AGO/CLE PRESENTS: “YOU CALL THAT EVIDENCE?” JUNE 12, 2017 PRESENTER: DAVE COLE

PROGRAM MATERIALS

I. YES (I do)

 Pena-Rodriguez v. Colorado, 137 S.Ct. 855 (2017)

FRE 606(b); “no impeachment” rule

In a 5-3 decision written by J. Kennedy, the Court held that, where a juror makes a clear statement that (s)he relied on racial stereotype or animus in finding a criminal defendant guilty, the no impeachment rule must give way in order to allow the trial court to consider evidence of the juror’s statement and any resulting denial of the defendant’s right to trial by jury. Js. Thomas, Alito, and Roberts dissented.

 State v. Steinle (Moran, Real Party in Interest), 239 Ariz. 415, 372 P.3d 939 (2016)

1 ARE 106, 403

A witness to events surrounding a homicide recorded the events on his cell phone; although the video was originally five minutes long, the witness cropped all but the final thirty-one seconds. After the judge granted Moran’s request to exclude the videotape, the State sought special action relief in the Court of Appeals (“COA”). A divided panel affirmed. The State then sought review in the Arizona Supreme Court (“ASC”), which was granted. The ASC held that exclusion of the videotape was not required by the rule of completeness. It also held that the COA erred in excluding the tape pursuant to ARE 403 and remanded the matter to the trial judge to determine whether it should be precluded under that rule.

 In re Marriage of Foster, 240 Ariz. 99, 376 P.3d 702 (App. 2016)

ARE 301

According to ARE 301, “In a civil case, unless a statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally.”

2 Arizona law is chock-full of presumptions. Many have common law origins but have been codified in statute.

According to the Foster court:

“There is a legal presumption that all property acquired during marriage is community property.” 240 Ariz. at 101, ¶ 6, 376 P.3d at 704. The burden of rebutting the presumption rests with the spouse who claims that (s)he acquired the property by gift, devise, or descent.

 Murray v. Murray, 239 Ariz. 174, 367 P.3d 78 (App. 2016)

ARE 408

In this family court case, the judge denied Mother’s request to relocate the parties’ minor children to Nebraska. During the relocation hearing, Mother offered a long series of e-mail and text messages between her and Father that she said proved an agreement that she and Father had reached concerning relocation at some point before the hearing commenced. The judge, citing ARE 408, declined to consider the messages. The COA found this to be

3 error, pointing out that, to the extent ARE 408 had any application to this case (see Arizona Rule of Family Law Procedure 2(B)), it did not erect a barrier to use of the messages to prove a settlement that resolves a claim.

 State v. Gill, 241 Ariz. 770, 391 P.3d 1193 (2017)

ARE 410

ARE 410(a)(4) requires exclusion of statements made by a criminal defendant during plea discussions with a prosecutor if those discussions do not result in a guilty plea. The issue in Gill was “whether statements made in furtherance of a deferred prosecution agreement are protected by Rule 410(a)(4).”

Held: (1) the rule does not apply to such statements, and (2) a knowing waiver of the rule’s provisions “does not require specifically referencing the rule.” 241 Ariz. at 772, ¶1, 391 P.3d at 1195. The ASC concluded that (1) the settlement conference during which Gill made his statements did not, under the circumstances, constitute “plea discussions,” and (2) the TASC representative with whom Gill met after accepting a deferred prosecution agreement was not, under these facts, an agent of the prosecutor for purposes of negotiating a plea agreement.

4  State v. Goudeau, 239 Ariz. 421, 372 P.3d 945 (2016)

ARE Articles IV, VI, and VII

Goudeau was convicted of 74 felonies, including 9 counts of first- degree murder. In addition to the 9 decedents, he left 24 victims in his wake. The ASC filed a lengthy opinion. Several of the evidentiary issues addressed in the opinion are summarized below.

ARE 401-403: 1. After reaffirming previous opinions holding that third-party culpability (“TPC”) evidence is governed by ARE 401- 403, the Court found that the judge did not abuse his discretion in excluding the TPC evidence proffered by Goudeau.

