Opinion
No. 1 CA-CR 16-0485
10-17-2017
STATE OF ARIZONA, Appellee, v. CHRIS A. SIMCOX, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Robert A. Walsh Counsel for Appellee Law Office of Nicole Farnum, Phoenix By Nicole T. 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
No. CR2013-428563-001
The Honorable William L. Brotherton, Jr., Judge
The Honorable Jose S. Padilla, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Robert A. Walsh
Counsel for Appellee Law Office of Nicole Farnum, Phoenix
By Nicole T. Farnum
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge Jon W. Thompson and Chief Judge Samuel A. Thumma joined. JONES, Judge:
¶1 Chris Simcox appeals his convictions and sentences for two counts of molestation of a child (Counts One and Two), and one count of furnishing obscene or harmful items to a minor (Count Three). Simcox raises a single issue on appeal — whether the trial court erred by admitting other-acts evidence without making a specific finding that the evidence met the standards for admissibility under Arizona Rule of Evidence 404(c). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
"We view the facts in the light most favorable to sustaining the jury's verdict[s]." State v. Burbey, 240 Ariz. 496, 498, ¶ 2 (App. 2016) (citing State v. Dann, 205 Ariz. 557, 562 n.1, ¶ 1 (2003)).
¶2 Between April 2012 and May 2013, Simcox inappropriately touched J.D., a five-year-old friend of his daughters. While J.D. was at Simcox's house, Simcox put his hand inside her clothing and rubbed her vagina on multiple occasions. Simcox also showed J.D. pornographic videos while touching her. J.D. later testified the assaults always occurred in Simcox's kitchen and only when she was isolated from Simcox's daughters. Unprompted, J.D. disclosed the abuse to her mother in May 2013.
¶3 Around the same time as J.D.'s disclosure, E.M., a six-year-old friend of Simcox's daughters, spontaneously told her mother that, at Simcox's urging, she had shown him her underwear and vagina in exchange for a piece of candy. This exchange also took place in Simcox's kitchen. Simcox told E.M. not to tell her mother he gave her candy.
¶4 About a week after J.D.'s disclosure, Simcox's six-year-old daughter, Z.S., told a forensic interviewer that Simcox frequently penetrated her vagina with his finger, including in the shower and while she was sleeping. Z.S. said some of the assaults happened in the presence of her younger sister, who confirmed she saw Simcox touch Z.S.'s vagina.
¶5 In the course of investigating these incidents, the police discovered that in 1997, Simcox's now-adult daughter, L.R., reported to California police that Simcox had molested her when she was fourteen years old. On one occasion Simcox tried to molest her while she was asleep, but she awoke when he tried to move his hands under her shorts. On a second occasion, Simcox started giving L.R. a leg massage, but then placed his hand up her shorts and began rubbing her vagina. The investigation was later dropped when L.R. moved out of state to live with her mother and declined to participate further in the prosecution. When contacted by police in 2013, L.R. re-affirmed the allegations.
¶6 Ultimately, the State charged Simcox with two counts of molestation of a child (J.D.), one count of furnishing obscene materials to a minor (J.D.), and three counts of sexual conduct with a minor (Z.S.). Before trial, the State sought to admit evidence of Simcox's sexual conduct with E.M. and L.R. to demonstrate that he possessed "a character trait giving rise to an aberrant sexual propensity to commit the offense charged." Ariz. R. Evid. 404(c).
¶7 At the Rule 404(c) hearing, the State called only one witness, psychologist Steven Gray, Ph.D., who testified regarding a report he prepared. In this report, Dr. Gray summarized the allegations made by both the charged and uncharged victims and concluded Simcox's sexual conduct with E.M. and L.R. demonstrated he had a propensity to commit the charged offenses. In preparing the report, Dr. Gray reviewed the police reports detailing the forensic interviews with each victim. The State did not call L.R. or E.M. to testify at the hearing, but submitted recorded police interviews of both L.R. and E.M.
¶8 Simcox testified at the hearing and denied the allegations made by both E.M. and L.R. Simcox did not call any other witnesses but submitted a recorded interview with another friend of his daughters. In the interview, the girl said Simcox never abused her and she never saw Simcox abuse his daughters or their friends.
