IN RE: ROYCE Z.

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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 IN RE THE MATTER OF ROYCE Z. ________________________________ ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 4/16/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-MH 12-0058 SP DEPARTMENT D MEMORANDUM DECISION Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Coconino County Cause No. S0300CV201200166 The Honorable Dan Slayton, Judge The Honorable Danna D. Hendrix, Judge (Retired) AFFIRMED David Rozema, Coconino County Attorney By Timothy G. McNeel, Deputy County Attorney Attorneys for Appellee David Goldberg Attorneys for Appellant Flagstaff Fort Collins, CO G E M M I L L, Judge ¶1 was After a jury trial, Appellant Royce Z. ( Appellant ) found to be a sexually violent person ( SVP ) and was committed to the Arizona Community and Protection Center in accordance with Arizona Revised Statutes ( A.R.S. ) § 36-3707 (2009). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 The State filed a petition for detention on March 13, 2012, while Appellant was incarcerated for a 2008 conviction of attempted sexual abuse in Maricopa County. The State sought commitment in Coconino County based on the predicate offense of a 2004 conviction for attempted kidnapping, presumably because sexual abuse is not a qualifying predicate offense under A.R.S. § 36-3701(6) (Supp. 2012) but attempted kidnapping may qualify if determined to be sexually motivated under subsection (6)(b). ¶3 Appellant, in a motion to dismiss or change venue, argued that collateral estoppel and double jeopardy prevented the State from retrying the issue of sexual motivation in the attempted kidnapping. conference, The motion was denied. Appellant argued that the At the pretrial trial should be bifurcated, with determination of the issue of sexual motivation tried first and then, if necessary, the determination of SVP status. The court denied supplemental briefing. the request but allowed for On the first day of trial, the court confirmed its denial but allowed Appellant to prepare a limiting instruction for the jury. ¶4 On January 13, 2004, Appellant approached 19-year-old 2 S.P., a student at Northern Arizona University, from behind while she was entering her dorm, and he slammed her against a wall. S.P. screamed, and Appellant told her to be quiet. S.P. ran away from him, but Appellant ran after her and tackled her to the ground. Appellant then climbed on top of her and placed his hand over her mouth. chased Appellant away After a minute or two, other students from S.P. Appellant was arrested charged with kidnapping, assault, and criminal trespass. and He pled guilty to attempted kidnapping, a class 3 felony, and was sentenced to four years in prison. ¶5 In addition to the testimony regarding the attempted kidnapping incident, the State presented testimony from two sexual abuse victims, in support of the alleged SVP status. On May 25, 2008, Appellant was in a pool in Phoenix when he grabbed the breasts of 12-year-old M.D. and put his finger inside the shorts of 15-year-old J.L. arrest and conviction for This incident led to Appellant s four counts of sexual abuse and attempted sexual abuse. ¶6 Finally, testimony from a the State mental and health Appellant each professional. presented The State s witness diagnosed Appellant with antisocial personality disorder and pedophilia, reoffend under placing standard him in actuarial a high-risk assessments. category to Appellant s witness disagreed with the diagnoses of the State s witness, 3 finding only alcohol dependence otherwise specified. and personality disorder not Appellant s witness, however, also placed Appellant in a high-risk category to reoffend. ¶7 In the final jury instructions, the trial court told the jury only to consider the testimony of S.P., Appellant, and the arresting officer attempted kidnapping. to determine sexual motivation in the The jury was given separate jury forms on which to rule on sexual motivation and SVP status, and they were told that they need not rule on SVP status if they did not find the attempted kidnapping conduct had a sexual motivation. jury returned unanimous verdicts finding Appellant s The prior conviction to be sexually motivated and finding Appellant to be a sexually violent person. Appellant was subsequently committed. ¶8 Appellant commitment order. Section 9, of timely appeals the jury verdict and We have jurisdiction pursuant to Article 6, the Arizona Constitution and A.R.S. § 12 may be 2101(A)(10) (Supp. 2012). ANALYSIS ¶9 Under Arizona s SVP statutes, an individual civilly committed if the state proves beyond a reasonable doubt that the individual is a sexually violent person. 