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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       SEAN M. TROTTER, Appellant.

                             No. 1 CA-CR 14-0005
                                FILED 1-22-2015


            Appeal from the Superior Court in Apache County
                         No. S0100CR201100159
               The Honorable Donna J. Grimsley, Judge

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist
Counsel for Appellee

Law Offices of David Michael Cantor, Phoenix
By Elizabeth Mullins
Counsel for Appellant
                           STATE v. TROTTER
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Andrew W. Gould
joined.


T H U M M A, Judge:

¶1            Sean M. Trotter appeals his convictions and sentences on
two counts of sexual conduct with a minor under 15 years of age. Trotter
contends the superior court erred by improperly admitting sexual
propensity and other acts evidence, failing to question a prospective juror
and failing to give credit for presentence incarceration. Finding no error,
Trotter’s convictions are affirmed and his sentences are affirmed as
modified to reflect 159 days of presentence incarceration credit.

                              DISCUSSION

¶2            Trotter was charged by information with three counts of
sexual conduct with a minor under 15 years of age, each a class 2 felony
and dangerous crime against children. After a three-day jury trial, Trotter
was convicted on Counts 1 and 2 and acquitted on Count 3. The superior
court sentenced Trotter to two consecutive 13-year prison terms. From
Trotter’s timely appeal, this court has jurisdiction pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.)
sections 12-120.21(A), 13-4031 and -4033 (2015).1

I.     Admission Of Sexual Propensity Evidence.

¶3             Before trial, the State moved to admit evidence pursuant to
Arizona Rule of Evidence (Rule) 404(c) to show Trotter had a character
trait giving rise to an aberrant sexual propensity to commit the charged
offenses. The evidence consisted of testimony by the victim’s sister that,
within approximately a year before the dates of the charged offenses and
at a time when the victim’s sister was 12 or 13 years old, Trotter had
shown her a pornographic movie and later, while lying in bed with her,


1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.



                                     2
                            STATE v. TROTTER
                            Decision of the Court

slipped his hand inside her pajama bottoms and moved it close to her
genitals. After an evidentiary hearing at which the victim’s sister testified
about Trotter’s acts, the superior court ruled that the evidence would be
admissible under Rule 404(c).

¶4            At trial, the victim’s sister testified about Trotter’s conduct
with her. Unlike her testimony at the pretrial hearing, however, the
victim’s sister testified that the movie Trotter showed her was R-rated
rather than pornographic. Trotter argues the superior court erred in
admitting the testimony by the victim’s sister, particularly in light of the
change in her testimony about the nature of the movie. The admission of
evidence under Rule 404(c) is reviewed for an abuse of discretion. State v.
Lehr, 227 Ariz. 140, 147 ¶ 19, 254 P.3d 379, 386 (2011).

¶5           Before admitting evidence pursuant to Rule 404(c), the
superior court must find each of the following:

              (A)    The evidence is sufficient to permit the trier of
              fact to find that the defendant committed the other
              act.

              (B)   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 crime charged.

              (C)    The evidentiary value of proof of the other act
              is not substantially outweighed by danger of unfair
              prejudice, confusion of issues, or other factors
              mentioned in Rule 403[, taking into consideration
              enumerated factors].

Ariz. R. Evid. 404(c)(1). If Rule 404(c) evidence is admitted at trial, the
court “shall instruct the jury as to the proper use of such evidence.” Ariz.
R. Evid. 404(c)(2); State v. Garcia, 200 Ariz. 471, 475–76 ¶ 27, 28 P.3d 327,
331–32 (App. 2001). As applied, the superior court did not abuse its
discretion in admitting the evidence under Rule 404(c).

¶6             First, the testimony of the victim’s sister showed by clear
and convincing evidence that Trotter committed the acts with her. See
State v. Terrazas, 189 Ariz. 580, 582, 944 P.2d 1194, 1196 (1997); see also State
v. Vega, 228 Ariz. 24, 29 n.4 ¶ 19, 262 P.3d 628, 633 n.4 (App. 2011) (noting
victim’s testimony is sufficient basis on which to conclude by clear and
convincing evidence that other incidents occurred). Trotter questions the


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                            STATE v. TROTTER
                            Decision of the Court

credibility of the victim’s sister because of the change in her testimony
about the nature of the movie, but “[t]he finder-of-fact, not the appellate
court, weighs the evidence and determines the credibility of witnesses.”
State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995) (citation
omitted).

