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Honorable Joseph Kreamer
Filed: 2/4/2009    Case Number: LC2008-000721
Plaintiff	Prosecution
State of Arizona	Deputy County Attorney Elizabeth Ortiz
v.
Defendant	Defense
Dale Fushek	Thomas Hoidal

MINUTE ENTRY

The Court previously heard oral argument in this Special Action proceeding and took the matter under advisement. The Court now rules as follows.

Factual Background

Real Party in Interest Dale Fushek (hereinafter the “Defendant”) was charged in the San Tan Justice Court with five counts of contributing to the delinquency of a minor in violation of A.R.S. § 13-3613, three counts of assault in violation of A.R.S. § 13-1203 and two counts of indecent exposure in violation of A.R.S. § 13-1402. Two of the assault counts and one of the indecent exposure counts were dismissed on the State’s Motion. The remaining counts relate to five separate victims. All of the remaining counts arise out of the allegation that Defendant used his position as the Pastor of St. Timothy’s Catholic Church to perform criminal acts, specifically that he contributed to the delinquency of minors by repeatedly asking the victims explicit questions about their sexual activities and that he assaulted one victim and exposed himself to another.

The Justice Court initially denied Defendant’s motion to sever the offenses. However, after Defendant successfully argued to the Arizona Supreme Court that he was entitled to a jury trial on all counts, the Justice Court reconsidered its previous denial of the motion to sever and ordered separate trials as to each alleged victim. This resulted in an order setting five separate trials, in order of the date of the offenses. The Justice Court further granted Defendant’s motion to exclude evidence in the separate trials relating to these victims and of other alleged offenses arising from unfiled and dismissed charges relating to other victims, reasoning that such evidence would be improper propensity evidence under Rule 404(b), Arizona Rules of Evidence.

The State now raises essentially two issues in this Special Action:

1.Did the Justice Court abuse its discretion in granting a severance and ordering five separate trials?

2.Did the Justice Court abuse its discretion in granting Defendant’s Rule 404(b) motion to exclude evidence of other alleged similar acts?

Jurisdiction and Standard of Review

Special action review is highly discretionary. Pompa v. Superior Court In and For the County of Maricopa, 187 Ariz. 531, 931 P.2d 431 (App. 1997). Special action review is generally reserved for those instances where there is no equally plain, speedy or adequate remedy by appeal. State ex rel. Miller v. Superior Court, 189 Ariz. 228, 230, 941 P.2d 240, 242 (App. 1997). Here, as to the severance issue, the State clearly has no equally plain, speedy, or adequate remedy on appeal and therefore special action review is appropriate. See State v. Superior Court, 173 Ariz. 447, 449, 844 P.2d. 614, 616 (App.1992).

The scope of review on special action is generally whether the trial court abused its discretion. Further, the trial court’s decision to grant or deny a motion to sever is within its sound discretion and will be reversed only if that discretion has been abused. Id. An abuse of discretion exists when the court commits an error of law in reaching a discretionary conclusion. Webb v. Omni Block, Inc. 216 Ariz. 349, 352, 166 P.3d 140, 143 (App. 2007).

Application of Rule 13.3(a)

The basis for a severance in this case arises from Rule 13.3(a), Arizona Rules of Criminal Procedure. Rule 13.3(a) allows offenses to be joined in a complaint if they (1) are of the same or similar character: or (2) are based on the same conduct or otherwise connected together in their commission: or (3) are alleged to have been part of a common scheme or plan. If the offenses are joined under Rule 13.3(a)(1), Rule 13.4(b) grants a defendant the right to sever these offenses unless evidence of the other offenses would be admissible if the offenses were to be tried separately. In other words, if the offenses are joined under Rule 13.3(a)(1), a defendant has a right to sever them unless they are “cross-admissible” in the trial of the others. However, if the offenses are properly joined under either Rule 13.3(a)(2) or (3), Defendant has no such right of severance.

