FILED BY CLERK
JAN 25 2008
IN THE COURT OF APPEALS
STATE OF ARIZONA
IN RE THE COMMITMENT OF
COURT OF APPEALS
2 CA-MH 2007-0002-SP
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. A-20060008
Honorable Frank Dawley, Judge Pro Tempore
Barbara LaWall, Pima County Attorney
By Jacob R. Lines
Robert J. Hooker, Pima County Public Defender
By John F. Palumbo
Attorneys for Appellee
Attorneys for Appellant
H O W A R D, Presiding Judge.
After a jury trial, appellant Wilfredo Jaramillo was found to be a sexually
violent person and was committed to the Arizona Community Protection and Treatment
Center pursuant to Arizona’s Sexually Violent Persons (SVP) Act, A.R.S. §§ 36-3701
through 36-3717. On appeal, Jaramillo argues the trial court committed reversible error by
admitting evidence of unproven prior acts in violation of Rule 404(c), Ariz. R. Evid.
Because the trial court correctly concluded that Rule 404(c) does not apply to this prior-act
evidence, we affirm.
Factual and Procedural Background
In 1996, Jaramillo pleaded guilty but insane to attempted sexual conduct with
a minor and was committed to the Arizona State Hospital for ten years. In 2006, as
Jaramillo neared the end of his commitment, the state filed a petition alleging that Jaramillo
is a sexually violent person as defined in § 36-3701(7).
On the second day of trial on that issue, Jaramillo filed a motion in limine to
preclude introduction of evidence of prior acts other than those for which there was a
“properly authenticated prior conviction.” At a hearing that day, he contended that
evidence of the prior acts should only be admitted if the state satisfied the requirements of
Rule 404(c), which provides a procedure for introducing evidence of a person’s prior
“crimes, wrongs, or acts” to demonstrate a “character trait giving rise to an aberrant sexual
propensity to commit the offense charged.” The court concluded that Rule 404(c) did not
apply and that evidence of the prior acts was admissible to establish Jaramillo’s propensity
to commit future acts of sexual violence. At trial, psychologist Thomas Fisher, who had
evaluated Jaramillo, testified about three prior acts:1 in 1992, Jaramillo had touched an
eleven-year-old female’s buttocks and pleaded guilty to annoying a minor; in 1992, he had
exposed himself to a woman and touched her buttocks before being escorted from the area;
and, in 1993, he had touched a woman’s buttocks, crotch, and chest, and prosecution was
Based on his interview with Jaramillo and other information, Dr. Fisher’s
diagnoses included polysubstance abuse; pedophilia, nonexclusive type; and antisocial
personality disorder as well as symptoms of schizophrenia and schizoaffective disorder. He
testified that the features of Jaramillo’s prior acts were important in his diagnoses and noted
the prior offenses were factors relevant to determining the risk that Jaramillo would commit
future acts of sexual violence. He ultimately opined that it was highly probable Jaramillo
would commit future acts of sexual violence unless treated.
Rule 404(c) Analysis
Jaramillo argues the court committed reversible error by admitting evidence
of his prior acts without applying Rule 404(c). We review the trial court’s decision to admit
evidence of prior acts for an abuse of discretion. See Gemstar Ltd. v. Ernst & Young, 185
Dr. Fisher also alluded to instances during Jaramillo’s commitment in which he had
inappropriately touched people and exposed himself, but Jaramillo does not appear to
challenge on appeal the mention of these acts. In any event, in light of our disposition of
this case, the court did not err in permitting discussion of these other acts.
Jaramillo does not challenge the sufficiency of the evidence of these prior acts
outside the Rule 404(c) context. We therefore need not address the level of proof required
or when the trial court may in its discretion preclude such evidence. See Ariz. R. Evid. 403.
Ariz. 493, 506, 917 P.2d 222, 235 (1996) (admission of evidence reviewed for abuse of
discretion); see also State v. Aguilar, 209 Ariz. 40, ¶ 29, 97 P.3d 865, 874 (2004)
(reviewing admission of prior-act evidence for abuse of discretion). But “[a] court abuses
its discretion if it commits legal error in reaching a discretionary conclusion.” Tritschler v.
Allstate Ins. Co., 213 Ariz. 505, ¶ 41, 144 P.3d 519, 532 (App. 2006). Jaramillo’s
argument raises issues regarding interpretation of statutes and court rules, as well as
constitutional issues, which are legal questions that we review de novo. See In re
Commitment of Flemming, 212 Ariz. 306, ¶ 3, 131 P.3d 478, 479 (App. 2006) (issues
regarding interpretation of SVP statutes reviewed de novo); see also Allstate Indem. Co. v.
