a motion in limine objecting to the following evidence: 1) any reference to a 1965 police report ("Azusa Report"), which was related to a California child molestation charge; 2) any reference to a non-testifying doctor's report other than to the extent that any expert relied on that report; 3) any reference to facts pertaining to any underlying conviction that is not directly related to the issue of whether Appellant's alleged mental disorder makes him likely to engage in acts of sexual violence; and 4) any mention of any other convictions beyond the fact that Appellant had one conviction for a sexually violent offense. In response, the State argued that its expert, Dr. Barry Morenz, reasonably relied on police reports and court documents related to Appellant's multiple prior convictions to form his opinion, and that the evidence Appellant sought to preclude was admissible pursuant to Arizona Rule of Evidence ("Rule") 703 and necessary for the jury to evaluate the experts' opinions and determine if Appellant met the criteria for an SVP.

¶4 The superior court denied Appellant's motion in limine in its entirety. A two-day trial followed, during which Dr. Morenz and Appellant's expert Dr. Richard Samuels testified and the following exhibits were admitted into evidence without objection from Appellant: 1) the Azusa Report; 2) documents related to the 2002 convictions, including the presentence report and investigation narratives; 3) a 1993 arrest report from Nevada relating to Appellant's failure to register as a sex offender; 4) a police report related to a 1999 conviction for aggravated assault; 5) documents related to a 1982 conviction in California for child molestation; 6) documents related to a 1978 conviction in California for assault with intent to commit sodomy; 7) documents related to a 1972 probation violation in California; 8) a police report related to a 1999 arrest in Arizona for aggravated assault; and 9) "pen packs" from California and Arizona.

¶5 The jury found Appellant to be an SVP, and the court ordered Appellant to be committed to a state hospital for treatment. Appellant timely appealed. This Court has jurisdiction pursuant to A.R.S. § 12-2101(A)(10)(a) (Supp. 2012).

DISCUSSION

¶6 Appellant argues that the superior court erred in admitting police reports and court records regarding Appellant's prior convictions because 1) they contained inadmissible hearsay; 2) the experts did not rely on them to form their opinions; 3) they contained inadmissible character evidence; and 4) their admission was unfairly prejudicial. "We review the trial court's decision to admit evidence of prior acts for an abuse of discretion." In re Commitment of Jaramillo, 217 Ariz. 460, 462, ¶ 5, 176 P.3d 28, 30 (App. 2008). We view the evidence in the light most favorable to affirming the trial court, "which entails maximizing its probative value and minimizing its prejudice." State v. Petzoldt, 172 Ariz. 272, 276, 836 P.2d 982, 986 (App. 1991). When an appellant has not provided us with a transcript of the trial itself, we presume that whatever occurred during the trial supports the trial court's ruling. Johnson v. Elson, 192 Ariz. 486, 489, ¶ 11, 967 P.2d 1022, 1025 (App. 1998).

¶7 The State argues that Appellant waived any objections to evidence other than to the Azusa Report because he did not timely object to their admission during trial and because his motion in limine focused only on the Azusa Report. We disagree with the State as to the effect of the motion in limine. Appellant's motion in limine was more inclusive than the State purports. Appellant moved to preclude references to "any convictions . . . other than to the stipulation that [Appellant] does have a conviction of a sexually violent offense." A ruling on "[a] properly made motion in limine will preserve appellant's objection on appeal without need for further objection if it contains specific grounds for the objection." State v. Briggs, 112 Ariz. 379, 382, 542 P.2d 804, 807 (1975). Appellant's motion sufficiently stated grounds for objection and the court denied the motion. The State confirmed during oral argument on Appellant's motion in limine that it was "not seeking to introduce any reports of mere arrests or un-convicted activities of the ...


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