State v. Gollihar ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CRAIG ALLAN GOLLIHAR, Appellant.
No. 1 CA-CR 14-0757
FILED 8-13-2015
Appeal from the Superior Court in Mohave County
No. S8015CR201301522
The Honorable Steven F. Conn, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Law Office of Daniel DeRienzo, PLLC, Prescott Valley
By Daniel J. DeRienzo
Counsel for Appellant
STATE v. GOLLIHAR
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Patricia A. Orozco joined.
P O R T L E Y, Judge:
¶1 Defendant Craig A. Gollihar appeals his conviction and the
resulting sentence for kidnapping, a class two felony. He argues that the
trial court erred by denying his motion to admit evidence of the victim’s
prior sexual abuse as a child pursuant to Arizona Revised Statutes
(“A.R.S.”) section 13-1421(A)(3).1 For the following reasons, we affirm.
FACTS2 AND PROCEDURAL BACKGROUND
¶2 The victim, A.M., was the only person working at a Motel 6 in
Kingman on the evening of December 1, 2013. After renting a motel room
for two nights, Gollihar called the front desk and told A.M. that his
television remote was not working. She brought him a new remote and
returned to the front desk. Fifteen minutes later, he called the front desk
again and told A.M. the new remote was not working.
¶3 She then went to his room to show him how to use the remote.
After Gollihar opened the door, A.M. took the remote from his hand, left
the door open, and walked into the room. She showed him how to work
the remote, placed the remote on the desk and turned to leave the room,
but Gollihar had closed and locked the door. He grabbed her by the
shoulders and threw her on the bed. Gollihar then climbed on top of her,
straddling her, and pinned her arm down while trying to remove her jacket.
A.M. screamed, and Gollihar covered her mouth with his hand and told her
not to scream. A.M. then hit Gollihar in the head several times with her free
hand and managed to push him towards the nightstand. She ran to the
1We cite to the current statute unless otherwise noted.
2We view the facts in the light most favorable to upholding the conviction.
State v. Lowery, 230 Ariz. 536, 538, ¶ 2, 287 P.3d 830, 832 (App. 2012) (citation
omitted).
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STATE v. GOLLIHAR
Decision of the Court
door, disengaged the security latch, and ran to the office where she called
the police and motel manager.
¶4 Officer Sandeen responded, arrested Gollihar, and took him
to the police station. Gollihar was “extremely belligerent,” and smelled
strongly of alcohol. In fact, after being arrested, he slurred, “The party’s
over.” Gollihar was subsequently indicted for kidnapping and attempted
sexual assault.
¶5 During the first day of trial, Gollihar filed a motion to admit
evidence of the victim’s prior sexual conduct pursuant to A.R.S. § 13-1421.
Specifically, Gollihar sought to admit that the victim had previously been a
victim of “some type of sexual offense” as a child and believed a conviction
resulted. Gollihar claimed that the evidence was admissible under A.R.S. §
13-1421(A)(3) as evidence of the victim’s motive to accuse him of the
offense. He also requested an evidentiary hearing, and then made an oral
motion to continue the trial or, alternatively, for a mistrial. The court
denied Gollihar’s motions, finding the evidence was not admissible because
it would not show “case specific” or “defendant specific” motive as
required by the statute. The court further held that the evidence was
irrelevant and prejudicial to the rights of the victim.
¶6 The jury convicted Gollihar of kidnapping but was unable to
reach a unanimous verdict on the attempted sexual assault charge. The trial
court subsequently granted the State’s motion to dismiss the attempted
sexual assault charge without prejudice. The trial court found that Gollihar
had one prior felony conviction, and sentenced him to the presumptive
term of five years’ imprisonment with ninety-four days of presentence
incarceration credit.
¶7 Gollihar filed a timely notice of appeal. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§
12–120.21(A)(1), 13–4031, and –4033(A).
DISCUSSION
¶8 Gollihar contends that the court erred by denying his request
for a continuance and an evidentiary hearing on the admissibility of the
victim’s prior childhood sexual abuse. He argues the victim’s childhood
sexual abuse was relevant and admissible under A.R.S. § 13-1421(A)
because it may have led her to “misperceive” his actions, providing a
“motive” for her to falsely accuse him of a crime.
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STATE v. GOLLIHAR
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¶9 We review a trial court’s evidentiary rulings for a clear abuse
of discretion. State v. Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d 1260, 1275
(1990). Further, a trial court “has considerable discretion in determining
whether the probative value of the evidence is substantially outweighed by
its unfairly prejudicial effect.” State v. Gilfillan, 196 Ariz. 396, 405, ¶ 29, 998
P.2d 1069, 1078 (App. 2000).
¶10 The admissibility of evidence of a victim’s prior sexual history
is governed solely by Arizona’s rape shield law, A.R.S. § 13-1421. Gilfillan,
196 Ariz. at 400–01, ¶ 15, 998 P.2d at 1073–74; see also State v. Herrera, 232
Ariz. 536, 549-50, ¶ 39, 307 P.3d 103, 116-17 (App. 2013) (A.R.S. § 13–1421
“dictates the circumstances under which specific instances of a victim’s
prior sexual conduct may be admitted”). Section 13-1421(A) permits the
admission of “instances of the victim’s prior sexual conduct”3 in limited
situations, and then only if the trial court finds the evidence is relevant,
material to a fact in issue, and the probative value is not outweighed by the
danger of unfair prejudice or inflammation of the jury. Further, a trial court
may admit such evidence only if the evidence is one of five enumerated
types of evidence. Id. The defendant bears the burden of showing by clear
and convincing evidence that the evidence is relevant and admissible.