2. The judge did not abuse his discretion when he admitted an autopsy photo of one of the victims. The ASC determined that the photograph was relevant because it corroborated the medical examiner’s explanation of the injuries sustained by the victim. Although the photo was graphic, said the Court, it was not so gruesome as to inflame the passions of the jurors. (Note: counsel often misconstrue ARE 403. It is important to start with its actual wording and the notion that relevant evidence is presumptively admissible.)

ARE 404(b): The State properly noticed its intent to introduce “other act” evidence, urging that it was admissible to prove

5 identity and modus operandi. Goudeau sought exclusion on grounds that the other acts were not sufficiently similar to the crimes with which he was charged. The judge overruled Goudeau’s objection. The ASC affirmed, pointing out that the law does not require absolute identity in every detail; the question is whether a trial court could reasonably find that the charged crime and the “other act” bear the same signature. If the answer is “yes,” the evidence is admissible and whatever dissimilarities exist go to its weight.

ARE 404(c): The Court also dealt with ARE 404(c), which we will come back to later.

ARE 611(a): Because of the number of charges, the number of victims, the complexity of the evidence, and the sheer length of Goudeau’s crime spree, the prosecution stated its intent to divide its presentation of guilt-phase evidence into 13 chronological “chapters.” Before trial, State’s counsel requested permission to give a “mini” opening statement at the beginning of each chapter. Goudeau opposed this request, but the judge overruled his objection. Relying on a combination of ARE 611(a), Ariz. R. Crim. P. 19.1(a), and a trial court’s inherent authority to control the proceedings and ensure that the adversary system operates effectively, the ASC affirmed. It further noted that the judge prohibited the State from abusing the privilege by treating a mini- opening statement as a closing argument in connection with one or more previous chapters, demonstrating that the judge maintained proper supervision of the proceedings.

6 ARE 702: Goudeau sought to preclude the State’s firearms expert’s testimony to the effect that every bullet and casing recovered from multiple crime scenes was fired from the same weapon. Goudeau relied on Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). The judge denied Goudeau’s request pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The ASC affirmed, noting that, because Goudeau was tried in 2011, Frye, rather than Daubert, applied. (Note: the pertinent amendment to ARE 702 did not become effective until 2012.)

 State v. Jean, 239 Ariz. 495, 372 P.3d 1019 (App. 2016)

ARE 403 and 404(b)

Jean was charged with several crimes including transportation of marijuana. The State offered evidence showing that, eleven years earlier, Jean was arrested in Missouri for transporting marijuana. The State urged that the circumstances of the Missouri arrest showed Jean’s knowledge with respect to the Arizona charges. The judge admitted the other act evidence over Jean’s objection. The COA affirmed, concluding that (1) although eleven years elapsed between the two incidents, there were striking similarities between the underlying circumstances, and (2) the Missouri

7 incident was not so remote as to compel a finding that the judge abused her discretion in admitting the evidence.

The COA went on to note that, although evidence of the Missouri incident was no doubt prejudicial to Jean, it was not unfairly so.

 State v. James, 242 Ariz. 126, 393 P.3d 467 (App. 2017)

ARE 404(c)

James was found guilty of child molestation and sexual conduct with a minor. Before trial, the State moved in limine, pursuant to ARE 404(c), for permission to introduce evidence of (1) other sex acts James had committed against the victim (T.H.) around the same period of time that he committed the charged acts, and (2) sex offenses James had committed against T.H.’s mother (A.H.) in the 1980s when A.H. was a child. James opposed both requests and asked the judge to convene an evidentiary hearing.

The judge denied James’s request and issued an order permitting the State to introduce both kinds of evidence contemplated in the motion in limine. The judge treated as an “offer of proof” a number of documents submitted by the State, including police reports, transcripts of forensic interviews, and the transcript of a

8 “confrontation call” place to James by T.H., and determined that the offer of proof obviated the need for an evidentiary hearing.