3707. A convicted sexually of a violent sexually person violent 4 is A.R.S. § 36 one who has offense and has ever a been mental disorder sexual that makes violence. the person A.R.S. § likely to 36-3701(7). engage A in acts sexually of violent offense can be one of a number of potentially non-sexual crimes (including attempted kidnapping) if the court at the time of sentencing or civil commitment proceedings determines beyond a reasonable doubt that the act was sexually motivated. A.R.S. § 36-3701(6)(b). I. The doctrines of double jeopardy and collateral estoppel do not preclude the trial court from determining whether Appellant s prior attempted kidnapping conviction was sexually motivated. ¶10 Whether the State violated a defendant s right against double jeopardy is a question of law that is reviewed de novo. State v. McGill, 213 Ariz. 147, 153, ¶ 21, 140 P.3d 930, 936 (2006). Similarly, whether collateral estoppel applies is a question of law that is reviewed de novo. Corbett v. ManorCare of Am., Inc., 213 Ariz. 618, 623, ¶ 10, 146 P.3d 1027, 1032 (App. 2006). Also, the interpretation of statutes and court rules is reviewed de novo. In re Commitment of Jaramillo, 217 Ariz. 460, 462, ¶ 5, 176 P.3d 28, 30 (App. 2008). ¶11 Appellant asserts that the finding of sexual motivation in his attempted kidnapping conviction violated his constitutional protection against double jeopardy. amend. V. U.S. Const. As conceded by Appellant, this court has expressly refused to apply double jeopardy to an SVP trial, which is a 5 civil proceeding for the protection of the public. Martin v. Reinstein, 195 Ariz. 293, 307, ¶ 38, 987 P.2d 779, 793 (App. 1999). Because the commitment is civil, it is not a second punishment, and the proceedings pursuant to the [SVP] Act are not a second prosecution. Id. safeguards trials of criminal The availability of some of the does not proceedings into criminal prosecutions. transform SVP In re Commitment of Conn, 207 Ariz. 257, 259, ¶ 7, 85 P.3d 474, 476 (App. 2004). ¶12 Appellant s argument that the determination of sexual motivation acts as a second criminal trial commitment proceeding is unpersuasive. within the civil In determining sexual motivation, the finder of fact must decide whether an individual falls within a potentially dangerous group of individuals eligible for commitment. The determination is for the purpose of trial; the civil conviction. commitment it does not amend the prior Contrary to Appellant s assertion, no additional criminal punishment was imposed after this SVP trial. ¶13 Alternatively, Appellant argues that he negotiated dismissal of the sexual motivation element in his guilty plea for attempted kidnapping, and therefore collateral prevents the State from retrying that issue. estoppel The first concern with this argument is that Appellant has provided no evidence that this issue was negotiated as part of his plea. stated before trial and on appeal 6 that he Appellant specifically negotiated to drop a finding of sexual motivation. However, neither the sentencing minute entry nor the pre-sentence report before the court refers to any allegation of sexual motivation, dismissed or otherwise. Appellant was charged with crimes to which a finding of sexual motivation could be attached under A.R.S. § 13-118 (2010), but that alone is not proof that such a finding was ever considered or was part of the negotiation. ¶14 Furthermore, even if we assume that Appellant did negotiate the dismissal of an allegation of sexual motivation, collateral estoppel would not apply because the issue was not actually litigated. In In re Commitment of Taylor, 206 Ariz. 355, 357, ¶ 9, 78 P.3d 1076, 1078 (App. 2003), this court held that a trial court may make the determination of sexual motivation in a prior conviction during current SVP proceedings if the sentencing court did not previously do so. Appellant posits that the sentencing court in his attempted kidnapping case made that determination by choosing not to add a finding of sexual motivation to his conviction. Therefore, Appellant argues, the State had the opportunity to litigate this issue and should be collaterally estopped from litigating it again. disagree. We The opportunity to have litigated an issue does not, in this context, constitute actual litigation of that issue. ¶15 We therefore reject Appellant s collateral estoppel arguments. 