Opinion
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
Terry Goddard, Arizona Attorney General, by Randall M. Howe and Robert A. Walsh, Phoenix, for Appellee.
Thomas J. Phalen, Phoenix, for Appellant.
OPINION
VSQUEZ, Judge.
¶ 1 Appellant Jonathan Ploof was convicted following a five-day jury trial of three counts of child molestation and one count each of sexual conduct with a minor and attempted child molestation. The trial court sentenced him to mitigated prison terms on each count, four to be served consecutively and two to be served concurrently with another, totaling forty-three years. Ploof argues on appeal the trial court erred in admitting evidence of other acts, in denying his motion to sever the counts, in failing to properly instruct the jury, in allowing the state to amend the indictment without returning the case to the grand jury, in refusing to strike the jury pool after allegedly prejudicial statements by potential jurors, and in admitting improper expert testimony. Ploof also claims, but does not argue, that his sentences violate the Eighth Amendment. We affirm.
Facts
¶ 2 We view the facts in the light most favorable to upholding the verdicts, resolving all reasonable inferences against the defendant. State v. Greene, 192 Ariz. 431, ¶ 12, 967 P.2d 106, 111 (1998). Jonathan Ploof sexually abused three female victims under the age of fifteen. All three victims testified at trial.
¶ 3 The first victim, J., testified that Ploof had molested her when she was thirteen years old. Ploof was thirty-five or thirty-six at the time. J. testified that, while she was watching a movie at Ploof's house during the summer of 1996, with his wife and children present in the same room, Ploof had "massag[ed her] vagina area" under the cover of a blanket. Ploof then digitally penetrated her. That same summer, while they were swimming in the Ploofs' pool, Ploof took J.'s hand and tried to force her to touch his penis.
¶ 4 The second victim, S., testified that, during the summer of 1997, Ploof had sexually molested her. The first time occurred at Ploof's residence when he had massaged S.'s legs to relieve cramps she had suffered following softball practice. Although S. had told Ploof that only her calf muscle had cramped, he rubbed her legs up to her upper, inner thighs. Ploof then touched her vagina over her underwear, but beneath her shorts. Later that summer, this time at S.'s house, Ploof again touched S.'s vagina over her underwear on the pretext of massaging her legs. S. testified that, although Ploof had claimed the touching was accidental, he had continued to touch her in the same manner until she got up and left the room.
¶ 5 The third victim, T., testified that, in the summer of 2002, Ploof had sexually molested her. While in his daughter's room with her present, Ploof had given both girls a back rub. Instead of rubbing T.'s back only, Ploof had continued down her back and "felt" her vagina beneath her underwear.
¶ 6 Before trial, the state moved to admit evidence of other acts in which Ploof had behaved in an inappropriate sexual manner toward two of the three girls. Following an evidentiary hearing at which the victims testified, the trial court denied admission of one of the other acts and admitted the rest. In his appeal, Ploof primarily challenges the trial court's ruling on the admissibility of other acts evidence.
Other Acts Evidence
¶ 7 A trial judge must make three determinations before admitting other acts evidence that shows a defendant has "a character trait giving rise to an aberrant sexual propensity to commit the offense charged." Ariz. R. Evid. 404(c), 17A A.R.S. First, the court must determine that clear and convincing evidence exists "to permit the trier of fact to find that the defendant committed the other act." Ariz. R. Evid. 404(c)(1)(A); see State v. Aguilar, 209 Ariz. 40, ¶ 30, 97 P.3d 865, 874 (2004); State v. Terrazas, 189 Ariz. 580, 582, 944 P.2d 1194, 1196 (1997). 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 crime charged." Ariz. R. Evid. 404(c)(1)(B). Third, the court must also find that the "evidentiary value of proof of the other act is not substantially outweighed by danger of unfair prejudice, confusion of issues, or other factors mentioned in Rule 403." Ariz. R. Evid. 404(c)(1)(C). And, finally, Rule 404(c) requires that the trial judge "make specific findings with respect to each of the prerequisites for admission under the rule." Aguilar, 209 Ariz. 40, ¶ 30, 97 P.3d at 874; see Ariz. R. Evid. 404(c)(1)(D).
¶ 8 Ploof broadly claims the trial court erred in admitting "irrelevant and prejudicial [Rule] 404(c) evidence and testimony." He opposed the state's motion to admit other acts evidence, arguing that the alleged other acts did not demonstrate he is the "type of person who has a propensity to commit child molestation or sexual conduct with a minor." Ploof also argued the evidence should have been precluded because the potential for prejudicial impact outweighed the probative value of the evidence. We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. State v. Tankersley, 191 Ariz. 359, ¶ 37, 956 P.2d 486, 496 (1998); State v. Garcia, 200 Ariz. 471, ¶ 25, 28 P.3d 327, 331 (App.2001).
