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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      JERRY LEON PATTON, Appellant.

                              No. 1 CA-CR 12-0798
                                FILED 3-10-2015


            Appeal from the Superior Court in Maricopa County
                       No. CR2011-005333-001 DT
                The Honorable Susanna C. Pineda, Judge

                         AFFIRMED AS MODIFIED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Thomas K. Baird
Counsel for Appellant

Jerry Leon Patton, Florence
Appellant
                            STATE v. PATTON
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Maurice Portley and Judge John C. Gemmill joined.


C A T T A N I, Judge:

¶1            Jerry Leon Patton appeals his convictions and sentences for
three counts of sexual conduct with a minor. Patton’s counsel filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297, 451 P.2d 878 (1969), certifying that he found no arguable
question of law that was not frivolous and asking the court to review the
record for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2
P.3d 89, 96 (App. 1999). Patton subsequently filed a supplemental brief.
After reviewing the record, we affirm Patton’s convictions and sentences,
but vacate the superior court’s order requiring Patton to pay the cost of
required DNA testing.

            FACTS AND PROCEDURAL BACKGGROUND1

¶2             In 1991, Patton began dating a woman in Illinois and moved
into the home she shared with her son and two daughters. The victim (the
older daughter) was eight years old when Patton moved in, and he quickly
became a father figure to her. When the victim was 11 or 12, Patton began
sexually abusing her on a regular basis. At age 13, the victim became
pregnant as a result of sexual intercourse with Patton. The victim’s mother
testified that Patton admitted having sex with the victim and impregnating
her. A paternity test confirmed that Patton was the father of the victim’s
child.

¶3           Patton and a friend brought the pregnant victim to Phoenix
for a couple of weeks.2 At the hotel in which the three of them stayed,
Patton engaged in sexual conduct with the victim. Throughout the victim’s


1      We view the facts in the light most favorable to sustaining the jury’s
verdict and resolve all reasonable inferences against Patton. State v. Fontes,
195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998).

2      Although Patton and the victim’s family moved several times over
the years, all three charged crimes occurred in Maricopa County.


                                       2
                           STATE v. PATTON
                           Decision of the Court

pregnancy, Patton continued to have sex with her. The victim’s mother and
sister eventually joined her and Patton in Phoenix, where they continued to
live for several years.

¶4            To explain the victim’s pregnancy, Patton and the victim’s
mother fabricated a story that the victim had been raped at a campsite. The
victim’s mother and Patton decided to raise the child as their own, and a
few years later, the victim’s mother gave birth to her own son with Patton.
Throughout this time, Patton continued to have sex with the victim until
she was seventeen years old.

¶5             The victim’s mother and Patton ended their relationship in
2010, leading to litigation over who should have custody of their biological
child, as well as the victim’s child. Patton was awarded full custody of both
boys and an order of protection was issued against the victim’s mother and
her daughters. It was during this time period that the victim reported
Patton’s extensive sexual abuse. In early 2011, Patton was arrested and
charged with three counts of sexual conduct with a minor.

¶6            Before trial, the State moved under Rule 404(c) of the Arizona
Rules of Evidence to admit evidence of Patton’s other acts of sexual conduct
with minors. Specifically, the State sought to admit (1) a 1978 Indiana
incident/conviction for sexual conduct with a 15-year-old girl, (2)
uncharged incidents of sexual conduct with the victim’s younger sister, and
(3) uncharged out-of-state incidents of sexual conduct with the victim.
Patton objected, and in a detailed minute entry order, the court denied the
Rule 404(c) motion as to the 1978 incident, but granted the State’s request
to introduce evidence of the uncharged incidents with the victim and with
her younger sister.

¶7            After a ten-day jury trial, Patton was convicted on all three
counts. The court sentenced Patton to consecutive presumptive terms of 20
years on each count. The court credited Patton with 695 days of presentence
incarceration credit.

¶8            Patton timely appealed. We have jurisdiction under Article 6,
Section 9, of the Arizona Constitution and Arizona Revised Statutes
(“A.R.S.”) §§ 12-120.21(A)(1), 13-4031, and -4033.3




3     Absent material revisions after the relevant date, we cite a statute’s
current version.


                                     3
                            STATE v. PATTON
                            Decision of the Court

                               DISCUSSION

¶9            We have read and considered counsel’s brief and Patton’s
supplemental brief, and we have reviewed the record for reversible error.
See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find none.

