State of Arizona v. Charlie Conley Jr.

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Appellee,

v.

CHARLIE CONLEY JR.,
Appellant.

No. 2 CA-CR 2021-0111
Filed January 20, 2023

Appeal from the Superior Court in Pima County
No. CR20182849001
The Honorable Teresa Godoy, Judge Pro Tempore
The Honorable Renee Bennett, Judge

AFFIRMED

COUNSEL

Kris Mayes, Arizona Attorney General
Alice Jones, Acting Deputy Solicitor General/Chief of Criminal Appeals
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee

Robert A. Kerry, Tucson
Counsel for Appellant
 STATE v. CONLEY
Opinion of the Court

OPINION

Presiding Judge Eckerstrom authored the opinion of the Court, in which
Chief Judge Vásquez concurred and Judge Cattani concurred in part and
dissented in part.

E C K E R S T R O M, Presiding Judge:

¶1 Charlie Conley Jr. appeals from his convictions and sentences
for kidnapping, sexual assault, sexual assault of a minor, and sexual
conduct with a minor. He challenges the trial court’s refusal to sever the
charges regarding the four separate victims in question, as well as multiple
aspects of the prosecutor’s conduct. For the reasons that follow, we affirm.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to sustaining
the jury’s verdicts, resolving all reasonable inferences against Conley. State
v. Gamez, 227 Ariz. 445, n.1 (App. 2011). In 1992, when J.G. was fifteen years
old and weighed “probably about 95 pounds,” Conley drove her against
her will to an abandoned shack, where he dragged her inside and raped
her. In 1995, when K.C. was crossing a street, Conley and an accomplice
pulled her into a car, drove her to a house, and dragged her inside, where
Conley raped her. She was eighteen or nineteen years old at the time and
weighed “maybe 98, 100 pounds.” Both victims submitted to hospital
sexual assault examinations and reported their rapes to law enforcement.
However, police suspended both cases shortly afterward.

¶3 In 1999, when twenty-two-year-old C.B. was walking to a
convenience store, Conley dragged her into an alley, forced her into an
unfurnished apartment, and raped her. C.B.—who weighed “a hundred
pounds, if that” at the time—submitted to a sexual assault examination at
the hospital and reported the incident to law enforcement. A week or two
later, she identified Conley in a photo lineup. Police obtained a buccal swab
from Conley, who admitted to having had sex with C.B. but claimed it had
been consensual. However, C.B.’s sexual assault examination had revealed
injuries consistent with rape. Nonetheless, the state declined to issue a
complaint.

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Opinion of the Court

¶4 In 2004, when fourteen-year-old W.L. was alone in the
laundry room of an apartment complex, Conley grabbed her from behind,
dragged her into an abandoned unit, and raped her as another man
watched. W.L. reported the incident to police and identified Conley, whom
she knew, as her rapist. Police encountered Conley in the apartment
complex, which was known to contain abandoned units consistent with
W.L.’s report. Conley provided his identifying information and confirmed
he knew W.L. Nevertheless, police did not investigate him and closed
W.L.’s case shortly afterward.

¶5 In all four cases, the victims heard nothing more from law
enforcement until 2018. By that point, cold-case testing had identified
Conley as the likely contributor of the male DNA found on the swabs
collected during J.G.’s and K.C.’s sexual assault examinations.1 His name
appeared in law enforcement databases because C.B. and W.L. had
identified him as their assailant in similar rapes. Police reinitiated contact
with all four victims and questioned Conley.

¶6 In July 2018, a grand jury indicted Conley for various crimes
related to the four incidents. His first trial, on counts related to all four
victims, ended in a mistrial. After a second trial, again on counts related to
all four victims, Conley’s motion for a new trial was granted. During a third
trial, once again on counts related to all four victims, in September 2021, all
four victims testified. The state also presented the testimony of medical
professionals involved in the sexual assault examinations, scientists
involved in the DNA testing, and law enforcement officers involved in
investigating the cases.

¶7 At the conclusion of a four-day trial, a jury found Conley
guilty of kidnapping and sexually assaulting J.G. and K.C., sexually
assaulting C.B., and, as to W.L., both sexual assault of and sexual conduct
with a minor under fifteen. After establishing that Conley had three
previous felony convictions, the trial court sentenced him to consecutive
prison terms totaling 111 years. This appeal followed. We have jurisdiction
pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

1The rape kit collected in C.B.’s case had apparently been destroyed
by 2018, such that no DNA comparison was possible when the cases were
revisited.

