Opinion
No. 2 CA-CR 2017-0286
05-22-2019
THE STATE OF ARIZONA, Appellee, v. ORESTES ROBERTO YBARRA, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee Scott A. Martin, 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NOT FOR PUBLICATION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. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20154650001
The Honorable Casey F. McGinley, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Karen Moody, Assistant Attorney General, Tucson
Counsel for Appellee Scott A. Martin, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Vásquez and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Orestes Ybarra appeals from his convictions and sentences for two counts of sexual assault, arguing the trial court erred in precluding evidence that he was acquitted of two charges at his first trial, denying his challenge to the jury composition pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), denying him the right to counsel of his choice, and precluding evidence that the victim had previously been a victim of an unrelated incident of sexual misconduct. For the reasons that follow, we affirm Ybarra's convictions and sentences.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all inferences against Ybarra. See State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015). In May 2015, M.B., then fifteen years old, was a patient at a physical therapy clinic. The clinic employed Ybarra as an assistant; his duties included housekeeping, checking in patients, setting up exercise machines, scheduling appointments, processing insurance and payments, and reviewing exercises with patients. Ybarra had keys to the clinic but was not permitted to work with patients without a physical therapist present on site and was not allowed to massage patients.
¶3 During previous appointments, Ybarra had assisted M.B. by retrieving weights for her and telling her how to perform exercises while her physical therapist assisted other patients. At M.B.'s last appointment before the incident, Ybarra asked M.B. for her phone number in order to schedule her next appointment, which he scheduled for the following Saturday morning. Unbeknownst to M.B., the clinic was not open on Saturdays; nor did Ybarra tell her a physical therapist would not be present.
¶4 M.B.'s father dropped her off at the clinic for the Saturday appointment. No one else was present at the clinic, and Ybarra told M.B. that he was the only person working that day and that he had three other patients scheduled for appointments. M.B. did not know Ybarra's title at the clinic or the scope of what he was permitted to do. As M.B. performed her normal physical therapy routine on a treadmill, Ybarra stood in front of the treadmill and said he wanted to take her clothes shopping at her favorite stores for her birthday. M.B. declined. Ybarra then told M.B. that her physical therapist wanted him to perform a flexibility test on her—a test that her physical therapist had never done. Ybarra instructed M.B. to lie on her back on a table, he lifted her legs, and M.B. said her buttocks and thighs were sore. Ybarra then offered a deep tissue massage and M.B. agreed. She had never received a deep tissue massage in physical therapy and did not know Ybarra was not permitted to massage patients.
¶5 Ybarra directed M.B. to a room in the back of the clinic and instructed her to remove her shorts and lie face-down on the massage table. He then entered the room with a bolster cushion and massage cream, placed the cushion under M.B.'s hips, removed her underwear, and put the cream on his hands. Ybarra rubbed M.B.'s buttocks, thighs, and vulva while telling her about musculature, and at some point told her "[e]very girl wants a sugar daddy." M.B. thought this was "weird" and planned to ask to use the restroom so she could collect her belongings and leave. Before she could get up and leave, Ybarra told her that something on the side of her leg connected to her anus and then she felt a finger penetrate her anus multiple times. Ybarra then got on top of her on the table, told her "this one is going to hurt," and penetrated her anus with something "that didn't feel like a finger." M.B. could not see what Ybarra used to penetrate her. But she immediately told him to get off of her, and, when she got up from the table, Ybarra's zipper was down and she saw the tip of his penis.
¶6 M.B. collected her belongings in order to leave, but Ybarra blocked the exit, saying he could explain. When he finally moved out of the way, M.B. left the room, dressed, retrieved her phone from another part of the clinic, and fled. She ran towards her house while attempting to call her parents on the phone, and when her dad met her on the street, she called 9-1-1. Police officers responded and M.B. was interviewed at the Children's Advocacy Center, where she also underwent a sexual assault examination and DNA samples were collected. M.B. told the forensic nurse who examined her and took the samples that Ybarra "started rubbing my private part from the back to the front and kept telling me to spread my legs." Ybarra's DNA was present on the exterior anal swab collected from M.B. and Ybarra was charged with two counts of sexual assault for penetrating M.B.'s anus, one count of sexual abuse for rubbing her vulva, and one count of indecent exposure.
