                                 IN THE
             ARIZONA COURT OF APPEALS
                             DIVISION ONE


                     STATE OF ARIZONA, Appellee,

                                    v.

                    RAYMOND J. SCOTT, Appellant.

                          No. 1 CA-CR 16-0348
                            FILED 9-12-2017


          Appeal from the Superior Court in Maricopa County
                         No. CR2013-461659
               The Honorable Peter C. Reinstein, Judge
                 The Honorable Jose S. Padilla, Judge

                               AFFIRMED


                               COUNSEL

Arizona Attorney General’s Office, Phoenix
By David Andrew Simpson
Counsel for Appellee

Nicole T. Farnum, Attorney at Law, Phoenix
By Nicole T. Farnum
Counsel for Appellant



                                OPINION

Judge James P. Beene delivered the opinion of the Court, in which Presiding
Judge Diane M. Johnsen and Chief Judge Samuel A. Thumma joined.
                             STATE v. SCOTT
                                Opinion

B E E N E, Judge:

¶1            After having been found guilty of eight felony offenses,
Raymond J. Scott (“Scott”) argues on appeal (1) that he was convicted of
two multiplicitous kidnapping charges and (2) that the superior court erred
by allowing evidence of his prior conviction in Pennsylvania for aggravated
indecent assault. Scott asks that we vacate one kidnapping conviction as
multiplicitous and vacate and remand for a new trial on the remaining
charges. Because there was a clear break in Scott’s restraint of his victim,
and because Scott’s past act was properly admitted to show a lack of
mistake under Arizona Rule of Evidence 404(b), we affirm Scott’s
convictions and sentences.

                FACTS AND PROCEDURAL HISTORY1

¶2            In 1999, Scott sexually assaulted C.T., a former girlfriend with
whom he was living in Pennsylvania. Shortly after C.T. had ended their
romantic relationship, Scott forced C.T. into her bedroom in their shared
apartment, restrained her with duct tape, and sexually assaulted her. Scott
then immediately released C.T., gave her his gun, and threatened to stab
her with a scalpel if she did not kill him. After C.T. refused to shoot him,
Scott allowed her to get dressed and leave, but threatened to kill himself if
she spoke to the police. C.T. left and called the police, who arrested Scott.
Scott was found guilty of aggravated indecent assault and sentenced to
prison.

¶3            After his release, Scott moved to Arizona, where he met and
later married M.N. M.N. had a child from a previous marriage, D.N., and
she and Scott had two other children during their time together, D.NS. and
R.NS. They divorced in 2011, but continued to share custody of their
children.

¶4             On Christmas Day 2013, M.N. and the children gathered with
Scott in his apartment to open presents. While the children were busy with
the gifts, Scott lured M.N. away and forced her into his bedroom. There,
Scott lifted his shirt to reveal a handgun in his pants and told M.N. he
wanted to have sex. M.N. refused, and Scott wrestled her to the bed, placed
the gun to her head, and demanded that she perform sexual acts. M.N.
began crying, and D.N., her oldest child, heard her asking Scott to stop and


1      On appeal, 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 (App. 2008).


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                              STATE v. SCOTT
                                 Opinion

crying out in “actual pain.” Eventually, D.N. forced open the bedroom door
and saw Scott with his pants down, standing over M.N. on the floor.

¶5             M.N. managed to throw a cell phone to D.N. and yelled to her
to take the other children and go for help. D.N. gathered R.NS., but not
D.NS., left the apartment, and called her uncle. Meanwhile, as the struggle
continued in the bedroom, Scott told M.N. he would “shoot everybody in
here if you don’t be quiet.” When M.N. was able to throw the gun aside,
Scott pulled out a knife and pressed it to her neck while he continued the
assault.

¶6            M.N. finally escaped from Scott and ran out of the bedroom
to the living room. M.N. intended to leave with her younger daughter,
D.NS., but before she could gather her up, Scott knocked M.N. down,
grabbed her by the legs, and dragged her back into the bedroom. There he
continued to assault M.N. until help arrived.

¶7            The State charged Scott with fourteen counts —two counts of
kidnapping, three counts of aggravated assault, three counts of sexual
assault, three counts of attempted sexual assault, two counts of public
sexual indecency to a minor, and one count of threatening or intimidating.
After a ten-day trial, the jury convicted Scott of eight charges — three counts
of aggravated assault, two counts of kidnapping, two counts of attempted
sexual assault, and one count of threatening or intimidating. Scott was
sentenced to an aggregate of 25 years in prison.

