State v. Earl

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DION LEE EARL, Appellant.

No. 1 CA-CR 19-0592
FILED 1-19-2021

Appeal from the Superior Court in Maricopa County
No. CR2017-149648-001
The Honorable Suzanne E. Cohen, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

The Stavris Law Firm PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant
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MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.

H O W E, Judge:

¶1 Dion Earl appeals his convictions and sentences for sexual
assault, kidnapping, sexual abuse, public sexual indecency, and assault. For
the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In September 2017, Earl hired N.A., 21, to work as a live-in
nanny for his children. Earl and N.A. met at the airport and he took her to
his home, arriving around midnight. That night, Earl went to N.A.’s
bedroom and asked her to give him a massage. After she refused, Earl asked
her if she would massage him for $100. She again refused and Earl left the
room.

¶3 A little later, Earl called for N.A. to come and help him
because one of the children woke up. As N.A. walked down the hallway,
she felt Earl, who was naked, grab her arm and pull her into his bedroom
and onto the bed. He pinned her arm underneath her to prevent her from
moving. He then put his hands inside her pants and put his fingers inside
her vagina and rubbed her breasts. While this was happening, N.A. realized
that two of Earl’s children were sleeping in his bed.

¶4 N.A. eventually freed herself from Earl and ran to the front
door, which was locked and required a code to open. Earl came to the front
door and offered her $100 “to keep quiet” before he unlocked the door. N.A.
left and called for a taxi while Earl continued to offer her money to keep her
quiet. The taxi driver picked N.A. up and dropped her off at her
grandmother’s house. The driver then called the police because he was
concerned for N.A. based on her demeanor during the ride home.

¶5 During that same time, Earl hired I.W., 18, to babysit his
children. In October 2017, when Earl was out of town, his wife asked I.W.
babysit the children while she went out one evening. The next day, I.W.
took Earl’s wife to pick up her car. I.W. then returned to Earl’s house and
found him there alone. He gave her an intimate hug. After telling Earl that

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she needed to leave, he asked her to follow him to his bedroom so he could
pay her. When they reached his bedroom, he closed and locked the door.
He tried to hug her again and pulled her with him as he fell onto the bed.
Earl then put his hand down her pants and rubbed her bottom. She got up
and tried to leave but Earl grabbed her by the arm again and pulled his
pants down and masturbated in front of her. She walked to the bedroom
door unlocked it and walked toward the front door. Earl followed, gave her
money and she left. I.W. later reported what Earl had done to the police.

¶6 Earl was arrested and charged with sexual assault, two counts
of kidnapping, sexual abuse, public sexual indecency, and assault. Before
trial, the State moved under Arizona Rule of Evidence 404(c) to admit other
act evidence of Earl’s previous non-consensual sexual acts with five
different women. The trial court held an evidentiary hearing during which
recorded interviews of the other act victims were played.

¶7 One of the women, E.B., said in her interview that in
September 2014, Earl hired her to be dancer for a soccer team that he had
recently purchased in Washington state. She said that on one occasion, Earl
texted her and asked for a massage and that “he was very infatuated with
massages.” The day after texting her, she went to Earl’s house for a meeting
and when she arrived, he gave her a “lingering hug.” He told her that he
wanted to give her a massage and that he wanted her to give him a massage,
but she declined. He then came closer and laid on her lap and again asked
her to massage him. She tried to get up, but he pushed her down, climbed
on top of her and kissed her, “dry hump[ed] her,” and groped her breasts.
She repeatedly told him to stop before she got up and left as Earl said, “what
happened here, stays here.”

¶8 Another woman was J.R., 24, whom Earl also hired as a
dancer for the soccer team. She stated that one evening, Earl asked her to
help him pass out fliers for the soccer team. Afterwards, he told her that
they were going to a strip club. When they arrived, he took her to a private
room with a dancer. Earl put one of his hands on J.R.’s thigh and moved it
up to “graze[] her vagina.” He also kissed her neck, pulled her bra strap
down and kissed her breast. J.R. got up and left as Earl said what happens
at the strip club, stays at the strip club.

