In Re Ms2015-000003, 1 CA-MH 16-0083-SP

Background

Appellant, previously convicted of indecent exposure and attempted child molestation, faced an SVP petition filed April 21, 2015; probable cause was found and he was ordered transferred to ACPTC on release.
Trial was originally set within 120 days but was continued three times (first two at appellant's request or jointly; third over his objection) and finally held in October 2016 after incarceration/reincarceration events delayed proceedings.
At trial the State presented expert testimony (Dr. Barry Morenz) who relied on Appellant's extensive history of sexual and other misconduct to opine that Appellant has a mental disorder making him likely to reoffend.
The jury unanimously found Appellant to be a sexually violent person (SVP) and the superior court committed him to the Arizona Department of Health Services; Appellant appealed.
On appeal Appellant challenged (1) continuances beyond the 120-day statutory period, (2) admission of prior bad-act evidence, and (3) admission of hearsay relied upon by the State’s expert.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial continuances violated A.R.S. § 36‑3706 (120‑day rule)	Trial delayed beyond 120 days without good cause; prejudice from loss of timely treatment	First two continuances were at/with appellant; third was justified by appellant's reincarceration and court discretion	No reversible error; continuances were supported by reasons and court did not abuse discretion
Whether admission of prior bad acts violated Rule 404(b)	Prior acts were unfairly prejudicial and not probative of SVP status	Prior specific acts are admissible under Rule 405(b) because propensity to commit sexual violence is an essential element in SVP proceedings	Admission was proper: prior acts relevant to propensity and not barred by Rule 404(b)
Whether expert testimony violated hearsay rules by relying on out‑of‑court statements	Dr. Morenz relied on multiple hearsay to prove substantive facts, improperly inflating the State's case	Expert may rely on otherwise inadmissible facts under Rule 703; such facts may be disclosed for the basis of opinion and juries are instructed they are not substantive evidence	No fundamental error: Rule 703 permits reliance and court instructed jury to treat those statements only as basis for the expert opinion
Whether any errors were fundamental and prejudicial given lack of timely objections	Appellant contends cumulative effect denied fair trial	State contends no substantial prejudice; burden to show foundation-shattering error not met	Reviewed for fundamental error; appellant failed to show error that undermined fairness or shifted burden

Key Cases Cited

Henderson v. State, 210 Ariz. 561 (Ariz. 2005) (standard for fundamental error review and prejudice requirement)
Fuller v. Olson ex rel. County of Pinal, 233 Ariz. 468 (App. 2013) (delay in SVP processing can prejudice access to treatment and conditional release opportunities)
Ugalde v. Burke, 204 Ariz. 455 (App. 2003) (good‑cause balancing test for continuances beyond 120 days and list of factors to consider)
Davolt v. State, 207 Ariz. 191 (2004) (abuse of discretion standard for evidentiary rulings)
In re Leon G., 204 Ariz. 15 (App. 2002) (elements the State must prove in SVP proceedings regarding mental disorder and dangerousness)
In re Commitment of Jaramillo, 217 Ariz. 460 (App. 2008) (Rule 405(b) permits specific‑instance evidence to prove propensity in SVP cases)
State v. Lundstrom, 161 Ariz. 141 (1989) (Rule 703 governs expert reliance on otherwise inadmissible facts and limits their substantive use)
Monica C. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 89 (App. 2005) (application of fundamental error review in civil proceedings)