IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

RICHARD THOMAS HAMILTON, Appellant.

No. 1 CA-CR 18-0593 

Appeal from the Superior Court in Maricopa County

No. CR 2016-158498-001

The Honorable Warren J. Granville, Judge (Retired)

The Honorable Michael J. Herrod, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Michelle L. Hogan

Counsel for Appellee

DM Cantor, Phoenix

By Christine Whalin

Counsel for Appellant

FILED 6-25-2020
STATE v. HAMILTON

Opinion of the Court

2

OPINION

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

Presiding Judge Jennifer B. Campbell and Judge Lawrence F. Winthrop

joined.

B R O W N, Judge:

¶1 Hamilton appeals from his convictions and sentences for 

various sexual-conduct offenses. He argues the trial court erred when it 

ruled that three witnesses who gave other-acts evidence were considered 

victims under Arizona law and therefore entitled to (1) refuse pretrial 

interviews and (2) remain in the courtroom during trial even though 

Hamilton had invoked the rule of exclusion of witnesses. He also 

challenges other rulings, which we separately address in a memorandum 

decision. We hold that the court properly declined to allow pretrial 

interviews of the three witnesses but erred in allowing them to hear other 

witnesses testify at trial. The error, however, did not cause prejudice. 

DISCUSSION

¶2 Hamilton was indicted on two counts of sexual conduct with 

a minor and six counts of molestation of a child, committed against victims 

M.C. and A.C. The trial court later granted the State’s motion to dismiss 

two of the molestation counts. At the conclusion of an 11-day trial, the jury 

found Hamilton guilty on the remaining counts and the court sentenced 

him to two life terms in prison, one for each count of sexual conduct with a 

minor, and 28 years on each count of child molestation. This timely appeal 

followed. 

A. Witnesses’ Right to Refuse Pretrial Interviews 

¶3 When a defendant is charged with a sexual offense, Arizona 

Rule of Evidence (“Rule”) 404(c) allows a court to admit evidence that the

defendant committed other crimes or acts if such evidence is “relevant to 

show that the defendant had a character trait giving rise to an aberrant 

sexual propensity to commit the offense charged.” See State v. Yonkman, 233 

Ariz. 369, 373, ¶ 11 (App. 2013). Here, the State noticed its intent to call

three women, H.H., R.H., and R.P. (“the 404(c) witnesses”), to testify at trial 

pursuant to Rule 404(c). Their anticipated testimony stemmed from an 
STATE v. HAMILTON

Opinion of the Court

3

earlier prosecution against Hamilton (“the 2000 case”).1 Hamilton asked 

the trial court to allow him to interview the 404(c) witnesses before trial, but 

the State objected, arguing the 404(c) witnesses were victims under Arizona 

law who had the right to refuse the interviews.

¶4 The trial court denied Hamilton’s request to order the 

interviews, concluding the 404(c) witnesses were entitled to decline to be 

interviewed because they were victims in the 2000 case. The court 

explained that although Hamilton was no longer on probation from the 

2000 case, that case had not reached final disposition because he was still 

required to register as a sex offender as a result of those convictions. 

Hamilton argues the court abused its discretion in denying his interview 

request. 

¶5 The Victim’s Bill of Rights (“VBR”), Ariz. Const. art. II, 

§ 2.1(12)(C), along with its statutory implementation act, A.R.S. §§ 13-4401

to -4443, were enacted “to provide crime victims with ‘basic rights of 

respect, protection, participation and healing of their ordeals.’” Champlin v. 

Sargeant, 192 Ariz. 371, 375, ¶ 20 (1998) (citation omitted). We construe the

victims’ rights statutes liberally “to preserve and protect the rights to which 

victims are entitled.” A.R.S. § 13-4418. “[W]e review questions of statutory 

interpretation and constitutional law de novo.” State v. Ramsey, 211 Ariz. 

529, 532, ¶ 5 (App. 2005). “We are required to follow and apply the plain 

language of the Victims’ Bill of Rights in interpreting its scope.” State ex rel. 

Romley v. Super. Ct. In & For Cty. of Maricopa, 184 Ariz. 409, 411 (App. 1995). 

“When interpreting the scope and meaning of a constitutional provision, 

we are guided by fundamental principles of constitutional construction. 

Our primary purpose is to effectuate the intent of those who framed the 

provision and, in the case of an amendment, the intent of the electorate that 

adopted it.” Jett v. City of Tucson, 180 Ariz. 115, 119 (1994).

