State of Arizona v. David James Yonkman , 233 Ariz. 369 ( 2013 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
DAVID JAMES YONKMAN,
Appellant.
No. 2 CA-CR 2010-0338
Filed November 20, 2013
Appeal from the Superior Court in Pima County
No. CR20101253001
The Honorable John S. Leonardo, Judge
AFFIRMED
COUNSEL
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz, Section Chief Counsel, Phoenix
and Alan L. Amann, Assistant Attorney General, Tucson
Counsel for Appellee
Lori J. Lefferts, Pima County Public Defender
By David J. Euchner and Lisa M. Hise, Assistant Public Defenders,
Tucson
Counsel for Appellant
STATE v. YONKMAN
Opinion of the Court
OPINION
Judge Eckerstrom authored the opinion of the Court, in which Judge
Vásquez and Judge Brammer1concurred.
E C K E R S T R O M, Judge:
¶1 This case comes to us on remand from State v. Yonkman,
231 Ariz. 496, ¶ 19, 297 P.3d 902, 905 (2013), vacating 229 Ariz. 291,
274 P.3d 1225 (App. 2012). Appellant David Yonkman was
convicted of sexual abuse and sexual conduct with a minor based on
acts he had committed against his stepdaughter, C. The remaining
issues to be decided on appeal are (1) whether his statements to
police should have been suppressed because his Miranda2 waiver
had been involuntary and his wife had acted as an agent of the state;
(2) whether the trial court erred by admitting prior acts for which
Yonkman had been acquitted or by precluding evidence of his
acquittals; and (3) whether prior consistent statements had been
admitted improperly. Finding no reversible error, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to
upholding the convictions. State v. Fontes, 195 Ariz. 229, ¶ 2, 986
P.2d 897, 898 (App. 1998). In March 2010, fifteen-year-old C. told her
mother, and Yonkman’s wife, Kelly, that he had “been touching [C.]
inappropriately.” Kelly reported the allegations to police, and C.
underwent a forensic interview in which she repeated the
1A retired judge of the Arizona Court of Appeals authorized
and assigned to sit as a judge on the Court of Appeals, Division
Two, pursuant to Arizona Supreme Court Administrative Order No.
2012-101 filed December 12, 2012.
2Miranda v. Arizona, 384 U.S. 436 (1966).
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STATE v. YONKMAN
Opinion of the Court
allegations. Kelly later contacted a detective to report that her
daughter had recanted. Although Yonkman initially invoked his
rights pursuant to Miranda when he was detained by a police officer,
he talked to Kelly after his release and then called a detective to
arrange an interview at a police station. There, Yonkman admitted
he had touched C. on her breasts and vagina.
¶3 At trial, C. testified about two separate incidents in
which she had awoken to find her pants off, her underwear around
her ankles, and Yonkman fondling her breasts and/or her vagina.
Over Yonkman’s objection, the state also presented the testimony of
two of C.’s friends who allegedly had been molested by him during
sleepovers at the Yonkman home. The trial court refused to allow
Yonkman to introduce evidence that he had been acquitted of
charges stemming from these allegations. After being convicted, he
was sentenced to a mitigated term of four years’ imprisonment for
sexual conduct with a minor, followed by lifetime probation for
sexual abuse.
Motion to Suppress
¶4 Before trial, Yonkman filed a motion to suppress on the
grounds that both his Miranda waiver and his confession had been
involuntary. On appeal, however, he challenges the trial court’s
ruling only as to his waiver of rights pursuant to Miranda and
Edwards v. Arizona, 451 U.S. 477 (1981). “We review a ruling on the
motion to suppress for an abuse of discretion if it involves a
discretionary issue, but review constitutional and purely legal issues
de novo.” State v. Allen, 216 Ariz. 320, ¶ 11, 166 P.3d 111, 114 (App.
2007). We limit our review to the evidence presented at the
suppression hearing and view the facts in the light most favorable to
upholding the trial court’s ruling. Id. ¶ 2.
¶5 The facts pertinent to this issue are set forth more fully
in our supreme court’s decision. See Yonkman, 231 Ariz. 496, ¶¶ 2-4,
297 P.3d at 903. Yonkman contends the detective in this case
violated his right to counsel by suggesting to Kelly that he come to
the police station for a polygraph test in order to close the case.