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Opinion of the Court

Motion to Sever

¶8 Conley repeatedly sought to sever the counts pertaining to
each individual victim. The trial court refused to do so, finding that the
charges had been properly joined under a theory of “common scheme or
plan” pursuant to Rule 13.3(a)(3), Ariz. R. Crim. P. In particular, the court
found that the four incidents had involved an “overarching plan” involving
“a serial offender who preys on or selects very young, vulnerable, tiny
women who are in areas that are isolated. They’re by themselves. They’re
taken to abandoned places, whether . . . apartments or homes, where they
are sexually assaulted.”

¶9 On appeal, Conley contends the trial court erred in denying
his motion to sever. He claims the state was improperly permitted to carry
out a “strategy” whereby its “weaker cases” were tried alongside its
“stronger cases so the jury would find [him] guilty because the cases
seemed facially similar.” He argues that the court should have interpreted
Rule 13.3(a)(3) narrowly and granted severance to ensure that he would
receive “a fair trial without the prejudice of having evidence of one crime
stand as evidence of another crime.” We review a trial court’s denial of a
motion to sever for an abuse of discretion. State v. Burns, 237 Ariz. 1, ¶ 29
(2015).

¶10 Conley maintains these four cases were not properly tried
jointly under a theory of common scheme or plan. As he notes, the offenses
in question “were spread over a period of twelve years,” “occurred between
2.5 and 5 years apart,” and were otherwise distinguishable. The state has
provided no case affirming a trial court’s “common scheme or plan” finding
that involved criminal acts occurring in such a scattered manner over so
many years. See State v. Miller, 234 Ariz. 31, ¶¶ 3, 17 (2013) (after separately
asking four men to murder five people, defendant committed requested
murders himself two months later); State v. Hausner, 230 Ariz. 60, ¶¶ 2, 47
(2012) (series of random drive-by shootings in Phoenix area from June 2005
to August 2006); State v. Hummer, 184 Ariz. 603, 606, 609 (App. 1995) (sexual
behavior with four boys at defendant’s home “at various times in 1991 and
1992”).

¶11 This case more resembles State v. Ives, which involved four
counts of child molestation of three separate victims and evidence of similar
mistreatment of a fourth. 187 Ariz. 102, 103-04 (1996). There, not unlike
here, the trial court found that a number of “unique similarities” justified
joinder under Rule 13.3(a)(3), including that: the victims were all girls
under the age of ten and known to the defendant beforehand through a

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Opinion of the Court

relative or family friend; the events in question involved similar types of
touching when a family member was in the vicinity; and all acts but one
occurred at the home of the victim. Ives, 187 Ariz. at 108 & n.2. Nonetheless,
our supreme court rejected the conclusion that joinder under a “common
scheme or plan” was appropriate in such a case. “[I]t is clear that the acts
committed with these four girls, separated in time by as much as seven
years or more, are not acts of ‘a particular plan of which the charged crime
is a part.’” Id. at 108-09 (quoting State v. Ramirez Enriquez, 153 Ariz. 431, 433
(App. 1987)). In so concluding, it reasoned that proof of a qualifying
“common scheme or plan” requires more than proof of a “visual
connection” between the crimes.2 Id. at 106-08. Otherwise Rule 13.3(a)(1)
(“same or similar character”) and Rule 13.3(a)(3) (“common scheme or
plan”) are blended “beyond recognition,” and the latter “becomes a detour
around [a] defendant’s right to sever offenses joined because they are
similar.” Ives, 187 Ariz. at 107-08; see also Ariz. R. Crim. P. 13.4(b) (when
offenses joined under Rule 13.3(a)(1), defendant entitled to severance as a
matter of right). Thus, according to our supreme court, “the component
acts of a ‘common scheme or plan’ must be sufficiently related to be
considered a single criminal offense.” Ives, 187 Ariz. at 108. The four
incidents involved in this case do not meet that threshold. The trial court
therefore erred in denying Conley’s motions to sever.

