State v. Cuevas ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
SARAH R. CUEVAS, Appellant.
No. 1 CA-CR 19-0543
FILED 10-20-2020
Appeal from the Superior Court in Maricopa County
No. CR2017-001700-001
The Honorable Sally Schneider Duncan, Judge
The Honorable John C. Rea, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Casey D. Ball
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
STATE v. CUEVAS
Decision of the Court
MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge David D. Weinzweig
joined.
W I L L I A M S, Judge:
¶1 Sarah R. Cuevas (“Cuevas”) appeals her convictions and
sentences for child molestation. For reasons that follow, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 One evening in late 2013 or early 2014, Cuevas
inappropriately touched a minor’s vagina; first as the minor (who was
eleven years old) slept in bed and again when the minor moved to the floor.
When the victim returned to the bed, Cuevas joined her and fell asleep. The
victim lived part-time with her mother, who found the two in the same bed
the next morning and became upset. Cuevas, who lived in a neighboring
apartment, promptly left.
¶3 The victim first told her mother that nothing happened, but
she provided more information in 2015. Police were not contacted. The
following year, however, the victim told her stepmother about the incident
and police were contacted. The State charged Cuevas with two counts of
molestation of a child, both Class two felonies and dangerous crimes
against children.
¶4 Before trial, the State moved to introduce evidence of other
acts and prior aberrant behavior relying upon Arizona Rules of Evidence
404(b) and (c). The other act evidence involved a second victim who
reported a similar incident involving Cuevas. The second victim, then
twenty-seven years old, was intoxicated and unconscious when Cuevas
removed her swimsuit and digitally penetrated her, causing the victim to
wake. After two evidentiary hearings, the superior court admitted this
evidence under Rule 404(c). Eight months later, Cuevas unsuccessfully
moved to reconsider, arguing the court failed to provide specific findings.
See Ariz. R. Evid. 404(c)(1)(D).
¶5 The jury found Cuevas guilty as charged. Cuevas was
sentenced to 10 years imprisonment on both counts to run concurrently.
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STATE v. CUEVAS
Decision of the Court
This timely appeal followed. 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 13-4033(A)(1).
DISCUSSION
¶6 Cuevas argues the superior court erred by admitting other act
evidence without making the required findings under Rule 404(c)(1)(B) and
(C). We review the admission of other act evidence for an abuse of
discretion, State v. Yonkman, 233 Ariz. 369, 373, ¶ 10 (App. 2013), and will
uphold a decision if there is “any reasonable evidence in the record to
sustain it.” State v. Morris, 215 Ariz. 324, 341, ¶ 77 (2007) (quoting State v.
Veatch, 132 Ariz. 394, 396 (1982)).
¶7 As an exception to the general rule prohibiting propensity
evidence, Rule 404(c) “permits the admission of evidence of uncharged acts
to establish ‘that the defendant had a character trait giving rise to an
aberrant sexual propensity to commit the offense charged.’” State v. Garcia,
200 Ariz. 471, 475, ¶ 26 (App. 2001) (quoting Ariz. R. Evid. 404(c)). Before
admitting such evidence, Rule 404(c)(1) requires the court to find:
(A) The evidence is sufficient to permit the trier of fact to find that
the defendant committed the other act.
(B) 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.
(C) The evidentiary value of proof of the other act is not substantially
outweighed by danger of unfair prejudice, confusion of issues,
or other factors mentioned in Rule 403.
¶8 Cuevas concedes the court made sufficient findings for
element (A). Therefore, we consider only the sufficiency of the court’s
findings for elements (B) and (C).
I. Sufficient Evidence Existed and Sufficient Findings Were Made to
Establish an Aberrant Sexual Propensity
¶9 Cuevas first challenges the superior court’s aberrant sexual
propensity finding under Rule 404(c)(1)(B). Both experts who testified at the
Rule 404 evidentiary hearing, including Cuevas’ own expert,
acknowledged that performing a nonconsensual sexual act on an
unconscious individual constituted an aberrant sexual propensity. And
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STATE v. CUEVAS
Decision of the Court
though Cuevas points to a lack of empirical research supporting expert
testimony discussing “somnophilia,” no such diagnosis was made or
required for the court to find an aberrant sexual propensity. See Ariz. R.
Evid. 404 cmt. to 1997 amend. (“[An] expert who is testifying pursuant to
Rule 404(c) is not required to state a diagnostic conclusion concerning any
aberrant sexual propensity of the defendant so long as his or her testimony
assists the trier of fact and there is other evidence which satisfies the
requirements of subsection (1)(B)”); see also State v. Bailey, 125 Ariz. 263, 265
(App. 1980) (holding expert testimony indicating that prior bad acts reflect
propensity is not required when acts are similar and sufficiently near in
time to offense charged).
