Opinion
No. 1 CA-CR 18-0200
06-06-2019
STATE OF ARIZONA, Appellee, v. DEREK R. ACHENBACH, Appellant.
COUNSEL The Law Office of Kyle T. Green, Tempe By Kyle Green Counsel for Appellant Arizona Attorney General's Office, Phoenix By Elizabeth BN Garcia Counsel for Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2017-104244-001
The Honorable Dean M. Fink, Judge
AFFIRMED
COUNSEL The Law Office of Kyle T. Green, Tempe
By Kyle Green
Counsel for Appellant Arizona Attorney General's Office, Phoenix
By Elizabeth BN Garcia
Counsel for Appellee
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Maria Elena Cruz joined. MORSE, Judge:
¶1 Derek Randall Achenbach ("Achenbach") appeals his convictions and sentences for two counts of sexual abuse. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In September 2015, Achenbach went to Flagstaff, Arizona with his 12-year-old stepdaughter, Z.W., and his biological daughter, C.A. C.A. was participating in a soccer tournament in Flagstaff and Z.W. agreed to be the referee. They slept in a tent at a campsite with C.A.'s soccer teammates and their families. In the tent, Z.W. and C.A. slept in their own individual sleeping bags but on top of an air mattress together. Achenbach slept in his own sleeping bag on the other side of the tent. In the middle of the night, Z.W. woke up to Achenbach touching her breasts, underneath her shirt. Z.W. was "confused" and tried to "roll over to stop him from touching [her]." Achenbach stated that he was "really cold and he asked [Z.W.] if he could come in [her] sleeping bag with [her]." Z.W. told him "no, and if he was really cold, he should just go sleep in [C.A.'s] sleeping bag." Z.W. continued to roll over so Achenbach would stop touching her, and he eventually laid back down.
¶3 The next morning, Z.W. did not tell C.A. what happened because she "wasn't even sure it had happened." C.A. played in her soccer game and then they went home. Z.W. did not tell her mother what happened when they got home because she believed that it "wasn't important, and that it was insignificant, and no matter what [she] said, nothing was ever going to change."
¶4 About a month or two later, Z.W. had a sleepover with C.A. at Achenbach's home. During the sleepover, Z.W. slept with C.A. on the "right side" of C.A.'s bed. That night, Z.W. woke up to find Achenbach in C.A.'s bedroom, kneeling on the ground in-between the right side of the bed and the wall. Achenbach put his hand up Z.W.'s shirt, rubbed her breasts, then moved his hand down under her underwear, and rubbed the top of her vagina. He then moved his hand back up to Z.W.'s breasts and then back down again. Z.W. was "a lot more sure of what was happening" and told Achenbach to stop a few times. Eventually, Z.W. "said [stop] loud enough that C.A. started to stir next to [her]" and Achenbach left.
Z.W.'s mother filed for legal separation from Achenbach, which was granted in August 2015. Since then, Z.W. and her mother lived separately from Achenbach and C.A. --------
¶5 The next morning, Z.W. did not tell C.A. what happened because she "had no idea the importance or the severity of what [Achenbach] had done." Z.W. did not mention the incident to her mother either, but she did tell two friends at school a few months later. After some more time passed, Z.W. told a third friend about the incident, who encouraged Z.W. to tell her mother.
¶6 In January 2017, Z.W. told her mother—by writing it down on a piece of paper—that Achenbach "touched [her] inappropriately" on the two occasions. Z.W.'s mother contacted the police after she read the note and Z.W. subsequently participated in a forensic interview. The police also arranged a confrontation call between Z.W. and Achenbach, where Achenbach admitted that "it [did] make [him] feel good" when he touched Z.W.'s breasts. During a subsequent police interview, Achenbach further admitted that he may have touched Z.W.'s breasts when she had a sleepover with C.A. in his home.
¶7 Achenbach was indicted for one count of molestation of a child, a class 2 dangerous felony; and two counts of sexual abuse, class 3 dangerous felonies. At trial, Achenbach sought to impeach Z.W. with her forensic interview. Specifically, Achenbach sought to admit the entire video and audio recording of the forensic interview to show the jury Z.W.'s hand gestures—in reference to where the alleged touching occurred—to show that the gestures and statements were inconsistent with her testimony at trial. The trial court denied Achenbach's request to play the video and required that he use the transcript from the interview, rather than the video, citing that it was hearsay. Achenbach subsequently impeached Z.W. through use of the transcript.
¶8 A jury found Achenbach guilty of two counts of sexual abuse. Achenbach was acquitted of child molestation. The trial court suspended the imposition of sentence and placed Achenbach on concurrent terms of lifetime supervised probation. As a condition of his probation, the court ordered Achenbach to serve an initial term of six months in jail.
