State v. Wilson

Opinion

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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, Respondent,

v.

MARK ANTHONY WILSON, Petitioner.

No. 1 CA-CR 25-0533 PRPC

FILED 08-17-2026

Petition for Review from the Superior Court in Mohave County No. CR-2022-00428

The Honorable Billy K. Sipe, Jr., Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Mohave County Attorney’s Office, Kingman By Amanda Claerhout Counsel for Respondent

The Brewer Law Office, Show Low By Benjamin M. Brewer Counsel for Petitioner

STATE v. WILSON Decision of the Court

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge Michael S. Catlett and Judge Angela K. Paton joined.

P E R K I N S, Judge:

¶1 Mark Anthony Wilson seeks review of the superior court’s order denying in part his Arizona Rule of Criminal Procedure 32 petition for post-conviction relief (“PCR”), and the court’s denial of his motion for reconsideration of that order. We have considered the petition for review and, for the reasons stated, grant review and deny relief.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 A jury found Wilson guilty on four counts of sexually abusing three minors, including his biological daughter, Paige, her friend Rachel, and his girlfriend’s other daughter, Claire (we use pseudonyms to protect the victims’ identities). The superior court sentenced him to two eight-year and two 22-year aggravated prison terms—all consecutive to each other.

¶3 Before trial, the State moved to admit other acts evidence under Arizona Rule of Evidence (“Rule”) 404. The superior court held an evidentiary hearing and allowed the State to introduce Rule 404(b) other acts evidence that, among other things, Wilson provided alcohol to Paige and Rachel prior to abusing them. The court also allowed evidence of three specific prior instances of Wilson sexually abusing Paige under Rule 404(c). The court stated it would give limiting instructions for the admitted other acts evidence, and defense counsel requested the instructions at the hearing.

¶4 At trial, Paige testified to the details of how Wilson sexually abused her in March 2022 (Count 1). She also testified about the previously admitted other acts: Wilson providing alcohol and the prior instances of sexual abuse. Rachel testified that around the same time, she slept over in Paige’s bed and awoke to Wilson touching her inappropriately (Counts 3 and 4). Finally, Claire testified that around the same time Wilson had her sit on his lap while she was playing a video game and touched her inappropriately (Count 5). The court did not give any limiting instructions for the other acts evidence, and neither party reminded the court to do so.

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STATE v. WILSON Decision of the Court

¶5 After he was convicted, Wilson’s assigned appellate counsel found no meritorious claims to raise on direct appeal and instead filed an appeal in accordance with Anders v. California, 386 U.S. 738 (1967), asking our Court to search the record for reversible error. Wilson did not file a pro per supplemental brief. A different panel on this Court affirmed his convictions and sentences. State v. Wilson, 1 CA-CR 23-0307, 2024 WL 2862434 (Ariz. App. June 6, 2024) (mem. decision).

¶6 Wilson then filed a PCR petition, alleging ineffective assistance of both trial and appellate counsel. He argued trial counsel failed to object to the admission of the Rule 404(b) and (c) evidence, failed to request limiting instructions, and failed to object to victim-impact testimony elicited on the stand, while appellate counsel failed to raise the absence of Rule 404(b) and (c) limiting instructions on direct appeal. The superior court found trial counsel objected to the admission of the evidence and asked for the limiting instruction. The court also found the failure to object to the victim-impact testimony was not prejudicial because the jury was able to observe firsthand the emotional state of the testifying victims. It concluded that admitting the Rule 404(b) evidence of providing alcohol was not fundamental error in light of the overwhelming other evidence. But it did find that the admission of the Rule 404(c) prior instances of sexual abuse of Paige was fundamental reversible error appellate counsel should have raised on appeal. The court vacated Wilson’s conviction and sentence for Count 1 and dismissed his other claims. Wilson filed a motion for reconsideration, arguing the error prejudiced all counts and the court should have vacated them as well. The court denied the motion, finding the error prejudiced only Count 1.

¶7 Wilson timely petitioned for review of the superior court’s rulings. We have jurisdiction. See A.R.S. § 13-4239(C); Ariz. R. Crim. P. 32.16.

DISCUSSION

¶8 We review the superior court’s PCR rulings for an abuse of discretion, “which occurs if the court makes an error of law or fails to adequately investigate the facts necessary to support its decision.” State v. Bigger, 251 Ariz. 402, 407, ¶ 6 (2021). Whether Wilson’s appellate counsel was ineffective is a mixed question of fact and law, and we review the court’s legal conclusions de novo. State v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017).

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STATE v. WILSON Decision of the Court

¶9 Wilson argues the superior court erred by denying relief on Counts 3, 4, and 5 because the absence of the Rule 404(c) limiting instructions prejudiced all counts. He has waived any challenges to the court’s findings in regard to the effectiveness of trial counsel by not raising them in this petition. See Ariz. R. Crim. P. 32.16(c)(4). We find no error.

