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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                          RALPH CARR, Appellant.

                             No. 1 CA-CR 16-0088
                               FILED 9-5-2017


           Appeal from the Superior Court in Maricopa County
                      No. CR2012-010243-001 DT
                 The Honorable Pamela S. Gates, Judge

                                  AFFIRMED


                                   COUNSEL

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

The Poster Law Firm, PLLC, Phoenix
By Rick D. Poster
Counsel for Appellant
                              STATE v. CARR
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Maria Elena Cruz joined.


H O W E, Judge:

¶1            Ralph Carr appeals his convictions and sentences on
11 counts of sexual abuse, class 3 felonies and dangerous crimes against
children, and three counts of sexual abuse, class 5 felonies. For the following
reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2           Carr worked as a horse trainer and riding teacher at a
northwest Phoenix horse ranch. Carr’s students ranged in age, with some
as young as eight years old. In March 2006, one of Carr’s students, whose
mother noticed had lost her excitement about going to her classes at Carr’s
ranch, confessed to her parents that Carr had touched her breasts multiple
times. The parents called the police, who then sent a Maricopa County
Sheriff’s Deputy to speak with the family. Two years later, another student,
who had likewise suddenly lost interest in attending her classes, told her
mother and police that Carr had touched her breasts multiple times.

¶3            Approximately nine months after the second report, the
Maricopa County Sheriff’s Office assigned a detective to investigate the
claims. Soon after interviewing both girls, the Sheriff’s Office issued a press
release with Carr’s information and the allegations made about him, asking
if any other children had similar experiences with him and requesting that
they report any additional incidents of abuse to them. This call for
information led to an additional report from another female student that
Carr had inappropriately touched her. Eventually, several girls came
forward stating that Carr inappropriately touched them while taking
classes with him or working with him. Each allegation involved Carr either
touching the child’s breasts or buttocks. Consequently, the State charged
Carr with multiple counts of sexual abuse for incidents occurring between
2002 and 2009.

¶4            Carr’s first trial began in October 2012, on an indictment
alleging nine counts of sexual abuse against four different victims. The jury



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                              STATE v. CARR
                            Decision of the Court

was unable to reach a verdict on any of the offenses. The State then moved
to dismiss the case without prejudice, which the trial court granted. The
State subsequently indicted Carr for 16 felonies: 15 counts of sexual abuse
and one count of aggravated assault for touching one of his female students
“with the intent to injure, insult, or provoke her.” The State alleged that the
alleged incidents of sexual abuse occurred between 2002 and 2009 on
victims ranging in age from 9 to 15 years old.

¶5            Before the court set trial on the current indictment, Carr
moved to sever each of the counts. The court held an evidentiary hearing
on Carr’s motion, at which it considered whether evidence of the offenses
would be admissible as “other acts” under Arizona Rule of Evidence
(“Rule”) 404 if the offenses were tried separately. To show that evidence of
the offenses would be admissible because they showed a character trait
giving rise to an aberrant sexual propensity, the State presented expert
testimony from a psychologist relating to Carr’s emotional propensity and
opining on his “aberrant behavior.” Carr called his own expert witness to
refute the State’s evidence and the State’s expert’s conclusions. The expert
specifically criticized the State’s expert’s methodology in reaching his
conclusion as unreliable because it could not be verified and reproduced by
other experts and did not include estimated error rates.

¶6             Relying in part on testimony at an evidentiary hearing and on
testimony from the first trial, the trial court denied Carr’s motion on the
first day of his February 2015 trial. The court explained in a lengthy minute
entry that each of the offenses were “without question” of the same or
similar character. Additionally, the court found that the evidence would be
cross-admissible at separate trials to show intent and absence of mistake or
accident under Rule 404(b) and to show an aberrant sexual propensity
under Rule 404(c). In doing so, the trial court agreed with the State’s
expert’s findings, stating that it “reache[d] the same ultimate conclusion
that a person who engaged in the conduct as alleged by the State has a
character trait that would give rise to aberrant sexual behavior.” The court
also found that the evidentiary value of the other offenses would not be
substantially outweighed by the danger of unfair prejudice to Carr. After a
19-day trial, the jury acquitted Carr of the aggravated assault offense and
one count of sexual abuse, but could not reach a verdict on the remaining
counts. Accordingly, the trial court set a re-trial on the remaining 14 counts
of sexual abuse.

