State v. Dyer

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

STEVEN WILLIAM DYER, Appellant.

No. 1 CA-CR 12-0264
FILED 5-8-2014

Appeal from the Superior Court in Maricopa County
No. CR2001-090180
The Honorable Barbara M. Jarrett, Judge (Retired)
The Honorable Patricia Ann Starr, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza C. Ybarra
Counsel for Appellee

Coppersmith Schermer & Brockelman PLC, Phoenix
By James J. Belanger, Scott M. Bennett
Counsel for Appellant
 STATE v. DYER
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Kenton D. Jones and Chief Judge Diane M. Johnsen joined.

O R O Z C O, Judge:

¶1 Steven William Dyer (Dyer) appeals his convictions and
sentences for one count of public sexual indecency to a minor and twelve
counts of sexual conduct with a minor. Dyer argues the trial court erred
when it: refused to order disclosure of the victim's medical and school
records; commented on Dyer’s absence during jury selection; denied his
right to confrontation at a pretrial hearing; and imposed what Dyer claims
are excessive sentences. Dyer further argues the prosecutor engaged in
misconduct during closing argument. For the reasons that follow, we
affirm Dyer's convictions and sentences.

I. Background

¶2 Dyer was a neighbor of the victim and his family. The
offenses occurred between January 1999 and January 2001 when the
victim was eleven to thirteen years old. The jury found Dyer guilty as
charged in 2002 after a trial in absentia. After authorities apprehended
Dyer approximately ten years later, the trial court sentenced him to a
presumptive, aggregate term of 240 years' imprisonment. Dyer timely
appealed. We have jurisdiction pursuant to Arizona Constitution, Article
6, Section 9, and Arizona Revised Statutes (A.R.S.) sections 12-
120.21(A)(2003), 13-4031 (2010) and -4033 (2010).

II. Denial of the Motion to Compel Disclosure of the Victim's Medical
and School Records

¶3 Dyer contends the trial court erred when it refused to
compel the disclosure of the victim's medical, mental health, and school
records. Dyer argues the records were relevant to impeach the victim and
support his defense that the victim fabricated or fantasized the events
between him and Dyer. We review the decision of whether to compel
disclosure of records, including a victim's medical records, for abuse of
discretion. State v. Connor, 215 Ariz. 553, 557, ¶ 6, 161 P.3d 596, 600 (App.

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2007). To the extent the trial court's decision implicates constitutional
issues, our review is de novo. Id.

A. Background

¶4 Among other information, Dyer sought the following from
the victim:

Any and all medical and mental health records, notes
and generated data including physical, psychological,
psychiatric, counseling, hospitalization (in-patient
and out-patient), including treatments, prescribed
medications and diagnosis[; and]

Any and all school and education records, notes and
generated data including behavioral, disciplinary,
achievement testing, academic, attendance,
counseling and mental health records of educational
institutions attended by [the victim].

The only limitation on Dyer’s requests was that he sought records for the
previous five years.

¶5 The trial court denied this portion of Dyer's motion to
compel, finding Dyer failed to make a threshold showing of materiality
for either the victim's medical or school records. Regarding the medical
records, the court found Dyer offered no evidence the victim suffered
from any medical or mental condition that might impact his ability to
observe, recall or relate events or that would otherwise affect his ability to
differentiate between fact and fantasy. The court further found that even
if Dyer's allegations regarding the victim's medical or mental condition
were true, Dyer offered no evidence the victim suffered from a condition
or illness that warranted court-ordered disclosure of his confidential
medical and mental health records. The court noted it was unaware of
any authority for the proposition that the conditions Dyer identified in his
motion can affect a person's ability to perceive or relate events, or that a
person with those conditions or disorders is any less truthful than a
person without those conditions or disorders. The court further noted
Dyer and the expert he retained to support his motion were speculating
what information the victim's medical records might contain and how that
information might be helpful. The court held that speculation did not
warrant disclosure. Moreover, the court noted that speculation did not
warrant an in camera inspection.