In an argument heading, Ploof claims the trial court's admission of other acts evidence deprived him of his due process right to a fair trial. However, Ploof did not raise this argument to the trial court or develop it in his opening brief. Therefore, we find it waived and abandoned. See State v. Moody, 208 Ariz. 424, n. 9, 94 P.3d 1119, 1147 n. 9 (2004) (failure to argue claim constitutes abandonment of claim); State v. Spreitz, 190 Ariz. 129, 145, 945 P.2d 1260, 1276 (1997) (appellate court may properly decline to consider constitutional claims raised for first time on appeal).
¶ 9 At the evidentiary hearing on the motion, two victims testified about inappropriate behavior by Ploof. Following the hearing, the court ruled that the state would be permitted to introduce evidence that, following some roughhousing, Ploof had pinned J. to the ground and "looked her up and down," that Ploof had offered J. a pair of his wife's "pink lace" underwear, that he had peered through a door jamb to watch S. while she changed into her swimsuit, and that he had stared between S.'s legs while in his swimming pool. The court precluded the state from introducing evidence that Ploof had entered a bathroom and watched one of the victims shower.
¶ 10 The trial court addressed the requirements of Rule 404(c)(1)(A) through (C) in the following manner:
With regard to the allegations that Mr. Ploof held [J.] down and looked her up and down when he was on top of her, that evidence will be permitted.
The evidence that Mr. Ploof offered his wife's underwear to [J.] will be admitted.
And all of the alleged acts with regard to [S.] that she testified to yesterday will be admitted.
As to those acts that I've admitted, I find that the evidence as to all of those acts is sufficient from which the jury could find by clear and convincing evidence that the acts did occur. Secondly, I find that the acts provide a reasonable basis to infer that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the crimes charged as to said victims. And third, the evidentiary value of that evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or other factors enumerated under Rule 403 of the Rules of Evidence.
¶ 11 Ploof contends the other acts the trial court admitted were not proved by clear and convincing evidence. See Ariz. R. Evid. 404(c)(1)(A); Terrazas, 189 Ariz. at 582, 944 P.2d at 1196. We disagree. Each of the victims who testified at the hearing provided detailed accounts only about the other acts that Ploof had committed against her. And the other acts committed were similar in nature to the charged offenses. Admission of the other acts evidence was appropriate under these circumstances. See State v. Marshall, 197 Ariz. 496, ¶ 6, 4 P.3d 1039, 1042 (App.2000); State v. Jones, 188 Ariz. 534, 539, 937 P.2d 1182, 1187 (App.1996). And Ploof cites no authority for the proposition that the victims' testimony standing alone cannot constitute clear and convincing evidence. The court therefore did not abuse its discretion in determining that clear and convincing evidence existed that would permit a jury to find Ploof had committed the other acts. See Ariz. R. Evid. 404(c)(1)(A).
¶ 12 Ploof next argues the other acts evidence failed the Rule 404(c)(1)(B) requirement because there was no expert testimony to support it. Quoting from Aguilar, however, Ploof claims there must be a " ' "reasonable" basis, by way of expert testimony or otherwise, to support relevancy, ... that the commission of the other act permits an inference that defendant had an aberrant sexual propensity that makes it more probable that he or she committed the sexual offense charged.' " 209 Ariz. 40, n. 10, 97 P.3d 865, 872 n. 10, quoting Ariz. R. Evid. 404 cmt. to 1997 amendment (emphasis added). Ploof fails to quote the rest of the footnote, which states, in relevant part, that " '[t]he present codification of the rule permits admission of evidence of the other act either on the basis of similarity or closeness in time, supporting expert testimony, or other reasonable basis that will support such an inference.' " Id., quoting Ariz. R. Evid. 404 cmt. to 1997 amendment. "[T]he rule requires that the other act evidence must lead to a reasonable inference that the defendant had a character trait that gives rise to an aberrant sexual propensity to commit the charged sexual offense." Id. ¶ 27.