I.     Admission of 404(c) Evidence.

¶10          Patton contends the court erred by granting a portion of the
State’s Rule 404(c) motion and thus allowing into evidence testimony
regarding uncharged sexual acts with the victim and her younger sister.

¶11            In cases involving sexual offenses, evidence of a defendant’s
“other crimes, wrongs, or acts may be admitted by the court if relevant to
show that the defendant had a character trait giving rise to an aberrant
sexual propensity to commit the offense charged.” Ariz. R. Evid. 404(c); see
State v. Herrera, 232 Ariz. 536, 545, ¶ 22, 307 P.3d 103, 112 (App. 2013). This
type of evidence is admissible under Rule 404(c) upon a showing that:

       (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.

¶12           Here, the court found sufficient evidence to support the
admission of the uncharged incidents involving the victim and those
involving her younger sister. Statements by the victim’s younger sister
(that were corroborated by the victim and her mother) supported the
court’s conclusion that the younger sister’s allegations were credible, and
that they evidenced an aberrant sexual propensity for sexual activity with
young girls. Similarly, the interviews with the victim, a corroborating
statement from her childhood friend, Patton’s admission to fathering the
victim’s child, and DNA results showing that Patton is the father further
supported the court’s conclusion. As the court noted, the evidence showed
a continuous pattern of sexual abuse, not remote in time and not otherwise
inadmissible under Rule 403. Accordingly, the superior court did not err
by allowing admission of this other act evidence.


                                       4
                            STATE v. PATTON
                            Decision of the Court

¶13           Although the victim’s sister (by surprise to the State) testified
beyond the scope allowed by the Rule 404(c) ruling, the court instructed the
jury to disregard that portion of the testimony and admonished the State to
keep its questioning within the permitted scope of the ruling. The court
denied Patton’s motion for mistrial, a ruling we review for an abuse of
discretion. See State v. Trotter, 110 Ariz. 61, 65, 514 P.2d 1249, 1253 (1973).

¶14           The improper testimony at issue included sexually explicit
information about alleged acts between Patton and the victim’s sister.
Given the numerous other graphic details described by the victim in this
case, the superior court did not abuse its discretion by finding that this
portion of the testimony did not unfairly prejudice Patton. Instructing the
jury to disregard the witness’s statement rather than granting a mistrial was
within the court’s discretion. See State v. Dann, 205 Ariz. 557, 570, ¶ 46, 74
P.3d 231, 244 (2003) (reiterating that jurors are presumed to follow the
court’s instructions).

II.    Defendant’s Presence.

¶15            Patton was present and represented by counsel at all critical
stages of the proceedings against him. Contrary to his assertion, Patton did
not have a right to be present at the grand jury hearing. See State v. Meek, 9
Ariz. App. 149, 153, 450 P.2d 115, 119 (App. 1969) (“The grand jury has
always been a secret, non-public affair, and . . . . [it is] not mandatory that
the defendant be present or even be apprised that a hearing is being
conducted.”). Therefore his absence did not result in a denial of due
process.

¶16           “When reviewing a defendant’s absence from preliminary
hearings, the court should examine the record as a whole and determine
‘whether [the] accused suffered any damage by reason of his absence.’”
Dann, 205 Ariz. at 571–72, ¶ 53, 74 P.3d at 245–46 (citation omitted).
Although Patton was absent for several pretrial hearings, his counsel was
present at each hearing and waived Patton’s presence each time, other than
at a complex case designation conference. Although defendants have a
right “to be present at every stage of the trial,” Ariz. R. Crim. P. 19.2, this
right only applies to open proceedings where the defendant’s presence
substantially relates “to the fullness of his opportunity to defend against the
charge.” Dann, 205 Ariz. at 571, ¶ 53, 74 P.3d at 245 (citation omitted).

¶17         The minute entry for the complex case designation conference
does not indicate that Patton’s counsel formally waived his client’s
presence. But Patton provided no evidence, other than self-serving



                                      5
                            STATE v. PATTON
                            Decision of the Court

statements in his supplemental brief, that his brief absence prejudiced his
case. Patton was present for the entire trial, including for the verdict and
sentencing. Accordingly, Patton has not established reversible error based
on his absence from the complex case designation conference.