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Decision of the Court

¶6 The court further held Dyer already had "ample material
and information" to prepare his cross-examination of the victim. The
court noted Dyer could use that information to obtain additional
information to assist his preparation of the cross-examination of the victim
and to otherwise support his defense. This included talking to numerous
witnesses to obtain information and opinions regarding the victim's
credibility. Finally, the court held its analysis regarding disclosure of the
medical records applied equally to the victim's school records.

B. Discussion

¶7 We find no error. First, the unlimited nature of the request
provided a sufficient basis for the trial court to refuse to conduct an in
camera inspection and deny the motion. See Connor, 215 Ariz. at 561-62,
¶¶24-25, 161 P.3d at 604-05. Second, we recognize the right to refuse
production of a victim's medical records is not absolute. See State v.
Sarullo, 219 Ariz. 431, 437, ¶ 20, 199 P.3d 686, 692 (App. 2008).
Circumstances exist in which a trial court may order a victim to produce
medical records for an in camera inspection and ultimately provide those
records to a defendant. Id. Before the defendant is entitled to an in camera
inspection, however, the defendant must first show a reasonable
probability the records sought contain information the defendant is
entitled to as a matter of due process. Id. Where a defendant fails to
provide the trial court with any reason to believe a victim's medical
records contain exculpatory material, the trial court does not err when it
fails to order the production of those records. See id. at ¶ 21.

¶8 As the trial court correctly noted, the "ample materials and
information" already in Dyer's possession afforded him the opportunity to
fully and effectively cross-examine the victim. Regarding direct evidence
of the victim's credibility, the jury heard testimony that the victim lied to
his parents and other members of his family at various times and lied
when he told others he had a sexual encounter with a friend from school.
The jury heard testimony the victim lied to the first forensic interviewer
who interviewed him, he lied to investigators about the last time he saw
Dyer and regarding what occurred the first time he and witness "GS" went
to Dyer's home. The jury also heard testimony the victim never identified
a distinctive tattoo and numerous moles on Dyer’s back despite allegedly
seeing him naked numerous times. Furthermore, the jury heard
testimony from former neighbors of the victim that the victim was not
truthful.

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¶9 Regarding evidence of the victim's medical history, the jury
also heard testimony the victim had been treated and counseled for
attention deficit disorder, anger, and depression. The jury heard
testimony the victim could become violent. Further, healthcare providers
prescribed Zoloft, lithium carbonate, Risperdal, Cogentin, Ritalin and
Wellbutrin for the victim at various times.1 The jury learned the victim
had run away from home more than once. The jury also heard testimony
that major illnesses associated with people who make false allegations
include bipolar/manic depressive disorder, which is frequently treated
with lithium, one of the victim's medications. The jury further heard
testimony that anger at an alleged perpetrator can be a factor in false
allegations, at least by adolescent females. The victim told investigators
he was upset with Dyer because Dyer broke off contact with him after the
victim's parents became concerned about the relationship between the
victim and Dyer.

¶10 Regarding the victim's prior sexual experience, the jury
heard testimony the victim began viewing at "a wide range" of
pornography when he was ten years old and viewed pornography on his
family's home computer. The victim acknowledged his mother claimed
he looked at pornography on a school computer. The jury also heard
testimony the victim discussed his sexual fantasies with others, including
Dyer, and sometimes did so as if those fantasies were real.

¶11 Regarding the victim's school history, the jury heard
testimony the victim had been to multiple schools and changed schools
frequently.2 Regarding the victim's alcohol and drug use, the jury heard

1 Dyer offered no evidence regarding how any medical or mental
condition for which the victim underwent treatment could affect a
person's ability to perceive, recall and relate events, whether they could
cause a person to fabricate or fantasize events that never occurred, nor
how they would otherwise affect a person's credibility. Further, Dyer
offered little evidence regarding the actual purpose of the medications
prescribed to the victim or how those medications might affect a person's
ability to perceive, recall and relate events, whether they could cause a
person to fabricate or fantasize events that never occurred, nor how they
would have otherwise affected a person's credibility.