¶ 13 The trial court found that the other acts evidence "provide [d] a reasonable basis to infer that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the crimes charged." Contrary to Ploof's argument, "when the other 'incident is both similar and near in time to the crimes for which' an accused is charged, expert testimony is not a necessary predicate for admission." Id. ¶ 13, quoting State v. Corcoran, 119 Ariz. 573, 577, 583 P.2d 229, 233 (1978). We believe the other acts in which Ploof made an inappropriate, sexually laced comment to one of the victims and in purposely positioning himself to stare at or touch preteen girls in a sexual manner during times shortly before the molestations "provide[d] a reasonable basis to infer that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the [molestations]." Ariz. R. Evid. 404(c)(1)(B). We cannot say, therefore, that the trial court abused its discretion in making such a finding.
¶ 14 Finally, before admitting other acts evidence, a trial court must comply with Rule 403, Ariz. R. Evid., 17 A A.R.S., balancing the other acts' evidentiary value against the potential of unfair prejudice, confusion of the issues, or other factors mentioned in the rule. A trial court is best situated to perform a Rule 403 balancing test, and we will not disturb its resulting decision absent an abuse of discretion. State v. Canez, 202 Ariz. 133, ¶ 61, 42 P.3d 564, 584 (2002). Here, the trial court stated that it had analyzed the other acts under Rule 403 and found their probative value was not outweighed by their potential for unfair prejudice. We agree. The other acts involved Ploof and two of the three victims. The other acts included inappropriate behavior and comments that occurred before the charged molestations and sexual misconduct and indicate an escalation in Ploof's aberrant sexual behavior against these particular victims. Ploof does not argue specifically how he was unfairly prejudiced by their admission. We conclude, therefore, that the trial court did not abuse its discretion in finding the other acts evidence more probative than unfairly prejudicial.
¶ 15 Relying on Aguilar, Ploof next contends the trial court committed reversible error in failing to make specific findings on each of the requirements of Rule 404(c)(1)(A) through (C). See Ariz. R. Evid. 404(c)(1)(D). However, contrary to Ploof's argument, the absence of the specific findings required by Rule 404(c)(1)(D) does not mandate reversal. See Aguilar, 209 Ariz. 40, ¶ 37, 97 P.3d at 875. Normally, we review for harmless error a trial court's failure to make specific findings before admitting other acts evidence under Rule 404(c). See Aguilar, 209 Ariz. 40, ¶ 37, 97 P.3d at 875 ("The trial court's failure to make a sufficient finding as to the first factor of Rule 404(c) might be harmless error if the record contained substantial evidence that the requirements of admissibility were met."); see also Marshall, 197 Ariz. 496, ¶ 7, 4 P.3d at 1042.
In both Aguilar and Marshall, the appellate courts conducted a harmless error review, but neither case states whether the defendants expressly objected to the lack of a finding at trial.
¶ 16 The state contends Ploof objected below only on burden of proof and prejudice grounds, but not to the trial court's failure to make specific findings. We agree with the state. Because Ploof failed to object to the trial court's lack of findings, we review that issue only for fundamental error. See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental error is " 'error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.' " Id., quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984); see also State v. Williams, 209 Ariz. 228, ¶ 16, 99 P.3d 43, 47 (App.2004) (reviewing for fundamental error trial court's ruling on remoteness of other act evidence because defendant "neither raised an objection nor otherwise contested the court's determination below").
¶ 17 "To obtain relief under the fundamental error standard of review, [a defendant] must first prove error." Henderson, 210 Ariz. 561, ¶ 23, 115 P.3d at 608. A defendant must also "establish both that fundamental error exists and that the error in [the] case caused him prejudice." Id. ¶ 20. Contrary to Ploof's argument, the trial court did make specific findings about two of the other acts involving J., and it incorporated by reference the second victim's testimony about the two remaining other acts. We disagree with Ploof that the court's findings failed to meet the specific finding requirement of Rule 404(c)(1)(A). But Ploof correctly notes that the trial court merely repeated the language of the two remaining requirements of Rule 404(c)(1) (character trait showing aberrant sexual propensity and evidentiary value not outweighed by danger of unfair prejudice), which did not meet the requirement of specificity under Rule 404(c)(1)(D). See Aguilar, 209 Ariz. 40, ¶ 36, 97 P.3d at 875 ("Rule 404(c)(1)(D) requires something more than just repeating the language ...; it mandates some specific indication of why the trial court found those elements satisfied.").
¶ 18 But Ploof has not shown that the error was either fundamental or prejudicial. Based on our review of the record, we believe the trial court's findings enable us "to effectively examine the basis for the trial judge's decision to admit other act evidence under Rule 404(c)." Aguilar, 209 Ariz. 40, ¶ 31, 97 P.3d at 874. In Aguilar, the trial court "limited its review to the transcript of the grand jury proceedings, the pleadings, and the arguments of counsel at oral argument. None of these materials contained testimony from the victims." Id. ¶ 33. Unlike in Aguilar, in this case, the trial court did not consider other acts evidence from a cold record. The court decided to admit the evidence only after having heard testimony from the victims themselves. The judge was able to view their behavior, emotions, and demeanor. The record supports the trial court's finding that clear and convincing evidence established Ploof had committed the other acts on the victims.