¶12 The trial court also found that “all of the evidence in the
cases” would be cross-admissible under Rule 404(b)(2), Ariz. R. Evid., “to
demonstrate identity, knowledge, and motive.” In its answering brief on
appeal, the state re-urged this alternative basis for admission. However, at
oral argument, the state conceded that it was unable to formulate a
persuasive argument in support of the trial court’s finding of
cross-admissibility under Rule 404(b). To the extent the arguments
regarding identity, knowledge, or motive are more than masquerades for a
theory of relevance based on the criminal character of the accused, 3 the

2When refusing to sever the counts on Rule 13.3(a)(3) grounds, the
trial court here repeatedly referenced the now-disapproved “visual
connection” standard. See Ives, 187 Ariz. at 106-08.
3 While evidence of general criminal propensity is inadmissible
under Rule 404(b), Ariz. R. Evid. 404(c) allows for the admission of evidence
of an “aberrant sexual propensity.” The state did not pursue admission of
the prior act evidence under that theory. Doing so would have required the
state to persuade the trial court to make numerous threshold findings as a
condition of its admission. See Ariz. R. Evid. 404(c)(1). On appeal, the state

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Opinion of the Court

probative value of evidence of the other assaults would be substantially
outweighed by a danger of unfair prejudice, confusing the issues, and
misleading the jury. See Ariz. R. Evid. 403.

Harmless Error

¶13 The state contends that, even if the trial court erred, Conley
cannot make the showing of prejudice required for reversal because the
court instructed the jury that the state was required to “prove each element
of each charge beyond a reasonable doubt” and that the jury was required
to “decide each count separately on the evidence with the law applicable to
it uninfluenced by [the jury’s] decision as to other counts.” In support, the
state cites a number of cases indicating that an appellant challenging a trial
court’s refusal to sever “cannot” show the requisite “compelling prejudice”
when the jury was instructed in such a manner. See Miller, 234 Ariz. 31,
¶ 18; Hausner, 230 Ariz. 60, ¶ 48; State v. Johnson, 212 Ariz. 425, ¶ 13 (2006).
However, in each of those cases, our supreme court also ruled that the
charges in question had been properly joined in the first place. See Miller,
234 Ariz. 31, ¶¶ 17-18; Hausner, 230 Ariz. 60, ¶¶ 44-47; Johnson, 212 Ariz.
425, ¶¶ 10-12. And, when it has concluded that a trial court erred in
refusing to sever certain charges, our supreme court has found itself “not
persuaded” that a jury instruction to consider each offense separately will
always suffice to eliminate prejudice. Burns, 237 Ariz. 1, ¶¶ 34-37. As the
court explained in Burns, there may be contexts in which such an instruction
“asks jurors ‘to act with a measure of dispassion and exactitude well
beyond mor[t]al capacities.’” Id. ¶ 37 (quoting United States v. Daniels, 770
F.2d 1111, 1118 (D.C. Cir. 1985)). This case presented precisely such a
context.

¶14 Nevertheless, despite the trial court’s error and the
inadequacy of the jury instructions to cure the obvious prejudice, we
nonetheless conclude that any error was harmless as to each incident based
on the trial record before us. See id. ¶ 38 (failure to sever harmless where
error “did not affect the jury’s verdicts”); see also State v. Bible, 175 Ariz. 549,
588 (1993) (“We must be confident beyond a reasonable doubt that the error
had no influence on the jury’s judgment.”). The harmless error inquiry “is
not whether, in a trial that occurred without the error, a guilty verdict
would surely have been rendered, but whether the guilty verdict actually

has not argued that we should affirm the admissibility of the other acts on
that basis.

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Opinion of the Court

rendered in this trial was surely unattributable to the error.” Bible, 175 Ariz.
at 588 (quoting Sullivan v. Louisiana, 508 U.S. 275, 279 (1993)).

¶15 As an initial matter, each of the four victims testified at trial.
The defense did not meaningfully challenge the credibility of any one of
them during cross-examination. Instead, when cross-examining the victims
and otherwise throughout trial, the defense’s primary focus was the
incompetence of law enforcement’s investigation of these four cases, with
emphasis on the insensitive treatment suffered by the four victims. Of
course, neither inadequate investigations nor a systemic lack of sensitivity
for sexual assault victims would exonerate Conley. In sum, Conley had no
theory of the case that meaningfully challenged the most powerful evidence
presented by the state: the victims’ unambiguous testimony that they were
raped by him.

