State v. Brown
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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.
RON DAMON BROWN,
Appellant.
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No. 1 CA-CR 10-0428
DEPARTMENT D
DIVISION ONE
FILED: 09/08/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
MEMORANDUM DECISION
(Not for Publication Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause Nos. CR2009-117976-001 DT
The Honorable Lisa M. Roberts, Judge Pro Tem
AFFIRMED
Thomas C. Horne, Arizona Attorney General
by
Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Robert A. Walsh, Assistant Attorney General
Attorneys for Appellee
Phoenix
Tyrone Mitchell, P.C.
by Tyrone Mitchell
Attorneys for Appellant
Phoenix
G E M M I L L, Judge
¶1
Defendant Ron Damon Brown appeals from his convictions
and sentences for one count of sexual abuse and two counts of
sexual conduct with a minor under the age of fifteen.
He argues
that the trial court erred by admitting evidence pursuant to
Ariz. R. Evid. 404(c) of other sexual acts he committed with the
victim.
For reasons set for below, we affirm.
FACTS 1 AND PROCEDURAL HISTORY
¶2
Brown met Sandra sometime in 1999 or 2000.
He first
met Sandra’s daughters J and C sometime in 2000 or 2001, while
Sandra was still living at her parents’ house.
J was born on
November 1993.
¶3
In February 2003, Sandra and her daughters moved into
their own apartment in Phoenix, and Brown and Sandra began a
more “serious” relationship.
J was nine years old when they
moved into the apartment; Brown was thirty-one.
A “month or
two” after their move, Sandra gave Brown a key to the apartment
so that he could “have access whenever he wanted.”
Sometime in
2005, Brown moved in with Sandra and her daughters and began
referring to the girls as his “stepdaughters” and helping to pay
the household bills.
¶4
discovered
In
2006,
that
Kent
when
J
was
Marshall,
1
an
twelve
years
adult
living
old,
in
Sandra
the
same
The applicable standard of appellate review requires that we
view the evidence in the light most favorable to sustaining the
verdicts and resolve all reasonable inferences in support of the
convictions.
See State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3,
110 P.3d 1026, 1027 (App. 2005).
2
apartment
complex,
had
been
having
sexual
relations
with
J.
Sandra reported the matter to the police the same day that she
learned of it, and Marshall was ultimately charged and convicted
for his crimes.
Brown was a member of the household at the time
and offered Sandra “moral support” throughout in dealing with
the matter.
¶5
In
“broke
up”
problems,”
January
because
and
or
he
Brown
February
and
moved
of
2009,
Sandra
were
out
the
of
Brown
having
and
Sandra
“relationship
apartment.
Near
the
middle of February, Sandra brought a new male friend to the
apartment; and when J saw him, “it just set her off.”
It made J
angry that Brown had “just moved out” and that Sandra “had got a
new
boyfriend”
and
“brought
another
guy
to
the
house.”
Consequently, she “started a fight” with her mother, during the
course of which she revealed that Brown had been “having sex
with her” for four years.
¶6
J recalled that Brown abused her for the first time in
their apartment on April 21, 2003, when she was nine years old.
They were lying on a bed in her mother’s bedroom with her sister
waiting for her cousin to arrive so they could celebrate his
birthday.
Brown was lying on the bed between J and her sister;
and, when J got up to go to the bathroom, she accidentally
touched
his
penis
with
her
hand.
Brown
“pulled
[her]
back
down,” positioned a pillow so that her sister could not see his
3
hand, put his hand under the sports bra she was wearing, and
manipulated her nipples “for five minutes.”
Brown only stopped
after J stated that her cousin had arrived so that she had “a
reason to get out of the room.”
¶7
On the weekend after this incident, Brown first had
sexual intercourse with J after Sandra had left him alone with
the
girls
cousins.
in
the
apartment
while
Sandra
went
out
with
her
Brown came into J’s bedroom, got on top of her, and
“put his penis in [her] vagina.”
J knew his penis was inside
her vagina “[b]ecause it was hurting.”
Brown told J not to tell
her mother.
¶8
told
J specifically remembered a third incident when Brown
her
that
“sex
was
supposed
to
happen
to
her.”
This
occurred one evening when J had been asleep on the couch in the
living room.
Brown had come home, woken her, “bent [her] over
the couch,” and inserted his penis in her vagina.
As he was
having intercourse with her, Brown had made the statement that
“this was supposed to happen” to her.
J could not recall the
precise date that the couch incident took place.
did
recall
that
she
was
still
wearing
a
However, she
nightgown
with
no
underwear when it occurred, which indicated that the assault
occurred before she was twelve years old when she switched to
wearing pajamas with underwear beneath them.