¶ 19 The record also supports the court's finding that Ploof's commission of the other acts provided a basis to infer he had a character trait resulting in an aberrant propensity to commit the charged offenses. The victims in this case were all children, unlike in Aguilar, which involved adult victims. Sexual acts against children have traditionally been characterized as abnormal or aberrant behavior, and " 'there is sufficient basis to accept proof of similar acts near in time to the offense charged as evidence of the accused's propensity to commit such perverted acts." ' Id.¶ 11, quoting State v. McFarlin, 110 Ariz. 225, 228, 517 P.2d 87, 90 (1973).
¶ 20 Finally, as we have noted, the other acts evidence indicates an escalation in Ploof's aberrant sexual conduct against these victims. The record therefore supports the trial court's finding that the probative value of the other acts evidence was not substantially outweighed by the danger of unfair prejudice. Under the circumstances of this case, even though the trial court failed to make the specific findings required by Rule 404(c)(1)(D), the error did not constitute fundamental error. Admission of Additional Other Acts Evidence
¶ 21 Ploof next claims the state presented evidence of six other acts, but the trial court instructed the jury on only four other acts. He argues that the admission of two allegedly additional other acts exceeded the trial court's order allowing other acts evidence and, therefore, requires reversal. Ploof claims the trial court had not permitted the state to introduce evidence of a "piggy-back ride" incident in which Ploof attempted to "brush over [the victim's] vaginal area" and a "wrestlingmatch" incident in which Ploof pinned the same victim to the ground and "eyed [her] 'up and down.' " Because Ploof failed to object at trial to the admission of these other acts or to the scope of the court's limiting instruction, we review his argument only for fundamental error. See Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607.
¶ 22 Although Ploof claims the trial court did not permit the "wrestling match" evidence, we note the court specifically granted the state's motion to allow this evidence. The transcript of the evidentiary hearing shows the trial court stated: "With regard to the allegations that Mr. Ploof held [the victim] down and looked her up and down when he was on top of her, that evidence will be permitted." The only incident in which Ploof held down a victim and "looked her up and down" is the "wrestling match" incident the trial court mentioned. We therefore reject Ploof's claim regarding this incident.
¶ 23 When J. testified at trial about an incident involving a "piggy-back ride," Ploof failed to object. Although the incident had been mentioned in the state's motion to allow other acts evidence, the state presented no evidence of this incident at the evidentiary hearing. This incident was also not mentioned in the court's ruling allowing other acts evidence.
¶ 24 The "piggy-back ride" about which J. testified occurred one summer night when she was at Ploof's house. Ploof, his three children, and J. were all outside looking at the stars. Ploof offered J. a "piggy-back ride," and as he was holding her legs, "he put his arms up higher than usual and he was trying to brush over [her] vaginal area." J.'s testimony about the incident occurred during the second day of a five-day trial, was brief in duration, was unsolicited by the prosecutor, and there was no further mention of it. This evidence covered just one of several other act incidents about which the jury was informed. When a witness unexpectedly volunteers an inadmissible statement, "the remedy rests largely within the discretion of the trial court." State v. Marshall, 197 Ariz. 496, ¶ 10, 4 P.3d 1039, 1043 (App.2000). But, by failing to object, Ploof forfeited any potential remedy he failed to pursue. We do not find that this brief, unanticipated testimony resulted in fundamental and prejudicial error.
Sufficiency of Limiting Instruction
¶ 25 Ploof next claims the trial court erred in failing to instruct the jury on the meaning of "clear and convincing" and in failing to give the limiting instruction required by Rule 404(c)(2). The state contends Ploof waived the argument by not requesting such an instruction or objecting to the instructions that were given. We agree he has forfeited all but fundamental error review. See Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607; see also State v. Moody, 208 Ariz. 424, ¶ 189, 94 P.3d 1119, 1161 (2004) (failure to object to jury instruction waives all but fundamental error).
