Opinion
2 CA-CR 2022-0186
10-23-2023
The State of Arizona, Appellee, v. Bobby Nunez, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee James Fullin, Pima County Legal Defender By Alex Heveri, Assistant Legal 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 NOT FOR PUBLICATION See Ariz.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. CR20194509001 The Honorable D. Douglas Metcalf, Judge
AFFIRMED
COUNSEL
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee
James Fullin, Pima County Legal Defender By Alex Heveri, Assistant Legal Defender, Tucson Counsel for Appellant
Judge Sklar authored the decision of the Court, in which Judge O'Neil and Judge Gard concurred.
MEMORANDUM DECISION
SKLAR, Judge
¶1 Bobby Nunez appeals his convictions for several offenses, the most serious of which are three counts of sexual conduct with a minor under fifteen. Specifically, he challenges the trial court's decision to admit evidence that he had physically abused the victim, which led to a prior conviction. Nunez argues that this was improper other-act evidence under Rule 404(b) of the Arizona Rules of Evidence. For the reasons that follow, we reject this argument and affirm Nunez's convictions.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts, and we resolve all reasonable inferences against Nunez. See State v. Felix, 237 Ariz. 280, ¶ 2 (App. 2015). This case arises from sexual acts Nunez committed against D.A., a minor.
¶3 After multiple prior placements by the Department of Child Safety, in fall 2016, D.A. and his younger brother were placed in the care of their uncle. The uncle lived with Nunez, his boyfriend. D.A. was seven years old. He continued to live with his uncle and Nunez until January of 2018, when officials at his school observed heavy bruising on his body for a second time. He was then moved to live with his grandmother, with whom he had previously lived. Nunez pled guilty to child abuse for hitting D.A. on the back with a belt.
¶4 Eighteen months later, D.A. told his grandmother about the incidents giving rise to this case. At trial, D.A. testified that while showing him a pornographic video, Nunez had masturbated. D.A. also said Nunez had repeatedly forced him to perform oral sex and subjected him to anal penetration. D.A. testified that while Nunez had penetrated him, he was "smacking my back [and] telling me to shut up and stop screaming."
¶5 Nunez was indicted on six counts: furnishing harmful items to a minor, public sexual indecency to a minor, and four counts of sexual conduct with a minor under fifteen. One of the sexual-conduct counts was subsequently dismissed. After a four-day jury trial, Nunez was convicted on all five remaining counts. For the sexual-conduct convictions, the trial court sentenced him to consecutive terms of life in prison with no possibility of release for thirty-five years. He received lesser sentences on the other two convictions.
¶6 Although not raised on appeal, we note a conflict between the trial court's oral pronouncement of sentence as reflected in the transcript and the sentencing minute entry. The transcript reflects the court's oral pronouncement that the three life sentences are to run consecutively, with no possibility of release for thirty-five years. The minute entry, however, states that two of the life sentences are to run concurrently with each other, with the third to run consecutively. It also states that there will be no possibility of release for twenty-five years. Given this conflict, the oral pronouncement of sentence controls. See State v. Ovante, 231 Ariz. 180, ¶ 38 (2013).
¶7 This appeal followed. We have jurisdiction under article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
ADMISSABILITY OF PHYSICAL-ABUSE EVIDENCE
¶8 Nunez's sole argument on appeal is that the trial court abused its discretion by admitting evidence that he had hit D.A. with a belt and been convicted for doing so. We review the court's admission of other-act evidence under Rule 404(b) for an abuse of discretion. State v. Scott, 243 Ariz. 183, ¶ 14 (App. 2017).
¶9 To admit evidence of other crimes, wrongs, or acts under Rule 404(b), a trial court must find: (1) "clear and convincing proof that the defendant committed the act"; (2) the act is offered for a proper purpose under the rule; (3) the act is relevant to prove that purpose; and (4) the act's probative value is not substantially outweighed by the danger of unfair prejudice. State v. Escalante-Orozco, 241 Ariz. 254, ¶ 77 (2017) (abrogated on other grounds by State v. Escalante, 245 Ariz. 135, ¶¶ 15-16 (2018)). There is no dispute as to the first element, as Nunez admitted having caused D.A.'s injuries and pled guilty to physically abusing D.A. in his prior criminal case. Nunez's appeal focuses on the remaining three elements.
Proper Purpose
¶10 We first address whether the physical-abuse evidence was offered for a proper purpose. Under Rule 404(b)(1), other-act evidence generally may not be admitted to show that a defendant has the propensity to commit the charged offense. See State v. Butler, 230 Ariz. 465, ¶ 29 (App. 2012). Other purposes are permissible. Id.