1 In 1998, Hamilton was found guilty of one count of sexual abuse and 

six counts of sexual conduct with a minor in Maricopa County Superior 

Court No. CR1997-007744. R.P. was the victim. After this court reversed 

the convictions, H.H. and R.H. came forward with allegations against 

Hamilton. He pled guilty to three counts of attempted sexual conduct with 

a minor, committed against R.P. in Maricopa County Superior Court No. 

CR2000-003435-A. The charges involving H.H. and R.H. were dismissed as 

part of the plea agreement. Hamilton was released from prison in 2003 and 

was discharged from lifetime probation in 2009 due to a change in the law 

but continued to have a lifetime obligation to register as a sex offender. 
STATE v. HAMILTON

Opinion of the Court

4

¶6 Victims’ rights commence upon the defendant’s arrest or 

formal charging and are enforceable “until the final disposition of the charges, 

including acquittal or dismissal of the charges, all post-conviction release 

and relief proceedings and the discharge of all criminal proceedings 

relating to restitution.” A.R.S. § 13-4402(A) (emphasis added); see State v. 

Leonardo, ex rel. Cty. of Pima, 226 Ariz. 593, 594, ¶ 5 (App. 2011) (recognizing 

that victims’ rights continue to be enforceable until restitution is paid and 

probation is completed). “Final disposition” means “the ultimate 

termination of the criminal prosecution of a defendant by a trial court, 

including dismissal, acquittal or imposition of a sentence.” A.R.S. § 13-

4401(10). 

¶7 Hamilton contends the trial court should not have allowed 

the 404(c) witnesses to refuse to be interviewed because their rights as 

victims terminated upon the final disposition of his previous charges. He 

argues that (1) R.P.’s rights as a victim terminated when Hamilton was 

discharged from probation in 2009, and (2) H.H. and R.H. could no longer 

assert victims’ rights after the charges involving them were dismissed as 

part of the plea agreement in the 2000 case. 

¶8 “[V]ictims have a constitutional right to decline interviews.” 

State v. Roscoe, 185 Ariz. 68, 73–74 (1996) (“[T]he victim’s right to decline an 

interview has been considered absolute.”). A victim’s right to refuse to be 

interviewed extends to a separate prosecution involving another charge 

against the same defendant when that interview will require the victim to 

recount the particulars of the offense the defendant committed against the 

victim. State v. Stauffer, 203 Ariz. 551, 553–54, ¶ 7 (App. 2002). 

¶9 In Leonardo, we held the victim retains the right to decline to 

be interviewed for as long as the defendant continues on probation. 226 

Ariz. at 596, ¶ 11. The defendant in that case was on probation from a prior 

case and the time for commencing a post-conviction relief proceeding had 

passed. Id. at 594–95, ¶ 6. The victim in the prior case was to testify in the 

current case but objected to sitting for a pretrial interview with defense 

counsel. We held the victim could refuse the interview because “final 

disposition” of the charges could not occur as long as probation continued. 

Id. at 596, ¶ 11. We reasoned that if a victim’s rights were no longer 

enforceable while a defendant remained on probation, the victim would be 

unable to exercise other statutory rights, including the right to be present at 

any probation revocation or modification proceeding, or the right to request 

notice of changes to the defendant’s terms of probation or probationary 

status. Id. at 595–96, ¶¶ 10–11. Therefore, because the legislature granted

statutory rights to victims throughout a defendant’s term of probation, it 
STATE v. HAMILTON

Opinion of the Court

5

could not have intended that an order placing the defendant on probation 

would constitute the “final disposition” of the charges against the 

defendant. Id.

¶10 We hold that, like a continuing term of probation, a 

continuing obligation to register as a sex offender extends the date of final 

disposition of a defendant’s charges for purposes of victim’s rights. As 

relevant here, a defendant convicted of sexual conduct with a minor is 

required to register. A.R.S. § 13-3821(A)(4). After successfully completing 

probation, if other conditions are met, the defendant may petition to 

terminate that requirement. A.R.S. § 13-3826(A). Before ruling on that 

petition, the superior court must provide enough notice for the State to 

notify the victim, and the victim must be given the opportunity to be heard. 

A.R.S. § 13-3826(B).

