                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                RAYMOND HAROLD HANLEY, Appellant.

                             No. 1 CA-CR 17-0737
                               FILED 12-6-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-002298-001
            The Honorable Alfred M. Fenzel, Judge, (Retired)

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant
                           STATE v. HANLEY
                           Decision of the Court



                      MEMORANDUM DECISION

Chief Judge Samuel A. Thumma delivered the decision of the Court, in
which Acting Presiding Judge Maria Elena Cruz and Judge Randall M.
Howe joined.


T H U M M A, Chief Judge:

¶1           Defendant Raymond Hanley appeals from his convictions
and sentences for first degree murder, a Class 1 dangerous felony, and
kidnapping, a Class 2 dangerous felony. Hanley argues the superior court
erred in admitting evidence of his other acts pursuant to Arizona Rules of
Evidence 404(b) and (c). Because Hanley has shown no reversible error, his
convictions and resulting sentences are affirmed.

                FACTS AND PROCEDURAL HISTORY

¶2            Responding to an apartment fire in October 1993, the Mesa
Fire Department found inside one unit the body of D.S., who had suffered
multiple gunshot wounds. D.S. was wearing only a t-shirt, and zip ties
bound her wrists and ankles. Her legs were also bound just below the knee
and a cord connected the wrist and ankle bindings. Although the murder
went unsolved at the time, years later, DNA evidence taken from the scene
matched Hanley. As relevant here, in 2016, a grand jury indicted Hanley for
first degree murder and kidnapping.1

¶3            Hanley claimed someone else committed the offenses and
agreed “that [the] identity [of the perpetrator] was at issue in this trial.”
Before trial, the State moved to admit evidence of (1) Hanley’s prior
conviction for a February 1994 sexual assault of C.S., including his use of
restraints, and (2) Hanley’s use of restraints during sexual conduct with
B.H., his wife at the time of the murder. The State sought admission of the


1 The superior court granted Hanley’s motion to remand to the grand jury,
resulting in a subsequent indictment alleging first degree murder
(including sexual assault as a predicate offense), kidnapping, burglary and
arson of an occupied structure. Hanley was convicted of all four charges
but does not challenge here his convictions or sentences for burglary and
arson of an occupied structure.



                                     2
                            STATE v. HANLEY
                            Decision of the Court

evidence under Arizona Rule of Evidence 404(b) to show “modus
operandi,” “pattern and characteristics” that are “so unusual and
distinctive as to be like a signature,” State v. Prion, 203 Ariz. 157, 163 ¶ 38
(2002) (citation omitted), and under Rule 404(c) to “show that the defendant
had a character trait giving rise to an aberrant sexual propensity to commit”
sexual assault, a predicate for the felony murder charge. See Ariz. R. Evid.
404(b) & (c) (2018).2

¶4             At a pretrial evidentiary hearing, psychologist Dr. Tina Garby
testified about the similarities and differences between the other acts and
the murder. Dr. Garby testified that “the behaviors of bondage appear[ed]
to be similar enough that the same person could have done them,” and that
the person performing the acts of bondage was “likely to be somebody who
has an interest in sexual sadism.” Mesa Police Department Detective Brown
also testified about her discussions with B.H. and Hanley on the topic.

¶5             After the evidentiary hearing, in an eight-page minute entry,
the superior court granted the State’s motion. The court found that the State
had proven the conduct by clear and convincing evidence; that the conduct
“was sufficiently unique as to be like a signature in its nature,” see Ariz. R.
Evid. 404(b), and that “the commission of these acts provide[d] a reasonable
basis to infer that [Hanley] had a character trait giving rise to an aberrant
sexual propensity to commit the crimes charged,” see Ariz. R. Evid. 404(c).
The court found that the probative value of the evidence “far outweighs the
risk of prejudice.”

¶6             At trial, B.H., C.S. and Detective Brown testified about the
other acts. The jury also heard excerpts of recorded interviews of Hanley
that briefly addressed the other acts.

¶7            After a 12-day trial, the jury found Hanley guilty of first
degree murder and kidnapping and then found the State had proven
aggravating circumstances. The court imposed a sentence of life in prison
with possibility of release after 25 years for the murder conviction and a
concurrent term of 10.5 years in prison for kidnapping. This court has
jurisdiction over Hanley’s timely appeal pursuant to Article 6, Section 9, of
the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-
120.21(A)(1) and 13-4033(A)(1).



