State v. Ferraro

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Justia Opinion Summary

Patrick Ferrero was charged with three counts of sexual conduct with a minor. The trial court admitted evidence of "other uncharged acts" with the minor. The judge did not screen the evidence under Ariz. R. Evid. 404(c), which permits "other act" evidence to prove the defendant's propensity to commit the charged offense, but only if the court makes specific findings. The court of appeals reversed Ferrero's convictions on two counts, holding that the trial judge erred in failing to screen the evidence of Ferrero's prior sexual conduct with the minor - State v. Garner evidence - under Rule 404(c). At issue before the Supreme Court was whether evidence of similar sexual contact with the same minor victim is "intrinsic evidence" that is not governed by Rule 404(c). The Court vacated the court of appeals and remanded the case for a new trial on the first two counts, holding (1) Rule 404(c) does not apply to truly intrinsic evidence, but Garner evidence is not inherently intrinsic; and (2) because the evidence in this case was offered to prove Ferrero's propensity to commit the charged act, the trial court erred in admitting evidence of that act without screening it under Rule 404(c).

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SUPREME COURT OF ARIZONA En Banc STATE OF ARIZONA, ) ) ) Appellee, ) ) v. ) ) ) PATRICK M. FERRERO, ) ) ) Appellant. ) _________________________________ ) Arizona Supreme Court No. CR-11-0127-PR Court of Appeals Division One No. 1 CA-CR 10-0276 Maricopa County Superior Court No. CR2009-103770-001DT O P I N I O N Appeal from the Superior Court in Maricopa County The Honorable Joseph C. Kreamer, Judge REVERSED ________________________________________________________________ Memorandum Decision of the Court of Appeals, Division One Filed Apr. 7, 2011 VACATED AND REMANDED ________________________________________________________________ THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Robert A. Walsh, Assistant Attorney General Attorneys for State of Arizona Phoenix JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix By Christopher V. Johns, Deputy Public Defender Attorneys for Patrick Michael Ferrero ________________________________________________________________ B E R C H, Chief Justice ¶1 The issue in this case is whether, in a prosecution for sexual offenses, evidence of similar sexual conduct with the same minor victim is intrinsic evidence that is not governed by Arizona Rule of Evidence 404(c). We also consider whether the type of evidence described in State v. Garner, 116 Ariz. 443, 569 P.2d 1341 charged act. truly (1977), is inherently intrinsic to the We conclude that Rule 404(c) does not apply to intrinsic evidence, but that evidence Garner is not inherently intrinsic. I. ¶2 FACTS AND PROCEDURAL BACKGROUND Patrick Ferrero was charged with three counts of sexual conduct with a minor. Over Ferrero s objection, the trial court admitted evidence of other uncharged acts with the minor to show Ferrero s sexual disposition toward him. judge did not screen the evidence under Although the Rule 404(c), he nonetheless instructed the jurors that they could consider the evidence to establish that Ferrero had a character trait that predisposed him to commit the crimes charged. The jury found Ferrero guilty on all three counts. ¶3 The court of appeals reversed Ferrero s convictions on two counts and found any error as to the third count (which is not before us) harmless. The court held that the trial judge must screen Garner evidence under Rule 404(c) and its failure to do so required reversal. State v. Ferrero, 1 CA-CR 10-0276, 2011 WL 1326208, at *4 ¶ 16 (Ariz. App. Apr. 7, 2011) (mem. decision). - 2 - We granted the State s petition for review because the ¶4 proper interpretation importance. of Rule 404 is an issue of statewide We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and Arizona Revised Statutes § 12-120.24 (2003). II. Rule 404 controls the admission of character and other ¶5 act DISCUSSION evidence. Section 404(b) prohibits evidence of other crimes, wrongs, or acts to prove the defendant s character to act in a certain way, but may allow such evidence for other purposes, such as showing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. ¶6 Section 404(c) applies to propensity evidence in sexual misconduct similar Ariz. R. Evid. 404(b). cases. crimes, It wrongs, expressly or acts permits to evidence prove the of other defendant s character trait giving rise to an aberrant sexual propensity to commit the charged offense, but only if the court first makes specific findings.1 Id. 404(c)(1). 