Opinion
No. 1 CA-CR 15-0818
12-20-2016
STATE OF ARIZONA, Appellee, v. JAMES RICHARD OLIVER, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By W. Scott Simon Counsel for Appellee Law Office of Nicole Farnum, Phoenix By Nicole Farnum Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Yavapai County
No. P1300CR201301091
The Honorable Jennifer B. Campbell, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By W. Scott Simon
Counsel for Appellee Law Office of Nicole Farnum, Phoenix
By Nicole Farnum
Counsel for Appellant
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Patricia K. Norris and Judge Margaret H. Downie joined. THUMMA, Judge:
¶1 James Richard Oliver appeals his conviction and sentence for continuous sexual abuse of a child under the age of 12. Because Oliver has shown no reversible error, his conviction and sentence are affirmed.
FACTS AND PROCEDURAL HISTORY
On appeal, this court views the evidence in the light most favorable to sustaining the conviction and resolves all reasonable inferences against defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2 (App. 2008).
¶2 The trial evidence showed Oliver engaged in several acts (including several types of acts) of sexual abuse of victim S.C. over a period of a year or more, starting when she was eight years old. Oliver told S.C. not to tell anyone, or she would be taken away from her mother, and he would be sent to jail and killed. After S.C. reported the abuse, a forensic nurse examiner conducted an examination and found scars and other signs of trauma consistent with the victim's reports.
¶3 A.H., the daughter of Oliver's former girlfriend, and K.S., one of Oliver's family members, testified that Oliver had touched them inappropriately years before when they were children. Another trial witness testified Oliver told her, after he was arrested, that he had S.C. masturbate him once and that he did "f___ with" K.S., but that it was a long time ago, and if K.S. "wants to bring that up now, she's going to have to face me in court because I'm not [lying] down on this."
¶4 Oliver denied S.C.'s allegations and denied making these post-arrest statements. Oliver admitted, however, that he had six prior felony convictions.
¶5 The jury convicted Oliver of the continuous sexual abuse of S.C., and found she was under 12 years of age at the time, constituting a Class 2 felony and a Dangerous Crime Against Children. See Ariz. Rev. Stat. (A.R.S.) § 13-1417(2016). The court sentenced Oliver to an aggravated term of 27 years in prison. Oliver filed a timely notice of appeal. Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031 and 13-4033(A).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
DISCUSSION
I. Oliver Has Shown No Reversible Error In The Sentencing Procedures Followed In This Case.
¶6 Oliver argues the superior court violated his due process rights to a fair sentencing hearing by failing to obtain a pre-sentence report (PSR), by allowing K.S. to speak at the sentencing hearing and by denying his request for a continuance of sentencing. Before imposing sentence, the court gave Oliver and his counsel an opportunity to speak on his behalf. The court found as mitigating circumstances the support of his family and his participation in a car club. The court considered as aggravating circumstances: (1) the jury's finding that the victim suffered physical, emotional and financial harm; (2) the jury's finding that Oliver held a position of trust and authority with respect to the victim; (3) the abuse took place over a lengthy period, when the offense requires only a period of three or more months; (4) Oliver had six prior felony convictions and (5) the victim's family suffered emotional harm. The court found that the aggravating circumstances outweighed the mitigating factors, and sentenced Oliver to an aggravated prison term.
¶7 Oliver did not object to the failure of the court to require a PSR, meaning review on appeal is limited to fundamental error. See Ariz. R. Crim. P. 21.3(c); State v. Henderson, 210 Ariz. 561, 567 ¶¶ 19-20 (2005). "Accordingly, [Oliver] 'bears the burden to establish that "(1) error exists, (2) the error is fundamental, and (3) the error caused him prejudice."'" State v. James, 231 Ariz. 490, 493 ¶ 11 (App. 2013) (citations omitted).
¶8 A superior court "shall require a pre-sentence report in all cases in which it has discretion over the penalty to be imposed," which "shall be delivered to the sentencing judge at least 2 days before the date set for sentencing." Ariz. R. Crim. P. 26.4. Because the court had sentencing discretion, and because no PSR was prepared and Oliver did not waive a PSR, the superior court erred in not requiring a PSR. See id. Even assuming that error was fundamental, however, Oliver has failed to show resulting prejudice. Oliver argues generally that the court "did not have any of the critical information that report could have provided, including: childhood history, educational background, criminal history, mental health history, history of alcohol and drug abuse, and risk assessments." This argument, however, does not demonstrate what such information would have shown, relies on speculation and is insufficient to show prejudice on fundamental error review. See State v. Munninger, 213 Ariz. 393, 397 ¶ 14 (App. 2006).
