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
IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE
DIVISION ONE FILED: 07-29-2010 PHILIP G. URRY,CLERK BY: DN
STATE OF ARIZONA, Appellee, v. STEPHEN FRANK KARBAN, Appellant.
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1 CA-CR 08-0810 1 CA-CR 08-0989 (Consolidated) DEPARTMENT C MEMORANDUM DECISION (Not for Publication – Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County Cause No. CR 2005-011629-001 DT The Honorable Raymond P. Lee, Judge AFFIRMED
Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Craig W. Soland, Assistant Attorney General Attorneys for Appellee Droban & Company, P.C. By Kerrie M. Droban Attorneys for Appellant
J O H N S E N, Judge ¶1 Stephen Frank Karban appeals his convictions of one
count of molestation of a child, one count of sexual abuse and nine counts of sexual conduct with a minor. that follow, we affirm Karban's convictions For the reasons and resulting
sentences. FACTS AND PROCEDURAL HISTORY ¶2 Karban does not contest the sufficiency of the
evidence to support his convictions.
Therefore, it will suffice
to say he committed the offenses against three minor girls, "E," "J" and "A," while on vacation in Arizona in December 2002. was 11 years old at the time, J was 16 and A was 10. ¶3 Karban represented himself at a 30-day jury trial that He was sentenced to We the E
took place over the course of eight weeks.
a presumptive aggregate term of 138.5 years' imprisonment. have jurisdiction pursuant and to Article 6, Section Statutes 9, of
sections 12-120.21(A) (2003), 13-4031 (2010) 1 and 13-4033(A)(1) (2010).
Absent material revisions after the date offense, we cite a statute’s current version. 2
DISCUSSION A. ¶4 Admission of Computer Images. Karban contends the superior court erred when it
admitted images found on his computer that depicted adult men and/or women engaged in various acts involving urination. The
State argued the images were relevant because at least one of the victims would testify Karban asked her to urinate on him for sexual gratification. The court held the images were admissible Pursuant to Rule
pursuant to Arizona Rule of Evidence 404(c).
404(c), the court found the evidence was sufficient to permit the jury to find Karban possessed the images on his computer, the images provided a reasonable basis to infer Karban had an aberrant sexual propensity to commit the charged offenses, the probative value of the images was "substantial" and was not
outweighed by the danger of unfair prejudice or confusion of the issues, and the to images permit were their sufficiently admission similar and were to not the too
remote in time. ¶5 We review the admission of evidence pursuant to Rule State v. Garcia, 200 Ariz. The superior
404(c) for an abuse of discretion.
471, 475, ¶ 25, 28 P.3d 327, 331 (App. 2001). court's discretion is "considerable."
State v. Amaya-Ruiz, 166
Ariz. 152, 167, 800 P.2d 1260, 1275 (1990).
uncharged acts to establish ‘that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged.’" Garcia, 200 Ariz. at 475, ¶ 26, 28 P.3d at "Evidence of an emotional
331 (quoting Ariz. R. Evid. 404(c)).
propensity to commit aberrant sexual acts is admissible to prove that an accused acted in conformity therewith." 195 Ariz. 394, 395, ¶ 3, 988 P.2d 1120, State v. Arner, (App. 1999).
Before admitting evidence pursuant to Rule 404(c), the court must specifically find that: (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. Ariz. R. Evid. 404(c). Finally, the court must give a limiting Ariz. R.
instruction as to the proper use of such evidence.
Evid. 404(c)(2); Garcia, 200 Ariz. at 475, ¶ 27, 28 P.3d at 331. ¶7 that the On appeal, Karban argues, without citing Rule 404(c), court should have excluded the images because they
failed to provide a reasonable basis to infer he had a character
trait giving rise to an aberrant sexual propensity to commit the crimes charged. He contends the images were “too attenuated” In making this
because they involved adults, and not children.
