Opinion
1 CA-CR 12-0118
02-05-2013
STATE OF ARIZONA, Appellee, v. JESSIE MANUEL CAREAGA, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Alice Jones, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Spencer D. Heffel, Deputy Public Defender Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR 2010-006541-001
The Honorable Edward W. Bassett, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Alice Jones, Assistant Attorney General
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
By Spencer D. Heffel, Deputy Public Defender
Attorneys for Appellant
Phoenix GOULD , Judge ¶1 Jessie Manuel Careaga appeals his convictions for burglary, sexual assault (two counts), aggravated assault (three counts), kidnapping, threatening and intimidating, and sexual abuse. Careaga argues that he was denied a fair trial by the admission of other act evidence. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 The evidence introduced at trial, viewed in the light most favorable to sustaining the convictions, briefly was as follows. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). On the evening of September 2, 2010, the victim returned to her apartment and discovered the front door partially open and Careaga, the victim's ex-boyfriend and father of her young daughter, hiding inside her apartment behind the entertainment center. Careaga did not have permission to be in the apartment and the victim demanded that he leave. Careaga did not comply and instead became violent. During the evening and into the following morning, Careaga repeatedly beat, kicked and sexually assaulted the victim and threatened to kill her with a knife. After Careaga eventually left the apartment, the victim went to a neighbor's apartment and called 9-1-1. ¶3 Careaga was charged with burglary in the first degree, a class 2 felony; two counts of sexual assault, a class 2 felony and domestic violence offense; two counts of aggravated assault, a class 3 felony and domestic violence offense; aggravated assault, a class 6 felony and domestic violence offense; kidnapping, a class 2 felony and domestic violence offense; threatening and intimidating, a class 1 misdemeanor; and sexual abuse, a class 5 felony. Upon trial to a jury, Careaga was found guilty on all counts as charged. The trial court sentenced Careaga to concurrent and consecutive terms of imprisonment totaling 28.5 years with credit for 426 days of presentence incarceration. Careaga requested and was granted leave to file a delayed appeal.
DISCUSSION
¶4 At trial, the victim testified that she had ended her relationship with Careaga in October 2006, nearly four years prior to the incident giving rise to the charges at issue. When asked by the prosecutor why the two broke up, the victim stated, "Jessie was scaring me, and he hit me and stabbed me when I was pregnant, and I was really scared, so I never wanted to be around him." Careaga subsequently raised an objection to this testimony, arguing that it was prior act evidence that was not disclosed by the State. The prosecutor responded that this prior incident had been included in the police report that had been timely disclosed. The trial court declined to strike the testimony, finding there was no disclosure violation by the State and noting that the testimony had already been placed before the jury. The trial court further directed, however, that there be no more testimony about the earlier incident. ¶5 During a recess in the victim's testimony, Careaga again raised the issue of the other act evidence and moved for a mistrial. The prosecutor opposed the motion and stated again that the prior act evidence had been properly disclosed and was relevant to show why the relationship ended and to complete the story. The trial court denied the motion, stating that a mistrial was too severe of a sanction even if there had been a disclosure violation, which the court again reiterated that it did not find, but added that a curative instruction would be given if requested. At Careaga's request, the trial court included the following in the final jury instructions:
Evidence of another act has been presented. You may consider this act only if you find that the State has proved by clear and convincing evidence that the defendant committed this act. You must not consider this act to determine the defendant's character or character trait, or to determine that the defendant acted in conformity with the defendant's character or character trait and therefore committed the charged offense.¶6 Careaga does not challenge the trial court's ruling disallowing his objection to the prior act evidence based on non-disclosure and has therefore abandoned any such argument. State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989). Instead, his argument on appeal is limited to a claim that the evidence should have been precluded under Arizona Rule of Evidence 404(b) because it was other act evidence offered to prove only that he acted in conformity therewith and was prone to violence. We review the admission of other act evidence for abuse of discretion. State v. Roscoe, 184 Ariz. 484, 491, 910 P.2d 635, 642 (1996). ¶7 Unfortunately, the trial court should have, but failed to expressly rule on the admissibility of the prior act evidence. State v. Hardy, 230 Ariz. 281, 289, ¶ 35, 283 P.3d 12, 20 (2012)(trial judge must make requisite findings before admitting 404(b) evidence at trial); State v. Hyde, 186 Ariz. 252, 277, 921 P.2d 655, 680 (1996) (same). Nonetheless, we may independently review the requisite factors necessary for the admission of the other act evidence. See State v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046, 1055 (1997) (supreme court independently reviewed admission of other act evidence even though the trial court failed to balance the probative value versus the danger of unfair prejudice despite defendant's objection); State v. Grainge, 186 Ariz. 55, 57, 918 P.2d 1073, 1075 (App. 1996) (holding trial court's admission of other act evidence will be upheld if it is sustainable on any grounds). ¶8 As a general rule, evidence of "other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Ariz. R. Evid. 404(b). However, Rule 404(b) allows such evidence "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Evidence of other acts is admissible if: (1) the evidence