State v. Bell ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
JERRY LEE BELL, Appellant.
No. 1 CA-CR 20-0272
FILED 5-13-2021
Appeal from the Superior Court in Yavapai County
No. P1300CR201701298
The Honorable Tina R. Ainley, Judge
AFFIRMED
COUNSEL
Stephen L. Duncan, Scottsdale
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee
STATE v. BELL
Decision of the Court
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Brian Y. Furuya joined.
T H U M M A, Judge:
¶1 Defendant Jerry Lee Bell appeals the superior court’s denial
of his motion to reconsider its ruling on proffered other act evidence.
Because he has shown no error, Bell’s convictions and resulting prison
sentences and probation grant are affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 The victim, S.E., was Bell’s stepdaughter. One night in 2001 or
2002, around the time S.E. was 12 years old, Bell laid down next to S.E. on
a futon and began rubbing her vaginal area while instructing S.E. to rub his
penis. A few days later, Bell was in the shower and asked S.E. to come into
the bathroom and rub his penis.
¶3 In September 2017, Bell was charged with two counts of
sexual conduct with a minor, each a Class 2 felony (Counts 1 and 3), two
counts of luring a minor for sexual exploitation, each a Class 3 felony
(Counts 2 and 4), one count of sexual conduct with a minor, a Class 3 felony
(Count 5), and one count of sexual abuse, a Class 3 felony (Count 6).
¶4 Before trial, the State moved to admit evidence pursuant to
Arizona Rules of Evidence 404(b) and (c) (2021).1 After an evidentiary
hearing, the superior court granted the State’s motion in part, barring the
admission of some evidence but allowing evidence that when S.E. was
between 12 and 15 years old, Bell entered her room, watched her change
clothes, and touched her breasts. The court found there was clear and
convincing evidence that Bell committed these acts, which provided a basis
for finding that Bell had a character trait giving rise to an aberrant sexual
propensity, and that the evidence was not substantially outweighed by a
danger of unfair prejudice, confusion or other factors. See Ariz. R. Evid.
404(c)(1). The court also found that evidence of the other acts was “further
1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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STATE v. BELL
Decision of the Court
evidence of intent, preparation and absence of mistake or accident.” Ariz.
R. Evid. 404(b)(2).
¶5 Bell moved to reconsider, arguing the court failed to find that
the evidence was not too remote and not dissimilar from the charged acts,
and therefore could not be admitted without expert testimony. See Ariz. R.
Evid. 404(c)(1)(C)(i)–(ii); State v. Treadaway, 116 Ariz. 163, 166–67 (1977)
(holding, under Arizona common law before the adoption of the Arizona
Rules of Evidence, that other act evidence, which is remote and dissimilar
from the charged act, is not admissible unless there is expert testimony that
the other act “tends to show a continuing emotional propensity to commit
the act charged”). Bell’s motion to reconsider did not challenge the
admission of the evidence under Rule 404(b). The court denied Bell’s
motion, finding “the acts were preparation for the ultimate charges in this
case and that they are not so remote or dissimilar as to preclude admission.”
The court reiterated that the evidence was not unfairly prejudicial. This
evidence was then admitted at trial.
¶6 After a six-day jury trial, Bell was found guilty of Counts 1, 2,
3, 5, and 6. The court sentenced him to the mitigated sentences of 13 years
in prison for Count 1 with 165 days’ presentence incarceration credit, 13
years for Count 3, and 5 years for Count 5, each to be served consecutively,
followed by lifetime supervised probation for Counts 2 and 6. This court
has jurisdiction over Bell’s timely appeal pursuant to Article 6, Section 9, of
the Arizona Constitution and Arizona Revised Statutes (A.R.S.) §§ 12-
120.21(A)(1), 13-4031 and 13-4033(A).
DISCUSSION
¶7 As applicable here, the decision to admit evidence is reviewed
for abuse of discretion, State v. Herrera, 232 Ariz. 536, 544 ¶ 19 (App. 2013)
(quoting State v. Villalobos, 225 Ariz. 74, 80 ¶ 18 (2010)), viewing the
evidence “in the light most favorable to the proponent, maximizing its
probative value and minimizing its prejudicial effect,” State v. Kiper, 181
Ariz. 62, 66 (App. 1994). On appeal, Bell argues the court abused its
discretion in denying his motion to reconsider.
