State v. Schaeffer ( 2018 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    MICHAEL BLAINE SCHAEFFER, Appellant.
    No. 1 CA-CR 16-0865
    FILED 3-1-2018
    Appeal from the Superior Court in Maricopa County
    No. CR2013-430835-001
    The Honorable Dean M. Fink, Judge
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Eric Knobloch
    Counsel for Appellee
    The Law Office of Kyle T. Green, P.L.L.C., Tempe
    By Kyle T. Green
    Counsel for Appellant
    STATE v. SCHAEFFER
    Decision of the Court
    MEMORANDUM DECISION
    Judge Maria Elena Cruz delivered the decision of the Court, in which
    Presiding Judge Michael J. Brown and Judge Patricia A. Orozco1 joined.
    C R U Z, Judge:
    ¶1            Michael Blaine Schaeffer appeals his convictions for sexual
    abuse, sexual conduct with a minor, and molestation of a child, claiming
    the superior court erred when it denied a pretrial motion to suppress and
    erred when it allowed other-act evidence that it should have precluded. For
    the following reasons, we affirm.
    FACTUAL AND PROCEDURAL HISTORY
    ¶2           Between 2003 and 2004, Schaeffer’s brother and sister-in-law
    adopted three children, including H.S., who was then four years old.
    Schaeffer was close to his brother’s family and spent a lot of time with them.
    Schaeffer would play games with H.S. and her siblings, including wrestling.
    ¶3            As H.S. grew older, Schaeffer’s wrestling involved more
    touching, including touching H.S.’s breasts and legs. When H.S. was
    roughly ten or eleven, Schaeffer put his mouth on H.S.’s breast and touched
    her genitals. H.S. told her sister of the abuse, but did not tell her everything,
    and hid the abuse from her parents because she did not think they would
    believe her.
    ¶4             In October 2012, H.S. posted on the internet that Schaeffer
    abused her. H.S.’s father discovered the post, but H.S. told him it was fake,
    as she continued to fear he would not believe her. H.S.’s parents limited
    Schaeffer’s contact, however, the abuse did not stop. Finally, in May 2013,
    after Schaeffer again touched H.S.’s genitals, H.S. broke down and told her
    father of the abuse, who then contacted the police.
    ¶5           Police interviewed Schaeffer, who admitted to wrestling with
    H.S. and touching her breasts and genitals. He was charged with sexual
    abuse, sexual conduct with a minor, and molestation of a child. All the
    1      The Honorable Patricia A. Orozco, retired Judge of the Court of
    Appeals, Division One, has been authorized to sit in this matter pursuant
    to Article 6, Section 3, of the Arizona Constitution.
    2
    STATE v. SCHAEFFER
    Decision of the Court
    charges pertained to Schaeffer’s conduct with victim, H.S., who was a
    minor under the age of fifteen at the time of the incidents.
    ¶6           Prior to trial, Schaeffer filed a motion to suppress his
    statements made during a police interview, claiming they were
    involuntary. Following an evidentiary hearing the court denied Schaeffer’s
    motion, finding his statements were knowingly, intelligently, and
    voluntarily made.
    ¶7             During questioning at trial, prejudicial testimony was given
    by H.S.’s mother, and the court declared a mistrial. Before a new trial could
    be set, and as a result of H.S.’s testimony at the first trial that Appellant had
    touched her breasts and genitals in the course of wrestling between the two,
    Schaeffer moved to preclude the admission of any evidence regarding
    wrestling between Appellant and H.S. After an evidentiary hearing, the
    court, in a well-reasoned written decision, found the other acts of wrestling
    were probative, were not unfairly prejudicial, and provided a reasonable
    basis to believe Schaeffer had a character trait giving rise to an aberrant
    sexual propensity. The court found the evidence admissible under Arizona
    Rule of Evidence (“Rule”) 404(c), as well as admissible under 404(b) as
    proof of Schaeffer’s opportunity, intent, plan, and preparation.
    ¶8            At the conclusion of the second trial, the jury found Schaeffer
    guilty of sexual abuse, sexual conduct with a minor, and molestation of a
    child. Schaeffer was sentenced to prison. Schaeffer timely appealed. We
    have jurisdiction pursuant to Article 6, Section 9, of the Arizona
    Constitution, and Arizona Revised Statutes (“A.R.S.”) sections 12-
    120.21(A)(1), 13-4031, and -4033(A).
    DISCUSSION
    I.     Motion to Suppress
    ¶9            Schaeffer argues the superior court erred when it denied the
    pretrial motion to suppress his admissions.