is admitted for a proper purpose; (2) the evidence is relevant; (3) the evidence is not unfairly prejudicial under Rule 403; and (4) the judge gives "an appropriate limiting instruction upon request." State v. Nordstrom, 200 Ariz. 229, 248, ¶ 54, 25 P.3d 717, 736 (2001), abrogated on other grounds by State v. Ferrero, 229 Ariz. 239, 274 P.3d 509 (2012). Additionally, the State must prove by clear and convincing evidence that the other act occurred and that the defendant committed the act. State v. Terrazas, 189 Ariz. 580, 584, 944 P.2d 1194, 1198 (1997). ¶9 As an initial matter, the testimony by the victim was more than sufficient to provide clear and convincing evidence that Careaga committed the prior act in question. State v. Vega, 228 Ariz. 24, 29 n.4, 262 P.3d 628, 633 n.4 (App. 2011); See also State v. Pollock, 57 Ariz. 415, 417, 114 P.2d 249, 250 (1941)(holding uncorroborated testimony by victim is sufficient to establish proof beyond a reasonable doubt unless account is physically impossible or so incredible that no reasonable person would believe it). ¶10 Second, the other act evidence was admissible for proper non-character purposes. One of the aggravated assault charges required proof that Careaga "intentionally" placed the victim in reasonable apprehension of imminent physical injury. See Ariz. Rev. Stat. §§ 13-1203(2), -1204(A)(2) (West 2013). It has long been held that prior assaults by a defendant against the same victim are relevant to show a defendant's motive and intent. See Hardy, 230 Ariz. at 289, ¶ 38, 283 P.3d at 20 (holding evidence of prior argument with or violence toward a victim admissible to show motive and intent); State v. Jackson, 121 Ariz. 277, 278, 589 P.2d 1309, 1310 (1979)(holding evidence defendant previously threatened victim with knife admissible to show motive and intent). The other act evidence is additionally relevant to rebut Careaga's claim in contradiction of the victim's testimony that he had been residing with the victim in her apartment for several months at the time of the incident. See State v. Jeffers, 135 Ariz. 404, 417, 661 P.2d 1105, 1118 (1983)(holding other act evidence relevant for proper purpose of bolstering witness's credibility and to counter insinuation that victim was lying). Based on the 2006 stabbing incident, the jury could have reasonably concluded it was unlikely the victim would have taken up residence with the defendant again in 2010. ¶11 In weighing the probative value of the other act evidence and its potential prejudicial effect, we conclude that there was no abuse of discretion by the trial court in not striking the testimony as unfairly prejudicial under Rule 403. In declining to strike the other act evidence, the trial court observed that the jury had not reacted unduly towards the testimony and precluded any further testimony regarding the prior incident. ¶12 Finally, any potential prejudice from the other act evidence was appropriately mitigated by the limiting instruction, which informed the jurors that they were not to use the evidence to determine Careaga's character or to determine that he acted in conformity with any character trait. This limiting instruction afforded Careaga "adequate protection against unfair prejudice." State v. Villalobos, 225 Ariz. 74, 80, ¶ 20, 235 P.3d 227, 233 (2010); See also State v. Newell, 212 Ariz. 389, 403, ¶¶ 68-69, 132 P.3d 833, 847 (2006) (holding jurors are presumed to follow their instructions). ¶13 As a final issue, Careaga asserts the court's limiting instruction was inadequate because it did not instruct the jury as to the proper purpose for which the prior act evidence was admitted. Careaga argues the court committed reversible error by providing this instruction to the jury. ¶14 We disagree. Careaga did not object to the instruction, and therefore has waived the assignment of any error on appeal. Williams ex rel. Dixon v. Thude, 180 Ariz. 531, 533, 885 P.2d 1096, 1098 (App. 1994), aff'd, 188 Ariz. 257, 934 P.2d 1349 (1997)("In order to properly preserve an objection to jury instructions on appeal, counsel must state distinctly what is being objected to and the grounds for the objection."); Ariz. R. Crim. P. 21.3(c) ("No party may assign as error on appeal the court's giving or failing to give any instruction . . . unless that party objects thereto . . . stating distinctly the matter to which the party objects and the grounds of his or her objection.") ¶15 Because Careaga has waived this claim, we may review the instruction only for fundamental error. State v. Flythe, 219 Ariz. 117, 119, ¶¶ 4-5, 193 P.3d 811, 813 (App. 2008). However, Careaga does not argue the instruction constituted fundamental error in his opening brief, and he has elected not to file a reply brief. See State v. Smith, 184 Ariz. 456, 590, 910 P.2d 1, 4 (1996) (the appellate court is not obligated to search the record for fundamental error). Consequently, we do decline to review the jury instruction for fundamental error. See Flythe, 219 Ariz, at 119, 120, ¶¶ 4, 11, 193 P.3d at 813, 814 (declining to review for fundamental error when defendant failed on appeal to argue alleged error was fundamental); State v. Moreno-Medrano, 218 Ariz. 349, 354, ¶ 17, 185 P.3d 135, 140 (App. 2008)(same).
Absent material revisions after the relevant date, we cite a statute's current version.
We also note that a trial court's failure to instruct a jury on the specific purpose for which 404(b) evidence has been admitted is harmless error if the purposes for which the evidence were admitted were apparent from the record. State v. Lehr, 227 Ariz. 140, 147, ¶ 24, 254 P.3d 378, 386 (2011). Here, the record shows the prior act evidence was admitted for the purpose of showing Careaga's intent to injure the victim, as well as corroborate the victim's testimony that the defendant was not living with her at the time of the physical/sexual assault.
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CONCLUSION
¶16 There was no abuse of discretion by the trial court in admitting the other act evidence. Accordingly, we affirm Careaga's convictions and sentences.
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ANDREW W. GOULD, Judge
CONCURRING: _____________
PATRICIA K. NORRIS, Presiding Judge
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RANDALL M. HOWE, Judge