Opinion
2 CA-CR 2022-0178
03-12-2024
The State of Arizona, Appellee, v. Fred Scott King, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Law Office of Brian F. Russo, Scottsdale By Brian F. Russo Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20204196001 The Honorable Catherine M. Woods, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee
Law Office of Brian F. Russo, Scottsdale By Brian F. Russo Counsel for Appellant
Judge Sklar authored the decision of the Court, in which Vice Chief Judge Staring and Judge O'Neil concurred.
MEMORANDUM DECISION
SKLAR, Judge
¶1 Fred Scott King appeals his convictions and sentences for two counts of molestation of a child. He argues that the trial court improperly limited his cross-examination of the victim. He also challenges the court's decision to admit evidence of other acts under Rule 404(b) and (c) of the Arizona Rules of Evidence. Finally, he challenges the admission of statements made to his probation officer as irrelevant and unfairly prejudicial under Rules 401 and 403. For the reasons that follow, we reject these arguments and affirm King's convictions and sentences.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts. See State v. Felix, 237 Ariz. 280, ¶ 2 (App. 2015). This case arises from sexual acts King committed against his granddaughter, L.K., when she was five or six years old. L.K. disclosed King's actions in fall 2020, approximately seven to eight years after the incidents. She testified that when she had been alone with King on the couch in the TV room, King rubbed her foot on top of his clothed groin area, despite her trying to move her foot away.
¶3 King was charged in November 2020 for two counts of molestation of a child. The charges concerned the first and last times King engaged in the conduct. After a seven-day trial, the jury convicted King. It also acquitted him of sexual-abuse charges involving other conduct. King was sentenced to two consecutive 28-year prison terms. This appeal followed.
LIMITATION OF CROSS EXAMINATION
¶4 King argues that the trial court abused its discretion when it precluded him under Rule 403 from cross examining L.K. with evidence of a head injury she had sustained. In his view, this limitation "severely hampered [his] ability to effectively cross examine and explore issues of credibility," thus violating his right to confrontation under the Arizona and United States Constitutions. We review the court's decision to preclude the cross-examination under Rule 403 for an abuse of discretion. See State v. Williams, 133 Ariz. 220, 230 (1982) ("The weighing and balancing under Rule 403 is within the discretion of the trial court and will not be disturbed on appeal unless it has been clearly abused."). An abuse of discretion occurs where a ruling is "manifestly unreasonable, exercised on untenable grounds or for untenable reasons." State v. Castaneda, 254 Ariz. 9, ¶ 14 (App. 2022) (quoting State v. Woody, 173 Ariz. 561, 563 (App. 1992)). We will uphold a court's exercise of discretion if it is reasonably supported by the record. State v. Morris, 215 Ariz. 324, ¶ 77 (2007). As for King's Confrontation Clause challenge, we review it de novo. State v. Forde, 233 Ariz. 543, ¶ 79 (2014).
¶5 L.K. had sustained the head injury in a car accident a year before she disclosed King's conduct. The day before trial began, the state moved in limine to preclude testimony concerning that accident. King had intended to introduce testimony about the accident from his wife, who is L.K.'s grandmother, to attest to L.K.'s subsequent "behavioral and personality changes." He argued that this testimony would be relevant to L.K.'s ability to perceive and remember events, and hence her credibility. He asserted he would need a trial delay to obtain medical records if the court required such evidence to support the proposed testimony. In precluding the evidence and rejecting the request for a delay, the trial court reasoned that, absent medical testimony or records concerning diminished capacity, the proposed testimony invited speculation.
¶6 Under Rule 403, the trial court may exclude relevant evidence if its probative value is substantially outweighed by the risk of unfair prejudice, confusing the issues, or misleading the jury. Here, the proposed testimony from King's wife had minimal relevance. It concerned L.K.'s behavior and personality after the accident, not her memory. For that same reason, it posed a high risk of confusing the jury about the accident's significance. The jury could have inferred that L.K.'s personality change indicated an underlying cognitive impairment, even though no available evidence or testimony supported that possibility. The court was within its discretion to determine that the testimony's probative value was outweighed by the Rule 403 dangers.
