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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      MANUEL BUSTILLOS, Appellant.

                             No. 1 CA-CR 16-0187
                               FILED 7-6-2017


          Appeal from the Superior Court in Maricopa County
                       No. CR2013-431584-001
          The Honorable Virginia L. Richter, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Elizabeth B. N. Garcia
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
                          STATE v. BUSTILLOS
                          Decision of the Court



                      MEMORANDUM DECISION

Chief Judge Michael J. Brown delivered the decision of the Court, in which
Judge Peter B. Swann and Judge Patricia A. Orozco1 joined.


B R O W N, Chief Judge:

¶1            Manuel Bustillos appeals his convictions and sentences for
several offenses relating to molestation, sexual conduct with a minor, and
public indecency for acts relating to his minor daughter. For the following
reasons, we affirm.

                             BACKGROUND

¶2            Bustillos began sexually abusing D.B., his oldest daughter,
when she was about 10 years old. On one such occasion, Bustillos took D.B.
alone into a bedroom and placed his mouth on her vagina. The sexual
contact was interrupted when D.B.’s brother briefly opened the door. After
each occurrence of abuse, Bustillos told D.B. to not tell anyone because she
would be in trouble. On at least one occasion, D.B. also noticed Bustillos
looking at her through her bedroom window.

¶3             In the summer of 2013 (when D.B. was 15 years old), after she
had learned about sexual assault through a school program and noticed
that Bustillos began to look at and treat her younger sister, N.B., the same
way he treated her, D.B. called the police. When the police arrived, they
interviewed D.B. and N.B., as well as their brother and mother. Police also
interviewed Bustillos, who denied having sexual intercourse with D.B., but
admitted that he touched her breasts once and her vagina twice when she
was 13 years old. Relating to misconduct with D.B., the State charged
Bustillos with four counts of sexual conduct with a minor, one count of
molestation of a child, and one count of public sexual indecency. Regarding
N.B., the State charged Bustillos with one count of molestation of a child.

¶4          Approximately one week before trial, the State moved to
admit evidence of other acts under Arizona Rule of Evidence (“Rule”)


1      The Honorable Patricia A. Orozco, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.


                                     2
                          STATE v. BUSTILLOS
                          Decision of the Court

404(b) and (c). The State sought to admit evidence of a police interview of
Bustillos’s son received the day before, in which the son alleged that more
than five years earlier, he walked into his parents’ room to find D.B. alone
with Bustillos, who was bent down, pulling the elastic band of the front of
her shorts outward, and “looking down” in her shorts. Bustillos’s son
described what he saw, including the shorts D.B. was wearing, where the
two were standing in relation to the bedroom door, and that Bustillos
looked up at him when he opened the door.

¶5            The son also stated that he saw Bustillos look through D.B.’s
bathroom window while she showered “plenty of times” and that he saw
Bustillos looking through D.B.’s bedroom window many times as well. He
knew D.B. was in the bathroom when Bustillos watched through the
window because the son would go inside and knock on the door to see who
was in there. The son explained that Bustillos would do this by standing
on a brick outside the windows. The son denied having seen Bustillos do
anything to his other sister, though. When asked by the interviewing
detectives why he was only now disclosing this information, the son
responded that he was tired of holding it in.

¶6            This evidence, the State argued, showed Bustillos’s aberrant
sexual propensity. The State argued that the evidence was admissible
under Rule 404(c) because the other acts had an evidentiary value that
outweighed the danger of unfair prejudice, they occurred in the proximate
time of the charged offenses, and were similar to the charged offenses. The
State also argued that the other acts evidence was admissible under Rule
404(b) as evidence of absence of mistake or accident.

¶7             In response, Bustillos requested to interview his son, as well
as his wife and daughter, N.B., to corroborate the reliability of the son’s
allegations. He also requested an evidentiary hearing to determine the
reliability of the three witnesses. Bustillos argued that the nature of the
interview was not one that implicated victim’s rights protections, but
instead was for an evidentiary hearing to determine the credibility and
reliability of the proffered evidence. Because evidence cannot be
introduced under Rule 404 unless clear and convincing, Bustillos argued,
he had a right to subpoena witnesses who do not have the right to refuse,
and that not being permitted to conduct those interviews would prejudice
him.

