Opinion
No. 2 CA-CR 2013-0041
01-30-2014
THE STATE OF ARIZONA, Appellee, v. RONALD JOHN BRUGGEMAN, Appellant.
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Lori J. Lefferts, Pima County Public Defender By Michael J. Miller, 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20120237001
The Honorable Deborah Bernini, Judge
AFFIRMED
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee
Lori J. Lefferts, Pima County Public Defender
By Michael J. Miller, Assistant Public Defender, Tucson
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 Ronald Bruggeman appeals from his conviction and sentence for public sexual indecency to a minor under the age of fifteen. He argues the trial court erred by admitting evidence of other acts and by declining to give an instruction on criminal negligence. He also contends the public sexual indecency statute is unconstitutionally vague. We affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding Bruggeman's conviction and sentence. See State v. Becerra, 231 Ariz. 200, ¶ 2, 291 P.3d 994, 996 (App. 2013). At a retail store in January 2012, nine-year-old D.G. saw Bruggeman grab his penis under his clothing and move it up and down with his hand while looking at her. D.G. ran to her mom shaking and crying and told her what had happened.
¶3 Bruggeman was charged with one count of public sexual indecency to a minor under the age of fifteen by "intentionally or knowingly committing an act of sexual contact" while D.G. was present, pursuant to A.R.S. § 13-1403. After a three-day jury trial, he was convicted and sentenced to an enhanced, presumptive prison term of ten years. This appeal followed.
Other Act Evidence
¶4 Bruggeman first argues the trial court erred by admitting evidence underlying his 2007 conviction for indecent exposure to a minor in another store. After a hearing on the state's motion to admit the other-act evidence pursuant to Rule 404(b) and (c), Ariz. R. Evid., the court concluded it was admissible under both sections of the rule. The court found the evidence sufficient to infer Bruggeman had a character trait giving rise to an aberrant sexual propensity to commit the charged crime and "sufficiently similar and . . . close enough in time," given that both incidents involved prepubescent girls in retail stores and the charged conduct had occurred only four and a half months after Bruggeman's release from prison for the previous offense. It also found the probative value of the other act substantially outweighed any unfair prejudice to Bruggeman. At trial, multiple witnesses testified about the previous incident and identified Bruggeman.
¶5 Bruggeman argues the other-act evidence was not admissible pursuant to Rule 404(c) because that rule "does not apply" to public sexual indecency offenses and was not admissible pursuant to Rule 404(b) because the events were too dissimilar. We review the trial court's admission of other-acts evidence for an abuse of discretion, State v. Herrera, 232 Ariz. 536, ¶ 19, 307 P.3d 103, 111 (App. 2013), but review de novo its interpretation of statutes and court rules, State v. Kearney, 206 Ariz. 547, ¶ 5, 81 P.3d 338, 340 (App. 2003).
¶6 We first consider whether the trial court abused its discretion in admitting the evidence pursuant to Rule 404(c), which provides in relevant part as follows:
In a criminal case in which a defendant is charged with having committed a sexual offense, . . . evidence of other crimes, wrongs, or acts may be admitted by the court if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged.