State v. Osborne

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JERRY J. OSBORNE, Appellant.

No. 1 CA-CR 22-0284
FILED 5-23-2023

Appeal from the Superior Court in Apache County
No. S0100CR202000226
The Honorable Robert J. Higgins, Judge Pro Tempore
The Honorable Michael D. Latham, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Tucson
By Mariette S. Ambri
Counsel for Appellee

Law Office of Michael S. Penrod, PLC, Snowflake
By Michael S. Penrod
Counsel for Appellant
 STATE v. OSBORNE
Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Michael S. Catlett joined.

B R O W N, Judge:

¶1 Jerry J. Osborne appeals his convictions and sentences for
continuous sexual abuse of a child and molestation of a child. For the
following reasons, we affirm.

BACKGROUND

¶2 Osborne lived with his wife, Lisa, in a house beside his
automotive shop. The couple regularly babysat children in the
neighborhood, including relatives and family friends. Between 1998 and
2006, Osborne sexually abused four children, including Emily, his
stepdaughter, Claire, the daughter of a family friend, and Julia and George,
his niece and nephew through marriage.1

¶3 Emily lived with her grandparents but visited the Osborne
house on occasion. During these visits, Osborne repeatedly forced Emily to
engage in oral sexual contact, masturbatory contact, digital penetration,
kissing, and breast-touching. Osborne would also use innocent contact,
such as piggyback rides, to touch Emily’s genitals. This conduct occurred
in Osborne’s shop and in his house. Osborne threatened Emily that if she
told anyone, he would hurt her mother or brother. The abuse spanned
several years, starting when Emily was nine years old.

¶4 Osborne and Lisa babysat Claire while her mother worked
multiple jobs. During this time, Osborne repeatedly forced Claire to engage
in oral sexual contact, masturbatory contact, kissing, and breast-touching.
He also had Claire sit on his lap while he touched her genitals. On one
occasion, Osborne digitally penetrated Claire’s genitals and she “freaked
out because it hurt.” When Claire attempted to hit Osborne, he flipped her
over and placed an object in her anus. The abuse occurred in Osborne’s
shop or living room. Osborne threatened Claire that if she told anyone, he

1 We use pseudonyms to protect the privacy of the victims.

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would hurt her mother. The abuse ended when Claire, age eight at the time,
asked her mother to stop taking her to Osborne’s house.

¶5 Osborne and Lisa babysat Julia and George when their
parents were separated. During this time, Osborne repeatedly forced Julia
to engage in masturbatory contact, kissing, and breast-touching. Osborne
had Julia sit on his lap while he touched her genitals and anus. Although
Osborne told Julia that “what he was doing . . . was love,” he threatened
to hurt her and her family if she told anyone about the abuse. The abuse
took place in the living room or bedroom and spanned several years,
starting when Julia was five years old.

¶6 During the same period, Osborne held George’s arm and
forced him to penetrate Lisa’s genitals digitally. Osborne told George that
the abuse was “a way to show [her] love.” On a separate occasion, Osborne
attempted to force George to engage in the same conduct, and he refused.
Osborne slammed George’s head into a table, resulting in a visible scar on
his forehead. This took place while they were alone in the living room of
the house. Osborne told George, age three at the time, not to tell anyone
about the abuse.

¶7 In 2006, Julia told her mother about the abuse and they
contacted law enforcement. When investigators spoke with Osborne, he
claimed that he only engaged in innocent, non-sexual contact with the
children in his care and that any touching had been accidental. In 2007, the
State charged Osborne with a sexual offense involving Julia, and he pled
guilty to reckless child abuse, a class 3 felony. In 2019, George disclosed his
abuse to investigators. After hearing this news, Emily reported that
Osborne had also abused her. The same year, without knowing there were
other victims, Claire disclosed her abuse to investigators. Although Lisa
would later testify that she never observed or engaged in any abuse, she
admitted to being out of the house regularly during the relevant period.

