                          NOTICE: NOT FOR PUBLICATION.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.

                STEVEN FREDERICK SKINNER, Appellant.

                             No. 1 CA-CR 11-0585
                              FILED 09-04-2014

            Appeal from the Superior Court in Yavapai County
                           P1300CR200901310
                  The Honorable Tina R. Ainley, Judge

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART AND
             VACATED IN PART AND REMANDED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Matthew H. Binford
Counsel for Appellee

C. Kenneth Ray II, Esq., Prescott
C. Kenneth Ray II
Counsel for Appellant
                           STATE v. SKINNER
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Diane M. Johnsen joined.


T H U M M A, Judge:

¶1            Appellant Steven Frederick Skinner appeals from his
convictions and resulting sentences for nine counts of sexual conduct with
a minor over age 15. Skinner argues the superior court committed reversible
error in: (1) precluding evidence that the victim was residing with an
investigating police officer and his daughter at the time of trial; (2)
permitting two police officers to testify that they did not believe Skinner
was being truthful with them during their investigation and (3) placing
Skinner on lifetime probation for two of the convictions. Affirming the
convictions, this court vacates the second probation grant and remands for
resentencing, because lifetime probation was not an available consequence
for the second of the two felony convictions at the time of that offense.

                FACTS1 AND PROCEDURAL HISTORY

¶2           In June 2008, the victim began living with Skinner and his
wife. On nine occasions from July 2008 through March 2009, Skinner
engaged in sexual conduct with the victim, a minor over age 15.

¶3            In March 2009, the victim went to California to live with her
Mother. In October 2009, the victim first revealed Skinner’s sexual conduct
with her by telling her Mother, and the police were notified. During a
recorded confrontation call, Skinner discussed his sexual conduct with the
victim. After additional investigation, as relevant here, Skinner was
charged with nine counts of sexual conduct with a minor over age 15 in
violation of Arizona Revised Statutes (A.R.S.) section 13-1405 (2014), each a




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




                                      2
                            STATE v. SKINNER
                            Decision of the Court

class 6 felony.2 The State moved in limine to preclude any evidence that, at
the time of trial, the victim was living in California with California law
enforcement Detective Wallace (who had set up the confrontation call and
contacted Arizona law enforcement based on the victim’s initial report) and
his daughter. After hearing oral argument, the superior court allowed
evidence that the victim was living out of state but precluded evidence that
she was living with Detective Wallace and his daughter, unless Detective
Wallace testified at trial.

¶4            At a six-day jury trial, the victim, Officer Boelts, Detective
Johnson and others testified, but Detective Wallace did not testify. After
deliberations, the jury found Skinner guilty on nine counts of sexual
conduct with a minor over age 15. Skinner was sentenced to presumptive,
concurrent prison terms of 1.75 years on seven of the convictions and was
given proper presentence incarceration credit. For the two other convictions
(with offense dates in 2008), Skinner was placed on lifetime probation. From
Skinner’s timely appeal, stayed for an extended period of time pending
resolution by the superior court of a related post-conviction relief petition,
this court has jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

                               DISCUSSION

I.     The Superior Court Did Not Err In Precluding Evidence That The
       Victim Was Living With Officer Wallace And His Daughter At The
       Time of Trial.

¶5             The superior court “has considerable discretion in
determining the relevance and admissibility of evidence,” and this court
will not reverse a ruling on a motion in limine absent an abuse of that
discretion. State v. Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d 1260, 1275 (1990).

¶6             Skinner argues evidence of the victim’s living situation at the
time of trial was relevant to establish that her “accusations presented . . . to
Det. Wallace were fabricated and/or maintained upon improper motives.”
Detective Wallace, however, did not testify at trial and, accordingly, did not


2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated. The jury found
Skinner not guilty of a tenth sexual conduct with a minor charge and two
counts of sexual assault. Pre-trial, two kidnapping counts were dismissed
without prejudice.



                                       3
                            STATE v. SKINNER
                            Decision of the Court

testify about the victim’s allegations disclosed to him. Moreover, the victim
did not begin to live with Detective Wallace and his daughter until after the
victim first disclosed the offenses to her Mother. Indeed, it appears that the
victim first met Detective Wallace in November or December 2009 in
connection with a confrontation call. Thus, the fact that the victim was
residing with Detective Wallace and his daughter during the trial held in
July and August 2010 was not relevant to whether the victim had fabricated
the allegations against Skinner nearly a year earlier. Nor has Skinner shown
how evidence of the victim’s living situation at the time of trial would have
demonstrated that her allegations against Skinner were “maintained upon
improper motives.” In short, Skinner has not shown that the superior court
abused its discretion in finding evidence “as to whom [the victim] may be
residing with is not relevant to the case.” See also Ariz. R. Evid. 402 (noting
irrelevant evidence is not admissible).