¶11 The rule contains a non-exhaustive list of permissible purposes, including to show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Ariz. R. Evid. 404(b)(2); Scott, 243 Ariz. 183, ¶ 14 (list of purposes not exhaustive). Relevant here, other-act evidence may also be admissible to test, sustain, or impeach the credibility of a witness. State v. Williams, 183 Ariz. 368, 376 (1995).
¶12 The trial court determined that the physical-abuse evidence served two proper purposes. First, it concluded that the evidence showed "a lack of mistake as well as opportunity, intent, and potentially plan." These purposes are proper, as set forth in Rule 404(b). Second, the court concluded that the evidence potentially explained "why the victim did not report the alleged crimes immediately."
¶13 On appeal, the state focuses on this second purpose. We therefore do the same. And we agree with the state that this is a proper purpose. Evidence that explains D.A.'s delay in reporting relates to his credibility as a witness. See State v. Jeffers, 135 Ariz. 404, 417 (1983) (concluding that evidence of defendant's prior bad acts admissible to explain witness's delay in reporting crime at issue). That is especially true here because a juror could reasonably have questioned why D.A. did not report Nunez's conduct until eighteen months after moving back in with his grandmother. The trial court did not abuse its discretion by concluding that the evidence was admissible to assess D.A.'s credibility.
Relevance to Proper Purpose
¶14 We turn next to whether the evidence of physical abuse was relevant to a proper purpose. As to the reporting delay, D.A. provided only limited direct testimony. Specifically, he explained that he had been "kind of, like, scared how [his grandmother] would react, like, if she would be mad at me or something." But that testimony alone would not explain why D.A. did not report the abuse while living with his uncle and Nunez.
¶15 The state addressed that issue by focusing on D.A.'s fear of Nunez while they were living together. That fear, the state argued, came from both threats and physical abuse. As D.A. testified, the threats included "sa[ying] something about sending me back to DCS." D.A. also testified that the physical abuse included hitting him during the sexual acts, including in the head and back. It also included the abuse that had resulted in the prior conviction at issue-hitting D.A. "with a belt multiple times." Nunez also told D.A. to lie about receiving the bruises in a car crash. D.A. complied because he thought he "was going to get in trouble at home" if he did not lie, though he "wasn't sure."
¶16 To provide further context, the state presented the testimony of Wendy Dutton, a forensic interviewer who treats child victims of sexual assault. Dutton was a "cold expert" who had not been presented the facts of the case, and her testimony addressed reporting delays in general. She explained that children sometimes delay reporting out of fear that the perpetrator will follow through on threats, that no one will believe them, or that the abuse could have negative consequences for their families.
¶17 In closing argument, the prosecutor tied D.A.'s fear of Nunez to the reporting delay. She argued that D.A. had known "the threat that Bobby Nunez posed to him physically if he did not comply and he did not cooperate and he didn't keep his mouth shut." Later, she connected the reporting delay to the physical abuse with the belt. She argued:
Look at the imprint on [D.A.'s] little chest, looks like a buckle. Look at there's a place on his back that might be the tongue of the belt. That's not discipline, that is a beating, that is a reason to stay quiet, that is a reason to know that when you are told you ought not tell, you ought not tell.
Consistent with these excerpts, the prosecutor's closing arguments focused extensively on D.A.'s reporting delay. At no point did she suggest that the jury should convict Nunez because of the prior physical abuse.
¶18 Under these circumstances, we conclude that the evidence concerning Nunez's physical abuse of D.A. was relevant to a proper purpose. As our supreme court has explained, evidence that a witness feared a defendant due to other crimes can be "relevant for the purpose of bolstering the[] witness['s] credibility." Jeffers, 135 Ariz. at 417. The state used the evidence for that purpose here. The trial court also instructed the jury to determine witness credibility.
¶19 Nonetheless, Nunez makes three arguments that the physical-abuse evidence was not relevant to that purpose. First, he points to the fact that D.A. never specifically testified that he had delayed reporting because he feared Nunez. But Nunez points to no case law suggesting that such testimony was required, and the lack of such testimony was relevant to the jury's credibility analysis, not to the evidence's admissibility. Moreover, even absent direct evidence about D.A.'s intentions, his testimony presented considerable circumstantial evidence about the issue. See State v. Stuard, 176 Ariz. 589, 603 (1993) ("Arizona law makes no distinction between circumstantial and direct evidence.").
¶20 Second, Nunez argues that this evidence was used for the improper purpose of portraying him as having acted in a manner consistent with abusive tendencies. But the state never made such an argument. Rather, it focused on the likelihood that the physical abuse increased D.A.'s fear of Nunez, and consequently explained the reporting delay.