¶ 26 The trial court instructed the jury that it could consider the evidence of other acts for limited purposes and only if it found the state had proved the incidents by clear and convincing evidence. See State v. Terrazas, 189 Ariz. 580, 582, 944 P.2d 1194, 1196 (1997). The parties dispute whether the jury was even required to make an independent finding on the other acts evidence before considering it. Ploof questions "[w]hether this instruction on the burden of proof was properly before the jury at all or strictly a threshold burden for the court alone." The state contends that the trial court correctly instructed the jury as the "trier of fact" to consider the other acts only after finding those acts had been proved by clear and convincing evidence.
The instruction reads as follows:
¶ 27 As a preliminary matter, a trial court must make its own findings before such evidence may even be presented to the jury. In performing this gatekeeper function, the trial court must be satisfied that substantial evidence that is clear and convincing has been presented that the other act was committed and that the defendant committed it before allowing a jury to consider it. Terrazas, 189 Ariz. at 584, 944 P.2d at 1198; State v. Hughes, 102 Ariz. 118, 123, 426 P.2d 386, 391 (1967). Contrary to Ploof's claim, the trial court made the necessary finding in this case.
In Terrazas, the court granted review expressly to "consider the level of proof trial judges should apply in determining whether to admit evidence of [other] acts in a criminal case." State v. Terrazas, 189 Ariz. 580, 581, 944 P.2d 1194, 1195 (1997).
¶ 28 We next turn to the issue of whether a trial court must also instruct the jury that it may consider other act evidence only if it finds clear and convincing proof that the defendant committed the other act. Following the hearing on the admissibility of the other acts evidence, the trial court concluded "that the evidence as to all of th[e] acts [being admitted] is sufficient from which the jury could find by clear and convincing evidence that the acts did occur." Relying on Rule 404(c)(1)(A), the state contends the trial court's ruling was proper. The rule provides in pertinent part that, in criminal cases involving sexual offenses, relevant other act evidence may be admitted if the court "first finds ... [t]he evidence is sufficient to permit the trier of fact to find that the defendant committed the other act." Ariz. R. Evid. 404(c)(1)(A). The state interprets Rule 404(c)(1)(A) to mean a trial court conditionally admits other act evidence subject to the jury's separate finding as the trier of fact that the other act has been proved by clear and convincing evidence. We agree with the state's interpretation.
¶ 29 "Evidence whose relevancy depends on the fulfillment of a condition of fact is admissible when a jury could reasonably believe from the evidence that the condition was fulfilled." State v. Williams, 183 Ariz. 368, 378, 904 P.2d 437, 447 (1995). And "evidence of prior acts is relevant to the charged crime only if the acts actually occurred and only if [the] defendant committed them." Id.; see also State v. Schurz, 176 Ariz. 46, 51-52, 859 P.2d 156, 161-62 (1993).
¶ 30 Under the plain wording of Rule 404(c)(1)(A), a jury is not required to merely accept the trial court's finding about the evidence but is "permitted" to make its own finding on whether the defendant committed the other act. And, in order to make a proper finding on other act evidence, a jury must be instructed on the appropriate standard of proof. See State v. Johnson, 173 Ariz. 274, 276, 842 P.2d 1287, 1289 (1992) (trial judges are required to instruct "juries on basic legal principles, including burden of proof and reasonable doubt, following the evidence and before the commencement of deliberations"). Without such guidance, a jury may apply the only standard typically given in a jury trial--beyond a reasonable doubt. We are aware of no Arizona authority requiring a jury to find an other act proved under that elevated standard. See Terrazas, 189 Ariz. at 584, 944 P.2d at 1198 ("Applying the standard of 'clear and convincing evidence' establishes a 'clear, recognizable standard ... and is consistent with the due process owed under the federal and state constitutions.' "), quoting Smith v. State, 267 Ga. 363, 478 S.E.2d 379, 381 (1996) (Fletcher, J., concurring).
Court rules are interpreted under principles of statutory construction. "[W]hen the rule's language is unambiguous, 'we need look no further than that language to determine the drafters' intent.' Such unambiguous language will be given its usual, ordinary meaning unless doing so creates an absurd result." State v. Aguilar, 209 Ariz. 40, ¶ 23, 97 P.3d 865, 872 (2004), quoting State ex rel. Romley v. Superior Court, 168 Ariz. 167, 169, 812 P.2d 985, 987 (1991).
¶ 31 We next turn to Ploof's argument that the trial court erred by failing to give an instruction on the definition of "clear and convincing." "Generally, a court need not define every phrase or word used in the instructions given in a criminal prosecution. When the words are used in their ordinary sense and are commonly understood by those familiar with the English language, the court need not define those terms." State v. Valles, 162 Ariz. 1, 6, 780 P.2d 1049, 1054 (1989) (failure to define "deadly weapon" not fundamental error); see also State v. Barnett, 142 Ariz. 592, 594, 691 P.2d 683, 685 (1984) (failure to define "intentionally" not fundamental error); State v. Zaragoza, 135 Ariz. 63, 66, 659 P.2d 22, 25 (1983) (failure to define "attempts" not fundamental error).