2 Dyer did not explore in any significant way why the victim
changed schools or why he did so frequently.

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testimony that despite the victim's age, he drank alcohol and binged when
he did so. The jury also heard evidence the victim used marijuana and
that Dyer refused to use marijuana with the victim.

¶12 The evidence cited above was more than sufficient to permit
Dyer the opportunity to present information bearing on the victim's
credibility and develop and support his defense that the victim fabricated
the events at issue or that they were merely a fantasy. The trial court's
refusal to compel disclosure of the victim's medical and school records did
not prevent Dyer from developing these themes at trial and exploring how
the victim's medical and/or mental condition, medications, sexual
knowledge and experience, drug or alcohol use, troubles at school, or any
other factor Dyer identified in his motion to compel could have affected
the victim's credibility or led him to fabricate or fantasize events that
never occurred.3

III. The Trial Court's Comments During Jury Selection

¶13 As noted above, the court tried Dyer in absentia. Dyer argues
the trial court erred when it made comments about Dyer's absence during
voir dire. Because Dyer did not object to the court's comments, we review
for fundamental error. See State v. Gendron, 168 Ariz. 153, 154, 812 P.2d
626, 627 (1991) (recognizing the failure to raise an issue at trial waives all
but fundamental error.). "To establish fundamental error, [a defendant]
must show that the error complained of goes to the foundation of his case,
takes away a right that is essential to his defense, and is of such
magnitude that he could not have received a fair trial." State v. Henderson,
210 Ariz. 561, 568, ¶ 24, 115 P.3d 601, 608 (2005). Even when a defendant
establishes fundamental error, however, the defendant must still show
prejudice. Id. at ¶ 26.

3 Dyer argues our decision in State v. Superior Court (Roper), 232 Ariz.
232, 836 P.2d 445 (App. 1992) is directly on point and required disclosure
of the documents. The defendant in Roper, however, showed there was
more than a reasonable probability, if not a certainty, that the records she
sought contained information material to her ability to cross-examine the
victim and to support her defense. Id. at 234-35, 237, 836 P.2d at 447-48,
450. Dyer made no such showing here.

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Decision of the Court

A. Background

¶14 During voir dire, a prospective juror questioned Dyer's
absence and expressed his belief it would be in Dyer's best interest to be
present for trial. The prospective juror then asked if the panel would
receive more information regarding why Dyer was absent. The court
responded:

[N]o, you're not going to be hearing anything about that.
I'm just telling you that he is aware that the matter is
proceeding to trial. He is aware that he has a right to be
here, and he is not going to be here. His interests are being
represented at trial by his attorneys. And other than saying
that, and that the jurors are not going to be allowed to
consider that factor in determining whether the State has
proven his guilt. I'm going to leave it at that.

When the prospective juror commented that it seemed out of character for
an innocent person to not come to court, the court responded:

[S]ometimes there are things that we just can't explain to you
or tell you about, but suffice it to say that if you are a
member of the jury panel, having heard the evidence, you'll
be deliberating on the evidence that's before you and you
won't get to consider that factor that the defendant was not
present during the trial.

When another prospective juror in turn asked if Dyer was incarcerated or
not, the trial court responded that Dyer was not incarcerated. While the
trial court made other comments during voir dire regarding Dyer's
absence, on appeal, Dyer only takes issue with the comments identified
above.

B. Discussion

¶15 We find no error, fundamental or otherwise. The trial
court's statements were appropriate responses to the questions and
concerns expressed by the potential jurors. The trial court did not portray
Dyer in a negative light. It did not comment on matters not in evidence,
express any opinions, display any bias or partiality, or interfere with the
jury's independent evaluation of the evidence. The trial court did not
imply or suggest, as claimed by Dyer, that he was "thumbing his nose at
the legal system" or that he was "some kind of roving, dangerous
pedophile, who was out in the world molesting other children."