The State did not argue in the Justice Court that the offenses were properly joined under either Rule 13.3(a)(2) or 13.3(a)(3). In fact, the State conceded below that defendant would be entitled “as of right” to a severance unless evidence of other offenses were admissible, thus abandoning any 13.3(a)(2) and 13.3(a)(3) arguments. See State’s Appendix K, pg. 2. The Court believes that the State therefore has waived these arguments. See State v. Lujan, 136 Ariz. 328, 330, 666 P.2d 71, 73 (1983) (failure to bring arguments raised in a motion to the attention of the trial court so that it could rule on the motion had the effect of waiving those arguments).

Even if this Court considered the State’s arguments that the offenses were properly joined under either Rule 13.3(a)(2) or (3), the Court would reject them. Applying Rule 13.3(a)(2), the Court does not believe that the alleged offenses are based on the same conduct or are otherwise connected in their commission. While the offenses alleged here generally involve Defendant’s role as a priest, they span a ten year time period, occurred in various settings, and are not otherwise “connected” in their commission. There are no Arizona cases in which similar or analogous facts have resulted in application of Rule 13(a)(2). In fact, the one case relied on by the State, State v. Martinez-Villareal, 145 Ariz. 441, 702 P.2d 670 (1985) does not remotely resemble these facts. Instead, in Martinez-Villareal, joinder of a burglary and murder offense was appropriate when a defendant stole a gun and used that gun to commit a homicide. The two offenses were naturally connected – one crime led to the other. There is no such nexus here.

Nor does the Court believe that Rule 13.3(a)(3) applies in this case. Rule 13.3(a)(3) limits a defendant’s severance right when the offenses are “alleged to have been part of a common scheme or plan.” The State argues, without citing to any authority, that the offenses alleged are “extensively intertwined,” essentially because Defendant had a priest-parishioner relationship with each of his victims. However, the Arizona Supreme Court has explained that the “common scheme or plan” requires that “the component acts of a ‘common scheme or plan’ must be sufficiently related to be considered a single criminal offense.” State v. Ives, 187 Ariz. 102, 108, 927 P.2d 762, 768 (1996). In Ives, the Court held that alleged molestation of four girls over an approximately seven year period did not constitute a single “over-arching criminal plan” so as to be considered a common scheme or plan under Rule 13.3(a)(3). Here, the Court believes that the alleged acts of Defendant cannot be viewed as “a single criminal offense” and are no more of an “over-arching criminal plan” than the acts alleged in Ives. Thus Rule 13.3(a)(3) does not apply.

“Cross-admissibility” under Rule 404(b)

Even if Rules 13.3(a)(2) or (a)(3) do not apply, severance is not appropriate if the other offenses alleged are “cross admissible” – meaning they could be introduced at separate trials under Rule 404(b), Arizona Rules of Evidence. Rule 404(b) provides generally that evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show the person acted in conformity with those other acts. However, 404(b) does allow admission of evidence of other crimes, wrongs or acts as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Without citing a single case, the State argues that every single one of the Rule 404(b) exceptions apply here, and therefore severance is not appropriate because evidence of the other offenses would be admissible under Rule 404(b) in a separate trial of any of the counts.

The question of whether other alleged criminal conduct may be admitted as evidence at trial is “one of the most frequent issues on appeal. Examples are endless.” See Udall, et al., Arizona Practice: Law of Evidence (3rd), § 84. The most recent and instructive analysis of Rule 404(b) by the Arizona Supreme Court on facts similar to this case is in Ives, supra. In Ives, the Defendant was charged with molesting three separate victims. Although he was not charged, the State also identified a fourth victim. The alleged acts shared certain traits, including the ages of the victims, the manner in which the defendant came to know the victims, the location of the acts and generally the manner in which the molestations took place. 187 Ariz. at 108, fn. 2. The incidents occurred over roughly a seven year period. The trial judge denied a motion to sever under Rule 13.3, and permitted testimony of the fourth victim pursuant to Rule 404(b).