¶7            Second, given the nature of the acts and their similarity to
Trotter’s alleged acts towards the victim, the superior court properly
could find that the acts provided a reasonable basis for concluding that
Trotter has a character trait giving rise to an aberrant sexual propensity to
commit the charged offenses. See State v. McDaniel, 119 Ariz. 373, 376, 580
P.2d 1227, 1230 (App. 1978) (holding evidence defendant put hand
halfway up preteen’s dress without actually touching genitals showed
sexual aberration). Although Trotter’s conduct with the victim’s sister was
not identical to that of the charged offenses, “[a]cts need not be perfectly
similar in order for evidence of them to be admitted under Rule 404.” Lehr,
227 Ariz. at 147 ¶ 21, 254 P.3d at 386. Such differences go to the weight of
the evidence, not its admissibility. State v. Roscoe, 145 Ariz. 212, 218, 700
P.2d 1312, 1318 (1984).

¶8            While the trial testimony of the victim’s sister that the movie
was R-rated rather than pornographic varied from her pretrial testimony,
this difference does not preclude admissibility under Rule 404(c). The
State presented evidence of her prior description of the movie, and the
jury could still find that it contained pornographic images. Moreover, the
evidentiary value of this evidence was that it depicted explicit sexual
scenes and Trotter, as a form of sexual grooming, insisted the victim’s
sister, who was only 12 or 13 at the time, watch it with him,
notwithstanding that the movie made her uncomfortable.

¶9             Third, the superior court reasonably could find that the
evidence was not subject to exclusion under Rule 403, which allows a
superior court to exclude admissible evidence if the probative value is
“substantially outweighed” by a danger of, among other things, unfair
prejudice or confusion of the issues. Ariz. R. Evid. 403. Because the
superior court “is in the best position to balance the probative value of
challenged evidence against its potential for unfair prejudice,” it has broad
discretion in this decision. State v. Connor, 215 Ariz. 553, 564 ¶ 39, 161 P.3d
596, 607 (App. 2007) (citation omitted). On this record, the court did not
abuse its discretion in ruling that the probative value of the testimony of
the victim’s sister was not substantially outweighed by the danger of
unfair prejudice, confusion of the issues or any of the other prohibitions
listed in Rule 403.


                                      4
                           STATE v. TROTTER
                           Decision of the Court

¶10           Finally, the superior court gave a proper limiting instruction
regarding the Rule 404(c) evidence, directing the jurors “[y]ou may not
convict the defendant of the crimes charged simply because you find that
he committed [the other] acts or that he had a character trait that
predisposed him to commit the crimes charged.” See Ariz. R. Evid.
404(c)(2). There was no error in admitting the sexual propensity evidence.

II.    Admission Of Other Acts Evidence.

¶11           Trotter argues the superior court erred in admitting evidence
of his possession of pornography, his computer searches for bestiality and
teen pornography, his inappropriate “cuddling” of the victim and
violence between him and his ex-wife. He claims this evidence should
have been excluded as inadmissible “other acts evidence” pursuant to
Rule 404(b), which provides that “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,” but may be admissible for other, non-
propensity purposes. Ariz. R. Evid. 404(b). More specifically, Trotter
claims the court abused its discretion in admitting this evidence because it
was not relevant and was unfairly prejudicial and that the State did not
prove by clear and convincing evidence that Trotter committed the
alleged other acts.