¶8            The State objected, arguing that as victims (or the victims’
guardian), neither Bustillo’s wife nor N.B. had to consent to an interview,
and that Bustillos’s request was an attempt to obtain information irrelevant


                                     3
                            STATE v. BUSTILLOS
                            Decision of the Court

to the Rule 404 motion and in violation of victims’ rights laws. The State
also argued that only it carried the burden of proof to prevail on its motion,
not the defendant. Because the State believed the son’s interview to be
“self-explanatory,” it intended to introduce only the interview and
previously admitted evidence for the court’s consideration. Therefore, the
State explained, it did not intend to call any witnesses to testify regarding
the motion, so Bustillos had no right to call witnesses. The State agreed,
however, to make the son available for an interview if needed.

¶9             Initially, the court agreed that while the witnesses could
refuse an interview with Bustillos relating to the Rule 404 hearing, Bustillos
could subpoena them and call them as witnesses. Nevertheless, the trial
court instructed that if Bustillos interviewed his son and afterward felt that
he needed additional information, he could make the request again. The
court did not make a ruling on the motion at that time, however, accepting
the State’s request that it first read State v. LeBrun, 222 Ariz. 183 (App. 2009),
for the proposition that neither live testimony or an evidentiary hearing is
required.

¶10           After taking the matter under advisement, the trial court
denied Bustillos’s request for interviews of his wife and N.B. and an
evidentiary hearing. The court ruled that Rule 404 required the State to
present sufficient evidence “from which the court could determine that a
jury would be able to make a finding of clear and convincing evidence that
the alleged incidents occurred.” Because of the nature of the State’s burden,
the court concluded that “this is not an opportunity for the defense to
cross-examine the State’s evidence or to present contrary evidence. I simply
need to make the threshold finding . . . .” Bustillos, however, did interview
his son for purposes of the Rule 404 motion.

¶11             At the subsequent oral argument on the motion during the
first day of trial, the State argued that each of the three necessary elements
under Rule 404(c) were met. Bustillos argued that the proffered evidence
was not reliable because the son had previously denied any allegation that
Bustillos had done anything wrong, and only now, after living with his
mother, D.B., and N.B., felt pressured to state otherwise. Bustillos also
argued that his son’s statement that he walked in on Bustillos pulling D.B.’s
pants outward was inconsistent with D.B.’s recounting of the incident. The
trial court noted it intended to rule on the motion the next morning, and in
the meantime the court would listen to the interview recordings of the son’s
interview with the police detectives as well as defense counsel’s interview
of the son.



                                        4
                            STATE v. BUSTILLOS
                            Decision of the Court

¶12           Before trial the next day, the court explained that although it
had listened to the son’s interview with the detectives and read transcripts
of Bustillos’s, N.B.’s, and D.B.’s interviews, it had not yet had the
opportunity to finish listening to the son’s interview conducted by defense
counsel. Without objection from either party, the court started the trial and
heard testimony from D.B. After she testified, the court determined that
the other acts were admissible under Rule 404(c), explaining as follows: (1)
based on the son’s statements, “clear and convincing evidence from which
the jury could determine that each of these acts were committed” existed;
(2) each of the acts “indicate an [aberrant] sexual propensity;” and (3)
admission of the other acts evidence would not be unduly prejudicial
because they were contemporaneous and involved the same victim.
Additionally, the court considered that Bustillos had admitted to
committing several sexual acts against the victim. The trial court also found
that the statements were admissible under Rule 404(b) to prove motive,
intent, and lack of mistake.

¶13           After a 16-day trial, the jury convicted Bustillos of each
charged offense and found that each count of sexual conduct with a minor
occurred when D.B. was under 15 years old.2 The trial court then sentenced
Bustillos to the presumptive terms for each conviction. Bustillos timely
appealed.

