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State v. Rose

Court of Appeals of Arizona, Second Division

April 22, 2019

The STATE of Arizona, Appellee,
v.
Aaron Michael ROSE, Appellant.

Page 1000

          Appeal from the Superior Court in Pinal County, No. S1100CR201702367, The Honorable Jason R. Holmberg, Judge. AFFIRMED

         Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, By Tanja K. Kelly, Assistant Attorney General, Tucson, Counsel for Appellee

         Harriette P. Levitt, Tucson, Counsel for Appellant

         Judge Brearcliffe authored the opinion of the Court, in which Presiding Judge Staring and Judge Vásquez concurred.

          OPINION

         BREARCLIFFE, Judge:

         [¶1] Aaron Michael Rose appeals his convictions after a jury trial on two counts of sexual conduct with a minor under the age of fifteen. We affirm.

          Issues

         [¶2] Rose contends the trial court committed fundamental error by admitting, under Rule 404(c), Ariz. R. Evid., evidence of his juvenile delinquency adjudication for child molestation. The state contends that the evidence was properly admitted. The sole issue on appeal is whether the court erred because Rule 404(c) does not permit the admission of evidence of other crimes, wrongs or acts committed by a juvenile as evidence of a character trait giving rise to an aberrant sexual propensity to commit a criminal sexual offense.

          Factual and Procedural Background

         [¶3] We view the facts in the light most favorable to upholding the trial court’s rulings and jury’s verdict. See State v. Gay, 214 Ariz. 214, ¶¶ 2, 4, 150 P.3d 787, 790 (App. 2007). Rose was indicted on two counts of sexual conduct with a minor under the age of fifteen, a class two felony and dangerous

Page 1001

crime against children in the first degree. Between December 2015 and August 2017, when Rose was thirty-six to thirty-eight years old, he engaged in the charged acts with the son of his then-girlfriend. The boy was between the ages of three and five at the time of the crimes. At trial, the state sought to introduce evidence under Rule 404(c) of Rose’s prior juvenile delinquency adjudication for child molestation as evidence of Rose’s aberrant sexual propensity to commit the acts charged in this case. In that matter, Rose, then fourteen, was found to have molested a five- to six-year-old boy in a similar manner.

         [¶4] Rose opposed the admission of the evidence arguing that expert witness testimony was necessary to demonstrate that he had a "continuing emotional propensity" to commit the crime, that the acts were dissimilar to the current charged offenses and remote in time, and that their admission would be unduly prejudicial. The trial court found the 1994 adjudication admissible under Rule 404(c). At the conclusion of the three-day trial, Rose was convicted on both counts, and the jury found the aggravating factor that the victim was age twelve or under at the time of each crime. Rose ...


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