State v. Gilligan ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JERRY GILLIGAN,
Appellant.
No. 1 CA-CR 20-0617
FILED 3-8-2022
Appeal from the Superior Court in Mohave County
No. S8015CR201601305
The Honorable Billy K. Sipe, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Eliza C. Ybarra
Counsel for Appellee
Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
STATE v. GILLIGAN
Decision of the Court
MEMORANDUM DECISION
Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Brian Y. Furuya and Judge Jennifer M. Perkins joined.
W E I N Z W E I G, Judge:
¶1 Jerry Gilligan appeals his felony convictions and sentences for
three counts of sexual conduct with a minor under 12, two counts of
kidnapping, two counts of sexual assault, two counts of aggravated assault
and one count of sexual exploitation of a minor. For the following reasons,
we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 We view, and thus recount, the facts in the light most
favorable to sustaining the jury’s verdicts. See State v. Payne, 233 Ariz. 484,
509, ¶ 93 (2013).
¶3 Gilligan met and married the first victim (“Wife”) in 2014. He
was in his late sixties and just released from prison. Wife was 36 years old
and had a 10-year-old son, the second victim. Months later, Gilligan and
his victims moved into the same home.
¶4 Almost immediately, Gilligan sexually abused the child, and
the abuse continued until September 2016, when Wife caught Gilligan in
the act. An argument ensued, unleashing four days of terror. Gilligan
threatened to kill both of his victims if either left the home. He beat Wife
with a wooden rod, tased her in the chest, bound her and the child with
ropes, used a syringe to inject battery acid into her eyes, and threatened to
cut her genitals with a knife. And it got worse. We spare the haunting
details, but Gilligan forced his victims at knifepoint to perform sexual acts
on one another. He recorded nearly four minutes of this unimaginable
horror on Wife’s cellphone, which ends when he turns the camera on
himself. Gilligan later shaved his victims’ heads and tried forcing
methamphetamine down Wife’s throat.
¶5 After four days, Wife convinced Gilligan that she needed
medical treatment for her eye injuries, so Gilligan accompanied her to the
emergency room. A nursing assistant examined Wife, whom she described
as “very scared” and “nervous.” A nurse asked Wife about her eye injuries,
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Decision of the Court
but Gilligan answered for Wife in an “aggressive” tone. Wife twice
whispered for hospital staff to call the police.
¶6 Kingman police were contacted, and Officer Huerta
responded to the emergency room, where he met Wife and Gilligan. He
described Wife as “look[ing] terrified.” He asked Gilligan to wait in the
hospital lobby so he could interview Wife alone. Once Gilligan left, Wife
urgently told the officer what had happened and showed him some of her
injuries. Wife added that her child, the second victim, was at home alone.
Officer Huerta radioed for backup. He also asked the hospital staff to
ensure Gilligan did not leave the building. Gilligan had already left the
hospital building and was driving home, but a second police officer
apprehended him.
¶7 Kingman police later searched the home and found copious
evidence to incriminate Gilligan. Police located video evidence of Gilligan’s
sexual abuse on Wife’s cell phone. Police interviewed the stepson, who
confirmed the abuse. Gilligan denied it all. Confronted with the video
evidence, Gilligan claimed police had it backwards: He caught Wife
sexually abusing her son and recorded it. At the same time, he admitted
having “blank[-]out” periods and said he might have been high on drugs.
¶8 The State ultimately charged Gilligan with 18 felony counts.
The jury convicted him of 10 counts, including three counts of sexual
conduct with a minor, two counts of kidnapping, two counts of sexual
assault, two counts of aggravated assault and one count of sexual
exploitation of a minor by domestic violence. It found seven of the counts
to be dangerous crimes against children, and three counts to be dangerous
offenses. The jury found all counts to be domestic violence offenses. The
superior court sentenced Gilligan to three consecutive terms of life
imprisonment, along with a consecutive aggregate term of 62.5 years’
imprisonment. Gilligan appeals his conviction and sentences. We have
jurisdiction. See Ariz. Const. art. 6, § 9; A.R.S. §§ 12-120.21(A)(1), 13-4031, -
4033(A).
DISCUSSION
¶9 Gilligan raises four issues on appeal.
I. Preclusion of Evidence
¶10 Gilligan first contends the superior court erroneously
excluded evidence that Wife had falsely accused her stepfather of sexual
assault and acted in “homemade amateur pornography.” We review the
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Decision of the Court
court’s ruling on the admissibility of evidence for an abuse of discretion,
State v. Herrera, 232 Ariz. 536, 549, ¶ 38 (App. 2013), and may affirm the
ruling on any basis supported by the record, State v. Robinson, 153 Ariz. 191,
199 (1987). Constitutional issues are reviewed de novo. State v. Goudeau,
239 Ariz. 421, 440, ¶ 35 (2016).
¶11 Arizona’s rape-shield statute generally prohibits a criminal
defendant from introducing evidence at trial “relating to a victim’s
reputation for chastity and opinion evidence relating to a victim’s chastity.”