¶8 In general, “evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in
conformity therewith.” Ariz. R. Evid. 404(b)(1). However, such other act
evidence may “be admissible for other purposes,” such as proof of intent,
preparation, and absence of mistake or accident, Ariz. R. Evid. 404(b)(2), or
“if relevant to show that the defendant had a character trait giving rise to
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STATE v. BELL
Decision of the Court
an aberrant sexual propensity to commit the offense charged,” Ariz. R.
Evid. 404(c); see State v. Garcia, 200 Ariz. 471, 475 ¶ 26 (App. 2001).
I. Admission Under Rule 404(c).
¶9 The superior court may admit evidence under Rule 404(c)
only if it finds: (1) the evidence is sufficient to permit the trier of fact to find
that the defendant committed the other act; (2) 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; and (3) the evidence is not barred by Rule 403, including specified
factors. Ariz. R. Evid. 404(c)(1).
¶10 Bell does not challenge the court’s findings that there was
clear and convincing evidence of the other acts, and that the other acts
provide a basis for finding that Bell had a character trait giving rise to an
aberrant sexual propensity. See Ariz. R. Evid. 404(c)(1)(A)–(B).
¶11 Bell argues on appeal, as he did in his motion to reconsider,
that the other acts were too dissimilar to the charged conduct for the futon
incident, and therefore an expert was required to testify. See Ariz. R. Evid.
404(c)(1)(C). But Bell makes no argument that the other acts were too
dissimilar to the charged conduct for the bathroom incident. Bell presents
no authority, and the court has found none, that other act evidence
admitted under Rule 404(c) must be similar to all of the charged incidents.
Further, the evidence admitted was that Bell “enter[ed] the victim’s
bedroom to watch her change clothes and . . . touched [her] breasts.” Bell
was charged with fondling S.E.’s breasts. Bell has therefore shown no error
in the court’s admission of the evidence under Rule 404(c).
¶12 Bell did not request a limiting instruction on the proper use of
evidence admitted under Rule 404(c) and the superior court did not give
such an instruction. While Rule 404(c)(2) states that the court “shall instruct
the jury as to the proper use” of evidence admitted under this subsection,
Bell does not raise the lack of this jury instruction on appeal. The issue is
therefore waived. See State v. Cook, 170 Ariz. 40, 50 (1991). Moreover, Bell
has not claimed (let alone shown) that the failure to give such an instruction
in this case was fundamental error requiring reversal. See State v. Dann, 220
Ariz. 351, 363–64 ¶ 51 (2009); see generally State v. Escalante, 245 Ariz. 135(2018).
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STATE v. BELL
Decision of the Court
II. Bell Was Not Unfairly Prejudiced by the Admission of the Other
Act Evidence.
¶13 Bell argues he was unfairly prejudiced by the admission of the
other act evidence “because it provided undue additional credibility to the
victim’s testimony as well as that of the other witnesses for the State.”
Unfair prejudice is the undue tendency to suggest a decision on an
improper basis, such as emotion, sympathy or horror, which Bell does not
argue here. State v. Butler, 230 Ariz. 465, 473 ¶ 33 (App. 2012) (citing
authority). As applied, evidence that bolsters a witness’ credibility is not
unfairly prejudicial, but rather is “adversely probative in the sense that all
good relevant evidence is.” State v. Shurz, 176 Ariz. 46, 52 (1993). The jury
was also instructed to assess the credibility of the witnesses. On this record,
Bell has shown no error.
III. Admission Under Rule 404(b).
¶14 Bell did not challenge the court’s admission of evidence under
Rule 404(b) in his motion to reconsider or on appeal. Any such argument is
therefore waived, meaning this court’s review is for fundamental error. See
Escalante, 245 Ariz. 135, 128 ¶ 1. Bell did not request an instruction on the
proper use of evidence admitted under Rule 404(b) and the superior court
did not give such an instruction. But the superior court is not required to
sua sponte give a limiting instruction for evidence admitted under Rule
404(b). State v. Miles, 211 Ariz. 475, 483 ¶ 31 (App. 2005). Further, failure to
sua sponte give an instruction limiting the effect of certain evidence is not
fundamental error. See State v. Taylor, 127 Ariz. 527, 530 (1980).
CONCLUSION
¶15 Bell’s convictions and sentences are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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