¶9 Achenbach timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
¶10 Achenbach raises three arguments on appeal. First, that the trial court erred when it denied him the right to cross-examine Z.W. through use of her forensic interview video recording. Second, that the trial court improperly allowed the State to present other acts evidence pursuant to Arizona Rule of Evidence ("Rule") 404. Third, that the trial court erred in denying his motion for mistrial.
I. Cross-Examination
¶11 Achenbach contends that the trial court erred and prohibited him from conducting a thorough cross-examination of Z.W. when it did not allow him to introduce the video and audio recordings of Z.W.'s forensic interview into evidence. We review a trial court's ruling regarding the scope of cross-examination and the relevance and admissibility of evidence for an abuse of discretion. State v. Ellison, 213 Ariz. 116, 132, ¶ 52 (2006); State v. Sucharew, 205 Ariz. 16, 23, ¶ 19 (App. 2003).
¶12 Z.W. testified that during the Flagstaff incident, Achenbach touched her breasts and "went down to [her] stomach . . . but . . . stayed on the top half of [her] body." During her forensic interview, however, Z.W. stated that Achenbach touched her breasts underneath her clothing and went "down there" to her "vagina" and rubbed it. Z.W. testified that she did not recall telling the police during her forensic interview that Achenbach "went all the way down to [her] vagina" after touching her breasts.
¶13 Achenbach's counsel sought to impeach Z.W. through her inconsistent statements. He attempted to admit the entire video and audio recording into evidence "to let the jury . . . hear all of the answers . . . [and] assess . . . [Z.W.'s] demeanor and credibility" because the video recording "has many different body gestures that are . . . critical." The court instructed Achenbach to first attempt to "refresh [Z.W.'s] recollection" with the interview transcript and if that did not work, the court would allow him to show her portions of the video—outside of the jury's presence—to refresh her memory.
¶14 Achenbach's counsel used the transcript and simulated the hand gestures that Z.W. made in the video to refresh her recollection. Z.W. agreed that Achenbach's counsel's demonstrations paralleled her actions in the video—that the touching was in the area "below the waist in the pubic hair to the area where there first starts to be . . . an opening in the skin," which, to her, indicated "vagina." At the end of Z.W.'s testimony, Achenbach moved to admit the entire video recording into evidence. The court concluded that it did not need to be admitted because counsel's questions "very clearly indicated what was on the video and [Z.W.] agreed with [his] characterizations of it."
¶15 Achenbach argues that the trial court violated the Confrontation Clause and abused its discretion by denying him the right to cross-examine Z.W. through use of her forensic interview recording. "The confrontation clauses of the state and federal constitutions guarantee criminal defendants the right to confront their accusers." State v. King, 180 Ariz. 268, 275-76 (1994); see also Ariz. Const. art. 2, § 24; U.S. Const. amend. VI. This right "has long been read as securing an adequate opportunity to cross-examine adverse witnesses." United States v. Owens, 484 U.S. 554, 557 (1988). The Confrontation Clause, however, only guarantees "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Id. at 559.
¶16 The record supports the trial court's ruling. Trial judges have "wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about . . . confusion of the issues . . . or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). It is also within the court's discretion whether to admit extrinsic proof of an admitted inconsistent statement. State v. Rutledge, 205 Ariz. 7, 11, ¶ 19 (2003). Here, the court allowed Achenbach's counsel to refresh Z.W.'s recollection by showing her the video recording—outside of the jury's presence—of her hand gestures, referencing that she was touched in the area below her waist. After her memory was refreshed, the court subsequently allowed Achenbach's counsel to impeach her, before the jury, by eliciting responses from her that his demonstrations of her hand gestures were an accurate portrayal of her hand movements in the video recording. Indeed, because Achenbach achieved his desired purpose, to impeach Z.W. through use of the transcript, the trial court did not err in precluding the admission of the same evidence in a different form. See State v. Mauro, 159 Ariz. 186, 204 (1988) (finding no error when the court did not allow defense counsel to impeach the state's witness with a tape recording of a prior inconsistent statement because defense counsel already "achieve[d] his desired purpose when he had the witness read the prior statement to the court").
¶17 Even assuming the trial court erred by precluding the video recording, any conceivable error was harmless in light of the evidence. In addition to the victim's testimony, the jury heard evidence of Achenbach's statements during the confrontation call in which he acknowledged touching Z.W.'s breasts and that it made him feel good to do so. The jury also heard Achenbach's recorded admission to police that he may have touched her breasts during the sleepover. See supra ¶ 6. In light of Achenbach's statements and admissions, any error in limiting the use of the full video during cross-examination is harmless beyond a reasonable doubt. See State v. Bible, 175 Ariz. 549, 588 (1993) ("Error, be it constitutional or otherwise, is harmless if we can say, beyond a reasonable doubt, that the error did not contribute to or affect the verdict.").