¶7              Carr’s re-trial began in October 2015. Each of the female
victims testified that when they were young girls, Carr repeatedly reached
from behind them and touched, rubbed, or pinched their breasts. They also


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                              STATE v. CARR
                            Decision of the Court

testified that the incidents occurred after they started taking private
horseback riding lessons from Carr, and in one victim’s case, at a horse
stable where she worked. The conduct occurred over a period of seven
years, with a gap between incidents of at most 27 months—which began in
2009.

¶8             On the second day of testimony, Carr’s counsel reported that
at the end of the lunch break, she and her assistant had “started to walk into
the women’s restroom on this floor and [] immediately could hear and see
[a victim witness] and her mother there in the bathroom already talking.”
Defense counsel told the court that they waited until the two had left the
bathroom, and when they entered, “saw one of the jurors who had been in
the bathroom apparently the entire time” while they had been waiting
outside. She noted, however, that they “couldn’t hear who was talking or
what was being said.” She said that she was not sure, but thought that it
might have been juror number 11 in the bathroom, and described her hair
and what she was wearing.

¶9             At the end of the day, the court excused all jurors except juror
number 1, who had been identified as juror number 11 during jury
selection, and asked her, “at any point today, have you been in the restroom
or any area in the courthouse where you have overheard the lawyers or a
witness speaking about this case in any way?” The juror responded, “no,”
then added that she was in the restroom when one of the victim witnesses
and her mother were as well. She stated that at least one lawyer came into
the restroom as they were leaving, but that “they weren’t talking about the
case at all.” The court thanked the juror and dismissed her. Carr did not
object at any time or suggest to the court that it was questioning someone
other than the person Carr’s counsel saw in the restroom.

¶10          At the close of evidence, the trial court instructed the jury to
consider each offense separately and advised that each must be proved
beyond a reasonable doubt. The trial court sua sponte also gave a
supplemental Rule 404 limiting instruction after closing arguments to
ensure “there is further clarity to the jury on how they can use the other
counts as evidence.” Before dismissing the jury to deliberate, the court
designated two jurors as alternates—one of which was juror number 1,
whom the court had questioned earlier regarding the alleged restroom
conversation. After deliberating, the jury convicted Carr of the charged
offenses. The court sentenced Carr to a total of four years in prison,
followed by lifetime probation and ordered him to register as a sex
offender. Carr timely appealed.



                                      4
                              STATE v. CARR
                            Decision of the Court

                               DISCUSSION

              1. Denial of Severance

¶11            Carr argues first that the trial court abused its discretion by
denying his motion to sever the charges involving the different victims
because the evidence involving each victim was too remote and not
cross-admissible.1 Generally, we review a trial court’s denial of a motion to
sever for an abuse of discretion. State v. Blackman, 201 Ariz. 527, 537 ¶ 39
(App. 2002). When a defendant fails to properly renew his denied motion
to sever at or before the close of evidence, however, this Court reviews for
only fundamental error. Ariz. R. Crim. P. 13.4(c); State v. Gutierrez, 240 Ariz.
460, 464–65 ¶ 12 (App. 2016). To prevail under fundamental error review,
Carr must establish that fundamental error occurred and that it prejudiced
him. State v. Henderson, 210 Ariz. 561, 567 ¶ 20 (2005). Because Carr failed to
renew his pretrial motion at or before the close of evidence and because all
of the charged offenses were of the same or similar character, the court did
not err, much less fundamentally err, here.

¶12             In Arizona, the State may join charged offenses if they are “of
the same or similar character.” Ariz. R. Crim. P. 13.3(a)(1). If a defendant
wishes to move for severance, he must do so at least 20 days before trial
and, “if denied, renewed during trial at or before the close of the evidence.”
Ariz. R. Crim. P. 13.4(c). Failure to properly move or renew a motion to
sever constitutes waiver. Id. This “prevents a defendant from strategically
refraining from renewing his motion, allowing a joint trial to proceed, then,
if he is dissatisfied with the final outcome, arguing on appeal that severance
was necessary.” State v. Flythe, 219 Ariz. 117, 120 ¶ 9 (App. 2008).

¶13            Contrary to Carr’s argument, he failed to properly renew his
motion at or before the close of evidence and therefore he waived his
severance argument. Carr moved to sever before the second trial, which the
trial court denied upon finding that the offenses were of the same or similar
character and the evidence was cross-admissible at separate trials to show
intent and absence of mistake or accident under Rule 404(b) and to show an
aberrant sexual propensity under Rule 404(c). Carr did not renew the
severance motion before or during the third trial — the trial at issue in this
appeal. We reject Carr’s argument that Arizona Rule of Criminal Procedure


1      Carr filed an addendum to his appellate counsel’s reply brief
requesting that this Court consider his additional argument on this issue.
But Carr is not entitled to hybrid representation, and thus his addendum
will not be considered. See State v. Dixon, 226 Ariz. 545, 553 ¶ 39 (2011).


