State v. Tracey

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Appellee,

v.

STEVEN EUGENE TRACEY, Appellant.
___________________________________

L. N., Crime Victim.

No. 1 CA-CR 17-0221
FILED 8-21-2018

Appeal from the Superior Court in Yavapai County
No. P1300CR201400619
The Honorable Michael R. Bluff, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Adele G. Ponce
Counsel for Appellee

Craig Williams Attorney at Law PLLC, Prescott Valley
By Craig Williams
Counsel for Appellant

Arizona Voice for Crime Victims, Phoenix
By Colleen Clase
Counsel for Crime Victim
 STATE v. TRACEY
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.

P E R K I N S, Judge:

¶1 Steven Eugene Tracey appeals his convictions and sentences
for two counts of sexual conduct with a minor, attempted child molestation,
continuous sexual abuse of a child, molestation of a child, and furnishing
harmful items to a minor. Tracey argues the trial court erred in denying his
motion for mistrial and in its evidentiary rulings. For the following reasons,
we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against Tracey. State v. Harm,
236 Ariz. 402, 404 n.2 (App. 2015). Between 1988 and 1991, Tracey engaged
in sexual activities with B.F. and L.N., who were minors. Twenty years later,
between 2011 and 2014, he engaged in sexual activities with C.W. and G.W.,
two minors who at the time were residing with Tracey. In 2015, the State
charged Tracey with thirteen counts of various sexual crimes for these
activities, including sexual conduct with a minor, continuous sexual abuse
of a child, and furnishing harmful items to a minor.

¶3 On the State’s motion, the court ultimately dismissed without
prejudice all counts relating to B.F. Granting Tracey’s motion to sever, the
court held two separate trials for the remaining counts: one for the counts
involving L.N. and one for the counts involving C.W. and G.W. The jury
that considered the charges involving L.N. found Tracey not guilty of one
count and guilty of the other count. The jury considering the charges
involving C.W. and G.W. found Tracey guilty of the lesser included offense
of one of the charged crimes, and guilty of four of the remaining counts as
charged. The court acquitted Tracey on the remaining two counts. The
court held a sentencing hearing for all convictions and imposed consecutive
prison sentences totaling ninety-eight years. Tracey timely appealed.

2
 STATE v. TRACEY
Decision of the Court

DISCUSSION

I. Motion for Mistrial

¶4 During L.N.’s direct testimony, the State asked her to identify
Tracey. In response, L.N. stood, pointed at Tracey, and stated, “That man
was indicted by the grand jury.” Tracey immediately objected and the court
interjected, ceased the questioning, and excused the jury. Tracey then
moved for a mistrial, arguing the outburst “tainted the jury.” The court
denied both the motion and Tracey’s subsequent request to include the
audio recording of trial in the record “for appeal or PCR purposes.” Upon
the jury’s return, the court instructed the jurors “to disregard the last
question and disregard the last answer.” The State then asked L.N. again to
identify Tracey, and she did so.

¶5 Without developing any substantive argument, Tracey
summarily asserts the court’s denial of the mistrial motion prejudiced him.
We review for an abuse of discretion. State v. Jones, 197 Ariz. 290, 304, ¶ 32
(2000). “This deferential standard of review applies because the trial judge
is in the best position to evaluate ‘the atmosphere of the trial, the manner in
which the objectionable statement was made, and the possible effect it had
on the jury and the trial.’” State v. Bible, 175 Ariz. 549, 598 (1993) (quoting
State v. Koch, 138 Ariz. 99, 101 (1983)).

¶6 The record does not reveal any prejudice resulting from the
court’s denial of a mistrial. Before L.N.’s testimony, the court clerk read the
indictment aloud, thereby expressly informing the jurors that the grand
jury had indicted Tracey on two counts of sexual conduct with a minor.
Thus, L.N.’s response did not provide the jurors with substantive
information they did not already know. Additionally, the court instructed
the jury to disregard L.N.’s response to the State’s request to identify
Tracey. We presume that the jury followed the court’s admonition. State v.
Herrera, 174 Ariz. 387, 395 (1993). The court did not abuse its discretion by
denying the mistrial motion.

II. Recording of Trial

¶7 After the verdicts in the trial for the counts involving L.N.,
Tracey repeated his request to make the audio recording a part of the
official record. Tracey argued the recording was necessary for appellate
purposes to illustrate the “volume, tenor, and tone . . . [of] the victim’s
misconduct.” Finding L.N.’s response was not “as dramatic as [Tracey]
described in [his] motion,” the court denied Tracey’s request. The court

3
 STATE v. TRACEY
Decision of the Court

explained that the clerk of the court uses recordings to assist in preparing
minute entries, and court reporter transcripts constitute the official record
of criminal court proceedings. The court additionally stated that it was
hesitant to order the clerk to provide copies of the recording because doing
so could “open the door to challenges to the quality and/or sufficiency of
the Court Reporter’s transcripts” and become a common practice in
criminal cases. Finally, the court observed that the recording system in the
courtroom where trial took place “does not always work correctly, making
it unreliable.”

