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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                            IN RE MS2015-000003

                          No. 1 CA-MH 16-0083 SP
                            FILED 9-21-2017


           Appeal from the Superior Court in Maricopa County
                          No. MS2015-000003
            The Honorable Edward W. Bassett, Judge, Retired

                                  AFFIRMED


                                   COUNSEL

Maricopa County Attorney's Office, Phoenix
By Kyra Goddard
Counsel for Appellee

The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant



                       MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Jennifer B. Campbell joined.
                           IN RE MS2015-000003
                           Decision of the Court

B R O W N, Judge:

¶1            Appellant challenges the superior court's order committing
him to the custody of the Arizona Department of Health Services after a
jury found him to be a sexually violent person ("SVP"). Appellant argues
the superior court erred by (1) continuing his trial beyond the 120-day
timeframe set forth in Arizona Revised Statutes ("A.R.S.") § 36-3706, (2)
admitting evidence of Appellant's prior bad acts, and (3) allowing hearsay
evidence to be introduced through the testimony of the State. Finding no
reversible error, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Appellant was previously convicted of indecent exposure to
a minor in 2001 and placed on probation. He was convicted of attempted
child molestation in 2010 and sentenced to prison. Appellant's scheduled
release date from the Arizona Department of Corrections ("ADOC") was
April 25, 2015. On April 21, 2015, the State filed a petition requesting that
the court find probable cause to declare Appellant an SVP pursuant to
A.R.S. § 36-3704. Three days later, the court found probable cause to believe
Appellant was an SVP and ordered that Appellant be transported to the
Arizona Community Protection and Treatment Center ("ACPTC") upon his
release from prison. Following a probable cause hearing in June 2015, the
superior court re-affirmed its finding that there was probable cause to
sustain the petition. After several delays, the case proceeded to trial in
October 2016.

¶3             Dr. Barry Morenz, a licensed psychiatrist, testified at trial on
behalf of the State. The jury unanimously found Appellant to be an SVP
and Appellant timely appealed from the superior court’s subsequent
commitment order. We have jurisdiction over this appeal under Article 6,
Section 9, of the Arizona Constitution and A.R.S. § 12-2101(A)(10).

                               DISCUSSION

A.     Trial Continuances

¶4             Appellant argues the superior court erred by not conducting
a trial within 120 days, as required by A.R.S. § 36-3706, which provides as
follows:

       Within one hundred twenty days after a petition is filed
       pursuant to § 36–3704, the court shall conduct a trial to
       determine if the person named in the petition is a sexually


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                            Decision of the Court

       violent person. . . . The judge may continue the trial at the
       request of either party on a showing of good cause or on its
       own motion if the person will not be substantially prejudiced.

¶5             Trial was originally scheduled for August 24, 2015, but was
continued to November 16 at the request of Appellant's counsel, as counsel
was recently appointed to the case. Prior to the November trial date, given
that the State was apprised that Appellant could have new charges pending
and his second chair attorney would be unavailable, the parties jointly filed
a motion to continue. The court continued the trial until February 8, 2016.
Shortly thereafter, Appellant's community supervision status was revoked
and he was returned to ADOC, with a scheduled release date in September
2016, which prompted the State to request a stay of the proceedings.
Appellant requested dismissal of the petition. In response, the State again
requested a stay, or, in the alternative, that it be continued. The court
"grant[ed] the [State's] Motion for the Alternate Relief of a Continuance,
based upon the fact that [Appellant] has been incarcerated . . . and is
expected to be incarcerated . . . through his maximum date of September 16,
2016." The court further ordered that Appellant be transferred to the
ACPTC upon completion of his prison term, and reset the trial date to
October 17, 2016.

       1.     First Two Continuances

¶6            Because Appellant failed to object to the first two
continuances granted by the superior court, we review only for
fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005).
Fundamental error review is applied sparingly in civil proceedings, but we
may apply it in situations that may result in the denial of a constitutional
right. Monica C. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 89, 94, ¶ 23 (App. 2005).
To establish fundamental error, Appellant "must show that the error . . .
goes to the foundation of his case, takes away a right that is essential to his
defense, and is of such magnitude that he could not have received a fair
trial." Henderson, 210 Ariz. at 568, ¶ 24. Appellant also bears the burden of
showing he was prejudiced by that error. Id. at ¶ 26.

¶7             Appellant relies on Fuller v. Olson ex rel. County of Pinal, 233
Ariz. 468 (App. 2013). In that case, the superior court failed to appoint
counsel or schedule a trial on the SVP petition for longer than one year after
the State filed a petition. 233 Ariz. at 470, ¶¶ 2-3. On review, this court held
that Fuller was prejudiced by not receiving the "treatment that would have
been available to him had he been afforded his trial and been found to be
an SVP." Id. at 473, ¶ 15. We explained that if the superior court found


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                           Decision of the Court

Fuller to be sexually violent after a timely trial, he would have received
"treatment that might have alleviated his condition to the point where he
was eligible for conditional release upon his yearly review [under A.R.S. §
36–3708(A)], an event that would already have occurred in absence of that
violation." Id. at 474, ¶ 15.