1 The state must prove that the defendant committed the other act, that the other act provides a reasonable basis from which the jurors may infer that the defendant had the propensity to commit the charged act, and that the value of the other act evidence is not substantially outweighed by prejudice to the defendant. See Ariz. R. Evid. 404(c)(1)(A)-(D); see also id., cmt. to 1997 amd. (citing State v. Terrazas, 189 Ariz. 580, 584, - 3 - Arizona opinions provide imprecise guidance about the ¶7 proper application particularly in opportunity to of sex sections offense clarify (b) and cases. the We terms (c) of Rule 404, take this evidence and therefore Garner intrinsic evidence and address the application of Rule 404 to such evidence. A. Garner Evidence We begin by addressing what has become known as Garner ¶8 evidence. See Garner, 116 Ariz. at 447, 569 P.2d at 1345. The defendant in Garner was charged with sexually assaulting his minor son. Id. defendant s at 445, propensity to 569 P.2d commit at the 1343. charged To prove crime, the the prosecutor offered evidence that, on two occasions more than a year before the charged act, the defendant had oral sex with the boy. Id. at 445-46, 569 P.2d at 1343-44. On review, this Court stated that, [i]n a case involving a sex offense committed against a committed child, against evidence of the child same a prior is similar admissible sex to offense show the defendant s lewd disposition or unnatural attitude toward the particular victim. Id. at 447, 569 P.2d at 1345 (citing People v. Sylvia, 351 P.2d 781, 785 (Cal. 1960)). ¶9 Some courts have read Garner as creating an exception 944 P.2d 1194, 1198 (1997) (requiring that commission of the other act be shown by clear and convincing evidence)). - 4 - to the common law rule now codified in Rule 404(b) barring admission of other acts to prove a defendant s propensity to act in a certain way.2 See, e.g., State v. Alatorre, 191 Ariz. 208, 213, 953 P.2d 1261, 1266 (App. 1998); State v. Jones, 188 Ariz. 534, 539, 937 P.2d 1182, 1187 (App. 1996). These courts have interpreted Garner as always allowing the admission of evidence of prior sexual acts with the same child victim, even if offered to prove the defendant s propensity to commit the charged act. ¶10 Twenty years promulgated Rule 404(c). 1997 amd. after Garner, however, this Court See Ariz. R. Evid. 404(c), cmt. to The court of appeals subsequently recognized that automatic admission of Garner evidence in cases involving sexual offenses conflicts with 404(c), which permits use of evidence of other acts to show the defendant s aberrant sexual propensity to commit the crime charged only if certain criteria are met. 2 Garner cites cases admitting other act evidence to show a common scheme or plan and distinguishes the propensity exception created by State v. McFarlin, 110 Ariz. 225, 517 P.2d 87 (1973), and State v. Treadaway, 116 Ariz. 163, 568 P.2d 1061 (1977). This suggests that the Court may have simply meant to recognize another exception to the common law rule, similar to the exceptions for plan, intent, motive, or opportunity. See Garner, 116 Ariz. at 447, 569 P.2d at 1345 (citing State v. Van Winkle, 106 Ariz. 481, 482, 478 P.2d 105, 106 (1970) (admitting evidence of prior sexual assaults to show a system, plan and scheme ); State v. Finley, 108 Ariz. 420, 421, 501 P.2d 4, 5 (1972) (similar)); cf. State v. Vega, 228 Ariz. 24, 32 ¶¶ 34-35, 262 P.3d 628, 636 (App. 2011) (Thompson, J., concurring). This reading is supported by the comments to Rule 404(c), which do not mention Garner and affirmatively state that Rule 404(c) is intended to substantially codify the McFarlin/Treadaway rule. Ariz. R. Evid. 404 cmt. to 1997 amd. - 5 - State v. Garcia, 200 Ariz. 471, 476 ¶ 31, 28 P.3d 327, 332 (App. 2001). Thus, Garcia held that Garner evidence, which it viewed as necessarily offered to prove the defendant s propensity to act in a certain way, is subject to Rule 404(c) screening. The decision below followed Garcia. See Id. 2011 Ferrero, WL 1326208, at *4 ¶ 15. ¶11 We agree with Garcia and the court of appeals in this case that when the prosecution offers Garner evidence to prove the defendant s propensity to commit the charged sexual offense, the evidence must be screened under Rule 404(c). That rule supplants Garner s potential exception to the propensity rule. We therefore relegate the term Garner evidence to shorthand for the type of evidence at issue in that case evidence of a prior similar sex offense committed against the same child. Garner, 116 Ariz. at 447, 569 P.2d at 1345. ¶12 But we disagree with the court of appeals that Garner evidence is always subject to Rule 404(c) screening. Rule 404(b) and (c) create a framework for admitting evidence of other crimes, wrongs, or acts that depends in part upon the purpose for which the evidence is offered. State offered other-act evidence here As in Garner, the to prove Ferrero s propensity (and the jury was so instructed), but that will not always be the case. non-propensity Garner evidence might also be relevant for purposes, such as - 6 - showing motive, intent, identity, or opportunity. propensity subject balancing purpose, to Rule test, it may 402 s and If the evidence is offered for a nonbe admissible general Rule under relevance 105 s test, requirement instructions in appropriate circumstances. Rule 404(b), Rule for 403 s limiting But if evidence of other sex acts is offered in a sexual misconduct case to show