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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE MS2015-000003

No. 1 CA-MH 16-0083 SP

Appeal from the Superior Court in Maricopa County

No. MS2015-000003

The Honorable Edward W. Bassett, Judge, Retired

AFFIRMED

COUNSEL

Maricopa County Attorney's Office, Phoenix

By Kyra Goddard

Counsel for Appellee

The Stavris Law Firm, PLLC, Scottsdale

By Christopher Stavris

Counsel for Appellant

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Jon W. Thompson and Judge Jennifer B. Campbell joined.

FILED 9-21-2017
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B R O W N, Judge:

¶1 Appellant challenges the superior court's order committing 

him to the custody of the Arizona Department of Health Services after a 

jury found him to be a sexually violent person ("SVP"). Appellant argues 

the superior court erred by (1) continuing his trial beyond the 120-day

timeframe set forth in Arizona Revised Statutes ("A.R.S.") § 36-3706, (2) 

admitting evidence of Appellant's prior bad acts, and (3) allowing hearsay 

evidence to be introduced through the testimony of the State. Finding no 

reversible error, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Appellant was previously convicted of indecent exposure to 

a minor in 2001 and placed on probation. He was convicted of attempted 

child molestation in 2010 and sentenced to prison. Appellant's scheduled 

release date from the Arizona Department of Corrections ("ADOC") was 

April 25, 2015. On April 21, 2015, the State filed a petition requesting that 

the court find probable cause to declare Appellant an SVP pursuant to 

A.R.S. § 36-3704. Three days later, the court found probable cause to believe 

Appellant was an SVP and ordered that Appellant be transported to the 

Arizona Community Protection and Treatment Center ("ACPTC") upon his 

release from prison. Following a probable cause hearing in June 2015, the 

superior court re-affirmed its finding that there was probable cause to 

sustain the petition. After several delays, the case proceeded to trial in 

October 2016.

¶3 Dr. Barry Morenz, a licensed psychiatrist, testified at trial on 

behalf of the State. The jury unanimously found Appellant to be an SVP

and Appellant timely appealed from the superior court’s subsequent 

commitment order. We have jurisdiction over this appeal under Article 6, 

Section 9, of the Arizona Constitution and A.R.S. § 12-2101(A)(10).

DISCUSSION

A. Trial Continuances

¶4 Appellant argues the superior court erred by not conducting 

a trial within 120 days, as required by A.R.S. § 36-3706, which provides as 

follows:

Within one hundred twenty days after a petition is filed 

pursuant to § 36–3704, the court shall conduct a trial to 

determine if the person named in the petition is a sexually 
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violent person. . . . The judge may continue the trial at the 

request of either party on a showing of good cause or on its 

own motion if the person will not be substantially prejudiced.

¶5 Trial was originally scheduled for August 24, 2015, but was 

continued to November 16 at the request of Appellant's counsel, as counsel 

was recently appointed to the case. Prior to the November trial date, given 

that the State was apprised that Appellant could have new charges pending 

and his second chair attorney would be unavailable, the parties jointly filed 

a motion to continue. The court continued the trial until February 8, 2016. 

Shortly thereafter, Appellant's community supervision status was revoked 

and he was returned to ADOC, with a scheduled release date in September

2016, which prompted the State to request a stay of the proceedings. 

Appellant requested dismissal of the petition. In response, the State again 

requested a stay, or, in the alternative, that it be continued. The court 

"grant[ed] the [State's] Motion for the Alternate Relief of a Continuance, 

based upon the fact that [Appellant] has been incarcerated . . . and is 

expected to be incarcerated . . . through his maximum date of September 16, 

2016." The court further ordered that Appellant be transferred to the 

ACPTC upon completion of his prison term, and reset the trial date to 

October 17, 2016.

1. First Two Continuances

¶6 Because Appellant failed to object to the first two 

continuances granted by the superior court, we review only for 

fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). 

Fundamental error review is applied sparingly in civil proceedings, but we 

may apply it in situations that may result in the denial of a constitutional 

right. Monica C. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 89, 94, ¶ 23 (App. 2005). 

To establish fundamental error, Appellant "must show that the error . . .

goes to the foundation of his case, takes away a right that is essential to his 

defense, and is of such magnitude that he could not have received a fair 

trial." Henderson, 210 Ariz. at 568, ¶ 24. Appellant also bears the burden of

showing he was prejudiced by that error. Id. at ¶ 26.

¶7 Appellant relies on Fuller v. Olson ex rel. County of Pinal, 233 

Ariz. 468 (App. 2013). In that case, the superior court failed to appoint 

counsel or schedule a trial on the SVP petition for longer than one year after 

the State filed a petition. 233 Ariz. at 470, ¶¶ 2-3. On review, this court held 

that Fuller was prejudiced by not receiving the "treatment that would have 

been available to him had he been afforded his trial and been found to be 

an SVP." Id. at 473, ¶ 15. We explained that if the superior court found 
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Fuller to be sexually violent after a timely trial, he would have received 

"treatment that might have alleviated his condition to the point where he 

was eligible for conditional release upon his yearly review [under A.R.S. § 

36–3708(A)], an event that would already have occurred in absence of that 

violation." Id. at 474, ¶ 15.