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¶16 The trial court also took steps that were more than adequate
to ensure the jurors ultimately selected were not affected by Dyer's
absence and that his absence played no role in their deliberations. At the
beginning of voir dire, the court informed the prospective jurors that Dyer
would not be present for trial and told them, "None of you are to draw
any inferences one way or the other from his absence during the trial."
When a prospective juror asked the court if a defendant has a right to be
present for trial under Arizona law, the court responded:

[T]hat is a defendant's choice. A defendant is made aware
when the matter is going to proceed to trial. That's his or her
choice whether to be there or not. You know, the law does
not require that the defendant be here, and as I said, you're
not allowed to draw any inference one way or the other from
that factor.

When voir dire continued the next day with additional prospective jurors,
the court again informed the panel:

[Dyer] will not be present during the course of the trial. He
does have a right to be here. He is not going to be here. You
are not to draw any inference one way or the other from his
absence during the course of the trial. And I'll ask you at a
later time if anyone would have any problem with that.

When a prospective juror expressed concerns about Dyer's absence, the
court told the panel that regardless of whether Dyer was present for trial,
he did not have to prove his innocence, had no obligation to call any
witnesses or present any evidence and the State had the burden to prove
its case beyond a reasonable doubt.

¶17 We also note the court struck every prospective juror who
expressed any concern or doubt regarding Dyer's absence. Finally, in the
final instructions, the court instructed the jury it must not consider or
speculate about Dyer's absence; his absence was not evidence; and it must
not consider his absence in its determination of whether the State proved
its case beyond a reasonable doubt. We presume jurors follow
instructions. State v. Dunlap, 187 Ariz. 441, 461, 930 P.2d 518, 538 (App.
1996).

IV. Prosecutorial Misconduct

¶18 Dyer argues the prosecutor engaged in misconduct during
closing and rebuttal arguments. Dyer argues the prosecutor intentionally

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misrepresented the testimony of GS regarding the second time GS and the
victim went to Dyer's house. He further argues the prosecutor shifted the
burden of proof.

¶19 Dyer did not object to any of the alleged misconduct. A
failure to object to alleged prosecutorial misconduct at the time of trial
waives the issue absent fundamental error. State v. Wood, 180 Ariz. 53, 66,
881 P.2d 1158, 1171 (1994). In our determination of whether a prosecutor’s
conduct amounts to fundamental error, we focus our inquiry on the
probability the conduct influenced the jury and whether the conduct
denied the defendant a fair trial. Id. In doing so, we bear in mind that
"[d]uring closing arguments, counsel may summarize the evidence, make
submittals to the jury, urge the jury to draw reasonable inferences from
the evidence, and suggest ultimate conclusions." State v. Bible, 175 Ariz.
549, 602, 858 P.2d 1152, 1205 (1993). Further, prosecutors have wide
latitude in closing argument. "Excessive and emotional language is the
bread and butter weapon of counsel’s forensic arsenal, limited by the
principle that attorneys are not permitted to introduce or comment upon
evidence which has not previously been offered and placed before the
jury." State v. Jones, 197 Ariz. 290, 305, ¶37, 4 P.3d 345, 360 (2000).

A. The Testimony of GS

¶20 The prosecutor discussed the testimony of GS during her
closing argument. When the prosecutor addressed GS's testimony
regarding the second time GS and the victim went to Dyer's home, the
prosecutor stated, "[GS] remembers performing oral sex on Mr. Dyer or
having Mr. Dyer perform it on him, but he also remembers, he thinks, seeing
Mr. Dyer perform oral sex on [the victim], which is what [the victim] said."
Dyer argues the italicized portion of the statement misrepresented the
testimony of GS.

¶21 The prosecutor's statement regarding what GS remembered
was incorrect. GS testified he knew there was sexual contact between
Dyer and the victim the second time GS and the victim went to Dyer's
house. He testified he could not remember, however, if Dyer and the
victim engaged in oral sex at that time. When asked if he had trouble
remembering the types of sex that took place, GS answered he knew
"there was oral sex and hand-to-genital touching," but he did not
remember clearly if the types of sexual contact he, the victim and Dyer
engaged in at Dyer's home occurred during the first or second visit to
Dyer's home.

