Opinion
No. 2 CA-CR 2017-0279
06-15-2018
THE STATE OF ARIZONA, Appellee, v. JASON ROTHLISBERGER, Appellant.
COUNSEL 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
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NOT FOR PUBLICATION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 Pinal County
No. S1100CR201503555
The Honorable Jason R. Holmberg, Judge
AFFIRMED AS CORRECTED
COUNSEL 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
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 Following a jury trial, Jason Rothlisberger was convicted of eight counts of sexual conduct with a minor under the age of fifteen and one count of molestation of a child under the age of fifteen. The trial court imposed consecutive sentences for each count, including two life sentences without the possibility of release for thirty-five years. On appeal, Rothlisberger argues the court exhibited judicial bias by striking part of a witness's testimony sua sponte and questioning another witness. He also contends the court erred by allowing the state to amend the indictment based on the evidence presented at trial. For the following reasons, we affirm as corrected.
Factual and Procedural Background
¶2 We view the facts and all reasonable inferences in the light most favorable to sustaining the jury's verdicts. See State v. Granados, 235 Ariz. 321, ¶ 2 (App. 2014). Sometime in 2013 or 2014, when Rothlisberger's daughter, T.R., was twelve years old, he began engaging in various sexual acts with her. He also engaged in various sexual acts with fourteen-year-old S.W.—a close friend of another of Rothlisberger's daughters—in December 2013 and January 2014. In 2015, S.W. disclosed the abuse to her teacher, who contacted police. While that investigation was pending, T.R. disclosed the abuse to her neighbor, and the police were contacted.
¶3 A grand jury indicted Rothlisberger for ten counts of sexual conduct with a minor under fifteen and one count of child molestation. He was convicted and sentenced as described above. We have jurisdiction over Rothlisberger's appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Two of the counts involved Rothlisberger's other daughter, S.R. As to one of those counts, the trial court granted Rothlisberger's motion for a judgment of acquittal pursuant to Rule 20(a), Ariz. R. Crim. P. As to the second, the jury could not reach a verdict, and the court later granted the state's motion to dismiss without prejudice.
The sentencing minute entry incorrectly states the offense for count eight is sexual conduct with a minor and cites A.R.S. § 13-1405, rather than molestation of a child pursuant to A.R.S. § 13-1410. During oral pronouncement of sentence, however, the trial court correctly referred to count eight as the "molestation" count and imposed the presumptive sentence for molestation of a child. See A.R.S. § 13-705(D). The sentencing minute entry also includes the presumptive sentence for molestation of a child. The minute entry is therefore amended to delete the reference to sexual conduct with a minor and § 13-1405 and instead include molestation of a child and § 13-1410. See State v. Leon, 197 Ariz. 48, n.3 (App. 1999) (oral pronouncement of sentence controls when different from minute entry).
Judicial Bias
¶4 Rothlisberger first argues that the trial court "improperly interfered with the presentation of evidence" by sua sponte striking a portion of a witness's testimony and by posing a follow-up question to another witness. He maintains this injected the appearance of judicial bias and denied his right to due process. He did not object to either action below or, at any point, file a motion for a change of judge pursuant to Rule 10.1, Ariz. R. Crim. P., and has therefore forfeited review for all but fundamental, prejudicial error. See Granados, 235 Ariz. 321, ¶ 13. To sustain his burden, Rothlisberger must demonstrate that fundamental error occurred and that it caused him prejudice. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005).
Generally, an allegation of the type of judicial bias that implicates due process rights entitles a defendant to structural error review, and obviates any need for an objection below. See Granados, 235 Ariz. 321, ¶¶ 7-8, 11; see also State v. Valverde, 220 Ariz. 582, ¶ 10 (2009). Rothlisberger has not alleged, however, that the trial court's actions were the result of any "direct, personal, substantial pecuniary interest," which would infringe on his due process rights. Granados, 235 Ariz. 321, ¶¶ 12-13, quoting Tumey v. Ohio, 273 U.S. 510, 523 (1927). Consequently, he has not alleged any type of bias that would implicate due process and is not entitled to structural error review. See id.