    ¶10            We review the superior court’s denial of a motion to suppress
    for an abuse of discretion, but we review its legal conclusions de novo. State
    v. Peterson, 
    228 Ariz. 405
    , 407, ¶ 6 (App. 2011). We review only the evidence
    presented at the hearing, and we view the facts in the light most favorable
    to upholding the superior court’s ruling. State v. Gay, 
    214 Ariz. 214
    , 217,
    ¶ 4 (App. 2007). We will not disturb a motion to suppress on appeal unless
    there is a clear and manifest error. Peterson, 228 Ariz. at 407, ¶ 6.
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    STATE v. SCHAEFFER
    Decision of the Court
    ¶11           Schaeffer argues that statements he made to the detective
    during two interviews held two weeks apart in the month of June 2013 were
    involuntary, and should have been suppressed. He argues the detective
    that interviewed him on June 28 used a slight implied promise to get
    Schaeffer to confess, and that he made the statements in the absence of
    required Miranda warnings. See Miranda v. Arizona, 
    384 U.S. 436
     (1966).
    ¶12           Voluntariness of a confession and Miranda violations are two
    distinct inquiries: Miranda relates to the admissibility of a confession based
    upon a defendant being apprised of his rights, not to a confessions’
    voluntariness. State v. Tapia, 
    159 Ariz. 284
    , 286 (1988).
    ¶13           Miranda requires that law enforcement officers notify persons
    of their rights before interrogating them. 
    384 U.S. at 478-79
    . However,
    Miranda does not become applicable until the person is placed in custody.
    
    Id.
     “Custody” for Miranda purposes “is a term of art that specifies
    circumstances that are thought generally to present a serious danger of
    coercion.” State v. Maciel, 
    240 Ariz. 46
    , 49, ¶ 12 (2016). “Miranda custody
    requires not only curtailment of an individual’s freedom of action, but also
    an environment that ‘presents the same inherently coercive pressures’” as
    to threaten to subjugate the individual to the examiner’s will. Id. at ¶¶ 12,
    16.
    ¶14           A person is not in custody if a “reasonable person” in the
    same circumstances would feel “at liberty to terminate the interrogation
    and leave.” Howes v. Fields, 
    565 U.S. 499
    , 509 (2012). Factors relevant to this
    determination are: the location of the questioning; its duration; statements
    made during the interview; the presence or absence of physical restraints;
    and the release of the interviewee at the end of questioning. 
    Id.
    Confronting an accused with evidence of guilt does not necessarily require
    administering Miranda warnings, and the fact the interview takes place in a
    police station, by an officer, and the individual may be a suspect, does not
    entail custody for purposes of Miranda. State v. Cruz-Mata, 
    138 Ariz. 370
    ,
    373 (1983).
    ¶15            Schaeffer was interviewed at the police station on two
    separate occasions, but was invited to the police station by officers each
    time. He was never arrested or placed in handcuffs. On the day of the
    second interview, Detective Ferullo wore jeans and a polo, and repeatedly
    advised Schaeffer that he was free to leave at any time. While the interview
    did last for three hours, this does not itself define custody. See Yarborough
    v. Alvarado, 
    541 U.S. 652
    , 665 (2004) (affirming state court’s application of
    the custody standard even where the interview lasted two hours). At the
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    STATE v. SCHAEFFER
    Decision of the Court
    end of the exchange Schaeffer himself acknowledged the voluntary nature
    of the interview, and freely left the station. Based on these facts, the court
    determined that Schaeffer was not in custody and thus no Miranda warning
    was required.
    ¶16            “In Arizona, confessions are prima facie involuntary and the
    burden is on the state to show they are voluntary.” State v. Hall, 
    120 Ariz. 454
    , 456 (1978). Confessions are considered involuntary if there is
    impermissible police conduct, coercive pressures that are not dispelled, or
    a confession is derived directly from a prior involuntary statement. State v.
    Rivera, 
    152 Ariz. 507
    , 513 (1987). A confession is also involuntary if it is
    obtained by a direct or implied promise. State v. Strayhand, 
    184 Ariz. 571
    ,
    585 (1995). The determination whether a confession is voluntary is based
    on a totality of the circumstances. Tapia, 
    159 Ariz. at 287-88
    .
    ¶17           Schaeffer argues that Detective Ferullo lied to him by stating
    that H.S.’s father had passed a voice analysis test, and Detective Ferullo
    “promised that things were going to be better for [him] if he would just
    confess.” According to Schaeffer, these circumstances, paired with the lack
    of Miranda warning and the duration of the interview, indicate his
    statements were involuntary.