A.R.S. § 13-1421. The statute “protect[s] victims of rape from being exposed
at trial to harassing or irrelevant questions concerning any past sexual
behavior.” State v. Gilfillan, 196 Ariz. 396, 400–01, ¶¶ 15–16 (App. 2000),
overruled on other grounds by State v. Carson, 243 Ariz. 463, 465–66, ¶¶ 10–13
(2018). The rape-shield statute identifies “five exceptions to this broad
ban,” id. at 401, ¶ 16, which permit the admission of “[e]vidence of specific
instances of the victim’s prior sexual conduct,” A.R.S. § 13-1421(A).
¶12 Gilligan contends that Wife’s prior rape accusations and
homemade pornography should have been admitted as evidence under
two exceptions: (1) “[e]vidence of false allegations of sexual misconduct
made by the victim against others,” and (2) “[e]vidence that supports a
claim that the victim has a motive in accusing the defendant of the crime.”
See A.R.S. § 13-1421(A)(3), (5). Both exceptions require the defendant to
offer clear and convincing evidence that (1) the exception applies, (2) the
proposed evidence is relevant and “material to a fact in issue,” and (3) “the
inflammatory or prejudicial nature of the evidence does not outweigh the
probative value of the evidence.” See A.R.S. § 13-1421(A), (B). The court
determines whether an exception applies “after a hearing on written
motions” to ensure “procedural safeguards to reduce inaccuracies and
prejudicial evidence,” protecting victims from “harassing or irrelevant
questions concerning any past sexual behavior.” Gilfillan, 196 Ariz. at 403,
¶¶ 21, 22.
¶13 The superior court did not err. It appropriately excluded
proposed evidence that Wife “falsely accused” her stepfather of rape in
2014 because Gilligan presented no evidence, much less clear and
convincing evidence, that Wife ever accused her stepfather of rape. Id. at
404–05, ¶¶ 29–32. In the 2014 police report, Wife claimed her stepfather
entered her room at night naked and tried to kiss her on the mouth. When
law enforcement asked her if her stepfather had forced her to have sex with
him, she said he never had. During the police interview, Wife confirmed
having no clear memory of whether anything had occurred at the time. As
for Wife’s 2003 reports of sexual misconduct, Gilligan presented no
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Decision of the Court
evidence the reports were “demonstrably false.” See State v. Hutchinson, 141
Ariz. 583, 587 (App. 1984) (prior rape accusation made seven years ago was
remote in time and defense could show no evidence it was
unsubstantiated). Wife told police her stepfather had groped her breasts
and entered her room in the middle of the night when she was about 20
years old. But nothing in the record proved that her allegation was
false. The court properly excluded the evidence.
¶14 So too, it appropriately excluded evidence of Wife’s prior
“homemade amateur pornography.” Gilligan contends this evidence
proved Wife had a motive to fabricate the charges against him because she
wanted to start her own pornography business and needed to “get
[Gilligan] out of the way.” Hardly. First, the evidence had no probative
value on any material fact at issue. See Ariz. R. Evid. 403. The record shows
no relationship or connection between Wife’s private affairs and the
shocking crimes of which Gilligan was charged, tried and convicted. See
State ex rel. Montgomery v. Duncan, 228 Ariz. 514, 516, ¶ 7 (App. 2011).
Second, the superior court occupies the best seat to balance probative value
and unfair prejudice. State v. Harrison, 195 Ariz. 28, 33, ¶ 21 (App. 1998).
Third, Gilligan did not meet the statute’s procedural requirements. See
A.R.S. § 13–1421(B) (requests must be made by written motion). And he
never explained this failure. Discerning no error, we affirm.
II. Mental Health Records of the Victims
¶15 Gilligan next contends the superior court erroneously denied
his motion to compel both victims to disclose their mental health records.
We review evidentiary rulings for an abuse of discretion, State v. Kellywood,
246 Ariz. 45, 47, ¶ 5 (App. 2018), but review constitutional issues de novo,
R.S. v. Thompson, 251 Ariz. 111, 116, ¶ 10 (2021).
¶16 As a threshold matter, Gilligan waived this issue on appeal
because he never sought the records from the third parties who controlled
them. See Cont’l Lighting & Contracting, Inc. v. Premier Grading & Utils., LLC,
227 Ariz. 382, 386, ¶ 12 (App. 2011) (“If the argument is not raised below so
as to allow the trial court [] an opportunity [to rule on it], it is waived on
appeal.”).
