State of Arizona v. Raul Herrera III, 232 Ariz. 536

Background

Raul Herrera was convicted after jury trial of sexual conduct with a minor (two counts), sexual exploitation of a minor (one count), and kidnapping; sentenced to consecutive presumptive terms totaling 60.5 years.
Pretrial the State disclosed and sought to admit multiple uncharged "other-act" items: videotape segments and still images of the victim (A.M.) nude or exposed, and testimony about prior acts in Yuma where Herrera allegedly had the victim masturbate him.
Trial courts initially admitted portions of the material as intrinsic evidence; on appeal the supreme court’s Ferrero decision required reconsideration of the intrinsic-evidence test, so this court remanded for a Rule 404(c) hearing.
On limited remand the trial court found the evidence was not intrinsic under Ferrero but nonetheless admissible under Rule 404(c) as showing an aberrant sexual propensity; the court made credibility findings based on trial testimony and exhibits.
Herrera challenged: (1) propriety of the limited remand, (2) admissibility of other-act evidence under Rule 404(c), (3) admission of computer hard-drive image testimony, (4) giving of a sexual-propensity instruction, (5) exclusion of the victim’s prior sexual history under the rape‑shield statute (A.R.S. §13-1421), and (6) expert testimony by Wendy Dutton about rates/characteristics of false allegations.

Issues

Issue	State's Argument	Herrera's Argument	Held
Remand to trial court to decide 404(c) admissibility	Limited remand appropriate to allow trial court to apply Ferrero and make credibility findings	Remand improper; Ferrero forbids post-appeal 404(c) hearing and scope was too limited	Remand proper; case-by-case limited remand permissible and was appropriate here
Admissibility of other-act evidence (videotapes, Yuma acts) under Rule 404(c)	Evidence satisfied 404(c): sufficient proof of acts, supports inference of aberrant sexual propensity, probative value outweighs prejudice	Insufficient foundation; acts too few/dissimilar; unfairly prejudicial	Trial court did not abuse discretion — evidence admissible under Rule 404(c) on the record presented
Admission of testimony about many sexual images on Herrera’s hard drive	Testimony responsive to defense questioning; error invited by defense	Testimony was fundamental error and prejudicial	Any error invited by defense; not considered reversible here
Expert testimony (Dutton) about percentages and typical perpetrators	Testimony not about the particular victim; any improper statistical testimony was harmless given other evidence	Dutton improperly vouched for victim and invaded jury province; fundamental error	Some testimony improper under Lindsey but not fundamental; no reversible prejudice given other evidence and instructions
Rape‑shield exclusion of victim’s prior sexual history (same-sex relationship / consensual sex)	Prior sexual history irrelevant, prejudicial, not material under §13-1421	Evidence relevant to credibility and impeaching the victim; statute unconstitutional	Exclusion was proper; evidence irrelevant and §13-1421 constitutionality rejected as previously decided
Propensity instruction with initially-admitted intrinsic evidence	Instruction proper if evidence ultimately admitted as propensity evidence under 404(c)	If evidence was intrinsic, propensity instruction was improper	No reversible error: court later found evidence admissible under 404(c); instruction proper and not fundamentally prejudicial

Key Cases Cited

State v. Ferrero, 229 Ariz. 239 (2012) (clarified Arizona test for when other-act evidence is intrinsic)
State v. Hargrave, 225 Ariz. 1 (2010) (discusses limits on use of other-act evidence and propensity instructions)
State v. Dixon, 226 Ariz. 545 (2011) (Rule 404(c) sufficiency determination requirement)
State v. Aguilar, 209 Ariz. 40 (2004) (trial court must assess victim credibility when making 404(c) findings)
State v. Lindsey, 149 Ariz. 472 (1986) (expert testimony should not quantify or vouch for witness credibility)
State v. Henderson, 210 Ariz. 561 (2005) (standard for fundamental error review)
State v. Boteo-Flores, 230 Ariz. 551 (2012) (appellate court affirms trial court if ruling correct for any reason)