¶7 At his first trial, Ybarra testified that at the Saturday appointment, M.B. complained of pain in her buttocks, so Ybarra "suggested a soft tissue massage on her butt," even though he knew he was never allowed to be alone with patients. He also testified that he told M.B. to go into the back room and remove her shorts and that he did massage her buttocks. The jury found Ybarra not guilty of sexual abuse and indecent exposure, but could not reach a verdict on the two sexual assault counts.
¶8 At his second trial for the two remaining sexual assault counts, Ybarra did not testify, but portions of his testimony from the first trial were read to the jury. That jury found Ybarra guilty of both counts of sexual assault and the trial court sentenced him to a twenty-one year prison term. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
Preclusion of Acquittals from First Trial
¶9 On appeal, Ybarra argues the trial court erred in denying his request to inform the jury that his first trial ended with his acquittal of one count of sexual abuse and one count of indecent exposure. We review the preclusion of evidence for an abuse of discretion. State v. Yonkman, 233 Ariz. 369, ¶ 17 (App. 2013).
¶10 Before trial, Ybarra moved to introduce evidence of his acquittals at the first trial if "evidence relating to the acquitted counts of sexual abuse and indecent exposure is introduced." At the hearing on his motion, Ybarra asserted that "it's inevitable that there's going to be testimony elicited from the prior trial in this case." He argued that if evidence related to the sexual abuse and indecent exposure counts was introduced, the jury would assume there had been a previous trial and, therefore, he was entitled to tell the jury he had been acquitted, or else jurors might think he had been convicted or that the previous jury had not reached a verdict on those counts. The state countered that the evidence relating to sexual abuse and indecent exposure was "intrinsic to the sexual assault charge whether or not [Ybarra] was acquitted previously." The state also suggested that any testimony from the prior trial be referred to either as "prior testimony" or being from a "prior hearing" to avoid leading the jury to assume there had been a prior trial. The court denied Ybarra's motion, noting "it is relatively common" in mistrials and retrials, where the jury is exposed to transcripts from a previous trial, to tell the jury the transcripts are from a prior hearing. The court further explained that "to try to explain to the jury the legal difference between someone being acquitted but it still being evidence against him, confuses the jury, takes their eye off what they're asked [to do] in this case and would be inappropriate."
¶11 The first reference to prior testimony occurred when Ybarra's counsel asked a detective during cross-examination whether he remembered "providing testimony at a prior time in this case" and if that testimony was given under oath. Later, the state asked one of its witnesses if he had seen Ybarra since the day of the offense, and the witness answered, "[o]nce in this courtroom before" and the trial court "instructed the witness to describe the prior event in court as a hearing." Another detective read portions of Ybarra's testimony from the first trial to the jury; the state then asked the detective whether he had been present when Ybarra made those statements "under oath," but did not say the statements were from a prior trial. After the state rested, Ybarra again requested that the jury be informed of his previous acquittals, citing Yonkman, and the court denied his motion.
¶12 In Yonkman, we concluded that "'where the jury has heard details of prior trials or criminal investigations such that the jury may speculate that the defendant has been tried and convicted of these prior acts,' the lack of an acquittal instruction creates a pronounced risk of juror confusion adverse to the defendant." 233 Ariz. 369, ¶ 21 (quoting Kinney v. People, 187 P.3d 548, 557 (Colo. 2008)). There, the trial court attempted to prevent the jury from learning of a prior trial by prohibiting the mention of "trial" or "arrest," and yet, the jury learned the defendant had previously been reported to the police, that police took statements from the defendant's other two victims, that a children's advocacy worker interviewed those other victims, the parties referred to the other victims coming "down here" to "Court" to provide testimony, and one of the victims violated the court's restriction by referring to an incident that occurred "after the court trial." Id. ¶ 22. We found that "common sense and natural inferences would lead anyone to conclude there had been an earlier trial" and, therefore, the court's ruling "served only to confuse the jury about the former proceedings and to cause speculation about the outcome of the prior trial, to [the defendant's] detriment." Id. We also noted that "[a]ny evidence of acquittal, of course, still must be admitted properly under Rules 401 and 403[, Ariz. R. Evid.]." Id. ¶ 21.