J also recalled
that she was attending elementary school at Villa de Paz at the
4
time.
¶9
According to J, after the initial intercourse, Brown
had sex with her “a lot;” she estimated that it occurred “[o]ver
50 times . . . [e]verywhere in the house,” even in her mother’s
bedroom.
Although all three incidents involving Brown occurred
prior to her abuse by Kent Marshall, J did not reveal Brown’s
abuse to the police or her mother or to anyone involved in the
Marshall investigation because she was “scared”; because “[the
sex] seemed normal”; and because, at the time, she “did not
realize that it wasn’t normal, that something was wrong.”
Brown
did
being
stop
having
sex
with
her
while
Marshall
was
prosecuted; however, that lasted only a month and then Brown
resumed his sexual relations with her.
¶10
J was unable to remember additional acts of sexual
abuse by Brown with any specificity because the abuse happened
so often to her that “[i]t’s starting to seem all the same.”
It
was only her sheer anger at her mother’s introduction of a new
boyfriend to their home, when Brown had only just left it, that
finally enabled or motivated J to tell her mother what Brown had
done to her.
¶11
Sandra
initially
did
not
believe
J’s
disclosures
because she did not think that Brown “would be capable of doing
something like that.”
Either that same night or the following
day, using J’s cell phone, Sandra texted Brown “I’m going to
5
tell my mom what you did.”
Almost immediately, Sandra received
a text message from Brown in return saying, “[P]lease don’t.
never meant to hurt you or your mom.”
Brown telephoned J’s cell phone.
immediately
confronted
Brown
having sex with her daughter.
with
I
Two minutes after that,
Sandra answered the call and
the
fact
that
he
had
been
When she asked him “what he was
thinking” in doing that to J, Brown only answered that he was
“sorry and that he didn’t mean for anything to happen like that”
and that he “didn’t know why he did it . . . and he didn’t know
what he was thinking.”
¶12
abuse,
Unlike she had done when she learned of Marshall’s
Sandra
did
Brown’s crimes.
not
immediately
call
the
police
to
report
Instead, she waited several days during which
she had Brown return a truck they co-owned to her and also make
some monthly payments due on it.
Although Brown told Sandra
that “he would do whatever as long as [she] didn’t call the
police on him,” Sandra intended to call the police all along and
never made any explicit promise not to do so.
She was concerned
about the truck and the money because the truck was in her name
and she was worried about her credit rating.
A week and a half
later, after Brown had returned the truck to her and given her
money for the outstanding payments, Sandra called the police.
¶13
Phoenix
Police
Detective
F.
of
the
Crimes
Against
Children Bureau interviewed Sandra and J on March 12, 2009.
6
At
Detective F.’s request, Sandra also engaged in a confrontation
call 2 with Brown.
During the confrontation call, Brown admitted
having sex with J starting when she was nine years old, but
could not remember how many times it happened because he “wasn’t
counting or keeping track or nothing like that.”
Brown admitted
to “touching her boobs” and “just the sex thing,” but professed
to be unable to explain “why this happened, how it happened, why
I did it.”
test,”
Brown
When Sandra asked Brown if J needed a “pregnancy
replied
that
she
did
not
need
one
because
“pulled out” every time and had “never ‘came’ inside her.”
he
To
Sandra’s accusation that he had had sex with J “for four years,”
Brown only replied, “I know, I know[,] [b]ut I’m just saying I
don’t even know why . . . what possessed me to do it.”
¶14
Brown was arrested the day of the confrontation call
and interviewed by Phoenix Police Detective V.G.
The interview
was audio and video taped and a DVD of the interview was later
played for the jurors during the trial. Although Brown claimed
that he could not remember specific incidents or how many times
he had had sex with J, he never denied that sexual intercourse
had happened, specifically, that he had put his penis in her
vagina and touched her breasts.
Brown also admitted having sex
with J in various rooms in the apartment, including J’s bedroom,
2
The call was audio taped, and the tape was played for the jury
at trial. A transcript of the call was also given to the jury.
7
her mother’s bedroom, and the living room.
When pressed to do
so by Detective V.G., Brown estimated that he had had sex with J
about “ten” times or “more than ten times” and agreed that he
had had sex with her when she was nine or ten until she was
fourteen.
He
denied
having
oral
or
anal
sex
with
J,
and
admitted that his conduct was limited to vaginal sex and to
touching J’s breasts both over and under her clothing.
He told
Van Gordon that he felt “sick to his stomach afterwards” and
while he could not “remember” telling J that he would “stop” he
told himself that “all the time.”
He also confirmed that he had
stopped for a while when the Marshall incident occurred because
he was “scared,” but that he started again because he was “hard
headed.”