The COA addressed three issues. First, based on Arizona precedent, it held that the offering party (here, the State) is obligated to adduce “clear and convincing evidence” that the alleged perpetrator committed the other act(s) in question. Second, it held that an evidentiary hearing is not automatically required when there is a request to admit 404(c) evidence, and that, under the circumstances of this case, the judge did not abuse her discretion when she found the evidence admissible without holding an evidentiary hearing. The third issue related to the fact that most of the documents that the judge treated as an offer of proof were not part of the record on appeal. The court held that, because James did not properly address the issue in the trial court, it was his burden on appeal to show that any error was both fundamental and prejudicial. The court did not have to reach the fundamental error question because James was unable to prove prejudice; among other things, some aspects of the offer of proof (e.g., the confrontation call) were proved up during trial so James could not have been prejudiced by the absence of the transcript of the call from the record on appeal.

Unlike most rules of evidence, ARE 404(c) provides a road map for lawyers and judges.

9 (Note: James recently filed a petition for review, in which he alleged that the judge should have afforded him an evidentiary hearing and that, in any event, she wrongly decided the 404(c) issue. The State is preparing a cross-petition that will ask the ASC to revisit State v. Aguilar, 209 Ariz. 40, 97 P.3d 865 (2004), which has proved problematic in resolving admissibility issues under 404(c). Those with a particular interest in 404(c) issues may want to stay tuned.)

 State v. Hegyi (Rasmussen, Real Party in Interest), 240 Ariz. 251, 378 P.3d 428 (App. 2016)

A.R.E. 501

ARE 501 states that the common law, as interpreted by Arizona courts “in the light of reason and experience,” governs claims of privilege, unless the U.S. or Arizona Constitution, applicable statute, or a rule promulgated by the Arizona Supreme Court provides otherwise. Most of Arizona’s evidentiary privileges have been codified in statute.

Rasmussen was charged with first degree murder and armed robbery. After he entered a plea of guilty but insane, he was examined by two mental health experts. Upon request, Rasmussen provided the State with copies of both experts’ notes and data;

10 however, the statements he made to the experts were redacted. After the judge denied the State’s request for disclosure of the information in unredacted form, the State filed a petition for special action, and the COA granted relief. The COA held that, although the State was not entitled to use the redacted information to prove any element of its case, it was entitled to disclosure of the information it requested and could, use that information to demonstrate sanity. (See A.R.S. § 13-3993 and Rules 11.4 and 11.7, Ariz. R. Crim. P.)

 American Power Products v. CSK Auto, 239 Ariz. 151, 367 P.3d 55 (2016)

ARE 606

During jury deliberations following a lengthy trial, a juror asked the bailiff, with all jurors present, how long jury deliberations usually lasted. The bailiff’s response was to the effect that “an hour or two should be plenty.” The jury ultimately awarded American a sum of money that was approximately 1/500th of the amount American sought. American obtained affidavits from two of the jurors setting forth what had occurred during deliberations. Relying upon the affidavits, American moved for a new trial, urging that the affidavits gave the judge a basis to inquire further about whether deliberations were improperly curtailed by the question and response. American also requested an evidentiary hearing. The judge denied the request for evidentiary hearing and

11 the motion for mistrial, rejecting American’s argument that the rapidity of the verdict was “aberrational” and that it supported the claim that the bailiff’s answer unduly influenced the jury.

A divided COA reversed and remanded with instructions. On review, the ASC affirmed the trial judge and vacated the COA opinion, concluding that the communication was not prejudicial and the judge did not abuse his discretion in denying the request for evidentiary hearing.

 State v. Winegardner, 2 CA-CR 2016-0110 (May 31, 2017)

ARE 609

Winegardner was convicted of sexual conduct with a minor. The COA held that the judge properly precluded Winegardner from impeaching the victim-witness with her misdemeanor shoplifting conviction because the crime shoplifting does not involve “dishonesty or false statement.” See ARE 609(a)(2).