¶8 Unlike the situation in Fuller, in this case the first two trial 

settings were continued at Appellant's request, at least in part. And there 

was a reasonable basis for the continuances: the first provided Appellant's 

newly-appointed counsel time to prepare for trial and the second permitted 

second-chair counsel for Appellant to avoid a trial conflict, and gave the 

parties and the court time to see if Appellant's community supervision 

would be revoked. We find no error, much less fundamental error.

2. Third Continuance

¶9 The third continuance was granted over Appellant’s 

objection. "[A] court considering a motion to postpone the trial beyond the 

120-day limit or a motion to dismiss after the limit has been exceeded must 

determine whether there is 'good cause' for the delay attributable to a 

request from either party." Ugalde v. Burke, 204 Ariz. 455, 458, ¶ 9 (App. 

2003). "Whether the facts of a particular case establish 'good cause' is a 

matter left to the sound discretion of the trial court." Id. at ¶ 10. To 

determine good cause, "the court should carefully balance the reasons for 

the delay with the potential of prejudice to the alleged SVP from continued 

confinement while awaiting trial," id. at ¶ 10, and may consider the 

following factors:

[W]hether the original 120 days have already elapsed; the 

length of any confinement beyond the 120-day limit; the 

reasons for any past delay or requested postponement; 

whether unusual discovery or procedural problems 

prevented the case from proceeding to trial within 120 days; 

unavailability of witnesses or other evidence; whether the 

alleged SVP caused, contributed to, or consented to the delay; 

whether the State diligently prosecuted the case; whether the 

alleged SVP sought a timely trial or warned the court and the 

State of the running of the 120-day period; whether the 

alleged SVP has been receiving treatment while confined or 

whether the person has simply been "warehoused"; the 

potential prejudice to the alleged SVP from the delay; the 

protection of the public; and any other factors that may be 
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relevant in a particular case and consistent with the purposes 

of the SVP Act.

Id. at ¶ 11 (footnotes omitted).

¶10 Here, the original 120 days had elapsed long before the third 

motion to continue was granted. In fact, the 120-day limit had already 

elapsed at the time of the second trial setting, without objection by 

Appellant. The first continuance was not attributable to the State; nothing 

in the record indicates that the State would not have been ready for the first 

scheduled trial date. More importantly, the State filed its motion to 

stay/motion to continue after Appellant violated his community 

supervision and was reincarcerated, further contributing to the delay in 

proceeding to trial. Although Appellant did not receive treatment while 

confined, he was not simply "warehoused" throughout the time trial was 

postponed.

¶11 Appellant and his counsel were presumably aware that 

resolution of the petition and any treatment would be delayed by 

continuing the trial. Further, Appellant objected only to the third 

continuance, which resulted in approximately one additional month of 

confinement in ACPTC (the month between his September release from the 

AZDOC and the October 2016 trial). On this record, Appellant has not 

shown that the court abused its discretion in granting the third motion to 

continue.

B. Prior Bad Acts

¶12 Appellant argues the superior court erred by permitting 

evidence of Appellant's prior bad acts in violation of evidentiary rules, 

primarily Arizona Rule of Evidence 404(b). We ordinarily review the

admission or rejection of evidence for abuse of discretion. State v. Davolt, 

207 Ariz. 191, 208, ¶ 60 (2004). But because Appellant failed to object at 

trial, we review for fundamental error only. See Henderson, 210 Ariz. at 567, 

¶ 19.

¶13 In SVP proceedings, the State must prove beyond a 

reasonable doubt that the person is an SVP. See A.R.S. § 36-3707(A); id. § 

36-3701(7) (defining SVP as one who "[h]as ever been convicted of . . . a 

sexually violent offense" and "[h]as a mental disorder that makes the person 

likely to engage in acts of sexual violence"). The State must establish "(1) 

the person has a mental disorder . . . that predisposes the person to commit 

sexual acts to such a degree that he or she is dangerous to others and (2) the 
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mental disorder makes it highly probable that the person will engage in acts of 

sexual violence." In re Leon G., 204 Ariz. 15, 23, ¶ 28 (2002).

¶14 Dr. Morenz testified about a number of incidents in which 

Appellant was involved, starting from when Appellant was 12 or 13 years 

old and continuing until the time of trial.

1 Dr. Morenz testified about 

Appellant's prior acts to demonstrate that Appellant would likely engage

in acts of sexual violence in the future. Dr. Morenz learned of the prior 

incidents through various sources, including police and presentence

reports, and prison, mental health, and sex offender treatment records.

¶15 "[E]vidence of other crimes, wrongs, or acts is not admissible 

to prove the character of a person in order to show action in conformity 

therewith," Ariz. R. Evid. 404(b), but under Rule 405(b), specific instances 

of conduct are admissible "[w]hen a person's character or character trait is 

an essential element of a charge, claim, or defense." Here, contrary to 

Appellant's assertion, the superior court acted within its discretion in 

admitting evidence of Appellant's prior acts.