Brown maintained throughout that he did not know why
he had done what he had done, “what possessed [him],” because he
did not think about children “that way.”
¶15
The State charged Brown with the three felony counts
that
reflected
remembered:
years
of
the
three
instances
of
abuse
J
specifically
Count 1, sexual abuse with a minor under fifteen
age
(direct
or
indirect
touching,
fondling,
manipulation of breast), a Class 3 felony and dangerous crime
against children; Count 2, sexual conduct with a minor under
fifteen years of age (penile/vaginal contact (first time)), a
Class 2 felony and dangerous crime against children; and Count
3,
sexual
conduct
with
a
minor
8
under
fifteen
years
of
age
(penile/vaginal contact (time on couch)), a Class 2 felony and
dangerous crime against children.
¶16
Brown
testified
at
trial
and
categorically
having any sexual contact of any kind with J.
that
he
had
only
acquiesced
to
the
denied
He maintained
accusations
during
the
confrontation call because he was “scared” and knew where “it
was going to lead” because of what had happened to Marshall.
At
trial, he characterized his payments to Sandra and the return of
the
truck
as
“blackmail.”
He
therefore
acquiesced
to
her
accusations because he “wanted this to go away” and “thought
maybe” that all that Sandra would do “is just . . . keep me
going by blackmailing me.”
¶17
Brown testified that he had gone along with Detective
V.G.’s accusations during the interview, not because they were
“true,” but merely because Detective V.G. had made him “feel
that what [he] said and what [he told] her and what she wanted
to hear would help [him].”
He testified that his “thing” was to
“act like [he] was scared” and to “act like [he] was remorseful”
with Detective V.G. because it would help him, not because he
was “guilty.”
¶18
On cross-examination, Brown admitted that he had never
mentioned the truck or the payments or the issue of “blackmail”
or
extortion
interview
with
during
either
Detective
the
V.G.
9
confrontation
call
or
his
Following
from
a
jury
up
question, Brown also admitted to the prosecutor that he had only
“acted”
remorseful
because
he
was
“trying
to
manipulate
the
process.”
¶19
At the conclusion of the trial, the jury found Brown
guilty of all the offenses as charged.
In a separate hearing,
the jury found the following aggravating factors: (1) emotional
harm to the victim; (2) Brown held a position of trust and/or
duty of conscience towards the victim; and (3) the abuse was
chronic, occurring over several years.
¶20
On May 14, 2010, the trial court sentenced Brown to
the presumptive term of five years in prison on Count 1 and to
the aggravated term of life imprisonment on each of Counts 2 and
3.
The court also ordered that all of the sentences be served
consecutively to each other.
¶21
Brown timely appealed.
This court has jurisdiction
pursuant to the Arizona Constitution, Article 6, Section 9, and
Arizona
Revised
Statutes
(“A.R.S.”)
sections
12-
120.21(A)(1)(2003), 13-4031 and -4033 (2010).
DISCUSSION
¶22
Brown’s
sole
argument
on
appeal
is
that
the
trial
court erred in permitting the State to present evidence of other
sexual acts Brown performed on J pursuant to Ariz. R. Evid.
404(c).
Specifically
Brown
objects
to
the
fact
that
J
was
permitted to testify (1) that Brown had sexual intercourse with
10
her
on
many
occasions
during
the
time
period
when
she
was
between nine and twelve or fourteen years of age, even though
she could not give any specific details as to the times, dates
or
particular
sexual
acts
involved,
and
(2)
that
Brown
had
sexual intercourse “at least 50 times subsequent to the charged
offenses, at various unspecified places in her mom’s apartment.”
¶23
We review a trial court’s admission of uncharged acts
evidence
pursuant
discretion.
to
Ariz.
R.
Evid.
404(c)
disputed
proponent,
an
abuse
of
State v. Garcia, 200 Ariz. 471, 475, ¶ 25, 28 P.3d
327, 331 (App. 2001) (citation omitted).
any
for
evidence
maximizing
“in
its
the
light
probative
In so doing, we view
most
value
favorable
and
to
the
minimizing
its
prejudicial effect.” State v. Kiper, 181 Ariz. 62, 66, 887 P.2d
592, 596 (App. 1994).
¶24
“An abuse of discretion is ‘an exercise of discretion
[that]
is
manifestly
unreasonable,
grounds or for untenable reasons.’”
exercised
on
untenable
State v. Wassenaar, 215
Ariz. 565, 570, ¶ 11, 161 P.3d 608, 613 (App. 2007).
“[A]bsent
a clear abuse of discretion, this court will not second-guess a
trial
court’s
evidence.”