12  State ex rel. Montgomery v. Padilla (Simcox, Real Party in Interest), 239 Ariz. 314, 371 P.3d 642 (App. 2016)

ARE 611

Simcox was charged with three counts of sexual conduct with a minor and related offenses. Two victims, one being Simcox’s daughter, were involved. After the judge granted Simcox’s motion to represent himself during trial (with the assistance of advisory counsel, the State requested that (1) Simcox be prohibited from direct contract with either victim, and (2) any cross examination of either victim be conducted by Simcox’s advisory counsel rather than Simcox himself. The judge denied both requests. The State filed a petition for special action; the COA accepted jurisdiction but denied relief, holding that any restriction on Simcox’s right to cross examine required a finding that the restriction was necessary to protect a victim from trauma. (See 237 Ariz. 263, 349 P.3d 1100 (App. 2015).)

Following an evidentiary hearing, the judge again denied the State’s request that Simcox’s advisory counsel conduct cross examination of a testifying victim; however, he ordered that any cross examination of Simcox’s daughter be conducted by closed circuit television. The COA again remanded for an evidentiary hearing, noting that the judge was wrong in concluding that Simcox’s confrontation rights were absolute. With respect to the order re: closed circuit television examination of the daughter-

13 victim, the COA held that, pursuant to ARE 611, the judge did not abuse his discretion in spite of the fact that neither the State nor Simcox had requested that specific form of relief.

 State v. Haskie, 240 Ariz. 269, 378 P.3d 446 (App. 2016)

ARE Articles VI and VII

Defendant was convicted of multiple counts of aggravated domestic violence and related crimes. Among the claims raised on appeal were that the State’s domestic violence expert (1) rendered impermissible offender profile evidence, and (2) vouched for the credibility of the victim. (Note: the expert was offered as a “cold” or “blind” witness, meaning that she would give general testimony only and that she had not reviewed any police reports or other documents relating to the allegations against Haskie.) Fortunately, the former issue was addressed by way of motion in limine, affording State’s counsel clear guidance on what was and was not allowable.

The COA rejected both claims. It found that the expert’s testimony did not constitute offender profiling; profile evidence “tends to show that a defendant possesses one or more of an ‘informal compilation of characteristics’ or ‘an abstract of characteristics’ typically displayed by persons engage in a

14 particular kind of activity.” State v. Ketchner, 236 Ariz. 262, 264, ¶ 15, 339 P.3d 645, 647 (2014). With respect to the vouching claim, there was one (and only one) instance in which the expert went beyond what is permitted, and the court determined that the error was harmless. The bulk of the expert’s testimony that Haskie urged amounted to “vouching” did not.

 State v. Romero, 239 Ariz. 6, 365 P.3d 358 (2016)

ARE 702

This case has been bouncing around between and among the Pima County Superior Court, Div. II of the COA, and the ASC for the last few years. There are “bookend” COA opinions, but for now the focus is on the ASC opinion.

Romero was convicted of second-degree murder. The COA affirmed; however, the ASC vacated the COA opinion in part and remanded the matter to the COA. The issues upon which review was granted centered around expert testimony concerning firearms. The judge permitted the State’s police firearms expert (Powell) to testify that the six shell casings found at the scene of the crime were all fired from the same gun. Romero wanted to call Dr. Haber, whose expertise is in the field of experimental design, to testify about the unreliability of conclusions drawn from toolmark comparison. The judge precluded Dr. Haber from testifying,

15 apparently on dual grounds: first, Dr. Haber had no expertise in firearms identification, and second, his testimony, if permitted, might invite the jury to revisit, in connection with Powell’s testimony, the Daubert issues that the judge had already decided.

The ASC held that neither ground justified precluding Dr. Haber from testifying: (1) in spite of how one characterizes Dr. Haber’s area of expertise, his testimony would have been helpful to the jury in resolving the issues of fact, and (2) the fact that a judge has made Daubert-related rulings that permit the State’s proffered expert to testify does not warrant restricting on a defendant’s cross examination of that expert.

 State v. Foshay, 239 Ariz. 271, 370 P.3d 618 (App. 2016)

ARE 702

Foshay was convicted of first-degree murder. Before trial, the judge convened a Daubert hearing in connection with the State’s proffered toolmark expert. The judge allowed the expert to testify that the fatal round came from Foshay’s gun. On appeal, Foshay urged that the expert’s use of 3-D imaging software during his analysis rendered his conclusion unreliable. The COA rejected the claim, noting that the State demonstrated the expert’s working knowledge of the software. It reached a similar conclusion with

16 respect to the related claim that, because the expert did not have personal knowledge about how the software functioned, he should not have been permitted to testify.

