State v. Butterfield
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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. ) ) RONALD DICK BUTTERFIELD ) ) Appellant. ) ) DIVISION ONE FILED: 07-01-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 08-0962 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. CR-2007-1455 The Honorable Lee F. Jantzen, Judge Pro Tem AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Robert A. Walsh, Assistant Attorney General Attorneys for Appellee Phoenix Jill L. Evans, Mohave County Appellate Defender Attorney for Appellant Kingman W I N T H R O P, Judge ¶1 Ronald Dick Butterfield was convicted of incest, a class 4 felony, and sentenced to the minimum term of 1.5 years imprisonment. See Ariz. Rev. Stat. ( A.R.S. ) §§ 13-3608 (2010), -702(A) (2010). 1 On appeal, Butterfield contends the trial court erred when it admitted hearsay statements the adult victim made Butterfield to her sister further argues ( Sister ) that, in and cousin the absence ( Cousin ). of those statements, there was insufficient evidence independent of his own admissions to establish the corpus delicti of the offense. For the reasons that follow, we affirm Butterfield's conviction. We have jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and A.R.S. §§ 12-120.21(A) (2003), 13-4031 (2010), and -4033 (2010). I. FACTUAL AND PROCEDURAL HISTORY 2 ¶2 The victim, who was forty years old at the time of trial, is Butterfield s daughter. The victim asserted her Fifth Amendment rights at a pretrial hearing and stated she would not testify because she did not want to incriminate herself. 3 Even though the victim was granted use immunity and was subpoenaed to 1 We cite the current version of the applicable statutes because no revisions material to our analysis have since occurred. 2 We construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant. State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998) (citation omitted). We do not weigh the evidence, however; that is the function of the jury. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 3 At a subsequent pretrial hearing, Butterfield suggested he and the victim had engaged in sexual acts in other states. 2 appear at trial, she could not be located at the time of trial and did not testify. Therefore, the only evidence regarding sexual her conduct description of between the acts and to Butterfield Sister and consisted Cousin, of her Butterfield s admissions to a detective, and Butterfield s testimony at trial. ¶3 Sister testified that, during a phone conversation in early 2007, the victim revealed to Sister that she had sex with my father. Sister later met with grandmother s house in February 2007. while there, the victim told us the victim at their Sister testified that, that she had sex with Butterfield, but didn t get into any details until Sister and the victim discussed the incident again when they were together during Easter vacation that year. she and Butterfield had sex on The victim told Sister that the bed in the bedroom of Butterfield s home in Kingman after Butterfield helped her take a bath. ¶4 The victim also stayed with Cousin for a short time during the same trip to see her grandmother in February 2007. Cousin testified the victim informed her that the victim and Butterfield had engaged in sexual activity. victim told Cousin she had taken a bath, Specifically, the and Butterfield insisted on helping to dry her off; that they then went into his bedroom and had sex; that during the encounter Butterfield went 3 inside her; that he also engaged in oral sexual contact; and that the incident occurred in Kingman. ¶5 Butterfield admitted to Sister that he had sex with the victim, but told Sister he had sex with the victim for therapeutic medical purposes. he had sex with the victim. victim take sometimes baths and masturbated He also admitted to a detective Butterfield admitted he helped the that, the at victim the victim s during her request, baths. He he also admitted that, in January 2007 at his home in Kingman, he and the victim had consensual intercourse after they took a bath together. At trial, however, Butterfield testified that he and the victim did have some sexual activity but it basically is defined as outercourse and never intercourse, and that they engaged in attacks. sexual the only to help the victim s panic Butterfield also denied that any sexual activity took place in Arizona. told activity Butterfield further testified he lied when he detective he and the victim engaged in sexual intercourse and when he told the detective some of the sexual activity took place in Kingman. II. ANALYSIS A. ¶6 Admission of the Victim s Statements Butterfield asserts that the trial court erred when it admitted the statements the victim made to Sister and Cousin. He argues the statements constituted 4 hearsay and were not admissible pursuant to any exception to the hearsay rule. See Ariz. R. Evid. ( Rule ) 804. 