¶13 Ybarra maintains his case is "functionally identical to Yonkman" because the state was allowed to introduce police reports, witness statements, a Children's Advocacy Center exam, vaginal swabs taken from M.B., DNA testing of those swabs, and statements made by Ybarra under oath in the same courtroom. He asserts that because of this evidence, "[t]he jury could only have concluded that Ybarra had been found guilty of fondling M.B.'s vagina and exposing his penis to her, or that he had not been prosecuted for those acts" and that "[t]he one alternative the jury would not have considered due to the trial court's ruling was that Ybarra had been tried for and acquitted of those counts." He further argues this error was not harmless because if the jury had known he had been acquitted, it would have affected the verdict on the remaining sexual assault counts. Lastly, Ybarra asserts that precluding evidence of his acquittals denied him his Sixth Amendment right to confront and cross-examine his accuser.
¶14 The state argues Yonkman is distinguishable because, in this instance, the jury did not hear details that would lead it to speculate Ybarra had been tried and convicted of rubbing M.B.'s vulva and exposing himself to her. Specifically, the state argues there was no indication of a previous trial because, unlike Yonkman, where multiple victim-witnesses made separate allegations that occurred at separate times, here, all of the alleged offenses were committed against the same victim and occurred in the same course of events. The state further contends the acquittals are irrelevant because "they only show the State failed to prove every element of the other offenses beyond a reasonable doubt—not that Ybarra was indeed innocent." Thus, the state argues, informing the jury of Ybarra's acquittals would confuse the jury and that if there was error, it was harmless because of the "overwhelming" evidence against Ybarra on the sexual assault counts, including his DNA being found on a swab taken from M.B.'s anus.
¶15 Rules 401 and 403 govern the admissibility of evidence of acquittals. See Yonkman, 233 Ariz. 369, ¶ 21. Evidence is relevant and admissible 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; see also Ariz. R. Evid. 402. Although generally admissible, relevant evidence may be excluded "if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury." Ariz. R. Evid. 403. And, "when evidence of acquitted conduct is presented, the fact of the acquittal often becomes admissible under these rules." Yonkman, 233 Ariz. 369, ¶ 21.
¶16 Unlike the jury in Yonkman, however, the jury in this case did not hear details of Ybarra's prior trial or criminal investigations that would lead it to speculate he had been tried and convicted of prior acts. Although the jury heard testimony from the prior trial, at the trial court's direction, such testimony was referred to as "previous testimony" or as being from a "prior hearing." Also unlike Yonkman, the alleged offenses here all occurred within the same course of events and involved the same victim-witness, M.B. Therefore, we conclude the jury did not hear details that would lead it to conclude Ybarra had been previously tried for sexual abuse and indecent exposure.
The state also argues Yonkman was wrongly decided. Because Yonkman is distinguishable, we need not reach that issue.
¶17 Further, even if Ybarra's acquittals were relevant, they were properly excluded under Rule 403. As noted by the trial court, informing the jury that Ybarra was acquitted of sexual abuse and indecent exposure would have confused the jury and would have prejudiced the state's case. The court stated: "The prejudice to the State's case is somehow the jury would put weight in the previous jury's finding which it's not permitted to do. That's unfair and extreme." The court did not abuse its discretion in precluding evidence of Ybarra's acquittals. See State v. Bocharski, 200 Ariz. 50, ¶ 21 (2001) (we will not disturb trial court's Rule 403 determination absent clear abuse of discretion). Ybarra's Batson Challenge
Ybarra also argues on appeal that the trial court's preclusion of his acquittals violated his Sixth Amendment right to confront and cross-examine his accuser. He did not raise this argument below; therefore, we review only for fundamental error. See State v. Bible, 175 Ariz. 549, 572 (1993) (principle that, absent fundamental error, party cannot raise argument on appeal without proper objection below applies to constitutional error). And, because he does not argue on appeal that the error is fundamental, the argument is waived. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008) (argument waived where defendant does not argue unpreserved error was fundamental).
¶18 Ybarra argues the trial court erred in denying his challenge of the state's peremptory strike of an African-American venireperson, pursuant to Batson v. Kentucky, 476 U.S. 79 (1986). "A denial of a Batson challenge will not be reversed unless clearly erroneous." State v. Newell, 212 Ariz. 389, ¶ 52 (2006).