Additional issues: (1) At trial, the State offered a copy of the expert’s report as an exhibit. The judge overruled Foshay’s objection that the report was “cumulative” to the testimony the expert had already given. On appeal, Foshay urged that the report was inadmissible hearsay. The COA held that Foshay waived the hearsay claim by not objecting to the report as hearsay.

(2) Foshay offered testimony to the effect that B.B., the victim, had at some point in time been involved in a drug sale. He urged that this evidence was material because the toxicology report from B.B.’s autopsy showed that methamphetamine was in his system when he died. The judge precluded the drug sale evidence. The COA found no abuse of discretion, pointing out that, even if relevant, the evidence was properly excluded under ARE 403.

 State v. Gulley, 240 Ariz. 580, 382 P.3d 795 (App. 2016)

ARE 803(1), (2)

17 Gulley was convicted of two counts of disorderly conduct and one count each of assault and threatening or intimidating. All charges arose out of the same incident. Roughly 5 to 10 minutes after the incident, the assault victim made statements to the victim’s brother about what had happened. During trial, State’s counsel asked the victim’s brother to repeat what the victim told him. The judge overruled Gulley’s hearsay objection, finding the statements admissible as present sense impressions and excited utterances. The COA affirmed, noting that, although the statements did not constitute present sense impressions, they were clearly admissible as excited utterances.

(Notes: (1) The court COA rejected another of Gulley’s claims on grounds that any error was “invited” by Gulley. (2) The ASC granted review and ultimately vacated a portion of the COA opinion, but for reasons unrelated to the hearsay issue.)

 State v. Wright, 239 Ariz. 284, 370 P.3d 1122 (App. 2016)

ARE 803 (1)

This case involved a “controlled buy” of methamphetamine. The COA held that an undercover officer’s statements, made into a one-way radio, describing what Wright and another suspect were doing during the buy came within the present-sense impression

18 exception to the hearsay rule and the judge correctly admitted the statements on that basis. In so holding, the court rejected Wright’s claim that the transcript of the statements amounted, in essence, to a police report and thus was inadmissible hearsay.

 State v. Fell, (Lietzau, Real Party in Interest), 242 Ariz. 134, 393 P.3d 475 (App. 2017)

ARE 901

This was a special action proceeding in which the State sought review of the judge’s ruling excluding a transcript purporting to contain text messages between Lietzau and the victim of his alleged sexual misconduct. The judge essentially ruled that the proffered evidence had not been properly authenticated because the cell phone allegedly used by Lietzau to transmit the messages was not in his name and other people had access to it. The COA granted relief, noting that, to authenticate offered evidence, the party offering it must produce evidence sufficient to support a finding that the item is what the proponent claims it is. In other

19 words, trial judges do not determine authenticity, but only whether a reasonable jury could conclude that the evidence in question is authentic. Any uncertainty goes to the weight of the evidence rather than its admissibility.

II. NO (but the cases are interesting, nonetheless)

 State v. Adair, 241 Ariz. 58, 383 P.3d 1132 (2016)

Adair was on supervised probation as a result of two drug-related convictions. According to the terms of his probation, Adair “agreed to submit to search and seizure of person and property [by the probation department] without a search warrant” and to “provide [the department] with safe, unrestricted access” to his home. Approximately one year after Adair was placed on probation, based on information provided to police officers by an informant and follow-up information generated by the police during their investigation, the probation personnel conducted a warrantless search of Adair’s home. They seized crack cocaine, scales, packaging materials, cash, a gun, and ammunition.

