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State v. James

Court of Appeals of Arizona, Second Division

March 29, 2017

The State of Arizona, Appellee,
v.
Terry Dale James, Appellant.

         Appeal from the Superior Court in Pima County No. CR20141325001 The Honorable Teresa Godoy, Judge Pro Tempore AFFIRMED AS CORRECTED

          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Mariette Ambri, Assistant Attorney General, Tucson Counsel for Appellee

          Dean Brault, Pima County Legal Defender By Scott A. Martin and Robb P. Holmes, Assistant Legal Defenders, Counsel for Appellant

          Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Howard and Judge Vásquez concurred.

          OPINION

          ECKERSTROM, Chief Judge:

         ¶1 Following a jury trial, appellant Terry James was convicted of child molestation and sexual conduct with a minor under the age of twelve. The trial court imposed enhanced, consecutive sentences of twenty-one years and life with the possibility of release after thirty-five years, respectively.[1] On appeal, James primarily challenges the admission of other-act evidence pursuant to Rule 404(c), Ariz. R. Evid. We affirm for the reasons that follow.

         Factual and Procedural Background

         ¶2 We view the facts in the light most favorable to sustaining the convictions. See State v. Dixon, 226 Ariz. 545, n.2, 250 P.3d 1174, 1177 n.2 (2011). In 2014, James was charged in Pima County with two offenses arising from a single episode against T.H., his step-granddaughter, at some point between 2002 and 2007. T.H. was born in 1997, and she was between six and ten years old at the time of the incident. Count one alleged James had committed child molestation by touching her vulva with his finger; count two alleged sexual conduct with a minor based on him licking her vulva.

          ¶3 Before trial, the state sought to introduce evidence of other sex acts James had committed against T.H. around the same period of time. Those acts had been reported to, and investigated by, police in Mesa in 2006. Because T.H. was reluctant to participate in that investigation, no charges were brought in that jurisdiction. The state further sought to introduce evidence of various sex offenses James had committed against his stepdaughter A.H., who is T.H.'s mother, when she was a child in the 1980s. Those acts against A.H. had resulted in James pleading guilty to attempted sexual abuse.

         ¶4 James opposed the state's motion and requested an evidentiary hearing in which A.H. and T.H. would testify and be subject to cross-examination. He asserted, inter alia, that without such testimony the trial court could not find he had committed the other acts by clear and convincing evidence.

         ¶5 After hearing argument on the motion, the trial court denied James's requested hearing. The court then ruled the other-act evidence admissible under Rule 404(c) and made the findings required by that provision. The court based its ruling on "the documents that the State submitted as an offer of proof."[2]James had referred to several of those documents during the hearing, and he made no objection based on a lack of disclosure. With two exceptions, however, those materials were never entered into the trial court's record.[3]

          ¶6 At trial, A.H. testified that, from the time she was about seven years old until she was sixteen, James "would fondle [her] . . . fondle [her] vagina . . . grab [her] breast . . . try to lick [her] . . . [and] take pictures of [her]." A.H. further testified that James had been convicted based on those acts. As to the Mesa incidents, T.H. testified James had touched and licked her vagina, he had rubbed his penis against her vagina on three separate occasions, and he had taken photographs of her vagina.

         ¶7 With regard to the charged offenses in Pima County, T.H. testified that James had told her parents he was taking her to a store in his pickup truck. He then drove her to a remote area in the desert, stopped the truck, removed her pants, licked her vagina, and touched it with his finger. In a recorded telephone conversation or "confrontation call" from 2014 admitted at trial, James apologized to T.H. for touching and licking her vagina when she was younger. He also apologized when she stated he had done "it" to her "every time" she had visited him.

         ¶8 When T.H. asked why he had acted this way, James explained he was sexually attracted to young girls and he found it difficult to control his impulses around them. He acknowledged he had been similarly attracted to T.H.'s mother when she was a child, and, as a result, he had been convicted as a sex offender for "messing around" with her. The record of conviction the state entered into evidence showed that James had pleaded guilty in 1991 to attempted sexual abuse committed against A.H. in 1989.

         ¶9 After the jury found James guilty of both the charges, the trial court determined he had one predicate felony conviction. The court imposed the enhanced sentences noted above, and this appeal followed.

         Other-Act ...


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