II. Admissibility of Evidence
¶18 The State moved to admit the other-act evidence under both Rule 404(b) and 404(c). The court made appropriate findings and admitted the evidence under both Rule 404(b) and 404(c). The jury was later instructed under both Rule 404(b) and 404(c) as to what they could and could not consider against Achenbach.
¶19 Achenbach does not challenge the admission of the other-act evidence under Rule 404(b), but argues that the trial court erred by allowing the State to present other-act propensity evidence under Rule 404(c). He contends first, that the trial court was required to hold an evidentiary hearing to determine the admissibility of the other-act evidence, second, that there was insufficient evidence to support the admission of the other-act evidence and, third, that the evidence was unduly prejudicial. We review a trial court's rulings on the admissibility of evidence for an abuse of discretion. State v. Rose, 231 Ariz. 500, 513, ¶ 59 (2013).
¶20 As to Achenbach's arguments regarding the lack of a hearing, we note that Achenbach never objected to the lack of a hearing and explicitly conceded below that the Rule 404 motion could be resolved by holding oral arguments on the matter without the need for testimony. He further agreed to the evidence the court could consider, and affirmed that "argument [was] sufficient" so long as the judge is given "sufficient time" to listen to and read the evidence. Because Achenbach did not object to the lack of an evidentiary hearing, he has forfeited this argument on appeal absent fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). Under fundamental error review, Achenbach must show that (1) error occurred, (2) the error was fundamental, and (3) the error caused him prejudice. Id. at 568, ¶¶ 22-24, 26. Rule 404(b) does not require an evidentiary hearing, and Rule 404(c) does not expressly require one either. State v. LeBrun, 222 Ariz. 183, 186, ¶ 10 (App. 2009). Moreover, although Achenbach argues that he was prejudiced by the admission of the other-act evidence, he does not argue that he was prejudiced by the superior court's failure to conduct an evidentiary hearing. Therefore, he has not demonstrated fundamental error.
¶21 As to the admissibility of the other-act propensity evidence, a trial court must find clear and convincing evidence that the Rule 404(c) other act occurred. State v. Aguilar, 209 Ariz. 40, 49, ¶ 30 (2004). Then, the court must find 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 charged sexual offense." Id. The court must consider the factors listed in Rule 404(c)(1)(C)(i)-(viii) and must also find that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Id.
¶22 Evidence is clear and convincing if it makes "the thing to be proved . . . highly probable or reasonably certain." Kent K. v. Bobby M., 210 Ariz. 279, 284-85, ¶ 25 (2005). Here, as agreed to by Achenbach, the trial court reviewed Z.W.'s forensic interview, the confrontation call, the police interview of Achenbach, and the police reports from the prior incident. The court also noted Achenbach's statements and admissions as corroborating Z.W.'s statements. This evidence was sufficient to allow the court to find clear and convincing evidence of the Flagstaff incident. See LeBrun, 222 Ariz. at 187-88, ¶¶ 13-16 (noting that taped statements by victims "were sufficient to permit a finding that there was clear and convincing evidence establishing that defendant committed the other acts of sexual misconduct"); State v. Vega, 228 Ariz. 24, 29, ¶ 19, n.4 (App. 2011) ("The testimony of the victim is a sufficient basis on which to conclude by clear and convincing evidence that the incident occurred."). Z.W.'s forensic interview included a description of the Flagstaff incident. See supra ¶ 12. This account matched Z.W.'s trial testimony regarding the camping trip, the sleeping arrangements, Z.W. waking up to Achenbach reaching inside of her shirt, Achenbach asking Z.W. to get in the sleeping bag with her because he was "cold," Achenbach touching Z.W.'s breasts, and Z.W. "rolling over" so Achenbach would stop touching her. The only significant discrepancy involves the allegation during the forensic interview that Achenbach touched Z.W.'s vagina during the Flagstaff incident. However, the state did not introduce that allegation and it was only elicited during cross-examination by Achenbach's counsel. On this record, the trial court did not abuse its discretion in finding clear and convincing evidence to support the admission of the other-act evidence from the Flagstaff incident.
¶23 Furthermore, the very nature of the sexually-explicit acts with a minor that Z.W. described satisfies the requirement that the evidence demonstrates an aberrant sexual propensity. See Vega, 228 Ariz. at 29, ¶¶ 19-20 (holding that aberrant sexual propensity was established by one instance of touching an 11-year-old girl's genitals over her bathing suit); see also State v. Pierce, 170 Ariz. 527, 530 (App. 1991) (holding that the sexual abuse of a 12-year-old girl by a 46-year-old man is sexually aberrant behavior).
