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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               TROMAINE MERCEAS PEGEESE, Appellant.

                             No. 1 CA-CR 18-0894
                               FILED 7-28-2020


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-002593-001
                   The Honorable Dean M. Fink, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee

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



                      MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge James B. Morse Jr. 1 joined.


W I L L I A M S, Judge:

¶1            Tromaine Merceas Pegeese appeals his conviction and
sentence for child molestation. For reasons that follow, we affirm.

              FACTUAL AND PROCEDURAL HISTORY 2

¶2            Pegeese was living with the minor victim’s (M.V.) family
between June 2013 and March 2014. One night while M.V. was sleeping in
bed with her sister, Pegeese came into the room and rubbed M.V.’s vagina
over her clothes. The back of M.V.’s pants were “wet” from ejaculate, and
she heard Pegeese buckle his belt when she woke up. She was between ten
and eleven years old at the time. M.V. told her mother what happened the
next morning, and later told her father and sister, but no one contacted
police. In 2016, during an interview at school, M.V. told a case manager
with child services about the incident. The case manager reported the
incident to the police. The police conducted a forensic interview with M.V.,
and M.V. identified Pegeese as the perpetrator in a photographic lineup.

¶3           The State charged Pegeese with child molestation, a class two
felony and dangerous crime against children. After a five-day trial, a jury
convicted Pegeese. The trial court sentenced Pegeese to twenty-six years’
imprisonment. Pegeese timely appealed his conviction and sentence. We
have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and
-4033(A)(1).




1Judge Morse replaces the Honorable Kenton D. Jones, who was originally
assigned to this panel. Judge Morse has read the briefs and reviewed the
record.

2We view these facts in a light most favorable to sustaining the verdict and
resolve all reasonable inferences against Pegeese. See State v. Guerra, 161
Ariz. 289, 293 (1989).


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                              STATE v. PEGEESE
                              Decision of the Court

                                 DISCUSSION

I.       Constitutional Challenges

¶4            Pegeese first argues the child molestation statute, A.R.S. § 13-
1410, is unconstitutionally (1) vague and (2) overbroad. We review
constitutional issues de novo. See State v. Moody, 208 Ariz. 424, 445, ¶ 62
(2004).

         A.     Vagueness

¶5            Our supreme court has expressly rejected vagueness and due
process challenges to the child molestation statute. State v. Holle, 240 Ariz.
300, 308-10, ¶¶ 38-40, 45-47 (2016). Thus, assuming Pegeese has standing to
argue the statute is vague, see State v. Burke, 238 Ariz. 322, 326, ¶ 5 (App.
2015), Holle bars Pegeese’s vagueness challenge.

¶6            Pegeese agrees that Holle precludes his vagueness claim, but
he contends the case was wrongly decided. We, however, have no authority
to disregard a decision of our supreme court. See State v. Long, 207 Ariz. 140,
145, ¶ 23 (App. 2004).

         B.     Overbreadth

¶7            Holle, however, does not directly address an overbreadth
challenge. See 240 Ariz. 300. “Traditionally, one who asserts a claim of
statutory overbreadth or vagueness does not have standing if [the] conduct
falls squarely within the constitutionally legitimate prohibitions of the
regulation at issue.” State v. Kessler, 199 Ariz. 83, 87, ¶ 17 (App. 2000). Here,
Pegeese’s conduct falls clearly within the child molestation statute’s
prohibitions and is not constitutionally protected. 3

¶8          Relying on federal district court decision May v. Ryan, 245 F.
Supp. 3d 1145 (D. Ariz. 2017), 4 Pegeese suggests the child molestation

3 Although we recognize a narrow exception to the standing requirement
in the First Amendment arena, see State v. Musser, 194 Ariz. 31, 32, ¶ 5 (1999),
Pegeese cannot avail himself of this exception because the child molestation
statute criminalizes non-expressive, constitutionally unprotected conduct:
sexual contact with a minor, see State v. Brown, 207 Ariz. 231, 238, ¶ 22 (App.
2004).