¶8            Scott timely appealed. We have jurisdiction pursuant to
Article 6, Section 9 of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) section 13-4031 (2017).2

                               DISCUSSION

    I.   Scott Was Properly Convicted of Two Counts of Kidnapping

¶9            Scott argues that his two kidnapping convictions are
multiplicitous and violate his due process right against double jeopardy. A
charge is multiplicitous if it charges a single offense in multiple counts and
thereby raises the potential for multiple punishments for a single act. State
v. Brown, 217 Ariz. 617, 620, ¶ 7 (App. 2008) (quoting State v. Powers, 200
Ariz. 123, 125, ¶ 5 (App. 2001), aff’d 200 Ariz. 363 (2001)). “Whether charges
are multiplicitous is an issue of statutory interpretation, which we review

2      Absent material revision after the date of the alleged offense, we cite
a statute’s current version.


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                               STATE v. SCOTT
                                  Opinion

de novo.” Brown, 217 Ariz. at 620, ¶ 7. “Offenses are not the same, and
therefore not multiplicitous, if each requires proof of a fact that the other
does not.” Merlina v. Jejna, 208 Ariz. 1, 4, ¶ 12 (App. 2004); see Blockburger v.
United States, 284 U.S. 299, 304 (1932).

¶10           Kidnapping is defined as “knowingly restraining another
person with the intent to . . . [i]nflict death, physical injury or a sexual
offense on the victim[.]” A.R.S. § 13-1304(A)(3). At trial, the State argued
to the jury that Scott committed two kidnappings, the first of which began
when he initially forced M.N. into the bedroom and ended when she
dashed from the bedroom to the living room, and the second of which
began when Scott pulled her back into the bedroom, ending with her final
escape. Scott argues both kidnapping convictions arise out of the same act,
restraining M.N. within his apartment. He argues that, although M.N. was
able to leave the bedroom for a brief time during the assault, she was
continuously restrained within the apartment during the entire incident.

¶11            A defendant may be convicted of two counts of kidnapping
“only if, after the original kidnapping concluded with the victim’s release
from restraint, the victim was restrained anew, with the requisite intent.”
State v. Braidick, 231 Ariz. 357, 360, ¶ 9 (App. 2013) (noting that “multiple
charges might be authorized when a victim is released, but then restrained
again.”). It is uncontested that Scott restrained M.N. intending to inflict a
sexual offense. Therefore, whether Scott was properly convicted of two
counts of kidnapping turns entirely on whether he restrained M.N.
continuously throughout the entire ordeal, or released her and restrained
her anew.

¶12            A kidnapping remains an ongoing crime for only so long as
the defendant maintains control of the victim, restraining the victim’s
freedom. See id., at 360, ¶ 11. Restraint need not be accomplished by
physical control, and “so long as the [victim feels] compelled by fear to
remain, the confinement continue[s].” State v. Jones, 185 Ariz. 403, 407 (App.
1995) (citing People v. Martinez, 150 Cal.App.3d 579 (1984)). Here, M.N.
briefly escaped Scott midway through the ordeal, when she ran from the
bedroom to the living room, and attempted to gather D.NS. to leave. M.N.
was momentarily free, but chose not to run directly out of the residence,
instead pausing to grab her daughter. M.N.’s choice of action and freedom
of movement during that period showed Scott did not continue to restrain
her, albeit briefly, after he initially forced her into his bedroom. Scott then
committed a second act of kidnapping, separate from the first, when he
grabbed M.N. anew and pulled her back into the bedroom for the purpose



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                                 Opinion

of sexual assault. For these reasons, Scott’s convictions for two counts of
kidnapping were not multiplicitous.

 II.   The Superior Court Did Not Abuse Its Discretion in Admitting
       Scott’s Prior Sexual Assault under Rule 404(b)

¶13            The superior court admitted evidence of Scott’s 1999 sexual
assault crime under Arizona Rule of Evidence (“Rule”) 404(b), reasoning
that it showed an “absence of mistake or accident.” The court gave a
limiting instruction to the jury, stating the jury could only consider the
evidence to establish Scott’s intent, plan, or “absence of mistake or accident.
You must not consider these acts to determine the defendant’s character or
character trait, or to determine that the defendant acted in conformity with
the defendant’s character or character trait and therefore committed the
charged offense.” Scott argues the superior court abused its discretion by
admitting his prior sexual assault because it was unduly prejudicial under
Rule 403.