argument, Karban does not argue that if the images had depicted children, they would not have provided a reasonable basis to infer he had a character trait giving rise to an aberrant sexual propensity to commit the charged crimes. ¶8 Although the images the court admitted did not depict
minors or a female urinating on a male, exact replication is not required before a prior act may be admitted. State v. Lopez,
170 Ariz. 112, 117, 822 P.2d 465, 470 (App. 1991); see also State v. Williams, 209 Ariz. 228, 233-34, ¶¶ 18-21, 99 P.3d 43, 48-49 (App. 2004) (pursuant to Arizona Rule of Evidence 404(b), evidence of conduct by defendant with adult woman was admissible on charge the defendant committed a similar act with a child). Moreover, a difference in gender between the victims and the subjects of other-act evidence does not necessarily render the other acts inadmissible. See State v. McDaniel, 119 Ariz. 373,
376, 580 P.2d 1227, 1230 (App. 1978) (evidence that defendant had touched a young boy at the same time as the young girl victim in the prosecution was admissible under the prior
“lustful disposition” exception to the rule excluding prior bad acts). evidence As long as there is a reasonable basis to conclude of the other act "permits an inference that a
evidence is admissible." at 1122. ¶9 jury's Finally, the
Arner, 195 Ariz. at 396, ¶ 5, 988 P.2d
instructions of the
instructed they could not consider evidence of other acts unless they found by clear and convincing evidence that (1) Karban
committed those acts and (2) the evidence of those acts showed Karban had a character trait that predisposed him to commit the crimes charged. We also note the State argued in closing that
the jurors could not assume Karban was guilty simply because they heard evidence of other acts and reiterated that the jury must find Karban committed the other acts before it could
consider those acts as evidence. ¶10 Abuse of discretion is "an exercise of discretion
which is manifestly unreasonable, exercised on untenable grounds or for untenable reasons." State v. Woody, 173 Ariz. 561, 563,
845 P.2d 487, 489 (App. 1992) (internal quotations and citations omitted). Under these circumstances, the superior court did not
abuse its discretion when it admitted the other-act evidence. 2
While Karban asserted he did not put the images on his computer, that was a matter for the jury. See Ariz. R. Evid. 404(c)(1)(A); State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (appellate court does not determine credibility). 6
Preclusion of Evidence of Other Activities of J. Karban next contends the court erred when it granted
the State's motion in limine to preclude evidence that J had engaged in various other acts of a sexual nature. The State’s
motion was directed at evidence that (1) J had viewed internet pornography; (2) she had a password that allowed her access to the internet; (3) she viewed adult movies; (4) she "experimented with adult lotions;" and (5) she wrote sexually explicit emails. ¶12 We review the superior court’s evidentiary rulings for Amaya-Ruiz, 166 Ariz. at 167, 800
a clear abuse of discretion. P.2d at 1275. discretion in
We need not address whether the court abused its this case, however, because Karban was not
prejudiced by the ruling.
“[E]rror is harmless if we can say,
beyond a reasonable doubt, that the error did not contribute to or affect the verdict.” 896 P.2d 830, 843 (1995). ¶13 All of the evidence in the motion at issue ultimately Evidence was and had been State v. Bolton, 182 Ariz. 290, 303,
was admitted despite the superior court's ruling. introduced that J was sexually "permissive"
sexually active in the past, that she had access to a computer with internet access, that she was able to get on the internet regardless of whether she knew Karban's password, that she had viewed pornography movies on with the a internet, friend, that she she had had used watched sexual
lubricants and sometimes did so with a friend, that she had email access and that some of her emails contained pornographic material. Accordingly, Karban was not prejudiced by the court’s
ruling granting the State’s motion in limine. C. ¶14 Preclusion of Evidence of "Sexual Normalcy." Karban also argues the court erred when it precluded
evidence of his good character in the form of "sexual normalcy." Karban concedes this issue was not properly preserved below and, therefore, we review only for fundamental error. See State v. "To
Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991).
establish fundamental error, [a defendant] must show that the error complained of goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial." v. Henderson, 210 Ariz. 561, 568, ¶ 24, 115 P.3d State 608
We will not reverse for fundamental error unless a Id. at ¶ 26. Karban "sexual "sexual
defendant demonstrates the error was prejudicial. ¶15 never
We find no error, fundamental or otherwise. sought and to have the court identify admit any evidence evidence of of
normalcy" the superior court failed and/or refused to admit or which otherwise was excluded. When the court addressed the
issue of whether evidence of Karban's general "good character" could be admitted, Karban informed the court that he only sought
inappropriate, as well as evidence of alibi. Karban could introduce such evidence.
The court held
There is no error in the
failure to admit evidence a defendant did not ask the court to admit. ¶16 We note that almost a year after the hearing on the
admission of evidence of good character and before trial began, Karban was informed on the record of our then-recent decision in State v. Rhodes, 219 Ariz. 476, 200 P.3d 973 (App. 2008). Rhodes, we held evidence of sexual normalcy or In
interaction with children may be admissible in cases involving sexual offenses against minors. P.3d at 975-76. Id. at 478-79, ¶¶ 10-12, 200
Even after being informed of the decision in
Rhodes, however, Karban did not seek admission of evidence of sexual normalcy. D. ¶17 Preclusion of Evidence of the Michigan Acquittals. Finally, Karban argues the superior court erred when
it precluded evidence that a Michigan jury had acquitted him of certain offenses; "to he argues and evidence of the acquittals was
against him pursuant to Rule 404(c).