¶7 Bruggeman contends that, because public sexual indecency to a minor is not listed in § 13-1420(C), he was not charged with a "sexual offense" as that term is defined in Rule 404(c). In support of this argument, Bruggeman relies on the plain text of the rule and the Arizona Supreme Court's opinion in State v. Aguilar, 209 Ariz. 40, ¶ 24, 97 P.3d 865, 872 (2004). There, the court considered whether Rule 404(c) was limited to charges involving acts traditionally characterized as aberrant or abnormal, as provided by case law establishing a common law propensity exception to the exclusion of other-act evidence prior to Rule 404(c)'s enactment. Aguilar, 209 Ariz. 40, ¶¶ 11, 27-28, 97 P.3d at 868, 873-74. The court stated, "with the adoption of Rule 404(c), the types of sex offenses for which other act evidence may be admitted are no longer restricted to those offenses listed in [State v. McFarlin, 110 Ariz. 225, 517 P.2d 87 (1973)]. Instead, the offenses for which other act evidence may be admitted are those listed in A.R.S. § 13-1420(C)." Id. ¶ 24. Because Aguilar was charged with sexual assault, which is listed in § 13-1420(C), the court did not address the issue presented in this case—whether Rule 404(c) could be applied to an offense not specified in that statute. Id. ¶ 2; § 13-1420(C)(3). ¶8 Our primary goal in interpreting court rules is to give effect to the intent of the supreme court, which promulgated them. State v. Whitman, 232 Ariz. 60, ¶ 5, 301 P.3d 226, 228 (App. 2013). In doing so, we apply rules of statutory construction. Id. This court previously has considered and rejected the argument that Rule 404(c) does not encompass the offense of public sexual indecency to a minor. See State v. Williams, 209 Ariz. 228, ¶ 24, 99 P.3d 43, 49 (App. 2004). In Williams, as in this case, the defendant argued public sexual indecency to a minor could not be a "sexual offense" for purposes of Rule 404(c) because it is not expressly listed in § 13-1420(C). Id. ¶ 28. The court acknowledged that, as a general rule of statutory construction, "if a statute specifies under what conditions it is effective, we may infer that it excludes all others." Id. ¶ 31, citing State v. Fell, 203 Ariz. 186, ¶ 11, 52 P.3d 218, 221 (App. 2002). But, it noted, that rule is merely an aid to interpretation and should not be applied when contradicted by context and public policy. Williams, 209 Ariz. 228, ¶ 31, 99 P.3d at 51. The court concluded Rule 404(c) applied to the offense of public sexual indecency because the common law predecessor to the rule did, and because our supreme court did not intend to narrow the scope of the common law exception by enacting Rule 404(c). Id. ¶¶ 33-36. Rather, the rule's comments make clear it was intended to codify the common law exception. Id. ¶ 35; Ariz. R. Evid. 404(c) cmt. (1997 amendment adding subsection (c) intended to codify existing case law, including McFarlin, 110 Ariz. 225, 517 P.2d 87).
. . . .
As used in this subsection . . . , the term "sexual offense" is as defined in A.R.S. [§] 13-1420(C) and . . . includes [first-degree murder under specified circumstances].
¶9 Bruggeman acknowledges the decision in Williams, but argues we "do[] not have to follow that case because it was poorly reasoned." We consider prior decisions of this court as "'highly persuasive and binding, unless we are convinced that the prior decisions are based upon clearly erroneous principles, or conditions have changed so as to render these prior decisions inapplicable.'" State v. Patterson, 222 Ariz. 574, ¶ 19, 218 P.3d 1031, 1037 (App. 2009), quoting Scappaticci v. Sw. Sav. & Loan Ass'n, 135 Ariz. 456, 461, 662 P.2d 131, 136 (1983). Bruggeman argues the court in Williams improperly relied on State v. Gates, 25 Ariz. App. 241, 542 P.2d 822 (1975), which involved indecent exposure, rather than public sexual indecency. He contends the distinction is significant because the crime of indecent exposure at the time Gates was decided required lewdness, which is not required by our current public indecency statute.
Bruggeman also argues Williams improperly referred to the court's conclusion in Gates about what type of other-act evidence could be admitted, rather than what types of underlying charges justify the use of other-act evidence. Because Gates addressed both issues, this distinction does not affect our analysis. See Gates, 25 Ariz. App. at 244, 542 P.2d at 825 (in "sex crimes," including wearing a mask or disguise while committing indecent exposure, court can admit evidence of another indecent exposure offense to show propensity).
