State v. Achenbach

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DEREK R. ACHENBACH, Appellant.

No. 1 CA-CR 18-0800
FILED 12-24-2019

Appeal from the Superior Court in Coconino County
No. CR2017-00419
The Honorable Mark R. Moran, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist
Counsel for Appellee

Coconino County Legal Defender’s Office, Flagstaff
By Joseph A. Carver
Counsel for Appellant
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MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Lawrence F. Winthrop
joined.

B R O W N, Judge:

¶1 Derek R. Achenbach appeals his conviction and sentence for
sexual abuse. For the following reasons, we affirm.

BACKGROUND

¶2 Achenbach married Z.W.’s mother in June of 2011, when
Z.W. was eight years old. On a camping trip in Flagstaff in September 2015,
Achenbach fondled Z.W.’s breasts while they were sleeping in the same
tent. Z.W. eventually reported the incident to her mother, stating that
Achenbach had “touched [her] inappropriately” on that trip and during a
sleepover in May 2016 at Achenbach’s house in Phoenix. During a
confrontation call, Achenbach provided several general statements that
confirmed he had sexual contact with Z.W.

¶3 As relevant here, a Coconino County grand jury indicted
Achenbach for one count of sexual abuse related to the Flagstaff incident.
When Achenbach proceeded to trial in Coconino County, he had already
been convicted in Maricopa County on two counts of sexual abuse
stemming from the Phoenix incident.1 The State used the confrontation call
as evidence in both trials.

¶4 A jury found Achenbach guilty of sexual abuse in the
Coconino County trial, and the superior court sentenced him to eight years
imprisonment. Achenbach timely appealed.

DISCUSSION

1 Achenbach received a suspended sentence, with concurrent lifetime
supervised probation and, as a condition of probation, six months in jail.
State v. Achenbach, 2019 WL 2395114 (App. 2019).

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A. Confrontation Call

¶5 Achenbach contends the superior court violated his
fundamental rights by allowing the State to argue that his statements in the
confrontation call were admissions to the sexual acts in both Coconino
County and Maricopa County. We review a superior court’s evidentiary
rulings for an abuse of discretion. State v. Davolt, 207 Ariz. 191, 208, ¶ 60
(2004). We review questions of law de novo. State v. Moody, 208 Ariz. 424,
445, ¶ 62 (2004).

¶6 Before the Coconino County trial, the State moved to admit
the acts from the Maricopa County incident to show Achenbach had a
character trait giving rise to an aberrant sexual propensity under Rule
404(c) of the Arizona Rules of Evidence. The superior court permitted the
admission of the evidence, including the confrontation call, over
Achenbach’s objection.

¶7 After jury selection, Achenbach moved to preclude the State
from arguing that the statements in the confrontation call constituted
admissions to the sexual acts in Coconino County. Achenbach contended
that allowing the State to make such an argument was unfairly prejudicial
and resulted in double jeopardy because the State had previously used the
statements as admissions to the Maricopa County acts. The superior court
denied the motion, finding that Achenbach failed to make an offer of proof
substantiating his assertion that the confrontation call addressed only one
incident but was being used against him in both the Maricopa and
Coconino County cases. The court perceived no double jeopardy violation
and noted that the transcript provided no reference or context for when or
where the acts discussed in the call occurred. The court also found that the
probative value of the evidence was not substantially outweighed by unfair
prejudice. The record supports these findings.

¶8 The confrontation call started with a discussion of an
invented topic about a boy at Z.W.’s school. Z.W. told Achenbach that
when he touched her “it felt good but . . . [she] was a little confused.” He
asked for clarification regarding the “touch[ing]” to which she was
referring. Z.W. again stated, “When you touched me, it felt good,” and
Achenbach soon after replied, “You felt that way?” She then said, “I like it,
but I’m just trying to ask questions and learn . . . .” Achenbach responded,
“Ok. Those feelings, they happen when you’re close to people and you
admire somebody no matter what their age is.”

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¶9 Shortly thereafter, Z.W. asked, “Did you like it when you did
it to me?” Achenbach asked for clarification again: “When I did what,
honey?” Z.W. answered, “Just when you touched me, because it felt
good . . . I want to know if you liked it too.” Following a pause, Achenbach
became emotional. He next asked Z.W. where she was and if she had talked
to anyone about “this.” Z.W. stated that she had not and asked if she should
talk to someone. Achenbach replied, “Talk to me more.” Later, Z.W. said,
“Ok. Well I know that when you did it, I felt really special . . . I haven’t
been able to feel that way again . . . even with this boy . . . it’s not the same.”

¶10 Z.W. asked if she could come over to Achenbach’s house
again. He replied that he would like that very much, and asked, “What
kind of touching . . . were you wanting to know was good or not?” Z.W.
stated, “When you touched my boobs . . . .” After a pause, Achenbach told
Z.W. she was beautiful. Z.W. followed up by asking if he liked it when he
touched her and “when [he] touched . . . [her] boobs.” Achenbach answered
that ”it does make me feel good.” Achenbach continued by telling Z.W.
that it was not something that should happen, but it was “very ok” for it to
“feel good” and that “a lot of people don’t see that as being good because
of age,” and “they make it more than what it is.” Z.W. then asked what
Achenbach was thinking when he touched her. Achenbach answered, “I
wanted you to feel good. You didn’t seem happy.”

