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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DION LEE EARL, Appellant.

No. 1 CA-CR 19-0592 

Appeal from the Superior Court in Maricopa County

No. CR2017-149648-001

The Honorable Suzanne E. Cohen, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Gracynthia Claw

Counsel for Appellee

The Stavris Law Firm PLLC, Scottsdale

By Alison Stavris

Counsel for Appellant

FILED 1-19-2021
STATE v. EARL

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MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which 

Presiding Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.

H O W E, Judge:

¶1 Dion Earl appeals his convictions and sentences for sexual 

assault, kidnapping, sexual abuse, public sexual indecency, and assault. For 

the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In September 2017, Earl hired N.A., 21, to work as a live-in 

nanny for his children. Earl and N.A. met at the airport and he took her to 

his home, arriving around midnight. That night, Earl went to N.A.’s 

bedroom and asked her to give him a massage. After she refused, Earl asked 

her if she would massage him for $100. She again refused and Earl left the 

room.

¶3 A little later, Earl called for N.A. to come and help him 

because one of the children woke up. As N.A. walked down the hallway, 

she felt Earl, who was naked, grab her arm and pull her into his bedroom 

and onto the bed. He pinned her arm underneath her to prevent her from 

moving. He then put his hands inside her pants and put his fingers inside 

her vagina and rubbed her breasts. While this was happening, N.A. realized 

that two of Earl’s children were sleeping in his bed.

¶4 N.A. eventually freed herself from Earl and ran to the front 

door, which was locked and required a code to open. Earl came to the front 

door and offered her $100 “to keep quiet” before he unlocked the door. N.A. 

left and called for a taxi while Earl continued to offer her money to keep her 

quiet. The taxi driver picked N.A. up and dropped her off at her 

grandmother’s house. The driver then called the police because he was 

concerned for N.A. based on her demeanor during the ride home.

¶5 During that same time, Earl hired I.W., 18, to babysit his 

children. In October 2017, when Earl was out of town, his wife asked I.W. 

babysit the children while she went out one evening. The next day, I.W. 

took Earl’s wife to pick up her car. I.W. then returned to Earl’s house and 

found him there alone. He gave her an intimate hug. After telling Earl that 
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she needed to leave, he asked her to follow him to his bedroom so he could 

pay her. When they reached his bedroom, he closed and locked the door. 

He tried to hug her again and pulled her with him as he fell onto the bed. 

Earl then put his hand down her pants and rubbed her bottom. She got up 

and tried to leave but Earl grabbed her by the arm again and pulled his 

pants down and masturbated in front of her. She walked to the bedroom 

door unlocked it and walked toward the front door. Earl followed, gave her 

money and she left. I.W. later reported what Earl had done to the police.

¶6 Earl was arrested and charged with sexual assault, two counts 

of kidnapping, sexual abuse, public sexual indecency, and assault. Before 

trial, the State moved under Arizona Rule of Evidence 404(c) to admit other 

act evidence of Earl’s previous non-consensual sexual acts with five

different women. The trial court held an evidentiary hearing during which 

recorded interviews of the other act victims were played.

¶7 One of the women, E.B., said in her interview that in 

September 2014, Earl hired her to be dancer for a soccer team that he had 

recently purchased in Washington state. She said that on one occasion, Earl

texted her and asked for a massage and that “he was very infatuated with 

massages.” The day after texting her, she went to Earl’s house for a meeting 

and when she arrived, he gave her a “lingering hug.” He told her that he 

wanted to give her a massage and that he wanted her to give him a massage, 

but she declined. He then came closer and laid on her lap and again asked

her to massage him. She tried to get up, but he pushed her down, climbed 

on top of her and kissed her, “dry hump[ed] her,” and groped her breasts. 

She repeatedly told him to stop before she got up and left as Earl said, “what 

happened here, stays here.”

