Opinion
No. 2 CA-CR 2018-0030
12-24-2018
THE STATE OF ARIZONA, Appellee, v. JOSEPH OREN MASSEY, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Mariette S. Ambri, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20160397001
The Honorable Teresa Godoy, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Mariette S. Ambri, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
By David J. Euchner, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. ECKERSTROM, Chief Judge:
¶1 Joseph Massey appeals from his multiple convictions and sentences stemming from sexual offenses involving three high-school students. For the following reasons, we affirm.
Factual and Procedural Background
¶2 Massey began work as a teacher at a Tucson high school in November 2015. In December 2015, one of his students, fifteen-year-old D.P., reported to school officials and law enforcement that Massey had repeatedly touched her buttocks during classes the preceding month. As a result of D.P.'s allegations against him, Massey was placed on administrative leave. Two days later, A.Q., an eighteen-year-old student, also reported to school officials that Massey had acted inappropriately with her in the classroom, including repeatedly touching her leg and buttocks and making sexually explicit comments to her. A few days after that, a third student, fifteen-year-old M.S., also came forward regarding Massey. She reported to school personnel that Massey had repeatedly touched her buttocks and upper thigh during classes and that Massey had asked her to exchange oral sex acts with him.
¶3 In January 2016, Massey was arrested and charged with one count of luring a minor for sexual exploitation and three counts of misdemeanor assault. The state alleged that the assaults were committed for the purpose of sexual gratification.
¶4 In October 2017, before trial, the state filed a notice of intent to introduce evidence pursuant to Rule 404(b), Ariz. R. Crim. P., including evidence that Massey had touched another student, D.L., in a similar way when he was her teacher at a different high school. Massey filed a motion to exclude the other-act evidence, arguing inter alia that the state had no proper purpose for admitting the evidence under Rule 404(b).
¶5 At a hearing regarding the issue, the court asked Massey what his defense was in the case. When Massey responded "that the instance did not occur," the court followed up with: "Not if it did occur, it was accidental?" Massey responded to this question as follows:
I believe that the defense is that it didn't occur, Judge. But I suppose that based upon how things played out, certainly I don't think that a jury would be wrong if they thought that if there was some sort of contact, that that was incidental contact. But that's not really the gist of the defense.The court then ruled in pertinent part that the evidence regarding D.L. was admissible "to show knowledge, intent, lack of mistake."
The court also found that the prior acts to be discussed by D.L. "did occur by clear and convincing evidence," "that [Massey] was the person that committed them," and that "the probative value of those is not substantially outweighed by the danger of unfair prejudice or confusion of the issues." Massey does not challenge these findings on appeal.
¶6 At trial, D.L. testified that Massey had been her teacher at a different Tucson high school in December 2014. She maintained that he had touched her upper thigh and buttocks during class and that his inappropriate behavior toward her had prompted her to switch schools.
¶7 At the conclusion of the trial, Massey was convicted on all four counts and found to have committed the three assaults for the purpose of sexual gratification. He was placed on concurrent terms of probation, the longest of which was eight years. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Other-Act Evidence
¶8 Massey contends the trial court erred in admitting the other-act evidence related to D.L. because "no proper purpose for admitting [it] exists." We review the admission of evidence pursuant to Rule 404(b) for an abuse of discretion. State v. Hardy, 230 Ariz. 281, ¶ 35 (2012).
¶9 Our courts have long recognized that evidence of other bad acts can be highly prejudicial because it risks that the jury will "improperly conclude that the defendant is a bad person and therefore more likely to have engaged in the charged offense." State v. Aguilar, 209 Ariz. 40, ¶ 9 (2004). Because of this risk of prejudice, evidence of other acts is inadmissible under Ariz. R. Evid. 404(b) if presented as character evidence. However, prior acts remain admissible for other relevant purposes including to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." See State v. Ferrero, 229 Ariz. 239, ¶ 5 (2012). If the challenged evidence could have been admitted to prove any proper purpose, we will affirm, even if that purpose was not articulated by the trial court or has not been argued by the state. See State v. Carlson, 237 Ariz. 381, ¶ 7 (2015) (appellate court must affirm if result was legally correct for any reason).
¶10 Here, the trial court specified that the evidence regarding D.L. was being admitted over Massey's objection for the purpose of showing "knowledge, intent, lack of mistake." For such purposes to be proper bases for admission, they must be "in issue" in the case. See State v. Ives, 187 Ariz. 102, 110-11 (1996).
¶11 When a defendant has given notice of a mistake-based defense, absence of mistake is a proper ground for admission of prior-act evidence. See State v. Padilla, 122 Ariz. 378, 379-80 (1979) (bad-act testimony admissible as an exception to Rule 404(b) when defendant "had given notice of a defense of mistaken identity"). In this case, Massey notified the state of his intention to assert mistake-based defenses when he submitted his Rule 15 disclosure to the court in February 2016. That document listed both "Mistake of Fact" and "Mistake of Law" as defenses, which was sufficient to put mistake in issue.
¶12 Massey's arguments at the motion hearing do not change this conclusion. Massey now claims that he "specifically disclaimed any defense that could put [absence of mistake] at issue." But, when asked directly by the court whether a defense of accident might be asserted at trial, Massey provided an equivocal statement leaving the door open for such a defense. The state was entitled to prepare itself to respond accordingly, particularly given Massey's express prior notice of mistake-based defenses. Massey's argument on appeal that "there was no possibility that the jury would acquit him based on consent or mistake" is inconsistent with his own concession, immediately before the evidence was admitted, that: "based upon how things played out, certainly I don't think that a jury would be wrong if they thought that if there was some sort of contact, that that was incidental contact."
¶13 Thus, the trial court did not abuse its discretion in admitting the other-act evidence regarding D.L. for the purpose of proving absence of mistake.
We need not determine whether the other purposes articulated by the court were also proper bases for admission, or whether the evidence could have been admitted for additional purposes now articulated by the state on appeal. --------
Disposition
¶14 For the foregoing reasons, we affirm Massey's convictions and sentences.