                                       5
                              STATE v. CARR
                            Decision of the Court

13.4(c) does not require a defendant to move for severance before and
during each trial. The rule by its plain terms requires that the motion be
filed at least 20 days before trial and “renewed during trial at or before the
close of evidence.” Ariz. R. Crim. P. 13.4(c). By failing to renew his motion
to sever at least 20 days before, and “at or before the close of evidence,” in
this third trial, Carr waived all but fundamental error review. See State v.
Gonzalez, 181 Ariz. 502, 508 (1995) (“Gonzalez moved to sever before the
start of the first trial, but waived this issue by failing to renew his motion
during the second trial or at the close of the evidence.”).

¶14            Because Carr has waived his severance argument, he must
show that the trial court erred by denying his motion to sever, that the error
was fundamental, and that the error prejudiced him. See State v.
Juarez-Orci, 236 Ariz. 520, 523 ¶ 11 (App. 2015). But Carr has not shown that
the court committed any error. A defendant is entitled to sever offenses of
the same or similar character “unless evidence of the other . . . offenses
would be admissible under applicable rules of evidence if the offenses were
tried separately.” Ariz. R. Crim. P. 13.4(b). As relevant here, other acts
evidence is admissible under Rule 404(b) if the evidence is admissible to
prove “motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake.” Additionally, evidence of other acts may be
admissible under Rule 404(c) if the evidence is relevant to show that the
defendant has a character trait giving rise to an aberrant sexual propensity
to commit the charged offense. 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.

¶15            The trial court did not err, much less fundamentally err, by
failing to sever the charges involving different victims because, contrary to
Carr’s argument on appeal, the acts against each victim were of similar
character and would have been cross-admissible under Rule 404(c) at
separate trials. First, each of the 14 counts of sexual abuse was of the same
or similar character. Each of the female victims testified that when they
were between 10 and 15 years old, Carr repeatedly reached from behind


                                      6
                              STATE v. CARR
                            Decision of the Court

them and touched, rubbed, or pinched their breasts. They testified that the
incidents occurred after they started taking private horseback riding
lessons from Carr, and in one victim’s case, at a horse stable where she
worked. The conduct occurred over a period of seven years, with a gap
between incidents of at most about two years.

¶16            Second, evidence of each of the offenses would have been
admissible under the applicable rules of evidence if the offenses were tried
separately. The witnesses’ accounts provided clear and convincing
evidence that Carr committed each of the acts. See State v. Vega, 228 Ariz.
24, 29 n.4 ¶ 19 (App. 2011) (“The testimony of the victim is a sufficient basis
on which to conclude by clear and convincing evidence that the incident
occurred.”). These facts also provided a reasonable basis to conclude that
commission of each act permitted an inference that Carr had an aberrant
sexual propensity, and thus to admit the evidence at separate trials under
Rule 404(c) without any expert testimony. See Ariz. R. Evid. 404 (c) cmt. to
1997 amendment (eliminating the requirement of expert testimony in all
cases of remote or dissimilar acts).2

¶17           Finally, the danger of unfair prejudice would not
substantially outweigh the other acts’ evidentiary values. The acts were not
remote from each other. See State v. Benson, 232 Ariz. 452, 459 ¶ 15 (2013)
(concluding that two years and nine months’ interval between charged
offenses was not too remote); Ariz. R. Evid. 404(c) cmt. to 1997 amendment
(stating that the remoteness factor is not subject to a “bright line test”).

2              Carr argues that the trial court erred by denying his motion
to sever before the second trial because it improperly relied on an expert
opinion that the acts demonstrated an aberrant sexual propensity. To any
extent that the trial court’s ruling before the second trial is relevant to our
inquiry regarding whether the court erred by failing to sua sponte sever the
counts during the third trial, Carr’s argument is misplaced. Carr’s expert’s
criticism that the State’s expert’s methodology was unreliable because it did
not include error rates and could not be verified and reproduced by other
experts did not render it inadmissible. Cf. State v. Buccheri-Bianca, 233 Ariz.
324, 332 ¶ 28 (App. 2013) (rejecting a similar argument relating to Rule 702).
Moreover, in its lengthy minute entry, the trial court agreed with the State’s
expert’s findings, notwithstanding Carr’s expert’s criticisms, and stated
that it “reache[d] the same ultimate conclusion that a person who engaged
in the conduct as alleged by the State has a character trait that would give
rise to aberrant sexual behavior.”




