                                IN THE COURT OF APPEALS
                                    STATE OF ARIZONA
                                      DIVISION TWO


THE STATE OF ARIZONA,                           )
                                                )
                                  Petitioner,   )
                                                )
                     v.                         )
                                                )          2 CA-SA 2002-0067
HON. MONICA STAUFFER, Judge of the              )          DEPARTMENT B
Superior Court of the State of Arizona, in      )
and for the County of Graham,                   )          OPINION
                                                )
                                Respondent,     )
                                                )
                     and                        )
                                                )
AMIEL PROTO,                                    )
                                                )
                      Real Party in Interest.   )
                                                )


                             SPECIAL ACTION PROCEEDING

                           Graham County Cause No. CR 2002-089

                                RELIEF GRANTED IN PART


Barbara LaWall, Pima County Attorney
 By Elizabeth Hurley                                                                  Tucson
                                                                      Attorneys for Petitioner

Dennis McCarthy                                                                        Safford
                                                            Attorney for Real Party in Interest


E S P I N O S A, Chief Judge.


¶1            Petitioner the State of Arizona seeks special action relief from the respondent

judge’s order in the underlying sexual abuse prosecution granting real party in interest Amiel
Proto’s motion to compel interviews of three witnesses the state intends to call at trial. The state

contends that these witnesses are victims who have the right to refuse defense interviews under the

Victims’ Bill of Rights, Ariz. Const. art. II, § 2.1(A)(5), and the equivalent statutory provision,

A.R.S. § 13-4433. The issues raised are of first impression, pure questions of law, and have

significant statewide ramifications. Moreover, the state does not have an equally plain, speedy,

and adequate remedy by way of appeal. See State ex rel. Romley v. Hutt, 195 Ariz. 256, 987 P.2d

218 (1999). Because we find that the respondent judge erred by granting the motion to compel as

to one of the witnesses, we accept jurisdiction of this special action and grant partial relief. Ariz.

R. P. Special Actions 1(a), 3, 17B A.R.S.

¶2             Proto is being prosecuted for allegedly committing sexual abuse against V.M. in

the fall of 2001. Rule 404(c), Ariz. R. Evid., 17A A.R.S., permits the admission of “evidence

of other crimes, wrongs, or acts . . . if relevant to show that the defendant had a character trait

giving rise to aberrant sexual propensity to commit the offense charged.” Under that rule, the

state plans to call three witnesses, N.T., T.G., and D.M., to testify that Proto committed similar

acts of sexual misconduct against them. The incident involving N.T. took place in the spring of

2000 and resulted in Proto’s conviction for sexual abuse, the appeal from which is pending in this

court. State v. Proto, No. 2 CA-CR 2001-0453. The incident involving D.M. allegedly occurred

in the summer of 1998. The incident involving T.G. allegedly occurred sometime in 1997. The

latter two alleged incidents did not result in arrests or the filing of criminal charges.

¶3             Proto apparently sought pretrial interviews of N.T., T.G., and D.M. Invoking the

Victims’ Bill of Rights on their behalf, the state informed Proto that all three were victims of

criminal offenses committed by him and that they refused to be interviewed by him about those

offenses prior to their testimony in the prosecution of Proto’s alleged sexual abuse of V.M. Proto

                                                  2
moved to compel the interviews, see Ariz. R. Crim. P. 15.3, 16A A.R.S.; the state opposed that

motion, claiming that the witnesses were victims and were entitled to refuse. The respondent

judge summarily granted Proto’s motion to compel all three interviews. At the state’s request, the

court stayed the proceedings pending the result of this special action. The issue we must address

is whether victims’ rights attach to such Rule 404(c) witnesses in the prosecution of a defendant

for an offense against a third person, an issue of first impression in this state.