1277
ruling
the
admissibility
or
relevance
of
State v. Spreitz, 190 Ariz. 129, 146, 945 P.2d 1260,
(1997).
discretion
on
when
We
it
find
the
admitted
trial
court
the
evidence
404(c).
11
did
not
pursuant
abuse
its
to
Rule
¶25
Rule 404(c) provides that evidence of other crimes,
wrongs, or acts is admissible in criminal cases involving sexual
offenses if it is “relevant to show that the defendant had a
character trait giving rise to an aberrant sexual propensity to
commit the offense charged.”
It also provides that, prior to
admitting such evidence, the trial court must first make three
findings:
(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.
In making that determination under
Rule 403 the court shall also take into
consideration the following factors, among
others: (i) remoteness of the other act;
(ii) similarity or dissimilarity of the
other
act;
(iii)
the
strength
of
the
evidence that defendant committed the other
act; (iv) frequency of the other acts; (v)
surrounding
circumstances;
(vi)
relevant
intervening events; (vii) other similarities
or
differences;
(viii)
other
relevant
factors.
Ariz. R. Evid. 404(c)(1)(C).
¶26
Prior to trial, the State filed a notice of its intent
to admit evidence of other uncharged sexual acts Brown committed
12
against J pursuant to Rule 404(c) and State v. Garner, 116 Ariz.
443, 569 P.2d 1341 (1977). 3
The “other act” evidence related to
J’s statements that Brown had had sex with her “over 50 times”
during the four-year period from when she was nine to when she
was fourteen years old.
Brown objected to the introduction of
the
arguing
evidence
at
trial,
that
there
was
insufficient
evidence that he committed the acts, that the victim’s inability
to
recall
specific
details
of
the
acts
made
the
evidence
unreliable, that it was unclear if the other acts were similar
and/or too remote, and that the fact that most of the other acts
occurred after the charged offenses did not provide a reasonable
basis for finding that he had a character trait giving rise to
an aberrant sexual propensity to commit the charged offenses.
According
to
Brown,
the
therefore
substantially
probative
outweighed
value
by
of
the
the
evidence
danger
of
was
unfair
prejudice.
¶27
On November 13, 2009, the trial court held a hearing
on the matter.
In support of its position, the State offered a
tape of the confrontation call, two tapes of forensic interviews
with J, “the confession CD” between Detective V.G. and Brown,
and a tape of the forensic interview of the victim’s sister.
3
In cases involving sex offenses against a child, evidence of
prior similar acts committed against the same child are
admissible to show lewd disposition or unnatural attitude toward
same victim. 116 Ariz. at 447, 569 P.2d at 1345.
13
The
State
forensic
argued
that
interview
the
“alone”
victim’s
would
statements
provide
during
sufficient
her
evidence
that the other sexual acts had occurred, but that, here, where
the
trial
court
also
had
the
evidence
of
Brown’s
statements
during his interview, the evidence was more than sufficient to
establish under the “clear and convincing standard” that the
other sexual acts had occurred.
See State v. Terrasaz, 189
Ariz. 580, 582, 944 P.2d 1194, 1196 (1997) (profferer to prove
by
clear
and
convincing
evidence
that
other
bad
acts
were
committed and that defendant committed them).
¶28
In addition to reiterating his general concern that
“extreme prejudice” would result from the jury simply hearing
about all the other acts, defense counsel stated that he was
primarily concerned because one of the charges (Count 3/sexual
intercourse
“occurred
defense
on
at
the
some
counsel,
couch)
point
the
in
alleged
that
the
entire
evidence
posed
the
sexual
year.”
the
conduct
According
great
risk
to
of
“misleading” by not allowing the jury to “differentiate” between
the
substance
of
“all
those
uncharged
substance” of the third charged act.
acts”
and
the
“actual
The State responded by
arguing that defense counsel’s specific concerns regarding Count
3 could be successfully addressed via a voir dire inquiry that
ascertained
whether
prospective
jurors
were
capable
of
separating charged versus uncharged conduct coupled with a final
14
limiting instruction to the jury.
¶29
After taking the matter under advisement and reviewing
all of the evidence, including the various audio and video taped
interviews, the trial court ruled that the other act evidence
was admissible pursuant to Rule 404(c).
The trial court first
found that the victim’s statements in her interviews, Brown’s
statements in the confrontation call, and Brown’s admissions to
Detective V.G. established “by clear and convincing evidence”
that the other acts of abuse had indeed occurred.
Despite the
fact that the victim was not able to recall specific dates and
details about the other acts of abuse, the court noted that the
victim’s firm allegation that the abuse occurred repeatedly over
the
period
of
time
was
corroborated
by
Brown’s
statement
to
Detective V.G. that he had sexual intercourse with the victim
“approximately 10 times” and his statements to Sandra in the
confrontation call that he had had sex with her “over a four
year period enough times that he could not remember how many
times it occurred.”