    ¶18            As discussed above, Schaeffer was not in custody, nor does he
    argue either interview was custodial in nature, thus no Miranda warning
    was required on the basis of police custody. The fact the interview lasted a
    few hours does not render the statements involuntary either. See State v.
    Trostle, 
    191 Ariz. 4
    , 14 (1997) (finding seven-hour interview did not render
    statements involuntary where the defendant freely answered questions and
    “did not ask to stop or take a break”). While Schaeffer claims that Detective
    Ferullo lied to him, the police are not precluded from engaging in a ruse to
    obtain information. See State v. Carillo, 
    156 Ariz. 125
    , 136 (1988); see also
    Tapia, 
    159 Ariz. at 289
     (stating that a confession induced by fraud is not
    made involuntary unless there is some evidence that the defendant’s will
    was overborne or that the confession was false or unreliable). In contrast,
    Schaeffer denied his will was overborne and stated that Detective Ferullo
    “did not twist his arm.”
    ¶19            Schaeffer argues Detective Ferullo used an implied promise,
    albeit slight, and this contributed to the involuntariness of his statements.
    However, Schaeffer did not point to any evidence indicating that a deal was
    offered, a promise was made, or threat asserted. Mere advice from the
    police that it would be better for the accused to tell the truth, or that “things
    were going to be better for [him] if he would just confess” and that Schaeffer
    5
    STATE v. SCHAEFFER
    Decision of the Court
    should “just tell the truth,” in the absence of such deals, promises, or
    threats, does not render a confession involuntary. State v. Blakley, 
    204 Ariz. 429
    , 436, ¶¶ 27, 29 (2003); State v. Walton, 
    159 Ariz. 571
    , 579 (1989) (finding
    that statements such as “[i]t’s nothing that can’t be worked out” and “to lie
    isn’t going to help” were the detective’s opinions and not an express or
    implied promise). Lastly, even if Detective Ferullo’s statements constituted
    a promise, Schaeffer has not shown that his confession was based on a
    reliance on such a promise. State v. Pettit, 
    194 Ariz. 192
    , 197-98, ¶¶ 22-23
    (App. 1998).
    ¶20          Based on the totality of the circumstances, we cannot say the
    court abused its discretion when it found Schaeffer’s statements were made
    voluntarily. We hold the court’s denial of Schaeffer’s motion to suppress
    was proper.
    II.    Other-Act Evidence
    ¶21          Schaeffer argues the superior erred when it allowed other-act
    evidence that should have been precluded.
    ¶22            We review a court’s decision to admit evidence for an abuse
    of discretion, but review its legal conclusions de novo. Peterson, 228 Ariz. at
    407, ¶ 6. We view the facts in the light most favorable to sustaining the
    superior court’s ruling, Gay, 214 Ariz. at 217, ¶ 4, and will uphold the court’s
    ruling unless there is a finding of clear prejudice, State v. Fischer, 
    219 Ariz. 408
    , 416, ¶ 24 (App. 2008).
    ¶23             Rule 404(b) allows for the admission of evidence of other acts
    to show proof of motive, opportunity, intent, preparation, plan, knowledge,
    identity, or absence of mistake or accident. The list of proper purposes in
    Rule 404(b) is not exhaustive; evidence that is relevant for any purpose
    other than to show the defendant’s criminal propensity is admissible. State
    v. Jeffers, 
    135 Ariz. 404
    , 417 (1983). Under Rule 404(b), a court must find: (1)
    the evidence is relevant under Rule 402; (2) the evidence is offered for a
    proper purpose under Rule 404(b); (3) the probative value of the evidence
    is not substantially outweighed by the potential for unfair prejudice under
    Rule 403; and (4) there is clear and convincing evidence that the defendant
    committed the other act. State v. Mott, 
    187 Ariz. 536
    , 545-46 (1997); State v.
    Terrazas, 
    189 Ariz. 580
    , 584 (1997). Upon admission, and if requested, a
    court must provide an appropriate limiting instruction under Rule 105.
    Mott, 
    187 Ariz. at 546
    .
    ¶24         In cases of sexual misconduct, other-act evidence may also be
    admitted to show the defendant has a character trait giving rise to an
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    STATE v. SCHAEFFER
    Decision of the Court
    aberrant sexual propensity to commit the charged offense. Ariz. R. Evid.
    404(c). Before admitting propensity evidence, the court must find: (1)
    sufficient evidence that the defendant committed the other act; (2) the other-
    act evidence 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 probative value of the other act is not
    substantially outweighed by a danger of unfair prejudice or confusion of
    the issues under Rule 403. 
    Id.