¶4             “The Victims’ Bill of Rights . . . was adopted and its statutory implementation

enacted . . . to provide crime victims with ‘basic rights of respect, protection, participation and

healing of their ordeals.’” Champlin v. Sargeant, 192 Ariz. 371, ¶20, 965 P.2d 763, ¶20 (1998),

quoting the “Victims’ Rights Implementation Act,”1 1991 Ariz. Sess. Laws, ch. 229, § 2. As

amended in 1990, the Arizona constitution provides: “[A] victim of crime has a right . . . [t]o

refuse an interview, deposition, or other discovery request by the defendant, the defendant’s

attorney, or other person acting on behalf of the defendant.” Ariz. Const. art. II, § 2.1(A)(5). The

victims’ rights implementation legislation expanded on this concept and sets forth procedures by

which this right can be invoked. § 13-4433. “Victim” is defined in both the constitution and the

implementation legislation as “a person against whom the criminal offense has been committed.”

Ariz. Const. art. II, § 2.1(C); A.R.S. § 13-4401(19).           “Criminal offense” is defined in

§ 13-4401(6) as “conduct that gives a peace officer or prosecutor probable cause to believe that

a felony or that a [serious] misdemeanor . . . has occurred.”

¶5             The respondent judge’s order appears to conflict with the statutory and

constitutional provisions cited above. By declaring N.T., T.G., and D.M. to be Rule 404(c)


       1
       This Act added Chapter 40 to the criminal code, “Crime Victims’ Rights,” A.R.S.
§§ 13-4401 to 13-4437. 1991 Ariz. Sess. Laws, ch. 229, § 7.

                                                 3
witnesses and by invoking § 13-4433 on their behalf, the prosecutor essentially avowed that he had

probable cause to believe that Proto had committed felonious acts against them, which facially

would appear to qualify them as victims under §§ 13-4401(6) and (19). But, A.R.S. § 13-4402(A)

provides: “Except as provided in §§ 13-44042 and 13-4405,3 the rights and duties that are

established by this chapter arise on the arrest or formal charging of the person or persons who are

alleged to be responsible for a criminal offense against a victim.”           Of the alleged incidents

involving the three potential Rule 404(c) witnesses, only the offense against N.T. resulted in an

arrest or formal criminal charges.

                       Application of § 13-4402(A) to Rule 404(c) Witnesses

¶6                We first address whether § 13-4402(A) applies to N.T. in this prosecution of Proto

for an offense against another. N.T. is a victim whose rights have arisen under the statute by

virtue of the formal charges filed against Proto that led to his prosecution and conviction for

committing an offense against her. Those rights remain in effect while Proto appeals that

conviction. § 13-4402(A). Whether N.T.’s rights extend to the instant, unrelated prosecution is

a question for which there is no direct answer in the Victims’ Bill of Rights or in Chapter 40, Title

13, although our supreme court addressed a similar issue in Champlin. The defendant in that case

had been charged with offenses arising out of four criminal acts committed against three victims

on three separate occasions. Some victims allegedly had witnessed some of the crimes committed

against other victims. The trial court denied the defendant’s motion to depose all three of these

individuals, finding they were victims and could, therefore, decline to be interviewed under


       2
           Section 13-4404 addresses the limited victims’ rights of legal entities such as corporations.
       3
        Section 13-4405 sets forth the duties of a law enforcement agency, upon detection of a
criminal offense, in informing victims of their rights to available services and information.

                                                    4
§ 13-4433(A). The defendant sought special action review in Division One of this court, which

declined jurisdiction. The defendant then petitioned the supreme court, which granted review “in

order to provide guidance under article 2, section 2.1 of the Constitution and to apply section 13-

4433(A) to the facts of [that] case.” 192 Ariz. at 372, 965 P.2d at 764. The court rejected the

state’s contention that the three victims could refuse to be interviewed entirely and held that the

victims were required to submit to interviews about incidents they might have witnessed on other

occasions, even if committed by the same defendant. The court concluded, however, that each

victim could refuse to be interviewed about offenses committed against that victim or offenses

against others that that victim had witnessed on the same occasion as the offenses committed

against that victim. Champlin.