¶9 Oliver next argues K.S. was not a named victim, and the jury failed to find as an aggravating circumstance that the defendant "previously victimized others in a similar fashion," making it improper for the court to allow, over Oliver's objection, K.S. to address the court at sentencing. Oliver has failed to cite any authority that would prevent the court from hearing from K.S. at sentencing; his authority instead sets forth a victim's right to speak. See A.R.S. § 13-4426. At sentencing, among other things and as applicable here, the court may consider "any other factor that the state alleges is relevant to the defendant's character or background or to the nature or circumstances of the crime." A.R.S. § 13-701(D)(25). Oliver has not shown the court abused its discretion in allowing K.S. to speak at sentencing.
¶10 Finally, Oliver argues the superior court abused its discretion in denying his request for a continuance of sentencing, which he asserts was a request for a mitigation hearing. Oliver, however, did not request a mitigation hearing, and accordingly waived his right to such a hearing. See Ariz. R. Crim. P. 26.7(a) (noting court "shall on the request of any party" hold such a hearing). The record shows Oliver orally asked for a continuance of the sentencing, not a mitigation hearing, to allow him "the opportunity to present additional letters and other filings in the future because we don't have them today." The court denied the request, stating that "this matter has been set for [s]entencing for quite some time and some victims are present."
¶11 A superior court does not abuse its discretion in denying a request to continue unless the denial "substantially prejudiced the defendant." State v. Barreras, 181 Ariz. 516, 520 (1995). Similarly, denying a request to continue is not an abuse of discretion when the defendant has failed to act diligently in securing the attendance of a witness. See State v. Richie, 110 Ariz. 590, 592 (1974). As applied, sentencing was held nearly three months after the jury verdict. Oliver has not shown how, with diligence, any "additional letters and other filings" could not have been provided by the time of sentencing. Moreover, Oliver has not shown how denying the requested continuance "substantially prejudiced the defendant." Accordingly, Oliver has shown no abuse of discretion in denying the requested continuance.
II. This Court Lacks Jurisdiction To Consider Oliver's Claim Of Improper Lack Of Disclosure.
¶12 Oliver argues that the State's "failure to disclose material exculpatory evidence" regarding the alleged lack of adequate training and competence of the forensic nurse examiner called by the State as a trial witness was prosecutorial misconduct. Oliver concedes, however, that he first raised this claim in a motion for new trial filed more than 10 days after the verdict. The superior court correctly ruled it lacked jurisdiction to consider the issue, given the motion for new trial was untimely. See Ariz. R. Crim. P. 24.1(b) ("A motion for a new trial shall be made no later than 10 days after the verdict has been rendered."). This 10-day limit is jurisdictional. State v. Hickle, 129 Ariz. 330, 332 (1981). Accordingly, because the superior court lacked jurisdiction to address this argument, this court lacks jurisdiction to consider it on appeal. See State v. Ring, 200 Ariz. 267, 277 ¶ 33 (2001), reversed on other grounds, Ring v. Arizona, 536 U.S. 584 (2002).
Although Oliver asks this court to review the issue for fundamental error, he has not shown how this court has jurisdiction to conduct such a review. This lack of jurisdiction, however, is without prejudice to Oliver's ability to raise the issue in a post-conviction relief proceeding. See Ariz. R. Crim. P. 32.1; see also Ring, 200 Ariz. at 277 ¶ 33. --------
III. Oliver Has Shown No Error In The Superior Court Admitting Evidence Under Ariz. R. Evid. 404(c).
¶13 Oliver argues the court abused its discretion in allowing the State to introduce character evidence under Ariz. R. Evid. 404(c), because the evidence was "vastly different" from the offense for which he was being tried, and the evidence involving the two other victims occurred many years before trial and was too remote to be admissible.
