State v. Pierce

826 P.2d 1153, 170 Ariz. 527, 87 Ariz. Adv. Rep. 41, 1991 Ariz. App. LEXIS 132
CourtCourt of Appeals of Arizona
DecidedMay 28, 1991
DocketNo. 1 CA-CR 89-418
StatusPublished
Cited by1 cases

This text of 826 P.2d 1153 (State v. Pierce) 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. Pierce, 826 P.2d 1153, 170 Ariz. 527, 87 Ariz. Adv. Rep. 41, 1991 Ariz. App. LEXIS 132 (Ark. Ct. App. 1991).

Opinions

OPINION

LANKFORD, Judge.

Defendant Ronnie W. Pierce was convicted by a jury of one count of sexual abuse of a minor under fifteen years of age, a class three felony, and one count of sexual conduct with a minor, a class two felony. Defendant was acquitted of a second count of sexual conduct with a minor. Defendant was sentenced to consecutive terms of imprisonment of ten and twenty years respectively.

On appeal, defendant presents three issues:

(1) Did the trial court err in instructing the jury that defendant’s prior sexual acts with the victim and her sister could be considered to show defendant’s “propensity for sexual molestation or sexual aberration”?
(2) Did the trial court err in failing to give the jury a general instruction as to the limited use of prior bad acts?
(3) Did the trial court err by refusing to require the prosecutor to articulate his reasons for exercising all six of his peremptory challenges to remove male panel members from the jury?

We affirm the superior court’s order.

I.

On the evening of December 21, 1985 defendant entered his twelve-year-old stepdaughter’s bedroom and proceeded to fondle her breasts and have sexual intercourse. Defendant was subsequently charged in counts I and III with the fondling of and intercourse with his twelve-[529]*529year-old stepdaughter, X.1

At trial, defendant’s other stepdaughter, Y, testified that defendant also came into her bedroom on the evening of December 21 and began to touch her. After Y had twice asked him to stop, defendant left her bedroom. Additionally, both girls testified that defendant had repeatedly molested them for the preceding five years.

At the close of the evidence, both sides submitted proposed jury instructions limiting the purposes for which the jury could consider evidence of prior bad acts. See Rule 404(b), Arizona Rules of Evidence. The trial court declined to give either requested instruction, explaining to the parties that the proposed instructions were covered adequately by the standard instruction on prior sexual acts, Recommended Arizona Jury Instruction 14.101.

The trial court instructed the jury on its consideration of prior sexual acts as follows:

You are permitted to consider evidence of other similar sexual offenses by the defendant only to the extent they show a propensity for sexual molestation or sexual aberration. Such evidence should not be considered for any purpose other than the defendant’s state of mind.

The court also gave the following limiting instruction requested by the defense:

The Defendant is not on trial for any act or conduct not alleged in the Indictment. Any evidence that was admitted regarding such other act or conduct was admitted for a limited purpose and should be considered only for that limited purpose.

Both parties were invited to make a record on the proposed and refused instructions. Neither side objected to the court’s refusal to give the general prior bad acts instruction, and neither objected to its proposal to give the standard prior sexual acts instruction.

ii.

Defendant first argues that the court’s jury instruction regarding prior sexual acts was erroneous because crimes of sexual abuse or sexual conduct with a minor do not necessarily involve elements of sexual aberration. Defendant contends that this type of instruction should only be given when a defendant is charged with sexual molestation or other crimes requiring proof of sexual aberration.

As noted above, defendant failed to object to the court’s proposed instruction. Defendant nevertheless argues that he preserved the issue for appellate review by requesting a jury instruction other than the one given by the court.

Our courts have consistently held that in order to preserve an objection to jury instruction, the party must make a specific objection stating the matter to which he objects and grounds for the objection. See State v. Rivera, 152 Ariz. 507, 516, 733 P.2d 1090, 1099 (1987); State v. Toney, 113 Ariz. 404, 408, 555 P.2d 650, 654 (1976). A mere request for a different jury instruction without more does not specifically state how the trial court’s instruction was flawed.

However, a failure to object does not waive defects in instructions which constitute fundamental error. State v. Edgar, 126 Ariz. 206, 209, 613 P.2d 1262, 1265 (1980). There can be no fundamental error in this case because the instruction was not erroneous.

The trial court’s instruction was derived from the Arizona Supreme Court’s holding in State v. McFarlin, 110 Ariz. 225, 517 P.2d 87 (1973). In McFarlin the defendant was charged with child molestation. The court held that other acts of child molestation committed shortly before and shortly after the offense charged were admissible. Id. at 228, 517 P.2d at 90. The court reasoned:

In those instances in which the offense charged involves the element of abnor[530]*530mal sex acts such as sodomy, child molestation, lewd and lascivious, etc., there is sufficient basis to accept proof of similar acts near in time to the offense charged as evidence of the accused’s propensity to commit such perverted acts. The “emotional propensity” exception is limited to those cases involving sexual aberration, but this is not to say that the other usual exceptions to the exclusionary rule cannot be used. It simply means that in addition to the usual exceptions there is in cases involving the charge of sexual aberration the additional exception of emotional propensity.

Id.

Defendant argues that the McFarlin instruction is appropriate only where sexual aberration is an element of the crime charged. He reasons that because sexual aberration is not an element of either sexual conduct or sexual abuse, the instruction was improper.

We cannot agree. The McFarlin opinion clearly states that child molestation is abnormal sexual conduct. While it is possible for a normal healthy adolescent to be prosecuted for otherwise normal, consensual sexual activity with a minor, this is not the case here. Defendant was a forty-six-year-old man charged with sexual abuse of and sexual conduct with his twelve-year-old stepdaughter.

Sexual conduct with a minor and sexual abuse of a minor can constitute “abnormal sex acts” or “sexual aberration.” Cf. State v. McCuin, 167 Ariz. 447, 449, 808 P.2d 332, 334 (App.1991) (court may properly consider abnormality of sexual acts when aggravating defendant’s sentence for sexual conduct with a minor). Common definitions of the term “aberrant” include “straying from the right or normal way,” and “deviating from the usual or natural type.” Webster’s New Collegiate Dictionary 44 (9th ed.1983). Defendant’s conduct with his stepdaughters clearly falls within the category of sexual deviance.

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Cite This Page — Counsel Stack

Bluebook (online)
826 P.2d 1153, 170 Ariz. 527, 87 Ariz. Adv. Rep. 41, 1991 Ariz. App. LEXIS 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pierce-arizctapp-1991.