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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

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 C ounsel 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 9-21-2017IN RE MS2015

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2 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 p erson ( " SVP " )

. Appellant argues the superior court erred by (1) continuing his trial beyond the 120

- day timeframe set forth in Ar izona 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 t he State

. F inding 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 fin d probable cause to declare Appellant a n SVP pursuant to A.R.S. § 36

- 3704

. Three days later, the court foun d probable cause to believe Appellant was a n 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 r e

- affirmed its finding that there was probable cause to sustain the petiti on. After several delays , the case proce eded to trial in October 2016.

¶3 Dr. Barry Morenz, a licensed ps ychiatrist , testified at trial on behalf of the State. The jury unan imously found Appellant to be a n 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)

.

D ISCUSSION

A. T rial 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 pet ition is filed pursuant to § 36

– 3704, the court shall conduct a trial to determine if the person n amed in the petition is a sexuallyIN RE MS2015

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3 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 h ave 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 A DOC , wi th 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 upo n 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 Continuance s

¶6 B ecause 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 show ing he was prejudi ced by that error. Id

. at ¶ 26.

¶7 Appellant relies on Fuller v. Olson ex r el. County of Pinal , 233 Ariz. 468 (App. 2013)

. In that case, the superior court failed to appoint counsel or s chedule 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 be en afforded his trial and been found to be an SVP. " Id. at 473, ¶ 15. We explained that if t he superior court foundIN RE MS2015

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4 Fuller to be sexually violent a fter 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 t rial 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 tr ial and the second permitted second

- chair counsel fo r 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. Burk e , 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 ] h ether 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; wh ether 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 beIN RE MS2015

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5 relevant in a p articular 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. Th e 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, t he S tate fi led 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. Alt hough 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 erre d by permitting evidence of Appellant ' s prior bad acts in violation of evidentiary rules, primarily Arizona Rule of Evidence 404(b)

. W e ordinarily review the admission or rejection of evi dence for abuse of discretion. State v. Davolt

, 207 Ariz. 191, 208, ¶ 60 (2004). But because Appellant failed to object at trial, we revi ew for fundamental error only. See Henderson , 210 Ariz. at 567, ¶ 19.

¶13 In SVP proceedin gs, the State must prove beyond a reasonable doubt that the person is a n 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 offen se" and " [h]as a mental disorder that makes the person likely to engage in acts of sexual violence " ). The State must establish " (1) th e 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) theIN RE MS2015

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6 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 conformit y 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 A ppellant ' 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 t hat determines the rights and liabilities of an allegedly [SVP] and is therefore an essential element of the s tate's SVP

case. Rule 405(b) thus permits the use of specific instances of conduct to prove such a propensity.

1 Such acts include d touching little girls' buttocks in school ; a burglary charge ; a criminal mischief charge ; a 1998 shoplifting incident ; stealing from his parents ; indecent ex posure 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 previousl y 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.IN RE MS2015

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7 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 a n SVP the court swit ched 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 Jara millo

, Dr. Morenz explained that past behavior and psyschosexual history are relevant factors for diagnos ing mental disorders and evaluating the likelihood a person will re

- offend. T he 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 al so 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, b ecause 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 expert s may rely on otherwise inadmissible evidence in formulating their opinion s " [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 r ule 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, th ey are predicated on the person' s [sic] having a prior conviction for a sexually violent offen se, no t an ' alleged commission, ' and a mental disorder that makes the person likely to commit future acts of sexual v iolence. " Id.IN RE MS2015

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8 data " to the jury only if their pro bative 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; it s only purpose is to " show [] t he basis of the expert' s opinion. " State v. Lundstrom , 161 Ariz. 141, 146 (1989).

¶19 Without question, much of the material Dr. M orenz relied upon consisted of hearsay and double hearsay , but under Rule 703 he could properly rely on the out

- of

- court statements. Dr. M orenz presented info rmation 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 behavior s in a variety of different ways " that could produc e 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
upo n 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 conside red only in deciding whether to accept or reject an expert ' s opinion, in whole or in part. It should not be c onsidered 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

.IN RE MS2015

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9 CONCLUSION

¶20 Based on the foregoing, we affirm the superior court ' s commitment order resulting from the jury ' s finding that Appellant is a n SVP.