¶7             Although not directly on point, Champlin stands for the principle that a victim’s

right to refuse to be interviewed about the offense committed against that victim is inviolate, even

as to other offenses allegedly committed on the same occasion by the defendant.4 We see no

reason not to extend that principle to a separate prosecution involving another charge against the

same defendant when that prosecution will require the victim of an unrelated offense by the

defendant to recount the particulars of that offense. Thus, the respondent judge erred in ordering

that N.T. be interviewed about her prospective testimony, pursuant to Rule 404(c), which by its

nature will be limited to Proto’s offense committed against her.




       4
        Proto relies entirely on Champlin, arguing that because N.T., T.G., and D.M. “are
merely witnesses to separate, unrelated [to the offense against V.M.] criminal behavior,” they
cannot be considered victims in the instant case. But Proto misreads Champlin, which held that
victims may be interviewed regarding charges in the indictment to which they were eyewitnesses
so long as they were not also victims on that same occasion. Nothing before us suggests N.T.,
T.G., or D.M. witnessed Proto’s alleged offense against V.M.

                                                 5
¶8             We next address whether § 13-4402(A) applies to T.G. and D.M. The state, noting

that the statute specifies that the triggering event is “the arrest or formal charging of the person

or persons who are alleged to be responsible for a criminal offense against a victim” (emphasis

added), maintains that the arrest or formal charging upon which a victim’s rights arise under

§ 13-4402(A) is not “victim-specific.” The state thus argues that Proto’s arrest and prosecution

in the instant case for the offense against V.M. activated victims’ rights for “all persons whom he

has victimized,” specifically including T.G. and D.M. Although this is a tenable interpretation

of § 13-4402(A), an equally tenable interpretation is that “a criminal offense against a victim”

refers to the offense against the victim whose rights are in question.             Under this latter

interpretation, although T.G. and D.M. might be “victims” in the abstract, their rights to refuse

a defense interview would not yet have arisen because Proto has been neither arrested nor

subjected to criminal charges for the acts the state claims he committed against them. We review

statutory construction and interpretation issues de novo. Rowland v. Great States Ins. Co., 199

Ariz. 577, 20 P.3d 1158 (App. 2001).

¶9             If, as here, the language of the statute is not clear, we look to other indicia of

legislative intent, “including ‘the statute’s context, subject matter, historical background, effects,

consequences, spirit and purpose.’” Norgard v. State ex rel. Berning, 201 Ariz. 228, ¶7, 33 P.3d

1166, ¶7 (App. 2001), quoting Hobson v. Mid-Century Ins. Co., 199 Ariz. 525, ¶8, 19 P.3d

1241, ¶8 (App. 2001). The provision at issue must be considered in the context of the entire

legislative scheme of which it is a part. Hobson. Upon reviewing the entirety of the statutory

provisions for “Crime Victims’ Rights,” A.R.S. §§ 13-4401 to 13-4439, and after considering the

consequences of the interpretation urged by the state here, we conclude that a crime victim’s rights



                                                  6
are specific to a crime committed upon that victim and arise only upon an arrest for or formal

charging of that crime.

¶10            Although the state intends to call N.T., T.G., and D.M. pursuant to Rule 404(c),

which limits their testimony to acts showing sexual propensity, the state’s reasoning would also

bestow victim status and rights upon many witnesses called pursuant to Rule 404(b) to testify about

“other crimes, wrongs, or acts” the accused has allegedly committed against them. Moreover,

whether the prosecutor actually intends to call such persons at trial would be irrelevant to their

status as victims, which would exist, under the state’s logic, any time the prosecutor had probable

cause to believe that a defendant had committed a criminal offense against such a person in an

unrelated incident. Such a broad application of victims’ rights is hardly apparent from the text of

the constitutional or statutory victims’ rights provisions. Indeed, over a decade has passed since

the Arizona Constitution was amended to include the Victims’ Bill of Rights, and this is the first

time the state has urged such a novel interpretation of it and the enabling legislation, at least in

published case law. Had the electorate and the legislature intended for victims’ rights to apply to

this class of witnesses testifying pursuant to Rules 404(b) and (c), that intention could easily have

been made clear.