¶16 As to both J.G. and K.C., sperm with DNA matching Conley’s
was found inside their vaginas when they submitted to sexual assault
examinations and reported having been raped. Cf. United States v. Wright,
215 F.3d 1020, 1028 (9th Cir. 2000) (defendant’s DNA at crime scene may,
depending on circumstances, “alone overwhelmingly” establish
defendant’s identity as perpetrator). Each also provided a description of
her assailant that matched Conley. In addition, J.G. testified about a
distinctive vanity license plate on her assailant’s car, and Conley confirmed
to police that he had owned exactly such a vanity plate. This evidence—
together with their unchallenged testimony at trial—was overwhelming as
to the charges involving J.G. and those involving K.C.

¶17 Although the state did not possess DNA evidence to support
its allegations regarding the crimes involving C.B. and W.L., the evidence
presented was substantial and unrebutted. Like J.G. and K.C., C.B.
provided a description of her assailant that matched Conley. She also
definitively identified Conley from a photo lineup. When police
approached him, Conley admitted to having engaged in sexual intercourse
with C.B. on the night in question but maintained that the intercourse had
been consensual.

¶18 However, C.B. submitted to a sexual assault examination
shortly after the incident. That examination revealed both vaginal pain and
a “significant” cervical abrasion. The state presented expert testimony that
those injuries were inconsistent with consensual sex. Although the jury was
aware of Conley’s original claim that the acts were consensual, defense
counsel did not present consent as a defense. As noted above, when C.B.
testified that Conley had sexually assaulted her, defense counsel did not

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Opinion of the Court

challenge her claim that she had been the victim of a forcible rape. Indeed,
it did not challenge her credibility at all. Nor did the defense present or
marshal any evidence of other kinds to corroborate Conley’s claim of
consent. Given that Conley declined to suggest consent in his opening
statement or argue consent in closing, the jury could have reasonably
concluded that Conley was not asserting that defense. In the absence of any
factual challenge of any kind to C.B.’s testimony that she was raped,
coupled with Conley’s admission of sexual intercourse with her and the
physical evidence that corroborated the forcible nature of that act, we are
satisfied that any failure to sever charges did not affect the jury’s verdict.
See Burns, 237 Ariz. 1, ¶ 38.

¶19 W.L. was a minor at the time of the incident, legally incapable
of consent. See A.R.S. § 13-1405 (age of consent is eighteen years old). When
she spoke to police afterward, she told them “exactly who [her rapist] was
by name,” as well as the name of the man who had been watching while
Conley raped her. When encountered at the crime location, the apartment
complex, Conley confirmed that he knew W.L. And when the cold-case
detective questioned Conley years later, he again acknowledged that he
knew W.L., as well as the other man from the neighborhood she had
identified by name. Finally, when asked in court if she could identify the
man who had sexually assaulted her, W.L. identified Conley without
equivocation. As with the other victims, defense counsel did not attempt
to impugn her credibility or otherwise raise any questions regarding the
accuracy of her account. Here again, we can conclude beyond a reasonable
doubt that the trial court’s refusal to sever the charges did not affect the
jury’s verdicts as to W.L. See Burns, 237 Ariz. 1, ¶ 38; Bible, 175 Ariz. 549 at
588.

¶20 Our dissenting colleague correctly emphasizes the substantial
prejudicial impact of the collective evidence on the jury’s deliberations
regarding each case. We also agree that the record provided Conley with
an ample basis to challenge the state’s case based on investigative
incompetence and delay. But Conley utterly failed to tether those law
enforcement failures to any theory of reasonable doubt. Conley had
admitted having sexual intercourse with C.B. His only potential defense
was consent by C.B. But Conley abandoned that defense at trial. As to
W.L., who had not reached the age of consent, his only conceivable defenses
were to claim she had misidentified him or fabricated the claim altogether.
Yet, he did not challenge W.L.’s credibility in any respect. We cannot agree
therefore that the trial court’s error in trying the four cases together affected
the verdict in any of the cases.

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Opinion of the Court

Alleged Prosecutorial Error4

¶21 Conley also contends he was denied his fundamental right to
a fair trial due to conduct by the prosecutor he characterizes as improper.
As Conley acknowledges, he did not object below to any of the conduct or
argument he now challenges on appeal. Thus, we review only for
fundamental, prejudicial error. See State v. Murray, 250 Ariz. 543, ¶ 14
(2021). The first step of such review requires Conley to demonstrate the
existence of trial error. Id. ¶ 18. As discussed below, he has not done so.

