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State v. Rushinsky

Court of Appeals of Arizona, First Division, Department C

October 15, 2013

STATE OF ARIZONA, Appellee,
v.
JOHN JOSEPH RUSHINSKY, JR., Appellant.

Not for Publication -Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Cause No. CR2011-142060-001 The Honorable Warren J. Granville, Judge

Thomas C. Horne, Arizona Attorney General Phoenix by Joseph T. Maziarz, Chief Counsel Criminal Appeals Section and Alice Jones, Assistant Attorney General Attorneys for Appellee

James J. Haas, Maricopa County Public Defender Phoenix by Christopher V. Johns, Deputy Public Defender Attorneys for Appellant

MEMORANDUM DECISION

RANDALL M. HOWE, Presiding Judge

¶1 John Joseph Rushinsky, Jr., appeals his convictions and sentences on two counts of child molestation. For the following reasons, we find no error and affirm.

FACTS & PROCEDURAL HISTORY

¶2 Allegations of child molestation prompted a Child Protective Services ("CPS") caseworker to investigate Rushinsky. Accompanied by two police officers, the caseworker arrived at Rushinsky's home to interview him. Rushinsky and his wife invited the caseworker and officers inside after the caseworker told him, "we received a CPS child abuse allegation [and] my job is just to talk to [you] and see, you know, what is going on." Neither Rushinsky nor his wife expressed concern about——or appeared surprised by——the caseworker's statement.

¶3 The CPS caseworker sat in the living room to speak with Rushinsky and his wife while the officers stood in the entryway near the front door, but not blocking it. The CPS caseworker told Rushinsky that "as a parent you do not have to talk to me." Approximately ten minutes into the interview, Rushinsky volunteered that he had an erection on an occasion when his seven-year-old daughter sat on his lap. Rushinsky said that he pushed her down on himself and rubbed against her.

¶4 After overhearing Rushinsky make these admissions, an officer went outside and called her sergeant about the situation. After completing the call, the officer re-entered the home and approached Rushinsky to ask him for his identification. Rushinsky stood up and patted his pockets to locate his identification but was unable to do so. Without drawing a weapon, the officer then arrested Rushinsky.

¶5 A grand jury indicted Rushinsky on three counts of child molestation and one count of aggravated assault. Before trial, Rushinsky moved to suppress his statements to the CPS caseworker, arguing that his admissions were made in violation of his Miranda[1]rights. The trial court conducted a suppression hearing and denied the motion. The court found that no Miranda violation occurred because Rushinsky was not in custody at the time that he made the challenged statements.

¶6 At trial, the State offered in evidence testimony that Rushinsky touched the vagina of the victim's sister, "B., " during a camping trip before the charged offenses. The trial court found the evidence relevant under Arizona Rule of Evidence ("Rule") 404(c) to show aberrant sexual propensity and under Rule 404(b) to show intent and absence of mistake or accident. The trial court also found that admission of the other act would not be unfairly prejudicial under Rule 404(c)(1)(C) because the act involving B. was not too remote and occurred under similar circumstances; occurred within a year or two of the charged offense; occurred during a family event; and the victims were relatively close in age, the same gender, and were both Rushinsky's biological children.

¶7 The jury convicted Rushinsky of two counts of child molestation, but acquitted him of the remaining charges. The trial court sentenced him to concurrent terms, the ...


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