2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.



                                      3
                             STATE v. HANLEY
                             Decision of the Court

                                DISCUSSION

I.         Admission Of Other Act Evidence Is Reviewed For An Abuse Of
           Discretion, Viewing The Evidence In The Light Most Favorable To
           The Proponent.

¶8             On appeal, this court reviews a superior court’s “decision to
admit evidence of other acts for an abuse of discretion,” State v. Hausner, 230
Ariz. 60, 78 ¶ 68 (2012), recognizing an admissibility “ruling will not be
disturbed absent a clear abuse of that discretion,” State v. Kiper, 181 Ariz.
62, 65 (App. 1994). The State asks this court to “look at the evidence in the
light most favorable to the proponent, maximizing its probative value and
minimizing its prejudicial effect.” Kiper, 181 Ariz. at 66. Hanley responds
that, for other acts evidence, “the rules have a different thrust, and the
suppositional balance no longer tilts toward admission.” State v. Salazar, 181
Ariz. 87, 91 (App. 1994). This, Hanley suggests, requires a different rule for
appellate review of decisions admitting other act evidence.

¶9            Contrary to Hanley’s suggestion, Salazar’s direction to
superior courts, 181 Ariz. at 91, does not change or conflict with Kiper’s
direction to appellate courts, 181 Ariz. at 66. The two decisions focus on
different issues. Salazar focuses on how the superior court should resolve
admissibility, while Kiper focuses on how this court, on appeal, should
review the superior court’s admission of other act evidence. Because Kiper
provides the relevant analysis here, this court views the evidence “in the
light most favorable to the proponent, maximizing its probative value and
minimizing its prejudicial effect.” Kiper, 181 Ariz. at 66.

     II.   The Court Properly Admitted Evidence Of The February 1994
           Sexual Assault Under Rules 404(B) And (C), And Evidence Of
           Marital Acts Between Hanley And B.H. Under Rule 404(C).

¶10           In general, “[e]vidence of a person’s character or a trait of
character is not admissible for the purpose of proving action in conformity
therewith on a particular occasion.” Ariz. R. Evid. 404(a); accord Ariz. R.
Evid. 404(b). Hanley claims the superior court erred in applying two
exceptions to this general rule by admitting other act evidence (1) under
Rule 404(b), for the limited purpose of showing Hanley’s modus operandi,
and (2) under 404(c), to show that Hanley “had a character trait giving rise
to an aberrant sexual propensity to commit the offense charged.” Although
the relevance inquiry is similar, because the “proper consideration and use
by the jury of” other acts evidence “differs significantly depending upon”
whether it is admitted under Rule 404(b) or 404(c), State v. Scott, 243 Ariz.
183, 188 n.3 (App. 2017), this court addresses 404(b) and 404(c) in turn.


                                      4
                            STATE v. HANLEY
                            Decision of the Court

       A.     The Other Acts Evidence Was Relevant.

¶11            “Evidence is relevant if . . . it has any tendency to make a fact
more or less probable than it would be without the evidence; and . . . the
fact is of consequence in determining the action.” Ariz. R. Evid. 401. This
“standard of relevance is not particularly high.” State v. Rose, 231 Ariz. 500,
512 ¶ 52 (2013) (citation omitted). Hanley’s use of bondage in the sexual
assault and with his wife during sexual conduct demonstrated his
preference for the use of restraints in such encounters; D.S. was similarly
restrained at the time of death and was naked, other than wearing a shirt,
suggestive of a sexual encounter. Accordingly, the evidence was relevant.
See Ariz. R. Evid. 401; accord State v. Goudeau, 239 Ariz. 421, 446 ¶ 66 (2016)
(“[B]ecause identity was the only disputed issue at trial, the court did not
err by finding the other-act evidence relevant.”).3

       B.     The Superior Court Properly Admitted The Other Acts
              Evidence Under Rule 404(C).

¶12            In an evidentiary rule unique to Arizona, “[i]n a criminal case
in which a defendant is charged with having committed a sexual offense,
. . . evidence of other . . . acts may be admitted by the court if relevant to
show that the defendant had a character trait giving rise to an aberrant
sexual propensity to commit the offense charged.” Ariz. R. Evid. 404(c).4 As
applicable here, three things are required for the proper admission of other
act evidence under Rule 404(c):

              First, the trial court must determine that clear
              and convincing evidence supports a finding
              that the defendant committed the other act.
              Second, the court must find that 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


3 Hanley’s argument to the contrary is based on one case addressing
different issues. See State v. Ramirez Enriquez, 153 Ariz. 431, 432 (App. 1987)
(reversing sale of marijuana conviction; criticizing admission of evidence,
to “complete[] the story, ” of other times when defendant sold marijuana
where a limiting instruction was “incomprehensible”).

