State v. Anderson

¶1dissenting.

¶2I respectfully dissent.

¶3The majority reverses defendant Jeffrey Lynn Anderson’s convictions for three counts of sexual assault because of questions asked of character witnesses by the prosecutor.

¶4FACTS

¶5The evidence was overwhelming. Viewing the evidence in the light most favorable to upholding the verdict, State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989), the facts are as follows. A 23-year-old female had an appointment with Dr. Steven Palley on November 3, 1988 in connection with blood in her stool, a chronic condition. Following an examination, Dr. Palley suggested that the patient undergo a flexible sigmoidoscopy. In that regard, he gave the patient a referral slip and directed her to the fourth floor of the University Medical Center to hedule an appointment.

¶6When the patient arrived on the fourth floor, the defendant asked her if he could be of assistance. He then accompanied the patient to a room. There, he discussed conducting a hemocult test with her. The defendant then placed a phone call, purportedly to Dr. Palley, in which he inquired whether a hemocult test should be performed on the patient. In point of fact, Dr. Palley never received a phone call from the defendant and never authorized any technician to perform a rectal or vaginal examination.

¶7Following the feigned telephone conversation, the defendant had the patient go into an examination room and remove her clothing and underwear. He then inserted his finger three times into her rectum and once into her vagina. The defendant admitted inserting his finger in the patient’s rectum but did not recall inserting it in her vagina. Technicians are not authorized to conduct rectal or vaginal examinations and Dr. Palley neither authorized nor requested the “examination.”

¶8CROSS-EXAMINATION OF CHARACTER WITNESSES

¶9The majority reverses the defendant’s convictions because the prosecutor was permitted to ask three character witnesses whether they were aware that the defendant had admitted that he had stolen medicine from a previous employer. The defense chose to introduce evidence of the defendant’s good character for the traits of honesty and truthfulness. The state cross-examined each witness as to whether the “fact” that the defendant had admitted stealing the drug Versed from a past employer would change their respective opinions. The defendant asserts that he only admitted to possessing the drug and not to the theft of it. However, because the defendant did not object at trial to the form of the prosecutor’s questions, i.e., that the defendant had merely admitted to possession rather than theft, we have no record as to how the state would proceed to prove that the defendant admitted to theft.1 The trial court ruled that the defendant’s theft of drugs from an employer adversely re-*381fleeted on his honesty and that character witnesses could be questioned on that point.

¶10Defense counsel made no objection to the form of the questions asked of the witnesses. Absent fundamental error, a failure to object at trial waives that issue on appeal. State v. Holder, 155 Ariz. 83, 85, 745 P.2d 141, 143 (1987). Because no objection was made, we have no record as to the basis for possible proof that the state had in its possession regarding the circumstances surrounding how the defendant acquired the drug. Stealing from one’s employer may be conduct probative of truthfulness. State v. Lee, 151 Ariz. 428, 430, 728 P.2d 298, 300 (App.1986). This determination is left to the sound discretion of the trial court. Id.

¶11Even assuming questioning of the character witnesses regarding theft of the drug constituted error, because of the strength of the state’s case, any error was harmless beyond a reasonable doubt. State v. Lundstrom, 161 Ariz. 141, 150, 776 P.2d 1067, 1076 (1989).

¶12For the reasons set forth above, I respectfully dissent.