¶9 A third woman, C.G., said that she babysat for Earl for two
years starting around September 2015, when she was 18 years old. On one
occasion, she traveled with Earl and his family to Nevada and stayed in a
separate hotel room. That evening, Earl invited her to a strip club. When
C.G. hesitated, Earl told her that he was coming over to her room and that

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she “owe[d] [him] a massage.” When he got to her room, he told her to
massage him, but she declined. He then put her hands on his body to mimic
a massage and pulled her on top of him. C.G. massaged his chest, but Earl
kept trying to push her hands lower and she told him no. He then got up
and left.

¶10 C.G. said that on another trip to Nevada in 2016, she stayed
in the family suite and slept in the children’s bedroom. Earl came in and
tried to “spoon” with her, rubbed his hands over her body, groped her
breasts, and got an erection. She pretended she was sleeping, wiggled him
off her, and he left. In Arizona in early 2016, when C.G. was upset, Earl
hugged her while wearing only a towel. When C.G. felt that Earl had an
erection, she pulled away from him. He then had her follow him to his
room, closed and locked the door, and had her lay on his bed so they could
talk. He then pulled her into him and snuggled her. She eventually got up
and said she was going to check on the kids.

¶11 After hearing the recorded interviews of the five women, the
trial court denied the State’s motion to allow two of the women to testify,
but did grant the motion to allow E.B., J.R., and C.G. to testify as other act
witnesses under Rule 404(c). It found that the State had proved by clear and
convincing evidence that Earl had committed the other acts, the other acts
provided a reasonable basis for the jury to infer that Earl had a character
trait giving rise to aberrant sexual propensity to commit the charged
offenses, the other acts were not remote in time, and admission of the other
act evidence was not unfairly prejudicial under Arizona Rule of Evidence
403. All three other act victims testified at trial and were cross-examined by
Earl.

¶12 Jolene Larson, a registered nurse, testified that as part of her
examination of N.A., she asked what had happened to her body. Earl
objected to N.A.’s statements on hearsay grounds. The court overruled the
objection, finding that the statements were made for the purpose of medical
treatment. She then testified that N.A. told her that

[h]e grabbed me by my arms and pulled me on the bed. He
had my right arm under him pinned so I couldn't move. Then
he started rubbing on me on my back, my shoulders and my
neck over the clothes. Then he grabbed my left hand and
made me touch his penis with my palm, and then I balled my
fist up so my knuckles were rubbing against his penis. Then
he took his hand and put it in my pants and put his fingers
inside of my vagina. Then he started rubbing by butt and back

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and he was rubbing on the straps of my bra. That he was
telling me to be quiet and not wake the girls up. I was trying
to fight off—fight off him and get up and he had a code on the
door so I couldn't get out.

¶13 She further testified that asking questions about what
happened to the patient’s body, helps guide the exam, and that her job is to
collect swab samples based on what the patient tells her. She also gave N.A.
medication, prescriptions, and aftercare instructions.

¶14 Detective Robert Russo testified that when he interviewed
Earl, he did not admit to doing anything without the consent of the victims.
He testified that Earl told him that I.W. initiated the hug between them and
that I.W. kissed him and touched his penis. He further testified that Earl
told several versions about what had happened, denying any physical
contact initially and never mentioned the bedroom until Earl was told about
a picture that I.W. had taken in the bedroom. Russo also testified that when
he asked Earl about an interaction with N.M., Earl’s story changed when
confronted with N.A.’s statement that she and Earl were in his bedroom.

¶15 After the State rested, Earl moved for a judgment of acquittal,
arguing that the State presented no corroborating evidence, no scientific
evidence, and no DNA evidence. He further argued that the victims’
testimonies were inconsistent. The State responded that the victims’
testimonies were consistent, and that substantial evidence existed such that
a jury could find Earl guilty. The court therefore denied Earl’s motion.

¶16 After trial, Earl was convicted of the charged offenses and was
sentenced to 7 years’ imprisonment for sexual assault, 5 years’
imprisonment for each kidnapping conviction, lifetime probation for sexual
abuse, 6 months’ jail for public sexual indecency, and 30 days’ jail for assault
with 714 days’ presentence incarceration credit. Earl timely appealed.

