State v. Sutter

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TIMOTHY RAYMOND SUTTER, Appellant.

No. 1 CA-CR 19-0348
FILED 6-11-2020

Appeal from the Superior Court in Apache County
No. S0100CR201800052
The Honorable C. Allen Perkins, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

The Ferragut Law Firm PC, Phoenix
By Ulises A. Ferragut, Jr.
Counsel for Appellant

MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Chief Judge Peter B. Swann
joined.

H O W E, Judge:
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¶1 Timothy Sutter appeals his two sexual conduct with a minor
convictions. He also appeals the denial of his motions to vacate the
judgment and for a new trial. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 O.G. met Sutter through church when she was eight years old.
Sutter was close with O.G. and her family and often went to O.G.’s house
for dinner. When O.G. was eight, she fell off a trampoline while playing
with other kids and broke her arm. O.G.’s parents were not there, so Sutter
picked her up, put her head on his chest, and said, “[n]o, don’t move; I’m
going to take care of you for the rest of your life. Stay there.” Sutter grew
closer with O.G. and, when O.G. was 11, Sutter kissed her. Sutter was in his
mid-30s at time.

¶3 In 2001, when O.G. was about 12, Sutter came over to her
house while her parents were working to play her a recorded song. While
the song was playing, Sutter hugged O.G. from behind and slid his hands
into O.G.’s underwear and first touched, and then put his finger inside her
vagina. After the song ended, Sutter kissed O.G. and left.

¶4 Around August 2004, when O.G. was 16, she and her family
moved to another town. Sutter remained close with O.G. and her family
and started buying O.G. gifts, including high heels, a purse, a stereo, paint
for her bedroom, and a phone she could use to text him. Around the
summer of 2004, before O.G.’s sister moved to Ecuador, she saw Sutter
touch O.G.’s bottom when he helped her climb over a fence to get a ball.

¶5 On one occasion in 2004, Sutter asked O.G. to call her mother
to make sure she was not coming home from work. When O.G. told Sutter
that her mother was not coming home, he came over to her house. While
the two were sitting on the couch, Sutter told O.G. that he wanted to have
sex. Sutter unzipped his pants and told O.G. that it would hurt less if she
sat on him. O.G. tried sitting on him but it hurt. Sutter got mad, pushed her
off him, and left.

¶6 In late 2004, Sutter came over and brought towels with him.
Sutter and O.G. went into her room where he told her to get naked. After
O.G. was naked, Sutter told her that he wanted to “do oral first.” After that,
O.G. laid down and Sutter “shoved his penis inside” her, which caused
O.G. to bleed “everywhere.” Sutter cleaned up the blood with the towels he
brought, told O.G. to take a bath, and left.

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¶7 Sutter wrote and emailed a poem to O.G. in November 2004,
that another church member discovered in December 2004, when he found
the email in his printer. The poem stated in part that “I yearn to hold you. I
crave your touch, to whisper in your ear, to caress you softly, to press my
lips against your body. To bring you passionate pleasure makes me so very
happy.” The church member brought the poem to the church’s attention
and a few weeks later, Sutter said to him, “[t]hank you for bringing it out
before it went any further.” The church told O.G.’s parents about Sutter’s
relationship with O.G. Sutter apologized to O.G.’s parents and asked for
forgiveness.

¶8 O.G.’s parents were ashamed of her and sent her to live with
a friend in Indiana for about six months and then to live with her older sister
in Ecuador. O.G. returned from Ecuador after about six months and moved
out on her own when she turned 18. O.G. did not report Sutter to police at
that time because her parents told her not to. But she eventually did so in
July 2016, after she smelled the same cologne Sutter used to wear. In August
2016, O.G. met with a forensic interviewer and told her about Sutter and the
sexual acts he engaged in with her. Sutter first learned about the charges
after a friend saw them on the internet. Sutter told his friend that “it’s
something that happened 15 years ago” and that “[i]t’s the statute of
limitation, I thought it was up on stuff like that but apparently not.”