¶9 At the close of the hearing, the trial court advised it had reviewed all the submitted evidence, found L.R., E.M., and Dr. Gray to be more credible than Simcox, and then adopted the findings in Dr. Gray's report by reference. The court found the probative value of the Rule 404(c) evidence was not substantially outweighed by a danger of unfair prejudice and granted the State's motion to admit the evidence at trial. Simcox did not object to the findings at the hearing.
¶10 At trial, L.R., E.M., and E.M.'s mother testified about Simcox's sexual conduct with L.R. and E.M. Simcox did not object to their testimony, and the jury ultimately found Simcox guilty on the three counts related to J.D., but not guilty on the three counts related to Z.S. The trial court sentenced Simcox to two concurrent terms of seventeen years in prison for Counts One and Two, and a consecutive sentence of two and a half years in prison for Count Three. Simcox timely appealed, and this Court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
Absent material changes from the relevant date, we cite a statute's current version.
DISCUSSION
¶11 Simcox argues the trial court erred by admitting other-acts evidence without making a specific finding that it met the standards for admissibility under Arizona Rule of Evidence 404(c). Normally, we review evidentiary rulings for an abuse of discretion, deferring to the trial court's determination of relevance and unfair prejudice. State v. Smith, 215 Ariz. 221, 232, ¶ 48 (2007). Because Simcox failed to object below, we review only for fundamental error. See, e.g., State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (citing State v. Bible, 175 Ariz. 549, 572 (1993)). Under this standard of review, Simcox bears the burden to prove: (1) an error occurred, (2) the error was fundamental, and (3) the error prejudiced his case. Id. at 568, ¶¶ 23-24, 26 (citations omitted).
¶12 Rule 404(c) allows the admission of other-acts evidence, in criminal cases involving sexual offenses, "if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged." Before the trial court may admit evidence under Rule 404(c), it must make specific findings regarding three elements:
(A) The evidence is sufficient to permit the trier of fact to find that the defendant committed the other act.
(B) The 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 crime charged.
(C) The evidentiary value of proof of the other act is not substantially outweighed by danger of unfair prejudice, confusion of issues, or other factors mentioned in Rule 403 [related to relevance].Ariz. R. Evid. 404(c)(1)(A)-(C). As part of its analysis for element (C), a court is directed to consider several non-exclusive enumerated factors:
(i) remoteness of the other act;Ariz. R. Evid. 404(c)(1)(C). Finally, trial courts must "make specific findings with respect to each of (A), (B), and (C) of Rule 404(c)(1)." Ariz. R. Evid. 404(c)(1)(D).
(ii) similarity or dissimilarity of the other act;
(iii) the strength of the evidence that defendant committed the other act;
(iv) frequency of the other acts;
(v) surrounding circumstances;
(vi) relevant intervening events;
(vii) other similarities or differences;
(viii) other relevant factors.
¶13 Simcox concedes the trial court made sufficient findings for elements (A) and (B). Therefore, we consider only the sufficiency of the court's findings for element (C).
Simcox's opening brief references evidentiary rule sub-parts that do not exist within the rule, specifically, Rule 403(c)(A) and (B). However, the language of the opening brief tracks that of 404(c)(1)(A)-(B).
¶14 At the close of the Rule 404(c) hearing, the trial court stated:
With regard to the weighing of 403 factors, again, as I say I have adopted the findings in [Dr. Gray's report]. But I think that the probative value is not substantially outweighed by the danger of unfair prejudice. And one of the things I find in these hearings is we always forget to put the word "unfair" in. Everything the State does is designed to be prejudicial to the defendant, so it has to be unfairly prejudicial.
¶15 Dr. Gray's report contained a summary of the evidence for both the charged acts against J.D. and Z.S., and the uncharged acts against L.R. and E.M. The report concluded that the other-acts evidence — the uncharged acts — satisfied element (B), but the report made no findings as to elements (A) or (C). Instead, Dr. Gray reserved the making of findings on those two elements for "the trier of fact." Thus, when the trial court elected to simply adopt the report's findings by reference, it could only adopt a finding for element (B) — the only finding the report contained — leaving elements (A) and (C) unaddressed.