DISCUSSION

¶17 Earl argues that the trial court erred by finding that the other
act evidence was admissible because his right to confront the three other act
victims was violated, as none of them were present at the evidentiary
hearing. When a defendant does not object at trial, we review for
fundamental error and must first determine whether trial error exists. State
v. Escalante, 245 Ariz. 135, 140, 142 ¶¶ 12, 21 (2018). We review evidentiary
rulings that implicate the Confrontation Clause de novo. State v. Stuebe, 249
Ariz. 127, 130 ¶ 4 (App. 2020). “In all criminal prosecutions, the accused

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shall enjoy the right . . . to be confronted with the witnesses against him[.]”
U.S. Const. amend. VI.

¶18 Earl’s right to confront the other act victims was not violated.
The Confrontation Clause does not apply to the same extent at pretrial
hearings as it does at trial, State v. Riley, 196 Ariz. 40, 43 ¶ 7 (App. 1999); see
also Barber v. Page, 390 U.S. 719, 725 (1968) (“The right to confrontation is
basically a trial right.”) and the right to confront one’s accusers is satisfied
if defense counsel receives wide latitude to question the witnesses at trial,
Pennsylvania v. Ritchie, 480 U.S. 39, 53 (1987). Because Earl cross-examined
all three other act victims at trial, his right to confront the other act victims
at the pretrial hearing was not violated.

¶19 Earl argues next that the trial court erred by finding that he
had committed the other acts by clear and convincing evidence because two
of the recorded interviews were audio recordings and the trial court
therefore could not have found the other act victims credible. When a
defendant is charged with a sexual offense, evidence of other acts may be
admitted “to show that the defendant had a character trait giving rise to an
aberrant sexual propensity to commit the offense charged.” Ariz. R. Evid.
404(c). The court must find, by clear and convincing evidence, that the other
act evidence is sufficient to permit the jury to find that the defendant
committed the other act and that the other act evidence provides a
reasonable basis for the jury to infer that the defendant had a character trait
giving rise to an aberrant sexual propensity to commit the charged offense.
See Ariz. R. Evid. 404(c)(1)(A)–(B); see also State v. James, 242 Ariz. 126, 131
¶ 17 (App. 2017). The court must also find that the evidentiary value of the
other act evidence is not substantially outweighed by a danger of unfair
prejudice after considering, among other things, the remoteness of the other
act, the similarity or dissimilarity of the other act, the surrounding
circumstances, and other similarities or differences. Ariz. R. Evid.
404(c)(1)(C).

¶20 The trial court properly found that the recorded interviews of
the other act victims proved by clear and convincing evidence that Earl
committed the other acts. Video and audio recorded interviews are
sufficient to prove that a defendant committed the alleged other acts. State
v. LeBrun, 222 Ariz. 183, 187–88 ¶¶ 13, 15–16 (App. 2009). The recorded
interviews of the other act victims were therefore sufficient for the trial
court to find that Earl committed the other acts by clear and convincing
evidence.

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¶21 Earl argues that the other act evidence could not provide the
jury with a reasonable basis to infer that he had a character trait giving rise
to an aberrant sexual propensity to commit the charged offenses. He
contends that the other act evidence was dissimilar from the charged
offenses because the business relationship was different and that he knew
the alleged victims for different lengths of time. He also argues that the
timeframes were different because the other acts were committed in 2014,
while the charged offenses were committed in 2017.

¶22 The fact that two of the other act victims were employed by
Earl in a different capacity than the two victims in this case is not so
dissimilar to render the other act evidence inadmissible. Both victims and
all three other act victims were Earl’s employees. The ages of the other act
victims and the victims at trial were similar during their employment and
Earl groped the other act victims’ breasts or genitals, similar acts to the
charged offenses here. The jury therefore had a reasonable basis to infer that
he had a character trait giving rise to an aberrant sexual propensity to
commit the charged offenses. That Earl knew some of the other act victims
for a longer period is a small difference that does not render the other act
evidence inadmissible. See Ariz. R. Evid. 404(c) cmt. to 1997 Amendment
(Rule 404(c) “does not contemplate any bright line test of remoteness or
similarity, which are solely factors to be considered under subsection
(1)(c).”) Further, the fact that the other acts were committed between one
and three years earlier did not render them inadmissible. See id.; see also
State v. Van Adams, 194 Ariz. 408, 416 ¶ 24 (1999) (remoteness goes to the
weight of the evidence but generally not to its admissibility); State v. Salazar,
181 Ariz. 87, 92 n.5 (App. 1994) (admitting other act evidence that occurred
20 years earlier). The trial court therefore properly admitted the other act
evidence under Rule 404(c).