¶9 The State initially charged Sutter with child molestation and
three counts of sexual conduct with a minor.1 Before trial, Sutter moved to
preclude other act evidence. The court denied the motion as untimely and
because it did not identify the acts Sutter sought to preclude. After the State
filed its proposed jury instructions, Sutter objected to the inclusion of other
act evidence instructions, arguing that other act evidence could not be
admitted without a hearing and that the State did not disclose the other act
evidence. The State then moved to admit other act evidence arguing that it
did disclose the other acts and requested a hearing at the start of trial.

¶10 On the first and second day of trial, the court and the parties
discussed the motions. Sutter argued that the following incidents were
inadmissible as “other act” evidence under Arizona Rule of Evidence
404(b): (1) Sutter’s picking up O.G. and whispering to her when she broke
her arm, (2) Sutter’s giving O.G. various gifts, and (3) Sutter’s touching
O.G.’s bottom while helping her climb over a fence. In response to Sutter’s
argument for a hearing, the State argued that no hearing was required. The

1 The State subsequently dismissed one of the counts of sexual
conduct with a minor.

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court found that these “other acts” were inadmissible under Arizona Rule
of Evidence 404(b) because it believed that it could not make a clear and
convincing evidence finding at the start of the trial. The court found that
the other act evidence was admissible, however, as intrinsic evidence.

¶11 Trial was held in April 2019, and during cross-examination of
the forensic interviewer, Sutter’s counsel asked, “[O.G.] told you that all of
the incidents that took place in her particular case happened in Eager except
for one. Correct?” The forensic interviewer responded that “[s]he spoke of
other places, going to church functions, out of town to Phoenix, in-between
Tucson, that there were times while they were driving where . . . he would
then touch her on her vaginal area.” The following day, Sutter objected to
this testimony and moved for a mistrial. The court denied the motion
because the forensic interviewer’s answer was in response to a question that
Sutter’s counsel had asked concerning “all of the incidents.”

¶12 During his opening statement, Sutter’s counsel brought up his
grandchildren stating that “I have a grandson and a granddaughter who
will play a role in this trial.” He discussed his grandkids again during
closing arguments when talking about fairness. In counsel’s closing
argument, he discussed O.G.’s motives for bringing sexual allegations
against Sutter and argued “[s]o this rich, white guy, who ruined her life . . .
turned her into a scorned woman, is nothing but a rich, white guy. ‘We are
poor Mexicans, and he is a rich, white guy, and I’m going to get him.’”

¶13 During rebuttal closing, the prosecutor responded that O.G.
made those statements when asking herself why Sutter targeted her,
“[b]ecause she was . . . from a poor Mexican family . . . [a]nd he was a rich,
white guy.” The prosecutor also said,

[Defense counsel] spoke a few times about his family, his
grand kids, and I get that. I think it’s normal. We deal with
these heavy cases, we have family of our own to think about,
our family. And I have a 15-year-old daughter. Trust me, I’ve
thought a lot about her over the course of this case. And you
all have family as well, daughters, sisters. And you need to
consider your daughters and granddaughters.

Sutter objected to the prosecutor’s comment that the jurors should consider
their families, and the trial court sustained the objection. Before closing
arguments, the court had instructed the jurors that “[i]f the Court sustained
an objection to a question, you must disregard it and any answer given”
and that “[w]hat the lawyers said is not evidence[.]”

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¶14 The jurors deliberated and convicted Sutter of child
molestation, sexual conduct with a minor under the age of 15, and sexual
conduct with a minor under the age of 18. Before sentencing, Sutter moved
for a new trial, arguing that the State engaged in misconduct, that the other
act evidence was inadmissible, and that the court failed to give a jury
instruction when the forensic interviewer introduced other act evidence.
The trial court denied the motion. Sutter also moved to vacate the judgment
on May 24, 2019, before sentencing on May 31, 2019. The trial court denied
that motion because, among other things, Sutter had filed the motion before
sentencing.

¶15 At sentencing, Sutter moved to dismiss count one, child
molestation, as a lesser-included offense of count two, sexual conduct with
a minor under the age of 15. The trial court agreed and dismissed count one,
child molestation. Sutter was then sentenced to a mitigated term of 18 years’
imprisonment with 79 days’ presentence incarceration credit on count two,
sexual conduct with a minor under the age of 15. The court suspended the
imposition of sentence on count three, sexual conduct with a minor under
the age of 18 and placed Sutter on 20 years’ supervised probation for that
conviction. Sutter timely appealed.

