Opinion
No. 2 CA-CR 2016-0155
03-31-2017
THE STATE OF ARIZONA, Appellee, v. VINCENT SIMON SIMPSON, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Michael T. O'Toole, Assistant Attorney General, Phoenix Counsel for Appellee Mark Larkin, Tumacacori Brenna Larkin, Tumacacori Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24. Appeal from the Superior Court in Santa Cruz County
No. CR14157
The Honorable Thomas Fink, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Michael T. O'Toole, Assistant Attorney General, Phoenix
Counsel for Appellee Mark Larkin, Tumacacori
Brenna Larkin, Tumacacori
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Howard authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Vásquez concurred. HOWARD, Presiding Judge:
¶1 Following a jury trial, Vincent Simpson was convicted of two counts of kidnapping, eight counts of luring a minor for sexual exploitation, six counts of attempted sexual conduct with a minor, two counts of furnishing harmful items to a minor, and two counts of transfer of marijuana. On appeal, Simpson argues the trial court erred by admitting other-act evidence pursuant to Rule 404(c), Ariz. R. Evid., and by denying his motion for a mistrial based on prosecutorial misconduct. Because we find no error, we affirm.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to sustaining the jury's verdicts." State v. Hunter, 227 Ariz. 542, ¶ 2, 260 P.3d 1107, 1108 (App. 2011). In July 2014, Simpson met then twelve-year-old T.N. and ten-year-old J.B. after introducing himself to their mother, M.C., in a grocery store parking lot in Nogales. Later, Simpson offered to watch T.N. and J.B. while M.C. ran errands. M.C. was initially reluctant to agree, but did so after Simpson introduced her to his mother and grandmother, with whom he lived, and provided M.C. with a "collection notice" with his "information on it."
¶3 Later that day, Simpson told M.C. he wanted to take the boys to a birthday party in Rio Rico at his aunt's house. They agreed that M.C. would pick the boys up the following morning from Simpson's house. Simpson also told M.C. he would give the boys his cell phone so they so they could call M.C. at any point.
¶4 Simpson did not take the boys to the party. One of Simpson's friends arrived with "two kids," and the group smoked marijuana. Simpson eventually took the boys back to his house and instructed them to enter into his bedroom through the window, while he entered the front door.
¶5 Once inside Simpson's bedroom, he kissed the boys' foreheads, told them he "love[d]" them, asked the boys to touch his genitals, asked to touch the boys' genitals, asked the boys to touch each other's genitals, asked the boys to perform oral sex on him, and told the boys he wanted them to have sex with him. At one point, he brought a television into the room and began playing pornographic videos. Simpson also put a sock in a hole in the door created by a missing door knob and put "boxes and bags of clothes and his dresser in front of the door." The boys asked to call their mother several times, but Simpson would not give them his phone.
¶6 Simpson was charged with two counts of kidnapping, eight counts of luring a minor for sexual exploitation, eight counts of attempted sexual conduct with a minor, two counts of furnishing harmful items to a minor, two counts of transfer of marijuana, and two counts of involving or using a minor in a drug offense. Before trial, the two counts of involving or using a minor in a drug offense were dismissed on the state's motion. During trial, two of the attempted sexual conduct with a minor charges were also dismissed on the state's motion. A jury found Simpson guilty of the remaining charges. The trial court sentenced him to consecutive and concurrent terms of imprisonment, totaling fifty-four years. We have jurisdiction over Simpson's timely appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
404(c) Evidence
¶7 Simpson first argues the trial court erred by ruling that evidence of a prior sexual act was admissible pursuant to Rule 404(c). We review a court's ruling on the admissibility of 404(c) evidence for an abuse of discretion, State v. Vigil, 195 Ariz. 189, ¶ 13, 986 P.2d 222, 224 (App. 1999), viewing "the evidence in the 'light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect,'" State v. Harrison, 195 Ariz. 28, ¶ 21, 985 P.2d 513, 518 (App. 1998), quoting State v. Castro, 163 Ariz. 465, 473, 788 P.2d 1216, 1224 (App. 1989).