                                DISCUSSION

       A.     Admission of Other Acts Evidence

¶14             Bustillos first argues that the trial court applied the incorrect
standard of proof in determining whether to admit the son’s interview
under Rule 404(b) and (c). He also argues that because of this error, the trial
court denied him a fair hearing by denying his request to interview his wife
and N.B. and to otherwise present evidence at an evidentiary hearing
regarding the admissibility of his son’s statements. We review de novo the
trial court’s interpretation of the rules of evidence. State v. Steinle, 239 Ariz.
415, 417 ¶ 6 (2016). We also review constitutional questions de novo. State
v. Harrod, 218 Ariz. 268, 279 ¶ 38 (2008). Because the trial court applied the
incorrect standard to admit Bustillos’s son’s statements under Rule 404(c),
the court erred.




2     The count involving N.B. was severed from the counts involving
D.B. At sentencing, the court dismissed that count without prejudice.


                                        5
                           STATE v. BUSTILLOS
                           Decision of the Court

¶15            Generally, “evidence of other bad acts is not admissible to
show a defendant’s bad character.” State v. Aguilar, 209 Ariz. 40, 42 ¶ 9
(2004). However, Rule 404(b) allows evidence of other crimes to be
admissible if offered to prove “motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.” Ariz. R. Evid.
404(b). Similarly, in cases where the defendant is charged with a sexual
offense, Rule 404(c) permits evidence of other bad acts to be admissible if
the evidence is “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).

¶16            Before admitting evidence under either Rule 404(b) or (c), the
trial court must make specific findings. First, the court must find by clear
and convincing evidence that the defendant committed the other act. State
v. Goudeau, 239 Ariz. 421, 444 ¶ 59 (2016). 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 commit the charged sexual offense.” Id. 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, or other factors
considered in Rule 403. Id. In making its final determination, the trial court
must also consider the listed factors in Rule 404(c)(1)(C)(i)–(viii). Id.

¶17          Here, the trial court made the latter two findings on the
record. The court found that each of the acts described in Bustillos’s son’s
interview—namely peering through the bedroom and bathroom windows
and seeing Bustillos “look down” D.B.’s shorts—indicated an aberrant
sexual propensity. The court also found that admitting the interview did
not present a danger of unfair prejudice because the acts occurred
contemporaneously with the charged offenses and involved the same
victim.

¶18            Regarding the first finding required under Rule 404(c),
however, the trial court incorrectly stated that it had to find that the State
presented clear and convincing evidence “from which the jury could
determine that each of these acts were committed.” Arizona’s rule of
evidence and the case law interpreting it requires that the court itself find
that the State presented “clear and convincing evidence that the defendant
committed the other act” as a prerequisite for admission at trial. Goudeau,
239 Ariz. at 444 ¶ 59; see also State v. James, 1 CA-CR 2015-0447, 2017 WL
1174319, at *4 ¶ 17 (Ariz. App. Mar. 29, 2017). The court failed to make that
express finding here. This error may be harmless, though, if the record
contains substantial evidence that the requirements of admissibility were


                                      6
                           STATE v. BUSTILLOS
                           Decision of the Court

met. Aguilar, 209 Ariz. at 50 ¶ 37. In determining whether the error was
harmless, we may consider the entire trial record. State v. Vega, 228 Ariz.
24, 29 ¶ 18 (App. 2011). Error is harmless if the guilty verdict rendered was
surely not attributable to the error, and the State bears the burden of
showing the error was harmless. Id. at ¶ 14.

¶19            The record supports the necessary finding that clear and
convincing evidence established that Bustillos committed the other acts
described in the son’s statements to the detectives. The son described in
detail the one instance that he walked into a bedroom and saw Bustillos
alone with D.B., holding her shorts out, and “looking down” them. The son
explained what his sister was wearing, how Bustillos was bent over next to
her, where they were in relation to the door, and that Bustillos looked up at
him when he opened the door. The son also provided a time frame for the
incident that was consistent with the years that Bustillos was alleged to
have committed the crimes against D.B. Similarly, Bustillos’s son described
that he saw Bustillos multiple times peering through the bathroom window
while D.B. was in the shower as well as looking through her bedroom
window. He stated that he knew D.B. was in the shower during those times
because he would knock on the bathroom door to hear who would respond.
These first-hand accounts of what he saw are sufficient to satisfy Rule
404(c)’s clear and convincing requirement. Cf. Vega, 228 Ariz. at 29 n.4 ¶ 19
(noting that a victim’s testimony is a sufficient basis on which to conclude
by clear and convincing evidence that the incident occurred).