4Federal Rule of Evidence 413 (“Similar Crimes in Sexual-Assault Cases”)
addresses a similar topic but does so in a different manner.



                                       5
                           STATE v. HANLEY
                           Decision of the Court

             commit the charged sexual offense. Third, the
             court must find that the evidentiary value of
             proof of the other act is not substantially
             outweighed by the danger of unfair prejudice,
             confusion of the issues, or other factors
             mentioned in Rule 403 [as well as eight factors
             listed in Rule 404(c), “among others”].

State v. Aguilar, 209 Ariz. 40, 49 ¶ 30 (2004) (emphasis added; citations
omitted).5 Applying these 404(c) standards, Hanley has shown no error in
the superior court’s admission of the other acts evidence in this case.

             1.     Hanley Has Not Shown That The Superior Court
                    Abused Its Discretion In Concluding The Other Acts
                    Provided A Reasonable Basis To Infer That He Had
                    A Character Trait Giving Rise To An Aberrant Sexual
                    Propensity To Commit Sexual Assault.

                    a.     Hanley’s February 1994 Sexual Assault Of C.S.

¶13           Hanley concedes that clear and convincing evidence showed
that he was convicted of sexually assaulting C.S. in February 1994. Hanley
asserts, however, that there were “virtually no similarities” to support the
finding that his sexual assault of C.S. “provides a reasonable basis to infer
that [he] had a character trait giving rise to an aberrant sexual propensity
to” sexually assault D.S. Ariz. R. Evid. 404(c)(1)(B).

¶14           It is undisputed that Rule 404(c) “does not contemplate any
bright line test of remoteness or similarity, which are solely factors to be
considered.” Rule 404 cmt. to 1997 amendment. Indeed, Rule 404(b)
authorizes the admission of other acts evidence “providing there is a
‘reasonable’ basis, by way of expert testimony or otherwise, . . . [to show]
that the commission of the other act permits an inference that defendant
had an aberrant sexual propensity that makes it more probable that he or
she committed the sexual offense charged.” Rule 404 cmt. to 1997
amendment; see also State v. Benson, 232 Ariz. 452, 459 ¶ 14 (2013) (noting
“attacks did not have to precisely align” to be admissible). Hanley argues,

5Although the court also must “make specific findings with respect to each
of the” Rule’s prerequisites for admission and “instruct the jury as to the
proper use of such evidence,” see Ariz. R. Evid. 404(c)(1) & (2), Hanley does
not challenge those requirements on appeal, and the record presented
shows the court properly undertook those obligations.


                                     6
                            STATE v. HANLEY
                            Decision of the Court

however, there were only “an extremely small number of generic
similarities,” meaning the superior court erred in finding the evidence
admissible under Rule 404(c)(1)(B).

¶15            Given the closeness in time of the February 1994 sexual
assault and the October 1993 murder, the similarities between the use of
restraints in each, and Dr. Garby’s testimony, the superior court properly
found the requisite basis to support propensity. Testimony at the
evidentiary hearing revealed that both victims were adult women;
restraints bound each at the wrists, ankles, and between the ankle and knee;
both women appeared to have been undressed by someone else; and
violence was used or threatened on both occasions. Dr. Garby concluded
that “if the same individual engaged in these behaviors, then this person is
likely to be somebody who has an interest in sexual sadism.” The court
found Dr. Garby’s testimony “logical, well-reasoned and persuasive.”