7 double jeopardy and II. The jury had substantial evidence upon which to determine that Appellant s conviction for attempted kidnapping was sexually motivated and that Appellant is a sexually violent person. ¶16 This court will affirm civil commitment orders if they are supported by substantial evidence. 583, ¶ 7, 278 P.3d at 1286. Jaramillo, 229 Ariz. at We view the facts in the light most favorable to sustaining the trial court s judgment and will not set aside erroneous. the related findings unless they are clearly In re MH 2008-001188, 221 Ariz. 177, 179, ¶ 14, 221 P.3d 1161, 1163 (App. 2009). ¶17 that The first prong of an SVP determination is finding the defendant offense. A.R.S. § has been convicted 36-3701(7)(a). of a sexually Accordingly, the violent State s initial burden in this case was to prove beyond a reasonable doubt that Appellant s prior felony kidnapping was sexually motivated. conviction for attempted A.R.S. § 36-3707(A). Sexual motivation, as defined by A.R.S. § 13-118(C), is found when one of the purposes for which the defendant committed the offense was the defendant s sexual gratification. Appellant argues that no evidence was presented to the jury from which they could find a sexual motivation in the attempted kidnapping incident. ¶18 attempted The basic facts of what occurred on the night of the kidnapping are not in dispute. The victim, S.P., testified that Appellant slammed and held her against a wall 8 outside her dorm, told her to be quiet, tackled her when she ran away, pinned her down with his hand on her mouth and his face close enough to hers to feel his breath upon it. Appellant then ran away when other students approached. ¶19 Because the trial judge granted a limiting instruction despite denying bifurcation, the jury was instructed to consider only the testimony of S.P., Appellant, and Officer Manning when determining sexual motivation. When describing the incident at trial, S.P. did not testify to any belief from her perspective whether the testified crime that he was sexually grabbed S.P. motivated because or he not. Appellant thought she was someone he knew and that he tackled her and placed his hand on her mouth because her screaming caused him to panic wanted to apologize for grabbing the wrong person. and he Appellant also testified, in response to questions from counsel for the State, to being convicted of four counts of sexual abuse and attempted sexual abuse, admitting that he touched the underage victims inappropriately while intoxicated. ¶20 Therefore, even without direct testimony of motivation, the circumstantial evidence was substantial enough for a jury to determine that the crime was sexually motivated beyond a reasonable doubt. It is for the jury to decide the credibility and weight given to any evidence presented in the case, whether direct or circumstantial. 9 Because a person s motivation for committing a crime is so rarely explicitly stated, a reasonable jury may infer motivation from the facts proven before them. It was up to the jury to decide the Appellant s motivations given the circumstances of the attempted kidnapping and the Appellant s explanation of the incident. conclude, even with the unnecessary limiting We instruction (discussed below), that the jury had substantial evidence to determine that one of the Appellant s purposes in the attempted kidnapping was his sexual gratification. 1 ¶21 predicate In addition offense, an to finding SVP sexual determination motivation requires for the that the defendant have a mental disorder that makes the person likely to engage in acts of sexual violence. 1 A.R.S. § 36-3701(7)(b). We note an error in the court s instructions to the jury regarding the majority necessary to reach a decision on the issue of sexual motivation before moving on to SVP status. The court initially instructed the jury, If at least six of you determine that the Attempted Kidnapping of [S.P.] was committed with sexual motivation, you should then consider whether or not [Appellant] is a sexually-violent person. This was a proper statement of the majority needed to establish the threshold issue. However, the court then told the jury, If at least six of you do not determine that the Attempted Kidnapping of [S.P.] was committed with sexual motivation, you should not consider whether or not [Appellant] is a sexually-violent person. This latter statement is an incorrect instruction because the State needed a majority to prove sexual motivation; Appellant did not need the same majority to disprove it. Rather, if three of the jury members did not find sexual motivation beyond a reasonable doubt, the threshold issue would have been determined in favor of Appellant and the trial would have been completed. This error, however, is not asserted on appeal, and because the jury unanimously found that the attempted kidnapping was sexually motivated, we do not perceive any fundamental, reversible error. 