¶8 Below, the state sought to introduce evidence that in the summer of 2013, Simpson had taken J.E., then thirteen years old, on a vacation in Nogales. One night, Simpson took J.E. to a motel in Sierra Vista. J.E. went swimming and, later that evening, took a shower. While J.E. was in the shower, Simpson went into the shower and had sexual intercourse with J.E. despite J.E.'s protestations. Simpson also asked J.E. to perform oral sex on him, which J.E. refused.
¶9 Evidence of a person's bad character is inadmissible to show "action in conformity therewith on a particular occasion." Ariz. R. Evid. 404(a). Rule 404(c), however, allows the admission of evidence of other acts to demonstrate "that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged." Ariz. R. Evid. 404(c). The trial court shall admit the evidence only if it finds that "[t]he evidence is sufficient to permit the trier of fact to find the defendant committed the other act," "[t]he 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," and "[t]he evidentiary value of the other act evidence is not substantially outweighed by danger of unfair prejudice." Id. Admissibility pursuant to Rule 404(c) requires that the court "make specific findings with respect to each of the prerequisites for admission under the rule." State v. Aguilar, 209 Ariz. 40, ¶ 30, 97 P.3d 865, 874 (2004); see Ariz. R. Evid. 404(c)(1)(D).
¶10 Simpson contends the evidence was insufficient to allow the jury to conclude that he had committed the other acts. Ariz. R. Evid. 404(c)(1)(A). He contends J.E. was not credible because he could not accurately pinpoint the precise time he had been with Simpson, he testified his mother knew the story of what happened better than he did, and he told inconsistent stories to the investigating detective, the prosecutor, and at the evidentiary hearing. Whether a defendant committed a sexual act for the purposes of Rule 404(c) "turns largely on the credibility of the witnesses," Aguilar, 209 Ariz. 40, ¶ 35, 97 P.3d at 875, and we defer to the trial court's determination of a witness's credibility, State v. Herrera, 232 Ariz. 536, ¶ 26, 307 P.3d 103, 113 (App. 2013).
¶11 The trial court found that J.E. was "highly credible" based on its "observation and assessment of the demeanor of [J.E.] and his testimony," including his prior interview with the investigating detective. The court did, however, note that J.E. had "some kind of undefined learning disability" that prevents him from "being a reliable reporter in terms of the month when something happened, the exact sequence of events, how it happened [and] how long events occurred." The court concluded that unreliability in those aspects "is very different from his capacity to be a reliable reporter as to the actual sexual act that happened to him." Based on this assessment, we cannot say the court erred in concluding that clear and convincing evidence existed from which the jury could find Simpson had committed the other acts. Aguilar, 209 Ariz. 40, ¶ 30, 97 P.3d at 874; see also Ariz. R. Evid. 404, cmt. to 1997 amend.
¶12 Simpson next argues that expert testimony was required to show he had "an aberrant sexual propensity to commit the crime charged" because the other acts were too remote and too dissimilar to establish that he had such a propensity. Ariz. R. Evid. 404(c)(1)(B). He relies on State v. Treadaway, 116 Ariz. 163, 568 P.2d 1061 (1977), to support his contention. In that case, our supreme court found that the state had not met its burden in proving that two instances of sexual misconduct with a minor were sufficiently similar for Rule 404(c) purposes, because the state did not provide expert testimony to establish a connection between the prior act and the charged offense. Id. at 166-67, 568 P.2d at 1064-65. But the comment to the 1997 amendment to Rule 404(c) eliminated that requirement, stating, "Subsection (1)(B) of Rule 404(c) is intended to modify the Treadaway rule by permitting the court to admit evidence of remote or dissimilar other acts providing there is a 'reasonable' basis, by way of expert testimony or otherwise, to support relevancy." Treadaway thus does not control this issue.
¶13 Furthermore, under Rule 404(c), whether the act was too remote or dissimilar are factors a trial court must consider in deciding whether the probative value of the evidence is outweighed by the danger of unfair prejudice, not whether the other act gives rise to an inference of an aberrant sexual propensity. State v. Arner, 195 Ariz. 394, ¶ 5, 988 P.2d 1120, 1122 (App. 1999); see also Ariz. R. Evid. 404(c)(1) cmt. to 1997 amend. (remoteness and similarity "solely factors to be considered under" Rule 404(c)(1)(C)). The trial court did not abuse its discretion by finding, absent expert testimony, that "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." Ariz. R. Evid. 404(c)(1)(B).
