State v. Pierce

¶1OPINION

¶2Defendant Ronnie W. Pierce was convicted by a jury of one count of sexual abuse of a minor under fifteen years of age, a class three felony, and one count of sexual conduct with a minor, a class two felony. Defendant was acquitted of a second count of sexual conduct with a minor. Defendant was sentenced to consecutive terms of imprisonment of ten and twenty years respectively.

¶3On appeal, defendant presents three issues:

(1) Did the trial court err in instructing the jury that defendant’s prior sexual acts with the victim and her sister could be considered to show defendant’s “propensity for sexual molestation or sexual aberration”?

(2) Did the trial court err in failing to give the jury a general instruction as to the limited use of prior bad acts?

(3) Did the trial court err by refusing to require the prosecutor to articulate his reasons for exercising all six of his peremptory challenges to remove male panel members from the jury?

¶4We affirm the superior court’s order.

¶5I.

¶6On the evening of December 21, 1985 defendant entered his twelve-year-old stepdaughter’s bedroom and proceeded to fondle her breasts and have sexual intercourse. Defendant was subsequently charged in counts I and III with the fondling of and intercourse with his twelve-*529year-old stepdaughter, X.1

¶7At trial, defendant’s other stepdaughter, Y, testified that defendant also came into her bedroom on the evening of December 21 and began to touch her. After Y had twice asked him to stop, defendant left her bedroom. Additionally, both girls testified that defendant had repeatedly molested them for the preceding five years.

¶8At the close of the evidence, both sides submitted proposed jury instructions limiting the purposes for which the jury could consider evidence of prior bad acts. See Rule 404(b), Arizona Rules of Evidence. The trial court declined to give either requested instruction, explaining to the parties that the proposed instructions were covered adequately by the standard instruction on prior sexual acts, Recommended Arizona Jury Instruction 14.101.

¶9The trial court instructed the jury on its consideration of prior sexual acts as follows:

You are permitted to consider evidence of other similar sexual offenses by the defendant only to the extent they show a propensity for sexual molestation or sexual aberration. Such evidence should not be considered for any purpose other than the defendant’s state of mind.

¶10The court also gave the following limiting instruction requested by the defense:

The Defendant is not on trial for any act or conduct not alleged in the Indictment. Any evidence that was admitted regarding such other act or conduct was admitted for a limited purpose and should be considered only for that limited purpose.

¶11Both parties were invited to make a record on the proposed and refused instructions. Neither side objected to the court’s refusal to give the general prior bad acts instruction, and neither objected to its proposal to give the standard prior sexual acts instruction.

¶12ii.

¶13Defendant first argues that the court’s jury instruction regarding prior sexual acts was erroneous because crimes of sexual abuse or sexual conduct with a minor do not necessarily involve elements of sexual aberration. Defendant contends that this type of instruction should only be given when a defendant is charged with sexual molestation or other crimes requiring proof of sexual aberration.

¶14As noted above, defendant failed to object to the court’s proposed instruction. Defendant nevertheless argues that he preserved the issue for appellate review by requesting a jury instruction other than the one given by the court.

¶15Our courts have consistently held that in order to preserve an objection to jury instruction, the party must make a specific objection stating the matter to which he objects and grounds for the objection. See State v. Rivera, 152 Ariz. 507, 516, 733 P.2d 1090, 1099 (1987); State v. Toney, 113 Ariz. 404, 408, 555 P.2d 650, 654 (1976). A mere request for a different jury instruction without more does not specifically state how the trial court’s instruction was flawed.

¶16However, a failure to object does not waive defects in instructions which constitute fundamental error. State v. Edgar, 126 Ariz. 206, 209, 613 P.2d 1262, 1265 (1980). There can be no fundamental error in this case because the instruction was not erroneous.

¶17The trial court’s instruction was derived from the Arizona Supreme Court’s holding in State v. McFarlin, 110 Ariz. 225, 517 P.2d 87 (1973). In McFarlinthe defendant was charged with child molestation. The court held that other acts of child molestation committed shortly before and shortly after the offense charged were admissible. Id. at 228, 517 P.2d at 90. The court reasoned:

In those instances in which the offense charged involves the element of abnor*530mal sex acts such as sodomy, child molestation, lewd and lascivious, etc., 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. The “emotional propensity” exception is limited to those cases involving sexual aberration, but this is not to say that the other usual exceptions to the exclusionary rule cannot be used. It simply means that in addition to the usual exceptions there is in cases involving the charge of sexual aberration the additional exception of emotional propensity.