¶30
Ariz. R. Evid. 404(c)(1)(A).
Next, the trial court found the other acts provided a
reasonable
propensity.
basis
to
infer
that
Brown
had
an
aberrant
sexual
Given evidence of the “repeated sexual abuse of the
same child over an extended period” of time, the court reasoned
that
“[a]ny
reasonable
person”
would
find
that
an
adult
who
committed those types of acts against a child between the ages
15
of nine and thirteen, repeatedly and consistently, would have
“an aberrant sexual propensity to commit charged crimes.”
The
other acts would therefore provide the jury with “a reasonable
basis” for inferring that Brown had “a character trait giving
rise
to
an
alleged.”
¶31
sexual
aberrant
sexual
propensity
to
commit
the
crime
the
other
Ariz. R. Evid. 404(c)(1)(B).
Finally,
acts
“were
the
trial
not
court
remote
in
found
that
time”
(1)
but
were
instead
“continuous and . . . identical to the charged acts”; (2) based
on Browns’s corroborating admissions and statements, there was
“strong
evidence”
upon
which
a
jury
could
conclude
that
defendant committed the other acts “frequently and repeatedly,
over the period at issue.”
Ariz. R. Evid. 404(c)(1)(C).
applying
403
the
required
Rule
balancing,
the
trial
In
court
specifically found that, although the other act evidence was
“certainly prejudicial,” it was not “unfairly prejudicial” and
that its evidentiary value was “not substantially outweighed by
the danger of unfair prejudice.”
¶32
In
ruling
the
evidence
admissible,
the
trial
court
also rejected defense counsel’s argument that the other acts
were not admissible to show propensity because they occurred
after the three charged offenses.
It found that Rule 404(c)
“codified and expanded Garner and similar cases” and that the
language of Rule 404(c) imposed no requirement that the other
16
acts had to have happened before the charged acts in order to
prove an aberrant propensity.
Ariz.
1,
8,
defendant’s
¶
10,
prior
234
or
See, e.g., State v. Hargrave, 225
P.3d
569,
subsequent
576
acts
(2010)
not
(evidence
admissible
to
of
show
defendant is bad person or propensity for committing crimes but
is
admissible
for
exceptions
set
forth
in
404(b));
State
v.
Moreno, 153 Ariz. 67, 69 734 P.2d 609, 611 (App. 1986) (evidence
of
subsequent
intent).
act
admissible
to
show
404(b)
knowledge
or
See also State v. Marshall, 197 Ariz. 496, 500-501, ¶
13, 4 P.3d 1039, 1043-44 (App. 2000) (other sexual acts with
same victim admissible to show propensity to commit aberrant sex
upon
victim
or
intrinsic
because
intertwined
with
charged
crime).
¶33
On appeal, Brown challenges the trial court’s ruling,
arguing that the “lack of reliability” of the victim’s testimony
concerning the other sexual acts made the evidence particularly
susceptible to prejudicing the jury in this case.
He reasons
that the evidence of the other acts “undoubtedly confused the
issues” and rendered the jury unable to “differentiate between
the uncharged acts and the sexual intercourse alleged in Counts
2 and 3” because the “victim could not even recall at the time
of trial how old she was during the last charged incident of
sexual intercourse which occurred on her couch.”
¶34
We first address Brown’s argument that the evidence of
17
the other acts was “unreliable” simply because the victim could
not
give
“specific
information
regarding
the
dates,
places,
manner of sexual conduct, etc., other than stating that she had
sexual intercourse with [Brown] at least 50 times throughout her
mother’s
apartment.”
The
trial
court
found
that
clear
and
convincing evidence of the other sexual acts was established not
only
by
the
admissions.
¶35
victim’s
statements,
but
also
by
Brown’s
own
The record supports the court’s finding.
The court noted that J, in her interviews, “firmly
alleged” that the other acts of abuse occurred “repeatedly over
the period of time.”
Thus, J’s statements alone would have been
sufficient proof of the other acts.
See State v. Jerousek, 121
Ariz. 420, 427, 590 P.2d 1366, 1373 (1979) (in child molestation
case, defendant may be convicted on uncorroborated testimony of
victim).
But
here,
Brown’s
own
statements
to
Sandra
and
Detective V.G. corroborated J’s statements that he had sex with
her multiple times throughout the apartment when she was between
the ages of nine and twelve.
Brown told Detective V.G. that he
had not counted the number of times he had sex with J but that
he estimated that it was ten times or more than ten times and
that it had taken place in her bedroom, her mother’s bedroom,
and in the living room.