Law Enforcement’s Failures

¶22 Conley first argues that the state improperly appealed to the
jury’s sense of injustice or sympathy regarding law enforcement’s “shabby”
treatment of the four victims, making him “the scapegoat for the system’s
failure to properly investigate the case and treat the victims with dignity.”
Characterizing this conduct as “pervasive,” Conley attempts to support his
claim by pointing to portions of the state’s opening statement, its questions
of the victims regarding lack of timely follow-up on their cases, testimony
the state elicited from law enforcement witnesses regarding apparent
investigative failures, and the state’s summation.

¶23 Conley has presented the challenged portions of the state’s
arguments and questions of witnesses out of context. To the extent the
prosecution addressed law enforcement failures to adequately investigate
these crimes around the time they were committed, it was to explain to the
jury why acts committed in 1992, 1995, 1999, and 2004 had not been
previously prosecuted. It explained why evidence the jury might expect to
see was unavailable at the time of trial in 2021. The state, no less than a
defendant, is entitled to present its theory of the case, mindful of its
weaknesses. Moreover, a prosecutor has wide latitude in presenting

4 As our supreme court has explained, the term “prosecutorial
misconduct” broadly encompasses any conduct that violates a defendant’s
constitutional rights and “sweeps in prosecutorial conduct ranging from
inadvertent error or innocent mistake to intentional misconduct.” State v.
Murray, 250 Ariz. 543, ¶ 12 (2021) (quoting In re Martinez, 248 Ariz. 458, ¶ 45
(2020)). Because Conley has not expressly alleged intentional misconduct
or an ethical violation on the part of the state, we use the term
“prosecutorial error,” consistent with the court’s directive in Martinez, 248
Ariz. 458, ¶ 47.

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Opinion of the Court

arguments to the jury and is permitted to argue all reasonable inferences
from the evidence. State v. Morris, 215 Ariz. 324, ¶ 51 (2007).

¶24 The statements here were within that permissible range. At
no point did the prosecution suggest that the jury should disregard the
state’s burden of proof or convict Conley based solely on law enforcement’s
failures to investigate or treat the victims with respect. To the contrary, the
prosecutor repeatedly urged the jury to focus on the specific evidence
presented regarding each crime, putting aside any negative feelings or
emotional responses stemming from how police had conducted the
investigations and treated the victims.

¶25 Perhaps more importantly, Conley’s counsel also focused on
law enforcement’s failures throughout the trial. Indeed, defense counsel
began his opening statement by telling the jury that “the way that these
cases were investigated was just simply unacceptable” and “completely
different to how things would be done now.” He noted in particular that
police interviews with the four victims were conducted in “callous
circumstances, often by only male officers, very blunt, to the point
questions, no follow-up victim services offered to any of these people.” He
argued that the state was asking the jury to “clean up these messed-up
investigations that were really a failure on every level”—that “failed so
spectacularly all those years ago”—concluding that “the level of failure in
these investigations [was] so strong and so pervasive that [the jury would]
have no choice but to find [Conley] not guilty.”

¶26 This theme continued through defense counsel’s questioning
of the victims, law enforcement officers, and other witnesses. And it was
then the central focus of defense counsel’s summation. He began by
thanking the jurors for their care and attention to the case, which he said
was “certainly much more care and attention than this case has had for
decades,” given law enforcement’s “garbage” investigations. He went on
to argue that the cases had been “corrupted from the beginning,” due to the
“shocking” failure of four law enforcement officers—who he called “four
of the worst detectives Tucson’s ever had”—“to follow up investigations,
to report accurately, to hold onto their recordings, to take photographs, to
do the basics of investigation that we would all expect to be done today.”
He argued that law enforcement had “bungl[ed]” the investigation from
“start to finish, head to tail,” claiming that the state was asking the jury to
“clean up those mistakes” and make Conley “the scapegoat for those
mistakes.” And he argued that the victims had been essentially “ignored”
due to “systemic” problems with law enforcement.

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Opinion of the Court

¶27 In short, law enforcement’s failures and callous treatment of
the victims in this case was the central theme of Conley’s defense.
“Prosecutorial comments which are a fair rebuttal to areas opened by the
defense are proper.” State v. Alvarez, 145 Ariz. 370, 373 (1985).