¶8 The State charged Osborne with multiple offenses involving
Emily, Claire, and George.2 Osborne requested that the court sever the
offenses for trial. The State moved to join the offenses involving the three
charged victims and admit other-act evidence involving the fourth
uncharged victim, Julia, under Arizona Rule of Evidence (“Rule”) 404(c).
The State argued that evidence Osborne had sexually abused all four

2 The State charged Osborne with an additional offense involving a
fifth victim. The trial court granted the State’s motion to dismiss this
offense before trial.

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victims would be cross-admissible at trial, making the joinder appropriate
under Arizona Rule of Criminal Procedure (“Criminal Rule”) 13.3(a).

¶9 At a two-day evidentiary hearing, the trial court heard
testimony from all four victims. In a detailed ruling, the court found (1) the
State presented sufficient evidence Osborne committed the charged and
uncharged acts; (2) the evidence provided a reasonable basis to show he
had an aberrant sexual propensity to commit the offenses; and (3) the
probative value of the evidence was not substantially outweighed by the
danger of unfair prejudice. In reaching this decision, the court explained
that the State presented “reliable evidence” that Osborne “targeted children
12 years of age or younger,” the victims were all placed in his care “through
family or neighborhood connections,” the acts took place in or near his
house, the acts occurred once he “managed to isolate the victims,” the acts
were “similar in nature,” and he employed threats to prevent disclosure.
The court added that it based this ruling on testimony from “multiple
credible witnesses.” Finding that evidence involving the charged and
uncharged acts would be cross-admissible if tried separately, the court
granted the State’s motion to admit Rule 404(c) evidence and, in turn, the
motion for joinder.

¶10 The State filed an amended information, charging Osborne
with two counts of continuous sexual abuse of a child for Claire and Emily
(Counts One and Two), and one count of molestation of a child for George
(Count Three), all class 2 felonies and dangerous crimes against children.
At trial, the court gave a limiting jury instruction on the other-act evidence,
informing jurors they “must decide each count separately on the evidence
with the law applicable to it, uninfluenced by your decision on any other
count.”

¶11 The day before the trial began, the judge spoke with the
parties regarding a “possible conflict of interest.” 3 Osborne requested
another judge be assigned. The next morning, the judge provided
introductory remarks to prospective jurors, informed the jurors that
another judge may be presiding over the trial, and instructed them not to
consider the change of judge in their deliberations. A substitute judge
arrived that morning and presided over the remainder of the proceedings.
Osborne renewed his objection to consolidating the cases, and the judge

3 Only the written minute entry summarizing this discussion is part
of the record on appeal. “Where matters are not included in the record on
appeal, the missing portions of the record will be presumed to support the
action of the trial court.” State v. Zuck, 134 Ariz. 509, 513 (1982).

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affirmed all previous rulings. Osborne noted that he filed a “very late”
motion to admit evidence under A.R.S. § 13-1421(A) and requested a ruling.
See A.R.S. § 13-1421(A) (allowing evidence of a victim’s prior sexual
conduct for limited purposes). The State objected, asserting the motion was
untimely and evidence of the victims’ prior sexual abuse would not be
relevant. Although the judge did not make a ruling on the § 13-1421(A)
motion, Osborne elicited testimony from both Emily and Julia that they had
accused other male relatives of sexual abuse.

¶12 In the State’s case-in-chief, Emily positively identified
Osborne as the perpetrator. In Claire’s testimony, she confirmed that
Osborne committed the offenses, and when asked if she still recognized
him, responded “[t]hat’s him.” George testified that “Jerry Osborne is my
uncle, not by blood, but through marriage with my Aunt Lisa” and “Jerry”
committed the offenses. After the State’s case, Osborne moved for a
judgment of acquittal under Criminal Rule 20. As relevant here, Osborne
argued that Claire and George did not identify him as the perpetrator for
Counts One and Three. The State countered that both victims testified that
Osborne committed the offenses, contending that Claire “pointed towards”
him in her testimony and George identified his perpetrator as his “Uncle
Jerry.” The trial court denied the motion, finding the victims provided
sufficient identification.

¶13 At the close of the trial, the court instructed the jurors that
they “must not consider the possible punishment when deciding on guilt.”
During jury deliberations, the court notified counsel that the foreperson
had submitted a note, which stated that Juror One “expressed bias based
on consideration of penalty, evidence not presented in court, and personal
opinion on what should have been done.” Although Osborne was not
present for this discussion, his counsel expressed no concerns about
Osborne’s absence.