                                      7
                              STATE v. CARR
                            Decision of the Court

Carr’s arrest on the original charges in August 2009 explains the absence of
any allegations of sexual abuse after 2009. The evidence of each of the acts
accordingly would have been cross-admissible at separate trials, and the
court did not err, much less fundamentally err, by not severing the offenses.

¶18             Moreover, to challenge the denial of a severance, a defendant
“must demonstrate compelling prejudice against which the trial court was
unable to protect.” State v. Miller, 234 Ariz. 31, 38 ¶ 18 (2013). Carr cannot
demonstrate the necessary compelling prejudice because the jury was
instructed to consider each offense separately and advised that each must
be proven beyond a reasonable doubt. See id. (concluding that no
compelling prejudice occurred in light of these jury instructions). The trial
court also gave a supplemental limiting instruction after closing arguments,
clarifying the use of each count as evidence, further minimizing any
potential prejudice from the joint trial. Thus, Carr has failed to demonstrate
that the trial court fundamentally erred, to his prejudice, in failing to sever
the counts involving different victims.

              2. Juror Taint in Second Trial

¶19            Carr argues next that he was prejudiced during the second
trial, in which the jury acquitted him on two counts and was unable to reach
a verdict on 14 counts, because the jury was exposed to media coverage and
a juror’s personal prejudice. But because none of Carr’s convictions resulted
from a trial in which any of the jurors from the second trial sat, any claim
that these jurors engaged in misconduct is moot. An issue becomes moot
when “as a result of a change of circumstances before the appellate decision,
action by the reviewing court would have no effect on the parties.” Hormel
v. Maricopa Cty., 224 Ariz. 454, 460 ¶ 25 (App. 2010). Because this claim
would have no effect on the parties, and does not present any issue of public
importance or an issue likely to reoccur, we decline to address it. Cf.
Henderson, 210 Ariz. at 565 n.2 ¶ 10 (2005) (providing that a reviewing court
generally does not address moot issues).

              3. Juror Exposure to Extrinsic Evidence

¶20           Carr argues finally that the trial court erred by not declaring
a mistrial. As a preliminary argument, Carr claims that the trial court
questioned the wrong juror upon learning that one or more of the jurors in
the third trial had overheard a witness and her mother talking in the
bathroom during the break. Because Carr did not move for mistrial or
otherwise object when the trial court was questioning the juror, we review
for only fundamental error. Henderson, 210 Ariz. at 568 ¶ 22.



                                      8
                             STATE v. CARR
                           Decision of the Court

¶21            A declaration of mistrial is “the most dramatic remedy for
trial error and should be granted only when it appears that justice will be
thwarted unless the jury is discharged and a new trial granted.” State v.
Dann, 205 Ariz. 557, 570 ¶ 43 (2003). Juror misconduct warrants a new trial
if the appellant shows actual prejudice or prejudice may fairly be presumed.
See State v. Davolt, 207 Ariz. 191, 208 ¶ 58 (2004). “In a criminal case,
prejudice may be presumed from any private communication, contact or
tampering directly or indirectly, with a juror during a trial about the matter
pending before the jury.” Id.

¶22           The trial court did not question the wrong juror. The record
shows that the trial court questioned juror number 1. This juror had been
identified during jury selection as juror number 11—the number that
defense counsel thought “might be” the number of the juror she had seen
in the bathroom. Juror number 1 told the court and the parties that she had
been in the bathroom with the witness and her mother and saw defense
counsel and her associate come in as she was leaving, further confirming
that she was the juror that defense counsel had seen in the bathroom.
Defense counsel made no objection when the court questioned juror
number 1, implicitly confirming that this juror matched the description
defense counsel had given, and was the juror whom she had seen in the
bathroom. On these facts, the court had no reason to believe that it was
questioning the incorrect juror.

¶23            Having questioned the correct juror, nothing in the juror’s
statements shows that the juror heard anything related to the case, so the
trial court did not err by failing to declare a mistrial. Defense counsel told
the court that she could not tell who was speaking or what that person was
saying. When questioned by the court, the juror said that the victim and her
mother “weren’t talking about the case at all.” Finally, Carr cannot show
prejudice because this juror was designated as an alternate, and did not
deliberate. For all these reasons, Carr has failed to establish fundamental
error.




                                      9
                           STATE v. CARR
                         Decision of the Court

                            CONCLUSION

¶24          For the foregoing reasons, we affirm Carr’s convictions and
sentences.




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


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