Opinion
No. 1 CA-CR 10-0713
12-27-2011
STATE OF ARIZONA, Appellee, v. EDGAR ISAAC ORTEGA, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division Sarah E. Heckathorne, Assistant Attorney General Attorneys for Appellee Phoenix Jill L. Evans, Mohave County Appellate Defender Attorney for Appellant Kingman
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(Not for Publication -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 Mohave County
Cause No. CR2009-0971
The Honorable Derek C. Carlisle, Judge Pro Tem
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Division
Sarah E. Heckathorne, Assistant Attorney General
Attorneys for Appellee
Phoenix
Jill L. Evans, Mohave County Appellate Defender
Attorney for Appellant
Kingman
DOWNIE, Judge
¶1 Edgar Isaac Ortega appeals his conviction and sentence for child molestation, a class 2 felony and dangerous crime against children. Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
We view the trial evidence in the light most favorable to upholding the jury's verdict. See State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983).
¶2 In May 2007, Ortega lived with Y.V. and her two daughters, ages three and seven. Y.V. became concerned about what might be occurring between Ortega and her older daughter because of something the younger child said. When Y.V. questioned the seven-year-old, she admitted Ortega "had touched her in a wrong way" and pointed to her private parts. Y.V. confronted Ortega and ordered him to leave the house. Ortega said he would not do it anymore and would leave the child alone.
¶3 The next morning, Y.V. took her daughter to the hospital, where she was examined by a sexual assault nurse. The child told the nurse that her mother's boyfriend would take off her pants and his pants, kiss her all over, "and kind of kiss[] me right next to my private." She also said that Ortega put his "private" near her genital area and rubbed it against her. The nurse saw a bruise in the shape of a bite mark on the girl's back; the child said that Ortega had bitten her. At trial, the victim testified that the day before her mother told Ortega to leave, Ortega took her pants off and touched her with his fingers, and put his "private" into hers.
¶4 The jury convicted Ortega of child molestation and found three aggravating factors. The court found the existence of a prior felony conviction and sentenced Ortega to an aggravated prison term of 24 years. Ortega filed a timely notice of appeal.
I. Impeachment of Character Witness
¶5 Ortega argues that the trial court erred by allowing the prosecutor to cross-examine his character witness about a 1999 felony conviction for robbery, without first determining that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. This issue arose during trial, after Ortega called his cousin, S.H., as a character witness. The prosecutor sought the court's permission to ask S.H. if she knew about Ortega's prior robbery conviction and whether it would affect her opinion of him.
¶6 Over Ortega's objection that the conviction was too old to be used to impeach his credibility and was unduly prejudicial, the court granted the State's request. It explained that although the conviction was inadmissible to impeach Ortega's credibility under Rule 609, Arizona Rules of Evidence ("Rule"), by eliciting testimony as to his good character, Ortega opened the door to asking S.H. if she knew of the prior conviction and if it would change her opinion of him. On cross-examination, the prosecutor asked S.H. if she knew of the robbery conviction and if it would affect her opinion of Ortega. She responded that she knew Ortega had been in trouble when he was younger and that the conviction did not affect her opinion about his character.
¶7 Ortega does not challenge the relevance of the evidence. He acknowledges that the rules of evidence permit cross-examination of a character witness about knowledge of relevant specific instances of prior conduct, including prior felony convictions, to allow the jury to better evaluate the witness's assessment of the defendant's character. See State v. Rockwell, 161 Ariz. 5, 10, 775 P.2d 1069, 1074 (1989); Ariz. R. Evid. 404(a)(1) (prosecutor may rebut evidence offered by accused of a pertinent trait of character); Ariz. R. Evid. 405(a) (on cross-examination of a character witness, "inquiry is allowable into relevant specific instances of conduct").
¶8 However, relevant evidence may be excluded if "its probative value is substantially outweighed by a danger of . . . unfair prejudice." Ariz. R. Evid. 403. Evidence is unfairly prejudicial if it has "an undue tendency to suggest decision on an improper basis . . . such as emotion, sympathy or horror." State v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993) (citing Fed. R. Evid. 403 advisory committee note). We view the challenged evidence in the "light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect." State v. Harrison, 195 Ariz. 28, 33, ¶ 21, 985 P.2d 513, 518 (App. 1998) (citation omitted). We review the trial court's evidentiary rulings for an abuse of discretion. State v. Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d 1260, 1275 (1990).
19 Ortega contends the trial court erred by failing to conduct a balancing analysis under Rule 403. Although the court did not make specific findings, we presume it "was aware of the relevant law and applied it correctly." State v. Moody, 208 Ariz. 424, 449, ¶ 81, 94 P.3d 1119, 1144 (2004J (citations omitted). Moreover, "such findings are not necessary when the basis for the court's ruling appears in the record." State v. Herrera III, 226 Ariz. 59, 66, ¶ 22, 243 P.3d 1041, 1048 (App. 2010) (citation omitted).