¶14 The court proposed, and counsel agreed, that they speak with
the foreperson to verify that Juror One refused to follow the court’s
instructions and expressed bias for one party. The foreperson confirmed
that Juror One spoke of concerns regarding the punishment and appeared
to harbor bias against the case, but later Juror One began “couching” his
rationale differently to the other jurors, saying the State had not met its
burden of proof. After further discussion with counsel, the court spoke
with Juror One, who denied the claims made by the foreperson. Osborne’s
counsel argued that because of Juror One’s statements, the other jurors
needed to be questioned. Each of the remaining jurors agreed with the
foreperson, confirming that Juror One made statements about the potential

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punishment and one juror noted Juror One appeared to not “trust
evidence.” After hearing from all the jurors, the State moved to dismiss
Juror One. Osborne’s counsel objected and argued that Juror One was
simply holding the State to its burden of proof. The court dismissed Juror
One, finding that the juror “expressed bias based on consideration of
penalty.” The court brought in an alternate juror and instructed the entire
panel to begin deliberations anew.

¶15 The jury found Osborne guilty of all counts. The trial court
sentenced Osborne to an aggregate term of 57 years’ imprisonment.
Osborne timely appealed, and we have jurisdiction under A.R.S.
§ 12-120.21(A)(1).

DISCUSSION

A. Ruling on Rule 404(c) Evidence and Joinder

¶16 Osborne argues the trial court failed to make sufficient
findings under Rule 404(c), resulting in the improper (1) joinder of offenses
involving all three charged victims and (2) admission of other-act evidence.
We review the court’s rulings on the admissibility of evidence and its ruling
on joinder and severance for an abuse of discretion. State v. LeBrun, 222
Ariz. 183, 185, ¶ 5 (App. 2009).

¶17 When a defendant is charged with a sexual offense, Rule
404(c) allows the trial court to admit evidence that the defendant committed
other crimes or acts if such evidence is “relevant 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). Before admitting such evidence,
the court must find (1) clear and convincing evidence the defendant
committed the other act; (2) “[t]he commission of the other act provides a
reasonable basis to infer that the defendant had a character trait giving rise
to an aberrant sexual propensity to commit the crime charged;” and (3)
“[t]he evidentiary value of proof of the other act is not substantially
outweighed by danger of unfair prejudice, confusion of issues, or other
factors mentioned in Rule 403.” Ariz. R. Evid. 404(c)(1)(A)–(C); see also State
v. Aguilar, 209 Ariz. 40, 49, ¶ 30 (2004). In making a Rule 403 determination,
the court must consider, among other factors, the remoteness of the other
act, similarity or dissimilarity of the charged offense and other act, the
strength of the evidence that the defendant committed the other act, and
any other relevant factors. Ariz. R. Evid. 404(c)(1)(C). The court, however,
need not find that the other acts are “perfectly similar in order for evidence
of them to be admitted under Rule 404.” State v. Lehr, 227 Ariz. 140, 147,

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¶ 21 (2011). Rule 404(c) requires the court to make findings about all three
elements, giving “some specific indication” as to why each element was
satisfied. Aguilar, 209 Ariz. at 50, ¶ 36; see also Ariz. R. Evid. 404(c)(1)(D).

¶18 When separate offenses are joined based on having “the same
or similar character,” a defendant is entitled to severance “unless evidence
of the other offense or offenses would be admissible if the offenses were
tried separately.” Ariz. R. Crim. P. 13.3(a)(1), 13.4(b); see also State v. Stuard,
176 Ariz. 589, 596–600 (1993) (stating that introducing joined evidence does
not result in prejudice if cross-admissible for any evidentiary purpose).
When a defendant has committed separate sexual offenses against multiple
victims, the offenses may be joined if evidence to prove each offense would
be cross-admissible under Rule 404(c). LeBrun, 222 Ariz. at 187, ¶ 15.