¶11            In addition, the broad interpretation urged by the state, if logically extended, could

result in burdensome consequences for law enforcement agencies, courts, probation departments,

and prosecutors. Here the state seeks only to invoke N.T.’s, T.G.’s, and D.M.’s rights to refuse

defense interviews, but if the three witnesses are victims whose rights have arisen by reason of

Proto’s arrest and prosecution in the instant case, it follows that they would also have other

statutory rights accorded to victims in this case. The law enforcement agency or prosecutor would

have been required to inform them of the date of Proto’s initial appearance. § 13-4406. The

                                                 7
prosecutor would have been obligated to give them notice of the charge against Proto, their rights

as victims, and the procedures they should follow to invoke their right to confer with the

prosecutor. § 13-4410. Although not involved in the offense, they could demand to confer with

the prosecutor about the state’s direction and disposition of the prosecution. § 13-4419. If Proto

is convicted of the crime against V.M., they would be able to view his presentence report, submit

victim’s impact statements, and present evidence and voice their opinions at Proto’s sentencing

proceeding, despite their lack of any direct involvement in the case. §§ 13-4425, 13-4424,

13-4426.    And, if they felt that they had been denied these or any other victims’ rights to which

they were entitled, they would have standing to bring a special action or, under some

circumstances, an action for damages against the governmental entity allegedly responsible for

violating their rights. § 13-4437.

¶12            We decline to read into Chapter 40 or the Victims’ Bill of Rights a legislative or

electoral intent to turn any given criminal prosecution into a forum in which all persons who might

have been victimized by the defendant in the past can assert victim status and exercise the full

panoply of victims’ rights. Such a result would not only drain the resources of the criminal justice

system, it could also potentially jeopardize the rights of the actual victim of the criminal offense

for which the defendant is prosecuted, including the victim’s right “to justice and due process,”

Ariz. Const. art. II, § 2.1(A), and to “a speedy trial or disposition and prompt and final conclusion

of the case after the conviction and sentence.” Ariz. Const. art. II, § 2.1(A)(10).

¶13            We note that the state’s reasoning would not necessarily extend all the statutory

provisions to N.T., T.G., and D.M.; some of them are expressly limited to proceedings or events

precipitated by a “criminal offense against the victim.” See, e.g., §§ 13-4415 to 13-4416;

§§ 13-4421 to 13-4423. Others, such as the provisions discussed above addressing notice to the

                                                 8
victim and the victim’s rights at sentencing, as well as § 13-4433, which addresses a victim’s right

to refuse a defense interview, simply discuss the rights of a “victim” in general without linking

the term to a specific criminal offense. See, e.g., §§ 13-4406 to 13-4411. But we are unable to

discern from this distinction a legislative intent to have some rights apply only to immediate

victims of the charged crime while other rights, such as the right to refuse a defense interview,

encompass victims of collateral, uncharged acts by the defendant as well. Indeed, some of the

restrictive and non-restrictive statutes clearly apply to the same “victim.” Compare § 13-4419(A)

(stating that prosecutor “shall confer with the victim about the disposition of a criminal offense,

including the victim’s views about . . . plea . . . negotiations”), with § 13-4423(A) (stating that

“victim has the right to be present and be heard at any proceeding in which a negotiated plea for

the person accused of committing the criminal offense against the victim will be presented to the

court”). It appears the legislature avoided redundancy by sometimes merely using the term

“victim” in Chapter 40, Title 13, but it universally used that term to mean the victim of the

criminal offense at issue.