¶16            Dr. Garby likewise discussed and explained many of the
differences Hanley highlights on appeal, concluding “that, if somebody
was engaging in those behaviors and did these things, that they still may
be very likely to have a sexual sadistic interest.” The superior court weighed
the differences and found them to be “less consequential.” On this record,
Hanley has shown no abuse of discretion in the court’s admission of the
sexual assault evidence under Rule 404(c). See, e.g., State v. Lehr, 227 Ariz.
140, 147 ¶ 21 (2011) (noting “[a]cts need not be perfectly similar in order for
evidence of them to be admitted under Rule 404.”); State v. Dixon, 226 Ariz.
545, 550 ¶ 15 (2011) (noting similarities of victims; that “[i]n each case, a
knife was used, the victim was restrained, and homicide was either
threatened or occurred” and expert testimony that the defendant “had an
aberrant propensity to commit sexual assault,” and concluding “the trial
court’s propensity determination was appropriate”); Benson, 232 Ariz. at
458-59 ¶ 14 (noting other acts that “bore several similarities” to the charged
offense “provided a reasonable basis for the court to infer that [defendant’s]
aberrant sexual propensities in each attack were probative on the charges
involving all victims”).

                     b.     Hanley’s Use Of Restraints On B.H. At The
                            Time Of The Murder.

¶17            Hanley has likewise failed to show the superior court abused
its discretion in admitting evidence of bondage within his marriage under
Rule 404(c). Although Hanley argues his acts with B.H. were consensual,
testimony at the evidentiary hearing included information to the contrary.
Regardless, B.H. testified (and Hanley admitted in interviews) that the



                                      7
                            STATE v. HANLEY
                            Decision of the Court

couple engaged in bondage. See State v. Vega, 228 Ariz. 24, 29 ¶ 19 & n.4
(App. 2011) (holding “victim’s in-person testimony satisfied the clear-and-
convincing requirement of Rule 404(c)(1)(A)). Moreover, other acts need not
be criminal to be admissible. See Ariz. R. Evid. 404(c) (providing “evidence
of other crimes, wrongs, or acts may be admitted”).

¶18           To be sure, Hanley’s conduct with B.H. was different than the
sexual assault and the charges involving D.S., meaning the admissibility of
his conduct with B.H. was a closer call. That said, on the record presented,
the superior court did not abuse its discretion. Both women’s hands and
ankles were bound; both were either naked or nearly so; and the events
occurred during the same time period. Moreover, the court credited Dr.
Garby’s testimony at the evidentiary hearing that emphasized the common
presence of psychological—not just physical—components of “sexual
sadists;” B.H. repeatedly characterized Hanley as “psychologically hurtful
and controlling” and stated bondage was something she “wasn’t wanting
to do.”

¶19           The court found the evidence presented established a
“reasonable basis to infer that [Hanley] has an aberrant sexual propensity
to commit the crimes charged which involved a sadistic sexual interest in
bondage and threats.” It noted Hanley and B.H. engaged in the acts “at
[Hanley’s] insistence, for his pleasure and it involved simulated if not real
pain.” Taken together, this evidence supports the superior court’s finding.

              2.     Hanley Has Shown No Abuse Of Discretion In
                     Finding The Evidentiary Value Of Proof Of The
                     Other Acts Was Not Substantially Outweighed By A
                     Danger Of Impermissible Considerations.

¶20            To be admissible under Rule 404(c), the evidentiary value of
other act evidence must not be substantially outweighed by a danger of the
factors listed in Rule 403 or of additional factors, including “(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). As is true in reviewing a
challenge under Rule 403, the superior court’s conclusion under Rule
404(c)(1)(C) is given substantial deference. See State v. Gibson, 202 Ariz. 321
¶ 17 (2002).




                                      8
                            STATE v. HANLEY
                            Decision of the Court

¶21            The superior court’s ruling considered all eight factors listed
in Rule 404(c)(1)(C) and found that clear and convincing evidence of the
prior acts’ occurrence, as well as the closeness in time and similarity of the
acts, favored admission. The court stated that “[t]he probative value far
outweighs the risk of prejudice.” On this record, Hanley has shown no
abuse of discretion.

¶22            Hanley also argues “there can be no question that jurors were
influenced by the revulsion they felt toward [him].”6 The other acts
evidence admitted at trial, however, was comparatively brief and neutral.
B.H.’s direct trial testimony on the point is limited to a few transcript pages.
She was then cross-examined about apparent inconsistencies in her
statements on the topic, with no corresponding redirect. C.S.’s trial
testimony provided more detail, describing Hanley’s actions during his
sexual assault, but in relevant part, was limited to approximately ten
transcript pages, with no cross-examination on the point. On this record,
Hanley has shown no error by the superior court in applying Rule
404(c)(1)(C).