DISCUSSION

1. Venue

¶16 Sutter argues that his convictions should be reversed because
the State failed to “formally establish” that the towns of Springerville and
Eager were in Apache County. A criminal defendant has the right to a “trial
by an impartial jury of the county in which the offense is alleged to have
been committed.” Ariz. Const. art. II, § 24. Venue may be established by
either direct or circumstantial evidence. State v. Detrich, 178 Ariz. 380, 384
(1994). A trial court and this Court may take judicial notice that a town is in
an Arizona county. Id. O.G. testified that Sutter committed the charged
offenses in the towns of Springerville and Eager. As a result, we may take
judicial notice that those towns are in Apache County, Arizona. See Id.
Therefore, the State properly established jurisdiction.2

2. Other Act Evidence

¶17 Sutter argues that the trial court erred by admitting other act
evidence because such evidence was not intrinsic to the charged crimes.

2 For this reason, Sutter’s argument that the Double Jeopardy Clause
of the United States and Arizona Constitutions bar a retrial is moot.

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Sutter argues specifically that the trial court erred by admitting evidence
that (1) he picked up O.G. and whispered to her when she broke her arm,
(2) he gave O.G. various gifts, and (3) he touched O.G.’s bottom while
helping her climb over a fence. We review a trial court’s ruling about the
admissibility of evidence for an abuse of discretion. State v. Winegardner, 243
Ariz. 482, 484 ¶ 5 (2018). Evidence is intrinsic if it “directly proves the
charged act” or “is performed contemporaneously with and directly
facilitates commission of the charged act.” State v. Ferrero, 229 Ariz. 239, 243
¶ 20 (2012). The intrinsic evidence doctrine may not be invoked to
“complete the story.” Id.

¶18 The State concedes that none of the admitted other act
evidence is intrinsic. Evidence that Sutter picked up O.G. after she broke
her arm when she was eight does not directly prove Sutter committed the
sexual conduct with a minor offenses and did not occur contemporaneously
with those crimes. Likewise, evidence that Sutter gave O.G. gifts and
touched her bottom while helping her climb over a fence do not directly
prove that Sutter committed the sexual conduct with a minor offenses and
did not occur contemporaneously with those crimes. Because the other act
evidence was not intrinsic, the trial court erred by admitting the evidence
as intrinsic to the crimes charged.

¶19 The State argued at trial, and now argues on appeal, however,
that the other act evidence was admissible under Arizona Rule of Evidence
(“Rule”) 404(b) to show motive, preparation, and to “complet[e] the story.”
This Court must affirm the trial court for any reason if the record contains
substantial evidence that the requirements of admissibility were met. State
v. Aguilar, 209 Ariz. 40, 50 ¶ 37 (2004). Other act evidence is not admissible
to prove the character of a person but may be admissible for another
purpose such as proof of motive and preparation. Ariz. R. Evid. 404(b). To
admit other act evidence, the State must prove by clear and convincing
evidence that the defendant committed the other acts, that they are offered
for a proper purpose, that they are relevant, and that their probative value
is not substantially outweighed by a danger of unfair prejudice. State v.
Goudeau, 239 Ariz. 421, 450 ¶ 96 (2016). Contrary to Sutter’s argument, a
party has no automatic right to a separate hearing on the admissibility of
Rule 404(b) evidence. See State v. LeBrun, 222 Ariz. 183, 187 ¶ 13 (App. 2009).

¶20 Despite the trial court’s declination to consider whether the
other act evidence the State proffered was admissible under Rule 404(b), the
record shows that the State met its admissibility requirements. First, the
State presented clear and convincing evidence that Sutter committed the
other acts. O.G. testified that Sutter picked her up when she broke her arm

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and told her that “I’m going to take care of you for the rest of your life.” She
also testified that Sutter gave her gifts including a cell phone, a stereo, a
purse, clothing, and paint so she could paint her room. O.G.’s sister
confirmed that Sutter gave her a purse, that O.G. had brand name jeans and
shoes, and testified that Sutter touched O.G.’s bottom when he helped her
climb over a fence to get a ball. O.G.’s parents confirmed that Sutter gave
her a phone and O.G.’s father testified that he smelled paint when he came
home one day. This testimony sufficiently proved by clear and convincing
evidence that Sutter committed the other acts.