¶5 A trial judge is presumed to be unbiased. State v. Ramsey, 211 Ariz. 529, ¶ 38 (App. 2005). To rebut this presumption, the party "must prove bias or prejudice by a preponderance of the evidence." State v. Hurley, 197 Ariz. 400, ¶ 24 (App. 2000). Judicial bias or prejudice ordinarily "must arise from an extra-judicial source and not from what the judge has done in his participation in the case." State v. Emanuel, 159 Ariz. 464, 469 (App. 1989), quoting State v. Thompson, 150 Ariz. 554, 557 (App. 1986). Thus, "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky v. United States, 510 U.S. 540, 555 (1994); see State v. Ellison, 213 Ariz. 116, ¶ 40 (2006). And "adverse rulings to which a party assigns no error" cannot demonstrate judicial bias. State v. Curry, 187 Ariz. 623, 631 (App. 1996).
¶6 One of the state's witnesses, Wendy Dutton, testified as a "cold expert" about "the research in the field of child sexual abuse and [her] own experience of working in the field the past 30-some years." At the conclusion of her testimony, a juror requested she be asked, "How rare are false allegations?" Neither side objected, and the trial court asked Dutton the question. Dutton responded, "In general, what we know from the research is that the malicious false allegation rate tends to be under 10 percent of cases."
¶7 During a break later that day, the trial court told the parties, "You can argue that these are false allegations because of the evidence in this case, but you can't argue they're false allegations—or not false allegations because" of statistical evidence. When the jurors returned, the court informed them it was striking from the record Dutton's testimony regarding the percentage of false allegations and instructed them "not to base any of [their] decisions in this case on statistics."
¶8 Rothlisberger argues the trial court erred by striking the testimony sua sponte because "[n]either party had intended to make" an argument based on statistical evidence. He thus reasons the court "interject[ed itself] into the presentation of evidence to benefit the state at [Rothlisberger's] expense." However, neither Rothlisberger nor the state made any statement about their intentions on this issue. And, indeed, the court noted it "expect[ed]" neither party would make that argument.
¶9 But regardless of whether either party intended to make an argument based on this testimony, the trial court had a duty to ensure "that inadmissible evidence is not suggested to the jury by any means." Ariz. R. Evid. 103(d). Rothlisberger does not dispute that the court's ruling on this issue was correct. See State v. Herrera, 232 Ariz. 536, ¶¶ 44-45, 48 (App. 2013) (testimony about percentages of false accusations in child sexual abuse cases improper); see also Curry, 187 Ariz. at 631 (unchallenged adverse rulings do not show judicial bias). Consequently, Rothlisberger has not shown the trial court's correct ruling to ensure the jury did not consider impermissible evidence "gave the appearance of abandoning [its] role as a fair and impartial judge." State v. Brown, 124 Ariz. 97, 100 (1979); see also Liteky, 510 U.S. at 555; Ellison, 213 Ariz. 116, ¶ 40.
To the extent Rothlisberger argues the trial court precluded him from making an argument that the victims' allegations were false, we disagree. The court clarified with Rothlisberger's counsel, "You can argue that these are false allegations because of the evidence in this case." Indeed, although Rothlisberger appears to argue this ruling benefitted the state, the court expressed its concern that the state would rely on the statistics to argue that "because false allegations are rare, only 10 percent of the time, i.e., 90 percent of the time they're true and, therefore, if you are going to err, you better err that this is true." Moreover, during the relevant time period, Rule 31.8(b)(1), Ariz. R. Crim. P., provided that closing arguments were not included in the record on appeal unless specifically requested by a party, but Rothlisberger did not request to have the closing arguments transcribed and sent to this court. See 168 Ariz. CXIII-CXIV (1991); see also State v. Rivera, 168 Ariz. 102, 103 (App. 1990) ("It is within the defendant's control as to what the record on appeal will contain, and it is the defendant's duty to prepare the record in such a manner as to enable an appellate court to pass upon the questions sought to be raised in the appeal."). We thus do not address this issue further. --------
¶10 Rothlisberger next argues the trial court "improperly interjected itself into the case" by asking S.W. a question. S.W. testified that Rothlisberger had "reached his hands down [her] pants and fondled [her] for a bit." After the state's redirect examination, the court asked S.W., "[W]hen you said that [Rothlisberger] . . . put his hands in your pants and fondled you, what did you mean?" S.W. responded, "I mean, he was—he was flicking my clitoris back and forth with his fingers and sort of rubbing it."