¶18Id.

¶19Defendant argues that the McFarlininstruction is appropriate only where sexual aberration is an element of the crime charged. He reasons that because sexual aberration is not an element of either sexual conduct or sexual abuse, the instruction was improper.

¶20We cannot agree. The McFarlinopinion clearly states that child molestation is abnormal sexual conduct. While it is possible for a normal healthy adolescent to be prosecuted for otherwise normal, consensual sexual activity with a minor, this is not the case here. Defendant was a forty-six-year-old man charged with sexual abuse of and sexual conduct with his twelve-year-old stepdaughter.

¶21Sexual conduct with a minor and sexual abuse of a minor can constitute “abnormal sex acts” or “sexual aberration.” Cf. State v. McCuin, 167 Ariz. 447, 449, 808 P.2d 332, 334 (App.1991) (court may properly consider abnormality of sexual acts when aggravating defendant’s sentence for sexual conduct with a minor). Common definitions of the term “aberrant” include “straying from the right or normal way,” and “deviating from the usual or natural type.” Webster’s New Collegiate Dictionary 44 (9th ed.1983). Defendant’s conduct with his stepdaughters clearly falls within the category of sexual deviance.

¶22Moreover, the fact that the prior sexual conduct involved the same victims strengthens the probative value of the evidence, and is a clearly correct application of the McFarlinrule. See State v. Garner, 116 Ariz. 443, 569 P.2d 1341 (1977). Although this rule renders otherwise impermissible evidence admissible, and though this evidence is potentially damaging to a defendant, the rule applies and the trial judge was entitled to employ it.

¶23Because the evidence clearly shows abnormal sexual conduct, we find that the jury was properly instructed to consider defendant’s acts as they related to his state of mind, and only for that purpose. Because the jury instructions were proper, no fundamental error occurred.

¶24III.

¶25Defendant also argues that the trial court erroneously failed to give the jury a general instruction as to the limited use of prior bad acts pursuant to Rule 404(b), Arizona Rules of Evidence.

¶26The court instructed the jury to consider defendant’s previous sexual activity for no other “purpose other than the defendant’s state of mind.” It emphasized in another instruction that evidence of acts for which defendant had not been indicted could be considered only for the limited purpose for which they were admitted. We find that those instructions properly confined the jury’s consideration and adequately covered the substance of the “prior bad acts” instruction which the court refused to give.

¶27In addition, as pointed out by the state, the court’s refusal to give the proposed instruction inured to defendant’s benefit. The jury was not permitted to consider defendant’s prior sexual acts to establish motive, opportunity and intent that defendant’s proposed instruction would have otherwise permitted.

¶28We find no error, fundamental or otherwise, in the instruction as given.

¶29IV.

¶30Defendant’s final argument asserts that the trial court erroneously refused to require the state to articulate reasons for exercising all of its peremptory challenges to remove male panel members from the jury. Defendant contends the trial court *531erred in refusing to extend Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) to include gender. In Batson, the Supreme Court held it to be a denial of equal protection for a prosecutor to use his peremptory challenges to exclude jurors on the basis of defendant’s race.

¶31We need not reach this issue, however, because defendant’s objection was untimely and thus waived.

¶32In this case, defendant’s counsel objected to the state’s use of its peremptory challenges after the jury had been empaneled and the stricken jurors excused. Pursuant to State v. Harris, 157 Ariz. 35, 754 P.2d 1139 (1988), defendant waived his objection. In Harris, the defendant did not raise a “Batson ” objection until the day after the jury had been empaneled and all the stricken jurors excused. Id. at 36, 754 P.2d at 1140. In holding defendant’s objection untimely, the Arizona Supreme Court reasoned that an immediate remedy for unconstitutional action was lost where no objections was made until after the challenged jurors had been excused. Id.

¶33Since defendant in the case waited until the challenged jurors were excused before objecting, he too waived this objection.

¶34Moreover, the issue does not present fundamental error and defendant’s failure to raise it cannot be excused on that ground. See State v. Holder, 155 Ariz. 83, 85, 745 P.2d 141, 143 (1987) (Batson challenge does not present fundamental error and is waived if no timely objection is made).

¶35Pursuant to A.R.S. § 13-4035 we have searched the record for fundamental error and have found none.

¶36The judgment and sentence are affirmed.