¶20           Bustillos argues that the trial court’s misunderstanding of the
proper burden under Rule 404(c) led the court to deny him the opportunity
to present his own evidence at an evidentiary hearing. He posits that by
not being allowed to interview his wife and N.B., he could not challenge the
State’s evidence or the witnesses’ credibility by subpoenaing and calling
them to testify. But the trial court’s error in not making the first specific
finding under Rule 404(c) did not cause the prejudice that Bustillos
identifies because the court is not required to hold an evidentiary hearing
to determine a witness’s credibility.

¶21           Neither Rule 404(b) nor (c) expressly require that the trial
court hold an evidentiary hearing before making its findings regarding the
admissibility of other acts evidence. See Ariz. R. Evid. 404(b), (c). Instead,
the circumstances of the case and the proffered evidence dictate whether an
evidentiary hearing, including the ability to call witnesses to the stand to
determine their credibility, is needed. See LeBrun, 222 Ariz. at 187 ¶ 13. A
defendant is entitled to such an evidentiary hearing and opportunity to call
witnesses when the record shows a dispute of material fact that would


                                      7
                           STATE v. BUSTILLOS
                           Decision of the Court

necessitate the presentation of additional evidence. James, 2017 WL
1174319, at *5 ¶ 23. This determination is for the trial court to make, and is
not required solely because a defendant requests one, “or because
confrontation and cross-examination are the best tools for developing facts,
exposing inconsistencies, and determining witness credibility.” Id. at ¶ 24.

¶22            As stated above, the interview that the trial court reviewed
sufficiently supported the trial court’s ruling of admissibility because it
satisfied Rule 404(c)’s requirement of clear and convincing evidence that
Bustillos committed the alleged acts. The trial court listened to the recorded
interview, from which it heard the son’s first-hand account of what he
observed. Id. at ¶ 22 (stating that a recording of an interview captures the
witness’s demeanor and features of speech like pitch, intonation, and
pauses, that can help the court determine credibility). The court also
considered that Bustillos himself admitted to committing some sexual
misconduct with D.B. Thus, the record before the court at the time it made
its ruling did not raise a question of witness credibility related to the other
acts or a dispute of material fact requiring an evidentiary hearing, even if
Bustillos called the son’s reliability into question. See id. at ¶ 23 (finding
that the defendant’s claims that the witness’s testimony was not reliable
because she initially denied the defendant’s wrongdoing and refused to
participate in the investigation did not call her claims into question for
purposes of Rule 404(c)). Had the court made the appropriate express
finding, this record would be more than sufficient to support it. The court’s
decision to admit the evidence implies that it believed the reports, and the
technical error in the language of its ruling does not require reversal. See
Ariz. Const. art. VI, § 27 (“No cause shall be reversed for technical error in
pleadings or proceedings when upon the whole case it shall appear that
substantial justice has been done.”).

¶23           Citing Aguilar, Bustillos counters that credibility
determinations cannot occur when the court neither hears from the victims
or is presented with their testimony. However, Bustillos’s reliance on this
case is misplaced. In Aguilar, the State moved to admit evidence of other
sexual assaults against other adult victims, which the defendant admitted
had occurred but maintained they were consensual. 209 Ariz. at 41 ¶¶ 3–4.
This evidence, though, was limited only to grand jury transcripts,
pleadings, and oral argument—not any testimony from the victims alleging
these acts from which the court could determine credibility. Id. at 49–50 ¶
33. Here, Bustillos’s son—not his victims—was the one reporting the other
acts. The court had sufficient information from which it could properly
determine the reliability of the son’s recent disclosure about Bustillos’s
conduct. Thus, testimony from the son, N.B., and their mother was not


                                      8
                            STATE v. BUSTILLOS
                            Decision of the Court

required to be able to determine whether the son’s disclosure could be
offered as evidence at trial under Rule 404. The court did not err by denying
Bustillos’s request to interview N.B. and her mother or hold an evidentiary
hearing at which he could examine them.