a defendant s aberrant propensity to commit the charged act, as it was here, Rule 404(c) applies. Rules 404(b) and (c), however, apply only to evidence ¶13 of other crimes, wrongs, or acts. evidence therefore depends on a The admissibility of Garner second question that is, whether the evidence is so intrinsic to the charged act as not to constitute an other act. B. Intrinsic Evidence ¶14 The intrinsic 404(b) s distinction wrongs, or acts. evidence between doctrine charged and arose from other Rule crimes, See State v. Nordstrom, 200 Ariz. 229, 248 ¶ 56, 25 P.3d 717, 736 (2001); see also United States v. Bowie, 232 F.3d 923, 927 (D.C. Cir. 2000) (noting that Federal Rule of Evidence 404(b) creates a dichotomy between crimes or acts that constitute the charged crime and crimes or acts that do not ). Its premise is that certain acts are so closely related to the charged act that they cannot fairly be considered other acts, but rather are part of the charged act itself. - 7 - See United States v. Green, 617 F.3d 233, 245 (3d Cir. 2010). The doctrine recognizes that excluding evidence of these acts may prevent a witness from explaining the charged act, making the witness s testimony confusing or incoherent. See Burke v. State, 624 P.2d 1240, 1250 (Alaska 1980); People v. Dobek, 732 N.W.2d 546, 568 (Mich. Ct. App. 2007). Thus, courts have used the doctrine to admit evidence of other acts as intrinsic to the charged act despite the danger that it might also propensity to act in a certain way. show the defendant s See Fed. R. Evid. 404(b), cmt. to 1991 amd. (citing United States v. Williams, 900 F.2d 823 (5th Cir. 1990)). ¶15 We previously said that evidence is intrinsic when [1] evidence of the other act and evidence of the crime charged are inextricably intertwined or [2] both acts are part of a single criminal episode or [3] the other acts were necessary preliminariesʼ to the crime charged. State v. Andriano, 215 Ariz. 497, 502 ¶ 18, 161 P.3d 540, 545 (2007) (quoting State v. Dickens, 187 Ariz. 1, 18 n.7, 926 P.2d 468, 485 n.7 (1996)); see Nordstrom, 200 Ariz. at 248 ¶ 56, 25 P.3d at 736 (also quoting Dickens). Our opinions in Andriano and Nordstrom illustrate the narrow scope of this definition. ¶16 In Andriano, the defendant was convicted of murdering her husband. 215 Ariz. at 502 ¶ 14, 161 P.3d at 545. We held that evidence of Andriano s extramarital affairs and attempts to - 8 - procure insurance on her husband s life was not intrinsic to the murder because Andriano never actually procured the insurance, id. at ¶¶ 20-21, and her affairs were unrelated to the murderous act itself, id. at 503 ¶ 26, 161 P.3d at 546. The connection between the charged and uncharged acts ¶17 in Nordstrom was similarly tenuous. people in a bar. Nordstrom murdered several 200 Ariz. at 236-38 ¶¶ 1-7, 25 P.3d at 724-26. We rejected the State s argument that Nordstrom s solicitation of another person to burglarize the same bar two years earlier was intrinsic to the subsequent murders. P.3d at 736. We concluded that too much time had passed and the acts were not sufficiently similar. acts in Id. at 248 ¶ 56, 25 Andriano and Nordstrom See id. shared Thus, although the some similarities or connections to the charged acts, we found that the other acts were not inextricably intertwined with, part of the same criminal episode as, or necessary preliminaries to, the charged acts. ¶18 Despite our efforts to narrowly constrain the intrinsic evidence doctrine, some decisions have cited it to justify the admission of evidence that is not truly intrinsic to the charged act. See, e.g., State v. Herrera, 226 Ariz. 59, 64 ¶ 15, 243 P.3d 1041, 1046 (App. 2011). It has proved difficult for courts to determine when an other act is necessarily preliminary to the charged act or when evidence crosses the line from being - 9 - admissible as part of a single criminal episode as the charged act, to being inadmissible as merely arising out of the same series of transactions as the charged offense. United States v. Siegel, 536 F.3d 306, 316 See, e.g., (4th Cir. 2008) (applying same series of transactions test); United States v. McLee, 436 F.3d 751, 760 (7th Cir. 2006) (same). The Third Circuit noted similar problems in identifying ¶19 whether evidence is sufficiently inextricably intertwined to make it intrinsic, remarking that the [inextricably intertwined] test creates confusion because, quite simply, no one knows what it means. Green, 617 F.3d at 246. In Green, the defendant was convicted of attempted possession of cocaine. Id. at 237-38. At trial, the court admitted evidence of a bomb plot under the theory that the defendant sought to purchase dynamite and cocaine in the same transaction, so the bomb plot helped explain how the defendant attempted to procure the drugs. Id. at 237. The Third Circuit found the evidence admissible for non-propensity purposes under Rule 404(b), id. at 252, but it disagreed with the trial court s analysis and held that the evidence relating to the bomb plot was not intrinsic to the attempted cocaine possession, id. at 249. After