III.   Speedy Trial and Continuances.

¶18           A defendant must be tried within 270 days of arraignment
when there is a complex case designation. Ariz. R. Crim. P. 8.2(a)(3). Here,
the superior court granted a total of seven continuances prior to trial and
excluded 391 days for Rule 8 purposes. The State requested four of these
continuances (210 days excluded) and all were granted with Patton’s
agreement to waive time. Patton nevertheless claims that the continuances
and subsequent exclusions of time violated his right to a speedy trial.

¶19          Patton was arraigned on January 27, 2011, and his trial ended
on November 15, 2012. Although Patton alleges that he was arraigned a
week prior, the record does not support this assertion. Between the
arraignment and the end of trial, 658 days elapsed. After subtracting the
time Patton waived (391 days), the total number of days between Patton’s
arraignment and the end of trial was 267 days, which was within the 270-
day limit.

¶20            This court will not find an abuse of discretion in granting a
trial continuance unless a defendant establishes prejudice under the specific
facts of the case. State v. VanWinkle, 230 Ariz. 387, 290, ¶ 7, 285 P.3d 308,
311 (2012); State v. Spreitz, 190 Ariz. 129, 136, 945 P.2d 1260, 1267 (1997).
Here, Patton failed to establish any prejudice from the continuances and
exclusion of time. Many of the continuances were made either by motion
from defense counsel or pursuant to an agreement by the parties. Although
Patton now argues that he did not authorize these continuances, the
evidence is to the contrary.

¶21            Finally, contrary to Patton’s assertions, Rule 8.5(b) does not
set forth a maximum amount of time for which a continuance may be
granted. Rather, the rule states that “[a] continuance may be granted only
for so long as is necessary to serve the interests of justice.” Ariz. R. Crim. P.
8.5(b). Given defense counsel’s agreement to the continuances, as well as
the State’s explanation for the requests, the court did not err by granting the
continuances. Accordingly, Patton’s right to a speedy trial was not violated.




                                       6
                            STATE v. PATTON
                            Decision of the Court

IV.    Complex Case Designation.

¶22            We review a court’s decision to designate a case as complex
for an abuse of discretion. Snyder v. Donato, 211 Ariz. 117, 120, ¶ 7, 118 P.3d
632, 635 (App. 2005). A complex case is “so complicated, by virtue of its
nature or because of the evidence required, that the ordinary limits for the
time to trial are insufficient and must be extended to afford more time to
prepare so that the case can be fairly and fully presented.” State v.
Wassenaar, 215 Ariz. 565, 570, ¶ 9, 161 P.3d 608, 613 (App. 2007) (quoting
Snyder, 211 Ariz. at 120, ¶ 12, 118 P.3d at 635).

¶23            Prior to trial, Patton’s counsel requested the complex case
designation, citing the following as grounds: (1) the case involved multiple
counts of sexual conduct with minors, occurring in 1994 or 1995, (2) the
offenses were class 2 felonies alleged as dangerous crimes against children,
(3) a busy trial schedule prevented defense counsel from reviewing
extensive discovery materials, (4) defense counsel anticipated having to
hire an investigator, and (5) potential witnesses for both the State and the
defense lived out of state. Although the motion was untimely given the
superior court’s order that all pretrial motions be filed at least 20 days
before the final trial management conference, the court nevertheless acted
within its discretion in considering the motion. See State v. Colvin, 231 Ariz.
269, 271, ¶ 7, 293 P.3d 545, 547 (App. 2013) (“Trial courts have discretion to
extend the time for filing motions and, implicitly, to hear untimely
motions.”). Without objection from the State, the court granted the motion
to designate the case as complex.

¶24            Because Patton requested the complex case designation, he
invited any conceivable error from that designation, and he waived
appellate review relating to that issue. See State v. Logan, 200 Ariz. 564, 565–
66, ¶¶ 8–9, 30 P.3d 631, 632–33 (2001). Moreover, Patton does not claim, nor
is there any evidence in the record, that the complex case designation
prejudiced his case. Rather, Patton’s attorney requested the designation to
better prepare for trial. Although defense counsel’s busy schedule should
have no bearing on whether a case is complex, cf. Snyder, 211 Ariz. at 123,
¶¶ 25–26, 118 P.3d at 638 (investigator’s heavy workload or laboratory’s
backlog is not a valid basis for complex designation), the age of the events
underlying the indictment and the location of material witnesses out of the
state supported the court’s decision to designate the case as complex.
Accordingly, Patton has not established error.