¶19 During voir dire, the trial court asked whether any prospective juror had a family member or close friend who had been involved in a similar case. One of the venirepersons, A.P., answered that her uncle had been convicted of a sex-related crime when she was young, but that she did not know much about the case, and that she could be fair. Later, the following exchange occurred:
THE COURT: How many of you are guilty like me of watching shows like CSI, Law & Order, Psych, The Practice?
Some of you are very proud to raise your hand; okay? 90 percent of you. [A.P.], I'm going to pick on you a little bit because you raised your hand very quickly.
[A.P.]: Oh, yes.
THE COURT: Do you think those shows are real?
[A.P.]: Absolutely.
THE COURT: You do?
[A.P.]: Well, some of them, you never know. I just watch them.
THE COURT: Do you think they're more entertainment or they're more accurate?
[A.P.]: It depends. I can't really state that.
THE COURT: Okay. It depends on the show you're watching and what they show you; right?
[A.P.]: Yeah, could be.
. . . .
THE COURT: . . . [I]t's more important that you pay attention to what's going on in the courtroom. Is there anybody that's going to have a problem doing that, if it doesn't live up to your TV expectations it would be difficult for you?
Sometimes people do. I don't think—The state exercised one of its peremptory strikes on A.P., who was the only African-American venireperson, and Ybarra raised a Batson challenge.
[A.P.], you don't fall into that category; do you?
[A.P.]: No.
¶20 The state argued its primary reason for excusing A.P. was because she indicated that she thought some of the fictional TV shows listed by the court were real. The state further explained it was concerned that A.P.'s body language suggested she did not understand some of the questions being asked of her, and was concerned about her uncle having been convicted of molestation. Ybarra countered that A.P. said she knew the difference between real life and TV, and identified three other "similarly situated young women" who had been left on the panel and who were not African-American. The court ruled:
First, at the outset, the Court does not necessarily believe that a prima facie showing has been made.
Batson says that the Court must find that the defendant is a member of a cognizable racial group and that the prosecution has acted in such a way to eliminate from the jury [venire] members of that group. The defendant is not African-American to the Court's understanding.
That being said, even if it was a prima facie showing, the fact of the matter is [the state] has offered not one but three separate race [neutral] reasons, and the Court's recollection of [A.P.'s] answer on the first was she was enthusiastic at her belief that the shows could be real, much more so than the other jurors.
While she did admit that there are things that were entertainment value and things that were real, she—that was a legitimate understanding of how [the state] understood her answers to the Court's questions.
It is race neutral, and there is no question about that as are the other two reasons. Therefore, even if it were a prima facie showing, [the state] having given sufficient race neutral reasons for her strike, the Batson challenge is respectfully denied.
¶21 "The exclusion of a potential juror on the basis of race violates the Equal Protection Clause of the Fourteenth Amendment." State v. Garcia, 224 Ariz. 1, ¶ 21 (2010) (citing Batson, 476 U.S. at 89). Batson challenges are subject to a three-step analysis:
First, the defendant must make a prima facie showing that the strike was racially discriminatory. If such a showing is made, the burden then switches to the prosecutor to give a race-neutral explanation for the strike. Finally, if the prosecution offers a facially neutral basis for the strike, the trial court must determine whether "the defendant has established purposeful discrimination."Newell, 212 Ariz. 389, ¶ 53 (quoting Batson, 476 U.S. at 98). "The first step of the Batson analysis is complete when the trial court requests an explanation for the peremptory strike." Id. ¶ 54. In the second step, unless a discriminatory intent is "inherent" in the state's explanation, the explanation is facially valid. Id. Thus, "the explanation need not be 'persuasive, or even plausible'" and the persuasiveness of the state's explanation is not relevant until the third step. Id. (quoting Purkett v. Elem, 514 U.S. 765, 767-68 (1995)). "[T]he question presented at the third stage of the Batson inquiry is 'whether the defendant has shown purposeful discrimination.'" Snyder v. Louisiana, 552 U.S. 472, 484-85 (2008) (quoting Miller-El v. Dretke, 545 U.S. 231, 277 (2005)). "In determining whether the defendant has proven purposeful discrimination, 'implausible or fantastic justifications may (and probably will) be found to be pretext[ual].'" Newell, 212 Ariz. 389, ¶ 54 (alteration in Newell) (quoting Purkett, 514 U.S. at 768). This third step "turns on factual determinations, and, 'in the absence of exceptional circumstances,' we defer to [trial] court factual findings unless we conclude that they are clearly erroneous." Foster v. Chatman, 136 S. Ct. 1737, 1747 (2016) (quoting Snyder, 552 U.S. at 477); see also Newell, 212 Ariz. 389, ¶ 54.
