State v. Littlehale

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DAVID WALKER LITTLEHALE, Appellant.

No. 1 CA-CR 21-0197
FILED 3-29-2022

Appeal from the Superior Court in Yavapai County
No. P1300CR201901296
The Honorable Krista M. Carman, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee

Law Offices of Stephen L. Duncan PLC, Scottsdale
By Stephen L. Duncan
Counsel for Appellant
 STATE v. LITTLEHALE
Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Samuel A. Thumma joined.

B R O W N, Judge:

¶1 David Walker Littlehale appeals his convictions and
sentences for kidnapping, tampering with physical evidence, and sexual
assault. For the following reasons, we affirm.

BACKGROUND

¶2 As 15-year-old M.H. was walking to a friend’s house after
school, Littlehale forced her into his car and threatened to kill her if she
screamed. Ignoring M.H.’s pleas to pull over, Littlehale drove home, where
he physically and sexually assaulted her. Littlehale repeatedly threatened
M.H. that he was going to kill her. At one point, Littlehale took M.H. to the
bathroom where he urinated on her hair and in her mouth. When M.H.
“spit it out,” Littlehale told her, “I didn’t tell you to spit it out.”

¶3 M.H. fought back and eventually fled naked to a neighbor’s
house, where she hid until help arrived. Knowing “the police were going
to be at the house at some point,” Littlehale then collected M.H.’s clothes,
put them in his car, and parked the car away from his house.

¶4 Police later interviewed Littlehale, and he confessed to
“sexually assault[ing]” M.H. “in a couple different ways.” Littlehale
admitted that he touched her vagina multiple times, and that he made her
perform oral sex on him. At trial, M.H. confirmed Littlehale’s admissions,
and she also testified that he digitally penetrated her vagina and anus.
Littlehale also admitted he told M.H. she was not free to leave his house,
and that he tried to “get rid of” M.H.’s clothes after she got away.

¶5 The State charged Littlehale with one count each of attempted
first-degree murder, kidnapping, and tampering with physical evidence,
and four counts of sexual assault. The jury failed to reach a verdict on the
attempted first-degree murder charge but convicted Littlehale of the
remaining counts. After an aggravation phase and finding Littlehale had
two historical prior felony convictions, the superior court imposed a
combination of concurrent and consecutive aggravated sentences that total

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 STATE v. LITTLEHALE
Decision of the Court

100 years’ imprisonment. Littlehale timely appealed, and we have
jurisdiction under A.R.S. § 12-120.21(A)(1).

DISCUSSION

A. Other Acts Evidence

¶6 Littlehale argues the superior court erred by admitting
evidence that he urinated on the victim. He contends the uncharged act of
urination was a separate and distinct act from the charged sexual assaults
and was therefore inadmissible under Arizona Rule of Evidence (“Rule”)
404(c). We review for an abuse of discretion because Littlehale objected to
the evidence at trial on Rule 404(c) grounds. State v. Connor, 215 Ariz. 553,
563, ¶ 32 (App. 2007).

¶7 Generally, “evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action or
conformity therewith.” Rule 404(b)(1). One exception applies in cases
where a defendant is charged with a sexual offense: “[E]vidence of other
crimes, wrongs, or acts may be admitted by the court if relevant to show
that the defendant had a character trait giving rise to an aberrant sexual
propensity to commit the offense charged.” Rule 404(c). Before admitting
evidence under Rule 404(c), the court must find that “[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.” Rule 404(c)(1)(C); see also State v. Ferrero, 229 Ariz. 239, 242, ¶ 11 (2012)
(when evidence of a prior similar sex offense committed against the same
child is offered to prove a defendant’s aberrant propensity to commit the
charged sexual offense, “the evidence must be screened under Rule 404(c)”
before it is admitted).

¶8 Littlehale argues that the prejudice of the urination testimony
far outweighs any probative value. He also faults the superior court for
failing to make specific findings on the record as required by the rule. See
Rule 404(c)(1)(D) (“The court shall make specific findings with respect to
each of (A), (B), and (C) of Rule 404(c)(1).”).