¶14            Generally, “evidence 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). The rule, however, states that
evidence of other crimes, wrongs, or acts may be “admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Id. The rule’s “list
of relevant purposes for which evidence of other crimes, wrongs or acts
may be admitted is not exhaustive.” State v. Via, 146 Ariz. 108, 122 (1985).
Evidence of an act otherwise admissible under Rule 404(b) may be excluded
if “its probative value is substantially outweighed by a danger of,” among
other things, “unfair prejudice[.]” Ariz. R. Evid. 403. We review the
admission of prior act evidence under Rule 404(b) for abuse of discretion.
State v. Van Adams, 194 Ariz. 408, 415, ¶ 20 (1999).

¶15            At trial, the State argued, and the superior court agreed, that
Scott’s prior sexual assault was admissible under Rule 404(b) to refute his
defenses of “consent” and “no specific intent.” Rule 404(b) does not
expressly authorize the admission of other act evidence to rebut consent or
lack of specific intent defenses. But the examples listed in the rule are not
exclusive. A defendant who claims his victim consented as a defense to
sexual assault implicitly argues the victim gave him permission to engage
in the sexual act. In such a case, evidence of other acts may be admitted to
show the defendant knew otherwise. See State v. Lamoureux, 623 A.2d 9, 13
(R.I. 1993) (“[T]he issue of consent in a sexual-assault case is closely related
to the exception absence of mistake set forth in Rule 404(b).” (internal


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                                 Opinion

quotations omitted)). More generally, a defendant who claims he lacked
the necessary mental state may open the door to evidence of similar past
wrongdoing under such factors as “proof of motive, . . . intent, preparation,
[or] plan.” Ariz. R. Evid. 404(b); see State v. Lee, 189 Ariz. 590, 599 (1997)
(determination of intent is “proper purpose” for admission of other crimes
under Rule 404(b)); State v. Huey, 145 Ariz. 59, 62 (1985) (prior sexual assault
admissible to show defendant’s intent to assault victim against her will).

¶16            By raising the defenses of consent and no specific intent, Scott
brought into contention his own intent. Scott’s prior sexual assault,
strikingly similar in character to the current crime, was relevant to prove
his intent and lack of mistake as to M.N.’s purported consent. In each crime,
Scott assaulted a previous partner, restrained her in a bedroom, menaced
her with a weapon, and threatened to kill himself if she called the police.
Evidence of the previous similar crime was not a mere inflammatory
accusation against Scott; it was evidence that tended to prove he was not
acting under a mistaken understanding that M.N. consented to his acts. It
is the State’s burden to prove each element of a crime beyond a reasonable
doubt and here, where Scott’s intent was at issue, Scott’s past act was
relevant to prove that M.N. did not consent.

¶17            Scott argues, however, that evidence of the prior assault was
unduly prejudicial under Rule 403. Evidence that a defendant committed
a serious crime similar to the one being tried is unquestionably prejudicial
and may, at times, be unfairly so. Even relevant evidence must be excluded
if its probative value is substantially outweighed by a danger of unfair
prejudice. Ariz. R. Evid. 403. That, however, was not the case here.
Comparing the facts shown regarding the prior sexual assault and the
charged offenses here, the identical nature of the victims’ relationships with
Scott and the similar nature of the crimes support the relevance of Scott’s
prior act. State v. Schurz, 176 Ariz. 46, 52 (1993) (evidence which is
“prejudicial” merely because it is relevant and material, while adverse to
the opponent, is not barred by Rule 403). The superior court did not abuse
its discretion in concluding that the probative value of Scott’s 1999 sexual




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                             STATE v. SCOTT
                                Opinion

assault was not substantially outweighed by a danger of unfair prejudice
and in allowing the past crime to be presented to the jury.3

                              CONCLUSION

¶18          For the foregoing reasons, we affirm Scott’s convictions and
sentences.




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




3       The superior court admitted evidence of the prior sexual assault
under both Rule 404(b) and Rule 404(c) (“Character evidence in sexual
misconduct cases”) and gave corresponding final jury instructions for Rule
404(b) and Rule 404(c) evidence. The proper consideration and use by the
jury of evidence of a prior crime differs significantly depending upon
whether it is admitted for a limited purpose other than “to prove the
character of [the defendant] in order to show action in conformity
therewith” under Rule 404(b), or “to show that the defendant had a
character trait giving rise to an aberrant sexual propensity to commit the
offense charged” under Rule 404(c). Scott, however, did not object to the
Rule 404(c) jury instruction and does not raise any Rule 404(c) issue on
appeal. Because Scott has waived any Rule 404(c) issue, see Ariz. R. Crim.
P. 31.13(c), we do not address any issue regarding the admission of the same
evidence, with corresponding jury instructions, under both Rule 404(b) and
404(c).


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