State v. Clow ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
PAUL PATRICK WAYNE CLOW, Appellant.
No. 1 CA-CR 16-0033
FILED 3-14-2017
Appeal from the Superior Court in Yavapai County
No. P1300CR201401153
The Honorable Tina R. Ainley, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee
Yavapai County Public Defender’s Office, Prescott
By Nicole S. Murray, Michelle DeWaelsche, John Napper
Counsel for Appellant
STATE v. CLOW
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer B. Campbell1 delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Margaret H. Downie
joined.
C A M P B E L L, Judge:
¶1 Paul Patrick Wayne Clow appeals his conviction and sentence
for continuous sexual abuse of a child, a class 2 felony. See Ariz. Rev. Stat.
(“A.R.S.”) § 13-1417 (2010).2 For the following reasons and those expressed
in a separate opinion, we affirm.3
FACTS AND PROCEDURAL BACKGROUND4
¶2 In July 2014, Clow placed an ad to rent out two rooms of his
house. The ad specifically stated that the space would accommodate a
single-parent family. The victim’s mother (“Mother”) was the first person
to respond to the ad, and she and her three sons, T.F. (age 10), J.F. (age 7 –
the victim), and A.F. (age 5), moved in on August 2, 2014. Because Mother
did not have rent money at the time of move-in, Clow agreed that Mother
could pay rent as soon as she was able.
1The Honorable Jennifer B. Campbell, Judge of the Arizona
Superior Court, has been authorized to sit in this matter pursuant to Article
VI, Section 3 of the Arizona Constitution.
2Absent material revisions after the relevant dates, statutes
and rules cited refer to the current version unless otherwise indicated.
3In
a separate Opinion, State v. Clow, 1 CA-CR 16-0033 (Ariz.
App. May 14, 2017), filed simultaneously with this memorandum decision
we reject Clow’s remaining arguments. See Ariz. R. Sup. Ct. 111; Ariz. R.
Crim. P. 31.26.
4We view the facts in the light most favorable to sustaining
the verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93, 314 P.3d 1239, 1264
(2013).
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STATE v. CLOW
Decision of the Court
¶3 Mother testified at trial that within a “couple [of] days,” she
began a sexual relationship with Clow, and Clow let the rent “slide.” Clow
also immediately became involved with the children, taking them to parks,
stores, and other outings. Clow also supervised the children while Mother
interviewed for jobs. By the end of August, Clow regularly participated in
the children’s bath and bedtime routines, including lying down with the
children and “rub[bing] their back[s] [to] help them to fall asleep.”
¶4 One night in early November, Mother was attempting to put
the children to bed when the victim stated he was going to sleep with Clow.
Mother told the victim “boys don’t sleep in men’s beds; that’s not right,”
and put the victim to bed in his own room. A half hour later, Clow
“barg[ed]” into Mother’s room and then immediately left, “slam[ming] the
door.” Unsure what triggered Clow’s outburst, Mother went into Clow’s
room, and he angrily said, “You just called me a[] [expletive] pervert.”
¶5 Based on this incident, as well as the “special attention” and
gifts Clow gave the victim, Mother suspected that something was “wrong.”
On November 9, 2014, while driving in the car with the children, Mother
asked the victim whether Clow had ever told him “to keep secrets from
mommy.” The victim answered “yes.” When Mother asked what type of
secrets, the victim answered that Clow had told him how to have sex. At
that point, Mother stopped the car and spoke with the victim outside the
presence of the other children. Mother asked the victim whether Clow had
touched him inappropriately and the victim stated that Clow had touched
his penis both over and under his clothing.
¶6 Mother immediately contacted the police. Officer J.W.
responded to Mother’s request for assistance and found Mother at the side
of the road, “completely upset, out of control,” and unable to convey “the
problem.” After speaking with Mother for a few minutes, Officer J.W.
understood that she believed one of the boys had been molested, and they
went to a nearby police station. At the station, Officer J.W. again attempted
to calm Mother and took her initial statement.
¶7 The next day, Detective P.E. conducted a forensic interview of
the victim. In response to questioning, the victim said Clow had touched
his “private part” and pointed to his genitals. When asked about the
frequency of the touching, the victim said Clow either touched the victim’s
penis or rubbed his own erect penis against the victim “every day.” At
Detective P.E.’s request, the victim drew several pictures showing where
Clow kept condoms and a “fake” penis in his bedroom and Clow’s conduct
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STATE v. CLOW
Decision of the Court
that the victim had seen. The victim told Detective P.E. that he really liked
Clow “until this happened.”
¶8 Detective P.E. then drafted a search warrant for Clow’s house.
The next morning, Detective W.P. conducted the search of Clow’s house,
seizing condoms, lubricants, and “finger cots,” which “resemble[d] small
condoms.” To ensure that the officers seized all relevant evidence, Detective
W.P. then invited the victim to participate in the search and identify any
other items relating to the sexual conduct. The victim opened Clow’s
dresser drawers looking for what he referred to as a “treasure chest” where
he had seen items that had already been collected by law enforcement.