¶21 Second, the other act evidence was relevant and offered for a
proper purpose. The State argued that the evidence was offered to prove
motive and preparation, and so the jurors would understand O.G. and
Sutter’s relationship. Third, the trial court properly could have found that
the probative value of admitting the other act evidence was not
substantially outweighed by a danger of unfair prejudice because the
evidence did not have an undue tendency to suggest a decision on an
improper basis, such as emotion, sympathy, or horror. See State v. Hardy, 230 Ariz. 281, 290 ¶ 40 (2012). Consequently, the other act evidence was
properly admissible under Rule 404(b).

¶22 Even if the evidence was not admissible under Rule 404(b),
however, its admission was harmless. An error is harmless “if we can say,
beyond a reasonable doubt, that the error did not contribute to or affect the
verdict.” State v. Lizardi, 234 Ariz. 501, 506 ¶ 19 (App. 2014) (quoting State
v. Bible, 175 Ariz. 549, 588 (1993)). An error may be harmless when
overwhelming evidence of guilt exists. Id.

¶23 Any error did not affect the verdict because the evidence of
Sutter’s guilt was overwhelming. “A person commits sexual conduct with
a minor by intentionally or knowingly engaging in sexual intercourse . . .
with any person who is under eighteen years of age.” A.R.S. § 13–1405(A).
O.G. testified that when she was about 12, Sutter slid his hand into her
pants, touched her vagina, and “put one of his fingers inside [her].” O.G.
also testified that when she was 16, Sutter “shoved his penis inside me” in
2004 after her family moved to Eager. O.G. further testified that Sutter
emailed O.G. a poem stating that “I yearn to hold you. I crave your touch,
to whisper in your ear, to caress you softly, to press my lips against your
body. To bring you passionate pleasure makes me so very happy.”

¶24 O.G.’s parents testified that Sutter apologized for what he had
done and had asked for forgiveness. A fellow church member also testified
that Sutter thanked him “for bringing it out before it went any further.”

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And when a friend made Sutter aware of the charges after seeing them on
the internet, Sutter responded that “it’s something that happened 15 years
ago” and that “[i]t’s the statute of limitation, I thought it was up on stuff
like that but apparently not.”

¶25 Sutter also cross-examined O.G. and her family members
about the other acts and elicited testimony that when O.G. broke her arm,
the other kids had parents with them and he had stepped in to help because
O.G.’s parents were not there. O.G. also admitted that she did not keep any
of the gifts that she alleged Sutter gave her and her family members testified
that they did not remember seeing some of the gifts. Last, during
cross-examination of O.G., Sutter first introduced that he had helped O.G.
climb over a fence (without mentioning that he touched her bottom). The
State later elicited testimony from O.G.’s sister that Sutter touched her
bottom while helping O.G. climb the fence and Sutter elicited testimony
that O.G. did not remember this act. The evidence of Sutter’s guilt was
overwhelming.

¶26 Sutter nevertheless argues that the erroneous admission of
the other act evidence is not harmless because the prosecutor discussed the
other acts in closing argument and reminded the jurors about the various
gifts Sutter had given O.G. Sutter’s argument fails, however, because the
other acts were a small part of the evidence of Sutter’s guilt and, during
closing arguments, the State minimized the value of the gifts stating that “a
big deal is made about the gifts from the Defendant to [O.G.]. And that
doesn’t change what he did. Or whether he did it. Which is for you to
decide.” Because the evidence of Sutter’s guilt was overwhelming
regardless of the admission of the other acts, any error did not affect the
jurors’ verdicts.

