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
...