¶28 Finally, as noted above, the state repeatedly reminded the
jury “to follow the evidence and to follow the law to make decisions based
on Charlie Conley’s guilt and the evidence of that guilt and not based on
any emotion [it had] about the degree to which these women were betrayed
by law enforcement.” The trial court also began the trial by instructing the
jury that it could not “be swayed by mere sentiment, conjecture, sympathy,
passion, prejudice, public opinion, or public feeling.” It then reminded the
jury on the final day of trial that it “must not be influenced by sympathy”
for the victims, and that the state was required to “prove each element of
each charge beyond a reasonable doubt.” We must presume the jury
followed these instructions. Miller, 234 Ariz. 31, ¶ 22.

Presumption of Innocence

¶29 Conley also focuses on the following statement from the
state’s summation: “So what you do have, ladies and gentlemen, shows
you that Charlie Conley started out with the presumption of innocence. We
are no longer there.” He contends this comment improperly shifted the
burden of proof and denied him a fair trial.

¶30 Again, Conley takes the challenged portion of the state’s
argument out of context. The prosecutor did not, as Conley alleges, tell the
jury “that he was no longer presumed innocent.” Fairly interpreted in
context, the challenged statement instead implied that, although the
presumption of Conley’s innocence was the starting point for the jury’s
consideration of the charges against him, the state had rebutted that
presumption by presenting sufficient evidence of each crime. Indeed,
immediately after the “[w]e are no longer there” statement, the prosecutor
went on to discuss in detail the evidence the state had presented during
trial to prove that Conley had committed each offense. And, in rebuttal
summation, the state again emphasized the evidence it had presented to
prove each crime and argued that it had satisfied its ongoing burden of
proving Conley guilty beyond a reasonable doubt. The state was permitted
to argue that it had met its burden of proof. See Bible, 175 Ariz. at 602
(“Unlike opening statements, during 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.”).

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¶31 Moreover, even if the prosecutor’s statement was improper,
any error was remedied. The trial court instructed the jurors before
deliberations: “Every defendant is presumed to be innocent. You must
start with the presumption that the defendant is innocent.” The court went
on to reiterate the state’s burden of proving Conley guilty beyond a
reasonable doubt by proving “each element of each charge beyond a
reasonable doubt.” It then instructed that the jury needed to be “firmly
convinced” of Conley’s guilt based on the evidence presented to return any
guilty verdict, and that, if any juror thought there was “a real possibility
that he is not guilty, [he or she] must give [Conley] the benefit of the doubt
and find him not guilty.” Again, we must presume the jury heeded these
instructions. Miller, 234 Ariz. 31, ¶ 22.5

Disposition

¶32 For the foregoing reasons, we affirm Conley’s convictions and
sentences.

C A T T A N I, Judge, concurring in part and dissenting in part:

¶33 I respectfully dissent. I agree with the majority that the
superior court erred by denying Conley’s motion to sever the four
unrelated sexual assault counts. I disagree, however, that the error was
harmless as to the two counts for which there was no DNA evidence. In
my view, it is difficult to conceive of a case in which a defendant is not
unfairly prejudiced by the improper joinder of sexual assault counts, let
alone the joinder of counts involving unrefuted DNA evidence establishing
guilt on those counts with counts for which there is no biological evidence.
And this is not such a case. I agree with Conley that the state was
improperly permitted to carry out a strategy whereby its weaker cases were
tried alongside its stronger cases so the jury would find Conley guilty of all

5Conley contends that even if the prosecutor’s comment about the
presumption “is insufficient to find a fair trial was denied it must be
considered as part of the cumulative of misconduct which denied [him] a
fair trial.” But Conley has not established any instances of misconduct.
Thus, in addition to our conclusions above, we further conclude that when
considered cumulatively, the alleged instances of prosecutorial error could
not have affected the jury’s verdicts. See State v. Bocharski, 218 Ariz. 476,
¶ 75 (2008) (“Absent any finding of misconduct, there can be no cumulative
effect of misconduct sufficient to permeate the entire atmosphere of the trial
with unfairness.”).

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the alleged offenses. Accordingly, I would reverse the two convictions for
which there was no DNA evidence.