¶24 Finally, the record supports a finding that the evidentiary value of the evidence was not substantially outweighed by the danger of unfair prejudice. The evidence was probative in that it showed that Achenbach had a character trait linked to a propensity to commit the alleged acts. First, the other acts from the Flagstaff incident were not too remote in time from the sleepover incident: They occurred approximately one month apart while Z.W. was still 12 years old. See Ariz. R. Evid. 404(c)(1)(C)(i); see also State v. Weatherbee, 158 Ariz. 303, 304-05 (App. 1988) (holding prior acts that occurred 22 years before trial were not too remote to be admitted at trial). Second, even excluding the allegation that Achenbach touched Z.W.'s vagina in Flagstaff, the instances were nearly of the same conduct—both occurred at night while Z.W. was asleep, Z.W. was sleeping in the same bed as C.A., and both events involved touching Z.W.'s breasts. See Ariz. R. Evid. 404(c)(1)(C)(ii), (v), (vii); see also State v. Lehr, 227 Ariz. 140, 147, ¶ 21 (2011) ("Acts need not be perfectly similar in order for evidence of them to be admitted under Rule 404.").
¶25 The trial court also mitigated any possible prejudice by giving the jury the proper limiting instructions, which, in part, included, instructing them not to "consider the allegation of the touching of the vagina in Flagstaff against the defendant in any way." Pursuant to Rule 404(b), the trial court instructed the jury that they could only consider the remaining other acts to establish motive, intent, knowledge, or absence of mistake or accident. The court also instructed the jury, pursuant to Rule 404(c), that they could consider the other-act evidence to determine whether the "defendant had a character trait that predisposed him to commit the crimes charged." See State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006). We presume jurors follow the court's instructions, especially where acquittal on some charges supports the presumption. See State v. Goudeau, 239 Ariz. 421, 446, ¶ 67 (2016) (noting that the "record in this case bears out [the presumption that jurors follow instructions] as the jury acquitted" the defendant of some charges and hung on another).
¶26 Achenbach fails to demonstrate that the trial court erred in admitting other-act evidence under Rule 404(c), and our review finds no error or prejudice.
III. Motion for Mistrial
¶27 Achenbach contends that the trial court erred when it denied his motion for mistrial after Z.W. testified that Achenbach did not touch her vagina during the Flagstaff incident. He argues that once Z.W. testified that Achenbach did not touch her vagina in Flagstaff, there was no longer any basis "for allowing the [Rule] 404 evidence, once [Z.W.] testified differently than expected." "Absent an abuse of discretion, we will not overturn the trial court's denial of a motion for mistrial." State v. Jones, 197 Ariz. 290, 304, ¶ 32 (2000). We also note 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, 538, ¶ 41 (App. 2002).
¶28 An appellant's opening brief must include, for each issue, citations to supporting legal authority and references to the records on appeal. Ariz. R. Crim. P. 31.10(a)(7). Here, although Achenbach provides an applicable standard of review, he does not develop this argument, cite to relevant legal authority, or provide any record citations. Because Achenbach's contention that the trial court erred in denying his motion for mistrial is not sufficiently developed, he has waived this claim on appeal. See State v. Moody, 208 Ariz. 424, 452, ¶ 101, n.9 (2004) ("Merely mentioning an argument is not enough: In Arizona, opening briefs must present significant arguments, supported by authority, setting forth an appellant's position on the issues raised. Failure to argue a claim usually constitutes abandonment and waiver of that claim.") (internal quotation marks omitted).
¶29 Even absent waiver, the record does not show error. Achenbach was not prejudiced by any discrepancy in Z.W.'s testimony, as the trial court specifically instructed the jury that it was not permitted to consider the Flagstaff vagina-touching incident "against the defendant in any way." Z.W.'s inconsistent statements were elicited by the defense to impeach her testimony and Achenbach was ultimately acquitted of the most serious of the offenses with which he was charged. This demonstrates that the jury followed the court's instructions, including the instructions on the proper use of the other-act evidence. See State v. Herrera, 232 Ariz. 536, 548, ¶ 32 (App. 2013) (finding that when a jury was properly instructed regarding other-act evidence, acquittal on some charges "suggests [the jury] had not been so affected by the evidence of other acts that the guilty verdicts it rendered were the result of emotion, sympathy or horror") (internal quotation marks omitted); see also Goudeau, 239 Ariz. at 446, ¶ 67. Moreover, Achenbach misstates the importance of the initial allegation—even without the allegation that he touched her vagina, the evidence of the Flagstaff incident was still admissible. See supra ¶¶ 22-24. The superior court did not err in denying the motion for mistrial.
CONCLUSION
¶30 For the foregoing reasons, we affirm Achenbach's convictions and sentences.