4 The trial court found the victim s statements pursuant were admissible statements against penal interest. to Rule 804(b)(3) as The court further found the statements were admissible pursuant to the catchall exception found in Rule 804(b)(5) because the statements had equivalent circumstantial guarantees of trustworthiness. ¶7 We review a trial court s evidentiary rulings for a clear abuse of discretion. State v. Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d 1260, 1275 (1990). exercise of discretion which Abuse of discretion is an 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) (citation omitted). In reviewing an exercise of discretion, we must remember: [T]he question is not whether the judges of this court would have made an original like ruling, but whether a judicial mind, in view of the law and circumstances, could have made the ruling without exceeding the bounds of reason. We cannot substitute our discretion for that of the trial judge. Assoc d Indem. Corp. v. Warner, 143 Ariz. 567, 571, 694 P.2d 1181, 1185 (1985) (quoting Davis v. Davis, 78 Ariz. 174, 179, 277 P.2d 261, 265 (1954) (Windes, J., specially concurring)). 4 Butterfield presents no issue regarding his right to confront the victim or the trial court s rulings regarding confrontation, and he does not contest that the victim was unavailable for purposes of Rule 804. 5 1. ¶8 Admission Pursuant to Rule 804(b)(3) Whether a person s statement is against his or her own interest is determined circumstances. Rule on the totality of the See State v. Nieto, 186 Ariz. 449, 455, 924 P.2d 453, 459 (App. 1996). to based 804(b)(3) For a statement to be admissible pursuant as a statement against interest, the declarant must be unavailable, the statement must be against the declarant s interest, and there must be corroborating circumstances that clearly indicate the trustworthiness of the [] statement. 956 P.2d 486, State v. Tankersley, 191 Ariz. 359, 370, ¶ 45, 497 (1998) (citation omitted). Although Rule 804(b)(3) does not require a direct confession in order for a statement to be against penal interest, the statement must implicate the declarant in a crime. State v. Fisher, 141 Ariz. 227, 244, 686 P.2d 750, 767 (1984). This includes disserving statements by a declarant that would have probative value in a trial against the declarant. Tankersley, 191 Ariz. at 370, ¶ 46, 956 P.2d at 497 (quoting State v. LaGrand, 153 Ariz. 21, 27, 734 P.2d 563, 569 (1987)). Further, [t]he judge's inquiry should be limited to the question of whether evidence in the record corroborating and contradicting the declarant's statement would permit a reasonable person to believe that the statement could be true. If the judge determines that a reasonable person could conclude that the statement could be true, the evidence comes in for the jury s consideration. 6 State v. Lopez, 159 Ariz. 52, 54-55, 764 P.2d 1111, 1113-14 (1988) (quoting LaGrand, 153 Ariz. at 28, 734 P.2d at 570 (internal citation omitted)). ¶9 We find no abuse of discretion in the admission of the victim s statements as statements against interest pursuant to Rule 804(b)(3). determined interest. the The The victim s victim, trial court statements a woman could were over reasonably against the age of her have penal eighteen, admitted she knowingly engaged in sexual intercourse and other proscribed sexual conduct with her father. this conduct was not consensual. There is no evidence She is presumed to know such conduct is illegal, see, e.g., State v. Soltero, 205 Ariz. 378, 380, ¶ 7, 71 P.3d 370, 372 (App. 2003), and her statements placed her at risk for prosecution for incest pursuant to A.R.S. § 13-3608 and possibly prosecution in other jurisdictions. The statements would have had probative value in a subsequent trial against the victim, and whether the victim would likely have ever been prosecuted is irrelevant. 5 ¶10 Further, there were corroborating circumstances that indicated the trustworthiness of the victim s statements. Ariz. R. Evid. 804(b)(3). The 5 victim s statements See closely There was evidence the victim made some of these statements while taking various prescription medications and/or in various states of mental alertness; however, such facts would go to the weight to be given the evidence by the jury, not its admissibility. See Lopez, 159 Ariz. at 55, 764 P.2d at 1114. 7 paralleled statements Butterfield later made to the detective; the statements were made to members of the victim s own family, thereby exposing her to familial stigma; the victim made the statements more than once to more than one person, and her statements were consistent; the statements were made soon after the event; and the victim would certainly not benefit from the statements due to the familial and social stigma associated with incest. P.2d See generally Tankersley, 191 Ariz. at 370, ¶ 45, 956 at 497 (stating trustworthiness of existence supporting of relationship a that factors statement between against and the used to determine include the evidence, the listener, the interest contradictory declarant the and the relationship between the declarant and the defendant, the number of times the statement was made, the length of time between the event and the environment statement, at the time the of psychological the statement, and declarant would benefit from the statement ). trial court did not abuse its discretion and physical whether the Therefore, the when it held the statements were admissible as statements against interest. 