¶11 Rothlisberger has not shown the trial court's actions demonstrated an impermissible bias or prejudice. A "trial judge is not a mere moderator, but has active duties to perform without partiality to see that truth is developed, and in his discretion he may ask questions to elicit the material evidence." State v. Mendez, 2 Ariz. App. 77, 79 (1965); see Ariz. R. Evid. 614(b) ("The court may examine a witness regardless of who calls the witness."). Accordingly, a court "may interrogate witnesses as part of its duty to see that the truth is developed." State v. Schackart, 190 Ariz. 238, 256 (1997). The court's question here was not inherently biased towards the state, and S.W. could have answered in a way that benefitted Rothlisberger. Rather, the question was aimed at gathering "additional information" relevant to the jury's determination. Id. This does not demonstrate judicial bias or prejudice. See id.
¶12 Rothlisberger contends that without the trial court's question, he "would have successfully moved for a [judgment] of acquittal as to" count eight. See Ariz. R. Crim. P. 20(a)(1). That count alleged Rothlisberger committed child molestation by "touching S.W.'s clitoris." He has not, however, developed this argument in any meaningful way to permit appellate review. See Ariz. R. Crim. P. 31.10(a)(7) (opening brief must contain argument with supporting reasons and citations of legal authorities); State v. Bolton, 182 Ariz. 290, 298 (1995) ("Failure to argue a claim on appeal constitutes waiver of that claim."). Moreover, S.W.'s testimony that Rothlisberger "reached his hands down [her] pants and fondled [her]" was sufficient to allow the jury to infer that Rothlisberger "intentionally or knowingly" engaged in "direct or indirect touching, fondling or manipulat[ion] of any part of the genitals." A.R.S. §§ 13-1401(A)(3), 13-1410(A); Ariz. R. Crim. P. 20(a)(1) (judgment of acquittal appropriate only "if there is no substantial evidence to support a conviction"); see also State v. Lee, 189 Ariz. 590, 603 (1997) ("When reasonable minds may differ on inferences drawn from the facts, the case must be submitted to the jury, and the trial judge has no discretion to enter a judgment of acquittal."). We thus find this argument unavailing.
Amended Indictment
¶13 Rothlisberger next argues the trial court erred by granting the state's motion to amend counts six and seven of the indictment to include the phrase "for the first time." We review a trial court's decision to allow an amendment to the indictment for an abuse of discretion. State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 16 (App. 2013).
¶14 An indictment "may be amended only to correct mistakes of fact or remedy formal or technical defects," and the indictment "is deemed amended to conform to the evidence admitted during any court proceeding." Ariz. R. Crim. P. 13.5(b). "A defect is formal or technical when its amendment does not change the nature of the offense or otherwise prejudice the defendant." Buccheri-Bianca, 233 Ariz. 324, ¶ 17. Further, "[t]he defendant bears the burden of showing that he or she has suffered actual prejudice from an amendment." State v. Johnson, 198 Ariz. 245, ¶ 8 (App. 2000).
¶15 Before the grand jury, a detective testified that, during one incident, Rothlisberger performed oral sex on S.W. while she performed oral sex on him. The detective stated that, according to S.W., Rothlisberger "ejaculated in her mouth, almost making her throw up" and she then "ran to the bathroom and spit out the semen in the toilet." The grand jury returned an indictment that alleged, in count six, that Rothlisberger committed sexual conduct with a minor by "intentionally or knowingly engaging in sexual intercourse or oral sexual contact with S.W. . . . to wit: oral/vaginal." Count seven was identical except for alleging that it was "to wit: penile/oral."
