State v. Williamson
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DIVISION ONE FILED: 12/09/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL 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. LOREN WILLIAMSON, Appellant. 1 CA-CR 09-0476 DIVISION ONE FILED: 12/09/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2007-136314-001 DT The Honorable Stephen P. Lynch, Judge Pro Tempore AFFIRMED Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Law Offices of Robert Gaffney by Robert Gaffney Attorney for Appellant Phoenix Scottsdale W E I S B E R G, Judge ¶1 Loren Williamson ( Defendant ) appeals from his convictions for sexual conduct with a minor following a jury trial and from the sentences imposed. For reasons that follow, we affirm. PROCEDURAL HISTORY ¶2 Defendant was indicted on seven counts of sexual conduct with a minor under the age of fifteen years, class 2 felonies and dangerous crimes against children. Defendant was alleged to have intentionally or knowingly engaged in sexual intercourse or oral sexual contact with his biological daughter, A.W., on seven separate occasions on or between January 6, 2001 and June 5, 2007. on six counts. The jury found Defendant guilty as charged The court imposed presumptive, consecutive sentences of thirty-five years on each count. Defendant timely appealed. Arizona We have jurisdiction pursuant to Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1)(2003), 13-4031, and -4033(A)(2010) DISCUSSION ¶3 the On appeal, Defendant claims that testimony elicited by prosecutor and defense counsel regarding his religious affiliation violated Article 2, § 12 of the Arizona Constitution and Rule 610, Arizona Rules of Evidence ( Rule ). alleges that violated his injecting due his process religious rights reversible error. 2 and beliefs Defendant into constituted the trial fundamental, ¶4 During her direct examination, the prosecutor asked A.W. about her dad talking to her about marrying her. She responded, [h]e said that he was going to try to marry me through our religion, and that he said in the book it had said that it was okay. A.W. testified that their religion Wicca, 1 but that she did not know the name of the book. was When the prosecutor asked A.W., [s]o, you said that your dad told you that it was okay in your religion for him to marry you, she answered, process yes would and be added for him that to Defendant have sex told with her me. the last She also testified that Defendant had told her that in English history, kings would marry their daughters so they had a full blood line. Defendant unsuccessfully challenged A.W. s testimony about Defendant wanting to marry her on the ground that it was inadmissible other-act evidence under Rules 404(b) and 404(c). ¶5 On cross-examination, defense counsel questioned A.W. about a marriage between you and your father and her testimony that they practice the Wiccan religion. When counsel asked A.W. to tell us about the Wiccan religion, she answered, I don t really know much about it, because most everything I was told was a lie. Later, a juror submitted this question: Is 1 References to Wicca or Wiccan have been incorrectly spelled throughout the transcripts as Wickham. 3 the mother aware of the father/child being involved with the Wiccan religion? If so, does she approve? The judge responded, [a]nd that s a question [A.W.] is not qualified to answer. ¶6 During the direct examination of Defendant s wife and A.W. s mother, K.W., the prosecutor questioned her about Defendant s insistence that A.W. be put on birth control pills when she was eleven years old. their daughter to the family K.W. said she wanted to take doctor, because the doctor was Christian. but Defendant refused Instead, they took A.W. to Planned Parenthood. ¶7 On cross-examination, defense counsel questioned K.W. about Wicca. She described the religion as earth-based. When asked about its basic tenets, she testified that you believe in the earth and the trees and stuff like that. She also testified that Wiccans believe one should treat others [w]ith respect of how you like to be treated and refrain from harming them. In answer to a juror s question about her religion s view of marriage between a father and daughter, she testified that it is not a part of our religion. Our religion does not approve of that. ¶8 During his direct examination, a friend testified that he and his family had spent a lot of time with Defendant s 4 family and said they were a lot different from ours. He explained that he had been raised a Catholic and that he had never met anyone of that religion, and it was interesting. He also said that because they were opposites, they got along very well. ¶9 Finally, referred to Wicca. during closing argument, the prosecutor He told the jury, Defendant knew how to manipulate [A.W.] so that he [could] satisfy his own sexual desires. He groomed her by eroding her boundaries, taking showers with her, and even telling her at one point that they were married under their Wiccan religion, and they needed to seal the deal by having sex. ¶10 Article 2, § 12 of the Arizona Constitution provides in part that [n]o religious qualification shall be required . . ., nor shall any person be incompetent as a witness or juror in consequence of his opinion on matters of religion, nor be questioned touching his religious belief in any court of justice to affect the weight of his testimony. Rule 610 provides that [e]vidence of beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness credibility is impaired or enhanced. ¶11 Defendant did not object to the testimony concerning Defendant s religious beliefs on these grounds, and we therefore 5 review for fundamental error only. See State v. Lopez, 217 Ariz. 433, 434-35, ¶ 4, 175 P.2d 682, 683-89 (App. 2008) (an objection ground on and establish one we ground review does not solely fundamental, preserve for reversible issue fundamental error, on another error). Defendant must To first prove error, show that the error was fundamental in nature, and demonstrate Henderson, (2005). ¶12 that 210 the Ariz. error 561, caused 568, ¶¶ him prejudice. 