¶7            Even relevant evidence “may be excluded if its utility on a
legitimate basis is slight compared to the danger it poses of either
illegitimate use or waste of judicial time.” State ex rel. Hamilton v. City Court
of Mesa, 165 Ariz. 514, 518, 799 P.2d 855, 859 (1990) (citation omitted); see
also Ariz. R. Evid. 403. Although the superior court did not expressly
conclude that a danger of confusion of the issues would have substantially
outweighed any probative value of evidence of the victim’s living situation,
thereby justifying preclusion of the evidence, the court would not have
abused its discretion in so concluding. See State v. Dann, 205 Ariz. 557, 569
¶ 35, 74 P.3d 231, 243 (2003). Finally, Skinner was not prohibited from
challenging the victim’s credibility at trial through cross-examination and
otherwise; the superior court’s ruling only prohibited him from eliciting
testimony that the victim was living with Detective Wallace and his
daughter at the time of trial. For these reasons, Skinner has shown no
reversible error in the superior court’s ruling. See Ariz. R. Evid. 103(a).3

II.    The Superior Court Did Not Commit Fundamental, Prejudicial
       Error By Allowing Two Police Officers To Testify That They Did
       Not Believe Skinner Was Being Truthful With Them During Their
       Investigation.

¶8             Officer Boelts and Detective Johnson testified in the State’s
case-in-chief. Officer Boelts interviewed Skinner on December 17, 2009 and,

3As Skinner correctly notes, this court is limited to the record presented to
the superior court, notwithstanding the fact that, after trial, it was learned
that the victim and Detective Wallace had what Skinner describes as an
“illicit relationship.”


                                       4
                              STATE v. SKINNER
                              Decision of the Court

at trial, the State played portions of that recorded interview for the jury. The
prosecutor would play an unspecified portion of the interview, then stop
the recording and ask Officer Boelts questions, and then repeat that
sequence. After stopping the recording at one point during Officer Boelts’
direct examination, the following colloquy took place:

              [PROSECUTOR:] I just want to be clear. Because
              you asked him about this stopping off. And I
              want to get the town right. Is it Rock Springs?

              [OFFICER BOELTS]: Yes. It is Rock Springs.

              Q. He never said where they went to eat, did he?

              A. He didn’t tell me. No.

              Q. And he didn’t say well, we had this to eat or
              that to eat, did he?

              A. No, he didn’t.

              Q. And you didn’t feel he was being truthful
              with you, did you?

              A. I did not.

              Q. And why is that?

              A. He—when I asked him to tell me about his
              experience--

              [DEFENSE ATTORNEY:] Judge, I’m going to
              object on speculation and purview of the jury as
              to his opinion as to defendant’s guilt.

              THE COURT: Just a moment. [The question was
              then read by the court reporter]. . . The objection
              is overruled as to that question.

              THE WITNESS: As to that question I did not feel
              he was being truthful with me.

              Q. Is that because he kept on changing his story?




                                       5
                           STATE v. SKINNER
                           Decision of the Court

             A. That was in large part. Partly because he was
             contradicting some of the things he said on the
             confrontation call. But primarily as this
             progressed because he kept changing his story.

¶9            Detective Johnson separately interviewed Skinner on
December 17, 2009 while driving in his car and, at trial, the State played
portions of that recorded interview for the jury. The prosecutor would play
a portion of that interview, then stop the recording and ask Detective
Johnson questions, and then repeat that sequence. After stopping the
recording at one point during Detective Johnson’s direct examination, the
following colloquy took place:

             [PROSECUTOR:] Okay. If you can explain
             Detective, what your line of questioning – what
             was it all about.

             A. When we question suspects, particularly in
             cases involving sex, we’re attempting to create
             an environment that facilitates a truthful
             statement. While doing that – and I’ve
             conducted many suspect interviews on cases
             involving sex and minors and other things.

             I will frequently vilify the victim, make the
             victim sound like the victim is at fault. I will try
             and appear very sympathetic to somebody who
             is doing the kinds of things I’m questioning
             about. I’ll use profanity. I do lots of things like
             that.

             Q. So when you’re referring to [the victim in the
             interview] as a 16-year-old little ____, was that
             your personal opinion?

             A. No. Again, trying to vilify the victim to create
             an environment to facilitate a truthful
             statement.

             Q. And in that exchange when you’re talking
             about the relationship, does the defendant ever
             deny a relationship?