¶10 The distinction Bruggeman notes, however, does not convince us that Williams was "based upon clearly erroneous principles." Patterson, 222 Ariz. 574, ¶ 19, 218 P.3d at 1037. We agree with the determination in Williams that Rule 404(c) was not intended to narrow the common law propensity exception and that the McFarlin test would have encompassed conduct that is now charged as public sexual indecency. Under McFarlin, propensity evidence was admissible in cases involving "abnormal sex acts such as . . . lewd and lascivious" acts. 110 Ariz. at 228, 517 P.2d at 90. At common law, the word "lewdness" meant open and public indecency. State v. Whitaker, 164 Ariz. 359, 361, 793 P.2d 116, 118 (App. 1990); David Carl Minneman, Annotation, What Constitutes "Public Place" Within Meaning of State Statute or Local Ordinance Prohibiting Indecency or Commission of Sexual Act in Public Place, 95 A.L.R. 5th 229 § 2[a] (2002); 50 Am. Jur. 2d Lewdness, Indecency, and Obscenity § 1. And a charge of sexual public indecency requires a sexual act that is either offensive or alarming or done in the presence of a minor under the age of fifteen. See § 13-1403 (requiring sexual contact, oral sexual contact, sexual intercourse, or bestiality); see also State ex rel. Hamilton v. Superior Court, 128 Ariz. 184, 187, 624 P.2d 862, 865 (1981) (construing statute to exclude non-sexual normal bodily functions). It is clear that such acts would have been considered "abnormal sex acts" under McFarlin and, therefore, also should be covered by Rule 404(c). ¶ 11 Bruggeman also suggests a crime must "require a sexual motive" to be covered by Rule 404(c). We disagree. The rule plainly encompasses charges that do not require proof of sexual "motivation." For example, sexual abuse is explicitly included in the list of offenses covered by Rule 404(c) pursuant to § 13-1420. And sexual abuse, like public sexual indecency, requires only "sexual contact" without reference to motivation. A.R.S. §§ 13-1403(A)(1); 13-1404(A).
¶12 Bruggeman next argues the other-act evidence was not admissible pursuant to Rule 404(b) because the prior incident was too dissimilar from the charged conduct to establish modus operandi. Because we have concluded the evidence was admissible pursuant to Rule 404(c), we need not address this argument. See State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993) (error that does not contribute to or affect verdict is harmless and not reversible).
¶13 Bruggeman also argues, for the first time on appeal, that the trial court committed fundamental error "by permitting a minitrial" on the previous incident. He alleges the testimony by multiple witnesses about the previous events presented a "risk that [Bruggeman would] be convicted based on that evidence rather than the evidence of the charged offense." Because Bruggeman did not raise this argument at trial, we review only for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005).
¶14 Bruggeman concedes that the jury was properly instructed on the use of the other-act evidence, and that counsel for both parties reiterated that the prior incident "was not the subject of the trial." Nonetheless, he contends the "extensive" evidence made it "unlikely the jurors would understand that they were not returning a verdict on the [previous] incident." Bruggeman has provided nothing beyond his speculation to overcome our presumption that the jury followed the instructions as they were given. See State v. Newell, 212 Ariz. 389, ¶ 68, 132 P.3d 833, 847 (2006). Therefore, he has failed to carry his burden of proving fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.
Requested Jury Instruction
¶15 Bruggeman next argues the trial court erred by failing to give his proposed jury instruction defining criminal negligence. We review for an abuse of discretion the court's determination whether to give a proffered jury instruction and, even if we find such an abuse, we will not reverse a conviction unless the court's decision prejudiced the defendant. State v. Garfield, 208 Ariz. 275, ¶ 11, 92 P.3d 905, 908 (App. 2004). We review de novo whether jury instructions correctly state the law. State v. Roque, 213 Ariz. 193, ¶ 138, 141 P.3d 368, 401 (2006).
¶16 A party generally is entitled to a jury instruction "'on any theory reasonably supported by the evidence.'" State v. Nottingham, 231 Ariz. 21, ¶ 14, 289 P.3d 949, 954 (App. 2012), quoting State v. Axley, 132 Ariz. 383, 392, 646 P.2d 268, 277 (1982). However, the trial court is not required to give a proposed jury instruction when its substance is covered adequately by other instructions or if it is an incorrect statement of the law. State v. Paredes-Solano, 223 Ariz. 284, ¶ 24, 222 P.3d 900, 908 (App. 2009); see also State v. Salazar, 173 Ariz. 399, 409, 844 P.2d 566, 576 (1992) (when jury properly instructed on applicable law, court not required to provide additional instructions to reiterate in defendant's language). Moreover, the court should reject a proposed instruction that may mislead or confuse the jury. State v. Musgrove, 223 Ariz. 164, ¶ 6, 221 P.3d 43, 46 (App. 2009). "[T]he test is whether the instructions 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 (1998); Musgrove, 223 Ariz. 164, ¶ 6, 221 P.3d at 46.