       B.     Denial of Request to Remove Juror 8

¶24           Roughly two weeks into trial, a juror reported to the bailiff
that Juror 8 had violated the trial court’s instructions by speaking about the
case outside of the courtroom. The reporting juror then explained to the
court that Juror 8 had made comments expressing her opinions on
witnesses and their credibility on three occasions, including once on the
juror bus. The court interviewed each of the other jurors, asking whether
they had spoken or overheard anyone speak about the case. Each juror,
including Juror 8, denied having done or heard so. Juror 8 also stated that
she was keeping an open mind and not making any decisions about the case
yet. Nevertheless, based on the reporting juror’s specific and detailed
account of what was allegedly said, Bustillos asked the court to remove
Juror 8 for cause. The State disagreed that the facts supported a removal
for cause because Juror 8 expressly denied having made any comments and
no other juror reported having heard any other juror talk about the case.
The court agreed that it did not have a sufficient basis to remove the juror
and denied Bustillos’s request.

¶25             Bustillos argues that the trial court erred by not removing
Juror 8 for cause. We review the trial court’s findings regarding a juror’s
ability to be fair and impartial for an abuse of discretion. State v. Cota, 229
Ariz. 136, 147 ¶ 40 (2012). In assessing a juror’s fairness and impartiality,
the trial court is in the best position to observe the juror and judge the juror’s
credibility. State v. Hoskins, 199 Ariz. 127, 139 ¶ 37 (2000). The party
challenging a juror carries the burden of establishing that the juror could
not be fair and impartial. State v. Trostle, 191 Ariz. 4, 13 (1997).

¶26           The trial court must remove a juror for cause “when there is
reasonable ground to believe that [the] juror cannot render a fair and
impartial verdict.” Ariz. R. Crim. P. 18.4(b). When the court becomes aware
of possible juror misconduct, it should investigate as it deems warranted.
Cota, 229 Ariz. at 150 ¶ 74. The court need not remove a juror for cause if
the juror ultimately assures the court that he or she can be fair and
impartial, despite having expressed serious misgivings about the ability to
be unbiased. State v. Purcell, 199 Ariz. 319, 323 ¶ 8 (App. 2001).




                                        9
                           STATE v. BUSTILLOS
                           Decision of the Court

¶27            The trial court did not abuse its discretion by declining to
remove Juror 8. When asked by the court, Juror 8 denied having spoken
about the case with any other juror, even when specifically confronted with
the allegations made by the other juror. And, contrary to Bustillos’s
argument, Juror 8’s failure to admit to any misconduct was not the only
factor the court took into consideration. The court discussed the situation
with the other jurors individually to inquire whether they had spoken to
anyone about the case or heard anyone, including other jurors, talk about
the case outside of the courtroom. Each of the jurors responded that they
had not heard any jurors speaking about the case. Each juror also relayed
that they had not formed any opinions about the case, were keeping an
open mind, and remained fair and impartial. Juror 8 also stated that she
had not formed any opinions about the case, was keeping an open mind,
and assured the court that she remained fair and impartial. Because no one
else stated that they heard any other jurors make inappropriate comments,
even on the juror bus, and each juror assured the court of his or her
impartiality, the court acted within its discretion by denying the motion to
remove Juror 8. See Hoskins, 199 Ariz. at 141 ¶ 48 (“Prejudice will not be
presumed but must appear affirmatively from the record.”).