23-26, 115 State P.3d v. 601, 608 There was no error in this case. 2 Taken together, Article 2, § 12, and Rule 610 express a strong public policy against injecting religious beliefs into a judicial proceeding. State v. Thomas, 130 Ariz. 432, 436, 636 P.2d 1214, 1218 (1981). beliefs or opinions for Reasons for exclusion of religious purposes of affecting a witness veracity rest on grounds of relevancy, possible prejudice and constitutional considerations. Id. In that case, our supreme court held that it was fundamental error for the prosecutor to make repeated and deliberate references to the religious nature of the victim and her grandmother 2 for the sole purpose of Citing State v. Pandelli, 215 Ariz. 514, 528, ¶50, 161 P.3d 557, 571 (2007), the State claims this was a clear case of invited error. We do not believe, however, that the doctrine of invited error applies in this case because Defendant did not purposefully inject error in the trial and then profit from it on appeal. State v. Logan, 200 Ariz. 564, 566, ¶ 11, 30 P.3d 631, 633 (2001). 6 bolstering the credibility of the victim s testimony and attempting to convey to the jury that [the victim] was more worthy of belief. Id. at 437, 636 P.2d at 1219 (citation omitted). ¶13 However, if such information is probative of something other than veracity, it is not inadmissible simply because it may also involve a religious subject as well. State v. Stone, 151 Ariz. 455, 459, 728 P.2d 674, 678 (App. 1986). case, the defendant was charged with criminal trespass aggravated assault when he entered the victim s home. 456, 728 P.2d at 675. In that and Id. at Although the victim, a Latter Day Saint, could not see the intruder, she testified that he was wearing LDS endowment garments used by those who practice the Mormon faith and both the prosecutor references to this testimony. and defense counsel made Id. 456-57, 728 P.2d at 675-76. We held that the religious references were not used to bolster the victim s credibility but to establish the identity of the defendant as the intruder and her reluctance to identify him as such. ¶14 1112 Id. at 459, 728 P.2d at 678. In State v. West, 168 Ariz. 292, 294, 812 P.2d 1110, (App. girlfriend. 1991), the During defendant his direct kidnapped and examination, assaulted the his defendant testified that the Lord states that the man should make the 7 woman happy, and in turn she will submit to him and that I think that s what the Lord wanted me to do, and that s what I did. Id. On cross-examination, the prosecutor questioned the defendant about his belief in the Bible and Ten Commandments as it related to his testimony that women were to be submissive to men. Id. at 294-95, 812 P.2d at 1112-13. We held that the defendant opened the door to the prosecutor s use of religious references to rebut the claim of religious justification for his conduct and that the evidence was not used improperly violation of the Arizona Constitution and Rule 610. in Id. at 296, 812 P.2d at 1114. ¶15 were In not witness. this used case, to the impair or prosecutor s enhance the references to credibility Wicca of any Rather, the prosecutor elicited testimony from A.W. about the Wiccan religion for the sole purpose of showing how Defendant manipulated and intimidated A.W. in order to continue sexually assaulting her. Evidence of Defendant s misuse religion was relevant to the issue of Defendant s conduct. of In this context, the reference to religion was no more improper than the reference to alleged incest in English royal families. ¶16 Defense counsel questioned A.W. and K.W. about Wicca. A.W. said she knew little about the religion, but thought most everything was a lie. K.W. explained that the Wiccan religion 8 adhered to the Golden Rule fathers marrying daughters. and that did not advocate Thus, Defendant opened the door to continued references to the religion. 296, 812 P.2d at 1114. it See West, 168 Ariz. at In any event, the references were not used to impair the credibility of either witness, but to dispel any prejudicial misconceptions the jurors may have had about the religion and to show that the entire family, not merely Defendant, practiced it. ¶17 As to K.W. s testimony about Defendant not wanting to take A.W. to their family doctor because of his religion, this was used to describe Defendant s conduct regarding daughter s use of birth control at an early age. his As to the testimony of the family friend about Defendant s family being different, partly because of religion, impair the credibility of a witness. this was not used to Moreover, the evidence was not prejudicial as the witness described these differences in a positive manner. ¶18 Defendant relies on Kelley v. Abdo, 209 Ariz. 521, 105 P.3d 167 (App. 2005), and State v. Leitner, 34 P.3d 42 (Kan. 2001), cited therein, to support his position. however, are distinguishable. no precedential value. These cases, Abdo has been depublished and has In Leitner, the court found that the defendant s practice of witchcraft was irrelevant to the issue 9 of her motive for killing her husband and that it was highly prejudicial because of the Satanic imagery it created in jurors minds. ¶19 34 P.3d at 55-56. In contrast, here, the references to Wicca were relevant to show Defendant s method of manipulating his daughter to obtain sexual gratification. They were not unduly prejudicial because A.W. and K.W., the State s key witnesses, also practiced the religion and K.W. testified that the religion in no way condoned Defendant s conduct. Moreover, none of the witnesses used the words pagan or witchcraft, nor did they testify that Wiccans do not believe in God. Thus, admission of this evidence was not error, let alone fundamental, reversible error. CONCLUSION ¶20 For the foregoing reasons, we affirm Defendant s convictions and sentences. /s/__________________________ SHELDON H. WEISBERG, Judge CONCURRING: /s/_______________________________ PHILIP HALL, Presiding Judge /s/_________________________________ PETER B. SWANN, Judge 10
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