State v. Herrera, 226 Ariz. 59

Background

Herrera was convicted in 2008 after a jury trial of two counts of sexual conduct with a minor under fifteen, one count of sexual exploitation of a minor under fifteen, and one count of kidnapping; two related counts were acquitted, and the court imposed a total of 60.5 years in prison.
The State sought to admit other-acts evidence, including a videotape of the victim with her breasts exposed and the victim’s statements describing uncharged acts, which Herrera challenged under Rule 404 and 404(c).
Judge Cruikshank admitted two videotape portions as intrinsic to the charged offenses and admitted the victim’s statements about other acts; Judge Campoy later limited foundation for genitalia images but found one image admissible after victim identification.
Herrera challenged the inclusion of Yuma Acts (pre-indictment acts) as intrinsic to timing and context of the charged offenses; the trial courts admitted them as intrinsic or, alternatively, admissible under Rule 404(c).
The State's expert Wendy Dutton testified about false allegations; Herrera did not object, and the court ultimately found any error non-fundamental, affirming the convictions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admission of other-acts evidence was proper	Herrera argues not intrinsic; should be analyzed under Rule 404/404(c).	State contends acts were intrinsic or closely linked to offenses and relevant under 404(c).	Court affirmed admission as intrinsic, also proper under 404(c); no reversible error.
Propensity instruction on other-acts evidence	Instruction improperly allowed propensity consideration without proper 404(c) analysis.	Instruction appropriately instructed jurors on evaluating probative value and limiting use.	Not fundamental error; instruction upheld given admissibility of evidence and jury instruction limiting use.
Admissibility of victim's prior sexual history under § 13-1421(A)	Victim's prior sexual conduct should be admissible to impeach credibility under rape-shield law.	Trial court properly found evidence irrelevant and immaterial under § 13-1421; door opened insufficiently if at all.	Trial court’s preclusion of prior sexual history affirmed; evidence deemed irrelevant and not probative under § 13-1421.
Constitutionality of § 13-1421	Challenged as unconstitutional on confrontation, separation of powers, and rulemaking grounds.	Statute constitutional; existing precedent supports validity.	Court rejected constitutional challenges; § 13-1421 upheld consistent with Gilfillan.
Expert testimony invading jury province	Dutton’s testimony quantified false-claim rates and perpetrators, improperly prejudicing the jury.	Error, if any, was invited; testimony viewed in context and not fundamental.	Any improper testimony was not fundamental error; there was ample extrinsic evidence of guilt; no relief awarded.

Key Cases Cited

State v. Nordstrom, 200 Ariz. 229 (2001) (intrinsic-extrinsic distinction in other-acts evidence; timing relevant)
State v. Garcia, 200 Ariz. 471 (2001) (intrinsic evidence; cautions on 404(c) application)
State v. Beasley, 205 Ariz. 334 (App.2003) (improper findings under 404(b) not required where intrinsic)
State v. Hargrave, 225 Ariz. 1 (2010) (propensity instruction and aberrant sexual propensity analysis)
State v. Lindsey, 149 Ariz. 472 (1986) (bar on expert credibility testimony; quantifying likelihood prejudicial)
State v. Henderson, 210 Ariz. 561 (2005) (fundamental error standard for nonobjected errors)
State v. Gilfillan, 196 Ariz. 396 (App.2000) (rape-shield and admissibility; standard for § 13-1421)
State v. Trotter, 110 Ariz. 61 (1973) (prior sexual conduct relevance and credibility considerations)
State v. Roberts, 139 Ariz. 117 (App.1983) (witness credibility and prior conduct relevance)
State v. Dalyn, Garcia, 200 Ariz. 471 (2001) (reaffirmation of intrinsic-evidence understanding)