Relying on Maryland v. Shatzer, 559 U.S. 98, 110 (2010), Yonkman
argues his invocation of his right to counsel less than fourteen days
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Opinion of the Court
earlier made the subsequent waiver of that right presumably
involuntary, unless he reinitiated contact with the police. Our
supreme court, however, has held that Yonkman reinitiated contact
in this case, not the police. Yonkman, 231 Ariz. 496, ¶¶ 15, 17, 297
P.3d at 905. The court determined that Kelly’s telephone
conversation with the detective that prompted this reinitiation
“[was] far removed from the coercive conduct Edwards seeks to
prevent.” Id. ¶ 15. And when, as our supreme court determined
was the case here, “the suspect reinitiates contact with the police, he
waives his rights and questioning can continue.” State v. Smith, 193
Ariz. 452, ¶ 22, 974 P.2d 431, 437 (1999).
¶6 Although Yonkman voluntarily reinitiated contact with
the police, the interviewing detective gave Yonkman another
Miranda warning before the interview. He stated he understood his
rights and agreed to answer the detective’s questions. Thus, at any
time during the interview, Yonkman could have invoked his right to
counsel. See Edwards, 451 U.S. at 484-85. Although Yonkman
inquired about his right to counsel, he never unambiguously stated
he wanted a lawyer present; therefore, the detective lawfully
continued the interview. See State v. Newell, 212 Ariz. 389, ¶ 25, 132
P.3d 833, 841 (2006) (“If a reasonable officer in the circumstances
would have understood only that the defendant might want an
attorney, then questioning need not cease.”); see also Davis v. United
States, 512 U.S. 452, 459 (1994) (holding objectively ambiguous
statement insufficient to invoke right to counsel). On the record
before us, we find the waiver of his rights was valid. See Shatzer, 559
U.S. at 104.
¶7 Alternatively, Yonkman argues the detective enlisted
Kelly as an instrument or agent of the state in an effort to elicit
statements from Yonkman, despite his invocation of the right to
counsel several days earlier. Although Shatzer aims to prevent
governmental badgering after a suspect invokes the right to counsel,
our supreme court has held, “[T]he Constitution provides no
‘protection against friends or family members who convince [a
suspect] to talk with police’ or ‘against third-party cajoling,
pleading, or threatening.’” Yonkman, 231 Ariz. 496, ¶¶ 8, 11, 297
P.3d at 904, quoting Van Hook v. Anderson, 488 F.3d 411, 421 (6th Cir.
2007) (alteration in Yonkman); cf. Coolidge v. New Hampshire, 403 U.S.
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 STATE v. YONKMAN
Opinion of the Court
443, 489-90 (1971) (finding no constitutional protection “against the
adverse consequences of a spontaneous, good-faith effort by
[suspect’s] wife to clear [defendant] of suspicion”). In light of our
supreme court’s determination that the police did not reinitiate
contact in this case, Yonkman, 231 Ariz. 496, ¶ 15, 297 P.3d at 905, his
agency argument would appear to be foreclosed by that opinion.
Our high court’s analysis was based on the premise that Kelly acted
as a third party when she spoke to Yonkman after he had invoked
his rights, see id. ¶¶ 10-12, and any finding that she acted as an agent
of the state would conflict with that decision.
¶8 Nevertheless, because our supreme court expressly
identified Kelly’s status as an issue for our determination on
remand, id. ¶ 18, we independently address the issue. We conclude
the trial court did not err in rejecting Yonkman’s contention that
Kelly was acting as an agent of the state. “Whether a private person
acted as a state agent is ‘a fact-intensive inquiry that is guided by
common law agency principles.’” State v. Martinez, 221 Ariz. 383,
¶ 14, 212 P.3d 75, 79 (App. 2009), quoting United States v. Jarrett, 338
F.3d 339, 344 (4th Cir. 2003); see also State v. Estrada, 209 Ariz. 287,
¶ 17, 100 P.3d 452, 456 (App. 2004) (“Whether a private citizen acted
as a state agent is determined on a case-by-case basis . . . .”). Under
the common law, agency is a “consensual relationship in which one
person . . . acts on behalf of another person”; the agent has certain
powers, such as the “authority to negotiate or to transmit or receive
information on the [other’s] behalf”; and “the person represented
has a right to control the actions of the agent.” Restatement (Third)
of Agency § 1.01 cmt. c (2006). Even in the absence of an express
principal-agent relationship, the circumstances of a particular case
may give rise to an implied agency. Canyon State Canners v. Hooks,
74 Ariz. 70, 73, 243 P.2d 1023, 1024 (1952). The numerous factors to
consider when determining agency include a person’s purpose or
motive in acting and whether law enforcement provided any
reward. See United States v. Alexander, 447 F.3d 1290, 1295 (10th Cir.