¶8 Tracey argues the trial court erred in failing to include the
audio recording of L.N.’s “outburst” in the record because he contends the
recording is necessary “to show the severity of the outburst.” However,
Tracey provides no authority supporting his argument that he was entitled
to have the recording made a part of the record. As the trial court correctly
noted, the court reporters’ certified transcripts comprise the official record
of the trial proceedings. Ariz. R. Crim. P. 31.8(a)(1)(D), (b). And the
recording is not necessary to review the trial court’s decision. The parties
sufficiently described L.N.’s reaction. Significantly, the trial judge
personally observed the effect L.N.’s response had on the jury and
subsequently found the curative instruction mitigated any possible
prejudice. When Tracey moved for a mistrial, he stated nothing on the
record that contradicts the court’s conclusion. The court did not err.

III. Photograph of L.N.

¶9 Before the trial for the counts involving L.N. commenced, the
State moved to admit a photograph of L.N. taken during the time period
the alleged offenses occurred, approximately twenty-five years before trial.
The State also requested preclusion of any photograph depicting Tracey at
the time. In response, Tracey argued a photograph of himself at the time of
the alleged offense should be admitted to “reduce any prejudicial value” of
presenting the jury with a photograph only of the then 12-year-old victim.
According to Tracey, “looking at [the photograph of L.N.] and looking at
the 42-year-old Steven Tracey sitting at [the defense] table . . . has a severe
tendency to inflame the passions of the jury.” The court granted the State’s
motion.

¶10 Without developing an argument that applies legal authority,
Tracey summarily asserts that the court erred in finding L.N.’s photograph
admissible and precluding his photograph. We disagree. One of Tracey’s
noticed defenses was mistake of fact, which presumably referred to an
argument that Tracey did not know L.N. was a minor at the time of the

4
 STATE v. TRACEY
Decision of the Court

offense. The photograph of L.N. was properly admissible to assist the jury
in evaluating the reasonableness of such a purported mistake. Additionally,
contrary to Tracey’s assertion, the court’s ruling was not unfairly
prejudicial under Arizona Rule of Evidence 403. As the trial court noted,
the jury would know, without Tracey’s photograph, that he was
approximately twenty-five years younger at the time of the offense than he
was at trial. For these reasons, the court did not abuse its discretion.

IV. Third-Party Culpability Evidence

¶11 Before the trial for the counts involving C.W. and G.W.,
Tracey filed a motion seeking to admit evidence that the brothers of C.W.
and G.W. sexually abused them. According to Tracey, this evidence would
establish the brothers’ culpability for the offenses Tracey allegedly
committed. Tracey also argued the brothers’ sexual abuse of the victims
motivated the victims to fabricate the allegations against him because the
reported abuse resulted in the victims being placed in protective services
and “away from . . . the continuous sexual abuse they suffered at the hands
of their brothers.” The court conducted an evidentiary hearing on the
motion before denying Tracey’s request.

¶12 On appeal, Tracey argues the court erred in denying his
proposed use of the third-party evidence that related to only one of the
brother’s sexual abuse of the victims. Tracey contends the evidence
sufficiently created a reasonable doubt that he committed the charged
offenses, and he argues he satisfied his statutory burden to show the
evidence supports a claim that the victims had a motive to accuse him. See
Ariz. Rev. Stat. (“A.R.S.”) § 13-1421(A)(3) (2018) (Arizona’s rape shield law).
We disagree.

¶13 “The admissibility of third party culpability evidence is
reviewed under an abuse of discretion standard.” State v. Prion, 203 Ariz.
157, 161, ¶ 21 (2002). A defendant may “attempt to show that another
person committed the crime for which he is charged, but it remains in the
trial court’s discretion to exclude the evidence if it offers only a possible
ground of suspicion against another.” Id. (internal citation omitted).

¶14 Arizona Rules of Evidence 401, 402, and 403 “set forth the
proper test for determining the admissibility of third-party culpability
evidence.” State v. Gibson, 202 Ariz. 321, 324, ¶ 19 (2002). “The proper focus
in determining relevancy is the effect the evidence has upon the defendant’s
culpability. To be relevant, the evidence need only tend to create a
reasonable doubt as to the defendant’s guilt.” Id. at 324, ¶ 16. However,

5
 STATE v. TRACEY
Decision of the Court

evidence of “trivial probative value” or evidence raising only “vague
grounds of suspicion” is properly excluded. State v. Bigger, 227 Ariz. 196,
209, ¶ 43 (App. 2011).