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¶22 Even though the prosecutor's argument was incorrect, we
find no error, fundamental or otherwise. Prosecutorial misconduct is not
merely "legal error, negligence, mistake or insignificant impropriety, but,
taken as a whole, amounts to intentional conduct which the prosecutor
knows to be improper and prejudicial." Pool v. Superior Court, 139 Ariz. 98,
108-09, 677 P.2d 261, 271-72 (1984). Further, "[p]rosecutorial misconduct
does not require reversal ‘unless the defendant has been denied a fair trial
as a result of the actions of counsel.’" Bible, 175 Ariz. at 600, 858 P.2d at
1203 (quoting State v. Dumain, 162 Ariz. 392, 400, 783 P.2d 1184, 1192
(1989)). GS remembered that oral sex took place but he could not
remember when. We cannot say it was improper or misleading for the
prosecutor to argue GS's testimony supported the victim's testimony that
Dyer performed oral sex on the victim the second time GS and the victim
went to Dyer's home. To argue that GS testified he thinks he remembers
seeing that conduct occur during the second visit was incorrect. However,
there is nothing in the record to suggest this was anything but an error or
mistake. The argument did not deny Dyer a fair trial and nothing
suggests the prosecutor misled the jury. Further, the trial court instructed
the jury that what the attorneys say in closing is not evidence and Dyer's
counsel reminded the jury of this in his closing argument. Again, we
presume jurors follow their instructions, and there is nothing in the record
to suggest the jurors in this case did not do that.

B. Shifting the Burden of Proof

¶23 Dyer argues the prosecutor shifted the burden of proof to
Dyer during her rebuttal argument. In her rebuttal argument, the
prosecutor went through the confrontation call between the victim and
Dyer and the many incriminating statements Dyer made during that call.
The prosecutor then addressed the problems with the State's case that
Dyer focused on in his own closing argument. The prosecutor addressed
the victim's "problems," how he viewed pornography, his various
medications, his problems with anger, his anger at his family, his anger at
Dyer and his alleged sexual disorders. The prosecutor also addressed
GS's inability to remember a great deal of information and GS's immunity
agreement with the State. The prosecutor then addressed problems with
the victim's version of events, such as how he never identified the
prominent tattoo on Dyer's back and how one could not see a television
from a location in Dyer's bedroom as the victim had claimed. Finally, the
prosecutor addressed Dyer's argument regarding how the police could
have done more during their investigation. The prosecutor then argued,
"There is nothing here that indicates that the defendant is innocent of
these charges. I mean, there's nothing in any of this evidence that would

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show that he is innocent. There's nothing that shows – you know, I mean,
as – it's innocuous either way." Dyer claims these statements shifted the
burden of proof.

¶24 We find no error, fundamental or otherwise. The
prosecutor's statement did not shift the burden of proof. It did not draw
attention to Dyer's failure to testify, did not suggest Dyer failed to
introduce evidence, did not suggest he had a duty to introduce evidence
and did not even hint that Dyer bore any burden of proof. The
statements at issue summarized the evidence the prosecutor had just
addressed and did so in an acceptable fashion. Further, the final
instructions instructed the jury repeatedly that the State had the burden to
prove every element of every offense beyond a reasonable doubt with its
own evidence. The instructions further provided Dyer was not required
to produce evidence of any kind, he was not required to prove he was
innocent, and that his failure to produce evidence was not evidence of
guilt. Again, we presume the jury followed its instructions.

V. The Right to Confront Witness GS at a Pretrial Hearing

¶25 Prior to trial, the State sought to introduce certain testimony
of GS pursuant to Arizona Rule of Evidence 404(c). The State argued the
evidence was admissible pursuant to Rule 404(c) to show Dyer had a
character trait that gave rise to an aberrant sexual propensity to commit
the offenses charged. In its consideration of the motion, and over Dyer's
objection, the trial court watched a videotape of a police interview with
GS rather than require GS to testify at the pretrial hearing on the motion.
The court ultimately held the evidence was admissible pursuant to Rule
404(c). Dyer argues the trial court's consideration of GS's videotaped
interview and its failure to require GS to appear live at the pretrial hearing
denied him his right to confrontation. We review evidentiary rulings that
implicate the Confrontation Clause de novo. State v. Ellison, 213 Ariz. 116,
129, ¶ 42, 140 P.3d 899, 912 (2006).