¶14 Simpson also appears to argue that a single act cannot give rise to an inference of an aberrant sexual propensity. First, Rule 404(c)(1) is phrased in singular form. Rule 404(c)(1) ("The court shall admit evidence of the other act . . . . "). Second, under Rule 404(c), evidence of the other act is admissible only if its commission provides "a reasonable basis to infer" the defendant has a character trait. Ariz. R. Evid. 404(c)(1)(B). Thus, a single act is admissible and relevant evidence from which a factfinder may properly infer the existence of a character trait in a defendant giving rise to an aberrant sexual propensity to commit a specific sexual offense.
¶15 Simpson next argues the probative value of the evidence was substantially outweighed by the danger of unfair prejudice based on the factors listed in Rule 404(c)(1)(C). He first contends the trial court erred on the issue of remoteness by finding the event occurred in March 2013 because J.E. had testified the incident occurred "years" before he spoke with the investigating detective in December 2013. The evidence presented outside of J.E.'s testimony, however, supports the trial court's finding that the incident occurred in March 2013.
¶16 Furthermore, even if the incident did occur "years" earlier, Simpson has failed to explain why that would necessarily make the incident too remote. Rule 404(c) "does not contemplate any bright line test of remoteness" of the other act to the charged offense. Ariz. R. Evid. 404(c) cmt. to 1997 amend. "Although remoteness between the two incidents affects the weight to be given the testimony by the jury, it generally does not determine its admissibility." State v. Van Adams, 194 Ariz. 408, ¶ 24, 984 P.2d 16, 24 (1999). Acts which occurred much more than ten years before the charged offenses have been found not too remote to overcome the other factors. See State v. Weatherbee, 158 Ariz. 303, 304-05, 762 P.2d 590, 591-92 (App. 1988) (other acts occurred nineteen years and twenty to twenty-two years before trial); State v. Salazar, 181 Ariz. 87, 92 n.5, 887 P.2d 617, 622 n.5 (App. 1994) (appellate court did "not foreclose" admission of other act that occurred twenty years before charged offense on remand). The trial court did not abuse its discretion when it found the other incident was not too remote.
¶17 Simpson next argues the acts are too dissimilar because the incident with J.E. involved the "forcible rape" of a child Simpson had known for a long time, while the charged offenses involved "mere words" with children he had known only a short time. Rule 404(c)(1)(C)(ii). Those "mere words," however, were Simpson's repeated requests for sexual contact and intercourse made while kissing the victims on the forehead. "Acts need not be perfectly similar in order for evidence of them to be admitted under Rule 404." State v. Lehr, 227 Ariz. 140, ¶ 21, 254 P.3d 379, 386 (2011). A comparison of the relevant facts here demonstrates significant similarities. In both incidents, Simpson took preadolescent boys away from their parents, with their consent, after developing a relationship with the family, demonstrated an interest in having sex with those boys and asked those boys to perform oral sex on him. See State v. Crane, 166 Ariz. 3, 6-7, 799 P.2d 1380, 1383-84 (App. 1990) (defendant's prior act of sexual intercourse with fifteen-year-old girl sufficiently similar to charged act of sexual contact, but not intercourse, with seven-year-old girl); see also State v. McDaniel, 119 Ariz. 373, 374, 376, 580 P.2d 1227, 1228, 1230 (App. 1978) (evidence defendant touched young boys' genitals over his pants and put hand under young girls' dress, but did not touch her, sufficiently similar to charged act of licking young female victims' genitals to be admissible as "lustful disposition" exception to rule precluding prior bad acts).
¶18 The dissimilarities Simpson points to—that he had known J.E. and the victims in this case for different lengths of time, and that he had "rape[d]" J.E., and not the victims—go to the evidence's weight, not its admissibility. State v. Roscoe, 145 Ariz. 212, 218, 700 P.2d 1312, 1318 (1984). The trial court did not abuse its discretion in finding the acts were sufficiently similar.