¶14            We also note practical reasons for having a victim’s right to refuse a defense

interview be triggered by an arrest or formal charging. These events result in the availability of

a police report or grand jury or preliminary hearing transcript, which gives some independent,

verifiable assurance of probable cause that a criminal offense has been committed. Moreover,

such documents can also benefit both the prosecution and defense, because they will record and

preserve the facts underlying the alleged victim’s prospective testimony.

¶15            Based on these considerations, we conclude that § 13-4402(A) does not apply to

T.G. and D.M. because their rights to refuse to be interviewed simply have not yet arisen. The

state has not arrested or charged Proto for any criminal acts he might have committed against those

                                                 9
two prospective witnesses. Accordingly, the respondent judge properly ordered T.G. and D.M.

to submit to defense interviews.

                                Constitutionality of § 13-4402(A)

¶16            Anticipating this result, the state alternatively argues that § 13-4402(A) cannot

supersede the victims’ rights enumerated in the Arizona Constitution, and, to the extent it does,

the statute is unconstitutional. We review the constitutionality of a statute de novo and presume

it is constitutional. City of Tucson v. Rineer, 193 Ariz. 160, 971 P.2d 207 (App. 1998). “‘The

party challenging the validity of a statute has the burden of overcoming that strong presumption.’”

Id. at ¶12, quoting State v. Tocco, 156 Ariz. 116, 119, 750 P.2d 874, 877 (1988).

¶17            The Victims’ Bill of Rights itself contains no implementation provision, but it does

provide that “[t]he legislature, or the people by initiative or referendum, have the authority to

enact substantive and procedural laws to define, implement, preserve and protect the rights

guaranteed to victims by this section.” Ariz. Const. art. II, § 2.1(D). The legislature did just that

in enacting § 13-4402(A), thereby implementing a victim’s rights upon the arrest or formal

charging of the accused. Section 13-4402(A) thus complements and completes the victims’ rights

provisions in the state constitution; it does not conflict with the definition of “victim” in Ariz.

Const. art. II, § 2.1(C) or any other provision. We therefore see no constitutional problem in

conditioning the implementation of victims’ rights to the occurrence of verifiable, documented

events such as an arrest or formal charging. The state has failed to rebut the presumption that

§ 13-4402(A) is constitutional.

                                            Conclusion

¶18            We grant the state partial relief and vacate that portion of the respondent judge’s

order granting Proto’s motion to compel a witness interview of N.T. We emphasize that N.T.’s

                                                 10
right to refuse such an interview is merely a continuation of her rights that were implemented

pursuant to her status as a victim in her own case, not from Proto’s arrest or prosecution in the

instant proceeding. But she is not a victim of the alleged offense against V.M. and is not entitled,

therefore, to notice of or a right to participate in the various proceedings in that prosecution.

N.T.’s right to refuse a defense interview in Proto’s previous prosecution for the crime against

N.T. extends into this proceeding to the extent her testimony is limited to Proto’s victimization

of her. Such an extension is consistent with one of the purposes of the Victims’ Bill of Rights,

which is to prevent or minimize the “retraumatization” of a victim who is obligated to recount and

relive the crime that was committed against him or her.5 Champlin, 192 Ariz. 371, ¶20, 965 P.2d

763, ¶20.

¶19            Special action jurisdiction granted; relief granted in part.




                                                   PHILIP G. ESPINOSA, Chief Judge

CONCURRING:



WILLIAM E. DRUKE, Presiding Judge



M. JAN FLÓREZ, Judge


       5
        In its arguments the state repeatedly asserts that the victims should not be “retraumatized”
through defense interviews. The state’s assumption of the role of champion for these victims,
while appropriate and understandable, is also somewhat ironic in light of the fact that it is the state
bringing them into this prosecution; as a result, they will be examined and cross-examined in detail
about their past victimization in open court at a public trial, regardless of victim status. See State
ex rel. Romley v. Superior Court, 172 Ariz. 232, 836 P.2d 445 (App. 1992) (at trial, victim’s
rights must yield to defendant’s right to due process and effective cross-examination of witnesses).

                                                  11
