Opinion
No. 2 CA-CR 2014-0200
07-15-2015
THE STATE OF ARIZONA, Appellee, v. THOMAS YATES, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Amy M. Thorson, Assistant Attorney General, Tucson Counsel for Appellee Steven R. Sonenberg, Interim Pima County Public Defender By Katherine A. Estavillo, 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NOT FOR PUBLICATION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. CR20132921001
The Honorable Brenden J. Griffin, Judge The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee
Steven R. Sonenberg, Interim Pima County Public Defender
By Katherine A. Estavillo, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Vásquez and Judge Kelly concurred. HOWARD, 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 the supreme court.
¶1 Following a jury trial, appellant Thomas Yates was convicted of one count of sexual abuse. On appeal, Yates argues the trial court erred by allowing the state to introduce other-act evidence, contending the state's disclosure of that evidence was untimely, and, alternatively, it was improper propensity evidence, unfairly prejudicial, and not proven by clear and convincing evidence. Because we find no error, we affirm.
Factual and Procedural Background
¶2 We view the facts and all reasonable inferences in the light most favorable to sustaining the jury's verdict. State v. Almaguer, 232 Ariz. 190, ¶ 2, 303 P.3d 84, 86 (App. 2013). M.M. met Yates in 2012 while M.M. was working at "a gentlemen's club." M.M. suffered from chronic pain due to a back injury, and Yates offered to give her massages to relieve her pain. Yates came to M.M.'s home on four separate occasions to give her a massage. During these massages, M.M. wore only her bra and underwear, and covered herself with a towel.
¶3 When Yates arrived for the fourth massage, he offered M.M. some pills, which she did not take. M.M. fell asleep during the massage, and, when she awoke, felt Yates rubbing her vagina, first over her underwear, and then under her underwear. Yates "put his thumb in [her] mouth and told [her] to suck it." M.M. pushed Yates off of her and asked him to leave, which he did.
The pills were tested later and did not contain any traces of narcotics.
¶4 The state also presented testimony from J.H., the manager of a "gentlemen's club," and M.E., a dancer at that club. M.E. testified at trial that, approximately a year and a half before the incident with M.M., Yates had approached her at work and offered free massages and pills, and then offered to pay her to be his "sex slave." M.E. reported the incident to J.H., and Yates subsequently was banned from the club.
¶5 Yates was charged and convicted as noted above. The trial court sentenced him to an enhanced, presumptive prison term of 2.25 years. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
Disclosure of Prior Acts Evidence
¶6 Yates first argues the trial court erred in denying his motion in limine to preclude other-act evidence, presented through J.H.'s and M.E.'s testimony, because the state's disclosure of its intent to use the evidence was untimely. We review the denial of a motion in limine for an abuse of discretion. State v. Gamez, 227 Ariz. 445, ¶ 25, 258 P.3d 263, 267 (App. 2011). "An abuse of discretion includes an error of law." State v. Rubiano, 214 Ariz. 184, ¶ 5, 150 P.3d 271, 272 (App. 2007).
¶7 Pursuant to Rule 15.1(b)(1), (7) and (c), Ariz. R. Crim. P., the state must disclose the names of all witnesses it intends to call at trial, and "[a] list of all prior acts of the defendant which the prosecutor intends to use . . . at trial" no later than thirty days after arraignment. The purpose of Rule 15.1 "is to give 'full notification of each side's case-in-chief so as to avoid unnecessary delay and surprise at trial.'" State v. Martinez-Villareal, 145 Ariz. 441, 447, 702 P.2d 670, 676 (1985), quoting State v. Dodds, 112 Ariz. 100, 102, 537 P.2d 970, 972 (1975). When interpreting the rules, we avoid "hyper-technical" constructions "that would tend to frustrate" the drafters' intent. State v. Wood, 198 Ariz. 275, ¶ 7, 8 P.3d 1189, 1191 (App. 2000); see also State ex rel. Thomas v. Newell, 221 Ariz. 112, ¶ 7, 210 P.3d 1283, 1285 (App. 2009) (statutory construction principles apply to interpreting rules of procedure).
¶8 Here, the state filed its initial disclosure the same day Yates was arraigned in July 2013. That disclosure included a police detective's report describing his conversation with J.H. about the incident between Yates and M.E., the club's original incident report, and M.E.'s handwritten letter describing the incident written the day after it occurred. It did not specifically label that evidence as "prior act" evidence, but the disclosure did indicate the state would use any disclosed prior acts. M.E. and J.H. were identified specifically as witnesses when a witness list was disclosed a few months later.