¶17 As noted previously, Bruggeman was charged with public sexual indecency to a minor, pursuant to § 13-1403. To be guilty under that statute, he must have engaged in an act of sexual contact and have been "reckless about whether a minor who is under fifteen years of age [wa]s present." § 13-1403(A), (B). The statute makes no reference to negligence, which the trial court recognized when it refused to give the proposed jury instruction, stating that "nothing [in the charges against Bruggeman] required criminally negligent conduct." Nonetheless, Bruggeman asked the court to give the instruction because "the jury needs to understand that [the conduct is] not a crime if it's criminally negligent," and was concerned there was "no context for them to understand . . . a person can actually have a criminal mens rea of criminal negligence and not be guilty of a reckless act." The court concluded that, because criminal negligence was "not a definition [the jury] need[ed] to decide this case," the proposed instruction would be "more confusing than . . . helpful to this jury." The court noted that Bruggeman still could argue to the jury that his actions may have been negligent, rather than reckless.
¶18 The jury instructions explained that the charge against Bruggeman required proof he had been "reckless" about whether a minor under fifteen years of age had been present, and defined "recklessly." Bruggeman does not contend those instructions were incorrect, and we presume the jury followed them. See Newell, 212 Ariz. 389, ¶ 68, 132 P.3d at 847. And, as the trial court suggested, Bruggeman contrasted the concepts of negligence and recklessness during his closing argument. The instructions as a whole set forth the applicable law, see Rodriguez, 192 Ariz. 58, ¶ 16, 961 P.2d at 1009-10, and we agree with the court's determination that instructing the jury on a mental state not included in the charge could have been confusing, see Musgrove, 223 Ariz. 164, ¶ 6, 221 P.3d at 46. For those reasons, the court did not err by refusing to give Bruggeman's proposed instruction.
Constitutionality of Statute
¶19 Finally, Bruggeman argues the public sexual indecency statute is unconstitutionally vague. The state contends, and Bruggeman concedes, that he failed to raise this argument below. Normally, we therefore would review only for fundamental, prejudicial error. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. And Bruggeman's failure to assert on appeal that any error was fundamental would waive his argument under this standard. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008).
¶20 However, our review of the record reveals this argument was raised below and addressed by the trial court, albeit briefly. In his objection to the state's motion to admit other-act evidence and at the hearing on the motion, Bruggeman argued § 13-1403 was unconstitutionally overbroad and vague because it could apply to sexual contact that "need not be for any sexual purpose." Although he stated he intended to file an additional pleading on the subject—a pleading that does not appear in the record—we find he sufficiently raised the issue to preserve it for appellate review, and the court explicitly rejected the argument at the hearing. Therefore, we address the issue on its merits. "We review the constitutionality of a statute de novo, and we presume statutes are constitutional unless established otherwise beyond a reasonable doubt." State v. Lowery, 230 Ariz. 536, ¶ 11, 287 P.3d 830, 834 (App. 2012).
¶21 A statute is unconstitutionally vague if it "fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement." United States v. Williams, 553 U.S. 285, 304 (2008). And a statute is overbroad if it includes within its scope activities that are constitutionally protected. State v. Brown, 207 Ariz. 231, ¶ 16, 85 P.3d 109, 115 (App. 2004).
¶22 Bruggeman contends the statute's language could encompass a person who manipulates one of the listed body parts "because of discomfort or pain due to clothing, a medical condition, or injury." A similar argument was raised in State ex rel. Hamilton v. Superior Court, 128 Ariz. 184, 186, 624 P.2d 862, 864 (1981), in which the defendant argued § 13-1403 was unconstitutionally vague because it could include normal bodily functions in a public restroom. Our supreme court concluded the statute "excludes normal bodily functions" because they "would not be offensive or alarming to reasonable persons and are not of a sexual nature as required by the statute." Id. at 187, 624 P.2d at 865; see also State v. Medina, 232 Ariz. 391, ¶ 17, 306 P.3d 48, 57 (2013) (when possible, supreme court construes statutes to uphold constitutionality). The court's conclusion in Hamilton forecloses Bruggeman's similar argument, and we reject his contention that the statute is unconstitutional.
Disposition
¶23 For the foregoing reasons, Bruggeman's conviction and sentence are affirmed.