¶15 Arizona’s rape shield law provides, in relevant part:

Evidence of specific instances of the victim’s prior sexual
conduct may be admitted only if a judge finds the evidence is
relevant and is material to a fact in issue in the case and that
the inflammatory or prejudicial nature of the evidence does
not outweigh the probative value of the evidence, and if the
evidence . . . supports a claim that the victim has a motive in
accusing the defendant of the crime.

A.R.S. § 13-1421(A)(3). Prior sexual abuse of a victim is considered to be
“prior sexual conduct” under the statute. See State v. Dixon, 226 Ariz. 545,
554, ¶ 47 (2011) (sexual assault is prior sexual conduct under Arizona’s rape
shield law). The proponent of evidence of a victim’s prior sexual conduct
bears the burden of proving by clear and convincing evidence that “the
evidence is relevant and is material to a fact in issue in the case.” State ex rel.
Montgomery v. Padilla, 238 Ariz. 560, 564, ¶ 13 (App. 2015) (internal
quotation marks omitted).

¶16 Here, evidence that the brother sexually abused the victims
was not relevant to determining whether Tracey had also done so. The
record reflects that the sexual abuse the brother engaged in was of a
different nature than the sexual acts Tracey allegedly committed.
Additionally, the record does not support Tracey’s assertion that the
evidence of the brother’s sexual abuse of the victims motivated them to
accuse Tracey so that they would be placed in protective services and
separated from their brother. Tracey presented no evidence at the pre-trial
hearing establishing the victims knew that, as a result of accusing Tracey,
they would be separated from their brother or that they and not Tracey
would be removed from their home.

¶17 Apparently for the first time, Tracey cursorily argues
preclusion of the evidence violated his right to confront witnesses. We reject
Tracey’s argument. This court has previously determined that application
of the rape shield law to preclude evidence does not unconstitutionally
infringe on this right. State v. Herrera, 232 Ariz. 536, 550, ¶ 42 (App. 2013);
State v. Gilfillan, 196 Ariz. 396, 403, ¶¶ 22–23 (App. 2000), abrogated on other
grounds by State v. Carson, 243 Ariz. 463, 466, ¶ 10 (2018).

6
 STATE v. TRACEY
Decision of the Court

¶18 At most, evidence of the brother’s sexual abuse of the victims
raised “vague grounds of suspicion.” Bigger, 227 Ariz. at 209, ¶ 43.
Accordingly, the evidence was properly precluded and the court acted
within its discretion in denying Tracey’s motion.

V. “Profiling” Evidence

¶19 During the trial for the charges involving C.W. and G.W., and
over Tracey’s objection, the trial court allowed the State to provide the
testimony of Cynthia Schopen, a forensic interviewer who described for the
jury the general behavioral characteristics of children who are sexually
abused. Specifically, Schopen described the various responses such victims
have to the abuse and why they may delay disclosing it. Schopen testified
as a “blind” expert; that is, she had no knowledge regarding the specific
victims in this case or the circumstances of the allegations against Tracey.

¶20 Tracey argues Schopen’s testimony was improper “profile”
evidence that described the characteristics of those who sexually abuse
children. We reject this argument.

¶21 In the drug crime context, our supreme court has described
drug courier profile evidence as an “informal,” “abstract,” and “loose
assortment of general, often contradictory, characteristics and behaviors
used by police officers to explain their reasons for stopping and questioning
persons about possible illegal drug activity.” State v. Lee, 191 Ariz. 542, 544,
¶ 10 (1998). Profile evidence creates a risk that a jury will convict a
defendant “not for what he did but for what others are doing.” Id. at 545, ¶
12 (quoting State v. Cifuentes, 171 Ariz. 257, 257 (App. 1991)).

¶22 Schopen did not describe characteristics of sexual abusers. As
noted, she described typical behaviors of sexual abuse victims, which
helped the jury understand the victims’ inconsistent testimony regarding
when events occurred and their delayed reporting of the abuse. See State v.
Salazar-Mercado, 234 Ariz. 590, 594, ¶ 15 (2014) (“[E]xpert testimony about
general behavior patterns of child sexual abuse victims may help the jury
understand the evidence.”). Schopen’s testimony was not improper profile
evidence. The court, therefore, did not abuse its discretion in admitting it.

7
 STATE v. TRACEY
Decision of the Court

CONCLUSION

¶23 Tracey’s convictions and resulting sentences are affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

8