Ridgely, 214 Ariz. 440, ¶ 8, 153 P.3d 1069, 1071 (App. 2007) (issues regarding
interpretation of court rules reviewed de novo); Robson Ranch Mountains, L.L.C. v. Pinal
County, 203 Ariz. 120, ¶ 13, 51 P.3d 342, 347 (App. 2002) (issues regarding statutory
interpretation and constitutional issues reviewed de novo).
Under Arizona’s SVP statutes, a person may be civilly committed if the state
proves, beyond a reasonable doubt, that the person is a sexually violent person. See § 363707(A), (B); In re Leon G., 204 Ariz. 15, ¶ 28, 59 P.3d 779, 787 (2002). A sexually
violent person is one who “[h]as ever been convicted of or found guilty but insane of a
sexually violent offense . . .” and “[h]as a mental disorder that makes the person likely to
engage in acts of sexual violence.” § 36-3701(7). As our supreme court has interpreted the
second part of the definition, the state must prove, beyond a reasonable doubt, that the
person has a mental disorder as defined by the statute “that predisposes the person to
commit sexual acts to such a degree that he or she is dangerous to others” and that “the
mental disorder makes it highly probable that the person will engage in acts of sexual
violence.” Leon G., 204 Ariz. 15, ¶ 28, 59 P.3d at 787 (emphasis omitted). A mental
disorder makes it highly probable that a person will engage in acts of sexual violence if it
impairs or tends to overpower the person’s ability to control his behavior. Id.
The legislature has provided that, in an SVP trial, “[t]he Arizona rules of
evidence . . . apply” and the court “may admit evidence of past acts that would constitute
a sexual offense pursuant to [A.R.S.] § 13-1420 and the Arizona rules of evidence.” § 363704(B). Jaramillo acknowledges that, by enacting this statute, the legislature intended that
prior acts be admissible but contends the rules of evidence do not permit admission of prior
acts to prove a person’s propensity to commit a future act. He argues that this creates a
potential conflict between § 36-3704(B) and the rules of evidence and notes that, where
such a conflict exists and cannot be reconciled, the statute is unconstitutional. See Encinas
v. Pompa, 189 Ariz. 157, 159, 939 P.2d 435, 437 (App. 1997) (“[T]he legislature may enact
procedural rules so long as they merely supplement, but do not contradict, existing courtmade rules.”). Finally, he argues that the conflict can be reconciled by interpreting § 363704(B) to permit introduction of prior acts only when they are admissible under Rule
404(c).3 The state, on the other hand, contends no conflict exists because the rules of
evidence permit the use of relevant prior acts in this circumstance without regard to Rule
Relevant evidence is generally admissible. Ariz. R. Evid. 402. But “[e]vidence
of a person’s character or a trait of character is not admissible for the purpose of proving
action in conformity therewith on a particular occasion.” Ariz. R. Evid. 404(a). Similarly,
“evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith,” although it may be admissible for
some other purpose. Ariz. R. Evid. 404(b). Rule 404(c) provides an exception to that
general rule in “criminal case[s] in which a defendant is charged with having committed a
sexual offense, or . . . civil case[s] in which a claim is predicated on a party’s alleged
commission of a sexual offense.” In those cases, evidence of “other crimes, wrongs, or acts
may be admitted by the court if relevant to show that the defendant had a character trait
Jaramillo does not argue that the trial court must apply Rule 404(c) when admitting
evidence of a prior conviction to prove the predicate-offense element of the SVP definition.
Thus, he does not challenge the admission of his 1996 conviction for attempted sexual
conduct with a minor.
The state also contends the evidence was admissible under Rule 703, Ariz. R. Evid.,
which permits experts to rely on information reasonably relied upon by experts in their field
even if it is not otherwise admissible. But the trial court ruled broadly that evidence of
Jaramillo’s prior acts was admissible to prove the ultimate issue and only cited Rule 703 to
obviate any hearsay objection. Jaramillo raises no hearsay issue on appeal. And, because
Rule 703 permits admission of evidence the expert relies on only “for the limited purpose
of disclosing the basis for the [expert’s] opinion,” id. cmt., we do not rely on Rule 703 alone
to affirm the trial court’s order.
giving rise to an aberrant sexual propensity to commit the offense charged.” Id. Rule 404(c)
then provides a procedure for admitting such evidence.
Although SVP cases are civil in nature, In re Commitment of Conn, 207 Ariz.
257, ¶ 7, 85 P.3d 474, 476 (App. 2004), they are not “predicated on a party’s alleged
commission of a sexual offense.” Ariz. R. Evid. 404(c). Instead, they are predicated on the
person’s having a prior conviction for a sexually violent offense, not an “alleged
commission,” and a mental disorder that makes the person likely to commit future acts of
sexual violence. See § 36-3701(7). Thus, as Jaramillo acknowledges, Rule 404(c) by its
plain language does not apply to SVP proceedings. Jaramillo nevertheless contends that the
rules of evidence do not otherwise provide for the admission of other-act evidence in this
context and that interpreting Rule 404(c) to apply here would “do no violence” to the rule
and would effectuate legislative intent.