¶22 Ybarra maintains his challenge on appeal and argues the trial court erred by not completing the three-step analysis set out in Newell, 212 Ariz. 389. Specifically, he asserts he made a prima facie showing of discrimination and "by asking for the State's response, the trial court implicitly found the requisite prima facie showing had been made." He concedes the state provided a race-neutral explanation for the strike, but contends the court erred when it "stopped there" and "failed to even reach, much less resolve, the third step." Ybarra asserts the third step "requires the most detailed analysis" and, therefore, the court needed to "conduct sensitive, fact-based evaluations of the prosecutor's demeanor and the prosecutor's intent, including by looking into whether the proffered explanations are consistent with accepted trial strategy, as well as evaluating the potential jurors' demeanor and credibility." And, Ybarra asserts his case is similar to Snyder, 552 U.S. 472, because "the trial court merely accepted the State's proffered race-neutral reasons as dispositive [and] did not make any significant findings as to intent, demeanor, or credibility" and did not address Ybarra's argument that other similarly situated non-African-American venirepersons were not struck.
Ybarra also argues the trial court erred when it said it "d[id] not necessarily believe that a prima facie showing ha[d] been made" because A.P. was African-American and Ybarra is not. As noted by Ybarra and the state, the state "may not use peremptory challenges to discriminate against any cognizable group, whether or not the defendant is a member of that group." State v. Reyes, 163 Ariz. 488, 490 (App. 1989); see also Powers v. Ohio, 499 U.S. 400, 416 (1991). However, because the court requested an explanation from the state, the first step of the Batson analysis was nonetheless complete and any error in that regard was harmless. See Newell, 212 Ariz. 389, ¶ 54. --------
¶23 The state relies on State v. Prasertphong, 206 Ariz. 70 (2003), vacated in part on other grounds, 541 U.S. 1039 (2004), and State v. Canez, 202 Ariz. 133 (2002), abrogated on other grounds by State v. Valenzuela, 239 Ariz. 299 (2016), to support its argument that our supreme court "has repeatedly held that it was sufficient for a trial court to deny a Batson challenge without more analysis" at the third step. Therefore, according to the state, "the lack of further analysis was not error." In his reply, Ybarra counters that Prasertphong and Canez predate "further evolution of the Batson paradigm" and "simply do not meet the modern Batson standard."
¶24 Here, the trial court requested an explanation for the peremptory strike, thus completing the first step of its Batson analysis. The state satisfied the second step when it provided three racially neutral reasons: (1) when the court asked about legal and crime TV shows, A.P. said she thought some of the shows were accurate, so the state was concerned that might affect her perception of what she sees at trial; (2) the state believed A.P.'s body language indicated that she "didn't seem to understand some of the things that [they] were asking [of] her"; and (3) A.P. said she had an uncle who had been convicted of molestation. Thus, the question on appeal is whether the court clearly erred by failing to make specific findings when it determined Ybarra had not shown purposeful discrimination.
¶25 As noted by the state, our supreme court has upheld a trial court's implicit finding of a defendant's failure to prove purposeful discrimination in the state's peremptory strike. See Prasertphong, 206 Ariz. 70, ¶ 64; Canez, 202 Ariz. 133, ¶ 28. And, while Prasertphong and Canez predate Snyder, 552 U.S. 472, and Foster, 136 S. Ct. 1737, both Snyder and Foster recognized that the third step in the Batson analysis "turns on factual determinations, and, 'in the absence of exceptional circumstances,' we defer to state court factual findings unless we conclude that they are clearly erroneous." Foster, 136 S. Ct. at 1747 (quoting Snyder, 552 U.S. at 477). Further, neither case requires a court to make explicit findings as to intent, demeanor, or credibility in the third step.