2006); United States v. McAllister, 18 F.3d 1412, 1417-18 (7th Cir.
1994).
¶9 Here, Kelly initiated the contact with the detective, and
only then did the detective suggest that Yonkman voluntarily
submit to a polygraph test. The detective neither ordered nor
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STATE v. YONKMAN
Opinion of the Court
coerced Kelly to relay any information to Yonkman. Further, the
detective offered Kelly no reward apart from the possibility of
closing the investigation, which, if Yonkman were innocent and if
C.’s recantation were true, would have been in her own family’s
interests. Overall, the evidence suggested that Kelly acted as a
concerned spouse and mother, not an agent subject to law
enforcement control. Under these circumstances, we conclude the
trial court did not abuse its discretion in declining to find Kelly
acted as an agent of the state. Nor did the court otherwise abuse its
discretion in denying the motion to suppress.
Other-Act Evidence
Acquitted Conduct
¶10 Yonkman next argues the trial court abused its
discretion by admitting other-act evidence when he “had been
acquitted by a jury of the alleged acts.” We review the admission of
other-act evidence for an abuse of discretion. State v. Lehr, 227 Ariz.
140, ¶ 19, 254 P.3d 379, 386 (2011). Before trial, the state filed a
notice of intent to introduce evidence of prior allegations by two of
C.’s friends that Yonkman had molested them. Yonkman moved to
preclude the evidence, but the court admitted it under both Rule
404(b) and (c), Ariz. R. Evid., to show “motive, intent, plan, or
absence of mistake or accident; or that the defendant had a character
trait that predisposed him to commit the crime charged; or both.”
¶11 Rule 404(b) allows the admission of evidence of “other
crimes, wrongs, or acts” for purposes that include “proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” In cases involving sexual offense
charges, Rule 404(c) allows courts to admit evidence of “other
crimes, wrongs, or acts . . . if relevant to show that the defendant had
a character trait giving rise to an aberrant sexual propensity to
commit the offense charged.” Before other-act evidence may be
admitted under either rule, the trial court must find by clear and
convincing evidence that the defendant committed the act. State v.
Aguilar, 209 Ariz. 40, ¶ 30, 97 P.3d 865, 874 (2004); State v. Terrazas,
189 Ariz. 580, 582, 944 P.2d 1194, 1196 (1997). The court also must
find the other-act evidence “is relevant and . . . its probative value is
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STATE v. YONKMAN
Opinion of the Court
not substantially outweighed by unfair prejudice.” State v. Garcia,
224 Ariz. 1, ¶ 33, 226 P.3d 370, 380 (2010); see also Aguilar, 209 Ariz.
40, ¶ 30, 97 P.3d at 874. Under either Rule 404(b) or Rule 404(c), the
court must give the jury an appropriate limiting instruction if the
defendant so requests. Garcia, 224 Ariz. 1, ¶ 33, 226 P.3d at 380;
Aguilar, 209 Ariz. 40, n.11, 97 P.3d at 874 n.11.
¶12 Yonkman does not argue the trial court erred in its
application of Rule 404(b) and (c). Rather, he argues the other-act
evidence here should have been precluded because a jury acquitted
him of those acts, and such acquitted-conduct evidence is
inadmissible pursuant to our supreme court’s opinion in State v.
Little, 87 Ariz. 295, 350 P.2d 756 (1960). In that case, the court found
evidence of acquitted conduct to be inadmissible, reasoning that “[a]
verdict of acquittal should relieve the defendant from having to
answer again, at the price of conviction for that crime or another,
evidence which amounts to a charge of a crime of which he has been
acquitted.” Id. at 307, 350 P.2d at 764.
¶13 We do not find Little to be controlling on this issue, for
at least two related reasons. First, Little contains no discussion of the
“clear and convincing” standard that now governs the admission of
other-act evidence. See Ariz. R. Evid. 404 cmt. to 1997 amend.; see
also Terrazas, 189 Ariz. at 582-83, 944 P.2d at 1196-97 (suggesting
State v. Hughes, 102 Ariz. 118, 426 P.2d 386 (1967), established clear
and convincing standard prior to adoption of Arizona Rules of
Evidence). Perhaps as a result, Little never has been applied to
preclude acquitted conduct in Arizona under Rule 404. See, e.g.,
State v. Miller, 129 Ariz. 465, 468, 632 P.2d 552, 555 (1981)
(distinguishing Little); State v. Uriarte, 194 Ariz. 275, ¶¶ 33-37, 981
P.2d 575, 581-82 (App. 1998) (analyzing admission of acquitted
conduct without reference to Little); State v. Davis, 127 Ariz. 285, 286
n.1, 619 P.2d 1062, 1063 n.1 (App. 1980) (noting Little arguably
limited to facts before it).