¶16 The State argues, unconvincingly, that the trial court was not required to make a specific finding for element (C). As support for this argument, the State cites several cases that evaluate the admission of evidence under Rules 403, 404(b), and 609(a). However, unlike Rule 404(c), none of these rules mandate specific findings regarding relevance. See Ariz. R. Evid. 404(c)(1)(D) ("The court shall make specific findings with respect to each of (A), (B), and (C) of Rule 404(c)(1)"). As our supreme court explained in Aguilar, the danger of unfair prejudice arising from evidence of other sexual conduct "is particularly great" because the evidence of other sexually abhorrent acts is more likely to lead the jury to punish a defendant on emotion rather than the facts of the case. State v. Aguilar, 209 Ariz. 40, 49, ¶ 31 (2004) (quoting 1A John Henry Wigmore, Evidence in Trials at Common Law § 62.3 (1983)). Thus, the specific finding requirement "helps focus the trial court's discretion so that only truly relevant other acts are admitted," and "enables an appellate court to effectively examine the basis for the trial judge's decision to admit other act evidence." Id.
¶17 In this case, the trial court did not explain how it conducted the balancing test required by element (C); it merely repeated the words of the rule in stating that the evidence was admissible. Cf. In re MH 2007-001236, 220 Ariz. 160, 169-70, ¶ 30 (App. 2008) (rejecting the "mere recitation" of the applicable standard as the basis for admissibility of evidence). Moreover, the findings adopted by the court did not include a conclusion as to element (C) and instead left the determination "to the trier of fact." Accordingly, the trial court erred in failing to make specific findings for element (C).
Simcox argues the trial court was required to make specific findings for each of the eight enumerated factors listed in element (C). We find no support for his argument in the language of Rule 404(c) or Aguilar. Rule 404(c) only requires the court to "consider" the non-exclusive enumerated factors listed in element (C). Moreover, in Aguilar, our supreme court directs only that a trial court do "something more than just repeat[] the language of the three elements of Rule 404(c)(1)(A) through (C)." 209 Ariz. at 50, ¶ 36. --------
¶18 Under fundamental error review, a finding of error does not compel reversal. Simcox must also show that the error was fundamental and that it caused resulting prejudice. Henderson, 210 Ariz. at 568, ¶¶ 24, 26. On this record, he can show neither.
¶19 Focusing on factors (i) and (ii) of element (C), Simcox argues the probative value of the acts against L.R. are outweighed by unfair prejudice because they were too remote in time and her age at the time of their occurrence was substantially distinct from the charged victims. But, Rule 404(c) "does not contemplate any bright line test of remoteness or similarity." Rule 404 cmt. to 1997 am. The record reflects the acts against J.D. and Z.S. were similar to the acts committed against E.M. and L.R. All the charged and uncharged victims were young girls whom Simcox knew personally. Simcox also held some position of authority over all of them, either as a parent or trusted adult responsible for their care and well-being while at his home, and all the alleged offenses involved contact or attempted contact with the victims' genitals. Additionally, Dr. Gray testified that people who molest victims age fourteen and younger share common traits, and the Simcox victims all fell within this range.
¶20 Accordingly, we have no difficulty concluding the record contains sufficient evidence to support the admission of the other-acts evidence. Because the trial court's error could be easily remedied with a more specific finding that the Rule 404(c) evidence was admissible, leading to the admission of the same evidence, Simcox cannot prove the error was fundamental.
¶21 Simcox also failed to prove any resulting prejudice from the error. Despite Simcox's conclusory assertions otherwise, the record demonstrates no prejudice to Simcox's case. The trial court gave the jury an appropriate Rule 404(c) final jury instruction advising the jury that it could not convict Simcox solely on the other-acts evidence, which we presume the jury followed. State v. Newell, 212 Ariz. 389, 403 (2006). And importantly, the jury ultimately acquitted Simcox on three of the six charged counts, strongly suggesting the guilty verdicts were not the result of "emotion, sympathy or horror." State v. Schurz, 176 Ariz. 46, 52 (1993); see also State v. Ortiz, 238 Ariz. 329, 336, ¶ 21 (App. 2015) (considering the defendant's acquittal of three of seven charged counts as an indication that objected-to evidence was not unfairly prejudicial). Accordingly, Simcox has not shown any resulting prejudice from the trial court's failure to make specific findings for element (C).
CONCLUSION
¶22 On this record, the trial court's failure to make specific Rule 404(c) findings was not fundamental, did not prejudice Simcox, and does not warrant reversal. Simcox's convictions and sentences are affirmed.