Opinion
1 CA-CR 11-0889
04-23-2013
STATE OF ARIZONA, Appellee, v. TERRENCE LEE FRIES, Appellant.
Thomas C. Horne, Attorney General by Joseph T. Maziarz, Acting Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Michael J. Dew, Attorney at Law by Michael J. Dew Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-140086-001
The Honorable Robert E. Miles, Judge
AFFIRMED
Thomas C. Horne, Attorney General
by Joseph T. Maziarz, Acting Chief Counsel,
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix Michael J. Dew, Attorney at Law
by Michael J. Dew
Attorneys for Appellant
Phoenix PORTLEY, Judge ¶1 Defendant Terrence Lee Fries appeals his convictions and sentences for sexual conduct with a minor, class six felonies. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Defendant met a fifteen-year-old boy through the social networking website, Grindr, and was subsequently charged with four counts of sexual conduct with a minor. The State filed a motion in limine seeking to preclude evidence of the victim's prior sexual acts under Arizona's "rape shield" law. After Defendant responded with an offer of proof alleging that the victim told him about other sexual encounters, the trial court denied the motion. The State filed a special action petition, and this court accepted jurisdiction and granted relief. Specifically, the trial court's ruling was vacated and the court was instructed to determine "whether there is such substantial probative value that Defendant's constitutional rights would be impermissibly offended by the failure to permit evidence of the Victim's having oral sex in order to prove Defendant's belief that the Victim was eighteen or older." State ex rel. Montgomery v. Duncan (Fries), 228 Ariz. 514, 516-17, ¶ 7, 269 P.3d 690, 692-93 (App. 2011) (internal quotation marks omitted). ¶3 After the case went back to the trial court, the parties submitted additional briefing, argued their positions and the court granted the State's motion. The court found that nothing in the record showed "how or why the mention of prior sexual experience would lead the defendant to conclude that the victim was over age 18." The case proceeded to trial and the jury convicted Defendant on all counts.
DISCUSSION
¶4 Defendant contends that the court erred by precluding evidence of the victim's sexual history. We review the ruling for an abuse of discretion. State v. Kiper, 181 Ariz. 62, 65, 887 P.2d 592, 595 (App. 1994). ¶5 Generally, a crime victim's sexual history is not admissible. Ariz. Rev. Stat. § 13-1421(A) (West 2013) ("Evidence relating to a victim's reputation for chastity and opinion evidence relating to a victim's chastity are not admissible in any prosecution."). The statute, however, provides that the sexual history may be relevant in limited circumstances. Specifically, it provides, in relevant part, that:
Evidence of specific instances of the victim's prior sexual conduct may be admitted only if a judge finds the evidence is relevant and is material to a fact in issue in the case and that the inflammatory or prejudicial nature of the evidence does not outweigh the probative value of the evidence, and if the evidence is one of the following:
1. Evidence of the victim's past sexual conduct with the defendant.
2. Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease or trauma.
3. Evidence that supports a claim that the victim has a motive in accusing the defendant of the crime.
4. Evidence offered for the purpose of impeachment when the prosecutor puts the victim's prior sexual conduct in issue.
5. Evidence of false allegations of sexual misconduct made by the victim against others.
Id.
16 Defendant wanted to introduce evidence of the victim's sexual history outside of the enumerated statutory categories. The court, as a result, had to determine whether precluding that evidence would violate Defendant's constitutional rights. See Fries, 228 Ariz. at 516-17, ¶ 7, 269 P.3d at 692-93. In making its determination, the court reviewed Defendant's offer of proof and determined that he had failed to articulate how or why the evidence of the victim's sexual history was relevant to prove his belief that the victim was over eighteen years old. There was, as the court noted, other admissible evidence that supported his argument that the victim was over eighteen; namely, the victim's avowal to Grindr that he was over eighteen years old. Consequently, we cannot conclude as a matter of law that the court abused its discretion by granting the motion in limine. ¶7 Defendant also argues that the ruling prevented him from presenting his defense. We disagree. Although he was unable to place the victim's history as related to him before the jury, Defendant was given full opportunity to use admissible evidence to demonstrate that he had good reason to believe that the victim was eighteen years old or older, as well as to cross-examine the victim. The jury had to evaluate the evidence, including determining the credibility of the victim and weighing his testimony. It did. Consequently, we find no error.
CONCLUSION
¶8 Based on the foregoing, we affirm Defendant's convictions and sentences.
________________________
MAURICE PORTLEY, Judge
CONCURRING: ________________________
MARGARET H. DOWNIE, Presiding Judge
________________________
PHILIP HALL, Judge