The rules of evidence, however, do provide for the admission of relevant
evidence, such as the prior acts here. See Ariz. R. Evid. 402. Rule 404 is designed to
prevent the circumstantial use of character evidence to prove action in conformity with that
character on a particular occasion. See Ariz. R. Evid. 404(a); see also Joseph M. Livermore
et al., Arizona Law of Evidence § 404.1, at 87-88 (4th ed. 2000). But evidence of prior acts
is admissible for other purposes. Ariz. R. Evid. 404(b). When the state introduces evidence
of prior acts in SVP cases, it is not to show action on a particular occasion in conformity
with bad character. Beyond proving a predicate conviction, the state need not prove action
on a particular occasion at all. Instead, the prior acts are used to help demonstrate that the
person will likely engage in acts of sexual violence in the future and therefore presents a
danger to the community. See Leon G., 204 Ariz. 15, ¶ 28, 59 P.3d at 787.
Under Rule 405(b), Ariz. R. Evid., specific instances of conduct are admissible
when a character trait “is an essential element of a charge, claim or defense.” A character
trait is an essential element of a charge, claim, or defense if it is “an operative fact which,
under substantive law, determines the rights and liabilities of the parties.” State v. Williams,
141 Ariz. 127, 129, 685 P.2d 764, 766 (App. 1984). The propensity to commit acts of
sexual violence is an operative fact that determines the rights and liabilities of an allegedly
sexually violent person and is therefore an essential element of the state’s SVP case. Rule
405(b) thus permits the use of specific instances of conduct to prove such a propensity.
We are unaware of any Arizona cases expressly addressing whether prior acts
may be admissible if relevant to the ultimate issues in an SVP proceeding. But, in a
proceeding to terminate parental rights, this court has reached a similar result. In In re Pima
County Juvenile Action No. S-113432, 178 Ariz. 288, 293, 872 P.2d 1240, 1245 (App.
1993), the father argued the trial court had erred in permitting testimony regarding his prior
acts of violence. This court noted that evidence of prior acts would be admissible in that
situation to “establish a pattern of behavior or behavioral propensity, which was particularly
relevant in light of the father’s contention that he had changed this pattern.” Id. Thus, the
prior acts were admissible, not to show that the father had acted violently on a particular
occasion, but to show his predisposition to commit violent acts as it bore on the ultimate
issue of whether to terminate his parental rights. Here, similarly, the evidence of Jaramillo’s
prior acts was relevant to the ultimate issue that he will likely commit future acts of sexual
Additionally, although neither party has provided any authority from other
jurisdictions, courts in states with statutes similar to our SVP statutes have held prior acts
admissible in SVP proceedings if relevant to the ultimate issue. In Matter of Hay, 953 P.2d
666, 677-78 (Kan. 1998), the court addressed a similar challenge under a Kansas statute
similar to Rule 404(b).5 The court noted that, like Rule 404(b), the Kansas statute was
designed “to prohibit usage of a previous crime in another trial to infer the disposition to
commit the crime being currently charged.” Id. at 677. But it noted that evidence of prior
criminal acts could be admissible for another purpose and held it was admissible to prove
the ultimate issues in an SVP case. Id. at 678; see also In re Care & Treatment of Corley,
The Kansas statute provides:
Subject to K.S.A. 60-447 evidence that a person committed a
crime or civil wrong on a specified occasion, is inadmissible to
prove his or her disposition to commit crime or civil wrong as
the basis for an inference that the person committed another
crime or civil wrong on another specified occasion but, subject
to K.S.A. 60-445 and 60-448 such evidence is admissible when
relevant to prove some other material fact including motive,
opportunity, intent, preparation, plan, knowledge, identity or
absence of mistake or accident.
Kan. Stat. Ann. § 60-455.
577 S.E.2d 451, 453-54 (S.C. 2003) (evidence of prior acts admissible because “a person’s
dangerous propensities are the focus of the SVP Act”); In re Commitment of Franklin, 677
N.W.2d 276, ¶ 14 (Wis. 2004) (statute similar to Rule 404(b) did not apply in SVP
proceedings because prior acts not used to prove conduct on past occasion).
Here, the state had to prove that Jaramillo had been convicted or found guilty
but insane of a predicate offense and that he suffers from a mental disorder that makes it
likely he will engage in future acts of sexual violence. See § 36-3701(7). The prior acts
discussed in Dr. Fisher’s testimony were relevant to the issues of Jaramillo’s mental disorder
and his likelihood of committing future acts of sexual violence. They were thus directly
relevant to the ultimate issue. See Hay, 953 P.2d at 677; cf. Martin v. Reinstein, 195 Ariz.
