State v. Rustin

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOHN ANTHONY RUSTIN, Appellant.

No. 1 CA-CR 14-0710
FILED 10-15-15

Appeal from the Superior Court in Maricopa County
No. CR2013-428561-001
The Honorable David B. Gass, Judge

AFFIRMED

COUNSEL

Office of the Arizona Attorney General, Phoenix
By Michael O’Toole
Counsel for Appellee

Office of the Maricopa County Public Defender, Phoenix
By Margaret M. Green
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined.

T H U M M A, Judge:

¶1 John Anthony Rustin appeals from his convictions and
resulting sentences for seven counts of sexual assault, one count of
aggravated assault and one count of kidnapping. Rustin argues the
superior court erred by improperly admitting expert testimony at trial, in
not allowing him to represent himself or testify and in restricting his cross-
examination of the victim. Because Rustin has not shown error, the
convictions and sentences are affirmed.

FACTS1 AND PROCEDURAL HISTORY

¶2 The State charged Rustin with 11 counts of sexual assault,
each a Class 2 felony, one count of aggravated assault, a Class 4 felony, and
one count of kidnapping, a Class 2 felony. The victim’s trial testimony
revealed the following.

¶3 Rustin and the victim first met late one afternoon on Mill
Avenue in Tempe after the victim had used illegal drugs. For the next
several hours, the two walked to various stores in the area, and Rustin
purchased and shoplifted alcohol that the two drank. Rustin also shoplifted
a dress, which the victim then wore.

¶4 Rustin and the victim eventually sat down outside of a church
where Rustin punched her in the face after she refused to have sex with
him. The victim’s nose bled profusely, and she sustained serious physical
injuries to her eye and cheek. Rustin then grabbed the victim’s hand and
took her to a nearby isolated area where he repeatedly forced her to have

1This court views the evidence in the light most favorable to sustaining the
conviction and resolves all reasonable inferences against the defendant.
State v. Karr, 221 Ariz. 319, 320 ¶ 2, 212 P.3d 11, 12 (App. 2008).

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sex with him for a number of hours. During this time, Rustin would
momentarily walk away, disappear and then return.

¶5 After leaving the church, the two walked along nearby
railroad tracks in a residential neighborhood to an area next to a school.
There, Rustin again forced the victim to have sex with him. They eventually
walked onto the school grounds, where the victim saw maintenance
workers and people walking along the athletic track but she did not seek
aid at that time. They then returned to a store, and while the victim was
alone outside, she called 9-1-1. Police arrived almost immediately and
arrested Rustin.

¶6 The jury found Rustin guilty of seven counts of sexual assault,
one count of aggravated assault, one count of kidnapping and not guilty on
the remaining counts. The court sentenced Rustin to consecutive prison
terms totaling 136 years with credit for time served. This court has
jurisdiction over Rustin’s timely appeal pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.)
sections 12-120.21(A)(1), 13-4031, and -4033(A)(1) (2015).2

DISCUSSION

I. The Superior Court Did Not Err In Allowing Expert Testimony.

¶7 Without objection, Melissa Brickhouse-Thomas, a social
worker employed as a victim services provider and critical incident
coordinator for the Glendale Police Department, testified on behalf of the
State about research and her experience in trauma memories and victims’
physiological and behavioral responses to sexual violence. Knowing
nothing about the circumstances of this case, Brickhouse-Thomas explained
the existence of what she referred to as a “rape myth.” She testified that
people “react[] differently” when they are being sexually assaulted, and
given her experience dealing with victims of sexual violence, it is “not
uncommon” for such victims to not fight back during an assault or to not
immediately call the police. She also testified that victims of sexual violence
may not be able to recount the violent events in sequential order. Rustin
argues allowing this testimony was error because it was unhelpful to the
jury in that “the only lesson the jury could take away from [the] testimony
was that any behavior exhibited by a person alleging sexual violence was
proof of sexual violence.”

2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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¶8 Rustin failed to make a timely objection, meaning review on
appeal is limited to fundamental error. See Ariz. R. Crim. P. 21.3(c); State v.
Henderson, 210 Ariz. 561, 567 ¶¶ 19-20, 115 P.3d 601, 607 (2005).
“Accordingly, [Rustin] ‘bears the burden to establish that “(1) error exists,
(2) the error is fundamental, and (3) the error caused him prejudice.”’” State
v. James, 231 Ariz. 490, 493 ¶ 11, 297 P.3d 182, 185 (App. 2013) (citations
omitted). Rustin does not challenge Brickhouse-Thomas’s qualifications as
an expert. Instead, he claims the superior court erred in finding that her
testimony would “help the trier of fact to understand the evidence or to
determine a fact in issue.” Ariz. R. Evid. 702(a).3

¶9 Although Rustin is correct that Brickhouse-Thomas testified
that “everybody reacts differently” to being sexually assaulted, that
explains why her testimony was relevant. Rustin’s trial defense was the
victim consented, meaning the victim’s credibility was a key trial issue. The
State offered the testimony to dispel perceived misconceptions about the
response of sexual assault victims. The victim testified that her response
was an attempt at self-preservation because she was afraid Rustin would
hit her again if she did not comply with his demands. For the same reason,
the victim testified she did not alert others or call the police until she felt
safe in doing so. She also had difficulty during the investigation and at trial
recounting the specific instances of the sexual assaults and their sequence.