¶17 Even assuming he preserved the argument, it would be
rejected because Gilligan does not begin to meet the requirements for
disclosure. First, he neither demonstrated “a substantial need for the
material or information to prepare” his defense, nor established he “cannot
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obtain the substantial equivalent by other means without undue hardship.”
Ariz. R. Crim. P. 15.1(g)(1).
¶18 Second, his request was overbroad and unspecific, generally
seeking “all relevant medical, educational, and mental health records” of
the victims. See State v. Dunbar, 249 Ariz. 37, 49, ¶ 29 (App. 2020) (denial of
motion to compel disclosure was proper where it failed to list providers,
spanned over 15 years, and was not limited to information necessary to the
defense). He did not identify specific providers or agencies. See id.¶19 Third, the Arizona Constitution enshrines a victim’s right to
refuse a criminal defendant’s discovery request. See Ariz. Const. art. II, §
2.1(A)(5); Thompson, 251 Ariz. at 114, ¶ 19 (“A crime victim’s right to refuse
a discovery request generally includes the right to refuse to disclose medical
records.”). When a defendant requests disclosure of a victim’s medical
records, this “will almost inevitably clash with a victim’s rights.” Dunbar,
249 Ariz. at 48, ¶ 26. Gilligan does not explain how the evidence is relevant
or why the court should disregard the victims’ constitutional rights in favor
of disclosure. See Thompson, 251 Ariz. at 114, ¶ 21 (defendant seeking
privileged mental health records must make “requisite constitutional
showing” to overcome victim’s right to refuse disclosure).
III. Duplicitous Indictment
¶20 Gilligan next argues the superior court erroneously refused
his request for a multiple acts jury instruction because the kidnapping
counts were duplicitous. We review the court’s denial of a requested jury
instruction for an abuse of discretion. See State v. Bolton, 182 Ariz. 290, 309
(1995).
¶21 If the state “charges two or more distinct and separate
offenses in a single count,” the superior court must take curative measures
to prevent a nonunanimous verdict. State v. Schroeder, 167 Ariz. 47, 51 (App.
1990). One measure is a multiple acts instruction, which informs “the jury
that they must agree unanimously on a specific act that constitutes the
crime before the defendant can be found guilty.” State v. Klokic, 219 Ariz.
241, 244, ¶ 14 (App. 2008) (citation omitted).
¶22 A curative instruction is not needed, however, “when the
defendant offers essentially the same defense to each of the acts and there
is no reasonable basis for the jury to distinguish between them.” Id. at 245,
¶ 18 (citation omitted). In that event, the jury need not reach a “unanimous
verdict on the precise manner in which the act was committed.” State v.
Encinas, 132 Ariz. 493, 496 (1982).
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STATE v. GILLIGAN
Decision of the Court
¶23 The superior court did not abuse its discretion here because
the kidnapping charges were not duplicitous. See State v. O’Laughlin, 239
Ariz. 398, 400, ¶ 5 (App. 2016). Gilligan was charged with two counts of
kidnapping, one count per victim. The state presented evidence that he
restrained each victim for the purpose of committing a series of sexual
offenses. See A.R.S. § 13-1304(A)(3) (elements of kidnapping). Although
Gilligan used various methods and degrees of restraint over several days,
these acts could be considered part of a single criminal transaction. See
Klokic, 219 Ariz. at 244, ¶ 15. Nor was Gilligan prevented from defending
against each act. Second, the superior court did instruct the jury that each
kidnapping count was “a separate and distinct offense,” and informed the
jury it had to reach a unanimous decision on “each count separately on the
evidence.” Third, the jury received different verdict forms for each
kidnapping count. The jury was properly instructed, and we presume the
jury followed its instructions to reach unanimous verdicts. See State v.
Newell, 212 Ariz. 389, 403, ¶ 68 (2006).
IV. Flight or Concealment Instruction
¶24 Gilligan argues the superior court erred by giving the
standard flight or concealment jury instruction. We review the court’s
decision to give a jury instruction for an abuse of discretion. State v. Solis,
236 Ariz. 285, 286, ¶ 6 (App. 2014). The court may provide a jury instruction
“on any theory reasonably supported by the evidence.” State v. Rodriguez,
192 Ariz. 58, 61, ¶ 16 (1998). We affirm. Given the overwhelming direct
evidence against Gilligan presented to the jury, including video evidence,
any error was harmless. See State v. Anthony, 218 Ariz. 439, 446, ¶ 41 (2008)
(“We can find error harmless when the evidence against a defendant is so
overwhelming that any reasonable jury could only have reached one
conclusion.”).
CONCLUSION
¶25 We affirm Gilligan’s convictions and resulting sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
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