¶23 Earl also argues that the trial court erred by admitting
statements that N.A. made to Larson under Rule 803(4) because none of the
statements were made for the purpose of medical diagnosis or treatment.
Because Earl objected at trial, we review the admission of evidence for an
abuse of discretion. See State v. Murray, 247 Ariz. 447, 452 ¶ 12 (App. 2019).

¶24 Hearsay is “a statement, other than one made by the declarant
while testifying . . . offered in evidence to prove the truth of the matter
asserted” and is generally inadmissible at trial. Ariz. R. Evid. 801(c), 802.
Otherwise inadmissible hearsay may be admitted if it consists of
“statements made for purposes of medical diagnosis or treatment and
describing medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the cause or external

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source thereof insofar as reasonably pertinent to diagnosis or treatment.”
Ariz. R. Evid. 803(4). In determining whether a hearsay statement is
“reasonably pertinent to diagnosis or treatment[,]” courts consider
“whether the declarant’s apparent motive [is] consistent with receiving
medical care[] and [] whether it [is] reasonable for the physician to rely on
the information in diagnosis or treatment.” State v. Lopez, 217 Ariz. 433, 435
¶ 8 (App. 2008).

¶25 N.A.’s apparent motive was consistent with receiving medical
care. Larson testified that N.A.’s statement of what happened guided the
exam and that she prescribed N.A. medication and gave her aftercare
instructions based on her statements. Further, N.A. testified that she went
to get a medical exam after speaking with police and that Larson examined
her body and gave her medication. Larson therefore reasonably relied on
N.A.’s statements in treating her, N.A.’s statements were reasonably
pertinent to medical diagnosis, and the trial court properly admitted N.A.
statements under Rule 803(4). Even if the court did err, such error was
harmless because N.A.’s statements to Larson were cumulative of her
testimony about Earl’s conduct. See id. at 437 ¶ 12 n.2 (noting that admission
of statements that the victim had made to a nurse was harmless because the
victim testified about what the defendant had done to her in direct
examination).

¶26 Earl also argues that the trial court erred by denying his
motion for a judgment of acquittal because no evidence corroborated the
victims’ testimony, and the State presented no biological evidence. He
contends that he never admitted to any wrongdoing and that the entire case
was based on “he said, she said” evidence that did not rise to the level of
circumstantial evidence. We review the denial of a motion for a judgment
of acquittal de novo. State v. Brock, 248 Ariz. 583, 591 ¶ 21 (App. 2020).
“[T]he relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Id.
at 591–92 ¶ 22 (quoting State v. West, 226 Ariz. 559, 562 ¶ 16 (2011).

¶27 The trial court did not err by denying Earl’s motion. No
corroborating evidence was needed because the testimony of a single
witness is sufficient. See State v. Felix, 234 Ariz. 118, 120–21 ¶ 10 (App. 2014)
(affirming conviction based on single witness’s testimony). And even
though Earl denied any wrongdoing, the jury was free to find that the
victims were more credible. Id. The victims’ testimony alone was sufficient
to sustain a conviction and the trial court properly denied Earl’s motion.

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¶28 Earl argues last that the trial court erred by allowing Detective
Russo to testify about statements that Earl had made without evidence that
he had first received the warnings required by Miranda v. Arizona, 384 U.S.
436 (1966), or that he had waived his constitutional rights. “To safeguard
this privilege, law enforcement officers must provide the well-known
Miranda warnings before interrogating a person in custody.” State v. Maciel,
240 Ariz. 46, 49 ¶ 10 (2016). Earl never objected to Detective Russo’s
testimony and his police report reflects that Earl waived his Miranda rights
before he was questioned. Therefore, the trial court did not err by allowing
Detective Russo to testify about Earl’s statements. Even if the court did err,
Earl fails to establish prejudice because he offers only a speculative,
conclusory assertion that the jury “could have reached a different verdict.”
See State v. Martin, 225 Ariz. 162, 166 ¶ 15 (App. 2010) (“Speculative
prejudice is insufficient under fundamental error review.”).

CONCLUSION

¶29 For the foregoing reasons, we affirm.

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

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