¶10 Therefore, the superior court did not abuse its discretion in
concluding that Brickhouse-Thomas’s opinions would be helpful for the
jury to properly understand the victim’s testimony. As a result, the
testimony satisfied Rule 702(a), and no error, fundamental or otherwise,
occurred. See State v. Salazar-Mercado, 234 Ariz. 590, 594 ¶ 15, 325 P.3d 996,
1000 (2014) (holding “cold expert” testimony satisfied Rule 702(a) because
it “might have helped the jury to understand possible reasons for the
delayed and inconsistent reporting” by sexual abuse victims).

II. The Superior Court Did Not Deny Rustin His Right To Self-
Representation.

¶11 Rustin argues the superior court committed structural error
in failing to “fairly address Rustin’s desire to represent himself.” [OB at 24]
This issue arose at a hearing on defense counsel’s motion to reconsider the
denial of a requested continuance, where counsel noted Rustin objected to
the continuance. After granting the motion to reconsider and setting trial

3 Rustin does not argue, and this court need not decide, whether
Brickhouse-Thomas’s testimony was admissible under Rule 702(b)-(d).

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approximately two months later, Rustin asked “Is there any way that I can
just represent myself? I don’t need a lawyer. . . . I don’t need to go through
all the case, I just [need to] go in court. . . . I just want to get this over with.”
The court took a recess so Rustin could confer with counsel. When the
hearing resumed, the court asked whether Rustin was still interested in
representing himself, and he responded “It’s still the same either way, so I
might as well go with whatever you feel is right. . . . I don’t want to say no
more on that matter.” The court had a brief exchange with Rustin
personally explaining that, in granting the motion to continue, it was
balancing his rights to have a speedy trial with his attorney’s attempt to
provide the best defense possible, concluding by stating “and so based on
that balancing, I’m going to go ahead and grant the Motion to Continue.
The defendant has not moved forward with any right to represent himself.”

¶12 To properly invoke the constitutional right to self-
representation, a criminal defendant must unequivocally request to
represent himself. State v. Henry, 189 Ariz. 542, 548, 944 P.2d 57, 63 (1997).
Here, Rustin -- as the court indicated -- did not unequivocally request to
represent himself. Rustin provides no authority supporting the proposition
that structural error occurs under these circumstances. See, e.g., State v.
McLemore, 230 Ariz. 571, 575-76, ¶ 15, 288 P.3d 775, 779-80 (App. 2012)
(“[A]n erroneous failure to accord a defendant his properly asserted right to
represent himself when he is competent to waive counsel in a criminal case
is structural error requiring reversal without a showing of prejudice.”)
(emphasis added). On this record, no such error occurred. See State v. Torres, 208 Ariz. 340, 344, ¶ 12, 93 P.3d 1056, 1060 (2004) (holding summary denial
of defendant’s request to change counsel is not structural error).

III. The Superior Court Did Not Deny Rustin His Right To Testify.

¶13 After the State rested in its case-in-chief, at the request of
defense counsel and outside of the presence of the jury, the superior court
addressed Rustin and discussed with him the evidentiary limitations and
other issues that would be implicated if Rustin decided to testify. The next
day, defense counsel informed the court that Rustin had decided to not
testify. [RT 7/22/14 at 3] On appeal, Rustin contends the court intimidated
him into waiving his right to testify, resulting in fundamental error. The
record, however, does not support this contention.

¶14 The lengthy colloquy between the superior court and Rustin
about his decision to testify made it clear that: (1) the decision to testify was
“solely up to” Rustin; (2) if he did elect to testify, Rustin would need to
abide by the court’s evidentiary rulings or face contempt; (3) his testimony

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would be in response to his attorney’s questions; (4) an election to testify
would be irrevocable after he took the stand and answered the first
question; and (5) the State would be allowed to cross-examine him on his
prior felony convictions. After Rustin indicated he understood, but was
concerned the court would get mad at him, the following exchange took
place:

THE COURT: Okay. And I’m not having this
conversation, because if you want to testify, I want
you to. I just want you to know what you can or can’t
do. Because I don’t want you to find yourself in
trouble for doing something that you can’t. So
that’s why we’re talking about what the parameters
are so that you make a knowing decision. And your
attorney, I think, has talked to you a little bit
also about what you can get into.

And I know that that’s – you’re concerned about
telling your side of the story. And that’s why
you’re looking at this. So I just want you to
make sure you[] understand what you can and
can’t do.

....

