State v. Crane

799 P.2d 1380, 166 Ariz. 3, 61 Ariz. Adv. Rep. 57, 1990 Ariz. App. LEXIS 210
CourtCourt of Appeals of Arizona
DecidedMay 31, 1990
Docket1 CA-CR 12238, 1 CA-CR 12272 and 1 CA-CR 88-875-PR
StatusPublished
Cited by18 cases

This text of 799 P.2d 1380 (State v. Crane) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Crane, 799 P.2d 1380, 166 Ariz. 3, 61 Ariz. Adv. Rep. 57, 1990 Ariz. App. LEXIS 210 (Ark. Ct. App. 1990).

Opinions

OPINION

EUBANK, Presiding Judge.

Appellant William Matthew Crane (defendant) was charged by indictment with two counts of molestation of a child (counts I and III) and two counts of sexual conduct with a minor (counts II and IV). Defendant had previously been convicted of sexual conduct with a minor, a class 6 felony, and was on probation in CR-8377 at the time of two of the charged offenses in CR-9267. Following a jury trial, defendant was found guilty of all four counts in CR-9267. These convictions were used to revoke defendant’s probation in CR-8377. Defendant received sentences of fifteen years on counts I and II, twenty years on count III, and eighteen years on count IV. The sentences on counts III and IV were to run consecutively to those in counts I and II. The sentences on counts I and II were to run concurrently with each other and those in III and IV were to run concurrently with each other. Defendant also received 1.875 years in CR-8377, consecutive to all the other sentences.

Defendant appealed in both cases. CR-8377 became our 1 CA-CR 12272 and CR-9267 became our 1 CA-CR 12238.

Defendant then filed a Rule 32, Arizona Rules of Criminal Procedure petition. He was represented by the same counsel as on appeal. After an evidentiary hearing, the trial court denied relief. Defendant’s motion for rehearing was denied. He filed a timely petition for review, which became our 1 CA-CR 88-875-PR. We have consolidated 1 CA-CR 12238, 12272 and 88-875-PR. Defendant’s briefs address all three matters.

The facts may be summarized as follows, viewed in the light most favorable to sustaining the convictions. E.g., State v. Olivas, 119 Ariz. 22, 579 P.2d 60 (App.1978). [6]*6Defendant met the victim’s mother in January of 1985, in Bullhead City, Arizona. They were married on May 5, 1985. Sometime in April of 1985, the victim, then seven years old, was staying with her aunt, cousin, and sister in Bullhead City. The victim was sleeping in a bed with her female cousin. The defendant got on the bed, rearranged the victim’s clothing, positioned himself on top of her, and went “up and down.” She testified that defendant’s “ding-dong” was between her legs. No one was informed of this act at the time.

On June 8, 1987, the victim, then nine years old, was cutting defendant’s hair in the bedroom, with the door open. Defendant’s friends Randy Ide and Dawn Fraser were in the living room of the trailer. The defendant took the victim to the bathroom and had her lie on the floor. He removed his shorts, pulled up the victim’s skirt, and pulled down her underwear. He again went “up and down” while on top of her. He touched his penis to her private parts. He asked her to close her legs. She felt his “ding-dong” between her legs. Defendant then ejaculated onto her stomach. The victim told her aunt what had happened and the defendant was arrested on June 26, 1988.

While incarcerated, defendant wrote several letters to his wife. The letters included statements such as “Talk to our daughter and just tell her what to say,” and “Nobody has to know.” The mother testified that the answers that defendant proposed to be given to the investigators were contrary to what the investigators had been previously told. One letter suggested six reasons why the victim lied and six reasons why she had an unusual knowledge of sexual matters.

In CR-8377 defendant had previously been convicted of having sexual intercourse with a fifteen-year-old girl, designated AB. This incident occurred on June 29, 1986, between the two incidents charged in CR-9267.

At trial, the state, over defendant’s objections, called his wife and introduced the letters. The state also introduced prior consistent statements by the victim to Anne Kinnaird, a social worker. It also introduced various expert opinions by Kinnaird. The only other witnesses for the state were the victim, her mother, AB, and the police officer who took the report, Tiana Gledhill.

The defendant testified in his own behalf. The defense also called Ide and Fraser to testify regarding the June 8, 1987 incident. Defendant denied that the charged acts had occurred. He testified that he was not in Bullhead City from March 29 through May 5, 1985. He admitted that he was with the victim on June 8, but denied that he took her in the bathroom or that he molested her. The state presented no rebuttal evidence.

Defendant’s first argument is that the trial court erred in admitting the testimony of AB. He contends that the offense with AB was not sufficiently similar to the charged acts; therefore, expert testimony was required to show that the prior act indicated an emotional propensity toward sexual aberration. See State v. Treadaway, 116 Ariz. 163, 568 P.2d 1061 (1977). There is no contention that the act was not sufficiently close in time. Indeed, the incident occurred on June 29, 1986, between the two incidents charged in CR-9267 herein.

Taking the evidence in the light most favorable to sustaining the convictions, in both the prior and the charged incidents the defendant had sexual contact with an underage female. Both acts were genital-vaginal in nature although, as we discuss hereafter, there was no evidence of penetration of the victim in this case. Most importantly, however, the acts are similar in the peculiarity that in both cases the defendant ejaculated upon the body of the female. We find no significant difference in the acts. In Treadaway, by comparison, where the court said the acts were not sufficiently similar, the prior act was of fellatio and anilingus with one boy, while the charged act involved sodomy upon a boy. In addition, and most importantly, the three-year period of time between the acts was considered unreliable without ex[7]*7pert testimony. Here the acts were contemporary.

We find that the different ages of the victims raises no significant distinction. For example, in State v. Spence, 146 Ariz. 142, 704 P.2d 272 (App.1985), the defendant began molesting the victim when she was four and continued until she was twelve. In Treadaway, supra, the court did not focus on the different ages of the victims (thirteen and six), but rather stated:

Similarity is also a problem because the acts themselves are different and may well involve different psychological and emotional propensities. (Emphasis added).

116 Ariz. at 167, 568 P.2d at 1065.

Defendant also complains about the admission of a letter detailing specific aspects of his sexual history with his wife. We agree with defendant that the letter contains no obvious relevance. However, we find absolutely no prejudice. Under the Arizona statutes, consensual sexual conduct with one’s wife is not a crime, nor is such conduct a bad act under Rule 404, Arizona Rules of Evidence.

Defendant further complains that the letter indicates that defendant had been in jail before. However, similar information was brought out by defendant’s admission of two prior convictions when he testified. Therefore, we find no error.

Defendant next argues that social worker Anne Kinnaird improperly gave an opinion regarding the truthfulness of the victim. We agree that the testimony cited by defendant violates the dictates of State v. Lindsey, 149 Ariz.

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Cite This Page — Counsel Stack

Bluebook (online)
799 P.2d 1380, 166 Ariz. 3, 61 Ariz. Adv. Rep. 57, 1990 Ariz. App. LEXIS 210, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-crane-arizctapp-1990.