¶19 Osborne argues the trial court erred by failing to make a
specific probative value determination under Rule 404(c) and thus erred in
joining the offenses for trial. The record shows, however, that the court
found each element under Rule 404(c) had been satisfied. The court also
supported its findings with sufficient reasoning to explain why the
probative value of the evidence involving each victim was not substantially
outweighed by the danger of unfair prejudice, confusion of issues, or other
factors listed in Rule 403. See Ariz. R. Evid. 404(c)(1)(C)–(D). The court’s
basis for its ruling included the shared circumstances of the offenses,
including the age of the victims, mode of access to the victims, nature and
location of the abuse, and use of threats to prevent disclosure. And the
court made its decision based on what it considered to be reliable, credible
witness testimony. See Aguilar, 209 Ariz. at 50, ¶ 35 (holding that findings
under Rule 404(c) rest “largely on the credibility of the witnesses.”). To the
extent the offenses differed, they need not be “perfectly similar” to be
cross-admissible. See Lehr, 227 Ariz. at 147, ¶ 21. In light of the evidence
before it, the court did not err in finding the evidence for each offense
cross-admissible under Rule 404(c) and granting the State’s motion for a
joinder.

¶20 Osborne’s contention that the trial court failed to make a
separate finding for the uncharged victim under Rule 404(c) similarly fails.
Before making its ruling, the court heard two days of witness testimony,
including Julia’s testimony regarding the uncharged or other-act evidence.
The court provided a detailed basis for finding that evidence of all offenses,
including the other-act evidence, would be cross-admissible if each charged
offense were tried separately. Namely, the court properly found that the
acts Julia endured at the hands of Osborne fit within the pattern of abuse
experienced by the charged victims. See Ariz. R. Evid. 404(c)(1)(C). Though

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part of a simultaneous finding, the court adequately considered the
relevancy of the other-act evidence and provided sufficient detail for this
court to review its decision. See Aguilar, 209 Ariz. at 49, ¶ 31 (recognizing
the purpose behind the findings requirement in Rule 404(c) is to ensure
“only truly relevant other acts are admitted” and to allow “an appellate
court to effectively examine the basis for the trial judge’s decision”). The
court made the necessary findings under Rule 404(c). Osborne has shown
no error.

¶21 Even if an error occurred, the trial court’s other-act and
separate-count jury instructions mitigated any risk of prejudice. See State v.
Prince, 204 Ariz. 156, 158–60, ¶¶ 9–10, 17 (2003) (holding a defendant is not
prejudiced if the jury is properly instructed on the limited use of other-act
evidence and that they must consider each offense separately).

B. Change of Judge

¶22 Osborne argues that the change of judge on the first day of the
trial constituted reversible error. Because Osborne raises this issue for the
first time on appeal, we review only for fundamental error. State v.
Escalante, 245 Ariz. 135, 140, ¶ 12 (2018). Under that standard, Osborne
bears the burden of showing that error occurred, the error was
fundamental, and, if the fundamental error was not “so egregious that he
could not possibly have received a fair trial,” that the error resulted in
prejudice. Id. at 142, ¶ 21.

¶23 A defendant in a criminal case is entitled to the same judge
“throughout the entire proceedings against him.” State v. Jones, 6 Ariz. App.
26, 28 (1967). A change of judge, however, is permitted if “the substitute
judge becomes completely familiar with the entire case.” Id. If a judge is
successfully challenged for cause or as a matter of right, that judge should
not proceed further in the action. Ariz. R. Crim. P. 10.1(b)(2), 10.2(b)(3). We
will not find prejudice, however, where the judge performed “merely a
ministerial duty” and the conduct did not rise to the level of “judicial
participation.” State v. Schrock, 149 Ariz. 433, 439 (1986).

¶24 Osborne has failed to demonstrate prejudice. The record
shows that the challenged judge discussed a potential conflict of interest the
day before the trial, and Osborne requested a substitute judge. It is unclear
from the record whether Osborne provided a specific basis for this request
or challenged the judge for cause or as a matter of right. See Ariz. R. Crim.
P. 10.1(a)(1), 10.2(a)(1). The next day, Osborne made no record of his
request for a change of judge and did not object when the challenged judge

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provided introductory remarks to the prospective jurors. The challenged
judge instructed the jury not to consider the substitution during
deliberations, and the substitute judge presided over the substantive
portions of jury selection and all remaining proceedings. See State v. Payne,
233 Ariz. 484, 518, ¶ 151 (2013) (“Absent evidence to the contrary, we
presume the jury followed the instructions.”). Without more, the
challenged judge’s brief remarks to prospective jurors did not rise to the
level of fundamental, prejudicial error. See Schrock, 149 Ariz. at 439.