¶7 King also argues that the trial court's decision to exclude the evidence was not based on sufficient medical information. As the proponent of the challenged evidence, however, King bore the burden to establish its admissibility. State v. Haskie, 242 Ariz. 582, ¶ 16 (2017).
¶8 We also reject King's argument that this exclusion of evidence violated his right to confrontation. The Confrontation Clause does not require courts to admit evidence that would otherwise be precluded under Rules 401 and 403. See, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) ("[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant."). As we have explained, the trial court acted within its discretion in precluding the evidence under Rule 403.
¶9 Likewise, we conclude that the trial court did not violate King's confrontation rights by precluding the evidence even though the state did not seek preclusion until the day before trial. Given that King had presented only speculation about the contents of L.K.'s medical records, the court had no obligation to continue the trial to allow King to seek additional evidence. See Ariz. R. Crim. P. 8.5(b) ("A court may continue trial only on a showing that extraordinary circumstances exist, and that delay is indispensable to the interests of justice, and only for so long as is necessary to serve the interests of justice."); see also State v. VanWinkle, 230 Ariz. 387, ¶ 12 (2012) (affirming denial of continuance where defendant could not show prejudice).
ADMISSION OF OTHER-ACT EVIDENCE
¶10 Over King's objection, the trial court also admitted multiple pieces of other-act evidence under Rule 404. The other acts included uncharged sexual contact with L.K., conduct with previous victims, and statements made by King to his probation officer. On appeal, King challenges this evidence under Rules 401, 403, and 404. We review the trial court's admission of other-act evidence for an abuse of discretion. See State v. Scott, 243 Ariz. 183, ¶ 14 (App. 2017).
¶11 Rule 404(b) allows courts to admit evidence of other crimes, wrongs, or acts for a permitted purpose. Ariz. R. Evid. 404(b)(2). The rule provides a non-exhaustive list of such purposes, including to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Scott, 243 Ariz. 183, ¶ 14. In evaluating evidence of other crimes, wrongs, or acts under Rule 404(b), a court must find: (1) clear and convincing proof that the defendant committed the act; (2) the act is offered for a proper purpose; (3) the act is relevant to prove that purpose; and (4) the act has sufficient probative value as not to be substantially outweighed by undue prejudice. State v. Escalante-Orozco, 241 Ariz. 254, ¶ 77 (2017), abrogated on other grounds by State v. Escalante, 245 Ariz. 135 (2018).
¶12 In cases involving sexual offenses, Rule 404(c) also allows "evidence of other crimes, wrongs, or acts [to] 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." Before admitting such evidence, the trial court must find: (1) "clear and convincing evidence supports a finding that the defendant committed the other act," (2) "commission of the other act provides a reasonable basis to infer that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the charged sexual offense," and (3) "the evidentiary value of proof of the other act is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or other factors mentioned in Rule 403." State v. Aguilar, 209 Ariz. 40, ¶ 30 (2004).
Other acts involving L.K.
¶13 As noted, the state charged King only with the first and last instances of each type of conduct. It did so because the charged acts occurred when L.K. was a young child, at an age where it is difficult to specify particular instances of repeated conduct. The state thus sought to introduce evidence of other instances of the same conduct so L.K. could testify fully regarding that conduct. The court admitted the evidence under both Rule 404(b) and (c).
¶14 King argues that the state failed to carry its burden of proving by clear and convincing evidence these other acts had occurred. He argues that L.K.'s credibility was diminished due to her head injury, so the trial court should have required live, pretrial testimony to evaluate whether the state carried its burden. The court instead relied solely on L.K.'s pretrial interview at the Children's Advocacy Center (CAC).
¶15 As King acknowledges, not every Rule 404 motion requires an evidentiary hearing with live testimony. See State v. LeBrun, 222 Ariz. 183, ¶ 13 (App. 2009). A trial court may generally rely on other evidence, such as a recorded statement, when the record does not "raise a question of witness credibility related to the other acts." State v. James, 242 Ariz. 126, ¶¶ 23-24 (App. 2017). Here, nothing in the record raised such a question. As we have explained, King presented no evidence that L.K.'s car accident impaired her memory. Nor did he present any other evidence to cast doubt on L.K.'s statement.