293, ¶ 73, 987 P.2d 779, 801 (App. 1999) (prior convictions relevant to propensity to
commit future acts). And, because the prior acts were not used to prove Jaramillo’s conduct
on a particular occasion, Rule 404(a) and (b) did not affect their admissibility.
Jaramillo contends that Arizona’s Rule 404 differs from other states’ versions
of the rule because it prohibits the use of character evidence to prove “action” in conformity
with character, Ariz. R. Evid. 404(a), (b), while other states’ versions of the rule prohibit
using character evidence to show that a person “acted” in conformity with character. See,
e.g., Wis. Stat. § 904.04; see also Kan. Stat. Ann. § 60-455 (prior-act evidence inadmissible
to show “disposition to commit crime or civil wrong as the basis for an inference that the
person committed another crime or civil wrong on another specified occasion”) (emphasis
added). Jaramillo argues that, because Arizona’s rule is not phrased in the past tense, it
could apply to the use of character evidence to prove future conduct.
Rule 404’s history defeats Jaramillo’s argument. Until 1988, Rule 404(a)
provided: “Evidence of a person’s character or trait of his character is not admissible for the
purpose of proving that he acted in conformity therewith on a particular occasion.” 157
Ariz. XXXIX (emphasis added). Similarly, Rule 404(b) provided: “Evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order to show
that he acted in conformity therewith.” 157 Ariz. XXXIX (emphasis added). Our supreme
court changed “that he acted” to “action” (and also eliminated “his” in Rule 404(a)) in 1988
as part of an order eliminating gender references in the rules of evidence. See 157 Ariz.
XXXVIII-XLVIII. Nothing in that order suggests the court intended to change the substance
of any of the rules it amended.
Moreover, even if Jaramillo were correct that Arizona’s Rule 404 prohibits the
use of prior acts to prove future action in conformity with character, it would not change our
analysis. Arizona’s Rule 404, as phrased both now and prior to the 1988 amendment,
prohibits the admission of evidence of other acts to prove specific conduct in conformity
with character. In SVP proceedings, as discussed above, evidence of prior acts is not used
to prove specific conduct in conformity with character, but rather to show the existence of
a mental disorder that makes the person likely to commit future acts of sexual violence.
Accordingly, Rule 404 does not prohibit evidence of prior acts to prove that issue. Instead,
if relevant, the evidence is admissible, unless otherwise prohibited. See Ariz. R. Evid. 402,
405(b). Thus, because the evidence was admissible, we reject Jaramillo’s assertion that the
trial court erred by refusing to apply the strictures of Rule 404(c).6
Rule 403 Analysis
Jaramillo contends the trial court failed to conduct an analysis under Rule
403, Ariz. R. Evid., and thus argues this case must be remanded for a Rule 403 analysis.
That rule provides, in pertinent part, that relevant evidence “may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice.” Jaramillo cited Rule
403 in his motion in limine and argued to the trial court that the evidence was unduly
prejudicial because of the age of the prior acts. In holding the evidence admissible, the trial
court discussed the relevance of the evidence and said the age of the acts would go to the
weight of the evidence. Although the court made no express finding that the danger of
undue prejudice did not substantially outweigh the probative value of the evidence, the
record sufficiently demonstrates that “the necessary factors were argued, considered, and
balanced by the trial court as part of its ruling.” State v. Beasley, 205 Ariz. 334, ¶ 15, 70
P.3d 463, 466 (App. 2003). And, to the extent Jaramillo argues the trial court erred by
failing to make express findings, he waived that issue by failing to request findings below.
See Trantor v. Fredrikson, 179 Ariz. 299, 300-01, 878 P.2d 657, 658-59 (1994) (trial
Because the evidence is admissible under the rules of evidence, and because § 363704(B) expressly permits the introduction of prior-act evidence under the rules of evidence,
we need not decide whether § 36-3704(B) potentially conflicts with the rules of evidence.
court’s failure to make findings of fact and conclusions of law waived for failure to raise
issue in trial court even where case law required such findings). The trial court did not
abuse its discretion in admitting the evidence.7
For the foregoing reasons, we affirm.
JOSEPH W. HOWARD, Presiding Judge
JOHN PELANDER, Chief Judge
J. WILLIAM BRAMMER, JR., Judge
Citing Leon G., Jaramillo also argues that applying Rule 404(c) is consistent with
the substantive due process requirement that Arizona’s SVP statutes “must impose proper
procedures and evidentiary standards.” Leon G., 204 Ariz. 15, ¶ 8, 59 P.3d at 783. But
Jaramillo waived any substantive due process issue by failing to raise it below. See Orfaly
v. Tucson Symphony Soc’y, 209 Ariz. 260, ¶ 15, 99 P.3d 1030, 1035 (App. 2004)
(arguments not adequately presented in trial court are waived).