                                       7
                            STATE v. PATTON
                            Decision of the Court

V.     Ineffective Assistance of Counsel.

¶25            Patton claims his counsel was ineffective. But ineffective
assistance of counsel claims must be raised in a post-conviction proceeding
under Arizona Rule of Criminal Procedure 32, and this court will not
consider such claims brought on direct appeal “regardless of merit.”
Spreitz, 202 at 3, ¶ 9, 39 P.3d at 527; State ex rel. Thomas v. Rayes, 214 Ariz.
411, 415, ¶ 20, 153 P.3d 1040, 1044 (2007). We therefore do not address
Patton’s claims.

VI.    Insufficient Donald Advisement.

¶26             The court gave Patton a Donald4 advisement at a pretrial
conference and informed him of a plea offered by the State. The court
initially told Patton that if he rejected the plea and was convicted, he would
be exposed to mandatory consecutive sentences of 35 years to life on each
of the three counts. The prosecutor then informed the court that, because
the victim was 13 or 14 years old (rather than 12 or under), the sentencing
range for each count was less. The court corrected itself and told Patton
that, if convicted of all three counts, he would be exposed to “13 to 27 with
a presumptive being 20 but mandatory/stacked,” yielding a minimum
possible term of 39 years, and a maximum of 81 years.

¶27           Although the court initially misstated Patton’s potential
sentence, the court corrected itself, and Patton indicated he understood the
plea offer and the potential sentence if he rejected the plea and was
convicted as charged. Patton had the opportunity for further clarification,
but indicated that he understood the plea offer. Accordingly, we find no
error.

VII.   Prosecutorial Misconduct.

¶28          We review Patton’s claims of prosecutorial misconduct for
fundamental, prejudicial error because he did not object to the alleged
misconduct at trial. See State v. Henderson, 210 Ariz. 561, 567–68, ¶¶ 19–20,
115 P.3d 601, 607–08 (2005). “To warrant reversal, the prosecutorial
misconduct must be ‘so pronounced and persistent that it permeates the
entire atmosphere of the trial.’” State v. Newell, 212 Ariz. 389, ¶ 61, 402, 132



4     State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (App. 2000) (requiring an
on-the-record determination that a defendant has been advised of any
proposed plea agreements).


                                       8
                           STATE v. PATTON
                           Decision of the Court

P.3d 833, 846 (2006) (citation omitted). We find no such misconduct in this
case.

¶29          Patton contends the prosecutor made several arguments that
were “false and self-serving” in support of the State’s Rule 404(c) motion.
He argues that the prosecutor lied about facts relating to Patton’s prior
conviction and about other sexual acts with the victim and her sister. Patton
further contends that he was not timely informed of the State’s plea offer.

¶30           After reviewing the record, we find no evidence of false
statements by the prosecutor. And Patton’s attorney acknowledged in the
pretrial conference statement that a plea offer had been made, and Patton
indicated that he understood the terms of the offered plea at the Donald
hearing. Patton has not established prosecutorial misconduct, much less
fundamental error resulting from such misconduct.

VIII. Expert Testimony.

¶31           Patton contends the court erred by allowing an expert who
was unaware of the facts underlying the case to testify about general
indications of sexual abuse in children. The Arizona Supreme Court has
held that “expert testimony about general behavior patterns of child sexual
abuse victims may help the jury understand the evidence.” State v. Salazar-
Mercado, 234 Ariz. 590, 594, ¶¶ 14–15, 325 P.3d 996, 1000 (2014). Even
though the expert did not have personal knowledge of the case, under
Arizona Rule of Evidence 702(a), the testimony was appropriate to help the
jury to understand possible reasons for the victim’s delayed and
inconsistent reporting. Id.

IX.    Sufficiency of the Evidence.

¶32           Patton asserts that the victim’s sister’s testimony only
established limited touching. However, she clearly stated that Patton
regularly had sexual intercourse with her while she was a minor.