       C.     Evidence Of The February 1994 Sexual Assault of C.S. Was
              Admissible To Show Hanley’s Modus Operandi Under
              Rule 404(B); Evidence Of Hanley’s Use Of Restraints On
              B.H. At The Time Of The Murder Was Not.

¶23            Recognizing the evidentiary record supported the superior
court’s finding that the other acts were proved by clear and convincing
evidence, to be admissible under Rule 404(b), the court was required to “(1)
find that the act is offered for a proper purpose under Rule 404(b); (2) find
that the prior act is relevant to prove that purpose; [and] (3) find that any
probative value is not substantially outweighed by unfair prejudice.” State
v. Hargrave, 225 Ariz. 1, 8 ¶ 10 (2010) (citation omitted).7



6 Although the typical focus is on the pre-trial evidentiary hearing to
determine whether the superior court properly made an advance
admissibility determination, this discussion of how the evidence came in at
trial addresses Hanley’s reference to the impact on the jury of this evidence.

7 Although the court also must “give upon request an appropriate limiting
instruction,” Hargrave, 225 Ariz. at 8 ¶ 10 (quoting State v. Anthony, 218 Ariz.
439, 444 ¶ 33 (2008)), Hanley does not challenge the appropriate Rule 404(b)
limiting instruction given by the superior court in this case.



                                       9
                            STATE v. HANLEY
                            Decision of the Court

¶24           Evidence “is not admissible to prove the character of a person
in order to show action in conformity therewith,” but may be admitted for
“other purposes.” Ariz. R. Evid. 404(b). One such proper “other purpose”
is to prove the identity, or modus operandi, of the defendant. See State v.
Roscoe (Roscoe II), 184 Ariz. 484, 491 n.2 (1996) (“Identity and modus
operandi are obviously closely related, if not identical, since an unrelated
act with a significantly similar modus operandi may identify the defendant
as the person who committed the crime charged.”).

              The identity exception to Rule 404(b) applies if
              identity is in issue, “and if the behavior of the
              accused both on the occasion charged and on
              some other occasion is sufficiently distinctive,
              then proof that the accused was involved on the
              other occasion tends to prove his involvement
              in the crime charged.“

State v. Stuard, 176 Ariz. 589, 597 (1993) (quoting Morris K. Udall, Arizona
Practice: Law of Evidence § 84, at 183-84 (3d ed. 1991)). “The similarity
requirement is usually more stringent where evidence of [another] . . . act
is used to prove identity than where such evidence is offered to prove
emotional propensity or state of mind.” State v. Roscoe (Roscoe I), 145 Ariz.
212, 216 (1984). “Although the details need not be identical, there must be
similarities between important aspects where one would normally expect
to find difference.” State v. Tankersley, 191 Ariz. 359, 369 (1998) abrogated on
other grounds by State v. Machado, 226 Ariz. 281, 284 ¶ 17 (2011). “Where an
overwhelming number of significant similarities exist, the evidence of the
prior act may be admitted.” Roscoe I, 145 Ariz. at 216. Rather than
performing a “mechanical count of the similarities,” the superior court is
directed to ask whether the acts are “so similar, unusual, and distinctive”
that it “could reasonably find that they bear the same signature.” State v.
Bible, 175 Ariz. 549, 576 (1993). “If so, the evidence may be admissible and
any dissimilarities go to its weight.” Id.

              1.     Hanley’s February 1994 Sexual Assault of C.S.

¶25           Hanley has not shown the superior court abused its direction
in admitting evidence of the sexual assault under Rule 404(b). Based on the
similarities detailed above, that court could find the acts against C.S. and
D.S. sufficiently “similar, unusual, and distinctive” so as to “find that they
bear the same signature.” Bible, 175 Ariz. at 576.