He agreed with Detective V.G. that he
had intercourse with J from the time she was nine or ten up
until she was fourteen.
He also specifically admitted that he
18
had limited his sexual contact to touching J’s breasts and to
penile vaginal intercourse. He confirmed J’s testimony that he
had stopped having sex with J for a while when Marshall’s abuse
was discovered in 2006, when J was thirteen years-old, but that
he started having sexual relations with her again after that.
Brown made similar admissions to Sandra during the confrontation
call.
He told her that he had touched J’s breasts and engaged
in “just the sex thing,” but that he had always pulled out
before ejaculating.
He also admitted that he started having sex
with her when she was nine, but that he could not remember how
many times it had happened because he “wasn’t keeping track.”
¶36
The fact that a child victim of abuse may not remember
the exact dates or times of offenses does not necessarily mean
that evidence of the acts is not admissible into evidence if the
child is otherwise certain of when they occurred.
590 P.2d at 1373.
Id. at 427,
Furthermore, here, J’s allegations concerning
the other acts of sexual intercourse, as well as the time frame
in
which
Brown’s
they
occurred,
admissions
and
were
sufficiently
statements
to
police
corroborated
and
her
by
mother.
The trial court did not abuse its discretion in finding that the
other act evidence was proven by clear and convincing evidence,
and that it was therefore reliable and admissible under Rule
404(c) to show that Brown possessed a character trait that gave
rise to an aberrant sexual propensity to commit the crimes with
19
which he was charged against J.
¶37
Nor
did
the
trial
court
abuse
its
discretion
in
finding that the probative value of the uncharged acts was not
substantially
outweighed
by
the
Ariz. R. Evid. 404(c)(1)(C).
“similarity” 4
evidence
issues
that
are
Brown
had
danger
of
unfair
prejudice.
The “frequency,” “remoteness” and
all
satisfied
committed
by
the
the
same
substantial
act,
sexual
intercourse, with the same victim, repeatedly, over a span of
four years.
Furthermore, as required by Rule 404(c)(2), the
trial court properly gave the jury a limiting instruction.
It
instructed the jurors that they were to use this evidence of the
other acts to determine if Brown had a character trait that
predisposed
him
to
commit
the
charged
crimes.
The
court
cautioned the jurors that they could not convict Brown of the
crimes charged simply because they find that he committed these
uncharged acts.
The court also emphasized that evidence of the
other acts did not lessen the State’s burden of proving Brown’s
guilt “beyond a reasonable doubt.”
¶38
Additionally,
in
this
case,
the
prosecutor
in
her
closing argument urged the jury to review and adhere to the
trial court’s instructions regarding the other act evidence and
to “be fair to the Defendant and the State.”
4
Brown concedes that the uncharged acts were similar to the
charged acts, but maintains that this may actually have added to
the prejudice by confusing the issues.
20
¶39
Brown cites Garcia in support of his argument that the
evidence
was
support
improperly
Brown’s
admitted.
However,
arguments.
Garcia
Garcia
does
acknowledges
not
the
admissibility of 404(c) uncharged act evidence to establish a
defendant’s “lewd disposition toward a particular victim” or to
establish “an aberrant sexual propensity to commit the charged
crime.”
200 Ariz. at 476, ¶¶ 30-31, 28 P.3d at 332.
In Garcia,
the trial court abused its discretion by “neglecting to perform
Rule
404(c)
screening
and
a
Rule
403
balancing
test
before
admitting a large volume of uncharged acts evidence at trial.”
Id.
at
479,
¶
45,
28
P.3d
at
335.
As
reflected
in
our
discussion above, the trial court in this case carefully engaged
in the appropriate 404(c) and 403 analyses before determining
that the other act evidence was admissible.
record
supports
its
findings.
Therefore,
Furthermore, the
unlike
the
Garcia
court, the trial court performed the appropriate screening and
did not abuse its discretion.
¶40
contends
Brown
raises
“compounded”
the
two
additional
problem
of
issues
confusion
and
which
he
therefore
increased the probability of “undue prejudice” as a result.
¶41
At
the
close
of
the
evidence,
the
trial
court
permitted the State to amend the time reference in Count 3, the
incident
on
the
couch,
to
reflect
the
testimony
at
trial.
Originally, the charge read that the offense occurred between
21
the “22nd day of November 2002 and the 21st day of November 2003.”
The trial court granted the State’s motion to amend the time
reference to between the “1st day of May 2003 and the first day
of January 2005.”
Brown argues that the amendment shows that
the State could not prove that the crime was committed between
November 22, 2002, and November 21, 2003.
Given that the other
act evidence of “50 incidents of sexual intercourse” could have
overlapped with the incident alleged in Count 3, Brown contends
that
the
amendment
essentially
allowed
the
State
to
“prove”
Count 3 “through the introduction of the excessively prejudicial
other sexual acts evidence.”