¶9 Because Rule 404(b) and Rule 404(c) pertain to “other acts,”
those rules do not determine the admissibility of acts that are “so closely
related to the charged act that they . . . are part of the charged act itself.”
Ferrero, 229 Ariz. 239 at 242, ¶ 14 (quotation omitted). Such admissible
evidence, known as “intrinsic” evidence, must either directly prove the
charged act, or have been performed contemporaneously with and directly
facilitated the commission of the charged act. Id. at 243, ¶ 19.

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 STATE v. LITTLEHALE
Decision of the Court

¶10 Here, neither Rule 404(b) nor (c) were implicated because the
evidence that Littlehale urinated on the victim was not other-act evidence
admitted to prove his propensity to commit the charged sexual offenses.
Rather, M.H. testified about Littlehale’s behavior, including the urination,
which illustrated his control over her. That is, the evidence directly
established Littlehale’s knowing restraint of M.H. without her consent.
Thus, the urination evidence was intrinsic evidence of the kidnapping. See
A.R.S. § 13-1304(A) (“A person commits kidnapping by knowingly
restraining another person . . . .”); Ferrero, 229 Ariz. at 242, ¶ 14. The
superior court properly overruled Littlehale’s Rule 404(c) objection and was
not required to make specific findings on the record.

B. Photographs

¶11 Littlehale challenges the superior court’s admission of two
photographs taken after his arrest that depict him handcuffed in the police
interview room. Acknowledging that the pictures were “ostensibly”
admitted to demonstrate his injured hands and thereby corroborate M.H.’s
testimony, Littlehale suggests the court should have sua sponte redacted the
photographs “to remove the visible handcuffs.” See State v. Hardy, 230 Ariz.
281, 292, ¶ 54 (2012) (noting that a criminal defendant generally “has a right
to appear in civilian clothing and be free from visible restraints in a
courtroom during trial”).

¶12 The parties dispute the applicable standard of review.
Littlehale contends we must review for an abuse of discretion, State v.
Spreitz, 190 Ariz. 129, 142 (1997) (trial courts have broad discretion in
admitting photographs), while the State argues Littlehale’s “general”
objection at trial did not preserve the issue for appeal absent fundamental
error, see State v. Escalante, 245 Ariz. 135, ¶ 1 (2018). Because we conclude
that the record does not reveal any prejudice resulting from admission of
the photographs, resolving the dispute is unnecessary. See Escalante, 245
Ariz. at 142, ¶ 21 (to prevail under fundamental error review, defendant has
the burden of establishing prejudice); Spreitz, 190 Ariz. at 142 (“[E]ven if the
trial court abused its discretion in admitting the photographs, we need not
reverse or remand if this error was harmless.”). For the same reason, we
need not determine whether admitting the unredacted photographs was
error.

¶13 By the time the photographs were admitted into evidence, the
jury had already viewed, without objection, Littlehale’s recorded police
interview during which he was visibly handcuffed. Any prejudicial impact
of the photographs was therefore mitigated, if not entirely eliminated.

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 STATE v. LITTLEHALE
Decision of the Court

More importantly, however, the State presented overwhelming evidence of
Littlehale’s guilt absent the photographs. State v. Burns, 237 Ariz. 1, 15,
¶ 38 (2015) (explaining that error is harmless when evidence of guilt is
overwhelming). As noted, Littlehale confessed to kidnapping the victim,
sexually assaulting her, and then hiding her clothes from police. The victim
provided additional detailed and largely undisputed testimony supporting
each conviction. And M.H.’s physical exam, conducted the day after the
offenses were committed, indicated that she had suffered sexual and
physical abuse. We therefore conclude beyond a reasonable doubt that any
error in admitting the photographs did not contribute to or affect the
verdicts. See State v. Davolt, 207 Ariz. 191, 209, ¶ 64 (2004).

CONCLUSION

¶14 We affirm Littlehale’s convictions and sentences.

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

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