4   This decision was vacated by May v. Ryan, 807 F. App’x 632 (9th Cir. 2020).



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                             STATE v. PEGEESE
                             Decision of the Court

statute threatens constitutionally protected parenting acts of others. “[W]e
will presume that Arizona’s courts, if faced with an application of the
statute that exceeds its valid reach, would not give the statute an
impermissibly broad interpretation.” Musser, 194 Ariz. at 32, ¶ 6. We,
therefore, are not persuaded that Pegeese’s conclusory, theoretical
parenting examples support his claim that he is exempted from the
traditional standing requirement. Moreover, Holle addresses Pegeese’s
hypothetical fears: “[I]f a prosecution actually were to result from such
innocent behavior [parenting or caregiving tasks] (no such case has been
cited), an ‘as applied’ constitutional challenge would likely have merit in
light of parents’ fundamental, constitutional right to manage and care for
their children.” 240 Ariz. at 310-11, ¶ 49. 5 And Pegeese does not claim, nor
does the evidence show, he was improperly prosecuted for an innocent
caregiving act that would permit him to assert an “as applied”
constitutional challenge. See id.

¶9           Accordingly, we conclude Pegeese lacks standing to
challenge the statute as overbroad, and we need not further address his
claim. 6

II.    Other-Act Evidence

¶10             Pegeese next argues the trial court erred by admitting other-
act evidence under Arizona Rule of Evidence 404(c). We review the
admission of other-act evidence for an abuse of discretion. State v. Yonkman,
233 Ariz. 369, 373, ¶ 10 (App. 2013). Applying this standard of review, “we
uphold a decision if there is ‘any reasonable evidence in the record to
sustain it.’” State v. Butler, 230 Ariz. 465, 472, ¶ 28 (App. 2012) (quoting State
v. Morris, 215 Ariz. 324, 341, ¶ 77 (2007)).

¶11            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,



5The legislature amended the child molestation statute to explicitly exempt
such innocent conduct after our supreme court issued the Holle decision.
See A.R.S. § 13–1401(A)(3)(b).

6The State invites us to conduct “an alternative harmless [error] analysis to
help ensure the finality” of Pegeese’s conviction, noting the possibility of a
future habeas corpus proceeding. We, however, find our discussion supra
¶¶ 5-9, resolves the issues before us, and decline the State’s invitation.


                                        4
                              STATE v. PEGEESE
                              Decision of the Court

200 Ariz. 471, 475, ¶ 26 (App. 2001) (quoting Ariz. R. Evid. 404(c)). Rule
404(c) requires the trial court to make specific findings of three elements:

         (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.

When conducting the Rule 403 analysis under Rule 404(c)(1)(C), the trial
court shall consider, among other 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.” Finally,
the trial court must give a limiting instruction regarding the proper use of
the other-act evidence. Ariz. R. Evid. 404(c)(2); Garcia, 200 Ariz. at 475, ¶ 27.

¶12           The State moved to introduce Rule 404(c) evidence arising
from Pegeese’s acts involving minor victim A.S., the foster granddaughter
of Pegeese’s former wife, S.P. 7 Pegeese objected. During a recorded
conversation with S.P., Pegeese admitted that, when A.S. was a few months
under the age of three, he “masturbated on her twice,” and confessed to
three other acts against A.S.: (1) Pegeese smacked A.S.’s buttocks when she
jumped on him, causing bad thoughts to enter his mind; (2) Pegeese
touched A.S.’s buttocks and masturbated inside his pants when he was
holding her; and (3) while playing with A.S., Pegeese threw her in the air
and, when he caught her on the way down, he put her on his lap to rub
against his erect penis. The court ruled this evidence was admissible.

¶13            In holding the acts were admissible under Rule 404(c), the
court explained its reasoning in a detailed ruling, finding: (1) the acts were
properly “characterize[d] as aberrant sexual acts, having sexual contact
with a prepubescent child”; (2) the acts were sufficiently “similar in nature,
while not identical”; (3) the acts occurred “relatively closely in time”; (4) the
other-act evidence was strong, noting that “we do have [Pegeese] admitting
to it in an interview, as well as in a guilty plea”; (5) “it’s not an incredibly

7   Pegeese and S.P. were still married at the time.


                                        5
                             STATE v. PEGEESE
                             Decision of the Court

frequent act here that we have, but that’s just one factor”; (6) the
surrounding circumstances were “similar in that they both occurred in the
home and involved not necessarily a family connection, [but] a closer
relationship. They weren’t strangers. It wasn’t out in public.”; and (7)
“[there were] no relevant intervening events.” Based on its findings, the
trial court determined “the relevance of the evidence, is not substantially
outweighed by its prejudicial impact.” To prove the other acts at trial, the
State presented the testimony of S.P. and the investigating detective, and
played the recording of Pegeese’s conversation with S.P.