The Arizona Supreme Court vacated defendant’s convictions, holding that neither Rule 13.3(a)(3) (as set forth above) nor Rule 404(b) provided a basis to admit the testimony regarding other acts. The Court first noted that the definition of a “common scheme or plan” under Rule 13.3 and the definition of “plan” as used in Rule 404(b) are coextensive. 187 Ariz. at 109. Having already found that the acts alleged in Ives did not constitute a “common scheme or plan,” the Court held that the evidence was not admissible under Rule 404(b) as evidence of a “plan.” The Court then went on to reject the State’s arguments that the evidence of other acts was admissible to show intent and/or an absence of mistake or accident. The State’s argument here that the other offenses are admissible as a “plan” must be rejected for the same reason the argument was rejected in Ives. As set forth above, the other offenses alleged by the State cannot be considered an over-arching criminal plan so as to trigger application of Rule 13.3(a)(3). Therefore, they likewise cannot be considered part of a “plan” here under Rule 404(b).

The State also argues here that the other offenses are admissible to show that Defendant was motivated by sexual desire. The State explains that while “taking one victim’s version of the events may or may not in of itself show sexual motivation” if the Court allowed the State to show “ongoing consistent conduct toward the victims, the trier-of-fact could clearly determine that the Defendant’s actions were sexually motivated.” State’s Petition, pg.11. The Court believes that this is exactly the type of propensity argument prohibited by Rule 404(b). The State’s logic would eviscerate Rule 404(b) by allowing evidence of other acts simply because they are sexual in nature. Further, the State’s argument regarding sexual motivation is essentially an aberrant sexual propensity argument under Rule 404(c). See State v. Prion, 203 Ariz. 157, 164, 52 P.3d 189, 196 (2002). (The State’s 404(c) argument is addressed below).

The other Rule 404(b) arguments raised by the State are similarly unavailing. Although it claims that each an every one of the exceptions apply, the State’s Petition does not even address the knowledge exception in Rule 404(b). Further, the State’s one sentence argument that “the victims’ consistent identification of the Defendant and eerily similar experiences” somehow justifies admission under the identity exception of Rule 404(b) is not well-taken. There is no issue here regarding the identity of the alleged perpetrator. Additionally, the State’s argument regarding the alleged absence of mistake or accident is similarly contained in a single sentence of its Petition and simply bootstraps on its argument that the pattern of conduct was part of a “plan.” There is likewise no real issue here regarding opportunity so as to trigger a Rule 404(b) exception. Defendant’s position and role with the church and the Life Teen program is not in dispute. Finally, specific intent is only an issue in Count 1 which requires the “intent to injure, insult or provoke” another person through impermissible touching. Evidence of acts related to indecent exposure and contributing to the delinquency of a minor are not relevant to the question of intent in Count 1, and thus there is no basis to utilize the other offenses to show intent under Rule 404(b).

The Court has carefully considered the State’s arguments regarding the applicability of the exceptions contained in Rule 404(b). Using Ives as a guidepost, the Court does not find that any of the Rule 404(b) exceptions would permit admission of each count in the trial of the other counts. Therefore, Rule 404(b) does not require joinder.

Application of Rule 404(c)

The State also argues that the evidence against the Defendant in each case is also admissible under Rule 404(c), Arizona Rules of Evidence. Rule 404(c) provides that in a criminal case in which a defendant is charged with having committed a sexual offense, evidence of other crimes, wrongs, or acts may be admitted by the court if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged. The rule further requires the court to make specific findings, by clear and convincing evidence, before admitting evidence of other crimes or wrongs under Rule 404(c). The Arizona Supreme Court has explained the requirements of Rule 404(c) as follows:

Before admitting other act evidence to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the charged sexual offense, the trial judge must make three determinations. First, the trial court must determine that clear and convincing evidence supports a finding that the defendant committed the other act. [Citations omitted]. Second, the court must find that 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 charged sexual offense. [Citation omitted]. Third, the court must find that the evidentiary value of proof of the other act is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or other factors mentioned in Rule 403… [Citations omitted]. Finally, the rule requires the trial judge to make specific findings with respect to each of the prerequisites for admission under the rule. [Citation omitted].