¶ 32 In a related argument, Ploof contends the trial court's limiting instruction did not correctly instruct the jury on the proper use of the other acts evidence under Rule 404(c). Before allowing the jury to retire to deliberate, the trial court asked the parties if they had any "additions or corrections to the final instructions." As we noted above, Ploof did not offer any additional jury instructions and did not object to the ones given. He has therefore waived all but fundamental error. See Moody, 208 Ariz. 424, ¶ 189, 94 P.3d at 1161.
The comment to the 1997 amendment of Rule 404(c) amplifies the rule requirement as follows:
¶ 33 After describing the other acts evidence presented, the trial court instructed the jury: "You must not consider these acts to determine the defendant's character or character trait, or determine that the defendant acted in conformity with the defendant's character or character trait and therefore committed the charged offense." The court's instruction misstates the law. "When evidence of other crimes or wrongful acts is admitted to prove sexually aberrant propensity, ... it is admitted precisely to prove character and to show action in conformity therewith." State v. Salazar, 181 Ariz. 87, 90, 887 P.2d 617, 620 (App.1994). Although Ploof is correct that the limiting instruction was error, contrary to Ploof's argument, "the impropriety of the instruction worked entirely in [his] favor and is therefore not grounds for reversal." State v. Arner, 195 Ariz. 394, ¶ 13, 988 P.2d 1120, 1122 (App.1999) (instructing jury not to consider other acts as evidence of defendant's character or that evidence showed defendant had acted in conformity with that character was illogical). Under the circumstances, we conclude the trial court's failing to define "clear and convincing" and giving an improper limiting instruction do not constitute fundamental error.
Motion to Sever
¶ 34 Next, Ploof argues the trial court erred when it denied his motion to sever the charges relating to each victim from the other charges. The state, relying on Ploof's limited objection to the joinder of the charges and his failure to renew his objection at trial, argues Ploof has waived this claim. Ploof concedes that, "[i]f evidence of crimes is admissible in the trial of other crimes under the 404(c) analysis, ... then the offenses may be properly joined." But he contends the offenses had merely been joined under Rule 13.3(a)(1), Ariz. R.Crim. P., 16A A.R.S., as being "of the same or similar character." A defendant has the "right to sever offenses joined only by virtue of Rule 13.3(a)(1), unless evidence of the other offense or offenses would be admissible under applicable rules of evidence if the offenses were tried separately." Ariz. R.Crim. P. 13.4(b), 16A A.R.S.
¶ 35 We have already found the other acts evidence was admissible on each of the offenses charged. The trial court did not limit the admissibility of the other acts evidence to particular charges or victims; therefore, the evidence was cross-admissible. We further find that, had the counts been severed, evidence about the other counts would have been admissible during the trial on any individual count to prove Ploof's propensity to commit aberrant sexual behavior. Therefore, Ploof was not permitted to sever the counts by right.
Amendment of Indictment
¶ 36 Ploof next contends the trial court violated his Sixth and Fourteenth Amendment rights to notice of the charges against him and his right to a grand jury's determination of the charges against him under the Arizona Constitution, article II, § 30 when it granted the state's motion to amend counts four and five of the indictment to correct the dates of the offenses alleged. He also argues the ruling violated Rule 13.5(b), Ariz. R.Crim. P., 16A A.R.S., because the amendment did more than just "correct mistakes of fact or remedy formal or technical defects." The state claims Ploof has waived the constitutional arguments by failing to raise those grounds in the trial court. Assuming without deciding that Ploof preserved the argument on both federal constitutional and state law grounds, his argument fails nonetheless.
¶ 37 "A technical or formal defect in an indictment may be remedied by amendment. A defect is technical or formal if it does not change the nature of the offense charged or prejudice the defendant in any way." State v. Jones, 188 Ariz. 534, 544, 937 P.2d 1182, 1192 (App.1996); see Ariz. R.Crim. P. 13.5(b). "An error as to the date of the offense alleged in the indictment does not change the nature of the offense, and therefore may be remedied by amendment." Jones, 188 Ariz. at 544, 937 P.2d at 1192. "The defendant bears the burden of showing that he or she has suffered actual prejudice from an amendment." State v. Johnson, 198 Ariz. 245, ¶ 8, 8 P.3d 1159, 1162 (App.2000).