¶26 Although the trial court did not expressly state whether Ybarra proved purposeful discrimination, it did say the state's race-neutral explanations were "sufficient." Indeed, one of the three race-neutral explanations was based on A.P.'s answers to questions asked by the court itself; thus, the court had the opportunity to consider A.P.'s demeanor and credibility, as well as that of the prosecutor. Although the court did not make specific factual findings about the intent, demeanor, or credibility of A.P. or the prosecutor, the record supports the court's implicit finding that the state was not purposefully discriminating against A.P. when it exercised one of its peremptory strikes. See Snyder, 552 U.S. at 483 ("[A] retrospective comparison of jurors based on a cold appellate record may be very misleading when alleged similiarities were not raised at trial."); see also Canez, 202 Ariz. 133, ¶ 28 ("We give great deference to the trial court's ruling, based, as it is, largely upon an assessment of the prosecutor's credibility."). Thus, we find no error, much less the clear error required to disturb the court's ruling. See Newell, 212 Ariz. 389, ¶ 52.
Change of Counsel
¶27 Ybarra argues the trial court deprived him of his Sixth Amendment right to counsel by striking an order to substitute appointed counsel with retained counsel of his choice. We review a court's ruling on the withdrawal and substitution of counsel for an abuse of discretion. Cf. State v. Coven, 236 Ariz. 393, ¶ 4 (App. 2015). The erroneous deprivation of a defendant's counsel of choice is structural error, United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006), and we review Sixth Amendment claims regarding a defendant's right to counsel de novo, State v. Aragon, 221 Ariz. 88, ¶ 4 (App. 2009).
¶28 When Ybarra was arraigned, the trial court appointed counsel. A jury trial was initially set for October 25, 2016, and then reset to January 17, 2017, after appointed counsel moved to continue the trial due to a scheduling conflict. On December 29, 2016, Erin Carrillo submitted a stipulation to substitute as Ybarra's retained counsel.
¶29 On January 2, a trial court judge who was covering for Judge McGinley over the holidays granted the stipulation for substitution of counsel. The following day, Carrillo moved to continue the trial because she needed more time to prepare and going to trial on January 17 would render her ineffective in violation of Ybarra's due process rights. She did not specify how much time she needed. The state objected and argued that Carrillo had not complied with Rule 6.3(c), Ariz. R. Crim. P., because she did not avow she would be prepared for trial on January 17 and, therefore, the court should rescind the substitution order. M.B. also objected, invoking her right to a speedy trial or disposition under Rule 39(b)(17), Ariz. R. Crim. P., and article II, § 2.1 of the Arizona Constitution. At the January 11 hearing on the motion to continue, Carrillo represented Ybarra and invoked his Sixth Amendment right to counsel and conceded that she did not avow in her stipulation to substitute that she would be prepared for trial on January 17 in accordance with Rule 6.3(c).
¶30 Judge McGinley explained that "Rule 6 is clear" that a substituting attorney must avow that he or she is aware of the trial date and is ready to proceed on that date. The court also noted that the order granting the substitution was signed by a judge who was covering in his absence, and that he would not have granted the substitution. The court ruled:
[T]he Court having considered all the relevant factors, as outlined in Aragon and also having
considered the scheduling, the views of the victim, the schedule for trial, and length of continuance of being necessary in order for new counsel to come up and the [e]ffect that that could have on the listed victim, as well as the parties that are involved in the case, the Court believes that the motion to continue jury trial is rightfully denied.The court then struck the order substituting appointed counsel with retained counsel and ordered a status conference with appointed counsel the following day.
Extraordinary circumstances do not exist. The delay is not indispensable in the interest of justice. It's ordered that the motion to continue jury trial is respectfully denied.
¶31 At the status conference, appointed counsel informed the trial court that going to trial on January 17 was "a virtual impossibility" because he needed to retain a DNA expert and would need to reassign Ybarra's case to another public defender in his office because his relationship with Ybarra had become "strained to the point where it's no longer workable." Appointed counsel noted that Ybarra was seeking a six-month continuance, but also stated that "two to three months would be sufficient" to prepare for trial. Recognizing that "there's absolutely no way that the Court can proceed on the 17th as scheduled and expect that . . . Ybarra will receive the counsel that he's deserving of," the court explained to Ybarra that:
[I]f Ms. Carrillo wants to come back into the case, she will have to file a pleading that complies with Rule 6, which includes that she will be ready to go on the trial date that we're about to pick, because this Court is not—and I need to make it clear to you, Mr. Ybarra, I know that some comments that were made yesterday might have made you feel otherwise, but I want you to be clear. If you have—you have the absolute right to pick counsel if you are able to afford them, but if they're appointed for you, you've got to stay with the counsel that's appointed to you unless some other ethical reason arises.