¶26 We find no error. When a trial court decides preliminary
questions involving the admissibility of evidence, the evidentiary rules do
not apply. Ariz. R. Evid. 104(a); State v. Edwards, 136 Ariz. 177, 183, 665
P.2d 59, 65 (1983). Further, the right to confrontation is a trial right. Barber
v. Page, 390 U.S. 719, 725 (1968); Pennsylvania v. Ritchie, 480 U.S. 39, 52
(1987) (plurality opinion); Connor, 215 Ariz. at 562, ¶ 28, 161 P.3d at 605.
"[T]he literal right to 'confront' the witness at the time of trial . . . forms the
core of the values furthered by the Confrontation Clause." Delaware v.
Fensterer, 474 U.S. 15, 18 (1985) (quoting California v. Green, 399 U.S. 149,

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157 (1970)). While Dyer argues the 404(c) hearing was such a critical stage
of the proceeding that the ability to confront GS at trial was not sufficient
to protect his right to confrontation, "the question whether a particular
proceeding is critical to the outcome of a trial is not the proper inquiry in
determining whether the Confrontation Clause has been violated. The
appropriate question is whether there has been any interference with the
defendant's opportunity for effective cross-examination." Kentucky v.
Stincer, 482 U.S. 730, 744, n. 17 (1987).

¶27 This is not to say that we cannot foresee a situation in which
a trial court must allow a defendant to confront a witness at a pretrial
hearing in order to adequately afford the defendant the opportunity to
conduct a full and effective cross-examination of that witness at trial. That
situation, however, is not present here. Dyer interviewed GS before the
pretrial hearing. The trial court placed no limitations on Dyer's cross-
examination of GS at trial. Therefore, the trial court's failure to require GS
to testify in person at the pretrial hearing did not interfere with Dyer's
opportunity to conduct a full and effective cross-examination of GS at
trial. The trial court's decision did not interfere with Dyer's rights under
the Confrontation Clause.

¶28 Within his argument on this issue, Dyer also argues the trial
court's limiting instruction regarding other acts evidence was not
sufficient. The trial court instructed the jury that it must not consider
other acts evidence to prove Dyer's character or to prove he acted in
conformity with that character, but that it could consider the other acts
evidence as it related to Dyer's motive, opportunity, intent, preparation,
plan, knowledge, identity or absence of mistake or accident. The court
further instructed the jury it could consider evidence of other similar
sexual offenses by Dyer only to the extent the evidence showed a
propensity to commit the charged offenses, and even then it could not
consider that evidence for any purpose other than Dyer's state of mind.

¶29 Relying on the comment to Rule 404(c), Dyer argues this
limiting instruction was not sufficient. Dyer argues the comment to Rule
404(c) required the court to further instruct the jury that the admission of
the other acts evidence did not lessen the State's burden to prove the
offenses beyond a reasonable doubt, and that the jury could not convict
Dyer simply because it found Dyer committed the other acts or had a
character trait that predisposed him to the commit the charged offenses.
See Ariz. R. Evid. 404, Comment to 1997 Amendment.

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¶30 We find no error. First, Dyer did not object to the court's
limiting instruction. "The failure to object to an instruction either before
or at the time it is given waives any error, absent fundamental error."
State v. Schrock, 149 Ariz. 433, 440, 719 P.2d 1049, 1056 (1986). More
importantly, when a defendant fails to request an instruction limiting the
jury's consideration of other act evidence, the trial court's failure to give a
limiting instruction sua sponte is not fundamental error. State v. Taylor, 127
Ariz. 527, 530-31, 622 P.2d 474, 477-78 (1980). If Dyer wanted the court's
limiting instruction to include further limitations or provide additional
instructions, Dyer had to either object to their omission or submit his own
requested instruction.