¶11 Although Hamilton’s probation had ended, the charges 

against him had not reached final disposition because he had an ongoing 

duty to register as a sex offender. In Leonardo, we explained that the 

legislature could not have intended a defendant’s placement on probation 

to constitute the “final disposition” of his charges because it had afforded 

victims ongoing rights throughout the defendant’s probationary term. 226 

Ariz. at 595–96, ¶¶ 8–11. That reasoning applies with equal force to a 

defendant’s duty to register as a sex offender. As with probation revocation 

proceedings, the legislature has provided victims the right to notice and an 

opportunity to be heard at any proceeding to terminate a defendant’s 

obligation to register as a sex offender. Accordingly, the legislature could 

not have intended that charges against a defendant reach their final 

disposition so long as the defendant is still subject to the registration 

requirement.2 

¶12 Hamilton cites State v. Noble as support for the proposition 

that his charges reached their final disposition despite his ongoing duty to 

register as a sex offender because the requirement to register is regulatory 

rather than punitive, and thus not part of the “criminal justice process” 

through which a victim’s rights continue. 171 Ariz. 171, 178 (1992)

(disapproved on other grounds by State v. Trujillo, No. CR-18-0531-PR, 2020 

WL 2107912, at *7, ¶ 38 (Ariz. May 4, 2020)). While it is true that sex 

2 Hamilton has not cited, nor has our research revealed, any authority 

controverting the trial court’s conclusion that because he was required to 

register as a sex offender, he has the continuing right to seek postconviction relief, which means there has been no final disposition of his 

2000 case. 
STATE v. HAMILTON

Opinion of the Court

6

offender registration is not punitive, neither is a defendant’s obligation to 

pay restitution to the victim. Trujillo, at *5, ¶ 27 (agreeing with “Noble’s 

conclusion that the structure of the [sex offender] registration scheme is 

regulatory, not punitive”); State v. Fancher, 169 Ariz. 266, 268 (App. 1991)

(“The purpose of restitution is not to punish, but to make the victim 

whole.”). And yet a victim who has suffered economic loss in a particular 

case has the statutory right to recover restitution until it is paid. Noble does

not alter our analysis.

¶13 Finally, Hamilton argues we should treat H.H. and R.H. 

differently than R.P. because the charges involving H.H. and R.H. were 

dismissed pursuant to the plea agreement in which he pled guilty to 

charges committed against R.P. But that argument conflicts with the 

statutory language protecting H.H.’s and R.H.’s ability to exercise certain 

victims’ rights as though the charges had not been dismissed. See A.R.S. 

§ 13-4402.01(A) (stating that if an offense against a victim has been charged 

but the offense is dismissed by a plea agreement in which the defendant 

pled to other charges, the victim of the dismissed charge “may exercise all 

the applicable rights of a crime victim throughout the criminal justice 

process as though the count or counts involving the person had not been 

dismissed”). The trial court did not abuse its discretion when it determined 

the 404(c) witnesses were entitled to refuse pretrial interviews with defense 

counsel.3

B. Defendant’s Right to Exclude Witnesses From Trial

¶14 Following the State’s opening statement, defense counsel 

invoked the rule of witness exclusion under Rule 615 and argued the 404(c) 

witnesses’ rights as victims to refuse pretrial interviews did not entitle them 

to be present in the courtroom while other witnesses testified. See Ariz. R. 

Evid. 615(e) (“At a party’s request, the court must order witnesses excluded 

so that they cannot hear other witnesses’ testimony.”).

4 The trial judge

denied the request, explaining he felt “obliged to follow” the previous 

judge’s ruling addressing Hamilton’s request to interview the 404(c) 

3 After the ruling addressing pretrial interviews, a different judge 

presided over the remainder of the proceedings in the case. 

4 Arizona Rule of Criminal Procedure 9.3(a) states, in relevant part,

that “[t]he court may, and at the request of either party must, exclude 

prospective witnesses from the courtroom during opening statements and 

other witnesses’ testimony.” For purposes of this case, the differences 

between Rule 9.3(a) and Rule 615 are not material.
STATE v. HAMILTON

Opinion of the Court

7

witnesses. Thus, the trial judge reasoned that if the 404(c) witnesses are 

victims for Rule 15, they are victims for Rule 615.” Each of the three 

witnesses heard testimony from other witnesses at various times during the 

trial. Hamilton argues the court reversibly erred by allowing them to 

remain in the courtroom. 

¶15 “The purpose of Rule 615 is to prevent witnesses from 

tailoring their testimony to that of earlier witnesses and to aid in detecting 

testimony that is less than candid.” Spring v. Bradford, 243 Ariz. 167, 170, 

¶ 14 (2017) (citations omitted). “Sequestering witnesses is ‘one of the 

greatest engines that the skill of man has ever invented for the detection of 

liars in a court of justice.’” Id. (quoting 6 John H. Wigmore, Wigmore on 

Evidence § 1838, at 463 (James H. Chadbourn ed., 1976)). It “discourages 

and exposes ‘fabrication, inaccuracy, and collusion.’” Id. (quoting Fed. R. 