¶34 The superior court concluded that the four rape counts were
properly joined under a “common scheme or plan” theory. But the four
counts resulted from four separate incidents that occurred over a
fourteen-year span in different locations and involved unrelated victims.
The only significant commonality was the fact of a sexual offense. The fact
that the four victims were young, of slight build, and were sexually
assaulted in isolated places does not suggest a unique connection between
any of the offenses, particularly given the length of time between the
crimes. Accordingly, I agree with the majority that the “component acts”
were not “sufficiently related to be considered a single criminal offense,”
Ives, 187 Ariz. at 108, and with the majority’s conclusion that evidence of
the separate offenses would not have been cross-admissible in separate
trials.

¶35 The Arizona Supreme Court has held that, in assessing
whether an objected-to error is harmless, we must determine whether the
state has shown “beyond a reasonable doubt that the error did not
contribute to or affect the verdict or sentence.” State v. Escalante, 245 Ariz.
135, ¶ 30 (2018) (quoting State v. Escalante-Orozco, 241 Ariz. 254, ¶ 126
(2017)). “The inquiry . . . is not whether, in a trial that occurred without the
error, a guilty verdict would surely have been rendered, but whether the
guilty verdict actually rendered in this trial was surely unattributable to the
error.” Bible, 175 Ariz. at 588 (quoting Sullivan, 508 U.S. at 279).

¶36 Applying that standard, I agree with the majority that error
relating to joining the counts involving victims J.G. and K.C. was harmless.
Undisputed DNA evidence established that in both of those cases, seminal
fluid inside the victim’s vagina came from Conley, and Conley did not
assert that he had engaged in consensual sex with the victims. Under these
circumstances, I agree that joinder of those two counts was harmless
beyond a reasonable doubt.

¶37 I disagree, however, that the error was harmless for the counts
involving victims C.B. and W.L. Without DNA evidence, the cases rested
primarily on witness credibility. And in my view, when the jurors
considered testimony from victims C.B. and W.L., evidence of prior
unrelated sexual assaults unfairly tipped the scale in the state’s favor by
implying that the jurors could conclude Conley committed rapes (for which
there was no biological evidence) because he committed the same crime
against other victims.

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¶38 Trying the four sexual assault cases together over defense
counsel’s objection was not an inadvertent “technical” error that had no
bearing on how the cases were tried. The state presented testimony
explaining that the four alleged crimes resulted in “cold” cases that were
not pursued until 2018, when DNA testing linked Conley to the 1992 and
1995 sexual assaults. A witness for the state testified that, because Conley
had been identified as a suspect in the 1999 and 2004 cases, the state then
decided to pursue charges in those cases. There was no DNA link to the
1999 and 2004 cases, and the only “new” evidence beyond what had
previously been deemed insufficient to pursue charges against Conley was
the DNA evidence linking Conley to the 1992 and 1995 sexual assaults.
Accordingly, from my perspective, there should be no question that the
DNA evidence from the 1992 and 1995 assaults “contribute[d] to or
affect[ed]” the verdicts relating to the 1999 and 2004 assaults.

¶39 The state not only relied on the DNA evidence in explaining
the delay in prosecuting the cases, but also as substantive evidence of guilt
as to the 1999 and 2004 assaults. The prosecutor began closing argument
by highlighting the significance of the DNA evidence relating to the 1992
assault, noting that the major male profile from the sperm fraction inside
J.G.’s vagina “matched Charlie Conley to a rate of one in 5.3 octillion. Zeros
and zeros and zeros beyond the total population of living humans on the
earth . . . .” The prosecutor then referred to the DNA evidence linking
Conley to the 1995 assault, with the major male profile from sperm inside
K.C.’s vagina “match[ing] Charlie Conley at a frequency of one in 1.9
sextillion.”

¶40 Turning to the 1999 assault, in which C.B. was assaulted after
leaving her job at a bar, the prosecutor noted that Conley had taken C.B.
into an abandoned apartment, “just like he took [J.G.] into an abandoned
apartment [in 1992], just like he took [K.C.] into an abandoned space [in
1995], and he tells her what she is going to do.” The prosecutor then argued
that, although Conley told police officers his encounter with C.B. was
consensual, and although C.B. acknowledged that she “cooperated” with
Conley, she did so only because of his size, and that after the alleged assault,
C.B. had cervical abrasions inconsistent with consensual intercourse.

