State v. Varela

873 P.2d 657, 178 Ariz. 319, 149 Ariz. Adv. Rep. 22, 1993 Ariz. App. LEXIS 226
CourtCourt of Appeals of Arizona
DecidedOctober 5, 1993
Docket1 CA-CR 91-0646
StatusPublished
Cited by13 cases

This text of 873 P.2d 657 (State v. Varela) 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. Varela, 873 P.2d 657, 178 Ariz. 319, 149 Ariz. Adv. Rep. 22, 1993 Ariz. App. LEXIS 226 (Ark. Ct. App. 1993).

Opinions

OPINION

VOSS, Presiding Judge.

We hold in this opinion that a person who is neither a licensed psychologist nor medical doctor is not qualified as an expert witness for the admissibility of prior bad act evidence to show “emotional propensity” in a sex crimes case. However, we hold that the prior bad act evidence was otherwise properly admitted; therefore we affirm.

Jesus Benjamin Varela (defendant) was convicted by a jury of four counts of sexual exploitation of a minor, Ariz.Rev.Stat.Ann. (“A.R.S.”) section 13-3553 (1989), class 2 felonies, and two counts of solicitation of child molestation, A.R.S. sections 13-1002, -1410 (1989 and Supp.1992), class 3 felonies. Defendant was sentenced to eighteen and one-half years each on the exploitation charges and eleven and one-half years each on the solicitation charges. All sentences were ordered to run consecutively, as required by law. See A.R.S. § 13-604.01(J) (1989).

Defendant raises four issues on appeal:

(1) Whether the trial court erred in admitting evidence of a prior bad act for the purpose of showing “emotional propensity” to commit the crimes charged?
(2) Whether the trial court erred in permitting testimony concerning the theory of “Child Sexual Abuse Accommodations Syndrome”?
(3) Whether the trial court erred in permitting testimony concerning “paraphilia”?
(4) Whether the instruction given by the trial court defining reasonable doubt constitutes fundamental error?

FACTS

Defendant sold ice cream from a vending truck. In early July, 1990, while selling ice cream at a park, defendant met two nine-year-old girls whom we will call R and Y. Defendant asked the girls to work with him on his truck for $5.00 per day. They agreed and worked with him for several afternoons.

The fourth day the girls worked for him, defendant took them to a pizza parlor for lunch. Afterward, he took them to a store, gave them each $5.00, and instructed them to buy white underwear for themselves. He then took the girls to his apartment. When they arrived at defendant’s apartment, defendant locked the door and blocked it with stereo speakers. Defendant then requested that the girls allow him to photograph them in their new underwear. Defendant told the girls that if they did not cooperate a “gang would get them, and that they would kill them and their families.”

The girls testified about the nature of the photographs taken by defendant. Some of the photographs showed the girls in their new panties with their legs spread. Defendant photographed R with her panties down to her ankles. In another, R held her “private” open. Y also was photographed with her clothes down to her ankles and legs spread. Defendant had Y photograph defendant with R sitting on his lap with his hand on her thigh by her “private.” R then photographed Y and defendant similarly positioned. Defendant asked both girls if he could touch their “privates” and offered $50.00 to do so. The girls refused. Defendant exhausted his film supply and, at $5.00 per photo, paid each girl approximately $90.00. The defendant returned the girls to the park, where they were released.

The police were called that evening after the girls’ mothers became aware of the money. The girls initially told their mothers other stories about how they obtained the money, but upon further questioning, both girls reported the facts set forth above. Defendant was arrested, and his apartment and vehicle were searched. The searches disclosed two cameras, empty film packages, [322]*322store bags, receipts, and girls’ white underwear, but no photographs were found.

Defendant admitted the girls worked for him and that he took them to his apartment so he could change his clothes, but denied taking any photographs of the girls or engaging in any improper sexual conduct. He further testified that money was missing from his apartment, and he believed the girls stole it.

DISCUSSION

By a pre-trial motion in limine, the state sought to introduce evidence that defendant had previously molested his stepdaughter. The state asserted that evidence of this alleged sexual misconduct was probative of defendant’s intent and common scheme or plan and that it evidenced defendant’s continuing “emotional propensity” toward sexually aberrant behavior.

At the propensity hearing on the motion, the state called Robert Emerick as an expert witness. At the time of the hearing, Emerick was the program director of the Phoenix Memorial Hospital sexuality and addictions programs. His education includes a Bachelor of Science degree in chemistry and psychology, a Masters degree in education, and pursuit of a doctoral degree in counseling and psychology. His prior experience included directing an agency that developed treatment programs for convicted, adult sex offenders and providing pre-disposition assessments to adult and juvenile probation departments. In addition, he was involved in training programs for various courts and enforcement and correctional agencies.

Emerick testified that he reviewed police reports regarding both the charged incident and the situation involving defendant’s stepdaughter. It was his opinion that defendant had an emotional propensity to commit sexually aberrant acts. At the conclusion of his testimony, the court allowed the testimony of the stepdaughter. Concerning its relevancy, the court stated:

And I think that the State has demonstrated today that there is very substantial evidence to find that all of these alleged acts do share substantial common features and factors which demonstrate the relevancy of the prior alleged acts against [the victims].

EXPERT MEDICAL TESTIMONY

Defendant first argues that the prior bad act testimony should not be received because Emerick’s testimony was not “expert medical testimony” as required by State v. Treadaway, 116 Ariz. 163, 568 P.2d 1061 (1977). We agree as to Emerick.

Emerick was not qualified to present the reliable “expert medical testimony” necessary for the admission of prior sexual misconduct by defendant with his stepdaughter. In State v. Bailey, 166 Ariz. 116, 800 P.2d 982 (App.1990), we addressed the issue of whether expert testimony from a psychologist met the Treadaway standard. We held that a psychologist was qualified because sexual propensity is a “mental health question” and a psychologist is recognized as a “mental health expert.” Id. at 117, 800 P.2d at 983. See Ariz.R.Crim.P. 11.3(b). Although Emerick has vast experience working with sexual abusers and their victims, there was no showing he is licensed or certified in either the medical or mental health areas.

In Treadaway, our supreme court observed that the relevancy of prior sexual acts involves “complicated questions of sexual deviancy in a sophisticated area of medical and scientific knowledge.” 116 Ariz. at 167, 568 P.2d at 1065. The licensing and certification of doctors and psychologists ensures the training and experience necessary to practice appropriately in the medical and psychological fields. See

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State v. Varela
873 P.2d 657 (Court of Appeals of Arizona, 1993)

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Bluebook (online)
873 P.2d 657, 178 Ariz. 319, 149 Ariz. Adv. Rep. 22, 1993 Ariz. App. LEXIS 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-varela-arizctapp-1993.