¶14 Second, subsequent case law has undermined the res
judicata or collateral estoppel rationale supporting the Little
decision. See 87 Ariz. at 304-05, 307, 350 P.2d at 761-62, 764. As the
Supreme Court established in Dowling v. United States, the admission
of testimony about acquitted conduct is not barred categorically by
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STATE v. YONKMAN
Opinion of the Court
the Double Jeopardy Clause or the Due Process Clause of the United
States Constitution when such evidence is governed by a lesser
standard than proof beyond a reasonable doubt. 493 U.S. 342, 343-
44, 348 (1990). In Dowling, the Court suggested that collateral
estoppel based on an earlier acquittal could depend on a case-by-
case analysis that would require a defendant to prove, from the
entire record, that “the issue whose relitigation he seeks to foreclose
was actually decided in the first proceeding.” Id. at 350. But, as the
Court later clarified in United States v. Watts, “it is impossible to
know exactly why a jury found a defendant not guilty on a certain
charge.” 519 U.S. 148, 155 (1997) (per curiam). A “jury cannot be
said to have ‘necessarily rejected’ any facts when it returns a general
verdict of not guilty,” id., meaning an acquittal carries no preclusive
effect under a lesser evidentiary standard. Albeit without citing
Little, our state supreme court has suggested in dicta that Dowling
has, at minimum, reopened the question of admitting acquitted
conduct under Arizona law. Terrazas, 189 Ariz. at 584 n.3, 944 P.2d
at 1198 n.3.
¶15 A majority of state jurisdictions now allows a trial court
to admit acquitted conduct under their own rules of evidence. E.g.,
People v. Wallen, 996 P.2d 182, 185 (Colo. App. 1999); State v. Irons,
630 P.2d 1116, 1118 (Kan. 1981); see Christopher Bello, Annotation,
Admissibility of Evidence as to Other Offense as Affected by Defendant’s
Acquittal of that Offense, 25 A.L.R. 4th 934 §§ 2[a], 5 (1983 & Supp.
2008) (collecting cases). In accord with those cases, we conclude an
acquittal does not bar the introduction of other-act evidence under
Rule 404, because such evidence involves a lesser standard of proof,
and “the earlier acquittal could be based upon the failure of the state
to have proved the prior bad acts beyond a reasonable doubt.”
Terrazas, 189 Ariz. at 584 n.3, 944 P.2d at 1198 n.3.
¶16 As noted, Yonkman does not challenge the admission of
the evidence on the ground the trial court incorrectly applied Rule
404(b) and (c). We therefore conclude the court did not err by
allowing evidence of the other acts in this case, even though
Yonkman had been acquitted of them.
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Opinion of the Court
Fact of Acquittal
¶17 Yonkman further contends that if prior acquitted
conduct is admissible under Rule 404, the jury should be allowed to
consider such evidence in light of the acquittal. We generally review
the preclusion of evidence for an abuse of discretion. See State v.
Villalobos, 225 Ariz. 74, ¶ 33, 235 P.3d 227, 235 (2010). Although the
fact of an acquittal sometimes is established through a jury
instruction rather than the admission of evidence, e.g., Dowling, 493
U.S. at 342-43, this difference in presentation is immaterial to our
analysis.
¶18 To support his position, Yonkman primarily relies on
Davis, 127 Ariz. at 286, 619 P.2d at 1063, in which this court
summarily held that “the better rule allows proof of an acquittal to
weaken and rebut the prosecution’s evidence of the other crime.”
“[W]e consider decisions of coordinate courts as highly persuasive
and binding, unless we are convinced that the prior decisions are
based upon clearly erroneous principles, or conditions have changed
so as to render these prior decisions inapplicable.” Castillo v. Indus.
Comm’n, 21 Ariz. App. 465, 471, 520 P.2d 1142, 1148 (1974); accord
State v. Hickman, 205 Ariz. 192, ¶¶ 37-38, 68 P.3d 418, 426-27 (2003).
Thus, we will not disregard Davis, as the state suggests.