extensively analyzing evidence generally, the and pitfalls the of the intrinsic inextricably intertwined doctrine category in particular, the court decided to reserve the intrinsic label - 10 - for two narrow categories of evidence. to the court, an other act is Id. at 248. intrinsic According only if it (1) directly proves the charged offense, or (2) is performed contemporaneously with and facilitate[s] the commission of the charged crime. Id. at 248-49 (internal citations and quotation marks omitted). ¶20 Given the difficulty Arizona courts have experienced in applying the intrinsic Andriano and Nordstrom, evidence we definition adopt Green s we espoused definition. in It desirably allows evidence of acts that are so interrelated with the charged act that they are part of the charged act itself without improperly admitting evidence that, although possibly helpful to explain the charged act, analyzed under Rule 404(b) or (c). is more appropriately Henceforth, evidence is intrinsic in Arizona if it (1) directly proves the charged act, or (2) is performed contemporaneously facilitates commission of the charged act.3 with and directly See id. at 248-49. The intrinsic evidence doctrine thus may not be invoked merely to complete the story or because evidence arises out of the 3 Other jurisdictions have entirely abandoned the intrinsic evidence doctrine. See, e.g., State v. Fetelee, 175 P.3d 709, 737 (Haw. 2008); State v. Rose, 19 A.3d 985, 1010-11 (N.J. 2011). Although the need for the doctrine may be questioned, the parties have not asked that we abandon it, so we do not decide that issue today. - 11 - same transaction or course of events as the charged act.4 Although we intend our definition to be narrow, the ¶21 varied circumstances in which parties may attempt to admit evidence of other acts makes it impossible to fashion a brightline test for determining when evidence is intrinsic. Under our definition, however, Garner evidence is not inherently intrinsic to the charged act. Although prior sexual contact with the victim may be so closely related to the charged sexual offense that it is intrinsic and thus exempt from Rule 404 analysis, it may also be sufficiently remote and unrelated that it neither proves nor facilitates the charged act. The nature of intrinsic evidence as part of the charged ¶22 act also shows why it is not subject to Rule 404(c) screening. Because Rule 404(c) applies to other crimes, wrongs, or acts, it does not apply charged act itself. if the proponent offers evidence of the By its language, the rule also does not apply if evidence of uncharged acts is offered to show something other than the defendant s propensity to commit the charged act. Rule 404(c) thus does not extend to truly intrinsic acts, which are not other acts and are 4 not offered to prove the Evidence that completes the story, arises out of the same transaction as the charged act, or is part and parcel of the charged act may well qualify as intrinsic evidence, but those tests are broader than our formulation and should not be invoked to analyze whether evidence is intrinsic to the charged act. - 12 - defendant s propensity to commit the charged act. Accordingly, intrinsic evidence including Garner evidence that is intrinsic is not subject to Rule 404(c) screening. ¶23 Our narrow definition of intrinsic evidence will not unduly preclude relevant evidence of a defendant s other acts. Non-intrinsic evidence will often propensity purposes under Rule 404(b). be admissible for non- See Andriano, 215 Ariz. at 502-03 ¶¶ 22-23, 26-27, 161 P.3d at 545-46 (finding evidence of attempts to procure insurance and extramarital affairs not intrinsic, but nonetheless admissible under Rule 404(b) to show plan, knowledge, motive, and intent to kill). As the court observed in Green, [I]t is unlikely that our holding will exclude much, if any, evidence that is currently admissible as background or completes the story evidence under the inextricably intertwined test. We reiterate that the purpose of Rule 404(b) is simply to keep from the jury evidence that the defendant is prone to commit crimes or is otherwise a bad person, implying that the jury needn t worry overmuch about the strength of the government s evidence. No other use of prior crimes or other bad acts is forbidden by the rule, and one proper use of such evidence is the need to avoid confusing the jury. Thus, most, if not all, other crimes evidence currently admitted outside the framework of Rule 404(b) as background evidence will remain admissible under the approach we adopt today. The only difference is that the proponent will have to provide notice of his intention to use the evidence, and identify the specific, non-propensity purpose for which he seeks to introduce it (i.e., allowing the jury to hear the full story of the crime). Additionally, the trial court will be required to give a limiting instruction upon request. - 13 - 617 F.3d at 249 (citations and internal quotation marks omitted); see Ariz. R. Evid. 105 (jury instruction); Ariz. R. Crim. P. 15.1(b)(7) (pretrial notice); see also