Court of Appeals of Arizona, Second Division, Department B
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20112756001 Honorable Michael O. Miller, Judge
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Alan L. Amann Tucson Attorneys for Appellee
Lori J. Lefferts, Pima County Public Defender By Kristine Maish, David J. Euchner, and Katherine A. Estavillo Tucson Attorneys for Appellant
¶1 Following a jury trial, appellant Robert Glissendorf was convicted of two counts of child molestation and sentenced to consecutive prison terms totaling thirty-four years. On appeal, he argues the state unreasonably delayed his prosecution, the trial court erred in refusing to give a jury instruction concerning the destruction of evidence, and the court erroneously admitted evidence of an aberrant sexual propensity pursuant to Rule 404(c), Ariz. R. Evid. We conclude the trial court erred in failing to provide the instruction, and we therefore reverse Glissendorf s conviction and seventeen-year sentence on count one. In addition, because we agree with Glissendorf that the trial court erred in its Rule 404(c) analysis, we remand for further proceedings consistent with this opinion.
Factual and Procedural Background
¶2 In August 2011, Glissendorf was charged with two counts of child molestation based on acts he had committed against separate victims. Count one alleged he had molested Olivia on a particular day between 1997 and 1999, when she was under eight years old; count two alleged he had molested Tamora, then six years old, at some point between 2009 and 2010.
¶3 At trial, Olivia testified that Glissendorf had molested her one night when they both were staying at a relative's house. According to Olivia, she first awoke on the living room floor, noticed her pajamas and underwear had been pulled down, observed Glissendorf touching her vagina, and went back to sleep. She then awoke in his bedroom and observed him touching her vagina again. Tamora testified that Glissendorf had once touched her underneath her underwear on the body part that "[m]akes you pee" when he was staying at Tamora's mother's house.
¶4 The trial court permitted another witness, Wanda, to testify that in Nevada in 1976, when she was six years old, Glissendorf had lured her to an apartment with candy, forced her to lie down on a couch, pulled down her pants and underwear, and touched her vulva. He consequently was arrested in Nevada, although that case later was dismissed. The jury found Glissendorf guilty of molesting Olivia and Tamora, and this appeal followed the imposition of sentence.
Motion to Dismiss
¶5Glissendorf first argues the trial court erred in denying his motion to dismiss count one of the indictment due to the state's ten-year delay in bringing the charge. Although the motion refers to "pre accusation delay" and the denial of his "right to a speedy trial, " the state construed it below as a motion to dismiss based on pre-indictment delay, and we likewise treat it as such on appeal.
¶6 In 2001, Olivia first reported to law enforcement that Glissendorf had molested her. The state elected not to pursue charges at that time, and police closed the case. The state asserted below that it did not delay prosecution to secure any tactical advantage; rather, the delay was the result of its decision not to prosecute "a single victim case with no corroboration." When Tamora came forward in 2010 alleging that Glissendorf had committed a similar act, the first case was reopened and the state elected to charge him based on Olivia's accusations. The trial court denied the motion to dismiss without making express findings.
¶7 The Due Process Clauses of the Fifth and Fourteenth Amendments prevent the state from bringing criminal charges against a person when it has unreasonably delayed doing so. State v. Lacy, 187 Ariz. 340, 346, 929 P.2d 1288, 1294 (1996); accord United States v. Lovasco, 431 U.S. 783, 789, 790 (1977); United States v. Marion, 404 U.S. 307, 324-25 (1971). "To establish that pre-indictment delay has denied a defendant due process, there must be a showing that the prosecution intentionally delayed proceedings to gain a tactical advantage over the defendant or to harass him, and that the defendant has actually been prejudiced by the delay." State v. Broughton, 156 Ariz. 394, 397, 752 P.2d 483, 486 (1988); accord Lacy, 187 Ariz. at 346, 929 P.2d at 1294; State v. Williams, 183 Ariz. 368, 379, 904 P.2d 437, 448 (1995). A defendant bears a "heavy burden to prove that pre-indictment delay caused actual prejudice." Broughton, 156 Ariz. at 397-98, 752 P.2d at 486-87. We review a trial court's ruling on a motion to dismiss for an abuse of discretion. State v. Lemming, 188 Ariz. 459, 460, 937 P.2d 381, 382 (App. 1997). In the absence of express findings, we will uphold the court's ruling if it is supported by any reasonable evidence in the record. See State v. Nuckols, 229 Ariz. 266, ¶ 7, 274 P.3d 536, 538 (App. 2012).
¶8 Here, the record supports a finding that state officials did not intentionally delay prosecution to gain a tactical advantage or to harass Glissendorf Instead, the record indicates the state decided not to prosecute him in 2001 because it found the evidence subject to reasonable doubt. The trial court thus did not abuse its discretion in denying the motion to dismiss. Although Glissendorf asserts the state's charging decisions with respect to count one were "wholly improper, " he has cited no legal authority to support this position, and we therefore need not address the point any further. See In re $26, 980.00 U.S Currency, 199 Ariz. 291, ¶ 28, 18 P.3d 85, 93 (App. 2000). Because Glissendorf has failed to establish the first step in the two-step test, he has not demonstrated that he is entitled to relief on appeal. See Lacy, 187 Ariz. at 346, 929 P.2d at 1294 (claim based on pre-indictment delay fails "[a]bsent proof of an intentional delay for strategic or harassment purposes").
¶9 Glissendorf nevertheless contends the Arizona Supreme Court has misinterpreted the United States Supreme Court's precedents of Marion and Lovasco, and he asserts that "tactical delay [i]s not a sine qua non of a due process violation." Relying in part on United States v. Moran, 759 F.2d 777, 782 (9th Cir. 1985), he maintains that unreasonable pre-indictment delay should be determined based on a balancing test, and intentional or reckless behavior by the state is not essential to the analysis. However, we are bound by the decisions of our supreme court, including its interpretation of federal constitutional rights. See State v. Stanley, 217 Ariz. 253, ¶ 28, 172 P.3d 848, 854 (App. 2007); see also State v. Vickers, 159 Ariz. 532, 543 n.2, 768 P.2d 1177, 1188 n.2 (1989) (Arizona courts not bound by Ninth Circuit's interpretation of what United States Constitution requires). We therefore do not address this argument further.
¶10 Glissendorf next contends the trial court erred in refusing his request for a jury instruction derived from State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964). Although he did not submit his proposed instruction in writing, in accordance with Rule 21.2, Ariz. R. Crim. P., the court nevertheless understood his request as one for the following "standard" instruction:
If you find that the State has lost, destroyed, or failed to preserve evidence whose contents or quality are important to the issues in this case, then you should weigh the explanation, if any, given for the loss or unavailability of the evidence. If you find that any such explanation is inadequate, then you may draw an inference unfavorable ...