STATE v. PETRUZZI
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NOTICE: 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 STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) Appellee, v. JAMES PETRUZZI, Appellant. 1 CA-CR 11-0375 DIVISION ONE FILED: 11/27/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2010-005929-001SE The Honorable Joseph C. Welty, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Robert A. Walsh, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Thomas K. Baird, Deputy Public Defender Attorneys for Appellant Phoenix N O R R I S, Judge ¶1 James Petruzzi timely appeals from his class two felony convictions on six counts of child molestation and one count of sexual conduct with a minor. On appeal, Petruzzi argues the superior court should not have admitted evidence at trial showing he had sexually abused J.B. when he was a minor to demonstrate Arizona Petruzzi s Rule of aberrant Evidence 404(c) sexual because propensity the value under of this evidence was substantially outweighed by its prejudicial effect on the jury. We disagree. The superior court did not abuse its discretion in finding to the contrary. State v. Garcia, 200 Ariz. 471, 475, ¶ 25, 28 P.3d 327, 331 (App. 2001) (appellate court reviews admission of sexual propensity evidence under Rule 404(c) for abuse of discretion) (citation omitted). ¶2 As an initial matter, we note Petruzzi does not challenge the court s finding -- required by Rule 404(c)(1)(A) and State v. Terrazas, 189 Ariz. 580, 582, 944 P.2d 1194, 1196 (1997) -- that the evidence was sufficient to find Petruzzi had sexually abused J.B. by clear and convincing evidence, nor does he argue this evidence failed to provide[] a reasonable basis to infer his aberrant sexual propensity to commit the crime[s] charged under Rule 404(c)(1)(B). Instead, he argues only the court should have excluded the evidence under Rule 404(c)(1)(C) because first, the uncharged allegations pertained to acts that had occurred at least ten years before the grand jury indicted him in this case; second, the evidence lacked specificity; and third, because the evidence lacked specificity, the court could not assess J.B. s credibility, and thus, the admissibility of 2 his testimony, in the absence of an evidentiary hearing. We disagree with these arguments. ¶3 at For the most part, Petruzzi s arguments are directed the superior court s reliance on a 2000 police report documenting J.B. s reporting of Petruzzi s sexual abuse. determining the evidence was admissible under Rule In 404(c), however, the superior court also considered a February 10, 2010 telephonic interview of J.B. by a Mesa police detective. that interview, inappropriate J.B. specifically touching, which was described strikingly In Petruzzi s similar to the detective he had abuse described by the victims in this case. ¶4 Specifically, known Petruzzi Petruzzi since Grandpa, began on he sexually though continued J.B. a they regular told was the five, abusing were Mesa which him; he unrelated; basis Petruzzi s home at age 15; the Petruzzi s bedroom; and the abuse until abuse is around called Petruzzi Petruzzi s J.B. moved always progressed when abuse out of occurred in from Petruzzi touching J.B. s penis over his clothes, then under his clothes, to inappropriate touching while sleeping naked in Petruzzi s bed, and finally to performing oral sex on each other. ¶5 Although Petruzzi s sexual abuse of J.B. occurred more than ten years before he was charged in this case, Rule 404(c) does not contemplate any bright line test of remoteness of the 3 prior act to the charged offense. 1997 Amendment. testimony by Ariz. R. Evid. 404(c) cmt. to Remoteness affects the weight to be given the the jury, but generally not its admissibility. State v. Van Adams, 194 Ariz. 408, 416, ¶ 24, 984 P.2d 16, 24 (1999). Also, prior cases have found other sexual acts admissible even though they occurred over 20 years before the current charges when other Rule 404(c) factors indicated the acts were sufficiently probative. 181 Ariz. 87, 92 n.5, 887 See, e.g., State v. Salazar, P.2d 617, 622 n.5 (App. 1994) (evidence of uncharged rape that occurred over 20 years earlier admissible in trial for attempted child molestation); State v. Weatherbee, 158 Ariz. 303, 304-05, 762 P.2d 590, 591-92 (App. 1988) (prior acts of child molestation that occurred 19 to 22 years before trial admissible to show sexual aberration). ¶6 As discussed, see supra ¶¶ 3-4, and as the superior court found, J.B. described specific and detailed sexual acts similar to similarly the aged charged and offenses situated to in this the case. victims J.B. when the was abuse started and the abuse occurred under similar circumstances, with similar frequency. Further, J.B. described a pattern of grooming behavior similar to Petruzzi s behavior vis-à -vis the victims. sexual Although abuse telephonic at J.B. trial interview was and with reluctant was less the Mesa 4 to discuss forthcoming police Petruzzi s than in the detective, he nevertheless acknowledged at trial his statements in the February 10, 2010 interview were truthful and that Petruzzi had frequently touched him inappropriately when he, J.B., was young. ¶7 Finally, in determining the admissibility of sexual propensity evidence under Rule 404(c), a court is not required to conduct an evidentiary hearing with live testimony. State v. LeBrun, 222 Ariz. 183, 186, ¶ 10, 187, ¶ 14, 213 P.3d 332, 335, 336 (App. 2009) (Rule 404(b) and (c) do not expressly require evidentiary hearings and 404(c) does not mention live testimony requirement). Based on the evidence presented by the State before trial, and given its specificity, the superior court was in a position 404(c)(1)(C). to assess the factors specified in Rule Further, after J.B. testified at trial, the court denied Petruzzi s motion to strike J.B. s testimony, finding the State had presented clear and convincing evidence Petruzzi had sexually abused J.B. The court also found that though reluctant, J.B. came to court, . . . identified [Petruzzi], and indicated that from the time he was 5 to 15, or a period of time within that time, . . . [Petruzzi] had touched his genitals inappropriately. Thus, having observed and heard J.B. s trial testimony, the court certainly could evaluate the admissibility of J.B. s testimony under Rule 404(c) and, more specifically, Rule 404(c)(1)(C). 5 ¶8 For the foregoing reasons, we therefore affirm Petruzzi s convictions and sentences. /s/ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ DIANE M. JOHNSEN, Judge /s/ JON W. THOMPSON, Judge 6
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