¶19 Rather, we read Davis in harmony with our rules of
evidence, see Terrazas, 189 Ariz. at 583, 944 P.2d at 1197, which
provide that a trial court ultimately has the discretion to admit or
preclude evidence after deciding whether its probative value
outweighs its potential for unfair prejudice. See Ariz. R. Evid. 401,
403; State v. Connor, 215 Ariz. 553, ¶¶ 33-34, 161 P.3d 596, 606 (App.
2007). A survey of other jurisdictions reveals that “[n]early all trial
courts have adopted a case-by-case approach in analyzing requests
by the defendant for an acquittal instruction.” Kinney v. People, 187
P.3d 548, 555 (Colo. 2008); see, e.g., Hess v. State, 20 P.3d 1121, 1125,
1127-29 (Alaska 2001); People v. Bedoya, 758 N.E.2d 366, 381-82 (Ill.
App. Ct. 2001).
¶20 The state argues that evidence of acquittal is (1)
irrelevant, because the acquittal constitutes a prior jury’s conclusion
based on a different standard of proof; and (2) confusing, because
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STATE v. YONKMAN
Opinion of the Court
the later jury may incorrectly think itself bound by the prior jury’s
conclusion in assessing the acquitted conduct. Courts have
precluded the fact of acquittal for those reasons. See, e.g., United
States v. Wells, 347 F.3d 280, 285-86 (8th Cir. 2003) (acquittal
irrelevant to prove innocence on current charge); People v. Bolden,
296 N.W.2d 613, 617 (Mich. Ct. App. 1980) (fact of acquittal risks
misleading jurors into thinking “defendant absolutely did not
commit” other acts).3
¶21 We acknowledge the validity of those concerns, but we
also recognize that, in cases “where the jury has heard details of
prior trials or criminal investigations such that the jury may
speculate that the defendant has been tried and convicted of these
prior acts,” the lack of an acquittal instruction creates a pronounced
risk of juror confusion adverse to the defendant. Kinney, 187 P.3d at
557-58; accord People v. Ward, 952 N.E.2d 601, ¶¶ 45, 48 (Ill. 2011).
Furthermore, any risk that the jury will give undue weight to the
prior acquittal can be remedied by instructing the jury to evaluate
such evidence independently. See Kinney, 187 P.3d at 558; accord
Ward, 952 N.E.2d 601, ¶ 47. We therefore find guidance in the rule
set forth by the Colorado Supreme Court in Kinney that
[a]n acquittal instruction is appropriate
when the testimony or evidence presented
at trial about the prior act indicates that the
jury has likely learned or concluded that
the defendant was tried for the prior act
and may be speculating as to the
defendant’s guilt or innocence in that prior
trial.
187 P.3d at 557. Any evidence of acquittal, of course, still must be
admitted properly under Rules 401 and 403. But Davis reflects the
reality that when evidence of acquitted conduct is presented, the fact
3Some courts also have excluded the evidence on the ground
that a judgment of acquittal is hearsay. See, e.g., Wells, 347 F.3d at
286. But such a judgment presumably would qualify for admission
under the public record exception to the hearsay rule. See Ariz. R.
Evid. 803(8); Kinney, 187 P.3d at 557.
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Opinion of the Court
of the acquittal often becomes admissible under these rules. See 127
Ariz. at 286, 619 P.2d at 1063.
¶22 This case illustrates the point. Here, the trial court
attempted to prevent the jury from learning of the prior trial or its
verdict, prohibiting mention of an earlier “trial” or “arrest.” Yet the
jury learned that Yonkman previously had been reported to the
police, the police had taken statements from his other two victims,
and a children’s advocacy worker had conducted videotaped
interviews with them. The presentation of the other-act evidence in
this trial demanded that both parties repeatedly refer to prior
transcripts and “testimony.” The parties also referred to the other
victims coming “down here” to “Court” to provide that testimony,
suggesting there had been a “hearing” in a previous “case.” In fact,
one of the victims inadvertently violated the court’s restriction by
referring to an incident that had happened “after the court trial.”
But even without this confirmation, common sense and natural
inferences would lead anyone to conclude there had been an earlier
trial. So the ruling here, though well intentioned, served only to
confuse the jury about the former proceedings and to cause
speculation about the outcome of the prior trial, to Yonkman’s
detriment. See State v. Alvarez, 228 Ariz. 579, ¶ 27, 269 P.3d 1203,
1210 (App. 2012) (Eckerstrom, P.J., dissenting) (observing “‘a jury
can . . . be confused in its deliberations by the preclusion of relevant
evidence’ as much as by the admission of irrelevant evidence”),
quoting State v. Machado, 224 Ariz. 343, ¶ 22, 230 P.3d 1158, 1169
(App. 2010), aff’d, 226 Ariz. 281, ¶ 26, 246 P.3d 632, 637 (2011).