¶10 “To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant.” State v. Bennett, 213 Ariz. 562, 567, ¶ 21 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “In the context of appellate counsel, the petitioner must demonstrate a reasonable probability that but for counsel’s deficient performance, the outcome of the appeal would have been different.” State v. Febles, 210 Ariz. 589, 595–96, ¶ 18 (App. 2005) (cleaned up).

¶11 We therefore look to whether the outcome of that appeal would have been different had Wilson’s appellate counsel identified this issue and raised it on appeal.

¶12 Wilson did not object when the court failed to give the requested Rule 404(c) limiting instructions, so on appeal we would review for fundamental, prejudicial error only. State v. Escalante, 245 Ariz. 135, 140,

¶ 12 (2018); see also Ariz. R. Crim. P. 21.3(b) (“Any objection to the court’s giving or failing to give any instruction . . . must be made before the jury retires to consider its verdict. . . . If a party does not make a proper objection, appellate review may be limited.”). A fundamental error (1) goes to the foundation of the case, (2) takes away an essential right, or (3) is so egregious it prevented the defendant from receiving a fair trial. Escalante, 245 Ariz. at 142, ¶ 21. If Wilson establishes fundamental error under prong one or two, he must also establish prejudice, id., by showing that “without the fundamental error, a reasonable jury could have reached a different verdict.” State v. Murray, 250 Ariz. 543, 548, ¶ 14 (2021) (cleaned up). On fundamental error review, “the omission [of an instruction] must be evaluated in light of the totality of the circumstances,” State v. Gendron, 168 Ariz. 153, 155 (1991), and “we will not reverse a conviction unless we can reasonably find that the instructions, when taken as a whole, would mislead the jurors,” State v. Sierra-Cervantes, 201 Ariz. 459, 462, ¶ 16 (App. 2001) (cleaned up).

¶13 Rule 404(c) allows the admission of other acts evidence in criminal cases involving sexual offenses “if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity

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STATE v. WILSON Decision of the Court

to commit the offense charged.” Ariz. R. Evid. 404(c). If the superior court admits other acts evidence, it must instruct the jury “as to the proper use of such evidence.” Ariz. R. Evid. 404(c)(2). The comment to the Rule specifies that, “[a]t a minimum, the court should instruct the jury that the admission of other acts does not lessen the prosecution’s burden to prove the defendant’s guilt beyond a reasonable doubt, and that the jury may not convict the defendant simply because it finds that he committed the other act or had a character trait that predisposed him to commit the crime charged.” Ariz. R. Evid. 404(c) cmt.

¶14 As the superior court acknowledged, it did not provide the required limiting instructions at trial. This was error. But the failure to give an instruction in a criminal case is not per se fundamental error. See Gendron, 168 Ariz. at 155 (citing Kentucky v. Whorton, 441 U.S. 786 (1979)). The superior court found fundamental error as to Count 1, which is not before us. But we cannot agree with Wilson that absent this error a reasonable jury could have reached a different verdict on the remaining counts. Murray, 250 Ariz. at 548, ¶ 14.

¶15 The jury instructions here mitigated much of the risk of prejudice caused by the lack of the specific Rule 404(c) instruction. First, they explicitly set the State’s burden of proof at no less than beyond a reasonable doubt. Second, they prohibited the jury from being influenced by sympathy or prejudice—the very concern behind the Rule 404(c) instruction. Third, the instructions established that each count charges a separate and distinct offense that the jury had to decide separately “on the evidence [and] law applicable.” The Rule 404(c) evidence at issue was only applicable to the charges related to Paige (Count 1). Because we presume the jury follows the instructions it is actually given, Pandeli, 242 Ariz. at 189, ¶ 58, the presence of those instructions mitigated any concerns that the prejudicial evidence relevant only to Count 1 infected the other counts. See State v. Allen, 253 Ariz. 306, 334, ¶ 62 (2022) (risk of one count tainting the others was mitigated by instructions requiring the jury to consider each count separately). And Wilson’s convictions on Counts 3, 4, and 5 rested on the detailed and independent testimony of Rachel and Claire, each of whom described separate incidents occurring on different dates and under different circumstances. Cf. State v. Garcia, 200 Ariz. 471, 478, ¶¶ 41–42 (App. 2001) (improperly admitted other acts evidence was harmless as to certain counts when those counts were supported by substantial evidence). Based on the above, we cannot conclude that providing the missing instructions would have led the jury to reach different verdicts on Counts 3, 4, or 5. Which in turn means this Court would not have reached a

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STATE v. WILSON Decision of the Court

different outcome on appellate review had Wilson’s counsel raised the lack of a Rule 404(c) instruction in his direct appeal.

¶16 Wilson has thus not shown the superior court abused its discretion by denying relief on all but one of the counts.

CONCLUSION

¶17 We grant review and deny relief.

MATTHEW J. MARTIN • Clerk of the Court FILED: JR