Based on these discoveries, Adair was charged with several drug- and weapons-related charges, and Adair’s probation officer filed a petition to revoke Adair’s probation. Adair moved to suppress the fruits of the search; after initially denying the motion, the judge

20 granted it on grounds that the probation department lacked reasonable suspicion for the search. The COA reversed and remanded, holding that the correct standard was “reasonableness under the totality of the circumstances” rather than the “reasonable suspicion” standard applied by the judge. On review, the ASC agreed with the standard applied by the COA and held that there was no violation of the rights conferred upon Adair by the Fourth Amendment or article 2, section 8 of the Arizona Constitution.

(Note: Adair has filed a petition for writ of certiorari.)

 State v. Amaral, 239 Ariz. 217, 368 P.3d 925 (Ariz. 2016)

The question presented in this case concerns the “colorable claim” standard that applies when a defendant seeks post-conviction relief on the basis of newly discovered evidence. If such a claim is deemed colorable, the judge is required to convene an evidentiary hearing. The ASC granted review on this issue because extant case law provided insufficient, and sometimes faulty, guidance; some cases went so far as to say that all a defendant must do is show that, assuming his allegations are true, the new evidence “might” have changed the outcome. Finding that the low-threshold “might” standard is inconsistent with the scope and purposes of Arizona’s post-conviction relief scheme and most of the case law, the court held as follows:

21 The relevant inquiry for determining whether [a defendant] is entitled to an evidentiary hearing is whether he has alleged facts which, if true, would probably have changed the [outcome]. If the alleged facts would not have probably changed the [outcome], then the claim is subject to summary dismissal. Ariz. R. Crim. P. 32.6(c).

239 Ariz. at 220, ¶ 11, 368 P.3d at 928 (emphasis in original).

 State v. Dalton, 241 Ariz. 182, 385 P.3d 412 (2016)

When the judge learned that a juror could not return the next day for continued deliberations, he directed court staff to contact the alternate juror, who then substituted in for the juror who was unable to continue. In such circumstances, Rule 18.5, Ariz. R. Crim. P., requires judges to instruct the entire jury, including the alternate juror, to start over with deliberations. The judge did not so instruct the reconstituted jury, and defense counsel did not object to the failure to so instruct. The jury convicted Dalton of one of the two charged counts, and Dalton appealed. The COA, in

22 a split decision, vacated the conviction and remanded for a new trial. On review, the ASC held that there was no “structural” error. That being so, Dalton had to show that the error was both fundamental and prejudicial; assuming he could show the former, he could not show the latter.

 State v. Fischer, 242 Ariz. 44, ___ P.3d ___ (2017)

A jury convicted Fischer of second-degree murder. Fischer filed a motion for new trial, which the judge granted on the grounds that (1) there was no physical evidence showing that Fischer fired the fatal shot, and (2) any contrary opinions expressed during trial amounted to sheer speculation. The COA reversed after independently reweighing the evidence and concluding that the judge erred when she (1) made factual findings that were not supported by the record, and (2) failed to consider the totality of the evidence adduced at trial.

The ASC granted review and focused on two questions:

(1) What is the trial court’s proper role in deciding whether a verdict is contrary to the weight of the evidence? (In other words, does Arizona subscribe to the notion that the judge acts as the “thirteenth juror” in these circumstances?)

23 (2) Did the COA error when it conducted an independent examination of the evidence and concluded that the judge abused her discretion in granting the motion for new trial? On the first issue, the ASC rejected the State’s request that the court abandon the thirteenth juror rule, and held that judges, when asked to determine whether a verdict is contrary to the weight of the evidence should, among other things, evaluate the strength of the evidence and provide a detailed explanation for any finding that the jury’s verdict was against the weight of the evidence. On the second issue, the ASC held that the COA exceeded the proper scope of review when it independently weighed the evidence, pointing out that an appellate court does not sit as a fourteenth juror.

 State v. Gray, 239 Ariz. 475, 372 P.3d 999 (2016)

Gray was convicted of selling narcotics. In the course of affirming the conviction, the COA held that the judge did not err in refusing Gray’s request that the jury be instructed on entrapment. The ASC granted review in an effort to clarify the circumstances under which judges should instruct on entrapment. The ASC held that “A.R.S. § 13-206(A) affords a defense of entrapment only when the defendant affirmatively admits the substantial elements of the charged offense. A defendant cannot invoke this affirmative defense merely by declining to challenge the state’s evidence, even when [that evidence] includes incriminating statements made by the defendant to an undercover officer.” 239 Ariz. at 476, ¶ 1, 372 P.3d at 1000. This holding was consistent with Arizona cases

24 decided before 1997, when the entrapment defense was codified. The ASC further held that requiring a defendant who claims entrapment to admit the elements of the offense(s) charged neither compels self-incrimination nor runs afoul of the “unconstitutional conditions” doctrine.