¶16 We also conclude that the trial court did not abuse its discretion in admitting this evidence. Generally, a victim's uncorroborated testimony is sufficient to support a finding of guilt beyond a reasonable doubt "unless the story is physically impossible or so incredible that no reasonable person could believe it." State v. Munoz, 114 Ariz. 466, 469 (App. 1976). The same is necessarily true to satisfy the lower standard of clear and convincing evidence required by Rule 404. See State v. Herrera, 232 Ariz. 536, ¶ 26 (App. 2013) (concluding that trial court properly found clear and convincing evidence that other acts occurred based on victim's testimony). Here, L.K.'s recorded statement to the CAC was not impossible or incredible. We will not reweigh the evidence or substitute our judgment for the trial court's credibility determination. See id.
Other acts involving different victims
¶17 The trial court also admitted evidence of prior acts against three other victims-A.H., A.R., and E.H., again under both Rule 404(b) and (c). King entered into a plea agreement in 2007 admitting responsibility for sexual contact with A.H. and A.R. The incidents involving E.H. were admitted in those proceedings as other-act evidence. King argues, however, that the acts were too dissimilar and remote in time to be admitted under Rule 404.
¶18 A.H., A.R., and E.H. all testified at the trial in this matter. A.H. testified that when she was five or six years old, King had often picked up her hand and used it to rub his crotch. A.R. testified that when she was thirteen, King had offered to let her drive his truck while sitting on his lap. He told her to shift herself "forward or backwards or side-to-side." Finally, E.H. testified that when she was five or six, King had put her hands into his pants and moved them in a masturbatory way.
¶19 In admitting evidence of these other acts under Rule 404(b), the trial court reasoned that they were relevant to demonstrate "motive, intent, plan, and absence of mistake or accident." It further reasoned that they were admissible under Rule 404(c) because they were similar in nature to the charged allegations.
¶20 The acts all involved King causing a young girl to use her body to touch his groin area. While the incidents occurred many years before those involving L.K., remoteness in time is not dispositive. State v. Williams, 209 Ariz. 228, ¶ 17 (App. 2004) ("Although remoteness between incidents affects the weight to be given testimony by the jury, it generally does not determine its admissibility."). The court properly considered remoteness in its analysis. It simply concluded that the remoteness was outweighed by the similarity in the offenses. We find no abuse of discretion.
King's statements to his probation officer
¶21 King argues that the trial court improperly admitted certain statements he made to his probation officer. He argues they were irrelevant under Rule 401, as well as unfairly prejudicial under Rule 403, because they informed the jury he was on probation. He also argues that his statements could not be admitted as an exception to Rule 404's prohibition against propensity evidence. The court apparently admitted these statements under Rule 404(b).
¶22 When King committed the acts against L.K., he was on probation due to his plea agreement for sexual contact with A.H. and A.R. King's probation included restrictions on any physical contact with his grandchildren. At least twice in 2013, King requested permission from his probation officer to have physical contact with his granddaughter L.K., "to hold hands and hug [her]." The probation officer eventually approved the request.
¶23 The trial court found that King's statements to his probation officer were relevant "to show opportunity, intent, preparation, and plan to commit the charged offenses involving L.K." It further concluded that the statements helped "explain the gap in time between Defendant's offenses against A.R. and A.H. and the alleged offenses involving L.K."
¶24 The statements show that King took deliberate efforts to overcome the barriers between him and L.K. They also explain the gap between his prior acts and the charged conduct. And while the fact that King was on probation was prejudicial, the prejudicial effect is diminished by King's admission to sexual offenses against A.R. and A.H. as part of his plea agreement. Therefore, the trial court did not abuse its discretion in ruling that the statements to King's probation officer, and their context in relation to his probation, were admissible.
DISPOSITION
¶25 We affirm King's convictions and sentences.