¶19 Simpson next argues the evidence that he committed the other act was "incredibly weak" because J.E. was not credible and the incident did not result in a criminal conviction. Ariz. R. Evid. 404(c)(1)(C)(iii). As already discussed above, the trial court found that J.E. was "highly credible" as a reporter of what happened between himself and Simpson in the shower. Moreover, the standard for a criminal conviction is proof beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364 (1970). Here, the court was only required to consider the strength of the evidence that Simpson had committed the other act in its overall balancing of the probative value against the prejudicial value.
¶20 Simpson also appears to take issue with the trial court's statement that there were no "directly relevant" surrounding circumstances. Ariz. R. Evid. 404(c)(1)(C)(v). He points out that he cooperated with law enforcement in the investigation into J.E.'s allegations and that he had a history with J.E.'s family, the latter of which was lacking in this case. Other than summarily stating these facts, however, Simpson has not argued why these points are relevant, or how they weigh against the admission of J.E.'s testimony.
¶21 As to the remaining four factors under Rule 404(c)(1)(C), the trial court made explicit findings on each factor, as required by the rule. Simpson does not argue the court was incorrect, and instead appears to contend those factors weighed against admitting the evidence. But no single factor or combination of factors under Rule 404(c)(1)(C) is dispositive. The court must make its findings on each of the factors and weigh them together to determine if the probative value outweighs the prejudicial effect of the evidence. Ariz. R. Evid. 404(c)(1)(C). Having done so in this case, we cannot say the court abused its discretion in admitting the other act evidence.
Prosecutorial Misconduct
¶22 Simpson next argues the trial court erred by denying his motion for a mistrial based on prosecutorial misconduct stemming from the prosecutor's attempt during the final day of trial to admit the forensic interviews of the victims. "We review a trial court's denial of a motion for mistrial for an abuse of discretion, bearing in mind that a mistrial is a 'most dramatic' remedy that 'should be granted only when it appears that that is the only remedy to ensure justice is done.'" State v. Blackman, 201 Ariz. 527, ¶ 41, 38 P.3d 1192, 1203 (App. 2002), quoting State v. Maximo, 170 Ariz. 94, 98-99, 821 P.2d 1379, 1383-84 (App. 1991). We defer to the court because it "is in the best position to determine whether the [alleged error] will actually affect the outcome of the trial." State v. Jones, 197 Ariz. 290, ¶ 32, 4 P.3d 345, 359 (2000).
¶23 In deciding whether to grant a mistrial based on prosecutorial misconduct, "[t]he trial court should consider (1) whether the prosecutor's statements called jurors' attention to matters the jury was not justified in considering in determining its verdict, and (2) the probability that the jurors were in fact influenced by the remarks." State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997). The misconduct must have "so infected the trial with unfairness as to make the resulting conviction a denial of due process." State v. Hughes, 193 Ariz. 72, ¶ 26, 969 P.2d 1184, 1191 (1998), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).
¶24 On the final day of trial, during the testimony of one of the detectives involved with investigating this case, a juror asked to see a copy of the victims' forensic interviews. In response, the court instructed the jury it could only consider evidence offered by one of the parties and admitted by the court, and reiterated that "[t]he burden of proof is always on the prosecution to prove the case."
¶25 Immediately following these instructions, the state, in the presence of the jury, moved to admit the forensic interviews into evidence, stating the detective had already laid the foundation for their admission. The court requested the parties approach the bench, where Simpson objected on hearsay grounds and the prosecutor stated there was an "exception to the hearsay rule," but did not specify which exception. The court addressed the jury and informed them it had made "an evidentiary decision" that the interviews were inadmissible hearsay because the state had not proffered an applicable exception to the hearsay rule.
¶26 The following morning, a juror sent a note to the trial court questioning why the interviews were considered hearsay and implying that, without the interviews, the jury may not convict Simpson. After denying Simpson's motion for a mistrial based on prosecutorial misconduct, the court provided the following curative instructions:
I have ruled that [the forensic interviews are] not admissible, so I have ruled that [those interviews] cannot be admitted. The admissibility of evidence is a legal question, so it is a question that has to be decided by me. Do not speculate on the reasons for my ruling, and do not give any weight or make any inference about the evidence itself from my ruling. Do not draw any inference from my ruling that [the interviews] would have been beneficial or harmful to either party, or both parties. Do not draw any inference about this evidence based upon which party offered it. Do not speculate about what was in [the interviews] or any other evidence that has not been admitted.The court also repeated the standard instructions on the defendant's presumption of innocence, the state's burden of proof, and that the jury could only consider admissible evidence. Rev. Ariz. Jury Instrs. 4, 5a & 16 (4th ed. 2016).