A.R.S. § 13-1421(B).
¶11 A defendant may not introduce a victim’s sexual conduct
“without a court order after a hearing on written motions is held to
determine the admissibility of the evidence.” Id. However, “[i]f new
information is discovered during the course of the trial that may make the
evidence described in subsection A admissible, the court may hold a
hearing to determine the admissibility of the evidence under subsection A.”
Id.
¶12 On appeal, Gollihar argues that A.M.’s alleged history of
sexual abuse as a child was relevant to her motive to accuse him of a crime
and therefore admissible under § 13-1421(A)(3). Gollihar relies heavily on
State v. Lujan, 192 Ariz. 448, 967 P.2d 123 (1998), which predates codification
of the rape shield law, to argue that he could have found an expert to testify
in support of his theory that the victim’s alleged sexual abuse ten years
earlier caused her to misperceive Gollihar locking the door, pushing her
onto the bed, straddling her and covering her mouth with his hands. He
3Prior sexual assaults qualify as sexual conduct under rape shield laws.
State v. Dixon, 226 Ariz. 545, 554, ¶ 47, 250 P.3d 1174, 1183 (2011) (“[I]t would
be anomalous to protect rape victims from questions about prior consensual
conduct, but subject them to cross-examination about assaults.”).
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STATE v. GOLLIHAR
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claims that Lujan is controlling because the legislature essentially codified
the judicially-created rape shield law adopted by the Arizona Supreme
Court in State ex rel. Pope v. Superior Court, 113 Ariz. 22, 545 P.2d 946 (1976).
However, Lujan is instructive only to the extent it is consistent with the
plain wording of the rape shield statute. See Gilfillan, 196 Ariz. at 401 n.3,
¶ 16, 998 P.2d at 1074 n.3 (noting that the rape shield statute “seemingly
codifies the rule enunciated” in Pope and its progeny).
¶13 However, even if applicable, Lujan does not support
Gollihar’s claim. In Lujan, the defendant was charged with child
molestation for placing his hand inside the nine-year-old victim’s bathing
suit and rubbing her “front private part” while they were in a swimming
pool. 192 Ariz. at 450, ¶ 2, 967 P.2d at 125. Lujan claimed he had merely
dunked the victim in the pool and did not touch her inappropriately. Id. at
451, ¶ 8, 967 P.2d at 126. He sought to admit evidence of the victim’s
contemporaneous sexual abuse by two other men and produced expert
testimony that the contemporaneous molestations could make a child
develop “hypersensitivity” to “any physical touch by another adult male.”
Id. at 450, ¶¶ 3-4, 967 P.2d at 125. Our supreme court held that the trial
court abused its discretion by precluding the evidence because the “nearly
contemporaneous sexual abuse” supported the defendant’s defense. Id. at
451, ¶ 8, 967 P.2d at 126. The court also noted that Lujan “laid a foundation
connecting the factual predicate of abuse with the defense legal theory” and
“made a sufficient offer of proof explaining why [the victim] might have
incorrectly accused him of an inappropriate touching even if such touching
did not occur.” Id. at 453, ¶ 18, 967 P.2d at 128.
¶14 In contrast, the victim in this case was an adult when
assaulted by Gollihar, and the prior sexual abuse allegedly occurred ten
years earlier, when she was a child. And Gollihar did not make a sufficient
offer of proof establishing a nexus between the alleged prior abuse and his
acts. See State v. Oliver, 158 Ariz. 22, 32, 760 P.2d 1071, 1081 (1988) (“In
Arizona, evidence of prior sexual history is inadmissible on the issue of
motive unless the record clearly establishes a factual predicate from which
motive can be inferred.”); Herrera, 232 Ariz. at 550, ¶ 41, 307 P.3d at 117
(finding evidence of victim’s prior sexual history inadmissible under
§ 13-1421 and noting that the defendant “ha[d] to have something more” to
establish a connection between the alleged sexual activity and the crimes
charged and that there was “no good-faith basis” to admit the evidence).
¶15 The record supports the court’s determination that Gollihar
failed to show by clear and convincing evidence that the victim’s alleged
childhood sexual abuse incident was relevant or admissible under
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STATE v. GOLLIHAR
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§ 13–1421(A)(3) as evidence of her motive to accuse Gollihar of a crime.
Therefore we find no abuse of discretion. And, even if we assume for the
sake of argument that the court abused its discretion by not continuing the
trial and allowing Gollihar some time to secure an expert to testify that the
victim, because of her past trauma, misperceived his actions and intentions,
we find the error harmless. The jury, without the evidence that Gollihar
wanted to attempt to find and produce, did not find him guilty beyond a
reasonable doubt of attempted sexual assault. The jury, however, found
him guilty of kidnapping beyond a reasonable doubt because he lured the
victim into his room, closed and locked the door, pushed her onto the bed,
straddled her, and kept her from voluntarily leaving until she started
screaming and hit him. Consequently, the evidence presented at trial was
sufficient for the conviction.
CONCLUSION
¶16 For the foregoing reasons, we affirm Gollihar’s conviction and
sentence.
:RT
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