¶25 Insofar as Osborne claims the substitute judge failed to
adequately familiarize himself with the case, the record does not support
this contention. Osborne has not shown that any of the previous rulings by
the challenged judge, later affirmed by the substitute judge, were made in
error. The substitute judge presided over the trial, displaying a knowledge
of the facts and applicable law. While the substitute judge did not formally
rule on Osborne’s motion to admit evidence under A.R.S. § 13-1421(A), the
judge allowed defense counsel to question the victims regarding prior
allegations of sexual abuse involving other male relatives. Osborne has not
established that the substitution prevented him from receiving a fair trial or
resulted in prejudice.

C. Sufficiency of the Evidence for Counts One and Three

¶26 Osborne challenges the sufficiency of the evidence as to
Counts One and Three, asserting the victims of those offenses failed to
identify him as the perpetrator at trial. We review the sufficiency of the
evidence de novo, viewing the evidence in a light most favorable to
sustaining the verdict. State v. Bible, 175 Ariz. 549, 595 (1993).

¶27 In considering the sufficiency of the evidence, we look to
whether the record contains “substantial evidence to support a conviction.”
Ariz. R. Crim. P. 20(a)(1); State v. West, 226 Ariz. 559, 562, ¶ 14 (2011).
Substantial evidence is that which “reasonable persons could accept as
adequate and sufficient to support a conclusion of defendant’s guilt beyond
a reasonable doubt.” State v. Jones, 125 Ariz. 417, 419 (1980). A conviction
may be proven “by circumstantial evidence alone.” State v. Burton, 144
Ariz. 248, 252 (1985). A witness’s identification of the defendant as the
perpetrator need not “be made positively or in a manner free from
inconsistencies. It is the function of the jury to pass upon the strength or
weakness of the identification.” State v. Dutton, 83 Ariz. 193, 198 (1957)
(citation and internal quotation marks omitted).

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¶28 For Count One, Claire testified that Osborne sexually abused
her, she knew him as a family friend, she went to his house regularly, and
she still recognized him. The record shows that Claire signaled, “[t]hat’s
him,” during her trial testimony. For Count Three, George testified that
Osborne sexually abused him, he knew him as his uncle, and he went to his
house regularly for a number of years. In other portions of the State’s case-
in-chief, other witnesses positively identified Osborne as the accused
perpetrator. While Claire and George did not provide formal
identifications of Osborne, the State presented sufficient evidence
identifying him as the perpetrator of the offenses. Cf. State v. Guiliani, 24
Ariz. App. 530, 533 (1975) (finding a witness’s identification of a defendant
insufficient where the witness did not testify that she believed the
defendant was “the person [she] saw commit the crime” and there was “no
other evidence to connect defendant with the crime charged”). To the
extent the State could have done more to establish identity, it is for the jury
to weigh the evidence of a “less than positive” identification. See State v.
Mendibles, 5 Ariz. App. 463, 465 (1967). Thus, sufficient evidence supports
the victims’ identification of Osborne as to Counts One and Three.

D. Communication with Jurors

¶29 Osborne asserts that the trial court erred by communicating
with deliberating jurors outside his presence, violating his right to be
present at every stage of the trial. Osborne failed to raise this issue below,
so we review solely for fundamental error resulting in prejudice. Escalante,
245 Ariz. at 140, 142, ¶¶ 12, 21. To warrant reversal, Osborne “bears the
burden of showing first that the missed proceeding was of the type he has
a constitutional right to attend and, second, that his absence deprived him
of a substantial right to defend himself and resulted in actual prejudice.”
State v. Dann, 205 Ariz. 557, 572, ¶ 56 (2003).