Evid. 615 advisory committee’s note to 1972 proposed rules); see also State 

v. Sowards, 99 Ariz. 22, 26 (1965) (“The purpose of excluding witnesses from 

the trial is to encourage the discovery of truth, and detection and exposure 

of falsehood.”).

¶16 By its terms, however, Rule 615 does not authorize a court to 

exclude “a victim of crime, as defined by applicable law, who wishes to be 

present during proceedings against the defendant.” And the VBR gives a 

victim the “right to be present throughout all criminal proceedings in which 

the defendant has the right to be present.” A.R.S. § 13-4420. 

¶17 We are not persuaded by the State’s suggestion that § 13-4420

“could be construed” as giving any Rule 404(c) witnesses who were victims 

in a previous proceeding the right to hear the testimony of other witnesses 

at trial in a subsequent case. As we explained in Stauffer, though victims of 

a prior offense may assert their right to decline a pretrial interview in a 

prosecution of the same defendant for a later crime against a third person, 

they cannot exercise every right available to victims under the VBR. 203 

Ariz. at 555, ¶ 12. We reasoned that a victim’s right to refuse a pretrial 

interview in a subsequent prosecution “is merely a continuation of her 

rights that were implemented pursuant to her status as a victim in her own 

case,” not from the defendant’s arrest or prosecution in the subsequent 

proceeding, and is limited to the defendant’s victimization of that victim. 

Id. at 556, ¶ 18. That extension was consistent with the purpose of the VBR,

“which is to prevent or minimize the ‘retraumatization’ of a victim who is 

obligated to recount and relive the crime that was committed against 

[them].” Id. (quoting Champlin, 192 Ariz. at 375, ¶ 20). 
STATE v. HAMILTON

Opinion of the Court

8

¶18 We also noted in Stauffer that an overbroad interpretation of 

the VBR could lead to victims in previous cases invoking other statutory 

rights, such as demanding to confer with the prosecutor about the direction 

and disposition of the later case, submitting victim impact statements, 

presenting evidence at sentencing proceedings, or even bringing a special 

action or action for damages against the State if they felt their rights were 

being violated. Id. at 554–55, ¶ 11. We therefore declined to read into the 

VBR an intent to “turn any given criminal prosecution into a forum in 

which all persons who might have been victimized by the defendant in the 

past can assert victim status and exercise the full panoply of victims’

rights.” Id. at 555, ¶ 12. We explained that “such a result would not only 

drain the resources of the criminal justice system, it could also potentially 

jeopardize the rights of the actual victim of the criminal offense for which 

the defendant is prosecuted.” Id.

¶19 Applying those principles here, although the 404(c) witnesses 

had the right under the VBR to refuse pretrial interviews in the current case, 

they did not have the right to remain in the courtroom when other 

witnesses were testifying after the invocation of Rule 615. Unlike victims 

M.C. and A.C., who are the subject of the charges in the present case and 

had the right to be present throughout the trial proceedings, see A.R.S. § 13-

4420, the 404(c) witnesses’ right to be present at trial extended only to when 

they were testifying. Preserving a victim’s right to refuse a pretrial 

interview in a subsequent case is consistent with the VBR’s purpose to 

protect victims from re-traumatization. Stauffer, 203 Ariz. at 556, ¶ 18. But 

granting victims from prior cases an exception from Rule 615 at the trial 

proceedings in a subsequent case does not similarly advance that purpose,

and it fails to adequately preserve a defendant’s right to invoke Rule 615

when facing the unrelated charges against him. 

¶20 Thus, the trial court erred when it permitted the 404(c)

witnesses to remain in the courtroom after defense counsel invoked Rule 

615. Normally in this circumstance, we would require the State to prove 

beyond a reasonable doubt that the error did not contribute to the verdict.

See State v. Henderson, 210 Ariz. 561, 567, ¶ 18 (2005). In this unique 

situation, however, we hold the State to an arguably more stringent 

standard: when a trial judge does not honor a request to exclude witnesses, 

such failure “is presumed prejudicial unless the absence of prejudice is 

clearly manifest from the record.” State v. Roberts, 126 Ariz. 92, 94 (1980); 

see Spring, 243 Ariz. at 171, ¶ 19 (“Although Roberts spoke in broad terms, 

we have no reason here to revisit its holding because we find that case 

materially distinguishable.”). 
STATE v. HAMILTON

Opinion of the Court

9

¶21 In Roberts, defense counsel “moved to invoke the rule on 

exclusion of witnesses” during cross-examination of a key fact witness. 126 

Ariz. at 94. The trial court denied the motion, explaining in part that the 

rule was discretionary and the motion was untimely. Id. On appeal, our 

supreme court departed from earlier precedent that suggested reversal 

based on a failure to honor a request to exclude “must result in prejudice to 

the defendant.” Id. The court explained, however, that “a rule requiring an 

actual showing of prejudice works an injustice” and the “better approach”

