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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.

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

          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 (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 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 was sentenced to two consecutive life sentences, and he timely appealed. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).

         Analysis

         ¶5 Rose did not assert below the ground he now asserts on appeal-that his 1994 adjudication was inadmissible by virtue of its being a juvenile adjudication. Consequently, he did not preserve the issue for harmless error review. As he must, he argues that the trial court's error in admitting this other-acts evidence was fundamental and prejudicial error. State v. Henderson, 210 Ariz. 561, ¶¶ 18-19 (App. 2005). We therefore review the court's ruling admitting this other-acts evidence for fundamental error.

         ¶6 To establish fundamental, prejudicial error, a defendant must show trial error exists and that the error either went to the foundation of the case, deprived him of a right essential to his defense, or was so egregious that he could not possibly have received a fair trial. State v. Escalante, 245 Ariz. 135, ¶ 21 (2018). If a defendant can make that showing, he must also demonstrate resulting prejudice. Id. If a defendant shows the error was so egregious that he could not have received a fair trial, however, then he has necessarily shown prejudice and must be granted a new ...


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