State v. Aguilar, 209 Ariz. 40, 49, 97 P.3d 865, 874 (2004). (emphasis in original).

Again without citing any cases, the State argues in one sentence that there is sufficient evidence contained in the investigative and pretrial defense interviews that Defendant committed each offense. The State then argues that the interviews create “a clear picture of the Defendant’s aberrant sexual propensity” and that the probative nature of this evidence outweighs its potential prejudice under Rule 403.

Defendant responds that Rule 404(c) does not even apply because the Defendant is not charged with a “sexual offense” as defined in A.R.S. § 13-420(C). However, the Court agrees with the State that pursuant to the holding in State v. Williams, 209 Ariz. 228, 236, 99 P.3d 43, 51 (App.2004), the aberrant sexual propensity exception of Rule 404(c) extends beyond the sexual offenses listed in A.R.S. § 13-1420 and that the crimes involved here would qualify as a sexual offense under Rule 404(c).

However, the Court agrees with Defendant that the State did not come close to providing the Justice Court with the evidence necessary for an aberrant sexual propensity finding under Rule 404(c). The State essentially is relying on investigative reports and witness statements to provide the requisite clear and convincing evidence. There were no live witnesses presented to the Justice Court so as to permit a credibility determination, nothing in the way of expert testimony regarding the alleged character trait of aberrant sexual propensity, nor even a definition given regarding what an “aberrant sexual propensity” is. In Aguilar, supra, transcripts of grand jury proceedings, pleadings and arguments of counsel were not sufficient to meet the State’s burden under Rule 404(c). The State offers little more in this case. The State has in effect provided a label for Defendant’s alleged acts with little else in the way of support. The Court believes that the offered proof here falls far short of the proof required for admissibility under Rule 404(c)

Because the State has not provided evidence sufficient to meet its burden under the requirements of Rule 404(c)(1)(A) and (B), the Court has not reached the question of whether the evidentiary value of proof of the other acts outweighs the danger of unfair prejudice under Rule 403.

For the reasons set forth above, the Court believes that the Justice’s Court’s determination that Defendant was entitled to separate trials was correct. Therefore, the Court finds no abuse of discretion and the State’s Petition challenging the severance will be denied.

Special action jurisdiction over the Justice Court’s evidentiary ruling

The State’s Petition also seeks review of the Justice’s Court’s ruling granting Defendant’s motion to exclude on Rule 404(b) grounds at each of the trials both evidence of the other offenses and evidence of unfiled and/or dismissed charges. The Justice Court ruled that the evidence was improper propensity evidence under Rule 404(b) and further that the evidence should be excluded under Rule 403 because its probative value was outweighed by the danger of unfair prejudice.

Defendant argues that these evidentiary issues are not appropriate for special action relief and the Court agrees. Rule 1(a), Rules of Procedure for Special Actions provides that a special action shall not be available where there is an equally plain, speedy and adequate remedy by appeal. Further, special actions are usually reserved for cases in which “justice cannot be satisfactorily obtained by other means.” King v. Superior Court, 138 Ariz. 147, 149, 673 P.2d 787, 789 (1983). Here, the Court agrees with Defendant that evidentiary rulings by the trial court are typically ill-suited for special action determination. Although it appears that the analysis regarding the admissibility of other acts will be similar to the analysis of the severance issue, the State has an adequate remedy on appeal, and the Court therefore declines jurisdiction and will not review the Justice Court’s ruling granting Defendant’s motion to exclude.

Therefore, based on the foregoing,
The Court accepts jurisdiction on State’s Petition on the issue of whether the Justice Court erred in granting Defendant’s motion to sever and DENIES RELIEF.

IT IS FURTHER ORDERED declining to accept jurisdiction of the State’s Petition to reverse the Justice Court’s exclusion of other act evidence at the trials.

Dated this 5th day of February, 2009.

HONORABLE JOSEPH KREAMER

JUDICIAL OFFICER OF THE SUPERIOR COURT

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