                             NOTICE: NOT FOR PUBLICATION.
      UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
             LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                       IN THE
                ARIZONA COURT OF APPEALS
                                   DIVISION ONE


                          STATE OF ARIZONA, Appellee,

                                           v.

                    CHRISTOPHER HENDERSON, Appellant.

                                No. 1 CA-CR 11-0389
                                   FILED 12-30-14


              Appeal from the Superior Court in Maricopa County
                         No. CR2009-132172-001DT
                  The Honorable Susanna C. Pineda, Judge

                         REVERSED AND REMANDED


                                      COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

Gail Gianasi Natale, Attorney at Law, Phoenix
By Gail Gianasi Natale
Counsel for Appellant
                             STATE v. HENDERSON
                              Decision of the Court



                          MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the Court, in which Judge
Kenton D. Jones and Judge Michael J. Brown joined.


S W A N N, Judge:


¶1            Christopher Henderson appeals his convictions for two counts of
sexual assault. We now vacate those convictions and remand for a new trial. We
hold that the trial court abused its discretion when it admitted “other-act
evidence” inconsistent with Ariz. R. Evid. 404(b).

                    FACTS AND PROCEDURAL HISTORY

¶2            The state charged Henderson with committing multiple sexual
offenses against two victims in April and May of 2009. The trial court severed the
cases and tried each victim’s case separately. In the first trial, the jury acquitted
Henderson of three of the four charges, and the trial court dismissed the remaining
charge after the jury was unable to reach a verdict. In the second trial, the jury
convicted Henderson of two counts of sexual assault but acquitted him of sexual
abuse, attempted sexual assault and kidnapping. The jury was presented with
evidence of the following facts.

¶3            The victim’s attacker approached the victim as she stood at a bus
stop and told her that he was from out of town and needed directions.1 He claimed
he had a device in his car that the victim could use to show him directions, and the
victim followed him to the car. When they arrived, he asked the victim for a “hand
job.” The victim declined and said she had to leave. He then grabbed the victim,
told her he would not hurt her if she cooperated, and ordered her into the car.

¶4             The attacker drove the victim to a different location. He began to
touch the victim’s legs and breasts. As he did so, he told her he was not a police
officer. A detective testified that this was significant because it suggested the
attacker believed the victim was a prostitute and that he was familiar with
methods prostitutes and their solicitors use to prove they are not undercover
officers. To identify Henderson as the attacker, the state introduced evidence that

1      We view the evidence in the light most favorable to sustaining the
convictions and resolve all reasonable inferences against the defendant. State v.
Karr, 221 Ariz. 319, 320, ¶ 2, 212 P.3d 11, 12 (App. 2008).


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                             STATE v. HENDERSON
                              Decision of the Court

Henderson had solicited the services of a prostitute on one occasion more than a
year before the date of the incident.

¶5             After he told the victim he was not an officer, the attacker ordered
the victim into the back seat and told her to pull down her pants. When she
resisted, he choked her. The victim eventually pulled down one of her pant legs
and the attacker digitally penetrated her. The attacker then ordered the victim to
turn around so he could engage in anal sex with her. When she resisted, he shoved
her down and digitally penetrated her a second time. The trial court allowed the
state to introduce evidence of what it alleged to be Henderson’s interest in anal sex
in an attempt to identify him as the attacker. However, the only evidence on this
point was from Henderson himself, who testified he had no particular interest in
anal sex, although he would be willing to engage in it.

¶6            The state collected multiple samples of physical evidence, including
large portions of upholstery from Henderson’s car. It also obtained the victim’s
underwear. Spermatozoa from at least two males was identified on all of the
pieces of upholstery. Henderson, however, could not be positively identified as
the source of any of the spermatozoa -- indeed, he was excluded as a possible
match from the three sperm samples. He was also excluded as a contributor from
one of the other three DNA samples. No DNA from the victim was found
anywhere in the car, despite her testimony that she had been struggling with her
attacker on both the front and back seats. The state also introduced evidence that
the digital penetration left behind particles of Y chromosome DNA in the victim’s
underwear. The analyst could neither identify nor eliminate Henderson as a
contributor to this DNA.

¶7             After digitally penetrating the victim, the attacker ordered her back
into the front seat of the vehicle to perform oral sex on him. When the attacker
moved to get into the front seat, the victim escaped and the attacker immediately
drove away. The victim observed the license plate number and called 911
moments later. The vehicle matching that license plate number belonged to
Henderson’s mother, which led police to Henderson.