¶ 38 First, alleging incorrect dates of the offenses in the indictment resulted in technical or formal defects; therefore, the court did not err in amending the indictment absent a showing of prejudice. Second, although Ploof contends he was prejudiced by the amendment, he points to no evidence in the record to support his contention. His defense to the molestation charges in counts four and five was not an alibi, as it was to counts two and three, but rather, that he did not commit the offenses at all. The original indictment was filed September 4, 2003. The trial court granted the state's motion to amend the indictment in October 2004 to change the dates of the offenses. The trial court then rescheduled the October 19 trial date to November 12. Ploof's trial ultimately began on February 24, 2005. He had ample opportunity to prepare his defense to the amended charges. Under these circumstances, we do not find that an amendment to correct the dates on which the offenses occurred prejudiced Ploof's defense that he did not commit the offenses.
Tainted Jury Pool
¶ 39 Ploof argues the trial court violated his right to a "fair trial by a panel of impartial jurors." He contends the court erred in denying his motion to strike the entire venire panel for statements made by several jury pool members that he asserts tainted the entire panel. We review a trial court's ruling on a challenge to the jury for an abuse of discretion. State v. Montano, 136 Ariz. 605, 607, 667 P.2d 1320, 1322 (1983). "An accused has a constitutional right to be tried by a fair and impartial jury, but he is not entitled to be tried by any one particular jury." State v. Greenawalt, 128 Ariz. 150, 167, 624 P.2d 828, 845 (1981) (citations omitted). "[U]nless the record affirmatively shows that ... a fair and impartial jury was not secured, the conviction must be affirmed." State v. Arnett, 119 Ariz. 38, 50, 579 P.2d 542, 554 (1978). The decision to excuse jurors is within the sound discretion of the trial court and will not be disturbed absent "a clear and prejudicial abuse of that discretion." Id. When claiming a jury panel is tainted, a defendant must show "objective indications of [the] jurors' prejudice." State v. Tison, 129 Ariz. 526, 535, 633 P.2d 335, 344 (1981). A prospective juror's statements may be found to have tainted the jury pool if they are " 'expert-like' " or go to the fundamental issues of guilt and credibility. State v. Doerr, 193 Ariz. 56, ¶ 19, 969 P.2d 1168, 1174 (1998), quoting Mach v. Stewart, 137 F.3d 630, 633 (9th Cir.1997).
We note that, in arguing this point, Ploof misstates a juror's responses to the court's questions. Although Ploof claims a juror "stated that she was a CASA children's advocate with experience in dealing with molest cases," the juror specifically told the court her cases did not involve children who might have been sexually abused or molested.
¶ 40 Ploof relies heavily on Mach, arguing that the statements by the prospective, ultimately dismissed jurors tainted the entire panel. In Mach, a sexual abuse case, the potential juror stated she worked for Arizona Child Protective Services and sexual abuse had been confirmed in every one of her cases in which abuse had been reported. 137 F.3d at 632. The potential juror later stated that, in her three years as a social worker, she had never even been aware of a case in which a child had lied about being sexually abused. Id. The Ninth Circuit found such statements about the credibility of child victims of sexual abuse had been "expert-like" and required reversal of the defendant's convictions. Id. at 633.
¶ 41 Ploof attempts to classify some of his prospective jurors as "experts" and "professionals," presumably to bring his case under the canopy of Mach. In this case, however, the alleged "experts" and "professionals" were victims of abuse, their friends, or family members. Although several of them stated they could not be fair because of their experiences with child molesters either as victims, relatives of victims, or witnesses to the effects of abuse, none of their statements was about the credibility of witnesses or Ploof's guilt.
¶ 42 We agree with the trial court that the prospective jurors' statements did not require dismissal of the entire panel. Nothing in the record suggests the panel was influenced in any way by the prospective jurors' comments, and Ploof has directed us to nothing beyond mere speculation to show otherwise. Nor has he shown that he was prejudiced by the comments. We therefore do not find the trial court abused its discretion in denying Ploof's challenge to the jury panel.
Portillo Instruction
¶ 43 Ploof next argues, for the first time on appeal, that the reasonable doubt instruction our supreme court adopted in State v. Portillo, 182 Ariz. 592, 596, 898 P.2d 970, 974 (1995), is unconstitutional because it reduces the state's burden of proof. The court has repeatedly rejected similar arguments challenging this instruction. State v. Dann, 205 Ariz. 557, ¶ 74, 74 P.3d 231, 249-50 (2003); State v. Lamar, 205 Ariz. 431, ¶ 49, 72 P.3d 831, 841 (2003); State v. Van Adams, 194 Ariz. 408, pp 29-30, 984 P.2d 16, 25-26 (1999). Because we have no authority to overrule the supreme court, City of Phoenix v. Leroy's Liquors, Inc., 177 Ariz. 375, 378, 868 P.2d 958, 961 (App.1993), we must reject this claim.
