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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      JACK LEON BLYTHE, Appellant.

                             No. 1 CA-CR 15-0339
                               FILED 3-31-2016


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201301611
               The Honorable Lee Frank Jantzen, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

The Brewer Law Office, Show Low
By Benjamin M. Brewer
Counsel for Appellant
                            STATE v. BLYTHE
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge John C. Gemmill joined.


D O W N I E, Judge:

¶1            Jack Leon Blythe appeals his convictions and sentences for
three counts of child molestation. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Blythe was charged with three counts of molestation of a
child — class 2 felonies in violation of Arizona Revised Statutes (“A.R.S.”)
section 13-1410. The State alleged three separate instances involving
sexual contact with A.W., a person under 15 years of age. At trial, the
State introduced evidence that Blythe molested A.W. at a church they both
attended, in his vehicle at a shopping center, and in A.W.’s bedroom. The
jury returned guilty verdicts as to each count. Blythe timely appealed.
We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and
-4033(A)(1).

                              DISCUSSION

I.    “Other Act” Evidence

¶3            Blythe contends the trial court erred by allowing the State to
introduce “other act evidence” suggesting that he had molested A.W. at
church on more than one occasion. He contends the court did so without
first determining the admissibility of such evidence under Arizona Rules
of Evidence 404(b) and (c).1


1     Rule 404(b) states 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. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Rule 404(c)
permits “evidence of other crimes, wrongs, or acts” if it is “relevant to
show that the defendant had a character trait giving rise to an aberrant



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                             STATE v. BLYTHE
                            Decision of the Court

¶4             Because Blythe did not preserve this objection in the trial
court, we review only for fundamental error. See State v. Henderson, 210
Ariz. 561, 567, ¶ 19 (2005). “To prevail under this standard of review, a
defendant must establish both that fundamental error exists and that the
error in his case caused him prejudice.” Id. at ¶ 20.

¶5            What Blythe labels “other act evidence” came up during the
State’s questioning of A.W. as follows:

       Q. Do you remember how many times that happened to
       you at the church?

       A.   No.

       Q.   Do you remember the last time that it happened?

       A.   Yes.

       Q.   Tell us about the last time that it happened.

       A.   It was in a room on the stage.

              ....

       Q. The classroom that you were in at the church when it
       happened the last time, does that classroom have -- does it
       have a regular door like one of the doors that’s over here?

       A.   It has a regular door and like a slide thing.

Additionally, in responding to other questions by the prosecutor, A.W.
suggested there were other incidents occurring at the church when Blythe
would take her “into his office . . . or he would take [her] somewhere into
— on the stage,” she would “get on the floor,” and Blythe would “get on
top of [her] and go up and down.”


sexual propensity to commit the offense charged.” Before a court admits
prior act evidence, it must find “clear and convincing proof both as to the
commission of the other bad act and that the defendant committed the
act.” State v. Anthony, 218 Ariz. 439, 444, ¶ 33 (2008). It must also find
that: (1) the prior act is offered for a proper purpose; (2) the act is relevant
to prove that purpose; and (3) the probative value of admitting the
evidence is not outweighed by the potential for unfair prejudice. Id.



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                            STATE v. BLYTHE
                           Decision of the Court

¶6           A.W.’s testimony — considered in its entirety — is fairly
construed as conveying to jurors that Blythe committed other acts of
molestation at the church. Indeed, in her final closing argument, the
prosecutor stated as much, telling the jury:

      [A.W.] testified that this thing happened to her more times
      than what the State charged, and of course there’s an
      instruction that says that you’re not to consider that for the
      charges itself but to decide whether or not . . . there’s intent,
      whether or not there was opportunity and things like that.

      But it also explains why [A.W.] may not remember each time
      it happened the particulars of each time, at least on the stage
      or in the back room of the classroom or on the stage. She
      testified it happened more times than just the time that she
      was caught – or that [Blythe] was caught by [A.W.’s
      brother].