¶16 During trial, S.W. testified that on the first night she spent at Rothlisberger's house, she and Rothlisberger "perform[ed] oral sex on each other" and she described the incidents almost identically as related to the grand jury. She later testified that the next time she stayed at the house, she and Rothlisberger again "performed oral sex on each other" before Rothlisberger attempted to engage in anal sex with her. Rothlisberger testified in his own defense and claimed S.W. had stayed at his house several times, but he denied ever engaging in any sexual conduct with her.
¶17 After the state rested, the trial court noted that, as to counts six and seven, S.W. testified that she and Rothlisberger had engaged in oral sex with each other twice and it did not know to which time those counts referred. In response, the state moved to amend those counts to include the words "for the first time" to avoid confusing those incidents with subsequent similar acts. The court granted the motion, over Rothlisberger's objection, because "that was taken to the grand jury . . . and I believe that's fair notice to [Rothlisberger]."
¶18 A precise date is not an element of sexual conduct with a minor. See A.R.S. § 13-1405(A). Thus, specifying which of two instances formed the basis for the charge "did not change the elements necessary to prove the crime and therefore did not change the nature of the offense." Buccheri-Bianca, 233 Ariz. 324, ¶ 19 (amending indictment to change location of alleged child molestation did not change nature of offense); see also State v. Freeney, 223 Ariz. 110, ¶ 18 (2009) (permissible Rule 13.5(b) amendments include "corrected dates, names, [and] addresses").
¶19 Rothlisberger contends he was prejudiced, however, because "[w]ithout the amendment [he] would have been entitled to a [judgment] of acquittal." We disagree. Although Rothlisberger claims that S.W.'s testimony was "generalized and nonspecific as to different occasions," S.W. testified that she and Rothlisberger performed "oral sex" on each other the first night she stayed at his house and again on the second night she stayed there. This evidence satisfies the elements of sexual contact with a minor, § 13-1405(A), and "viewing [it] in the light most favorable to the prosecution," a "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," State v. West, 226 Ariz. 559, ¶ 16 (2011), quoting State v. Mathers, 165 Ariz. 64, 66 (1990).
¶20 Rothlisberger has failed to show he was otherwise prejudiced by the amendment. See Buccheri-Bianca, 233 Ariz. 324, ¶ 17; see also Johnson, 198 Ariz. 245, ¶ 8. The testimony to the grand jury that formed the basis for counts six and seven was nearly identical to S.W.'s testimony at trial in regards to the first time she and Rothlisberger performed oral sex on each other. He thus had sufficient notice of the acts that formed the bases for counts six and seven and had "ample opportunity to prepare to defend against them." State v. Barber, 133 Ariz. 572, 577 (App. 1982). Furthermore, as the state points out, his defense was that no sexual conduct between him and S.W. ever occurred, which was not affected by the amendment. See State v. Wall, 212 Ariz. 1, ¶ 9 (2006) (all-or-nothing defense "such that [defendant] is either guilty of the charged offense or not guilty at all"); see also Freeney, 223 Ariz. 110, ¶ 28 (Rule 13.5(b) violation harmless because, in part, defendant's "'all or nothing' defense, based on his assertion that someone other than he was the perpetrator, did not change as a result of the amended charge"). In sum, Rothlisberger has not demonstrated the amended indictment in any way affected "his litigation strategy, trial preparation, examination of witnesses, or argument." Id.
¶21 Indeed, without the amendment, the charge would have been duplicitous and run the risk of a nonunamimous verdict. See State v. Klokic, 219 Ariz. 241, ¶ 12 (App. 2008) (duplicitous charge occurs when state introduces multiple criminal acts to prove single charge). This risk was remedied by the state's election of the specific act that formed the basis for the charges. See id. ¶ 14 (duplicitous charge remedied by requiring state to elect act constituting the crime). Under these circumstances, the amendment was necessary, and Rothlisberger has not shown any resulting prejudice.
Disposition
¶22 For the foregoing reasons, we correct the sentencing minute entry as noted earlier, but otherwise affirm Rothlisberger's convictions and sentences.