¶9 Yates acknowledges that the state disclosed the evidence concerning M.E. in its initial disclosure. But he goes on to conclude summarily that "the State violated the disclosure deadline set forth in Rule 15.1(b)(7) by failing to file a timely notice of its intent to use such evidence at trial." It thus appears his argument is that the state was required to file a separate notice of its intent to use the other-act evidence at the same time it filed its initial disclosure, or otherwise explicitly identify the evidence as a "prior act."
¶10 Although Rule 15.1(b)(7) requires the state to provide "[a] list of all prior acts," the state's disclosure at the time of arraignment established it intended to introduce evidence of such an act. J.H.'s and M.E.'s statements involved an incident that had occurred over a year before the alleged sexual assault here and involved witnesses and locations that were not involved in the incident with M.M. in any way. The state's disclosure also indicated it would use any prior acts contained in the materials. Yates has not explained what the evidence concerning M.E. would have been, if not other-act evidence, or claimed that he was misled somehow. The initial disclosure thus clearly put Yates on notice that the state intended to use his encounter with M.E. as evidence against him. The purpose of Rule 15.1—"'to avoid unnecessary delay and surprise at trial'"—was satisfied. Martinez-Villareal, 145 Ariz. at 447, 702 P.2d at 676, quoting Dodds, 112 Ariz. at 102, 537 P.2d at 972; see also Wood, 198 Ariz. 275, ¶ 7, 8 P.3d at 1191. Even though a formal "list" was not included, the state did not violate Rule 15.1(b)(7). The trial court did not abuse its discretion in denying Yates's motion on the basis of untimely disclosure. See Gamez, 227 Ariz. 445, ¶ 25, 258 P.3d at 267.
Admissibility of Other Act Evidence
¶11 Yates next argues the trial court erred in admitting the evidence of Yates's encounter with M.E. because it was irrelevant and not offered for a proper purpose under Rule 404(b), Ariz. R. Evid. See Ariz. R. Evid. 401, 402. We review a trial court's ruling on the admission of evidence for an abuse of discretion, State v. Payne, 233 Ariz. 484, ¶ 56, 314 P.3d 1239, 1258 (2013), viewing "the evidence in the 'light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect.'" State v. Harrison, 195 Ariz. 28, ¶ 21, 985 P.2d 513, 518 (App. 1998), quoting State v. Castro, 163 Ariz. 465, 473, 788 P.2d 1216, 1224 (App. 1989).
¶12 Additionally, because Yates is appealing from the ruling made in response to his pre-trial motion in limine, we consider only the information he presented to the trial court when it made its decision. Cf. State v. Teagle, 217 Ariz. 17, ¶ 2, 170 P.3d 266, 269 (App. 2007) ("In reviewing a trial court's decision on a motion to suppress, we . . . consider only the evidence presented at the suppression hearing."). And although the court stated it could reconsider its ruling if Yates's "defense changes or the evidence doesn't turn out," Yates did not ask the court do so and did not object to this evidence during trial.
¶13 "Evidence is relevant if . . . it has any tendency to make a fact more or less probable than it would be without the evidence . . . [and] . . . the fact is of consequence in determining the action." Ariz. R. Evid. 401. "[E]vidence of prior acts may not be used to prove the defendant's propensity to commit the crime." State v. Van Adams, 194 Ariz. 408, ¶ 20, 984 P.2d 16, 23 (1999). Such evidence may be admissible, however, when used to prove, for example, the defendant's "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Ariz. R. Evid. 404(b); see also State v. Connor, 215 Ariz. 553, ¶ 32, 161 P.3d 596, 606 (App. 2007) (Rule 404(b) "[e]vidence relevant for any purpose other than showing propensities to act in a certain way remains admissible."). Evidence rebutting a defendant's theory of defense, corroborating the victim, and showing an absence of mistake may be admitted properly under Rule 404(b). See Connor, 215 Ariz. 553, ¶ 32, 161 P.3d at 606; see also State v. Fish, 222 Ariz. 109, ¶¶ 45, 47, 213 P.3d 258, 272-73 (App. 2009) (Rule 404(b) evidence may be admitted to corroborate a party's "version of the events"). Additionally, if the acts have similarities "'when normally there could be expected to be found differences,'" the evidence may be admissible to show a modus operandi demonstrating any contested element in the case, including intent and motive. State v. Huey, 145 Ariz. 59, 61-62, 699 P.2d 1290, 1292-93 (1985), quoting State v. Jackson, 124 Ariz. 202, 204, 603 P.2d 94, 96 (1979).