Background. The procedural background of this issue is somewhat The State first filed a notice of its intent
pursuant to Rule 404(c) to offer evidence that Karban engaged in "prior sexual conduct" with the victims in Michigan. Karban
responded that he was "in agreement with the State's request" and indicated that he too wanted to offer evidence of other acts in Michigan. Karban then filed a motion to admit evidence of He argued it
his acquittal of similar charges in Michigan.
would be unfair to admit evidence of the other acts without also informing the jury he was acquitted of committing those acts. Karban further argued he should be allowed to use evidence of the acquittals to impeach the victims. ¶19 In its response to Karban’s motion to admit evidence
of the acquittals, the State withdrew its request to use any evidence of prior acts committed in Michigan, but indicated it still would seek to admit evidence of other acts committed in Wisconsin. Absent evidence of other acts committed in Michigan,
the State argued, evidence that Karban had been acquitted of similar offenses in Michigan would be irrelevant. The State
conceded, however, that Karban could use testimony from Michigan to impeach the victims and other witnesses. ¶20 The superior court held evidence of the acquittals was
not admissible but ruled that Karban could use transcripts from
the Michigan trial to impeach witnesses. withdrawal of its motion to admit
Despite the State's of other acts
committed in Michigan, however, such evidence was introduced at trial. Not only did Karban not object to the admission of any
of this evidence, he introduced some of the evidence. ¶21 For example, when E described one of the Arizona
offenses, the State asked her if anything similar had happened in Michigan or Wisconsin. The State then asked E to describe Karban raised no objections to
one of the Michigan incidents.
the State's questions of the victims about offenses committed in Michigan. Karban himself injected references to Michigan and
other acts committed in Michigan in his cross-examination of the victims. Michigan, For example, Karban asked E if she went to court in without reference to what type of court or the
He also refreshed E's memory and/or impeached
her with her Michigan testimony, frequently referring to her "testimony" and her having "testified to that fact in the past" and doing so "in court," albeit without reference to Michigan, Michigan criminal charges or any Michigan legal proceedings.
When Karban cross-examined J, he referred to reports prepared by Michigan police and had J read from those reports. ¶22 Karban never asked the court to reconsider its ruling Further, the
on the admissibility of the Michigan acquittals.
jury was never informed that Karban was charged or tried for any conduct that occurred in Michigan. 2. ¶23 Analysis. The case authorities conflict on the issue of whether
a defendant may offer evidence of an acquittal to rebut evidence of a prior bad act. Compare State v. Little, 87 Ariz. 295, 304,
350 P.2d 756, 761 (1960) (evidence of prior act was inadmissible because the defendant was acquitted of committing that act), and State v. Davis, 127 Ariz. 285, 286, 619 P.2d 1062, 1063 (App. 1980) ("the better rule allows proof of an acquittal to weaken and rebut the prosecution's evidence of the other crime") with United States v. De La Rosa, 171 F.3d 215, 219-20 (5th Cir. 1999) (trial court does not abuse its discretion when it
excludes evidence of a prior acquittal for a related offense; citing cases), and United States v. Gricco, 277 F.3d 339, 352 (3d Cir. 2002) ("well established . . . that evidence of prior acquittals is generally inadmissible"). ¶24 We need not reconcile these authorities because there
is nothing in the record establishing the specific acts of which Karban was acquitted in Michigan. Karban provided the superior
court with a copy of an order of acquittal entered by a Michigan court stating he was acquitted of 15 unidentified counts after a jury trial. Attached to that order was a copy of a felony
information that charged Karban with a total of 14 counts of
"criminal sexual conduct" of varying degrees and one count of "attempted sexual conduct." The information identified the Each the
three victims in this case along with one other victim. count identified the statutory offense, the victim,
applicable statute(s) and a two-word description of the conduct involved, such as "penile-vaginal," followed by the phrase "with [the victim's name]." or location of any The information did not identify the date offense or provide any additional facts
regarding any offense. provide any
Nor did Karban make an offer of proof to information regarding the offenses
charged in Michigan of which he was acquitted. ¶25 establish As a result, any of there the is nothing in the act" record to
referenced at trial was the same conduct on which Karban was charged, reveals tried is that and acquitted was in Michigan. of All the record similar The
offenses committed in Michigan against the same victims.
contention that any of those charged offenses was the same as any of those referenced Absent in the trial to in this the case is
evidence introduced at trial in this case with the conduct of which Karban was acquitted in Michigan, we cannot conclude the court erred by precluding evidence of the acquittals.
CONCLUSION ¶26 We affirm Karban's convictions and sentences.
/s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING:
/s/ DONN KESSLER, Judge
/s/ PATRICIA K. NORRIS, Judge