¶8            When shown pictures of Henderson’s vehicle at trial, the victim
testified she did not recognize it. Another witness who saw the victim exit the
vehicle in which the incidents occurred also testified that the pictures of
Henderson’s vehicle did not depict the vehicle she saw. The victim told the police
her attacker drove a Range Rover but testified at trial her attacker’s car was a
“brownish” Chevrolet Tahoe. Henderson’s mother’s car -- the car matching the
license number -- was neither a Range Rover nor a brownish Tahoe, but a greenish
Hyundai crossover vehicle.




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                              STATE v. HENDERSON
                               Decision of the Court

¶9             When the victim was initially shown a photographic lineup, she
immediately identified Henderson as her assailant and said that on a scale of one
to ten, her degree of certainty was a ten. At the first victim’s trial, the second victim
also identified Henderson in the courtroom. Before she testified, however, the
prosecutor brought her into the courtroom during a break in the proceedings,
when the judge and Henderson’s attorney were absent but Henderson was
present, and asked the second victim if she recognized anyone in the courtroom.
She answered “No.” The prosecutor then asked her if Henderson looked familiar
to her, and she again answered “No.” The prosecutor then said, “Just do your
best.” When asked about this incident in the second trial, the second victim
claimed she could have identified Henderson, but did not because she did not
want to look at him. Henderson and another witness testified that the victim had
looked directly at Henderson several times during the encounter at the first trial.

¶10            There were significant discrepancies between the victim’s
descriptions of her attacker and Henderson’s actual appearance. The victim
testified that her attacker had multiple tattoos on both forearms in black ink.
Henderson showed his arms to the jury: he had only one tattoo on his arm and it
was in blue ink. When asked if there was any way she could be mistaken about
her attacker’s tattoos, the victim said “No.” There were also discrepancies
between her description of her attacker’s hair and eye colors, which did not match
Henderson’s hair and eye colors.

¶11            At the first trial, the victim testified consistently throughout direct
examination that she remembered almost nothing about the incident. She testified
that she could not remember how or why she got into the car, she did not
remember how her attacker was dressed, and in fact, didn’t “remember much of
this at all.” However, at the second trial, the victim testified in detail as to exactly
what happened on the day of the incident, and that her attacker was wearing a
brown shirt and plaid shorts. A detective claimed to have found clothing in
Henderson’s residence that matched the clothing the victim described, yet the state
never had the victim identify any of that clothing during her testimony.

¶12            There was evidence both to support and to call into doubt
Henderson’s alibi defense. Henderson claimed he was at work at the time of the
incident. The first group of documents obtained from Henderson’s employer did
not contain any records that showed he had worked on the date of the incident.
However, Henderson introduced a second set of documents from his employer
indicating he was at work on the date of the incident. This second group of
documents came to light only after Henderson and his mother were overheard
discussing the need to create an alibi in recorded telephone conversations while
he was in jail. These same conversations also included discussions regarding their
need to wait and learn the date and time of the incident before they created the


                                           4
                              STATE v. HENDERSON
                               Decision of the Court

alibi. Henderson’s manager, a convicted felon, testified that if Henderson was on
the “sales sheet” for the date of the incident, he worked that day for his full shift
of 10:00 a.m. to 2:45 p.m. and did not leave early. Even so, neither Henderson’s
manager nor another employee who worked that day had any independent
recollection of Henderson working on the date of the incident.

¶13         Ultimately, the jury convicted Henderson of two counts of sexual
assault and acquitted him of sexual abuse, attempted sexual assault, and
kidnapping. Henderson now appeals.

                                   DISCUSSION

I.     PRIOR-ACT EVIDENCE

¶14           Evidence of prior acts is inadmissible to prove the character of a
person and action in conformity therewith, but it may be admissible if relevant
and admitted for another purpose, such as to prove motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. State v.
Van Adams, 194 Ariz. 408, 415, ¶ 20, 984 P.2d 16, 23 (1999). To prove Henderson’s
identity as the attacker, the state introduced evidence that (A) on one occasion,
Henderson had previously engaged the services of a prostitute, and (B) that
Henderson had an interest in anal sex. The trial court’s admission of this evidence
violated Ariz. R. Evid. 404(b).

       A.     Evidence of Previous Interaction with a Prostitute

¶15           Because Henderson moved to preclude evidence that he had
previously engaged the services of a prostitute, we review the trial court’s
admission of that evidence for abuse of discretion. Van Adams, 194 Ariz.at 415, ¶
20, 984 P.2d at 23.

¶16             “The identity exception to Ariz. R. Evid. 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, 863 P.2d 881, 889 (1993) (citation
omitted). That the prior act and the charged offense are of “the same nature” is
not sufficient. Id. To admit evidence of another act to prove identity, the “pattern
and characteristics” of the prior act and the charged offense “must be so unusual
and distinctive as to be like a signature.” Id. (emphasis added) (quotation omitted).