¶14 Before trial, Yates filed a notice of defense listing "lack of sexual interest" pursuant to A.R.S. § 13-1407(E). During the hearing on the motion in limine, Yates indicated he wanted to introduce evidence that he was impotent and lacked sexual drive. Yates also told the trial court his defense was that "it didn't happen the way that the victim claims it happened." Specifically, he claimed that M.M. lied about receiving pills from Yates and lied about the touching being nonconsensual "so her boyfriend wouldn't get mad."
¶15 The trial court characterized this as a "mistake, accident, misunderstanding-type defense," which Yates did not dispute. The trial court denied Yates's pre-trial motion, finding that testimony by M.E. and J.H. was relevant and admissible to show absence of mistake or accident, to corroborate M.M.'s testimony, and to rebut Yates's defense.
¶16 Based on the information provided to the trial court at the hearing, it reasonably could have concluded the evidence was relevant and admissible. First, the incidents with M.E. and M.M. were sufficiently similar to show a modus operandi that Yates initiated relationships with women while they worked at "gentlemen's clubs" by offering them pills and massages, without any pretense of sexual desire, but later expressed an interest in a sexual relationship. This evidence demonstrated intent and motive, which Yates put at issue, directly contradicting his defenses of "lack of sexual interest" pursuant to A.R.S. § 13-1407(E), impotence and lack of sexual drive. The evidence also corroborated M.M.'s testimony about how her relationship with Yates began and developed and her account that Yates offered her pills, which Yates directly challenged. Consequently, viewing the facts in the light most favorable to the state, see Harrison, 195 Ariz. 28, ¶ 21, 985 P.2d at 518, we cannot say the trial court abused its discretion in finding the testimony relevant and admissible for a proper purpose. See Payne, 233 Ariz. 484, ¶ 56, 314 P.3d at 1258; see also Ariz. R. Evid. 401, 404(b); Connor, 215 Ariz. 553, ¶ 32, 161 P.3d at 606.
At trial, Yates did not introduce evidence that he was impotent and lacked sexual drive. He instead focused on suggesting that M.M. "claim[ed] she was assaulted" to avoid upsetting her boyfriend who walked in the room while she and Yates were "engaged in something consensual," or, alternatively, that the touching did not occur at all or that M.M. "was confused in her thigh rub." However, as discussed above, we consider only the information before the trial court at the time it made its ruling. Cf. Teagle, 217 Ariz. 17, ¶ 2, 170 P.3d at 269.
¶17 Yates argues, however, that the trial court erred by "conflating relevance to a proper purpose with relevance to combat the defense's theory." He does not, however, cite to any case law or other legal authority to support his claim that Rule 404(b) evidence is not admissible to rebut a defendant's theory of defense—nor can he. Our case law has stated clearly that rebutting the defense's theory of the case is a proper purpose under Rule 404(b). See State v. Hardy, 230 Ariz. 281, ¶¶ 37, 39, 283 P.3d 12, 20-21 (2012) (other act evidence that defendant hit victim one or two days before murder was admissible to prove motive and intent and rebut a theory of the defense); see also State v. VanWinkle, 230 Ariz. 387, ¶¶ 20, 22, 285 P.3d 308, 313-14 (2012) (other act evidence that defendant initiated "unprovoked violent attacks" admissible to rebut defendant's self-defense claim); State v. Mills, 196 Ariz. 269, ¶ 26, 995 P.2d 705, 711 (App. 1999) (other act evidence that defendant previously cut victim's brake lines admissible to rebut defense theory that he "'loved'" victim and would not hurt her). This argument therefore fails.
¶18 Yates next appears to argue the trial court erred by failing to conduct an evidentiary hearing to determine if the state had proven by clear and convincing evidence that the incident occurred. See State v. Terrazas, 189 Ariz. 580, 584, 944 P.2d 1194, 1198 (1997) (clear and convincing standard of proof for admission of other act evidence under Rule 404(b)). However, a court is not required to conduct an evidentiary hearing under Rule 404(b). State v. LeBrun, 222 Ariz. 183, ¶ 10, 213 P.3d 332, 335 (App. 2009). The court stated it had reviewed M.E.'s written statement, a transcript of her recorded statement, "as well as what [the] State has represented her manager is going to speak to," and concluded an evidentiary hearing was not necessary and the state had met its burden. This information included the fact that M.E. did not say "anything about pills" in her second statement, which Yates contended went to her credibility. Yates did not present or allude to any contradictory evidence. The court thus had sufficient information to find the state had shown, by clear and convincing evidence, that the other act occurred. See id. ¶¶ 15-16 (trial court did not need evidentiary hearing to conclude by clear and convincing evidence that other acts occurred after hearing "victims' own statements and first-person accounts of what they observed" and allowing defense opportunity to present evidence disputing victims' accounts). Accordingly, we reject this argument.