A character trait is an essential element of a charge, claim, or 

defense if it is an operative fact which, under substantive law, 

determines the rights and liabilities of the parties. The 

propensity to commit acts of sexual violence is an operative 

fact that determines the rights and liabilities of an allegedly 

[SVP] and is therefore an essential element of the state's SVP

case. Rule 405(b) thus permits the use of specific instances of 

conduct to prove such a propensity.

 

1 Such acts included touching little girls' buttocks in school; a burglary 

charge; a criminal mischief charge; a 1998 shoplifting incident; stealing from 

his parents; indecent exposure offenses from 1999; other indecent exposures 

for which Appellant was neither arrested nor charged; pinching young girls 

(on their buttocks or somewhere else) at a playground; touching 

prepubescent females and exposing himself to them; convictions for 

attempted molestation and child abuse, stemming from some of the 

previously mentioned prior bad acts; failure to register as a sex offender on 

multiple occasions; unsuccessful completion of probation; drug 

paraphernalia and weapon possession; assaulting his stepfather; and 

substance abuse problems that were active every time he had been out of 

custody.
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In re Commitment of Jaramillo, 217 Ariz. 460, 463, ¶ 11 (App. 2008) (citation

and internal quotations omitted).2 In the SVP setting, prior bad acts are not 

used to show that a party acted in conformity with the bad character on a 

particular occasion, but rather to demonstrate "the person will likely engage 

in acts of sexual violence in the future and therefore presents a danger to 

the community." Id. at ¶ 10.

¶16 Appellant also asserts that by allowing the prior bad acts that 

were unrelated to the determination of whether he was an SVP the court

switched to him the burden of proving "he was not as bad as Dr. Morenz

was making him out to be." But Appellant does not identify which specific 

acts were "unrelated" to the SVP determination. Moreover, consistent with 

the Rule 404 analysis in Jaramillo, Dr. Morenz explained that past behavior 

and psyschosexual history are relevant factors for diagnosing mental 

disorders and evaluating the likelihood a person will re-offend. The 

superior court properly instructed the jury as to the State's burden of proof, 

and Appellant does not explain how the burden was shifted to him. 

Appellant has not shown, even assuming any error occurred in the 

admission of prior bad acts, that the error was fundamental, prejudicial 

error.

C. Hearsay

¶17 Appellant also argues that much of Dr. Morenz's testimony 

violated the Arizona Rules of Evidence because much of the information he 

relayed to the jury was inadmissible hearsay (or double hearsay) in that it 

was used to prove the truth of the matters asserted. Again, because 

Appellant failed to object, we review only for fundamental error. See 

Henderson, 210 Ariz. at 567, ¶ 19.

¶18 Arizona Rule of Evidence 703 provides that experts may rely 

on otherwise inadmissible evidence in formulating their opinions "[i]f

experts in the particular field would reasonably rely on those kinds of facts 

or data in forming an opinion on the subject." The rule permits the 

proponent of the opinion to disclose the otherwise inadmissible facts or 

 

2 The Jaramillo court explained that the Rule 404(c) exception does not 

apply in SVP cases because the proceedings "are not predicated on a party's 

alleged commission of a sexual offense." Jaramillo, 217 Ariz. at 463, ¶ 9

(internal quotations omitted). "Instead, they are predicated on the person's

[sic] having a prior conviction for a sexually violent offense, not an 'alleged 

commission,' and a mental disorder that makes the person likely to commit 

future acts of sexual violence." Id.
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data "to the jury only if their probative value in helping the jury evaluate 

the opinion substantially outweighs their prejudicial effect." Ariz. R. Evid. 

703. Once such facts or data are disclosed, however, they are not admissible 

as substantive evidence; its only purpose is to "show[] the basis of the 

expert's opinion." State v. Lundstrom, 161 Ariz. 141, 146 (1989).

¶19 Without question, much of the material Dr. Morenz relied 

upon consisted of hearsay and double hearsay, but under Rule 703 he could 

properly rely on the out-of-court statements. Dr. Morenz presented 

information he reviewed to the jury and, in doing so, testified about why 

he considered that information in formulating his opinions regarding 

Appellant. He explained that without appropriate historical information,

sex offenders will frequently "minimize, deny, [and] excuse their behaviors

in a variety of different ways" that could produce a distorted perspective if 

he listened only to them. Thus, the probative value of the information 

substantially outweighed its prejudicial effect. And, to the extent Appellant 

suggests the jury was misled, the superior court properly instructed the jury 

as to how the information relied upon by experts should be treated:

Expert witnesses have expressed opinions that were based 

upon information reported by others, including information 

to which no other witness has testified to, or which is 

addressed in an exhibit.

This information is discussed only to explain the basis for the 

expert's opinion. This information should be considered only 

in deciding whether to accept or reject an expert's opinion, in 

whole or in part. It should not be considered to be substantive 

evidence.

Appellant has not shown the court committed fundamental, prejudicial 

error by allowing Dr. Morenz to rely on information that included hearsay 

statements.
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CONCLUSION

¶20 Based on the foregoing, we affirm the superior court's 

commitment order resulting from the jury's finding that Appellant is an 

SVP.