. . . If you want to go hi[re] somebody else, that's your right; however, I'm not—I need to make this clear. If you want to go hi[re] somebody else, that's fine, it's your right, but the date we're about to pick is the date we're going to go to trial. So the first conversation you have with them is the fact that this trial date is set, it will occur on this trial date, and that they will be ready for that. And if they cannot promise you that, they will not be under the ethical or other rules permitted to file a pleading to try to get into your case.The court continued the trial to April 4 and appointed a new public defender, who represented Ybarra at trial.
And if Ms. Carrillo thinks she can do that, fine, but if Ms. Carrillo signs on and says she's going to be ready to proceed, this Court will in all likelihood not accept a motion to continue on the eve of trial or any[thing] otherwise that says because she is not prepared she cannot go.
¶32 "[A]n indigent criminal defendant possesses rights under the Sixth Amendment [of the United States Constitution] and Article 2, Section 24 [of the Arizona Constitution], to choose representation by non-publicly funded private counsel . . . ." Aragon, 221 Ariz. 88, ¶ 4 (alterations in Aragon) (quoting Robinson v. Hotham, 211 Ariz. 165, ¶ 16 (App. 2005)); see also Gonzalez-Lopez, 548 U.S. at 144. This right, however "is not absolute, but is subject to the requirements of sound judicial administration." State v. Hein, 138 Ariz. 360, 369 (1983). Thus, trial courts must balance and weigh the defendant's right to counsel of choice against the need for efficient and effective administration of justice. Id. at 368. And, "[a] trial court has 'wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar.'" Aragon, 221 Ariz. 88, ¶ 5 (quoting Gonzalez-Lopez, 548 U.S. at 152).
¶33 Rule 6.3(c)(2), Ariz. R. Crim. P., provides:
If the Case Is Set for Trial. After a case is set for trial, the court may not permit counsel to
withdraw unless counsel files a motion that provides:Thus, ordinarily, counsel may not be substituted unless the new counsel not only acknowledges the trial date set, but also avows he or she will be prepared to go to trial on that date.
(A) the name and address of new counsel and a signed statement from the new counsel that acknowledges the trial date and avows that the new counsel will be prepared for trial; or
(B) ethical grounds for withdrawing.
¶34 Here, Carrillo's stipulation for substitution of counsel included her name and address, as well as a signed statement that acknowledged the trial date of January 17. She did not, however, avow that she would be prepared for trial on that date, but rather noted that she expected to file a motion to continue the trial. Thus, her stipulation for substitution was deficient under Rule 6.3(c)(2). Accordingly, the trial court did not abuse its discretion in striking the order that granted the substitution.
¶35 Further, the trial court did not deny Ybarra's right to counsel of his choice because the very next day, it told him that he was free to retain his counsel of choice. Indeed, the court clearly told Ybarra he was free to hire his own counsel—whether it be Carrillo or someone else—and that if he did so, his chosen counsel would need to be ready to proceed with trial on April 4. In State v. Ramos, this court concluded that a denial of a motion to continue for the purpose of substituting counsel does not violate a defendant's right to counsel of choice when the court also states that the defendant can be represented by his counsel of choice so long as that attorney could be ready for the trial date. 239 Ariz. 501, ¶¶ 5, 20 (App. 2016). Ybarra was not denied his Sixth Amendment right to counsel of choice. See id.
¶36 Lastly, Ybarra argues the six-factor analysis articulated in Hein applies and that when the factors are examined in light of Gonzalez-Lopez's emphasis of retained counsel, the analysis demonstrates that the trial court erred in denying Ybarra his right to counsel of choice. The Hein analysis, however, applies when a defendant's constitutional rights are violated by the denial of a continuance. 138 Ariz. at 369; see also Aragon, 221 Ariz. 88, ¶¶ 4-5; Ramos, 239 Ariz. 501, ¶¶ 15-16. Ybarra does not challenge the court's ruling on Carrillo's motion to continue, but rather the ruling that struck the substitution order. Therefore, this argument is inapposite.