                                      6
                          STATE v. SKINNER
                          Decision of the Court

            A. When I’m ending there, I continue saying it’s
            obvious there’s sex. It’s obvious there’s sex.
            You’re talking about doing it. You’re talking
            about this. You’re talking about that. She’s
            talking about child molestation. He says, I
            believe at one point there are things that are
            being misconstrued, kind of weakly. When I get
            to the specifics about the incident on the way to
            the Laker game, then there is a strong denial
            about the incident. But before that, there is no
            strong denial to all these individual mentions of
            it’s obvious you guys were having sex.

            Q. And did the defendant—when you were
            talking about this trip down to see the Laker’s
            game and having this meal, did he ever tell you
            where they had this meal?

            A. He didn’t tell me where they had the meal. In
            fact, I asked for details. It’s something you bring
            up in a phone conversation. What was this
            about? And rather than gave me details about
            that, he jumps to a past incident when [the
            victim] was a little girl and McDonald’s. And
            there is no McDonald’s in Black Canyon City. So
            instead of talking about this incident that’s so
            memorable, I heard him bring it up in a phone
            call he talks about some past incident when she
            was a little girl in McDonald’s.

            Q. And why is that important to you based
            upon your training and experience?

            A. In my experience dealing with people who
            are deceptive, they will frequently try to change
            the subject because it’s hard for them to quickly
            recall. Not quickly recall, but quickly make up a
            story. They’ll just try to misdirect. I’ve dealt
            with that many times.

The questioning then turned to a prior exchange with Skinner in the
interview. Skinner argues this testimony was an improper “opinion as to




                                    7
                            STATE v. SKINNER
                            Decision of the Court

the truthfulness of a non-testifying witness’ statement” (Skinner’s
statements) mandating reversal.

¶10          Skinner did not object to Detective Johnson’s testimony.
Skinner’s objection to Officer Boelts’ testimony came after he testified,
without objection, that he did not believe that Skinner was being truthful
with him. Although Skinner objected to a subsequent question, that
question was never answered, and Skinner did not object when Officer
Boelts was asked whether he had that belief because Skinner “kept on
changing his story.” Given his failure to make a timely objection, this court
reviews Skinner’s challenge for fundamental error. Ariz. R. Evid. 103(a)(1)
& (d).

¶11           To prevail under fundamental error review, Skinner “must
establish both that fundamental error exists and that the error in his case
caused him prejudice.” State v. Henderson, 210 Ariz. 561, 567 ¶ 20, 115 P.3d
601, 607 (2005). Fundamental error is reserved for “‘those rare cases that
involve “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.
Valverde, 220 Ariz. 582, 585 ¶12, 208 P.3d 233, 236 (2009) (citations omitted).

¶12            “Arizona prohibits lay and expert testimony concerning the
veracity of a statement by another witness. Determining veracity and
credibility lies within the province of the jury.” State v. Boggs, 218 Ariz. 325,
335 ¶ 39, 185 P.3d 111, 121 (2008) (citing cases). The State claims this general
prohibition does not apply here, because Skinner did not testify as a trial
witness. The State, however, offers no authority supporting this argument.
Had a timely objection to the relevant questions been made, the superior
court properly could have sustained those objections. Because that did not
occur, the question becomes whether Skinner has shown impermissible
resulting prejudice from any error in admitting this testimony. See
Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.

¶13           Skinner argues that the testimony of Officer Boelts and
Detective Johnson was “nothing more than advice to jurors on how to
decide the case.” Boggs, 218 Ariz. at 335 ¶ 39, 185 P.3d at 121. In context,
however, the testimony did not address the issue of Skinner’s guilt. Instead,
the testimony addressed an impression (that Skinner said inconsistent
things) and a comparatively small detail (that Skinner did not tell the
officers where he and the victim went to eat or what they had to eat), why
the officers thought this was significant and why their investigation
continued. Thus, this evidence did not impermissibly tell the jurors how to


                                       8
                            STATE v. SKINNER
                            Decision of the Court

decide the case and was not merely opining on the truthfulness of another
witness. See Boggs, 218 Ariz. at 335 ¶ 39, 185 P.3d at 121; State v. Reimer, 189
Ariz. 239, 240-41, 941 P.2d 912, 913-14 (App. 1997) (citing cases). Instead,
and recognizing Skinner did not testify at trial, the police officers were “not
speaking as . . . expert[s] on truthfulness. [They were] merely stating [their]
reasons for not believing the defendant’s story.” State v. Doerr, 193 Ariz. 56,
63 ¶ 26, 969 P.2d 1168, 1175 (1998) (alternative holding).