¶12           In challenging this evidence for the first time on appeal,
Trotter argues “[i]t simply cannot be said beyond a reasonable doubt, that
the jury would have disbelieved [his] defense and convicted him of the
charged crimes if the challenged evidence had never been admitted.” That
standard of review may apply when a timely objection to evidence
erroneously is overruled. State v. Valverde, 220 Ariz. 582, 585 ¶ 11, 208 P.3d
233, 236 (2009) (citing cases). Trotter, however, made no such timely
objection, meaning review on appeal is limited to fundamental error. See
Ariz. R. Crim. P. 21.3(c); State v. Henderson, 210 Ariz. 561, 567 ¶¶ 19–20,
115 P.3d 601, 607 (2005). “Accordingly, [Trotter] ‘bears the burden to
establish that “(1) error exists, (2) the error is fundamental, and (3) the
error caused him prejudice.”’” State v. James, 231 Ariz. 490, 493 ¶ 11, 297
P.3d 182, 185 (App. 2013) (citations omitted). A defendant seeking to
establish fundamental error must “affirmatively ‘prove prejudice’ and
may not rely upon ‘speculation’ to carry his burden.” State v. Dickinson,
233 Ariz. 527, 531 ¶ 13, 314 P.3d 1282, 1286 (App. 2013) (citation omitted).

¶13          Trotter neither argues nor proves that the alleged error in
admitting the other acts evidence was fundamental or caused him
prejudice. Accordingly, Trotter cannot show fundamental error resulting


                                      5
                           STATE v. TROTTER
                           Decision of the Court

in prejudice. See James, 231 Ariz. at 493 ¶ 11, 297 P.3d at 185. Moreover, on
this record, Trotter has not shown the superior court abused its discretion
in admitting this evidence without objection or that the State failed to
prove the other acts by clear and convincing evidence.

¶14            Trotter argues that admitting evidence of a defendant’s
possession of adult pornography may be problematic when facing charges
of possession of child pornography. See State v. Coghill, 216 Ariz. 578, 169
P.3d 942 (App. 2007). Trotter, however, was charged with sexual conduct
with a minor, not possession of child pornography. Moreover, Trotter’s
possession of adult pornography was relevant to his grooming behavior,
as was evidence of his inappropriate “cuddling” of the victim. Trotter’s
possession of adult pornography and computer searches also reinforced
testimony by the victim’s sister of Trotter watching a movie depicting
explicit sexual scenes with her. Finally, evidence of violence between
Trotter and his ex-wife goes to credibility. In short, although the superior
court would have had the discretion to sustain a timely, proper objection
to some of this evidence, no such objection was made and Trotter has not
shown error that was fundamental resulting in prejudice by the admission
of this other act evidence.

III.   Failure To Speak With A Prospective Juror.

¶15          At the conclusion of voir dire, the superior court excused the
prospective jurors from the courtroom to permit the parties to exercise
their peremptory challenges. As the prospective jurors exited, the
following exchange took place between an unidentified male and the
superior court:

             MALE SPEAKER: Can I speak with you for
             one second?

             THE COURT: I’m sorry?

             MALE SPEAKER: Can I speak with you for
             one second?

             THE COURT: No, at this point we’ve already –
             we’ve already done that.

The male speaker, who Trotter assumes was a prospective juror, was
never identified and did not further address the court.




                                     6
                            STATE v. TROTTER
                            Decision of the Court

¶16             Trotter claims the superior court erred in not conducting
further inquiry about whatever the male speaker wanted to discuss. He
asserts that, in failing to do so, the court may have permitted a biased
juror to sit as a juror. Because Trotter failed to timely object, the review on
appeal is for fundamental error. Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d
at 607. Because Trotter failed to raise the issue with the superior court, the
record does not indicate the identity of the speaker, what he wanted to
discuss or whether he was seated as a juror. Consequently, on this record,
Trotter cannot show prejudice required to obtain relief under fundamental
error review. See Dickinson, 233 Ariz. at 531 ¶ 13, 314 P.3d at 1286.

IV.    Presentence Incarceration Credit.

¶17           Trotter argues, and the State concedes, that he is entitled to
159 days of presentence incarceration credit to be applied against the
sentence imposed on Count 1. See A.R.S. § 13–712(B). The record reflects
that Trotter was held in custody for 159 days before sentencing.
Accordingly, pursuant to A.R.S. § 13–4037(B), Trotter’s sentence is
modified to reflect 159 days of presentence incarceration credit to be
applied against the sentence imposed on Count 1. See State v. Stevens, 173
Ariz. 494, 496, 844 P.2d 661, 663 (App. 1992).

                              CONCLUSION

¶18            Trotter’s convictions and sentences are affirmed as modified
to reflect 159 days of presentence incarceration credit for Count 1.




                                   :ama




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