¶11 We agree with the superior court that the statements made in
the confrontation call do not contain any admissions to a particular,
exclusive event. The statements do not refer to a specific location or give
any detail that reveals, or limits, what incidents Z.W. and Achenbach were
discussing. Thus, the record does not support Achenbach’s factual
assertions that either the confrontation call or the related arguments urged
by the State based upon the call provided “inconsistent theories” in the two
trials.

¶12 Given the imprecise and open nature of the conversation, no
contradiction or inherent conflict arose by permitting the State to argue that
the statements substantiated separate, multiple acts of sexual touching in
different locations. The State could reasonably argue that the statements
could be interpreted as confirming either incident or both incidents, and
Achenbach could reasonably argue they did not refer to either incident. See
State v. Hill, 174 Ariz. 313, 322 (1993) (“We have consistently held that wide
latitude is to be given in closing arguments and that counsel may comment
on the evidence and argue all reasonable inferences therefrom.”). The jury
was appropriately tasked with determining the meaning and weight of the
statements within the full context of the evidence, which included

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testimony regarding the Maricopa County acts under Rule 404(c).
Additionally, to the extent the confrontation call consisted of propensity
evidence under Rule 404(c), the superior court gave the jury proper limiting
instructions in accordance with Rule 404(c)(2).

¶13 Achenbach asserts nonetheless that collateral estoppel and
double jeopardy prohibited the State from using Achenbach’s statements as
admissions in the Coconino County trial. Collateral estoppel bars the State
from relitigating an issue of fact previously determined in the defendant’s
favor following an acquittal. State v. Detrich, 188 Ariz. 57, 62 (1997). Double
jeopardy precludes a second prosecution for the same offense. State v.
Nunez, 167 Ariz. 272, 275 (1991). Achenbach was prosecuted and convicted
in Maricopa County for distinct conduct that occurred at different times
and in different locations than the Coconino County offenses. Double
jeopardy and issue preclusion protections are not applicable here, where
the State presented admissible evidence for distinct acts that occurred in
separate jurisdictions.

¶14 Achenbach also contends that when the State used the
confrontation call in the Maricopa County trial, he was placed on notice that
the State would use the call only as Rule 404(c) evidence in the Coconino
County trial. But he offers no support from either trial record for his
assertion that the State gave Achenbach such notice.

B. Rebuttal Evidence

¶15 Achenbach also argues the superior court improperly
permitted the State to call a detective to rebut Achenbach’s testimony.
Achenbach contends that the detective’s testimony compelled him to
present other previously-unaddressed parts of the interview that contained
prejudicial information.

¶16 A party may present evidence in rebuttal to counter a new fact
or allegation made in the opposing party’s case. State v. Young, 116 Ariz.
385, 387 (1977). We review a court’s ruling on the admission of rebuttal
evidence for an abuse of discretion. Moody, 208 Ariz. 424, 453, ¶ 107 (2004).

¶17 During direct examination, Achenbach stated that the
detective promised him during the post-Miranda interview that “if
[Achenbach] told him the truth, that he would be let go.” He repeated the
allegation on cross-examination. Later during cross-examination,
Achenbach changed his position, stating that the detective alluded to or
implied the promise, and the implication of a promise resulted from
Achenbach’s interpretation of the detective’s statements.

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¶18 The State asked to call the detective to counter Achenbach’s
assertions. Over Achenbach’s objection, the superior court granted the
State’s request. The detective testified in rebuttal that he never promised to
“let [Achenbach] go” in exchange for the truth. During cross-examination
of the detective, Achenbach presented portions of the interview that
included discussion of what would happen to Achenbach after the
interview was completed. Specifically, the detective informed Achenbach
that “it was up to the judge.” The detective testified that he thought
Achenbach was not answering questions completely honestly or accurately
during the interview.

¶19 Achenbach’s testimony during direct examination explicitly
raised the issue of whether his statements to the detective in the interview
were voluntary. As the superior court instructed, a jury must determine
“beyond a reasonable doubt” whether any statements made to law
enforcement were voluntary before considering them and that a statement
was “not voluntary” if the statement resulted from a direct or implied
promise or from coercion. By testifying that the detective made express and
implied promises, Achenbach disputed the voluntariness of his statements
and, as a result, invited the jury to ignore or discount any resulting
incriminating statements. The court acted within its discretion by
permitting the detective to testify in rebuttal to contradict Achenbach’s
allegations.

¶20 Achenbach was not compelled to present portions of the
interview referring to jail and to the detective’s interpretation of his
truthfulness in the interview. To the extent Achenbach concluded that the
rebuttal testimony required him to cross-examine the detective
comprehensively, an accused’s need or decision to present a defense does
not produce compulsion. See U.S. v. Rylander, 460 U.S. 752, 758 (1983)
(holding that Fifth Amendment privilege should not be “convert[ed] from
the shield . . . which it was intended to be into a sword whereby a claimant
asserting the privilege would be freed from adducing proof in support of a
burden which would otherwise have been his”); Williams v. Florida, 399 U.S.
78, 84 (1970) (“That the defendant faces . . . a dilemma demanding a choice
between complete silence and presenting a defense has never been thought
an invasion of the privilege against compelled self-incrimination.”).

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CONCLUSION

¶21 For the foregoing reasons, we affirm Achenbach’s conviction
and sentence.

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

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