¶10 The record provides support for the evidentiary ruling at issue. The prosecutor presented significant argument regarding the probative value of the prior conviction. Ortega did not demonstrate unfair prejudice that would overcome this showing. See Williams, 144 Ariz. at 439, 698 P.2d at 684. Moreover, a determination that the probative value was not substantially outweighed by the danger of unfair prejudice was implicit in the court's lengthy explanation of its ruling. Ortega's reliance on State v. Vigil, 195 Ariz. 189, 986 P.2d 222 (App. 1999), is unpersuasive. In Vigil, we held that the court abused its discretion in admitting other act evidence under Rule 404(b) without performing any Rule 403 analysis. 195 Ariz. at 193, ¶¶ 26-27, 986 P.2d at 226. However, we did not specifically require trial courts, even with respect to Rule 404(b) evidence, to make express findings on the record relating to Rule 403. On this record, we find no abuse of discretion in allowing Ortega's character witness to be cross-examined regarding the felony conviction.
II. Evidence of Prior Sexual Misconduct
¶11 Ortega next argues that the court fundamentally erred in failing to declare a mistrial or immediately instruct the jury to disregard testimony by the victim's mother that she observed an instance of inappropriate sexual conduct "where [Ortega] had my youngest on his lap. And he had an erection." The court had precluded evidence of this incident in a pre-trial ruling.
¶12 Ortega immediately objected, and the court sustained the objection. The court noted during a bench conference that the State had not deliberately elicited this testimony, though it asked the prosecutor to "try to guide [the witness] a little bit better." The court stated that it would tell the jury to disregard the testimony. Ortega did not request a mistrial or object to the court's failure to immediately advise the jury to disregard the testimony. In the final jury instructions, the court instructed the jury to disregard any testimony to which an objection was sustained.
¶13 Ortega argues for the first time on appeal that the court violated his right to a fair trial by failing to immediately instruct the jury to disregard the testimony and by failing to sua sponte declare a mistrial. Because these objections were not raised below, we review for fundamental error only. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Ortega has the burden to show error, that the error was fundamental, and that he was prejudiced thereby. Id. at 567, ¶¶ 19-20, 115 P.3d at 607.
¶14 A mistrial is "the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted." State v. Dann, 205 Ariz. 557, 570, ¶ 43, 74 P.3d 231, 244 (2003) (citation omitted). "The trial judge's discretion is broad, because he is in the best position to determine whether the evidence will actually affect the outcome of the trial." State v. Jones, 197 Ariz. 290, 304, ¶ 32, 4 P.3d 345, 359 (2000) (citations omitted).
¶15 We find no fundamental, prejudicial error. The testimony at issue was brief and was not mentioned again. The court sustained Ortega's objection and instructed the jury to disregard any evidence to which it had sustained an objection. We presume the jury followed its instructions. See State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996) (citation omitted). Ortega has failed to demonstrate that this brief reference so influenced the jury, notwithstanding the court's instruction to disregard it, that it deprived him of a fair trial. See Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607; State v. Ellison, 213 Ariz. 116, 133, ¶¶ 60-62, 140 P.3d 899, 916 (2006) (witness's improper reference to gun did not constitute fundamental error; reference was brief and State did not argue it in closing). Nor has he persuaded us that the jury would have reached a different verdict absent this testimony, as he must to establish prejudice. See Henderson, 210 Ariz. at 570, ¶ 32, 115 P.3d at 609.
III. Interpreter
¶16 Ortega next argues that the trial court's failure to provide him with an interpreter at pre-trial hearings requires reversal. The subject first arose at a status conference two months before trial, when defense counsel requested an interpreter for trial. Counsel stated:
[M]y client is requesting an interpreter at his trial. And not that he has needed one before, but it's just that he feels that this trial -- that some of the terminology would be better for him to understand if he has an interpreter.(Emphasis added.) The issue came up again at the final trial management conference, when the court inquired whether Ortega still wanted an interpreter, stating:
I don't know that I ever specifically ruled on that. Mr. Ortega has certainly seemed to understand everything that's gone on. He doesn't seem to have any issues understanding what's been going on. He has conferred with his client -- or with his attorney.An interpreter assisted Ortega at trial and at sentencing.
But by the same token, if he indicates that he is going to be more comfortable . . . it might be appropriate to have an interpreter present.
I will make the arrangements to have an interpreter present.
¶17 "It is axiomatic that an indigent defendant who is unable to speak and understand the English language should be afforded the right to have the trial proceedings translated into his native language in order to participate effectively in his own defense, provided he makes a timely request for such assistance." State v. Natividad, 111 Ariz. 191, 194, 526 P.2d 730, 733 (1974) . Because the trial court is in the best position to determine the need for an interpreter, we review its decision for an abuse of discretion. Id.
¶18 Because Ortega failed to request an interpreter at pre-trial hearings and failed to argue that the failure to sua sponte provide one violated his rights, we review for fundamental error only. Henderson, 210 Ariz. at 567, ¶¶ 19-20, 115 P.3d at 607. We find no error, much less fundamental error. In requesting an interpreter for trial, defense counsel stated that Ortega had not needed one earlier, but would feel more comfortable with an interpreter at trial because he might not understand anticipated technical terminology (an apparent reference to medical terms the sexual assault nurse examiner might use). The court itself noted on the record that Ortega appeared to have understood everything that had transpired at earlier hearings, and had been able to converse with his counsel. On this record, we find no error in failing to sua sponte provide an interpreter for pre-trial hearings.
CONCLUSION
¶19 For the foregoing reasons, we affirm Ortega's conviction and sentence.
_________________
MARGARET H. DOWNIE,
Presiding Judge
CONCURRING:
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PETER B. SWANN, Judge
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DONN KESSLER, Judge