¶42
This argument is unpersuasive.
The date of an offense is not an element of sexual
assault.
State v. Jones, 188 Ariz. 534, 543, 937 P.2d 1182,
1191 (App. 1996); A.R.S. § 13-1406.
An error in the date of an
offense alleged in an indictment does not change the nature of
the offense charged and may be remedied by amendment. Id. at
544, 937 P.2d at 1192; Ariz. R. Crim. P. 13.5(b).
¶43
that
The dates were changed based on J’s testimony at trial
she
underneath
was
when
still
the
wearing
couch
a
nightgown
incident
took
with
place,
no
that
underwear
she
was
attending elementary school at the time, and that it predated
her abuse by Marshall, which began when she was twelve.
Based
on J’s age and the other testimony at trial, the prosecutor and
22
the court agreed that the range from May 1, 2003 5 up to January
1, 2005, when she would have been twelve, was reflective of the
evidence.
¶44
Nor do we find any evidence in the record that, as
Brown argues, the jury could have confused the events charged in
Counts 2 and 3 either because of the other act evidence or
because
of
the
amendment
to
Count
3.
J
testified
to
two
specific acts of sexual intercourse, which were the two offenses
charged in Count 2 and Count 3.
The verdict forms referred to
those specific acts: Count 2 specified “(First Time)”; Count 3
specified “(Time on Couch).”
The charge in Count 2 specifically
dealt with the “first time” Brown had sexual intercourse with J
in her bedroom, which J specifically testified, occurred on the
weekend following April 21, 2003, when Brown touched her breast.
Although J could not remember a specific date for the sexual
intercourse charged in Count 3, she testified that it happened
at another time and she specifically recalled that it occurred
“on the couch,” that she was wearing a nightgown, and that Brown
had told her at that time that “this was supposed to happen to
[her].”
It
was
clear
from
the
testimony
that
the
sexual
intercourse in Count 3 occurred after the “first time” alleged
in Count 2.
Moreover, none of the other sexual intercourse
5
The prosecutor based this on the fact that J testified that
the intercourse first occurred the weekend following the breast
incident, which took place on April 21, 2003.
23
evidence referred specifically to “a couch,” which appears to
have been the distinguishing memory for J for Count 3.
¶45
The evidence at trial supported the amendment to Count
3. Ariz. R. Crim. P. 13.5(b).
The amendment could not have
prejudiced Brown because his sole defense was that he had never
abused J and that the charges were the product of lies and
fabrications on the part of J and her mother.
The trial court
did not abuse its discretion in granting the State leave to
amend the charge, State v. Sammons, 156 Ariz. 51, 55-56, 749
P.2d 1372, 1375-76 (1988), and the amendment to Count 3 does not
undermine its decision to admit the Rule 404(c) evidence.
¶46
Brown
also
argues
that
“the
trial
court
created
further prejudice” by denying his request to cross-examine J
about “third parties” with whom she had contact during the same
period as the alleged uncharged acts.
Brown
filed
a
motion
to
conduct
Prior to the first trial,
cross-examination
third parties and prior sexual acts involving J.
regarding
The motion was
premised in part on the fact that Kent Marshall had already been
convicted of having sexual intercourse with J between October 1,
2005,
and
September
21,
2006,
before
J
disclosed
Brown’s
offenses, and that Marshall and Brown were both African-American
of roughly the same age, height, and appearance.
motion
also
sought
to
question
J
about
However, the
“multiple
African-
American males roughly matching the description of Mr. Marshall
24
and [Brown] [who] frequented [J’s] home and even stayed with [J]
and her mother over the past several years.”
premised
on
the
fact
that
J
was
Brown’s motion was
exhibiting
“script
memory”
issues regarding Brown’s offense and could not recall specific
details
or
times
although
she
claimed
to
have
abused by Brown “approximately 50 times.”
been
sexually
The judge in the
initial trial permitted Brown to ask J and her mother questions
regarding other African-American men who came into contact with
J
during
the
exception
of
time
frame
Marshall,
in
the
the
indictment,
judge
but,
prohibited
with
Brown
the
from
questioning J about sexual contact with any of these other men.
¶47
The
The first trial ended in a mistrial in January 2010.
State
never
contested
Brown’s
motion
with
regard
to
Marshall.
However, prior to the present trial, the State filed
a
to
motion
“multiple
preclude
Brown
African-American
from
questioning
males
roughly
description of Mr. Marshall and [Brown].”
J
about
matching
the
the
The Honorable Lisa M.