¶31 Second, the purpose of jury instructions is to inform the jury
of the applicable law. State v. Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708
(App. 1996). A set of instructions need not be faultless. The instructions,
however, must give the jury an understanding of the issues and must not
mislead the jury. See id. "Where the law is adequately covered by the
instructions as a whole, no reversible error has occurred." State v. Doerr,
193 Ariz. 56, 65, ¶ 35, 969 P.2d 1168, 1177 (1998). Here, the instructions as
a whole adequately covered the applicable law. As noted above, the court
instructed the jury more than once that the State bore the burden to prove
every element of every offense beyond a reasonable doubt. Further, the
court's limiting instruction informed the jury it could not consider the
other act evidence for any purpose other than to prove motive,
opportunity, intent, preparation, plan, knowledge, identity or absence of
mistake or accident. In the more specific context of Rule 404(c), the court's
limiting instruction further informed the jury it could consider evidence of
Dyer's other sexual acts only to the extent it showed a propensity to
commit the charged offenses, and even then only as evidence of Dyer's
state of mind. This was sufficient to inform the jury of the limitations
placed on its consideration of the other act evidence. The failure of the
trial court to provide a more detailed limiting instruction in the manner
suggested by the comment to Rule 404 did not constitute error.

VI. The Twenty-Year Sentences for Sexual Conduct with a Minor

¶32 The twelve counts of sexual conduct with a minor
constituted, as established by statute, dangerous crimes against children.
See A.R.S. § 13-604.01(L)(1)(e) (2000).4 The applicable version of A.R.S. §

4 While the offenses occurred between 1999 and 2001, the substance
of the applicable sentencing statutes did not change during that period.

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13-604.01(C) provides that a trial court shall sentence a defendant
convicted of sexual conduct with a minor who is twelve, thirteen or
fourteen years of age to a presumptive term of twenty years'
imprisonment. The court may mitigate or aggravate the sentence by up
to seven years. A.R.S. § 13-604.01(F) (2000). A.R.S. § 13-604.01(K) (2000)
provides that a sentence for the commission of a dangerous crime against
children must be served consecutively to any other sentence.

¶33 The trial court sentenced Dyer to the presumptive term of
twenty years' imprisonment for each count of sexual conduct with a
minor. The mandatory consecutive terms resulted in an aggregate term of
240 years' imprisonment. Dyer argues his presumptive twenty-year
sentences for sexual conduct with a minor, both individually and in the
aggregate, constitute cruel and unusual punishment. We review de novo
whether a sentence constitutes cruel and unusual punishment. See State v.
Kasic, 228 Ariz. 228, 231, ¶ 15, 265 P.3d 410, 413 (App. 2011).

¶34 The Eighth Amendment of the United States Constitution
prohibits cruel and unusual punishment. State v. Berger, 212 Ariz. 473,
475, ¶ 8, 134 P.3d 378, 380 (2006). In a "noncapital" setting, this means that
the sentence imposed may not be "grossly disproportionate" to the crime.
Id. at ¶ 10. In the analysis of whether a sentence is grossly
disproportionate, "a court first determines if there is a threshold showing
of gross disproportionality by comparing 'the gravity of the offense and
the harshness of the penalty.'" Berger, 212 Ariz. at 476, ¶ 12, 134 P.3d at
381 (quoting Ewing v. California, 538 U.S. 11, 28 (2003)). In doing so, the
court "must accord substantial deference to the legislature and its policy
judgments as reflected in statutorily mandated sentences." Id. at ¶ 13. If
the legislature has reasonable grounds to believe that a sentence advances
the goals of that state's criminal justice system in "any substantial way,"
and the sentence "arguably furthers the State's penological goals and thus
reflects 'a rational legislative judgment, entitled to deference[,]'" a sentence
is not grossly disproportionate and the analysis need not continue further.
Berger, 212 Ariz. at 477, ¶ 17, 134 P.3d at 382 (quoting Ewing, 538 U.S. at 28,
30). It is "exceedingly rare" that a sentence in a noncapital case will violate
the prohibitions against cruel and unusual punishment. Id.