So I absolutely want you to be able to testify. I just
want to make sure that you don’t cross a line that
results in a mistrial or could potentially put you in
some other situation. Okay? And my
understanding is -- and, Counsel, did you want
to talk some more, or he’s going to testify?

[DEFENSE COUNSEL]: I think it’s up in the air,
but I’ll talk to him some more.

...

THE COURT: All right. So make sure you just
talk with your attorney about it.

(Emphasis added.)

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¶15 Rather than indicating the superior court intimidated him, the
record shows the court took care to clearly explain that only Rustin could
decide whether to testify. The record also shows the court took care to
ensure Rustin understood what topics he could testify about so that his
decision would be an informed one. And telling Rustin that he could be
held in contempt if he violated the court’s prior evidentiary orders did not
impermissibly interfere with Rustin’s right to testify. See State v. Tucker, 215
Ariz. 298, 307, ¶¶ 6–10, 160 P.3d 177, 186 (2007) (noting that trial court’s
informing defendant about the consequences of testifying does not interfere
with defendant’s right to testify). Accordingly, no error occurred,
fundamental or otherwise.

IV. The Superior Court Did Not Improperly Limit Cross-Examination
Of The Victim.

¶16 The superior court, over Rustin’s objection, granted the State’s
pretrial motion to preclude evidence of the victim’s criminal history
pursuant to Arizona Rule of Evidence 609(a). Specifically precluded was
evidence that the victim was on probation for a misdemeanor possession of
marijuana conviction at the time of her interaction with Rustin. Although
excluding evidence of probation, the court allowed Rustin to cross-examine
the victim regarding her criminal activities—including drug use and
participation in shoplifting—on the day she was assaulted.

¶17 Rustin argues the court abused its discretion in precluding
this evidence. Rustin does not argue that evidence of the victim’s
misdemeanor conviction and resulting probation were admissible under
Rule 609(a). Rather, Rustin contends that he should have been allowed to
cross-examine the victim regarding her status as a probationer, because it
gave the victim a motive to conceal her illegal activities and alcohol
consumption by implicating him.

¶18 In making this argument, Rustin relies primarily on Davis v.
Alaska, 415 U.S. 308 (1974). In Davis, the defendant was charged with
burglary, and the prosecution’s “crucial witness” for identifying the
defendant (who was also a possible suspect) was on juvenile probation at
the time of the offense and trial. Davis, 415 U.S. at 310-11, 317, 319. The
defendant wanted to introduce the witness’ juvenile record to show that, at
the time the witness was assisting police in identifying the defendant, the
witness did so out of concern that his probation would be revoked. Id. The
prosecution successfully obtained a protective order from the trial court
precluding this evidence. Id. at 310-11. The United States Supreme Court
reversed, noting that the “accuracy and truthfulness” of the witness’s

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identification testimony “were key elements in the State’s case against” the
defendant. Id. at 317. The Court also reasoned that the witness’s juvenile
record was admissible, in part, “to afford a basis for an inference of undue
pressure because of [the witness’s] vulnerable status as a probationer . . . as
well as [the witness’s] possible concern that he might be a suspect in the
investigation.” Id. at 317-18.

¶19 Here, by contrast, the victim was not the only source of
evidence that identified Rustin as the perpetrator. His DNA was found on
the victim, and the victim’s blood was found on the shirt Rustin was
wearing when he was arrested. Furthermore, the victim here was not a
suspect for the charges against Rustin. Accordingly, the rationale in Davis
that the witness’s probation status was improperly precluded is not present
here. Davis, therefore, does not support reversal.

¶20 Moreover, Rustin incorrectly suggests that he was not
afforded the opportunity to cross-examine the victim about motive. The
victim testified during cross-examination that she was afraid she “was
going to get caught for shoplifting” with respect to the dress Rustin had
stolen. The victim also testified during cross-examination that she did not
inform law enforcement of her illegal drug use during the day she was
assaulted because “smoking marijuana and also using methamphetamine
is against the law,” admitting she was not being charged with those crimes.
During closing argument, defense counsel argued:

And [the victim] hasn’t been charged. No one
has come in here and said she was, but, once
again, ask yourself, if any of you stood up where
she did and admitted to illegal drug use, would
you not be charged? Ask yourself the State -- ask
yourself why that is happening.

¶21 Based on this record, Rustin had a sufficient opportunity to
challenge the victim’s credibility given her participation in illegal activities
the day she was assaulted. Consequently no error occurred, and the court
properly precluded evidence of the victim’s probation status. See Delaware
v. Fensterer, 474 U.S. 15, 20 (1985) (“Generally speaking, the Confrontation
Clause guarantees an opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever extent, the
defense might wish.”); State v. Adams, 155 Ariz. 117, 122, 745 P.2d 175, 180
(App. 1987) (concluding no Confrontation Clause violation occurred where
defendant had “ample opportunity to put the victim’s credibility into
issue”).

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CONCLUSION

¶22 Rustin’s convictions and sentences are affirmed.

:jt

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