Opinion
No. 2 CA-CR 2016-0325
08-25-2017
THE STATE OF ARIZONA, Appellee, v. DRACO AURUM RAT, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By Michael J. Miller, Assistant Public 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NOT FOR PUBLICATION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. 31.24. Appeal from the Superior Court in Pima County
No. CR20143874001
The Honorable Teresa Godoy, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Karen Moody, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Michael J. Miller, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Vásquez and Judge Kelly concurred. ECKERSTROM, Chief Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 Draco Rat appeals from his convictions and sentences for four counts of sexual offenses. For the following reasons, we affirm.
Factual and Procedural Background
¶2 "We view the evidence in the light most favorable to sustaining the convictions." State v. Gay, 214 Ariz. 214, ¶ 2, 150 P.3d 787, 790 (App. 2007). When C.R. was twelve years old, Rat, her father, began touching her on her clitoris and inside her vagina. He would also have her touch his penis with her hand. Later, Rat began having sexual intercourse with C.R., which he did multiple times. He touched her breasts and forced her to perform oral sex on him. On one Sunday afternoon, he forced her to perform oral sex and then had sexual intercourse with her in a "reverse cowgirl" position. On another occasion, Rat had C.R. take a picture of his bare penis.
¶3 In an online text conversation, C.R. told her friend H.F. that her father was raping her. H.F. told her school counselor, who in turn contacted the assistant principal at C.R.'s school. The assistant principal interviewed C.R. and contacted law enforcement. Officers searched Rat's home and collected DNA from his sheets for testing. C.R.'s DNA was found on Rat's bedsheet.
Deoxyribonucleic acid.
¶4 After a jury trial, Rat was convicted of indecent exposure to a minor under fifteen, two counts of sexual conduct with a minor under fifteen, and continuous sexual abuse of a child. He was sentenced to a combination of consecutive and concurrent presumptive prison terms totaling sixty years. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).
Hearsay
¶5 Rat first claims the trial court erred in allowing C.R.'s friend, H.F., and C.R.'s assistant principal, A.F., to testify regarding C.R.'s allegations that her father had raped her. He asserts the statements were inadmissible hearsay. Because Rat did not object to the admission of these statements, our review is limited to fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005).
¶6 In some circumstances, erroneous admission of hearsay may be fundamental error. See, e.g., State v. McGann, 132 Ariz. 296, 299, 645 P.2d 811, 814 (1982) (fundamental error where hearsay was sole proof of an element of certain crimes); State v. Allen, 157 Ariz. 165, 171, 755 P.2d 1153, 1159 (1988) (same). But when hearsay evidence is cumulative to other evidence presented in a case, our supreme court has held that this is not fundamental error. See State v. Moody, 208 Ariz. 424, ¶ 121, 94 P.3d 1119, 1150 (2004). Here, the challenged testimony was cumulative—C.R. herself testified that Rat had raped her. Accordingly, we conclude that any error in the admission of this testimony did not rise to the level of fundamental error.
Rat cursorily asserts that the evidence should have been precluded precisely because it was "cumulative" and cites Rule 403, Ariz. R. Evid., but has not developed any legal argument for exclusion of the evidence pursuant to this rule. He also claims the admission of this evidence "deprived [him] of his constitutional rights to due process of law and a fair trial," but he did not raise this claim in the trial court, has not argued any error was fundamental, and has not developed any legal argument on this issue. We therefore conclude he has waived these claims. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) ("Failure to argue a claim on appeal constitutes waiver of that claim."); Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607-08 (review of unobjected-to error limited to fundamental error); State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008) (failure to argue fundamental error results in waiver of argument).
Prejudicial Evidence
¶7 Rat next challenges the admission of "evidence that the sheet from [his] bed was stained and malodorous [and] that his residence smelled of animal feces and urine." He claims that the evidence was not relevant, and that even if it was relevant, the probative value was outweighed by the danger of unfair prejudice. Ordinarily, we review a trial court's evidentiary rulings for a clear abuse of discretion. State v. Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d 1260, 1275 (1990). But because Rat did not object to the evidence of the uncleanliness of his home and bedsheet, he has forfeited review for all but fundamental, prejudicial error. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607-08.
Rat also challenges the admission of testimony "that he was too fat to see his own penis." Because it was Rat, and not the state, who introduced testimony regarding his obesity, we conclude any error in the admission of that testimony was invited. See State v. Anderson, 210 Ariz. 327, ¶ 44, 111 P.3d 369, 382 (2005). "[W]e will not find reversible error when the party complaining of it invited the error." State v. Logan, 200 Ariz. 564, ¶ 9, 30 P.3d 631, 632-33 (2001).
¶8 "Evidence is relevant if it has any tendency to make a fact of consequence more or less probable." State v. Lacy, 187 Ariz. 340, 349, 929 P.2d 1288, 1297 (1996). Rat states that the unkempt state of his house did not "make[] it more or less likely that he had sex with his daughter." However, the evidence was relevant to controvert Rat's explanation for why C.R.'s DNA was found on his sheets. Rat claimed that C.R. was afraid of the dark, but that he did not want her to sleep with the light on because he wanted to "instill good values . . . including responsible living, such as a proper sleep cycle." He claimed that she only slept in his room so that she could sleep well without needing to have a light on. He further asserted that C.R. had made up the allegations because she was angry at the fact that Rat's house "had structure. It had more discipline." The fact that Rat did not take care to have clean sheets or a clean house cut directly against his purported concern for C.R.'s sleep habits and advocacy of responsible living, as well as his assertion that his house was more regulated than that of C.R.'s mother. The evidence was therefore relevant. See id. (evidence controverting defendant's statements was relevant).
¶9 Rat also claims the evidence should have been excluded under Rule 403, Ariz. R. Evid., because it indicated "a person who did not wash sheets or clean up animal waste was more likely to do other disgusting things like have sex with his daughter." "Evidence which may tend to incite the jury's emotions is admissible if it is relevant and if its probative value outweighs the danger of unfair prejudice created by its admission." State v. Routhier, 137 Ariz. 90, 98, 669 P.2d 68, 76 (1983). Although the evidence was somewhat provocative in nature, it was relevant and probative to contradict Rat's testimony. Lacy, 187 Ariz. at 349, 929 P.2d at 1297. Accordingly, because the trial court reasonably could have concluded the potential for unfair prejudice did not outweigh the probative value of the evidence, it did not abuse its discretion, much less err fundamentally, in admitting it.
Portillo Jury Instruction
¶10 Rat also claims the trial court erred in basing its reasonable doubt instruction to the jury on language from State v. Portillo, 182 Ariz. 592, 898 P.2d 970 (1995). Our supreme court has considered and rejected such challenges to the Portillo instruction, repeatedly affirming its preference that the instruction be given. See, e.g., State v. Garza, 216 Ariz. 56, ¶ 45, 163 P.3d 1006, 1016-17 (2007); State v. Lamar, 205 Ariz. 431, ¶¶ 48-49, 72 P.3d 831, 840-41 (2003). We are bound by the decisions of our supreme court and have no authority to modify or disregard them. State v. Smyers, 207 Ariz. 314, n.4, 86 P.3d 370, 374 n.4 (2004). Accordingly, we reject Rat's contention.
Disposition
¶11 For the foregoing reasons, we affirm Rat's convictions and sentences.