2. ¶11 statements evidence Admission Pursuant to Rule 804(b)(5) Even if were was we not assume arguendo admissible under admissible pursuant to that Rule Rule the victim s 804(b)(3), 804(b)(5), such the catchall exception to the hearsay rule when the declarant is 8 unavailable. Rule 804(b)(5) permits admission of a statement not covered by one of the other exceptions found in Rule 804 as long as the statement has equivalent circumstantial guarantees of trustworthiness. The statement must be offered as evidence of a material fact and be more probative on the point for which it is offered procured. purposes than Ariz. of R. [the other evidence Evid. 804(b)(5). evidentiary] rules that can be Further, and the reasonably the general interests of justice must be best served by admission of the statement into evidence. ¶12 Id. In evaluating the admissibility of evidence under Rule 804(b)(5), the trial court must again consider the totality of the circumstances. State v. Valencia, 186 Ariz. 493, 498, 924 P.2d 497, 502 (App. 1996). individually evidence situation. and based determine on The court must look at each case the whatever reliability circumstances of the exist particular in that This approach requires that the evidence be reliable within the spirit rather than the letter of Rule 804(b). State v. Robles, 135 Ariz. 92, 95, 659 P.2d 645, 648 (1983) (citation omitted). This allows for judicial discretion to accommodate unusual situations not foreseen by the drafters of the rules when they enumerated the other [] exceptions [contained in Rule 804(b)]. Id. 9 ¶13 We find that the trial court did not abuse its discretion when it admitted the victim s statements pursuant to Rule 804(b)(5). The statements of the victim were offered as evidence material of a fact and, with the exception of Butterfield s own admissions, were more probative of whether the incident occurred reasonably procured. indicated the purposes of admitted other The same of 804(b)(3) guarantees pursuant to any trustworthiness Rule circumstantial admission than to members ordinarily believed it statements victim was admit a her family closely made the unless criminal that for the equivalent necessary Again, that she the had for victim engaged in This is not something a person true, regardless offense. Further, paralleled statements provided be statements victim s 804(b)(5). consensual sex with her father. would the could factors trustworthiness Rule of that corroborating also of evidence Butterfield s more than once whether the victim s statements; to more they than the one person, and her statements were consistent; the statements were made soon after the event; and the victim would suffer the familial and social stigma associated with incest. ¶14 In summary, we find no abuse of discretion in the admission of the victim s statements pursuant to either Rule 804(b)(3) or Rule 804(b)(5). 10 B. The Corpus Delicti ¶15 Butterfield further argues that, absent the improperly admitted statements of the victim, there was insufficient evidence to establish the corpus delicti of the offense because the only other statements. evidence of the crime consisted of his own A defendant may not be convicted of a crime based upon an uncorroborated confession without independent proof of the corpus delicti, or the body of the crime. State v. Nieves, 207 Ariz. 438, 440, ¶ 7, 87 P.3d 851, 853 (App. 2004) (quoting State v. Morgan, 204 Ariz. 166, 170, ¶ 15, 61 P.3d 460, 464 (App. 2002)). The corpus delicti rule requires that, before a defendant s statements are admissible as evidence of a crime, the State must show both proof someone is responsible for that crime. The purpose conviction of the based corpus solely delicti on an of a crime and that Id. (citation omitted). rule is to individual s prevent a uncorroborated confession, the concern being that such a confession could be false and the conviction thereby lack fundamental fairness. Id. (quoting State v. Flores, 202 Ariz. 221, 222, ¶ 5, 42 P.3d 1186, 1187 (App. 2002)). 6 ¶16 trial We find no error. court did not abuse We have already determined that the its 6 discretion when it held the Despite the State s contentions to the contrary, the corpus delicti rule remains valid and applicable in Arizona. Nieves, 207 Ariz. at 444, ¶ 29, 87 P.3d at 857. 11 victim s statements Therefore, offense the were State independent admissible established of pursuant the Butterfield s corpus to Rule delicti extrajudicial 804(b). of the statements and his trial testimony. III. CONCLUSION ¶17 Finding no error, we affirm Butterfield s conviction. ________________/S/__________________ LAWRENCE F. WINTHROP, Judge CONCURRING: _________________/S/_______________ PATRICIA A. OROZCO, Presiding Judge ________________/S/________________ DANIEL A. BARKER, Judge 12
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