10 In Kansas v. Crane, 534 U.S. 407, 413 (2002), the Supreme Court held that in SVP commitments, the state must have proof of serious difficulty in controlling behavior, an element of lack of volition. The Arizona Supreme Court held in In re Leon G., 204 Ariz. 15, 22, ¶ 22, 59 P.3d 779, 786 (2002), that the mental disorder element of implicitly require reaffirmed that the the the Arizona lack statute control makes word of in should be element. the SVP read to The court statute means impairs or tends to overpower a person s ability to control his behavior. Id. at 23, ¶ 28, 59 P.3d at 787. The court also held that likely should be read as highly probable. The Appellant argues that the jury did not Id. at ¶ 27. have substantial evidence to support a finding that he has a mental disorder that impairs his control and creates a high probability he will continue to commit sexually violent acts. ¶22 At trial, the State s expert We disagree. witness, Dr. Moran, diagnosed Appellant with pedophilia and antisocial personality disorder. On cross-examination, Dr. Moran stated that Appellant has as much volitional control as anybody else does in this courtroom, and that neither antisocial personality disorder nor alcohol abuse impair volition. direct that Appellant s However, he then stated on re- alcohol abuse combined with his pedophilia impairs his ability to control his sexual behavior. ¶23 Regarding likelihood 11 to reoffend, Dr. Moran s statistical analysis found on one metric that Appellant scored in the 99th percentile of all sex offenders tested, 6.5 times higher than the typical sex offender, and that the recidivism rate of the group in which he falls is 52.2 percent in five years and 61.9 percent in ten years. On another metric, Dr. Moran scored Appellant in the 94th percentile of sex offenders with a risk of reconviction at 29.5 percent for five years and 38 percent for ten years. respective high-risk Both metrics place Appellant in their categories. Though Appellant s expert witness assigned him a lower aggregate score, Appellant still fell in the high-risk group. ¶24 The State also provided evidence of past sexual acts to prove Appellant s likelihood to commit to sexually violent acts. See A.R.S. § 36-3704(B) (2009) ( The court may admit evidence of past acts that would constitute a sexual offense pursuant Sexual to § abuse 13-1420 victims and the M.D. Arizona and J.L. rules of evidence. ). testified to inappropriately touched by the Appellant at a public pool. being Dr. Moran also testified that in his review of Appellant s criminal record, he found that Appellant had twice been arrested but not convicted for sexual assault of children, and that Appellant had a felony conviction for sexual indecency. We conclude, therefore, that the jury had substantial evidence from which they could find that Appellant has a mental disorder that makes 12 him likely to commit sexually violent acts. III. The trial court s decision not to bifurcate the trial was not an abuse of discretion because the same evidence would have been admissible in each case had they been severed. ¶25 A trial court s decision regarding separate trials or bifurcation is reviewed for abuse of discretion. Romero v. Sw. Ambulance, 211 Ariz. 200, 203, ¶ 5, 119 P.3d 467, 470 (App. 2005). The trial court is given broad discretion in deciding whether to bifurcate issues within a trial. Cota v. Harley Davidson, a Div. of AMF, Inc., 141 Ariz. 7, 11, 684 P.2d 888, 892 (App. 1984). ¶26 Arizona Rule of Civil Procedure 42(b) states that, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, a court may order a separate trial of any claim or of any separate issue within a claim. believes that Bifurcation is appropriate when the court separate trials will achieve those purposes. Mulhern v. City of Scottsdale, 165 Ariz. 395, 398, 799 P.2d 15, 18 (App. 1990). This decision depends on the peculiar facts and circumstances of each case. Saxion v. Titan-C-Mfg., Inc., 86 F.3d 553, 556 (6th Cir. 1996). Tennessee has bifurcation held in only that the the In fact, the Supreme Court of interests most of justice warrant a exceptional cases. Ennix v. Clay, 703 S.W.2d 137, 139 (Tenn. 1986). 