3. Duplicitous Charge

¶27 Sutter argues that the introduction of other act evidence
through the testimony of the forensic interviewer created a duplicitous
charge which resulted in the possibility that the jurors reached a
non-unanimous verdict. “A criminal defendant has the constitutional right
to a unanimous jury verdict.” State v. West, 238 Ariz. 482, 488 ¶ 13 (App.
2015). A duplicitous charge “alleges multiple crimes due to the presentation
of evidence at trial[.]” State v. Butler, 230 Ariz. 465, 470 ¶ 13 (App. 2012). The
trial court can remedy any duplicity by requiring the State “to elect the act
which it alleges constitutes the crime, or instruct the jury that they must
agree unanimously on a specific act that constitutes the crime before the

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defendant can be found guilty.” State v. Klokic, 219 Ariz. 241, 244 ¶ 14 (App.
2008) (quoting State v. Schroeder, 167 Ariz. 47, 54 (App. 1990)).

¶28 The State remedied any duplicity by electing which acts
constituted the crimes charged. In closing arguments, the State told the
jurors that count two, sexual conduct with a minor under the age of 15,
occurred in 2001, “when the Defendant was 33 and [O.G.] was 13” and that
the “Defendant penetrated [O.G.’s] vagina with his finger.” The State
further told the jurors that count three, sexual conduct with a minor under
the age of 18, occurred in 2004, when “the Defendant laid her on the bed
and penetrated her vagina with his penis.” The State clearly specified which
acts constituted each count of sexual conduct with a minor, thereby curing
any potential duplicity that could lead to a non-unanimous verdict.

¶29 Additionally, even if the forensic interviewer’s testimony
created the potential for a non-unanimous verdict, Sutter invited the error.
The invited error doctrine prohibits a defendant from injecting error into
the trial and then profiting from it on appeal. State v. Robertson, 246 Ariz.
438, 440 ¶ 14 (App. 2019). Sutter invited any risk of a non-unanimous
verdict when he asked the forensic interviewer if O.G. told her that “all of
the incidents that took place in her particular case happened in Eager except
for one. Correct?” Further, the court told Sutter that it would offer a limiting
instruction or strike the testimony, if requested. Sutter, however, never
requested one. As a result, Sutter invited any potential duplicity error and
cannot profit from it on appeal.3

4. Prosecutorial Misconduct

¶30 Sutter argues that the prosecutor engaged in multiple acts of
misconduct during the trial and during his rebuttal closing argument. We
review any allegations of misconduct for either harmless error if Sutter
objected, or fundamental error if Sutter failed to object. See State v. Murray, 247 Ariz. 583, 589 ¶ 9 (App. 2019). To prevail on a claim of prosecutorial
misconduct, Sutter must show that misconduct occurred and a reasonable
likelihood exists that the misconduct could have affected the verdict. See id.
at ¶ 8. “Prosecutorial comments which are a fair rebuttal to areas opened
by the defense are proper.” State v. Alvarez, 145 Ariz. 370, 373 (1985).

3 Sutter’s argument that the court was required to give a curative jury
instruction fails because the State cured any duplicity. See Klokic, 219 Ariz.
at 244 ¶ 14.

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¶31 Sutter first argues that the prosecutor engaged in misconduct
by failing to instruct the forensic examiner to limit her testimony to one
incident of sexual conduct. Sutter argues that he was prejudiced “with the
risk of a non-unanimous verdict.” Because Sutter objected at trial only on
duplicitousness grounds, he waived all but fundamental error on appeal.
See Murray, 247 Ariz. at 589 ¶ 9. As previously discussed, the forensic
interviewer’s testimony did not prejudice Sutter because the prosecutor
remedied any potential duplicity during closing argument and Sutter
invited any error.

¶32 Sutter argues next that the prosecutor acted improperly by
injecting race into the trial without supporting evidence. The prosecutor’s
statements about O.G. being “from a poor Mexican family” and that Sutter
“was a rich, white guy” were proper because they were a fair rebuttal to
Sutter’s closing argument. During closing argument, Sutter argued, “[s]o
this rich, white guy, who ruined her life . . . turned her into a scorned
woman, is nothing but a rich, white guy. ‘We are poor Mexicans, and he is
a rich, white guy, and I’m going to get him.’” The prosecutor responded by
clarifying that O.G.’s statements about Sutter being a “rich, white guy” and
that she was “from a poor Mexican family” were made in the context of
O.G.’s asking herself why Sutter chose to engage in sexual conduct with
her. Because Sutter injected Sutter and O.G.’s ethnicities into his closing
argument first, the prosecutor’s rebuttal argument was proper. See Alvarez,
145 Ariz. at 373.