¶14 At an evidentiary hearing, K.S. testified that Oliver had tried to put his penis inside her when she was five years old, and he was about 15 years old, an incident that occurred about 25 years before the charged acts. As a result, K.S. was injured and it hurt to urinate. She immediately told her mother, who confronted Oliver's parents, who said they would get him help. She confronted Oliver herself in 2002 or 2003, calling him a child molester, and he called her a "slut." A.H. testified that Oliver rubbed her vagina and anus over her clothing when she was 12 years old, about five years before the charged acts. Soon after, that incident was reported to authorities.
¶15 In allowing this evidence to be admitted, the court made findings required by Rule 404(c), including that the each of the acts had been proved by clear and convincing evidence. Along with noting Oliver's access to these individuals, the court found his conduct was the "[s]ame kind of activity, same kind of grooming behavior . . . very similar in nature. I do find its probative value outweighs any prejudice to the defendant. I find it admissible under 404(c), showing a sexual aberrance." The court found that Oliver's conduct with K.S. was "the same. It is very remote in time. But the similarity, access, it's a family member . . . And again, the similarity outweighs . . . any prejudice under 403. So I find there is a pattern of conduct. It's relevant. It outweighs any prejudice." In addressing remoteness, the court also took into account Oliver's periods of imprisonment. The court also noted that both of the victims reported the molestation.
¶16 On the second day of trial, the court also found admissible under Rule 404(c) testimony from S.C. that Oliver had engaged in anal intercourse with her at an automobile rally either in Jerome or Lake Havasu City. The court found clear and convincing evidence, based on the victim's forensic interview, that the incident occurred, and the parties conceded that it provided a reasonable basis to infer that Oliver had a character trait giving rise to an aberrant sexual propensity. The court found "[t]he other act is similar to the crime charged. It's relevant." Because the act was perpetrated "against the same victim close in time," the court further found Rule 403 did not preclude admission of the evidence. The court accordingly found this act admissible under Rule 404 (c).
¶17 Oliver challenges the admission of these other acts first, on the ground that they were too remote in time, having occurred 25 years and five years before the charged acts, and also that they were dissimilar. Rule 404(c), however, "does not contemplate any bright line test of remoteness or similarity, which are solely factors to be considered under subsection (1)(c) of Rule 404(c)." Ariz. R. Evid. 404 (c) cmt. to 1997 amendment; see also State v. Van Adams, 194 Ariz. 408, 416 ¶ 24 (1999) (remoteness in time affects weight, but "generally does not determine . . . admissibility").
¶18 In determining that the probative value of these other acts was not outweighed by their danger of unfair prejudice, the court took into account not only the "remoteness of the other act[s]," but also their similarity to the charged acts, the surrounding circumstances (access to the victims), the strength of the evidence that Oliver committed the other acts (including the victims reporting the incidents to family shortly thereafter) and relevant intervening events affecting the frequency of the other acts (Oliver's periodic imprisonment). See Ariz. R. Evid. 404(c)(1)(C). The court did not abuse its discretion in finding that Oliver's other acts with these individuals were similar to the acts alleged in this case. Nor did the court abuse its discretion in finding that the other acts were not too remote, given the similarity of the acts, and the similarity of their circumstances, as well as the fact that Oliver was incarcerated for various relevant periods of time. See State v. Weatherbee, 158 Ariz. 303, 304-5 (App. 1988) (discounting two-decade gap in incidents on the ground that "it was a number of years before the daughters of the new family reached the appropriate age for appellant to again begin his sexual contacts"); State v. Salazar, 181 Ariz. 87, 92-93 n.5 (App. 1994) (indicating that other acts occurring more than 20 years before the charged crime were not so remote as to be precluded as evidence of sexual aberration).
¶19 Finally, the court did not abuse its discretion in finding that the act in Jerome or Lake Havasu City with S.C., under similar circumstances, during the same time period, was sufficiently similar to the acts alleged that provided the basis for the continuous sexual abuse charge. The superior court also properly instructed the jury on the limited use it might make of this 404(c) evidence. See State v. Villalobos, 225 Ariz. 74, 80 ¶ 20 (2010). On this record, Oliver has shown no abuse of discretion in the superior court's admitting this evidence.
CONCLUSION
¶20 Oliver's conviction and resulting sentence are affirmed.