¶17          Here, the prior act is only similar to the charged offenses to the extent
they each involve sexual conduct, and are far from distinctive. The evidence
showed merely that Henderson engaged the services of a prostitute one time more


                                          5
                             STATE v. HENDERSON
                              Decision of the Court

than a year before the incident -- nothing more. There was no evidence to suggest
that Henderson’s prior engagement with a prostitute was in any way similar to
the circumstances of the charged offenses. Further, there was nothing about this
reported encounter to suggest Henderson had come to know from it how to prove
to a prostitute that he was not a police officer.2 It did not demonstrate a “pattern
and characteristic” that was “so similar, unusual, and distinctive” that one could
reasonably find they “bear the same signature” as the charged offenses. The
evidence the court admitted, therefore, does not fall within the scope of the
identity exception to Rule 404(b) --in fact it exemplifies the type of character
evidence that the Rules of Evidence prohibit.

¶18            The trial court erred when it allowed the state to introduce evidence
of Henderson’s previous interaction with a prostitute to prove his identity as the
attacker. We conclude that the error was not harmless. “[E]vidence of [a] crime[
] other than th[at] for which [a] defendant is being tried is not admissible because
of the questionable relevancy of the evidence and prejudice to [the] defendant.”
State v. Eisenlord, 137 Ariz. 385, 394-95, 670 P.2d 1209, 1218-19 (App. 1983). The
state argues that any error committed was not prejudicial because the court gave
a limiting instruction and “there was overwhelming evidence of [Henderson’s]
guilt on the remaining charges.” We disagree. Evidence of Henderson’s guilt was
legally sufficient, but conflicting. And the fact that the jury acquitted Henderson
of several charges belies the notion that the evidence was overwhelming.

      B.     Evidence of Henderson’s Alleged Interest in Anal Sex

¶19          At trial, the following exchange took place:

      THE STATE: I want to put one additional thing on record. I want to
      put the defense on notice that I will be going after him as to his
      interest in anal sex to which he did testify to in his last trial. That he
      does have an interest in it, although it’s not a fetish, in his own
      words, which goes to identity.

      THE COURT: For identity purposes only. . . .

¶20          Ariz. R. Evid. 404(c) allows the introduction of evidence of “aberrant
sexual propensity” in certain cases upon the entry of specific predicate findings by


2      If, in fact, the method asserted is that by which parties to prostitution
confirm they are not law enforcement, then anyone having ever engaged a
prostitute, or anyone that had ever discussed the issue with someone who had
previously engaged a prostitute, could have, potentially, come to understand that
to be the case, and the act would not be unique to Henderson.


                                          6
                             STATE v. HENDERSON
                              Decision of the Court

the trial court. No such findings were made here, and the state did not attempt to
invoke Rule 404(c).

¶21           Instead, it appears that the court treated the proffered evidence as
suitable for proof of identity under Rule 404(b). This was error. A defendant’s
generic sexual preferences generally are not “other crimes, wrongs, or acts” for
purposes of Rule 404(b). See State v. Featherman, 133 Ariz. 340, 344, 651 P.2d 868,
872 (App. 1982) (“Evidence that the defendant has committed certain bad acts . . .
is generally inadmissible . . . . However, the relevance of a prior bad act may
outweigh the prejudice to the defendant ‘if the illegal conduct does more than
discredit the character of the defendant.’”) (citation omitted). And here, the
evidence that Henderson may have had a general, as yet unrealized but inchoate,
curiosity about anal sex did not show anything “so unusual and distinctive” as to
constitute a “signature.” Stuard, 176 Ariz. at 597, 863 P.2d at 889.

¶22            Because Henderson did not object to the admission of evidence that
he had an interest in anal sex for identity purposes, we review the court’s decision
for fundamental error. See State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627
(1991). Fundamental error is “‘error going to the foundation of the case, error that
takes from the defendant a right essential to his defense, and error of such
magnitude that the defendant could not possibly have received a fair trial.’” State
v. Garcia, 220 Ariz. 49, 50, ¶ 2, 202 P.3d 514, 515 (App. 2008) (citation omitted). We
conclude that the admission of the evidence was error, though it did not rise to the
level of fundamental error. We therefore do not reverse on this ground, but we
have addressed the issue to provide guidance on remand.

