State v. Hubbard

THE STATE OF ARIZONA, Appellee, v. ROGER LYNN HUBBARD, Appellant.

No. 2 CA-CR 2019-0240

ARIZONA COURT OF APPEALS DIVISION TWO

February 3, 2021

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).

Appeal from the Superior Court in Pima County

No. CR20170617001

The Honorable Christopher C. Browning, Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General

Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals

By Amy M. Thorson, Assistant Attorney General, Tucson

Counsel for Appellee

Richard C. Bock, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Vice Chief Judge Staring authored the decision of the Court, in which Presiding Judge Espinosa and Judge Eckerstrom concurred.

STARING, Vice Chief Judge:

¶1 Roger Hubbard appeals from his convictions and sentences for one count of molestation of a child and two counts of contributing to the delinquency of a minor, as well as the restitution order. For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against Hubbard. See State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015). One night in January 2017, seven-year-old E.L. was at Hubbard's house along with two of Hubbard's grandchildren. At some point, Hubbard entered the bedroom where E.L. was sleeping alone. He proceeded to put his hand down E.L.'s pants on two separate occasions, touching her "girl part." Hubbard also touched E.L.'s thighs with his penis. The next day, E.L. reported the incident to her mother, who subsequently contacted the police.

¶3 Hubbard was initially charged with five counts of molesting a child, but two of the charges were dismissed at the state's request. The jury ultimately acquitted Hubbard of two of the remaining molestation charges, but was unable to reach a verdict on the last charge or its lesser-included offense of contributing to the delinquency of a minor. A second trial resulted in a mistrial based on an improper remark by the state during its opening statement.

¶4 At a third trial, Hubbard was convicted as noted above. He was sentenced to twelve years of imprisonment for the molestation count and time served for the remaining counts. The trial court also entered a restitution order compensating E.L.'s family, and, in turn, the Crime Victim Compensation Fund (CVCF), for lost wages and travel costs resulting from Hubbard's crimes. This appeal followed.¹ We have jurisdiction pursuantto article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1), (3). See also State v. Grijalva, 242 Ariz. 72, ¶ 11 (App. 2017) ("A restitution order made after sentencing does not impair appeal rights because such orders are separately appealable.").

Third-Party-Culpability Defense

¶5 Hubbard first argues the trial court erred "by denying [his] request to present his defense and evidence of third-party culpability." We review a ruling on the admissibility of third-party-culpability evidence for an abuse of discretion, see State v. Prion, 203 Ariz. 157, ¶ 21 (2002), but review evidentiary rulings that implicate a defendant's constitutional rights de novo, see State v. Goudeau, 239 Ariz. 421, ¶ 35 (2016).

¶6 Like all evidence, the admissibility of third-party-culpability evidence is governed by Rules 401 through 403 of the Arizona Rules of Evidence. See Goudeau, 239 Ariz. 421, ¶ 163. Thus, to be admissible, evidence must: (1) be relevant, meaning "it has any tendency to make a [material] fact more or less probable than it would be without the evidence," Ariz. R. Evid. 401; (2) be admissible under other applicable rules, statutes, or constitutional provisions, Ariz. R. Evid. 402; and (3) not have a probative value that is "substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence," Ariz. R. Evid. 403. See Goudeau, 239 Ariz. 421, ¶ 163. Third-party-culpability evidence is relevant if it "tend[s] to create a reasonable doubt as to the defendant's guilt." Id. (emphasis omitted) (quoting State v. Gibson, 202 Ariz. 321, ¶ 16 (2002)).

¶7 Still, a defendant is not entitled "to throw strands of speculation on the wall and see if any of them will stick." State v. Machado, 224 Ariz. 343, n.11 (App. 2010) (quoting David McCord, "But Perry Mason Made It Look So Easy!": The Admissibility of Evidence Offered by a Criminal Defendant to Suggest that Someone Else is Guilty, 63 Tenn. L. Rev. 917, 984 (1996)), aff'd, 226 Ariz. 281 (2011); Goudeau, 239 Ariz. 421, ¶ 165. And, excluding evidence based on its lack of relevance does not violate any "rightto present a defense under the United States and Arizona constitutions." State v. Alvarez, 228 Ariz. 579, n.2 (App. 2012); see also State v. Oliver, 158 Ariz. 22, 30 (1988) ("[T]he Sixth Amendment right to present evidence in one's defense is limited to evidence which is relevant and not unduly prejudicial.").