¶21 Importantly, the jury was also instructed not to consider the physical abuse "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." It was likewise instructed that it could consider evidence of Nunez's child-abuse conviction "only as it may affect [his] believability as a witness." The instruction continued, "You must not consider a prior conviction as evidence of guilt of the crime for which the defendant is now on trial." We presume the jury followed these instructions and therefore did not consider the prior conviction for any improper purpose. See State v. Newell, 212 Ariz. 389, ¶ 69 (2006).
¶22 Third, Nunez argues that the physical-abuse evidence did not "establish [his] intent" to commit the crimes in question here. We need not address this issue, as we have already concluded that the evidence was admissible for the proper purpose of explaining D.A.'s reporting delay. See State v. Van Adams, 194 Ariz. 408, ¶ 43 (1999) (when evidence admissible for proper purpose, at most harmless error if considered for different, improper purpose).
¶23 We note that the jury was not instructed that it could use the evidence of physical abuse to assess the reporting delay and D.A.'s credibility. Rather, it was instructed that it "may only consider these acts to establish the defendant's motive, opportunity, intent, preparation, plan, knowledge and absence of mistake or accident." (Emphasis added.) While that instruction was not correct-given the evidence's relevance to the proper purpose of assessing D.A.'s credibility-that error benefited Nunez by leaving out an additional proper purpose. Hence, any error was harmless and does not supply a basis for reversal. See State v. Davolt, 207 Ariz. 191, ¶ 39 (2004) ("Error is harmless if the reviewing court can say beyond a reasonable doubt that the error did not contribute to the verdict."). State v. Colson, 17 Ariz.App. 598, 602 (1972) (error must be shown to be prejudicial to merit reversal).
Unfair Prejudice
¶24 We turn to the final element of the Rule 404(b) analysis, which is whether the physical-abuse evidence should have been precluded under Rule 403. See Escalante-Orozco, 241 Ariz. 254, ¶ 77 (other-act evidence's probative value should not be substantially outweighed by danger of unfair prejudice). Nunez argues that the evidence unfairly prejudiced him because it allowed the state to concentrate its cross-examination of him on the physical abuse. He also argues that the state showed "repetitious" and "gruesome" photos of the bruising that "caused the jury to become inflamed and to convict Nunez based upon emotion and prior guilt rather than the dispassionate weighing of evidence."
¶25 Like all evidence, other-act evidence is subject to Rule 403 and is therefore admissible only when "the potential for prejudice does not substantially outweigh its probative value." State v. VanWinkle, 230 Ariz. 387, ¶ 21 (2012). Prejudice is unfair when the "evidence has an undue tendency to suggest decision on an improper basis, such as emotion, sympathy, or horror." State v. Mott, 187 Ariz. 536, 545 (1997). The trial court is in the best position to weigh evidence's probative value against its potential for unfair prejudice, so it has broad discretion to make the Rule 403 determination. State v. Togar, 248 Ariz. 567, ¶ 23 (App. 2020).
¶26 As for the cross-examination, we disagree with Nunez that any unfair prejudice arising from the state's focus on the other-act evidence substantially outweighed that evidence's probative value. Preliminarily, when Nunez chose to testify, he subjected himself to the same rules of evidence as other witnesses. See State ex rel. McDougall v. Corcoran, 153 Ariz. 157, 160 (1987). For example, his credibility was subject to challenge on cross-examination based on specific instances of his own conduct under Rule 608(b)(1). The focus on Nunez's credibility was especially important as he presented no witnesses other than himself, and he denied the allegations. The jury therefore needed to weigh his credibility against D.A.'s. Also, the state's cross-examination-to which Nunez largely did not object-did not focus primarily on the physical abuse itself. Rather, it focused on Nunez initially denying that abuse before admitting to it. His initial dishonesty is probative of his credibility.
¶27 As for the photos, we agree generally that needlessly graphic photos can be unfairly prejudicial. See State v. Murray, 184 Ariz. 9, 28 (1995). But these photos did not approach that level. In fact, at Nunez's request, the state agreed not to present as many photos as it had intended. Nunez did not object to the remaining photos. And while the photos were graphic, they were not so inflammatory as to be unfairly prejudicial. We therefore conclude that the court did not abuse its discretion in admitting the other-act evidence under Rule 404(b).
INTRINSIC EVIDENCE
¶28 Nunez also argues that the trial court improperly admitted the evidence of physical abuse as intrinsic evidence. Evidence of other acts is admissible as intrinsic when it: (1) directly proves the charged act; or (2) was performed contemporaneously with and directly facilitated the charged act. State v. Ferrero, 229 Ariz. 239, ¶ 20 (2012). Because the trial court did not admit the evidence as intrinsic here, and because the evidence was admissible under Rule 404(b) regardless whether it was intrinsic, we need not address this issue.
DISPOSITION
¶29 For the foregoing reasons, we affirm Nunez's convictions and sentences.