Arizona Rule of Evidence 404(C) Interpretation
In State v. Aguilar, 209 Ariz. 40, 97 P.3d 865 (2004), the supreme court examined Rule 404(c) "to determine whether the aberrant sexual propensity exception to the prohibition against character evidence, codified in Arizona Rule of Evidence 404(c), encompasses sexual assaults against adults when the defendant claims the victims consented." 209 Ariz. at 41, P 1, 97 P.3d at 866.
The defendant in Aguilar had been charged in a single indictment with sexually assaulting several women. Id. at P 2.
He admitted that he had engaged in sexual conduct with the women but claimed that each woman had consented. Id.
Like defendant in the present case, he moved to sever the counts pursuant to Rule 13.4(b). Id. at P 3.
The trial court denied the motion on the basis that the counts were properly joined pursuant to Rule 13.3(a)(1) and that the evidence as to each victim was cross-admissible pursuant to Rule 404(c). Id. at 41, PP 3-4, 97 P.3d at 866.
On appeal, the supreme court concluded that, because Arizona Revised Statutes 13-1420(C)(3) (2007) includes sexual assault as a "sexual offense," charges involving nonconsensual heterosexual contact between adults were included in the aberrant sexual propensity exception. Id. at 47-49, PP 24-28, 97 P.3d at 872-74.
The supreme court in Aguilar further addressed the requirements that must be met before other act propensity evidence may be admitted under Rule 404(c):
Before admitting other act evidence to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the charged sexual offense, a trial judge must make three determinations.
First, the trial court must determine that clear and convincing evidence supports a finding that the defendant committed the other act.
Second, the court must find that the commission of the other act provides a reasonable basis to infer that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the charged sexual offense.
Third, the court must find that the evidentiary value of proof of the other act is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or other factors mentioned in Rule 403.
In making the determination under Rule 403, the court must consider the factors listed in Rule 404(c)(1)(C)(i)-(viii).
Finally, the rule requires the trial judge to make specific findings with respect to each of the prerequisites for admission under the rule. Id. at 49, P 30, 97 P.3d at 874.
The supreme court then proceeded to examine whether the trial court made the specific findings necessary to support cross-admissibility under Rule 404(c). Id. at P 32.
After considering the findings by the trial court, the supreme court held that the trial court had erred, not because there was no evidentiary hearing, but because the trial court's factual findings on whether there was clear and convincing evidence that the defendant actually committed sexual assaults were insufficient to support the determination of admissibility. Id. at 50, P 35, 97 P.3d at 875.
In making its Rule 404(c) findings in ruling on the defendant's motion for severance in Aguilar, the trial court rested its determination that there was clear and convincing evidence that the defendant committed each of the charged offenses on the fact that he admitted to the police that he had sexual contact with the victims. Id. at P 34.
The supreme court reasoned that this finding was insufficient because the issue was "not simply whether Aguilar had sexual contact with the victims, but also whether that sexual contact was without the victims' consent." Id.
The supreme court further noted that, because "resolution of this issue -- whether the victims consented to the sexual contact -- turns largely on the credibility of the witnesses," the trial court had "to make a credibility determination that the victims' accounts of the assaults were more credible than Aguilar's for the court to make the necessary finding that clear and convincing evidence established the sexual contact in each incident was non-consensual." Id. at P 35.
The supreme court concluded that, because the materials before the trial court consisted of a second-hand recitation of the competing claims on the issue of consent, such a finding could not be made "when the court neither heard from the victims nor was presented with any prior testimony by them." Id.