      So the fact that she doesn’t remember specifically certain
      details about that specific time doesn’t meant that she’s
      being inconsistent.

¶7              The trial court should have conducted an admissibility
analysis under Rules 404(b) and (c). Its failure to do so, though, does not
end our inquiry. Because Blythe neither raised Rule 404 nor objected to
the testimony or closing argument, we review only for fundamental error.
“Fundamental error is error going to the foundation of the case, error that
takes from the defendant a right essential to his defense, and error of such
magnitude that the defendant could not possibly have received a fair
trial.” State v. Ruggiero, 211 Ariz. 262, 268, ¶ 25 (App. 2005).

¶8             “Arizona has long recognized that testimony about prior
bad acts does not necessarily provide grounds for reversal.” State v. Jones,
197 Ariz. 290, 305, ¶ 34 (2000). One relevant consideration is whether the
jury received a limiting instruction. Id. Here, the trial court instructed
jurors as follows:

      Evidence of other acts has been presented. You may
      consider these acts only if you find that the State has proved
      by clear and convincing evidence that the defendant
      committed these acts. You may only consider these acts to
      establish the defendant’s motive, opportunity, intent,
      preparation, plan, knowledge, identity, absence of mistake
      or accident. You must not consider these acts to determine


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                             STATE v. BLYTHE
                            Decision of the Court

       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.

¶9            This instruction — highlighted by the prosecutor in her
closing argument — made clear that jurors could consider uncharged acts
occurring at the church only if the State proved by clear and convincing
evidence that Blythe committed those acts — something the State made no
attempt to do. In the absence of any reason to conclude otherwise, we
presume that jurors followed their instructions. See State v. Velazquez, 216
Ariz. 300, 312, ¶ 50 (2007). More fundamentally, Blythe has not
established that the brief and vague references to other incidents
occurring at the church constitute error going to the foundation of the
case, removing a right essential to his defense — especially where he was
charged with, and found guilty of, multiple acts of molestation that had
been charged. See, e.g., State v. Cruz, 218 Ariz. 149, 166, ¶ 102 (2008)
(defendant “failed to show that the snippet of [other act] testimony
rendered his trial fundamentally unfair”).

¶10          Under these circumstances, we conclude that although A.W.
should not have been permitted to testify about the other acts without a
Rule 404 analysis, such error was not fundamental.

II.    Rule 20 Motion

¶11          Blythe next argues the trial court applied an incorrect legal
standard in denying his motion for judgment of acquittal. Alternatively,
he contends, the case should not have been submitted to the jury. We
disagree with both contentions.

¶12           We review the denial of a Rule 20 motion de novo. State v.
Parker, 231 Ariz. 391, 407, ¶ 69 (2013). “[T]he relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Id. at ¶ 70 (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)).

¶13           In denying Blythe’s motion, the trial court did not precisely
track the words of Rule 20. Fairly read, however, the court‘s comments
made clear that it understood the relevant inquiry to be whether
reasonable minds could differ about Blythe’s guilt based on the State’s
evidence. See, e.g., State v. West, 226 Ariz. 559, 562, ¶ 16 (2011) (substantial
evidence is “such proof that reasonable persons could accept as adequate


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                            STATE v. BLYTHE
                           Decision of the Court

and sufficient to support a conclusion of defendant’s guilt beyond a
reasonable doubt”). And the State in fact presented substantial evidence
of guilt. Although Blythe stresses that A.W. required prompting before
relaying information to an investigator and was, at times, inconsistent in
her statements, those were factors for the jury to weigh in assessing her
credibility. See State v. Clemons, 110 Ariz. 555, 556–57 (1974) (“No rule is
better established than that the credibility of the witnesses and the weight
and value to be given to their testimony are questions exclusively for the
jury.”). Considering the evidence in the light most favorable to the State,
jurors could reasonably conclude that Blythe was guilty of the charged
offenses.

                             CONCLUSION

¶14          We affirm Blythe’s convictions and sentences.




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