     Rule 404(c)(1)(C) provides that, when
    deciding whether to admit such evidence to show propensity, the court
    shall consider, among other things, the remoteness of the other act, the
    similarity or dissimilarity of the other act, the frequency of the other act, the
    surrounding circumstances, and any relevant intervening events.
    ¶25           Schaeffer was charged with multiple counts of sexual conduct
    with H.S., some of which occurred while he was wrestling with her.
    However, not every wrestling event led to a charge. As such, the State
    sought to introduce testimony of those other wrestling events as other-act
    evidence under Rule 404(b). The State argued that it showed Schaeffer’s
    intent to engage H.S. in physical touch, preparation to create a touching and
    sexual relationship with H.S., and disproved any claim or theory that
    Schaeffer’s later contact was due to mistake or accident. The State further
    argued the other-acts evidence, Schaeffer’s repeated acts of sexually
    touching H.S., was admissible under Rule 404(c) to show he had an aberrant
    sexual propensity to commit the current charges.
    ¶26          Schaeffer admitted to wrestling with H.S. and admitted that
    he may have touched H.S.’s breasts while wrestling. However, Schaeffer
    contended that such touching was innocent, unintentional behavior, not
    grooming.
    ¶27          The court held a Rule 404 hearing on August 29, 2016. The
    State presented a cold expert who testified regarding grooming behavior
    and wrestling behavior, but not on specifics to the case. The State
    supplemented its argument with H.S.’s testimony during the first trial
    where H.S. discussed the other acts occurring.
    ¶28          After taking the matter under advisement, the court found the
    other-acts evidence was relevant, its relevance was not substantially
    outweighed by the potential for unfair prejudice, and that Schaeffer
    committed the acts. The court admitted the evidence under Rule 404(c), as
    evidence of grooming and a sexual propensity to commit the crimes
    charged, and found that even if the court did not find the wrestling
    7
    STATE v. SCHAEFFER
    Decision of the Court
    admissible under Rule 404(c), it would have been admissible under Rule
    404(b) as proof of Schaeffer’s opportunity, intent, plan, and preparation.
    ¶29             Schaeffer argues the court erred when it used the cold expert’s
    testimony to find the evidence accurate, reliable, and credible. Schaeffer
    cites State v. Lindsey, 
    149 Ariz. 472
    , 474-75 (1986), to argue that while the
    cold expert was permitted to testify about general behavior patterns, the
    law precludes the use of expert testimony to establish accuracy, reliability,
    or credibility.
    ¶30           In State v. Lindsey, the expert testified in front of the jury
    concerning the behavioral characteristics of victims of child molestation,
    but then went beyond the description of general principles and gave
    specific opinions regarding the credibility of certain witnesses. 
    Id. at 474
    .
    Our supreme court held the admission of such testimony was error, as it
    was not the purview of the expert to “tell the jury who is correct or
    incorrect[.]” 
    Id.
     (Internal quotations omitted.) Experts should not be
    permitted to give their opinions with respect to the accuracy, reliability, or
    credibility of a particular witness, nor should they give their belief
    regarding guilt or innocence. 
    Id. at 475
    . The court then went on to hold the
    admittance of such testimony was prejudicial and reversed two of the
    defendant’s counts, “[s]ince guilt or innocence on these counts inherently
    turned on the question of the [witness’] credibility[.]” 
    Id. at 477
    .
    ¶31            Here, the expert testified regarding the general principles of
    behavioral and social science, no more. Further, she did so at an evidentiary
    hearing. The court, familiar with H.S.’s testimony from the first trial and
    Schaeffer’s admissions, had sufficient evidence to support its findings. At
    no point did the expert testify in a way that intruded upon the fact-finding
    role of the court. Schaeffer cites no law holding that the court, in a Rule 404
    hearing, may not rely on an expert’s testimony regarding general principles
    to support its determination.2
    ¶32            Given that the cold expert’s testimony was admissible and
    did not go beyond the purview of general principles, the court acted within
    its discretion in relying on that testimony to determine the admissibility of
    the other-acts evidence. The court considered the remoteness of the acts,
    their similarity, and the strength of the evidence, in finding them relevant
    and admissible. See Ariz. R. Evid. 404(c)(1)(C). We hold the court did not
    2       This is not a case where expert testimony in front of the jury is being
    challenged as inadmissible. Whether and to what extent an expert testified
    at trial are separate issues, not raised by Schaeffer.
    8
    STATE v. SCHAEFFER
    Decision of the Court
    err when it admitted evidence of other incidents of wrestling and touching
    as other-acts evidence pursuant to Rule 404(b) and (c).
    CONCLUSION
    ¶33          For the foregoing reasons, we affirm Schaeffer’s convictions
    and sentences.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    9