¶14            Skinner has not met his burden of showing that he was
prejudiced by this testimony. “The jury was instructed about its duty to
determine the credibility of witnesses, and ‘[w]e presume that the jurors
followed the court’s instructions.’” State v. Martinez, 230 Ariz. 382, 385 ¶ 14,
284 P.3d 893, 896 (App. 2012) (quoting State v. Newell, 212 Ariz. 389, 403 ¶
68, 132 P.3d 833, 847 (2006)). Moreover, the testimony did not tell the jurors
how to decide the case and, having considered the evidence as a whole,
Skinner has not demonstrated that any error in admitting this testimony,
even if constituting fundamental error, resulted in prejudice. See Henderson,
210 Ariz. at 567 ¶ 19, 115 P.3d at 607.

III.       The Superior Court Properly Placed Skinner On Lifetime
           Probation For The First, But Not The Second, 2008 Conviction
           For Sexual Conduct With A Minor Over Age 15.

¶15           Along with imposing concurrent prison terms not challenged
on appeal, the superior court placed Skinner on lifetime probation for his
convictions for (1) sexual conduct with a minor over age 15 committed
between July 1 – 31, 2008 and (2) sexual conduct with a minor over age 15
committed between August 1 – 31, 2008. Skinner argues that the superior
court erred in placing him on probation for these convictions, that a prison
term was the only appropriate consequence for these convictions and,
accordingly, that the probation grants should be vacated.

¶16            For different reasons and in different ways, both the State and
Skinner argue the other waived various aspects of this issue.
Notwithstanding those arguments, “an illegal sentence can be reversed on
appeal despite the lack of an objection.” State v. Canion, 199 Ariz. 227, 230
¶10, 16 P.3d 788, 791 (App 2000) (citing State v. Whitney, 151 Ariz. 113, 115,
726 P.2d 210, 212 (App. 1985)); see also State v. Provenzino, 221 Ariz. 364, 369
¶ 18, 212 P.3d 56, 61 (App. 2009) (“Imposition of an illegal sentence
constitutes fundamental error that may be reversed on appeal, despite the
lack of an objection in the trial court.”) (citing cases). Accordingly, the court
looks to the applicable law in place at the time of the offenses to determine




                                       9
                           STATE v. SKINNER
                           Decision of the Court

whether the probation grants were permissible. See State v. Loney, 230 Ariz.
542, 546 ¶ 14, 287 P.3d 836, 840 (App. 2012).

¶17           A.R.S. § 13-703, which became effective January 1, 2009, does
not purport to be retroactive and, accordingly, is not retroactive. See A.R.S.
§ 1-244 (“No statute is retroactive unless expressly declared therein.”).
Therefore, the applicable sentencing provision for the offenses resulting in
the probation grants is the law that existed in 2008. See A.R.S. § 1-246. As
applicable here, A.R.S. § 13–702.02(A) (2008) governed sentencing for
multiple felony offenses committed in 2008 that were not committed on the
same occasion. As relevant here, that statute read:

              A person who is convicted of two or more
              felony offenses that were not committed on the
              same occasion but that . . . are consolidated for
              trial purposes . . . shall be sentenced, for the
              second or subsequent offense, pursuant to this
              section.

A.R.S § 13–702.02(A) (2008). The statute then provided possible prison
terms for a second felony offense and subsequent felony offenses. A.R.S. §
13-702.02(B)(3), (4) (2008).

¶18           As applied, Skinner could be placed on probation for up to
the rest of his life for the first felony offense (but not the second felony
offense or subsequent felony offenses) for sexual conduct with a minor over
age 15 committed in 2008. See A.R.S. § 13-902(E) (2008). As applicable to
offenses committed in 2008, for the second felony offense and subsequent
felony offenses, a prison term was the only legally permissible
consequence. Accordingly, although Skinner properly was placed on
lifetime probation for his conviction for sexual conduct with a minor over
age 15 committed between July 1 – 31, 2008 (the first felony offense), he was
not probation eligible and was required to be sentenced to prison for his
conviction for sexual conduct with a minor over age 15 committed between
August 1 – 31, 2008 (his second felony offense). Id. Accordingly, the lifetime
probation grant for Skinner’s felony conviction for sexual conduct with a
minor over age 15 committed between August 1 – 31, 2008 was an illegal
sentence and must be vacated and the matter remanded for a new sentence
consistent with the mandates of A.R.S. § 13-702.02 (2008).




                                     10
                          STATE v. SKINNER
                          Decision of the Court

                            CONCLUSION

¶19           Skinner’s convictions and sentences are affirmed except for
Skinner’s sentence of lifetime probation for felony sexual conduct with a
minor over age 15 committed between August 1 - 31, 2008 (listed as Count
VII in the Indictment), which is vacated and remanded for resentencing.




                               :gsh




                                   11