       C.     Mitigating Circumstances

¶28            At sentencing, the State recommended that Bustillos be
sentenced to the presumptive term for each conviction, noting that no
aggravating factors had been presented to a jury. The State further argued
that no mitigating factors warranting sentences lower than the presumptive
existed because Bustillos knew what he was doing and nothing excused his
actions. Bustillos countered that “overwhelming mitigation” existed and
should have been considered to reduce his sentences. Among those factors
were Bustillos’s age, the “chaotic, dysfunctional environment” he grew up
in, lack of formal education, lower mental and emotional function,
cognitive deficits, and absence of felonies. The trial court then explained
that it had considered the mitigating factors Bustillos outlined, but believed
that “none of those factors provide any explanation or excuse for [D.B.’s]
testimony about what you did to her.”

¶29           Bustillos argues that the trial court “improperly refused to
consider mitigation” when the court suggested there was no causal nexus
between mitigating circumstances and the offenses he committed. Because
Bustillos did not raise this argument in the trial court, we review for
fundamental error only. See State v. Carlson, 237 Ariz. 381, 400 ¶ 78 (2015)
(noting that because the defendant failed to object at trial to the imposition
of consecutive sentences, his claim that such sentences were illegal would


                                     10
                           STATE v. BUSTILLOS
                           Decision of the Court

be reviewed for fundamental error); but see State v. Vermuele, 226 Ariz. 399,
402 ¶ 9 (App. 2011) (“Because a defendant cannot forfeit an opportunity
that the defendant does not have, her failure to challenge the sentence at
the sentencing hearing cannot be fairly characterized as a forfeiture or
waiver.”).3 To prevail under this standard of review, Bustillos must
establish that fundamental error exists and that the error caused him
prejudice. State v. Henderson, 210 Ariz. 561, 567 ¶ 20 (2005). Because the
court properly considered the mitigating factors but nevertheless found
that they did not warrant a more lenient sentence, we find no error.

¶30           When imposing a sentence for felony offenses, the trial court
must consider certain enumerated mitigating circumstances and whether
those circumstances are “sufficiently substantial to justify” a lesser
sentence. A.R.S. § 13–701(E), (F). Unless the trial court finds that mitigating
circumstances (or aggravating circumstances) are sufficient to conclude
otherwise, the court must impose the presumptive sentence. State v. Ovind,
186 Ariz. 475, 478 (App. 1996). A causal nexus between the crime and the
mitigating factors is not required for the court to consider them in lessening
a sentence, but the lack of such nexus can be used to lessen the effect of the
mitigation. State v. Armstrong, 218 Ariz. 451, 465 ¶ 74 (2008).

¶31            The record here does not support Bustillos’s suggestion that
the trial court improperly required him to establish a causal nexus for the
mitigating circumstances he urged the court to consider. Instead, the court
declined to deviate from presumptive sentences because it implicitly
concluded that the mitigating factors were not sufficiently compelling to
warrant lighter sentences. The court explained that it considered Bustillos’s
age, rough upbringing, and cognitive deficits, but believed that none of
these explained or justified the repeated acts that D.B. described in her
testimony, which the court found credible. Bustillos was not entitled to a
mitigated sentence merely because he presented mitigating factors, as a trial
court may impose the presumptive sentence even if it finds mitigating
factors exist but no aggravating factors. State v. Olmstead, 213 Ariz. 534, 535
¶ 5 (App. 2006) (“[E]ven when only mitigating factors are found, the
presumptive term remains the presumptive term unless the court, in its
discretion, determines that the amount and nature of the mitigating
circumstances justifies a lesser term.”). Thus, the court did not err, much

3       Whether Bustillos was required to object at sentencing to preserve
this issue for appeal could be subject to the analysis in Vermuele, 226 Ariz.
at 399 ¶ 6. However, because we find no error, fundamental or otherwise,
we need not decide whether Bustillos forfeited his rights as contemplated
in Henderson or whether Vermuele applies.


                                      11
                         STATE v. BUSTILLOS
                         Decision of the Court

less fundamentally, when it declined to deviate from imposing
presumptive sentences based on the mitigating factors it considered.

                            CONCLUSION

¶32          For the foregoing reasons, we affirm Bustillos’s convictions
and sentences.




   -




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




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