II.    THE DNA EVIDENCE ON RETRIAL

¶23            The state introduced evidence regarding a sample of DNA found in
the victim’s underwear that a crime lab analyst testified “matched” that of
Henderson -- at least to the extent that she was not able to exclude Henderson as
the source. The DNA analyst testified that the Phoenix crime lab tests two
different types of DNA: (1) autosomal testing, which tests 16 different locations
that men and women both share; and (2) Y chromosome testing, which tests 17
different locations that are only found in men, using each individual’s Y-STR
profile. She testified that there were non-sperm and sperm samples of DNA found
in the victim’s underwear. The autosomal test results from the victim’s underwear
came back “matching” only the DNA profiles of the victim and her boyfriend, the
two having engaged in sex on the day of the attack. The Y chromosomal non-
sperm testing revealed that portions of the samples purportedly “matched”
Henderson’s profile, and portions “matched” the victim’s boyfriend, meaning Y
chromosome DNA identifiers for each were found in the victim’s underwear.
However, using the “counting method,” which simply tabulates how many times


                                          7
                             STATE v. HENDERSON
                              Decision of the Court

a particular DNA profile has been seen in a national DNA database, the analyst
testified that Henderson’s “particular profile” would be expected to also be seen
in approximately one in every 530 Hispanic males, one in every 640 African-
American males, and one in every 1300 Caucasian males. Meaning, “if we had a
room with 530 Hispanic males, the chances are that I would be able to find one
[person] that I would not be able to exclude from that mixture.”

¶24           The term “match,” when used in conjunction with such DNA
evidence, is potentially misleading, because it refers only to the congruity between
the points at which the test is made. Because the “match” does not refer to a
person’s entire genome, it is possible to misunderstand the term as a dispositive
finding that a specific person’s DNA was found at the scene, rather than a
conclusion with only statistical import.

¶25             Here, the statistical significance of the DNA findings was such that
a great number of individuals in the general area of the attack could have been
contributors. But as our supreme court observed in State v. Forde, 233 Ariz. 543,
561, ¶ 64, 315 P.3d 1200, 1218 (2014), even DNA results with such limited statistical
certainty “increase[ ] the probability” that the defendant was present. Such
evidence is therefore relevant. And even DNA evidence with relatively low
statistical significance may be admitted under Rules 702 and 403, “provided that
certain safeguards are afforded.” United States v. Morrow, 374 F. Supp. 2d 51, 63,
68 (D.D.C. 2005) (“[T]he best practice is to include statistical data on the frequency
of the matching characteristics in the relevant reference population when
admitting DNA evidence.”).

¶26          Because the DNA evidence introduced in this case satisfies the
minimal standards of Forde, we do not reverse on this basis. We note, however,
that the court should be vigilant -- especially in cases in which the statistical
probity of DNA evidence is low -- to ensure that the jury is afforded a full
opportunity to learn the scientific meaning of casual terms such as “match” in this
context.

III.   SUFFICIENCY OF THE EVIDENCE

¶27           Henderson argues the trial court should have reversed his
convictions based upon insufficiency of the evidence. He also argues the guilty
verdicts were contrary to the weight of the evidence and, therefore, the trial court
should have granted his motion for new trial pursuant to Ariz. R. Crim. P.
24.1(c)(1). We address these arguments despite our reversal of Henderson’s
convictions because the charges would have to be dismissed if the evidence at trial
were insufficient to support the verdict. See State v. Fulminante, 193 Ariz. 485, 492,
¶ 19, 975 P.2d 75, 82 (1999).



                                          8
                              STATE v. HENDERSON
                               Decision of the Court

¶28            “Reversible error based upon insufficiency of the evidence occurs
only where there is a complete absence of probative facts to support the
conviction.” State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (citation
omitted). The case must be submitted to the jury if reasonable minds can differ on
inferences to be drawn from the evidence introduced at trial. State v. Hickle, 129
Ariz. 330, 331, 631 P.2d 112, 113 (1981). And “[b]ecause a jury is free to credit or
discredit testimony, we cannot guess what they believed, nor can we determine
what a reasonable jury should have believed.” State v. Bass, 198 Ariz. 571, 582, ¶
46, 12 P.2d 796, 807 (2000). The evidence here was sufficient to permit a reasonable
jury to find beyond a reasonable doubt that Henderson committed both counts of
sexual assault.

¶29            Regarding the motion for new trial, “[m]otions for new trial are
disfavored and should be granted with great caution.” State v. Rankovich, 159 Ariz.
116, 121, 756 P.2d 518, 523 (1988). We review denial of a motion for new trial for
abuse of discretion. Id. On this record, the court could properly have exercised its
discretion to grant the motion, but we cannot find that it abused its discretion by
failing to do so. 3

                                  CONCLUSION

¶30         We reverse Henderson’s convictions and sentences for sexual assault
and remand for proceedings consistent with this decision.




                                         :jt




3      We need not address the other issues Henderson raises on appeal in light
of our reversal of his case. In further regard to the issues Henderson first presented
in his reply brief, we do not consider arguments or issues first raised in a reply
brief. See State v. Watson, 198 Ariz. 48, 51, ¶ 4, 6 P.3d 752, 755 (App. 2000).


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