                                      10
                           STATE v. HANLEY
                           Decision of the Court

¶26           The superior court found the use of “handcuffs, ties and/or
restraints of both the legs and arms,” as well as Hanley’s “holding the
women in a submissive and entirely vulnerable state” sufficiently similar
under Rule 404(b). Additional similarities were offered at the evidentiary
hearing, including restraints in both circumstances between the victims’
ankles and knees, a factor Dr. Garby emphasized as distinctive; evidence
both victims had been undressed by another person; and violence used or
threatened against each victim. See State v. Perez, 141 Ariz. 459, 464 (1984)
(“We are obliged to affirm the trial court’s ruling if the result was legally
correct for any reason.”). Although there were differences, the superior
court considered those differences and deemed them “less consequential”
than the similarities. See also Goudeau, 239 Ariz. at 451 ¶ 100 (noting such
differences go to the weight to be given the evidence). Similarly, and for
reasons like those above in discussing Rule 404(c)(1)(C), Hanley has shown
no abuse of discretion in the court’s concluding that Rule 403 did not
preclude admissibility of evidence of the sexual assault for the limited
purpose of showing modus operandi.

              2.     Hanley’s Use Of Restraints On B.H. At The Time Of
                     The Murder.

¶27            Hanley argues the superior court erred in admitting, under
Rule 404(b), evidence of his use of restraints on B.H. Recognizing the
requirement that the other acts had to be “sufficiently unique as to be like a
signature in nature,” the similarities identified by the superior court were
that the acts “involved the use [of] handcuffs, ties and/or restraints of both
the legs and arms” that held B.H. in a “submissive and entirely vulnerable
state.” Unlike Hanley’s sexual assault of C.S., however, no additional,
unique similarities were noted in the ruling or on the record.

¶28            Although “absolute identity in every detail” is not required
under Rule 404(b), as directed by prior cases, the similarities here are not
sufficiently significant, “unusual, and distinctive” to support admission to
show modus operandi. See, e.g., State v. Cuen, 153 Ariz. 382, 384 (App. 1987)
(“[I]f we were to hold that the evidence of prior sexual misconduct in this
case satisfies the criteria for admissibility under the . . . modus operandi
exception, there would be nothing left of” the general prohibition in Rule
404(b)); Prion, 203 Ariz. at 164 ¶¶ 40-41 (2002) (finding 1992 murder and
kidnapping/aggravated assault two years later insufficiently similar where
“each involved a female victim, and a knife or knives were utilized by the
perpetrator(s) at some point during commission of the crimes”); State v.
Jackson, 124 Ariz. 202, 204-05 (1979) (finding 1976 incident insufficiently
similar to three 1974 crimes where all four “occurred in the daytime, in


                                     11
                            STATE v. HANLEY
                            Decision of the Court

apartment complexes located in the same general area of Tucson” and
where “the perpetrator entered a woman’s unlocked apartment shortly
after he had the opportunity to observe the woman enter or leave the
apartment alone”); State v. Hughes, 189 Ariz. 62, 68-69 (1997) (finding
strangulation murder and Molotov cocktail arson insufficiently similar
where there were “only two likenesses—both victims were women who
had angered defendant and [the same individual] may have been paid to
commit the crimes”); cf. State v. Harding, 137 Ariz. 278, 290 (1983) (finding
no abuse of discretion in admission of other act evidence for modus
operandi where “the similarities of choice of victims (salesmen motel
guests), peculiar method of eliminating resistance (hog-tying with clothing
and gagging using socks), placement of victims (in bathroom with heads on
pillows), items stolen (briefcases and clothing) and manner of departing the
crime scene (via the victim's automobile) are so striking that” evidence of
the other act “tends to prove the identity of the killer of the instant
victims”).

¶29          Because this evidence of Hanley’s use of restraints on B.H. at
the time of the murder failed to meet the “more stringent” similarity
requirement for evidence to be admitted under Rule 404(b) for modus
operandi purposes, its admission was error.

III.   The Erroneous Admission Of Evidence Of Hanley’s Use Of
       Restraints On B.H. Under Rule 404(B) Was Harmless.

¶30           The State argues that any error in admitting other act
evidence was harmless, while Hanley argues the “error cannot be deemed
harmless,” citing State v. Anthony, 218 Ariz. 439 (2008). Error is harmless
where the State shows, “beyond a reasonable doubt, that the error did not
contribute to or affect the verdict.” Bible, 175 Ariz. at 588. In other words,
error is harmless when there is no “reasonable probability . . . that a verdict
might have been different had the error not been committed.” State v.
Williams, 133 Ariz. 220, 225 (1982) (citation omitted). Here, the State has
shown harmless error.