is applying a presumption that a conviction must be reversed “unless 

scrutiny of the record reveals that the court’s denial of [a defendant’s] 

motion to exclude . . . did not prejudice him in any way.” Id. Reversing the 

conviction, the court concluded it was possible that discrepancies between 

testimony offered by a witness and his prior statements to police “came 

about as a result of his hearing the testimony” of the only two witnesses 

who witnessed the alleged criminal conduct. Id. at 95. 

¶22 After carefully reviewing this record, we conclude Hamilton 

was not prejudiced in any way by the trial court’s error. As noted, the 

overall purpose of Rule 615 is to prevent a witness from being influenced 

to change his or her testimony based upon the testimony of another witness. 

We do not believe that purpose was violated here, because unlike in Roberts, 

nothing in the record indicates the 404(c) witnesses were influenced to alter 

their stories about Hamilton’s other acts by listening to the testimony of any 

other witness. Further, the record on appeal includes the detailed 

statements the 404(c) witnesses made in police interviews relating to the 

other acts committed by Hamilton and the trial court’s detailed findings in 

its Rule 404(c) ruling. At trial, the 404(c) witnesses testified consistent with

their prior statements and the court’s ruling. Cf. Spring, 243 Ariz. at 172, 

¶¶ 21–22 (finding no indication that “expert witnesses materially altered 

their opinions based on their review of the other experts’ prior testimony, 

or that their trial testimony varied from their prior reports or deposition.”). 

¶23 Hamilton argues he was prejudiced by the superior court’s 

error because a juror asked the following question during the testimony of 

the second 404(c) witness: “How does the inclusion of witnesses work? 

Yesterday, for example, a couple witnesses were present while they were 

not testifying. I understand the exclusion of witnesses to say that no 

witness will be present except when they are testifying.” Hamilton 

renewed his objection to allowing the 404(c) witnesses to remain in the 

courtroom and requested a mistrial, which the court denied. Nothing in 

the record indicates the juror’s question was shared with the other jurors. 

On appeal, Hamilton contends the question demonstrates prejudice 

because it shows the jury took into consideration the presence of the 404(c)
STATE v. HAMILTON

Opinion of the Court

10

witnesses in the courtroom, placing his case “in the subset of cases noted in 

Roberts where there is a fair chance that prejudice may be presumed.” He

argues the presumption is even stronger here because the 404(c) witnesses

were “fact witnesses.” See Spring, 243 Ariz. at 172, ¶ 21 (“[V]iolations 

involving fact witnesses are more likely to be prejudicial than violations 

involving expert witnesses.”).

¶24 Hamilton’s assessment of the implication of the juror’s 

question is purely speculative. A more reasonable explanation is that the 

question signaled that the juror was more inclined to discredit the 

testimony of the 404(c) witnesses because, unlike the other witnesses, they 

had not been subjected to the rule of exclusion. At worst, the question 

reveals that when determining what weight to assign to the testimony, the 

juror considered the fact that the 404(c) witnesses were present to hear other

witnesses testify. 

¶25 Nor are we persuaded by Hamilton’s assertion that because 

the 404(c) witnesses testified as fact witnesses, we must presume prejudicial 

error. The three witnesses were not typical fact witnesses; they were not 

testifying about facts that gave rise to the current charges against Hamilton. 

Hamilton does not argue the 404(c) witnesses learned anything at trial, 

including from hearing other witnesses testify, that affected their 

testimony—each of them testified consistent with what they had previously 

reported to police more than two decades earlier. In that sense, their 

testimony is much more akin to the expert witness testimony in Spring than 

the fact witness testimony at issue in Roberts. See id. at 172, ¶ 22 

(distinguishing Roberts, which “involved a material fact witness changing 

his story after hearing the trial testimony of two other witnesses” from the 

circumstances in Spring, where nothing in the record revealed that neither 

defense expert materially altered their opinions based on their review of the 

testimony of plaintiffs’ experts, or that the defense experts’ testimony

varied from their own reports or depositions). 

¶26 We conclude that although the superior court should have 

excluded the 404(c) witnesses from the trial pursuant to Rule 615, the error 

did not prejudice Hamilton.
STATE v. HAMILTON

Opinion of the Court

11

CONCLUSION 

¶27 We affirm Hamilton’s convictions and sentences.