¶8           Unlike the situation in Fuller, in this case the first two trial
settings were continued at Appellant's request, at least in part. And there
was a reasonable basis for the continuances: the first provided Appellant's
newly-appointed counsel time to prepare for trial and the second permitted
second-chair counsel for Appellant to avoid a trial conflict, and gave the
parties and the court time to see if Appellant's community supervision
would be revoked. We find no error, much less fundamental error.

      2.     Third Continuance

¶9            The third continuance was granted over Appellant’s
objection. "[A] court considering a motion to postpone the trial beyond the
120-day limit or a motion to dismiss after the limit has been exceeded must
determine whether there is 'good cause' for the delay attributable to a
request from either party." Ugalde v. Burke, 204 Ariz. 455, 458, ¶ 9 (App.
2003). "Whether the facts of a particular case establish 'good cause' is a
matter left to the sound discretion of the trial court." Id. at ¶ 10. To
determine good cause, "the court should carefully balance the reasons for
the delay with the potential of prejudice to the alleged SVP from continued
confinement while awaiting trial," id. at ¶ 10, and may consider the
following factors:

      [W]hether the original 120 days have already elapsed; the
      length of any confinement beyond the 120-day limit; the
      reasons for any past delay or requested postponement;
      whether unusual discovery or procedural problems
      prevented the case from proceeding to trial within 120 days;
      unavailability of witnesses or other evidence; whether the
      alleged SVP caused, contributed to, or consented to the delay;
      whether the State diligently prosecuted the case; whether the
      alleged SVP sought a timely trial or warned the court and the
      State of the running of the 120-day period; whether the
      alleged SVP has been receiving treatment while confined or
      whether the person has simply been "warehoused"; the
      potential prejudice to the alleged SVP from the delay; the
      protection of the public; and any other factors that may be




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       relevant in a particular case and consistent with the purposes
       of the SVP Act.

Id. at ¶ 11 (footnotes omitted).

¶10            Here, the original 120 days had elapsed long before the third
motion to continue was granted. In fact, the 120-day limit had already
elapsed at the time of the second trial setting, without objection by
Appellant. The first continuance was not attributable to the State; nothing
in the record indicates that the State would not have been ready for the first
scheduled trial date. More importantly, the State filed its motion to
stay/motion to continue after Appellant violated his community
supervision and was reincarcerated, further contributing to the delay in
proceeding to trial. Although Appellant did not receive treatment while
confined, he was not simply "warehoused" throughout the time trial was
postponed.

¶11          Appellant and his counsel were presumably aware that
resolution of the petition and any treatment would be delayed by
continuing the trial. Further, Appellant objected only to the third
continuance, which resulted in approximately one additional month of
confinement in ACPTC (the month between his September release from the
AZDOC and the October 2016 trial). On this record, Appellant has not
shown that the court abused its discretion in granting the third motion to
continue.

B.     Prior Bad Acts

¶12            Appellant argues the superior court erred by permitting
evidence of Appellant's prior bad acts in violation of evidentiary rules,
primarily Arizona Rule of Evidence 404(b). We ordinarily review the
admission or rejection of evidence for abuse of discretion. State v. Davolt,
207 Ariz. 191, 208, ¶ 60 (2004). But because Appellant failed to object at
trial, we review for fundamental error only. See Henderson, 210 Ariz. at 567,
¶ 19.

¶13            In SVP proceedings, the State must prove beyond a
reasonable doubt that the person is an SVP. See A.R.S. § 36-3707(A); id. §
36-3701(7) (defining SVP as one who "[h]as ever been convicted of . . . a
sexually violent offense" and "[h]as a mental disorder that makes the person
likely to engage in acts of sexual violence"). The State must establish "(1)
the person has a mental disorder . . . that predisposes the person to commit
sexual acts to such a degree that he or she is dangerous to others and (2) the



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                           Decision of the Court

mental disorder makes it highly probable that the person will engage in acts of
sexual violence." In re Leon G., 204 Ariz. 15, 23, ¶ 28 (2002).

¶14           Dr. Morenz testified about a number of incidents in which
Appellant was involved, starting from when Appellant was 12 or 13 years
old and continuing until the time of trial.1 Dr. Morenz testified about
Appellant's prior acts to demonstrate that Appellant would likely engage
in acts of sexual violence in the future. Dr. Morenz learned of the prior
incidents through various sources, including police and presentence
reports, and prison, mental health, and sex offender treatment records.

¶15          "[E]vidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in conformity
therewith," Ariz. R. Evid. 404(b), but under Rule 405(b), specific instances
of conduct are admissible "[w]hen a person's character or character trait is
an essential element of a charge, claim, or defense." Here, contrary to
Appellant's assertion, the superior court acted within its discretion in
admitting evidence of Appellant's prior acts.