¶23 In addition, precluding the fact of acquittal also risks
unduly limiting cross-examination and the development of issues
concerning a witness’s potential motives and credibility. See, e.g.,
State v. Briley, 106 Ariz. 397, 398-99, 476 P.2d 852, 853-54 (1970)
(precluding inquiry into prior trial where witness testified violated
defendant’s right to cross-examine witness and show possible bias
and motivation). The restriction here had this effect. One of the
other-act victims admitted on cross-examination that she first had
reported her allegations to police when an officer had responded to
a call concerning a fight between Yonkman’s son and herself.
Absent the trial court’s limitation, Yonkman could have further
supported a fabrication defense against this accusation by
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Opinion of the Court
suggesting that “in order to avoid perjury [the witness] was
motivated to testify similarly” at the current trial. Id. at 399, 476 P.2d
at 854. In addition, the other victim testified that she was afraid of
“[p]eople calling [her] a liar” and that she “wanted [Yonkman] to
pay for what he did to [her].” If the jury had known Yonkman had
been acquitted of charges based on this victim’s allegations, he could
have cast her testimony in a very different and less damaging light.
¶24 Although we conclude for these reasons that the trial
court abused its discretion by precluding evidence of Yonkman’s
acquittals, we nevertheless find the error harmless in the context of
the case. An error is harmless if a reviewing court can determine,
beyond a reasonable doubt, that it neither affected nor contributed
to the verdict. State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191
(1993). Given that Yonkman admitted in his interview with police
that he had touched C. on her breasts and vagina, thereby
corroborating her claims concerning the charges of which he was
convicted, we conclude the error did not affect the verdicts.
¶25 At oral argument, Yonkman suggested the error was
not harmless because the jury may have concluded his confession to
police was involuntary, as the product of an implied or implicit
promise from police to close the case if he gave a statement.4 But
Yonkman presented no argument to the jury at trial suggesting his
confession had been induced by such a promise. Our harmless error
analysis thus is unaffected by any alleged improper statements
made by the detective, as we conclude beyond a reasonable doubt
that such statements, in context, would not have influenced the
jury’s verdicts.
4As we indicated above, Yonkman did not present an
argument in his opening brief that his confession was involuntary,
and the issue therefore has been abandoned as a freestanding claim
for appellate relief. See Ariz. R. Crim. P. 31.13(c)(1)(vi); State v.
Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (failure to develop
argument waives claim on appeal); see also State v. Amaya-Ruiz, 166
Ariz. 152, 172, 800 P.2d 1260, 1280 (1990) (observing “[v]oluntariness
and Miranda are separate legal issues”).
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Prior Consistent Statements
¶26 Finally, Yonkman argues the trial court erred in
admitting prior consistent statements of C. and A., a victim in the
prior case. Pursuant to Rule 801(d)(1)(B), Ariz. R. Evid.,5 prior
consistent statements are admissible as nonhearsay “to rebut an
express or implied charge against the declarant of recent fabrication
or improper influence or motive.” For a prior consistent statement
to be admissible, the statement must have been made before the
motive to fabricate arose. State v. Martin, 135 Ariz. 552, 553, 663 P.2d
236, 237 (1983).
¶27 Specifically, Yonkman contends that Kelly “was
allowed to testify . . . that C[.] had told her that [he] had touched her
inappropriately,” and a “forensic interviewer . . . was also allowed to
testify what C[.] told her,” despite there being “no allegation of
recent fabrication.” The state also elicited that A. had made prior
consistent statements despite “no allegation of recent fabrication.”
The state does not dispute Yonkman’s claims that the evidence does
not qualify as nonhearsay under Rule 801(d)(1)(B), but rather argues
any error was harmless because both girls testified regarding the
very same statements. We agree the alleged errors were harmless
because both girls were subject to later cross-examination as to those
statements and because, as noted above, the jury heard evidence that
Yonkman ultimately confessed to touching C. on the breasts and
vagina. Any error in admitting the statements therefore did not
affect the verdicts in this case. See Bible, 175 Ariz. at 588, 858 P.2d at
1191.
Disposition
¶28 For the foregoing reasons, Yonkman’s convictions and
sentences are affirmed.
5We cite the provision in effect during Yonkman’s 2010 trial; it
has undergone stylistic changes since then. See Ariz. R. Evid.
prefatory cmt. to 2012 amends.
13