Preclusion of Evidence that M.B. was Previously a Victim of Sexual Misconduct
¶37 Ybarra argues the trial court erred in precluding evidence M.B. was the victim of previous sexual misconduct in which the perpetrator was not prosecuted. "We review a trial court's exclusion of evidence for an abuse of discretion, and we review de novo the interpretation of the Rules of Evidence." State v. Romero, 239 Ariz. 6, ¶ 11 (2016).
¶38 Before trial, Ybarra asked to cross-examine M.B. on the fact that she had been a victim of a "prior criminal incident" that did not result in a conviction. When M.B. was twelve or thirteen years old, she and her friends were walking to school when a man approached them and touched them "over the clothing in their private areas." M.B. was interviewed by the Children's Advocacy Center and the case was later dismissed after the accused was found incompetent under Rule 11, Ariz. R. Crim. P. Here, Ybarra said he did not want to "mention anything about the nature of [the] facts . . . the charges or anything that I think would approach rape shield issues," but argued that the incident was relevant because "potentially [M.B.] could feel that justice was not done in [that] case." Thus, he argued the fact that the case was dismissed went to M.B.'s motive and bias in Ybarra's case. The state argued the evidence was irrelevant and was precluded by Arizona's rape shield statute, A.R.S. § 13-1421.
¶39 The trial court explained that "[t]he only way that the Court thinks that [§ 13-1421] would apply is if somehow the Court can find that this was a false accusation by the victim, which it's not, obviously." It further concluded:
If we were to do as the defense suggests and permit cross examination that [M.B.] had been the victim of some kind of crime without more—I'm not saying we're going to, I'm just saying if—and then the witness were to be asked and it was dismissed, and then that was left in the jury's mind that the dismissal was prompting the victim somehow, that opens a
whole host of prejudicial potential that the Court is not willing to engage in.
Number one is when a jury hears that it was dismissed without more, they will presume that the State dismissed it or that the investigating officers didn't do their job. It actually will make it look worse than it is. . . .
Secondly, and perhaps more importantly, there's no evidence right now, and I recognize that it's probably difficult to find this evidence, but there's absolutely no evidence in front of the Court that the dismissal in any way [a]ffected [M.B.], caused her, or encouraged her to make these claims.
. . . .
. . . [T]he Court doesn't believe that there's evidence sufficient from which the Court could conclude that it does go to bias or prejudice or a reason or motivation to testify or anything like that.
¶40 On appeal, Ybarra argues: (1) the trial court's reading of § 13-1421 was unnecessarily narrow; (2) if the evidence was precluded under § 13-1421, it was fundamental error "because the statute is unconstitutional"; and (3) if the court's preclusion of the evidence was not pursuant to § 13-1421, then it abused its discretion by precluding Ybarra from questioning M.B. about her potential bias and motive to see Ybarra convicted.
¶41 Here, the trial court determined that Ybarra had not shown the evidence went to M.B.'s motivation or bias, and the evidence of M.B.'s prior victimization would be unfairly prejudicial to the state. Thus, the court's ruling appears to have been based on Rule 401, Ariz. R. Evid., which precludes irrelevant evidence, and Rule 403, Ariz. R. Evid., which allows the court to "exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury." In this instance, we conclude the trial court did not abuse its discretion by finding Ybarra had not established the evidence was relevant. Moreover, assuming without deciding that the evidence was relevant, "[t]he weighing and balancing under Rule 403 is within the discretion of the trial court and will not be disturbed on appeal unless it has been clearly abused." State v. Williams, 133 Ariz. 220, 230 (1982). Here, the court explained that the evidence had "a whole host of prejudicial potential" and that the evidence would lead the jury to think the dismissal of the previous incident was worse than it was. Therefore, we find no abuse of discretion here. Further, because the court did not make its ruling based on § 13-1421, we need not reach Ybarra's other arguments, including the constitutionality of that statute. See State v. Gomez, 212 Ariz. 55, ¶ 28 (2006) (courts construe statutes to avoid constitutional difficulties when possible); see also State v. Gilfillan, 196 Ariz. 396, ¶ 23 (App. 2000) ("The Arizona Rape Shield Law is constitutional."), abrogated on other grounds by State v. Carson, 243 Ariz. 463, ¶ 10 (2018).
Disposition
¶42 For the foregoing reasons, we affirm Ybarra's convictions and sentences.