¶33            Patton also challenges the victim’s mother’s testimony and
argues that she did not have personal knowledge of the events about which
she testified. Because Patton did not raise this objection at trial, we review
for fundamental, prejudicial error only. See Henderson, 210 Ariz. at 567, ¶
19, 115 P.3d at 607. Patton has not established error, much less prejudicial
error given corroborating testimony from the victim and the victim’s sister
regarding their personal knowledge of being sexually assaulted by Patton
for over a decade.



                                      9
                            STATE v. PATTON
                            Decision of the Court

X.     Improper Search.

¶34           Patton argues that the buccal swab taken from the victim’s
son (proving Patton’s paternity) was done without appropriate parental
consent. Even if his contention had merit, Patton was not prejudiced by the
resulting DNA evidence because his paternity was never in question; he
admitted to being the child’s father prior to trial, as well as during his trial
testimony. Patton in fact asserted at trial that the victim became pregnant
by being artificially inseminated with his semen.

XI.    Defendant’s Right to Testify.

¶35           Although Patton testified on his own behalf, he contends that
he was prevented from testifying about various precluded matters.
Because Patton did not raise this objection at trial, we review for
fundamental, prejudicial error only. See Henderson, 210 Ariz. at 567, ¶ 19,
115 P.3d at 607. Evidence is relevant if “it has any tendency to make a fact
more or less probable than it would be without the evidence; and the fact is
of consequence in determining the action.” Ariz. R. Evid. 401. But “[t]he
court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Ariz. R. Evid. 403.

¶36           Patton contends that he was prevented from testifying about
the victim’s mother’s suicide attempts and her involvement with child
protective services, as well as about the victim’s sister’s alleged criminal
behavior in the family’s home. He has not established, however, why these
allegations were relevant, and nothing in the record suggests their absence
resulted in fundamental error.

XII.   Statute of Limitations.

¶37           Contrary to Patton’s assertions, the record reflects that he was
convicted and sentenced under the appropriate statutes, within the
prescribed seven-year statute of limitations. See State v. Jackson, 208 Ariz.
56, 65, ¶ 30, 90 P.3d 793, 802 (App. 2004) (“[T]he seven-year limitation
period under [A.R.S. § 13-107(B)] begins ‘when the authorities know or
should know in the exercise of reasonable diligence that there is probable
cause to believe a criminal [offense] has been committed.’”) (citation
omitted). Although Patton committed the crimes in 1995 and 1996, they
were not brought to the authorities’ attention until the victim came forward
in 2010. Therefore, Patton was prosecuted within the appropriate statute of
limitations period. To the extent Patton challenges the applicability of


                                      10
                             STATE v. PATTON
                             Decision of the Court

procedural rules that were enacted or modified after the time of the
offenses, such procedural rules governing the conduct of trial (rather than
those establishing substantive law) may be applied retroactively without
violating ex post facto prohibitions. See, e.g., State ex rel. Romley v. Rayes, 206
Ariz. 58, 62, ¶ 13, 75 P.3d 148, 152 (App. 2003).

XIII. Improper Order for Payment.

¶38            At sentencing, the superior court ordered, pursuant to A.R.S.
§ 13–610, that Patton “submit to DNA testing for law enforcement
identification purposes and pay the applicable fee for the cost of that
testing.” In State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App.
2013), this court held that A.R.S. § 13–610 does not authorize the sentencing
court to require the convicted person to pay for DNA testing. We therefore
vacate the portion of the sentencing order requiring Patton to pay the cost
of DNA testing.

                                CONCLUSION

¶39            The record reflects that the superior court afforded Patton all
his rights under the constitution and our statutes, and that the proceedings
were conducted in accordance with the Arizona Rules of Criminal
Procedure. The court conducted appropriate pretrial hearings, and the
evidence presented at trial, as summarized above, was sufficient to support
the jury’s guilty verdict. Patton’s sentence falls within the range prescribed
by law, with proper credit given for presentence incarceration. We
therefore affirm Patton’s convictions and sentences, as modified above.

¶40           After the filing of this decision, defense counsel’s obligations
pertaining to Patton’s representation in this appeal will end after informing
Patton of the outcome of this appeal and his future options. See State v.
Shattuck, 140 Ariz. 582, 584–85, 684 P.2d 154, 156–57 (1984). Patton shall
have 30 days from the date of this decision to proceed, if he desires, with a
pro se motion for reconsideration or petition for review.




                                     :ama


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