State's Expert Witness
¶ 44 Ploof argues he was denied a fair trial by the admission of "improper expert opinion testimony" by the state's expert. The state argues Ploof's claim is waived for failure to object at trial and to argue his constitutional grounds on appeal. Normally, we review a trial court's admission of expert testimony for an abuse of discretion. State v. Graham, 135 Ariz. 209, 212, 660 P.2d 460, 463 (1983). But Ploof failed to object to any portion of the state's expert's testimony. Therefore, we review the admission of expert testimony for fundamental error only. See Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607.
¶ 45 "[E]xpert testimony may be admitted on the general behavioral characteristics potentially affecting 'credibility or accuracy' of childhood sexual abuse victims." State v. Lujan, 192 Ariz. 448, ¶ 9, 967 P.2d 123, 126 (1998), quoting State v. Lindsey, 149 Ariz. 472, 475, 720 P.2d 73, 76 (1986). The state may present expert testimony on the behavioral characteristics of recanting child victims of sexual abuse as long as the expert does not comment on the victim's credibility. State v. Moran, 151 Ariz. 378, 382, 728 P.2d 248, 252 (1986). Wendy Dutton, the state's expert, explained to the jury the general behavioral characteristics of child sexual abuse victims, but did not comment on such victims' credibility or accuracy. Therefore, we do not find the trial court committed error, fundamental or otherwise, in admitting Dutton's testimony.
¶ 46 Ploof nonetheless claims "[t]he testimony of Wendy Dutton apologizing for and explaining late disclosure and inconsistencies in the victims' stories was improper, for it effectively was testimony that the witnesses were telling the truth ... and that Ploof was guilty of the crimes." We have found nothing in the record to support this claim. Dutton testified about how sexual abuse victims report their abuse and about the time delay that often exists between the abuse and the report. She did not apologize for the victims' late disclosure of the abuse.
We note that, although Ploof makes this claim, he fails entirely to cite the record. See Ariz. R.Crim. P. 31.13(c)(1)(vi), 17 A.R.S. (opening brief shall include "[a]n argument which shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on ") (emphasis added). Appellate counsel is admonished that failure to follow the Rules of Criminal Procedure can result in his brief being stricken.
¶ 47 In a heading in his opening brief, Ploof claims the admission of the expert testimony violated his right to a fair trial and due process of law under the United States and Arizona Constitutions. However, he fails to present any legal argument or cite any authority to support the heading. Because Ploof "does not consider these issues as worthy of argument, we consider them as abandoned." DeElena v. S. Pac. Co., 121 Ariz. 563, 572, 592 P.2d 759, 768 (1979); see also State v. Barraza, 209 Ariz. 441, ¶ 18, 104 P.3d 172, 177 (App.2005).
Cruel and Unusual Punishment
¶ 48 Ploof claims the sentences the trial court imposed violate his Eighth Amendment protection against cruel and unusual punishment. Because Ploof fails to elaborate beyond the title of this argument, but attempts to refer us to his sentencing memorandum to the trial court, we do not address the substance of his argument. See Ariz. R.Crim. P. 31.13(c)(1)(vi), 17 A.R.S.; see also Barraza, 209 Ariz. 441, ¶ 20, 104 P.3d at 178 (finding defendant's argument on appeal abandoned when appeal merely incorporated arguments at trial by reference).
¶ 49 For the foregoing reasons, Ploof's convictions and sentences are affirmed.
JOHN PELANDER, C.J., and JOSEPH W. HOWARD, P.J., concur.
You may only consider these acts if you find the State has proved by clear and convincing evidence that the defendant committed these acts. You may only consider these acts to establish the defendant's aberrant sexual propensity to commit the offense charged. "Aberrant" means deviating from what is normal or typical. You must not consider these acts to determine the defendant's character or character trait, or determine that the defendant acted in conformity with the defendant's character or character trait and therefore committed the charged offense.
At a minimum, the court should instruct the jury that the admission of other acts does not lessen the prosecution's burden to prove the defendant's guilt beyond a reasonable doubt, and that the jury may not convict the defendant simply because it finds that he committed the other act or had a character trait that predisposed him to commit the crime charged.