Yates asserts the trial court showed a "misunderstanding of the law" when it stated that the inconsistencies in M.E.'s statements "go[] to impeaching her and . . . the weight of her evidence, not necessarily whether it's admissible." But a trial court is not required to hold an evidentiary hearing to evaluate credibility when determining if Rule 404(b) evidence is admissible. See LeBrun, 222 Ariz. 183, ¶ 16, 213 P.3d at 337. And "[t]he credibility of witnesses and the weight given to their testimony are issues for the jury, not the court." State v. Bustamante, 229 Ariz. 256, ¶ 5, 274 P.3d 526, 528 (App. 2012); see also State v. Lehr, 201 Ariz. 509, ¶ 29, 38 P.3d 1172, 1180 (2002) ("'[a]dmissibility is for determination by the judge unassisted by the jury. Credibility and weight are for determination by the jury unassisted by the judge'"), quoting State v. Sanchez, 400 S.E.2d 421, 424 (N.C. 1991) (alterations in Lehr). The trial court was thus correct and this contention fails.
¶19 Yates further contends that the testimony was unfairly prejudicial, and thus inadmissible pursuant to Rule 403, Ariz. R. Evid., because it portrayed him as a "creepy pervert" and because "[s]tatements about sexual slavery evoke emotions of disgust." Even if relevant and admissible, other-act evidence must undergo a Rule 403 analysis. Terrazas, 189 Ariz. at 583, 944 P.2d at 1197; Rule 403, Ariz. R. Evid. Because "[t]he trial court is in the best position to balance the probative value of challenged evidence against its potential for unfair prejudice . . . it has broad discretion in deciding the admissibility" of the evidence. Harrison, 195 Ariz. 28, ¶ 21, 985 P.2d at 518.
¶20 M.E.'s and J.H.'s testimony likely was harmful and prejudicial, "[b]ut not all harmful evidence is unfairly prejudicial. After all, evidence which is relevant and material will generally be adverse to the opponent." State v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993). "Unfair prejudice results if 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, 931 P.2d 1046, 1055 (1997).
¶21 In this case the trial court found that "there [was not] any unfair prejudice that substantially outweigh[ed]" the probative value of the evidence. As discussed above, the evidence had probative value by corroborating M.M.'s testimony, and rebutting Yates's claim that he did not have any sexual motivation, was impotent, and lacked sexual drive. Additionally, this was a sexual abuse case, the jury was told that M.M. and Yates met at the "gentlemen's club" where M.M. worked, and Yates contended, in part, that he and M.M. did touch in a sexual manner, albeit consensually. In this context, M.E.'s testimony that Yates propositioned her was not inflammatory and did not have an "undue tendency to suggest decision on an improper basis, such as emotion, sympathy, or horror." Mott, 187 Ariz. at 545, 931 P.2d at 1055. We therefore cannot say the court abused its broad discretion in concluding that the probative value of the evidence was not "substantially outweighed by a danger of . . . unfair prejudice." Ariz. R. Evid. 403; see also Harrison, 195 Ariz. 28, ¶ 21, 985 P.2d at 518.
Yates contends the trial court's conclusion was flawed because the court did not acknowledge that "some prejudice" existed. But "[p]rejudice . . . is not the basis for exclusion under Rule 403." Schurz, 176 Ariz. at 52, 859 P.2d at 162. Rule 403 requires the evidence to be "unfairly prejudicial," id., which was the standard used by the court. Yates's contention is thus without merit. --------
¶22 Yates additionally argues the trial court erred in instructing the jury to consider the other-act evidence only "to establish the defendant's motive, intent, plan, knowledge, identity, absence of mistake or accident." Yates did not object to the limiting instruction below, however, and therefore has forfeited review for all but fundamental, prejudicial error. See State v. Moody, 208 Ariz. 424, ¶ 189, 94 P.3d 1119, 1161 (2004); see also State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). But because Yates has failed to argue that fundamental error occurred, he has waived review of this issue. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008).
Disposition
¶23 For the foregoing reasons, we affirm Yates's conviction and sentence.