¶14           Pegeese first challenges the trial court’s aberrant sexual
propensity finding under Rule 404(c)(1)(B). Because the charged offense
and other-act evidence both involved molesting a prepubescent female, the
child molestation acts against A.S. provided a reasonable basis to infer
Pegeese had an aberrant sexual propensity to molest M.V. See State v.
Aguilar, 209 Ariz. 40, 48-49, ¶ 28 (2004) (stating that aberrant sexual
propensity includes child molestation).

¶15           Pegeese further contends the trial court abused its discretion
in its Rule 403 balancing because the other-act evidence was insufficiently
similar and injected “all-consuming prejudice” into the trial.

¶16            Pegeese contends the trial court’s conclusion was flawed
because the victims’ ages were different. We have held, however, that
“different ages of the victims raises no significant distinction” in these type
of cases. State v. Crane, 166 Ariz. 3, 7 (App. 1990) (finding that sexual
intercourse with a fifteen-year-old girl was sufficiently similar to sexual
contact with a seven-year-old girl); see also State v. Roscoe, 184 Ariz. 484, 492-
93 (1996) (finding no abuse of discretion by admitting other-act evidence of
defendant’s sexual encounter with his fourteen-year-old girlfriend when
the charged offense involved a seven-year-old female); State v. Vega, 228
Ariz. 24, 29, ¶¶ 19-20 (holding that the other-act evidence was properly
admitted for both the eleven-year-old victim and a six-year-old victim). The
court, therefore, properly addressed the age difference in its ruling. In
addition to the age difference, Pegeese points to other technical
dissimilarities between the other acts and those in the present case. The
court, however, expressly and properly considered and addressed the Rule
404(c)(1)(C) factors in making its ruling. Upon our review of the record, we
find no error in the court’s balancing conclusion.

¶17            Pegeese summarily claims that State v. Glissendorf, 233 Ariz.
222 (App. 2013), vacated, 235 Ariz. 147 (2014), supports his position that the
trial court’s Rule 403 analysis was incorrect. In Glissendorf, the court found


                                        6
                            STATE v. PEGEESE
                            Decision of the Court

error when the trial court “failed to note a significant dissimilarity,” instead
mistakenly considering it a similarity in its 403 analysis. Id. at 235, ¶ 39.
Because we find no such mistake in the present case, we find Glissendorf
inapplicable and Pegeese’s claim unpersuasive.

¶18            Pegeese additionally contends the recording of S.P.’s
conversation unfairly prejudiced him because S.P. accused him of other
incidents involving A.S. and said she did not believe his denials of them.
But the State introduced the recording and its transcript in evidence at the
evidentiary hearing, and the trial court therefore considered the challenged
evidence in its Rule 403 analysis. Because “[t]he trial court is in the best
position to balance the probative value of challenged evidence against its
potential for unfair prejudice,” it has broad discretion in deciding whether
to exclude evidence as unfairly prejudicial. State v. Harrison, 195 Ariz. 28,
33, ¶ 21 (App. 1998). The purpose of the recording was to prove the other
acts with Pegeese’s confession. Although the evidence was undeniably
prejudicial, not all harmful evidence is unfair. State v. Mott, 187 Ariz. 536,
545-46 (1997); see, e.g., State v. Mills, 196 Ariz. 269, 275, ¶ 28 (App. 1999)
(holding that prior-act evidence was prejudicial but not unduly so because
it did not suggest a decision on an improper basis). We therefore find no
error on this ground.

¶19            Furthermore, Pegeese neither objected to the trial court’s Rule
404(c) limiting instruction nor requested an additional limiting instruction.
The trial court provided a proper Rule 404(c) instruction with the parties’
agreement, and did not err by failing to give a further limiting instruction
sua sponte. See State v. Miles, 211 Ariz. 475, 483, ¶ 31 (App. 2005) (“[A] trial
court is not required, sua sponte, to give a limiting instruction on [other-
act] evidence.”). The Rule 404(c) instruction also negated any possible
prejudice resulting from the unproven accusations by informing the jurors
that they could consider the other-act evidence only to determine whether
Pegeese had a character trait that predisposed him to commit the charged
crime. See State v. Kuhs, 223 Ariz. 376, 387, ¶ 55 (2010) (“We presume that
the jurors follow instructions.”).

¶20             We cannot conclude on this record that the trial court abused
its discretion.




                                       7
                   STATE v. PEGEESE
                   Decision of the Court

                       CONCLUSION

¶21   For the foregoing reasons, we affirm.




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




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