¶41 As to the 2004 assault, the prosecutor noted that victim W.L.,
who knew Conley and who Conley admitted knowing, did not report being
raped for several days after the assault. The prosecutor then argued:

[Y]ou know that [Conley] sexually assaulted
[W.L.] because she told you so. . . . And you

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 STATE v. CONLEY
Opinion of the Court

know that it was Charlie Conley because she
pointed him out here, and you also know that
it’s Charlie Conley because there is a pattern.
You absolutely cannot find Charlie Conley
guilty of one crime just because you believe that
he’s guilty of other crimes. But you can consider
if there is a pattern here that demonstrates that
Charlie Conley is choosing particular girls under
particular circumstances to commit a particular
crime in a particular circumstance.

(Emphasis added.)

¶42 This is precisely the type of propensity evidence that is
inadmissible under Rule 404(b) of the Arizona Rules of Evidence, which
prohibits the introduction of evidence of other crimes, wrongs, or acts “to
prove the character of a person in order to show action in conformity
therewith.” Although there are exceptions to Rule 404(b) for evidence that
shows, for example, motive, plan, intent, or identity, I agree with the
majority that here, the evidence of other sexual assaults was not so unique
as to fit within any of those exceptions. And under Rule 13.4(b) of the
Arizona Rules of Criminal Procedure, a defendant is entitled to severance
of offenses joined because they are the same or of similar character unless
evidence of the other offenses would be admissible if the offenses were tried
separately. Thus, I agree with the majority that joining the four cases
resulted in presentation of inadmissible character evidence.

¶43 In my view, the improperly presented evidence unfairly
prejudiced Conley’s defense, and I thus disagree with the majority’s
opinion that the error in admitting the evidence was harmless. The Arizona
Supreme Court has opined that “profile evidence” may not be used as
substantive proof of guilt because of the “risk that a defendant will be
convicted not for what he did but for what others are doing.” State v.
Ketchner, 236 Ariz. 262, ¶ 15 (2014) (quoting State v. Cifuentes, 171 Ariz. 257,
257 (App. 1991)). That rationale applies with even greater force to evidence
of other crimes, wrongs, or acts committed by the same defendant.
Presenting criminal conduct evidence that does not qualify for admission
under an exception to Rule 404(b) creates a substantial risk that a defendant
will be convicted based on “profile” or “propensity” evidence and not on
the facts underlying the charged offense.

¶44 The majority nevertheless concludes that the error in joining
the cases was harmless because the evidence involving victims C.B. and

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 STATE v. CONLEY
Opinion of the Court

W.L. was “substantial” and “unrebutted.” I agree that the evidence was
sufficient to support a conviction for the counts relating to victims C.B. and
W.L. But that is a different inquiry than whether an error in improperly
admitting prejudicial evidence was harmless beyond a reasonable doubt.
And in this case, it is anomalous to conclude that the improperly admitted
evidence did not affect the verdicts relating to C.B. and W.L. when the
prosecutor urged the jurors to consider the evidence as substantive proof of
guilt.

¶45 Finally, I disagree with the majority’s view that Conley’s
failure to meaningfully challenge the victim’s testimony strongly supports
the conclusion that error in joining the cases was harmless. Defense
counsel’s trial strategy was constrained by the circumstances presented,
and we are left to speculate regarding whether counsel may have pursued
a different strategy absent essentially indisputable proof that Conley had
sexually assaulted two other victims. Furthermore, it is impossible to assess
whether the strategy Conley’s counsel chose to pursue—highlighting law
enforcement’s lack of diligence in prosecuting the case—would have been
more effective absent proof of the prior sexual assaults. In my view, it is at
least plausible that jurors would have given some degree of weight to the
fact that law enforcement had the evidence presented at trial (in the
non-DNA cases) years before deciding to pursue charges against Conley.
Some jurors may reasonably have questioned why the cases were not
deemed strong enough to bring charges for years after the reported sexual
assaults. Thus, strong evidence of guilt notwithstanding, there is at least a
chance jurors would have determined that the state did not prove guilt
beyond a reasonable doubt in the cases involving victims C.B. and W.L.

¶46 In sum, in my view, improperly admitted propensity
evidence (particularly DNA evidence establishing that a defendant is a
known rapist) is unfairly prejudicial as it relates to unrelated rape charges.
And in this case, given the state’s reliance on the improperly admitted
evidence of the 1992 and 1995 sexual assaults to establish guilt as to the
other sexual assaults, the error in trying the cases together was not harmless
beyond a reasonable doubt. I would reverse Conley’s convictions and
sentences on the counts relating to the 1999 and 2004 sexual assaults.

16