¶30 A defendant in a criminal case generally has the right to be
present in the courtroom during proceedings in his case. U.S. Const.
amends. VI, XIV; Ariz. Const. art. 2, § 24; Ariz. R. Crim. P. 19.2. This right,
however, applies only to proceedings in open court when the defendant’s
“presence has a relation, reasonably substantial, to the fullness of his
opportunity to defend against the charge.” State v. Christensen, 129 Ariz. 32,
37 (1981) (citations and internal quotation marks omitted). A defendant’s
constitutional right to be present does not extend to a purely procedural
hearing, which may include inquiries into juror prejudice. United States v.
Gagnon, 470 U.S. 522, 524–27 (1985) (concluding that an inquiry concerning
juror prejudice, conducted outside the defendant’s presence, did not violate
his right to be present at every stage of trial).

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¶31 Osborne has failed to show that his absence impacted a
substantial right to defend himself resulting in prejudice. Osborne’s
counsel was present throughout the trial court’s communication with
deliberating jurors. Counsel provided feedback to the court throughout the
discussions, making reasoned suggestions and objecting to the dismissal of
a juror for prejudice. Nothing from the record shows that Osborne’s
absence from the proceedings impacted counsel’s decisions or his defense
of Osborne’s case. See Dann, 205 Ariz. at 574, ¶¶ 65–66 (finding any error
was not fundamental where the defendant failed to show his absence for
discussions regarding juror dismissal impacted his defense).

E. Dismissal of Juror One

¶32 Osborne argues the trial court erred by dismissing a juror
during deliberations without a valid basis, claiming the court deprived him
of the right to a fair and impartial jury. “The matter of excusing jurors is
committed to the sound discretion of the trial court and, absent clear and
prejudicial abuse of that discretion, its determination will not be disturbed
on appeal.” State v. Milke, 177 Ariz. 118, 122 (1993).

¶33 Although a defendant in a criminal case is entitled to a fair
and impartial jury, “he is not entitled to be tried by any particular jury.”
State v. Arnett, 119 Ariz. 38, 50 (1978). If the record does not affirmatively
establish that the dismissal of a juror resulted in a biased jury, we will not
reverse. Id. Criminal Rule 18.5(j)(3) gives trial courts broad discretion in
dismissing “a deliberating juror ‘due to inability or disqualification to
perform required duties,’ and to substitute an alternate juror.” State v.
Kolmann, 239 Ariz. 157, 162, ¶ 17 (2016) (quoting the previous version of
Ariz. R. Crim. P. 18.5(j)(3)). When the court dismisses a deliberating juror
based on an “inability or disqualification to perform the required duties,”
the court may substitute the juror with an alternate as long as the jury is
instructed “to begin its deliberations anew.” Ariz. R. Crim. P. 18.5(j)(3). In
Arizona, jurors must not consider punishment in rendering their verdict.
State v. Burnetts, 80 Ariz. 208, 212 (1956).

¶34 Nothing in the record supports Osborne’s contention that the
dismissal of Juror One resulted in a biased jury. The trial court acted within
its discretion in questioning jurors to determine whether Juror One was
following its instructions. Except for Juror One’s own denial, all other
jurors confirmed that he expressed concerns regarding the potential
punishment in the case. Based on this information, the court properly
found that Juror One’s consideration of the punishment disqualified him as
a deliberating juror, replaced him with an alternate, and instructed the jury

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to begin deliberations anew. See Ariz. R. Crim. P. 18.5(j)(3); Burnetts, 80
Ariz. at 212.

¶35 Finally, Osborne’s reliance on United States v. Symington, 195
F.3d 1080 (9th Cir. 1999), is unavailing. In Symington, the Ninth Circuit held
that “if the record evidence discloses any reasonable possibility that the
impetus for a juror’s dismissal stems from the juror’s views on the merits of
the case, the court must not dismiss the juror.” Id. at 1087. Here, the record
shows that Juror One expressed a “personal opinion on what should have
been done” in Osborne’s case. However, the court’s ultimate decision was
based solely on Juror One’s consideration of punishment. Because
dismissal did not stem from Juror One’s views on the case’s merits, Osborne
has not shown that the court abused its discretion.

CONCLUSION

¶36 We affirm Osborne’s convictions and sentences.

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

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