Opinion
No. 2 CA-CR 2013-0145
04-25-2014
THE STATE OF ARIZONA, Appellee, v. ARTURO AVILA, Appellant.
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Myles A. Braccio, Assistant Attorney General, Phoenix Counsel for Appellee Law Offices of J. T. McEwen, Tubac By J. T. McEwen Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20103744001
The Honorable Scott Rash, Judge
AFFIRMED
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Myles A. Braccio, Assistant Attorney General, Phoenix
Counsel for Appellee
Law Offices of J. T. McEwen, Tubac
By J. T. McEwen
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. KELLY, Presiding Judge:
¶1 Arturo Avila appeals from his convictions and sentences for three counts of sexual abuse of a minor under fifteen, six counts of sexual conduct with a minor under fifteen, and two counts of molestation of a child. He argues the trial court erred by allowing the state to elicit testimony from his wife about her sexual experiences with him. He further contends the court committed fundamental error by failing to instruct the jury on the clear and convincing burden of proof applicable to other-acts evidence. We affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding Avila's convictions. See State v. Becerra, 231 Ariz. 200, ¶ 2, 291 P.3d 994, 996 (App. 2013). C. and her daughter, R., began living with Avila in 2005. Avila and C. were married in 2006. In 2010, 13-year-old R. told the family's pastor and his wife that Avila had been "touching [her]" and she "d[id]n't know what to do." After the pastor's wife told C. about the discussion, C. talked with R., who described "being touched by [Avila]" sexually. R. underwent two medical examinations and a forensic interview where she described the details of Avila's sexual acts against her.
¶3 Avila was charged with multiple counts of sexual abuse, sexual misconduct, and molestation. After a five-day jury trial, he was convicted as described above and sentenced to a combination of consecutive and concurrent prison terms totaling 137 years. This appeal followed.
Wife's Testimony
¶4 Avila argues the trial court erred by allowing the state to ask C. whether the acts R. described to her were similar to her own sexual experiences with Avila. He contends the testimony was offered "to prove [Avila] had a character trait giving rise to an aberrant sexual propensity and was prone to touch the victim the same way he sexually touched his wife" and violated Rule 404(b) and (c), Ariz. R. Evid. We review a court's decision to admit other acts evidence for an abuse of discretion. State v. Villalobos, 225 Ariz. 74, ¶ 18, 235 P.3d 227, 233 (2010).
¶5 During the state's direct examination of C., the prosecutor asked: "The details that your daughter provided of how she was being touched, did it remind you of your encounters with your husband?" Avila's counsel objected based on relevance; the trial court sustained the objection; and Avila's counsel asked to approach. In the bench discussion that followed, Avila's counsel stated: "I'm not sure what husband the prosecutor is referring to. If it is my client, then that suggests prior bad acts. If it is the first husband, I'm not sure how any of that is relevant." The state clarified it was alluding to a statement C. had provided to the defense in a previous interview, in which she said R.'s description had reminded her of the first time she had sex with Avila. It explained the information was relevant to C.'s assessment of "the veracity of [R.'s] allegations." After hearing the state's explanation, and without further comment from Avila's counsel, the court allowed the question.
¶6 Rule 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove a defendant's criminal character. However, such evidence may be admissible for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Ariz. R. Evid. 404(b). The list of "other purposes" in Rule 404(b) is not exhaustive; if evidence is relevant for any purpose other than to show a person's criminal propensities, it is admissible even if it refers to a prior act. State v. Taylor, 169 Ariz. 121, 125, 817 P.2d 488, 492 (1991).
¶7 Avila claims that C.'s testimony was used to prove Avila "was prone to touch [R.] the same way he sexually touched his wife" and the trial court "could not have found . . . the act was offered for a proper purpose under Rule 404(b)." He does not specifically address the court's apparent basis for admitting the evidence—that it was relevant to proving C.'s perception of the truthfulness of R.'s account. See State v. Cañez, 202 Ariz. 133, ¶ 51, 42 P.3d 564, 582 (2002) (we must uphold court's ruling if correct for any reason). The state informed the court that its question was intended to elicit C.'s belief, revealed in an earlier interview, that R. possessed intimate knowledge of Avila that bolstered the credibility of her allegations. Because the testimony was relevant to R.'s intimate knowledge of Avila, and because the record does not support Avila's contention that it was used to show action in conformity with any criminal propensity, the court did not err by concluding it was relevant and admissible for a proper purpose. Taylor, 169 Ariz. at 125, 817 P.2d at 492.
To the extent C.'s testimony can be characterized as other-act evidence within the meaning of Rule 404(b), the trial court also was required to find that any probative value was not substantially outweighed by a danger of unfair prejudice. See State v. Anthony, 218 Ariz. 439, ¶ 33, 189 P.3d 366, 371 (2008). The court did not err by making this implicit finding; there was clear probative value to R.'s intimate knowledge of Avila, and there was no suggestion Avila's prior conduct with his wife had been illegal or aberrant. See State v. Cooperman, 232 Ariz. 347, ¶ 17, 306 P.3d 4, 8 (2013) (trial court has considerable discretion in balancing probative value with danger of unfair prejudice).
Jury Instruction
¶8 Avila next argues the trial court erred by "not instructing the jury on the clear and convincing burden of proof" applicable to other-acts evidence. Although the jury was instructed that the state was required to prove other acts by clear and convincing evidence, Avila implies the court erred by failing to define that term. Generally, we review jury instructions to determine whether they "adequately set forth the law applicable to the case," when viewed in their entirety. State v. Rodriguez, 192 Ariz. 58, ¶ 16, 961 P.2d 1006, 1009-10 (1998); see also State v. Musgrove, 223 Ariz. 164, ¶ 6, 221 P.3d 43, 46 (App. 2009).
¶9 Here, Avila concedes that he did not request "an instruction on the clear and convincing burden of proof," but contends the court's failure to instruct the jury sua sponte was fundamental error. See Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607. Fundamental error is "'error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.'" Id., quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). "'It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.'" State v. Dickinson, 233 Ariz. 527, ¶ 10, 314 P.3d 1282, 1285 (App. 2013), quoting State v. Zaragoza, 135 Ariz. 63, 66, 659 P.2d 22, 25 (1983). Moreover, to prevail under fundamental error review, the appellant must establish he was prejudiced by the error. Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607-08.
¶10 Avila has failed to establish that not defining "clear and convincing evidence" for the jury constituted an error of such magnitude that it prevented him from receiving a fair trial. Moreover, he has not referred to any facts in support of his contention that he was prejudiced by the alleged error. Dickinson, 233 Ariz. 527, ¶ 13, 314 P.3d at 1286 (on fundamental error review, defendant must affirmatively prove prejudice by referring to facts of case and may not rely upon speculation).
Because it is unnecessary for the resolution of this appeal, we do not reach the issue of whether the trial court would have erred by denying a request for this jury instruction.
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Disposition
¶11 For the foregoing reasons, Avila's convictions and sentences are affirmed.