¶10 Because the charged offense and evidence regarding the
second victim both involved a nonconsensual sexual act on an unconscious
individual, a reasonable basis existed to infer that the act against the second
victim demonstrated Cuevas had an aberrant sexual propensity to commit
a similar act against the victim here. And to the extent the court’s findings
were not sufficiently clear, the court clarified in denying Cuevas’ motion to
reconsider that “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.” Reasonable evidence supports
the court’s findings, which sufficiently complied with the requirements of
Rule 404(c).
II. The Court Made Sufficient Findings to Support its Conclusion that the
Danger of Unfair Prejudice from the Other Act Evidence was Not
Substantially Outweighed by its Probative Value
¶11 When conducting an analysis to determine whether the
probative value from the admission of the other act evidence is
substantially outweighed by the danger of unfair prejudice, Rule 404(c)
requires the court consider, and make specific findings, for each of the
following factors:
(i) remoteness of the other act; (ii) similarity or dissimilarity
of the other act; (iii) the strength of the evidence that
defendant committed the other act; (iv) frequency of the other
acts; (v) surrounding circumstances; (vi) relevant intervening
events; (vii) other similarities or differences; [and] (viii) other
relevant factors.
Ariz. R. Evid. 404(c)(1)(C).
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STATE v. CUEVAS
Decision of the Court
¶12 Cuevas contends the other act evidence was highly
prejudicial because the “facts were inflammatory,” and affected the jury.
“But not all harmful evidence is unfairly prejudicial. After all, evidence
which is relevant and material will generally be adverse to the opponent.”
State v. Schurz, 176 Ariz. 46, 52 (1993). Cuevas also speculates the other act
evidence created “unfair prejudice” based upon juror questions about her
sexual orientation. “Unfair prejudice” refers to an undue tendency to
suggest conviction on an improper basis. See Fed. R. Evid. 403, Advisory
Committee Note; see also Schurz, 176 Ariz. at 52. There is simply nothing in
the record to suggest the jury convicted Cuevas based upon her sexual
orientation.
¶13 Cuevas also argues the evidence was too dissimilar in nature,
distinguishing, among other things, the act involving the minor victim from
the act involving the adult victim: (1) one was a pre-pubescent 11-year-old
girl while the other was a 27-year-old woman, (2) alcohol was only involved
with the adult victim, (3) the adult victim and Cuevas were peers and
friends, and (4) the act with the adult victim occurred at Cuevas’ own
apartment, not at the victim’s home.
¶14 The court recognized and considered the age difference but
concluded that the similarities of both acts by Cuevas, involving the
nonconsensual touching of two females in the vaginal area while
unconscious, outweighed other dissimilarities. “Acts need not be perfectly
similar in order for evidence of them to be admitted under Rule 404[c].”
State v. Lehr, 227 Ariz. 140, 147, ¶ 21 (2011) (concluding, inter alia, that other
act evidence with “extensive similarities” were admissible despite other
differences in circumstance, including varied age of victims, involved in
such acts).
¶15 And although Cuevas does not challenge the court’s
additional findings, the court explained its reasoning in sufficient detail to
conclude that the other acts were admissible under Rule 404(c). Specifically,
the court explained: (1) performing the sexual act “on an unconscious,
nonconsensual person is aberrant behavior”; (2) the other act was not
remote where there were two years between the events, and cases found to
be not remote exist and discuss similar issues with gaps of time upwards of
20 years; (3) the similarities of performing sexual acts on a sleeping victim
outweigh the dissimilarities; (4) with regard to strength of the evidence,
“it’s certainly sufficient for the jury to find by clear and convincing evidence
that it happened”; (5) here, there was only one act which, “does diminish,
to a certain extent, the relevancy, [and] the weight of the evidence . . . ”;
(6) “[t]he [c]ourt[] considered the surrounding circumstances of the
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STATE v. CUEVAS
Decision of the Court
404[(c)(1)](C) evidence in weighing its evidentiary value and whether the
jury could find it . . . [b]ut any other surrounding circumstances are not
particularly relevant to the 403 analysis”; (7) there was no evidence of
relevant intervening events; (8) age was the biggest dissimilarity.
¶16 The “[superior] court is in the best position to balance the
probative value of challenged evidence against its potential for unfair
prejudice” and, therefore, has broad discretion in its decision. State v.
Harrison, 195 Ariz. 28, 33, ¶ 21 (App. 1998). On this record, the court made
sufficient findings, which were reasonably supported by the evidence, in
admitting the other act evidence under Rule 404(c)(1)(B) and (C).
CONCLUSION
¶17 For the forgoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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