       A character trait is an essential element of a charge, claim, or
       defense if it is an operative fact which, under substantive law,
       determines the rights and liabilities of the parties. The
       propensity to commit acts of sexual violence is an operative
       fact that determines the rights and liabilities of an allegedly
       [SVP] and is therefore an essential element of the state's SVP
       case. Rule 405(b) thus permits the use of specific instances of
       conduct to prove such a propensity.




1      Such acts included touching little girls' buttocks in school; a burglary
charge; a criminal mischief charge; a 1998 shoplifting incident; stealing from
his parents; indecent exposure offenses from 1999; other indecent exposures
for which Appellant was neither arrested nor charged; pinching young girls
(on their buttocks or somewhere else) at a playground; touching
prepubescent females and exposing himself to them; convictions for
attempted molestation and child abuse, stemming from some of the
previously mentioned prior bad acts; failure to register as a sex offender on
multiple occasions; unsuccessful completion of probation; drug
paraphernalia and weapon possession; assaulting his stepfather; and
substance abuse problems that were active every time he had been out of
custody.



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                           Decision of the Court

In re Commitment of Jaramillo, 217 Ariz. 460, 463, ¶ 11 (App. 2008) (citation
and internal quotations omitted).2 In the SVP setting, prior bad acts are not
used to show that a party acted in conformity with the bad character on a
particular occasion, but rather to demonstrate "the person will likely engage
in acts of sexual violence in the future and therefore presents a danger to
the community." Id. at ¶ 10.

¶16           Appellant also asserts that by allowing the prior bad acts that
were unrelated to the determination of whether he was an SVP the court
switched to him the burden of proving "he was not as bad as Dr. Morenz
was making him out to be." But Appellant does not identify which specific
acts were "unrelated" to the SVP determination. Moreover, consistent with
the Rule 404 analysis in Jaramillo, Dr. Morenz explained that past behavior
and psyschosexual history are relevant factors for diagnosing mental
disorders and evaluating the likelihood a person will re-offend. The
superior court properly instructed the jury as to the State's burden of proof,
and Appellant does not explain how the burden was shifted to him.
Appellant has not shown, even assuming any error occurred in the
admission of prior bad acts, that the error was fundamental, prejudicial
error.

C.     Hearsay

¶17           Appellant also argues that much of Dr. Morenz's testimony
violated the Arizona Rules of Evidence because much of the information he
relayed to the jury was inadmissible hearsay (or double hearsay) in that it
was used to prove the truth of the matters asserted. Again, because
Appellant failed to object, we review only for fundamental error. See
Henderson, 210 Ariz. at 567, ¶ 19.

¶18           Arizona Rule of Evidence 703 provides that experts may rely
on otherwise inadmissible evidence in formulating their opinions "[i]f
experts in the particular field would reasonably rely on those kinds of facts
or data in forming an opinion on the subject." The rule permits the
proponent of the opinion to disclose the otherwise inadmissible facts or


2       The Jaramillo court explained that the Rule 404(c) exception does not
apply in SVP cases because the proceedings "are not predicated on a party's
alleged commission of a sexual offense." Jaramillo, 217 Ariz. at 463, ¶ 9
(internal quotations omitted). "Instead, they are predicated on the person's
[sic] having a prior conviction for a sexually violent offense, not an 'alleged
commission,' and a mental disorder that makes the person likely to commit
future acts of sexual violence." Id.


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                           Decision of the Court

data "to the jury only if their probative value in helping the jury evaluate
the opinion substantially outweighs their prejudicial effect." Ariz. R. Evid.
703. Once such facts or data are disclosed, however, they are not admissible
as substantive evidence; its only purpose is to "show[] the basis of the
expert's opinion." State v. Lundstrom, 161 Ariz. 141, 146 (1989).

¶19            Without question, much of the material Dr. Morenz relied
upon consisted of hearsay and double hearsay, but under Rule 703 he could
properly rely on the out-of-court statements. Dr. Morenz presented
information he reviewed to the jury and, in doing so, testified about why
he considered that information in formulating his opinions regarding
Appellant. He explained that without appropriate historical information,
sex offenders will frequently "minimize, deny, [and] excuse their behaviors
in a variety of different ways" that could produce a distorted perspective if
he listened only to them. Thus, the probative value of the information
substantially outweighed its prejudicial effect. And, to the extent Appellant
suggests the jury was misled, the superior court properly instructed the jury
as to how the information relied upon by experts should be treated:

      Expert witnesses have expressed opinions that were based
      upon information reported by others, including information
      to which no other witness has testified to, or which is
      addressed in an exhibit.

      This information is discussed only to explain the basis for the
      expert's opinion. This information should be considered only
      in deciding whether to accept or reject an expert's opinion, in
      whole or in part. It should not be considered to be substantive
      evidence.

Appellant has not shown the court committed fundamental, prejudicial
error by allowing Dr. Morenz to rely on information that included hearsay
statements.




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                         Decision of the Court

                            CONCLUSION

¶20        Based on the foregoing, we affirm the superior court's
commitment order resulting from the jury's finding that Appellant is an
SVP.




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




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