¶31           Although improperly admitted under Rule 404(b), the court
properly admitted evidence of Hanley’s use of restraints on B.H. under
Rule 404(c). Similarly, the jury properly was instructed, as contemplated by
Rule 404(c), that it could consider that evidence in determining whether
Hanley “had a character trait that predisposed him to commit the crimes
charged.” Accordingly, although not admissible under Rule 404(b), the trial
evidence properly included this same evidence under Rule 404(c), and the
jury properly considered the evidence under Rule 404(c).


                                      12
                             STATE v. HANLEY
                             Decision of the Court

¶32           In addition, the other act evidence involving B.H. was brief
and primarily resulted from Hanley’s cross-examination of B.H. B.H.
testified Hanley “liked to tie [her] up . . . maybe once a month or something
like that.” She testified Hanley “would tie [her] down to the bed so [she]
couldn’t get away,” restraining on some occasions only her hands and on
others both her arms and legs. B.H. noted this started “in the last couple
years” of their relationship, adding she “wasn’t wanting to do it.” Hanley’s
cross-examination focused on inconsistencies in B.H.’s statements,
including her admitting to purchasing the handcuffs used and stating
Hanley was “kind and gentle;” never got angry while using restraints; and
never bound her to anything she could not pull loose from. This brief
evidence was not featured during closing arguments by counsel.

¶33            Independent of this 404(b) evidence, other trial evidence
clearly demonstrated Hanley’s guilt. Hanley’s fingerprints were found on
a gas can found in D.S.’s apartment and used as an accelerant for the fire.
Hanley’s DNA was found on a cigarette butt found inside D.S.’s apartment
used to start the fire. Although first denying knowledge of various relevant
events, Hanley later admitted to knowing D.S. and admitted to arriving at
her apartment soon after the fire was spotted. He gave multiple inconsistent
accounts of his involvement with D.S., and his statements about when he
last spoke with her also changed over time. In addition, he volunteered
details about the events that only someone involved in the offenses would
know, including that D.S. had been shot. On this record, there is no
reasonable probability that the verdicts would have been different had the
other act evidence involving B.H. been admitted solely under Rule 404(c),
and not also under Rule 404(b). See State v. Valverde, 220 Ariz. 582, 585 ¶ 12
(2009) abrogated on other grounds by State v. Escalante, 245 Ariz. 135, 140-41 ¶
16 (2018); State v. Van Adams, 194 Ariz. 408, 416 ¶ 23 (1999).

¶34            Hanley’s reliance on Anthony does not suggest a contrary
result. In that capital, triple-murder case, “[a] significant portion of the trial
was dedicated to evidence about the alleged molestation” by Anthony of a
young step-daughter. Anthony, 218 Ariz. at 444 ¶ 29. Along with substantial
evidence offered on the point during trial, in closing arguments, the State
“asked the jury to conclude that Anthony had molested [the girl] and
murdered her to cover up the molestation. The State returned to this
argument and the evidence that allegedly supported it nearly a dozen times
throughout its closing and rebuttal arguments.” Id. at ¶ 31. In reversing, the
Arizona Supreme Court noted the superior court “erred by applying the
wrong legal standard to its evaluation of” the other act evidence, id. at 445
¶ 34, that the “evidence fell far short of proving either that [the girl] was
molested or that Anthony had done so,” meaning it was not otherwise


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                            STATE v. HANLEY
                            Decision of the Court

admissible, id. at 445 ¶ 37, and that the State had not shown the evidence
against Anthony was adequate to demonstrate harmless error, id. at 446 ¶¶
41-42. None of these factors are present here.

¶35            On this record, for these reasons, it is clear “beyond a
reasonable doubt, that the error did not contribute to or affect the verdict.”
Bible, 175 Ariz. at 588; accord Valverde, 220 Ariz. at 585 ¶ 12; Van Adams, 194
Ariz. at 416 ¶ 23. Accordingly, notwithstanding the error in admitting
evidence of Hanley’s use of restraints on B.H. under Rule 404(b), that error
was harmless.8

                                CONCLUSION

¶36          Because Hanley has shown no reversible error, his
convictions and resulting sentences are affirmed.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




8 For these same reasons, and because there were permissible inferences the
jury could draw from this evidence under Rule 404(c), the court rejects
Hanley’s related due process claim. See Jammal v. Van de Kamp, 926 F.2d 918,
920 (9th Cir. 1991) (“Only if there are no permissible inferences the jury may
draw from the evidence can its admission violate due process.”); cf. Boyde
v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005).


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