Roberts, the trial judge in the present case, held a hearing on
the motion during which she reviewed the prior trial judge’s
rulings with counsel and heard additional argument.
¶48
In support of his motion, defense counsel argued that
J was “having memory issues in multiple other areas” and that it
was “entirely possible . . . actually reasonably possible that
she’s also confusing the identity of the person responsible.”
25
The prosecutor contested defense counsel’s assertions that J had
numerous,
unsupervised
contacts
with
other
African-American
males at the time of the offenses involving Brown.
She stated
that Sandra had told her that, “if there were other AfricanAmerican males around her daughter” that she would have been
with her daughter at the time and that it was only Brown, with
whom Sandra “had developed a special relationship of trust . . .
who, over time, had the unsupervised contact.”
If called upon
to testify about contact with other men, mother would “state,
one,
that
they
weren’t
numerous,
and,
pointedly
two,
asked
they
were
not
unsupervised contact.”
¶49
Judge
Roberts
counsel
if
J
had
exhibited “memory issues” during the first trial regarding the
identity of the individual whom she was accusing of the charged
offenses.
The
State
avowed
that
she
had
“no
problems
with
regard to that” and that J was “100 percent 6 certain that it is
this Defendant for those three acts and of the other acts that
we have included for 404(c).”
The memory issues involved the
404(c) evidence “which neither the Defendant nor [J], because of
6
During the present trial, J testified that “on a scale of 1 to
100” she was “100” percent sure defendant was the person who
“played with [her] nipples on her cousin’s birthday when [she]
was nine years old;” “100” percent “sure this defendant . . .
came into [her] bedroom about a week later and had sexual
intercourse with [her] in [her] bedroom;” and “a hundred”
percent sure that it was defendant who “told [her] that this was
supposed to happen to [her] . . . [a]nd the couch incident.”
26
the
chronic
nature
of
the
abuse,
can
remember
.
.
.
those
specific acts.”
¶50
to
When Judge Roberts specifically asked defense counsel
address
conceded,
the
“in
identity
all
testimony
honesty,
she
at
seemed
the
first
trial,
very
confident.”
he
He
nonetheless argued that “based on the other issues she’s having
with
memory
and
the
sheer
number
of
these
men,
that
it’s
reasonably possible that even though she’s certain -- she says
she’s
certain,
identity.”
that
she
may,
in
fact,
be
mistaken
about
When asked to name the “other Black males,” defense
counsel gave the court four names: Tommy, who was C’s father;
Chris, a friend of Sandra’s from work who was “regularly there;”
Steffen, the boyfriend who prompted J’s disclosure; Trey, who
counsel thought “was a boyfriend prior to my client;” and “a
couple of others” whose names counsel did not have but whom
Brown “recalled.”
¶51
Judge Roberts granted the State’s motion to preclude,
finding that the fact that other Black men may have been “in and
out of the home”: (1) was not “relevant to the issue in this
case;”
(2)
did
not
Defendant’s
guilt;”
possibility
that
“create
and
any
committed the crimes.”
of
(3)
a
reasonable
did
those
not
other
doubt
create
unnamed
as
“a
to
the
reasonable
black
males
In reaching her decision, Judge Roberts
acknowledged that she had “factored in” Brown’s admissions in
27
the confrontation call and to police.
On balance, she concluded
that, “even if marginally relevant, under Rule 403, . . . the
minimal relevance [was]
substantially outweighed by the danger
of unfair prejudice, confusion of issues and/or misleading the
jury.”
¶52
We review the admission or exclusion of evidence for
abuse of discretion.
“The decision whether to admit or exclude
evidence is left to the sound discretion of the trial court.”
State v. Murray, 162 Ariz. 211, 214, 782 P.2d 329, 332 (App.
1989).
Judge
Roberts
was
well
within
excluding the evidence in this case.
her
discretion
in
The record reveals no
instances of J having “memory issues” regarding the identity of
her abuser,
whether
Brown
or
Marshall.
Her
“memory
issues”
pertained solely to the fact that for four years she was forced
to engage in “routine” sexual intercourse with Brown that bore
no distinguishing features in her mind as “the first time” did
or “the time on the couch.”
Brown.
Judge
The same memory issues applied to
Brown’s arguments were based on sheer speculation, and
Roberts
properly
determined
that
the
evidence,
if
admitted, ran the risk of unnecessarily confusing the issues and
misleading the jury.
CONCLUSION
¶53
For
the
foregoing
reasons,
28
we
affirm
Brown’s
convictions and sentences.
_____/s/_________________________
JOHN C. GEMMILL, Judge
CONCURRING:
____/s/____________________________
PETER B. SWANN, Presiding Judge
____/s/____________________________
JON W. THOMPSON, Judge
29
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