13 ¶27 Appellant sought a bifurcated trial, in which the issue of sexual motivation of the attempted kidnapping would be tried first to avoid the possible prejudice of evidence of past sexual acts, which he contended was relevant to determination of SVP status but not sexual motivation. The trial court denied this instruction, request but granted a limiting under the apparent impression that evidence of past acts should, in fact, be excluded from consideration on the issue of sexual motivation of the attempted kidnapping conduct. bifurcation was inapplicability apparently of Arizona based Rule The original denial of on a of consideration Evidence Rule of the 404(c). However, we will affirm a trial court s ruling when the correct decision is reached even though it was based upon the wrong reasons. State v. Sardo, 112 Ariz. 509, 515, 543 P.2d 1138, 1144 (1975). appropriate admissible Here, a denial of bifurcation was ultimately an decision even in because regard to the the other act threshold evidence issue of was sexual motivation for the attempted kidnapping conduct. ¶28 In State v. Coghill, 216 Ariz. 578, 582, ¶ 13, 169 P.3d 942, 946 (App. 2007), this court outlined four provisions of the Arizona Rules of Evidence that govern the admissibility of other-act evidence. First, Rule 404(b) requires that the evidence be admitted for a proper purpose. Rule 404(b) states that evidence of past acts is not admissible to prove character 14 to show action in conformity therewith, but it is admissible to prove (among other things) motive. Here, the evidence of past acts was not excluded by Rule 404 but, instead, was admissible under Rule 404(b) to prove motive. was not admissible to prove The evidence of other acts character to show action in conformity therewith, because no action needed to be proven. Appellant had already been convicted of the past act the evidence be attempted kidnapping conduct. ¶29 Second, relevant. Rule 402 requires that the Under Rule 402, all relevant evidence is admissible unless the United States or Arizona Constitution, an applicable statute, the Rules of Evidence, or other Supreme Court rules provide otherwise. Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence. Ariz. R. Evid. 401(a). Here, the evidence of past sexual acts makes Appellant s sexual motivation in the attempted kidnapping more probable because it points to a pattern of sexual desire when making physical contact with young women or girls. ¶30 prejudice Third, Rule 403 requires that the danger of the unfair of the evidence not outweigh the probative value. Unfair prejudice is found if the evidence suggests a decision on an improper basis. 156, 162 (1993). State v. Schurz, 176 Ariz. 46, 52, 859 P.2d The evidence here was not introduced to prove 15 any action and could only be used to establish a pattern that points to a sexual motivation in the attempted kidnapping. There was little danger of the jury being unfairly tempted to use the evidence for anything other than its intended purpose. Therefore, because the evidence was not unfairly prejudicial, it was admissible under Rule 403. ¶31 Fourth, Rule 105 requires that the judge give an appropriate limiting instruction upon request. The trial court did not give appeal limiting that the instructions, limiting and Royce instructions is were arguing on insufficient or erroneous. ¶32 Because the evidence of Appellant s past sexual acts would have been admissible on the question of sexual motivation of the attempted kidnapping conduct, the trial court s denial of bifurcation was not error. CONCLUSION ¶33 Double jeopardy and collateral estoppel did not preclude the issue of sexual motivation from being tried in the SVP proceeding. The jury had sufficient evidence to support the findings of sexual motivation and SVP status. The decision not to bifurcate was not an abuse of discretion because the other act evidence would have been admissible on the issue of sexual motivation during the attempted kidnapping conduct. 16 For these reasons, we affirm. /s/ __________________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: /s/ __________________________________ JON W. THOMPSON, Judge /s/ __________________________________ DONN KESSLER, Judge 17

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