¶27 Simpson argues the prosecutor committed misconduct because the interviews were "clearly inadmissible." He thus appears to contend the prosecutor brought the jurors' attention to inadmissible evidence. See Lee, 189 Ariz. at 616, 944 P.2d at 1230. The jurors, however, were already aware that the forensic interviews of the victims had been conducted and recorded, and they had asked to see the interviews several times before this instance.
¶28 Rather, as the trial court noted below, the prosecutor's conduct potentially created the negative inference the interviews contained evidence the defense did not wish the jurors to see. Simpson, however, has not explained, nor do we see, why the trial court's curative instructions were not sufficient to counter any potential prejudice which arose from that inference. See State v. Nelson, 229 Ariz. 180, ¶ 45, 273 P.3d 632, 642 (2012) ("We presume jurors follow their instructions."). Accordingly, the court did not abuse its discretion by denying Simpson's motion for a mistrial on this basis. See Blackman, 201 Ariz. 527, ¶ 41, 38 P.3d at 1203.
Simpson additionally asks this court to find that retrial is barred pursuant to the test set forth in Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984). The Pool test, however, requires an initial finding that a mistrial is justified based on prosecutorial misconduct. Id. Because we find the trial court did not err in denying the motion for a mistrial, we need not address this issue further. --------
¶29 Simpson next argues the prosecutor's failure to disclose that she had previously represented a witness in this case also constitutes prosecutorial misconduct warranting a mistrial. This argument was not raised below and Simpson has therefore forfeited review for all but fundamental, prejudicial error. State v. Haverstick, 234 Ariz. 161, ¶ 5, 318 P.3d 877, 880 (App. 2014).
¶30 The record on appeal does not contain any information relating to the prosecutor's alleged former representation of the witness. In his opening brief, Simpson states that after his notice of appeal was filed, his attorney "heard a rumor that" the prosecutor had formerly represented the witness and, upon asking her "if it was true, . . . she confirmed that it was." He asked this court to take judicial notice of that fact by providing a Nogales Justice Court docket number.
¶31 Rule 201(b), Ariz. R. Evid., provides that a court may take judicial notice of any fact that "is generally known within the trial court's territorial jurisdiction; or . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." If a party requests this court to take judicial notice of a fact, it must supply the court "with the necessary information." Id.
¶32 Although this court "generally do[es] not consider materials that are outside the record on appeal," we may take judicial notice of matters not presented to the trial court under certain circumstances. State v. Schackart, 190 Ariz. 238, 247, 947 P.2d 315, 324 (1997). However, even were we to consider doing so, "we would first have to satisfy ourselves as to their authenticity." Id. Merely providing a docket number does not provide the information necessary to allow us to take judicial notice of the prosecutor's alleged former representation of this witness. Id. ("photocopies of pages purportedly taken from various proceedings" insufficient to allow appellate court to take judicial notice of fact).
¶33 In his reply brief, Simpson submitted an "enclosure" containing the entire case file matching the docket number he provided. We do not, however, consider documents appended to a reply brief from an unrelated case that are not part of the record in this case. Kessen v. Stewart, 195 Ariz. 488, ¶ 26, 990 P.2d 689, 695 (App. 1999) (court will not take "judicial cognizance" of documents from unrelated case, attached to reply brief and not part of case record). Furthermore, this court is "ill-equipped to resolve disputes over authenticity." Schackart, 190 Ariz. at 247, 947 P.2d at 324. Rather, "[t]he trial court is the most appropriate forum" to develop the record on this issue. State v. Spreitz, 202 Ariz. 1, ¶ 5, 39 P.3d 525, 526 (2002); cf. Ariz. R. Crim. P. 32.1. Thus, because the record is devoid of any evidence supporting Simpson's claim that the prosecutor had formerly represented a trial witness, we do not address this argument further.
Disposition
¶34 For the foregoing reasons, we affirm Simpson's convictions and sentences.