¶33 Sutter also argues that the prosecutor improperly argued that
the jurors should consider the prosecutor’s daughters. The prosecutor’s
statement was proper for two reasons. First, the prosecutor did not ask the
jurors to consider his daughter when reaching a verdict. Rather, he said that
“I have a 15-year-old daughter. Trust me, I’ve thought a lot about her over
the course of this case.” Second, the prosecutor’s statement was a rebuttal
to defense counsel’s closing argument. Defense counsel first injected his
family into the trial during opening statements, when he said, “I have a
grandson and a granddaughter who will play a role in this trial.” He
referred to his grandchildren again during closing arguments while
discussing fairness. The prosecutor’s comment about his family was made
in response to defense counsel’s comments; the prosecutor noted that
“[Defense counsel] spoke a few times about his family, his grand kids, and
I get that. I think it’s normal.” As a result, the prosecutor’s comment about
his family was a fair rebuttal to defense counsel’s comment and was thus
proper.

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¶34 The prosecutor’s request that the jurors “consider [their]
daughters and granddaughters” was improper. While “[a] prosecutor has
wide latitude in presenting arguments to the jury, . . . [he] cannot make
arguments that appeal to the fears or passions of the jury.” State v. Morris, 215 Ariz. 324, 337 ¶ 58 (2007). By telling the jurors to consider their
daughters and granddaughters, the prosecutor improperly appealed to
their fears and passions.

¶35 This statement, however, was harmless. First, the trial court
instructed the jurors that the lawyers’ statements in closing argument were
not evidence, and we presume that the jurors followed that instruction. See
State v. Newell, 212 Ariz. 389, 403 ¶ 68 (2006). Second, defense counsel’s
objection was sustained. Third, Sutter’s counsel did not move to strike the
comment. And while no jury instruction immediately followed the
sustained objection, the court instructed the jurors at the end of the trial that
if the court sustained an objection, they were to disregard the statement. We
also presume that the jurors followed that instruction. See id. at ¶ 69.

5. Motion to Vacate Judgment

¶36 Sutter argues that the trial court erred by denying his motion
to vacate the judgment. This Court lacks jurisdiction to consider Sutter’s
arguments for two reasons. First, Sutter did not appeal the trial court’s
denial of his motion to vacate the judgment. See Ariz. R. Crim. P. 31.2(c)(1);
(“A notice of appeal or cross-appeal must identify the order, judgment, or
sentence that is being appealed.”). Second, this Court lacks jurisdiction
because the trial court lacked jurisdiction to consider Sutter’s motion to
vacate the judgment. See Ex parte Coone, 67 Ariz. 299, 304 (1948); see also Webb
v. Charles, 125 Ariz. 558, 565 (App. 1980) (“[W]hen jurisdiction is lacking in
the trial court, it is lacking on appeal.”). The trial court lacked jurisdiction
to consider Sutter’s motion because he moved to vacate the judgment on
May 24, 2019, before sentencing was held on May 31, 2019. See State v. Saenz, 197 Ariz. 487, 489 ¶ 6 (App. 2000) (moving to vacate a judgment before the
court has entered judgment and sentence, is premature and cannot
proceed); see also Ariz. R. Crim. P. 24.2(b) (requiring that a motion to vacate
judgment be filed “no later than 60 days after the entry of judgment and
sentence”) (emphasis added).4

4 Sutter also argued that the trial court abused its discretion by
denying his motion for a new trial for the same reasons he raised on direct
appeal. Because we address those issues above and find no reversable error,

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CONCLUSION

¶37 For the foregoing reasons, we affirm.

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

the trial court did not abuse its discretion by denying Sutter’s motion for a
new trial.

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