Bowie, 232 F.3d at 927 ( So far as we can tell, the only consequence[] of labeling evidence intrinsic [is] to relieve . . . the court of its obligation to give an appropriate limiting instruction upon defense counsel s request. ). In summary, evidence of the defendant s prior sexual ¶24 conduct with the child victim of a sexual offense Garner evidence is not inherently intrinsic; whether it is depends on its relation to the charged acts. If it is not intrinsic, it may nonetheless be admissible under Rule 404(b) if not offered to prove the defendant s propensity to commit the charged act, or under Rule 404(c) if offered to prove the defendant s propensity to commit the charged act and the proponent satisfies Rule 404(c) s prerequisites. C. ¶25 Evidence of Ferrero s Uncharged Acts The court of appeals correctly held that the trial court erred by failing to subject several categories of other act evidence to Rule 404(c) screening because it was offered to show the defendant s propensity to commit the charged acts. example, the trial court, presumably relying on For Garner, permitted the prosecutor to introduce evidence that on the ride to Ferrero s house on the night of the first charged offense, - 14 - Ferrero told the victim to pull down the victim s pants and underwear and expose himself. The victim acceded to Ferrero s demands because Ferrero threatened to leave him on the side of the road if he did not comply. house, the computer showered. victim games for talked at When they arrived at Ferrero s with least Ferrero s thirty mother minutes and while played Ferrero The victim then joined Ferrero in bed, at which time Ferrero completed the first charged act. ¶26 Defendant The State offered the exposure evidence to show that had the emotional propensity to engage in sexual misconduct with the victim, and the jury was instructed that the evidence could be used for that purpose. facially governed by Rule 404(c) because The evidence is it involves an uncharged sex act offered to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged. The evidence is therefore exempt from Rule 404(c) screening only if the uncharged act was truly intrinsic to the charged act and thus not an other act. ¶27 The evidence of this uncharged act does not fit within our narrow definition of intrinsic evidence. The two acts were qualitatively different and constituted two separate instances of sexual abuse. Thus, under the first prong of our definition, forcing the victim to expose himself does not directly prove that Ferrero later committed the charged sexual offense. - 15 - The second prong which requires that the act occur contemporaneously with and directly facilitate the charged act is equally unavailing. Although forcing the victim to pull down his pants in the vehicle may have facilitated the charged act by weakening the victim s defenses, contemporaneously with the charged act. it did not occur The acts were separated by at least thirty minutes, during which time the victim talked to Ferrero s mother and played computer games. ¶28 The forced exposure is therefore not intrinsic to the charged act. defendant s Because the evidence was offered to prove the propensity to commit the charged act, the trial court erred in admitting evidence of that act without screening it under Rule 404(c).5 III. ¶29 CONCLUSION Although we agree with the court of appeals result, we disagree with its analysis and therefore vacate its memorandum decision and remand the case for a new trial on the first two counts.6 If the State seeks to admit evidence of other acts on 5 Having found the victim s testimony regarding his forced exposure inadmissible absent Rule 404(c) screening, we need not address the remaining uncharged acts. On remand, however, the State may seek admission of the other uncharged acts pursuant to the framework outlined above. 6 By remanding for a new trial with instructions for the trial court to consider whether the evidence was intrinsic to the charged acts, the court of appeals implicitly found that the trial court s failure to screen the evidence of other acts under - 16 - remand, the trial court must determine whether the evidence is offered to prove Ferrero s propensity. If the evidence is offered for a legitimate non-propensity purpose, the trial court may admit it under Rule 404(b), subject to the other rules of evidence. If, however, the evidence is offered to prove propensity, the trial court must screen it under Rule 404(c). _____________________________________ Rebecca White Berch, Chief Justice CONCURRING: _____________________________________ Andrew D. Hurwitz, Vice Chief Justice _____________________________________ W. Scott Bales, Justice _____________________________________ A. John Pelander, Justice _____________________________________ Robert M. Brutinel, Justice Rule 404(c) was not harmless error. In its petition for review, the State challenged the court of appeals refusal to conduct an explicit harmless error analysis, but we did not grant review on that issue. - 17 -

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