¶35 A twenty-year sentence for sexual conduct with a minor
who is twelve, thirteen or fourteen years of age is not grossly

Therefore, we cite the 2000 version of the statutes regardless of when the
offense actually occurred.

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Decision of the Court

disproportionate to the crime. "It is evident beyond the need for
elaboration that a State's interest in 'safeguarding the physical and
psychological well-being of a minor' is 'compelling.'" Berger, 212 Ariz. at
477, ¶ 18, 134 P.3d at 382 (quoting Osborne v. Ohio, 495 U.S. 103, 109
(1990)). Our legislature has a reasonable basis to believe that the lengthy
sentences it has prescribed for sexual conduct with a minor advance the
goals of the Arizona criminal justice system in a substantial way, and that
those sentences further the State's penological goals. A twenty-year
sentence for sexual conduct with a minor under the age of fifteen, is,
therefore, not grossly disproportionate.

¶36 We note that in Berger, our supreme court held a ten-year
minimum sentence for sexual exploitation of a minor based upon the mere
possession of a single image of a child engaged in exploitive exhibition or
other sexual conduct is not grossly disproportionate to the crime. Berger,
212 Ariz. at 474, ¶ 1, 134 P.3d at 379.5 Viewed in the context of Berger, a
twenty-year presumptive sentence for an adult who intentionally or
knowingly engages in sexual intercourse or oral sexual contact with a
minor under the age of fifteen is not grossly disproportionate to the crime.
See A.R.S. § 13-1405(A) (2000) (sexual conduct with a minor). The fact that
Dyer must serve the sentences consecutively is inconsequential. "If the
sentence for a particular offense is not disproportionately long, it does not
become so merely because it is consecutive to another sentence for a
separate offense or because the consecutive sentences are lengthy in
aggregate." Berger, 212 Ariz. at 479, ¶ 28, 134 P.3d at 384.6

¶37 This case is distinguishable from the circumstances
presented in State v. Davis. In Davis, the Arizona Supreme Court held that
under the specific facts and circumstances of that case, a mandatory
minimum sentence of fifty-two years' imprisonment for having voluntary
sex with two post-pubescent girls violated the prohibitions against cruel
and unusual punishment. State v. Davis, 206 Ariz. 377, 379, ¶ 1, 79 P.3d 64,

5 The United States Supreme Court denied certiorari in Berger. Berger
v. Arizona, 549 U.S. 1252 (2007).

6 Dyer also urges us to hold that the prohibition against cruel and
unusual punishment in Article 2, Section 15 of the Arizona Constitution
affords greater protections than the prohibition against cruel and unusual
punishment in the Eighth Amendment of the United States Constitution.
Our supreme court has already rejected this argument. See State v. Davis,
206 Ariz. 377, 380-381, ¶ 12, 79 P.3d 64, 67-68 (2003).

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Decision of the Court

66 (2003). The supreme court also recognized, however, that "Davis
represents an extremely rare case[.]" Berger, 212 Ariz. at 480, ¶ 37, 134
P.3d at 385 (internal quotations omitted). Davis was twenty years old.
His level of maturity and intelligence was far below that of a normal
adult. The girls involved actively sought out Davis, voluntarily went to
his home and actively participated in the acts. Id. at 481, ¶ 41, 134 P.3d at
386. Davis's conduct was, in the words of the supreme court, "swept up"
in the broad terms and "expansive reach" of the statute. Id. at ¶¶ 41-42,
134 P.3d at 386. Dyer, however, was not a young adult of far below
average intelligence and maturity whose conduct was swept up and
caught up in the broad terms and expansive reach of the law. This case is
in no way analogous to Davis.

VII. Conclusion

¶38 We affirm Dyer's convictions and sentences.

:MJT

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