Justice Bolick dissented, pointing out that (1) the statutory “affirmative admission” requirement constitutes an unconstitutional condition, and (2) Gray’s statements to the undercover officer, which the State introduced at trial, were essentially admissions of criminal conduct. After noting that the Arkansas Supreme Court recently abolished the affirmative admission requirement, Justice Bolick wrote, “I hope our state, doctrinally committed as it is to individual liberty and constraints on excessive government power, soon will put an end to this unconstitutional condition.” 239 Ariz. at 486, ¶ 55, 372 P.3d at 1010.

 State v. Holle, 240 Ariz. 300, 379 P.3d 197 (2016)

Holle was convicted of molestation of a child and sexual abuse of a minor. The COA affirmed his convictions, concluding that the judge erred in instructing the jury that Holle bore the burden of proving that his conduct was not motivated by a sexual interest. The COA opined that the defense set forth in A.R.S. § 13-1407(E) (conduct not motivated by sexual interest) is not an affirmative

25 defense and, once a defendant carries the burden of production, the burden shifts to the State to prove, beyond a reasonable doubt, that the defendant was motivated by a sexual interest. The COA went on to find the erroneous instruction harmless in view of the overwhelming evidence demonstrating that Holle was motivated by sexual interest. Both the State and Holle petitioned for review, and the ASC granted both petitions.

In a 3-2 opinion, the ASC disagreed with the COA’s conclusion that § 13-1407(E) does not provide affirmative defense. The majority held that the judge correctly instructed the jury that “Holle’s alleged lack of sexual motivation is an affirmative defense . . . requiring him to prove by a preponderance of the evidence that he was not motivated by a sexual interest.” 240 Ariz. at 311, ¶ 50, 379 P.3d at 208. On that basis, the majority affirmed Holle’s convictions.

Chief Justice Bales, joined by Justice Brutinel, dissented in part. To them, the key question is whether “the state, consistent with due process, [may] sweepingly criminalize a broad range of conduct embracing both innocent and culpable behavior and assign to defendants the burden of proving their innocence?” Both justices would answer this question “No,” and both interpreted A.R.S. §§ 13-1404 and -1410 as “impliedly requiring the state to prove a defendant acted with sexual motive.” Although the dissenters concluded that the jury instruction was erroneous, they agreed with the COA that the error was harmless.

26 (Note: In May v. Ryan, ___ F.Supp.3d ___, 2017 WL 1152812 (D. Ariz. Mar. 28, 2017), the United States District Court, Neil V. Wake, J., upheld an as-applied challenge to the burden-shifting scheme found in A.R.S. §§ 13-1410 and -1407(E). In doing so, Judge Wake criticized the Holle majority’s reasoning and result.)

 State v. Primous, CR-16-0205-PR (filed May 23, 2017)

Primous was charged with possessing marijuana. He moved to suppress the baggie of marijuana found on his person by a police officer during a pat-down; the judge denied the motion on grounds that the officers had a reasonable suspicion that criminal activity was afoot and appropriately patted down Primous and his two companions. Primous appealed the conviction rendered following a bench trial. After the COA affirmed the order denying the motion to suppress, the ASC granted review in order to clarify the circumstances that may justify a pat-down search. According to the COA, a critical factor was that, although Primous did not act in a suspicious manner when officers approached the three men, one of the other men ran away. The ASC did not suggest that a court could not consider the actions of a companion, but did not afford the companion’s conduct as much weight as the COA did. Another circumstance that can be considered as part of the “totality” is whether the encounter occurred in a high crime area; the ASC held that that circumstance alone does not justify a pat-down search.

27 28