¶9 The State charged Clow with one count of continuous sexual
abuse of a child. At trial, the victim testified that Clow repeatedly touched
and rubbed his penis and did so “about 24 times.” During follow-up
questioning, the victim clarified that he was unsure of the exact number of
times, but knew it happened “a lot.” The victim testified that Clow touched
his penis every day until Mother reported the touching to the police. At the
close of the State’s case in chief, Clow unsuccessfully moved for a judgment
of acquittal, claiming the evidence was insufficient to show that he sexually
abused the victim for three or more months, a statutory requirement for the
charged offense. See A.R.S. § 13-1417(A); Ariz. R. Crim. P. 20. Clow, who
elected to testify on his own behalf, testified that he was only alone with the
victim on one occasion during the entire period the victim’s family lived in
his house. Although he acknowledged the victim was the easiest child “to
relate to” and he spent a significant amount of time with the victim, Clow
denied inappropriately touching the victim.
¶10 After a five-day trial, the jury convicted Clow as charged. The
court sentenced Clow to a term of twenty-five years’ flat time in prison, an
aggravated sentence. Clow timely appealed. We have jurisdiction pursuant
to A.R.S. § 12-120.21(A)(1) (2016), A.R.S. §§ 13-4031 (2010), -4033(A)(1)
(2010).
DISCUSSION
¶11 Clow argues the trial court erred by permitting the State to
introduce inadmissible hearsay. Specifically, Clow challenges Detective
W.P.’s testimony recounting his conversation with the victim during the
search of Clow’s home and Detective P.E.’s testimony summarizing the
victim’s forensic interview. At times, Clow’s counsel made timely hearsay
objections to such testimony, and at times, he did not. We generally review
a trial court’s decision whether to allow witness testimony for an abuse of
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STATE v. CLOW
Decision of the Court
discretion. State v. Carlos, 199 Ariz. 273, 277, ¶ 10, 17 P.3d 118, 122 (App.
2001) (citation omitted). To the extent Clow failed to object, however, we
review solely for fundamental, prejudicial error. State v. Lopez, 217 Ariz. 433,
435, ¶ 4, 175 P.3d 682, 684 (App. 2008) (citations omitted).
¶12 Detective W.P. testified on direct examination, without
objection, that the victim made various statements regarding the location of
condoms and a “fake” penis when the detective invited him to help with
the search. Defense counsel likewise elicited testimony regarding the
victim’s statements to Detective W.P. The State contends that the victim’s
statements to Detective W.P. regarding the location of condoms and a
“fake” penis, introduced through the detective’s testimony, were non-
hearsay because the statements were not offered to prove the truth of the
matter asserted, but to demonstrate the effect the victim’s statements had
on the police officers. Because the only relevance of the statements was to
bolster the victim’s testimony Detective W.P.’s testimony was, therefore,
hearsay.
¶13 In this case, however, the victim testified on direct
examination that he had shown the detectives the location of certain sexual
items in Clow’s bedroom. Accordingly, the detective’s testimony, although
hearsay to which a timely objection properly may have been sustained, was
merely cumulative. Thus, Clow has failed to demonstrate prejudice for
purposes of fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶
20, 115 P.3d 601, 607 (2005) (under fundamental error review, error must be
of a magnitude that the defendant could not receive have received a fair
trial) (citation omitted).
¶14 Detective P.E. testified in detail, and without objection, about
various aspects of the victim’s statements, repeatedly referring to the
forensic interview transcript to refresh her recollection. Over objection,
Detective P.E. also testified that the victim explained how Clow touched his
penis manually both over and under his clothing. On cross-examination,
defense counsel elicited testimony that the victim stated he believed Clow
would go to jail and knew Clow molested him twenty-four times because
he could “just remember.”
¶15 The State also asserts Detective P.E.’s testimony, relaying the
victim’s forensic interview statements, was admissible under the residual
hearsay exception. See Ariz. R. Evid. 807. Although the State argues
Detective P.E.’s testimony was more probative on the nature of the sexual
abuse than the victim’s testimony, see Ariz. R. Evid. 807(a)(3), the record
does not substantiate this argument. Nor does the record reflect that the
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STATE v. CLOW
Decision of the Court
victim “was having trouble remembering” the sexual abuse. On this record,
there is no basis to conclude that Detective P.E.’s testimony was more
probative regarding the sexual abuse than the victim’s testimony.
¶16 Given the victim’s testimony, however, this portion of
Detective P.E.’s testimony was improper, but cumulative. Stated
differently, all the salient evidence presented through Detective P.E.’s
testimony was first introduced through the victim’s own testimony, and he
was subjected to thorough cross-examination. See State v. Hoskins, 199 Ariz.
127, 144, ¶ 66, 14 P.3d 997, 1014 (2000) (admission of improper testimony
by detective regarding witness’s statements constituted harmless error
when statements were also included in witness’s own testimony and
witness was subjected to thorough cross-examination) (citation omitted).
We conclude beyond a reasonable doubt that the statements admitted over
objection did not contribute to or affect the verdict or sentence in this
matter. Henderson, 210 Ariz. at 567, ¶ 18, 115 P.3d at 607. Nor has Clow
shown that the testimony admitted, without objection, was prejudicial
under a fundamental error review. Id. at 567-68, ¶¶19-20, 115 P.3d at 607-
08.
CONCLUSION
¶17 Clow’s conviction and sentence are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
6