¶8 Hubbard listed third-party culpability in his initial disclosure statement and subsequently filed a memorandum supporting that defense, claiming evidence that E.L.'s father had touched her inappropriately in August or September 2017 "represent[ed] sufficient information for the presentation of a third party culpability defense." At the motions hearing, Hubbard proposed introducing evidence that, in addition to touching her inappropriately during the incident in question, E.L.'s father had tickled her inappropriately before January 2017, and that E.L. had stated in 2016 that she did not wear underwear to bed because she was sore.

¶9 In sum, Hubbard argued this evidence, taken together, would show that E.L.'s motive for participating in the investigation and testifying against him had come from "something [else that] had happened to her in the past." The trial court declined to admit the proposed evidence, ruling:

Well, with all due respect I fail to see any third party culpability defense or any nexus that something that may or may not have happened between the victim and her father has to the events that are the basis of the indictment in this case. So I will grant the State's—sustain the State's objection to that, and order that you not go into that.

At Hubbard's first trial, the court reinforced its ruling, stating that such evidence was "too far afield . . . [and] not relevant" and that any "relevance [was] minimal compared to [its] prejudicial value." The court further explained there was not "any real foundation" to tie the alleged acts of E.L.'s father to the charges against Hubbard.

¶10 On appeal, Hubbard first argues the trial court improperly applied an "inherent tendency . . . test" in reaching this conclusion. See State v. Fulminante, 161 Ariz. 237, 252 (1988) ("Before a defendant may introduce evidence that another person may have committed the crime, the defendant must show that the evidence has an inherent tendency to connect such other person with the actual commission of the crime."). Supporting his proposed defense, Hubbard asserts E.L.'s accusations against her fathernearly "parallel[] her accusations against" him. He also claims E.L.'s father, his neighbor, would sometimes "walk a[] short distance away and . . . urinate in the yard with children either running around, playing or in the pool." Thus, Hubbard concludes "[t]he conduct of E.L.'s father would have created a reasonable doubt as to [Hubbard]'s guilt" and argues precluding such evidence "violated the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article 2 § 24 of the Arizona Constitution."²

¶11 The state responds that Hubbard's proposed third-party-culpability evidence "did not tend to create a reasonable doubt as to [his] guilt." Specifically, it claims that even if E.L. stated that her father had committed similar acts, those acts were alleged to have occurred months after the acts Hubbard committed, and points out that E.L.'s father was out of town when Hubbard assaulted her. The state further argues "[t]here is 'simply no evidence connecting' [E.L.]'s father" to the January 2017 incident that formed the basis for Hubbard's charges. Thus, the state concludes Hubbard's proposed evidence "was irrelevant to [E.L.'s] knowledge and/or motive in this case," and, regardless, was inadmissible under Rule 403. Finally, the state asserts its exclusion did not deny Hubbard his right to present a complete defense.

¶12 The trial court correctly concluded Hubbard's proposed third-party-culpability evidence was irrelevant. See Ariz. R. Evid. 401. The state aptly points out that the charged acts occurred while E.L.'s father was in California for work. And, the alleged acts by E.L.'s father were reported to have taken place between August and September 2017, at least seven months after Hubbard had molested E.L., who plainly testified Hubbard had committed the charged acts and reported as much to her mother. Thus, the evidence purportedly showing that E.L.'s father also abused her was not relevant insofar as creating a reasonable doubt that Hubbard had committed the charged acts.³ See Goudeau, 239 Ariz. 421, ¶ 163.

¶13 Further, even if Hubbard's proposed evidence demonstrated at any level that E.L.'s father had "opportunity, inclination and propensity" to commit the charged acts, its probative value would nonetheless havebeen substantially outweighed by the danger of misleading the jury or confusing the issues. See Ariz. R. Evid. 403. The jury was not tasked with determining whether E.L.'s father had ever abused her. Rather, the jury's duty was to determine, beyond a reasonable doubt, whether Hubbard had molested her and twice contributed to her delinquency in January 2017. And, even if E.L.'s father committed the alleged abuse, those acts—along with any other...