¶8 Another woman was J.R., 24, whom Earl also hired as a 

dancer for the soccer team. She stated that one evening, Earl asked her to 

help him pass out fliers for the soccer team. Afterwards, he told her that 

they were going to a strip club. When they arrived, he took her to a private 

room with a dancer. Earl put one of his hands on J.R.’s thigh and moved it 

up to “graze[] her vagina.” He also kissed her neck, pulled her bra strap 

down and kissed her breast. J.R. got up and left as Earl said what happens 

at the strip club, stays at the strip club.

¶9 A third woman, C.G., said that she babysat for Earl for two 

years starting around September 2015, when she was 18 years old. On one 

occasion, she traveled with Earl and his family to Nevada and stayed in a 

separate hotel room. That evening, Earl invited her to a strip club. When 

C.G. hesitated, Earl told her that he was coming over to her room and that 
STATE v. EARL

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she “owe[d] [him] a massage.” When he got to her room, he told her to 

massage him, but she declined. He then put her hands on his body to mimic 

a massage and pulled her on top of him. C.G. massaged his chest, but Earl 

kept trying to push her hands lower and she told him no. He then got up 

and left.

¶10 C.G. said that on another trip to Nevada in 2016, she stayed 

in the family suite and slept in the children’s bedroom. Earl came in and 

tried to “spoon” with her, rubbed his hands over her body, groped her 

breasts, and got an erection. She pretended she was sleeping, wiggled him 

off her, and he left. In Arizona in early 2016, when C.G. was upset, Earl 

hugged her while wearing only a towel. When C.G. felt that Earl had an 

erection, she pulled away from him. He then had her follow him to his

room, closed and locked the door, and had her lay on his bed so they could 

talk. He then pulled her into him and snuggled her. She eventually got up 

and said she was going to check on the kids.

¶11 After hearing the recorded interviews of the five women, the 

trial court denied the State’s motion to allow two of the women to testify, 

but did grant the motion to allow E.B., J.R., and C.G. to testify as other act 

witnesses under Rule 404(c). It found that the State had proved by clear and 

convincing evidence that Earl had committed the other acts, the other acts 

provided a reasonable basis for the jury to infer that Earl had a character 

trait giving rise to aberrant sexual propensity to commit the charged 

offenses, the other acts were not remote in time, and admission of the other 

act evidence was not unfairly prejudicial under Arizona Rule of Evidence 

403. All three other act victims testified at trial and were cross-examined by 

Earl. 

¶12 Jolene Larson, a registered nurse, testified that as part of her 

examination of N.A., she asked what had happened to her body. Earl 

objected to N.A.’s statements on hearsay grounds. The court overruled the 

objection, finding that the statements were made for the purpose of medical 

treatment. She then testified that N.A. told her that

[h]e grabbed me by my arms and pulled me on the bed. He 

had my right arm under him pinned so I couldn't move. Then 

he started rubbing on me on my back, my shoulders and my 

neck over the clothes. Then he grabbed my left hand and 

made me touch his penis with my palm, and then I balled my 

fist up so my knuckles were rubbing against his penis. Then 

he took his hand and put it in my pants and put his fingers 

inside of my vagina. Then he started rubbing by butt and back 
STATE v. EARL

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and he was rubbing on the straps of my bra. That he was 

telling me to be quiet and not wake the girls up. I was trying 

to fight off—fight off him and get up and he had a code on the 

door so I couldn't get out.

¶13 She further testified that asking questions about what

happened to the patient’s body, helps guide the exam, and that her job is to 

collect swab samples based on what the patient tells her. She also gave N.A. 

medication, prescriptions, and aftercare instructions. 

¶14 Detective Robert Russo testified that when he interviewed 

Earl, he did not admit to doing anything without the consent of the victims. 

He testified that Earl told him that I.W. initiated the hug between them and 

that I.W. kissed him and touched his penis. He further testified that Earl 

told several versions about what had happened, denying any physical 

contact initially and never mentioned the bedroom until Earl was told about 

a picture that I.W. had taken in the bedroom. Russo also testified that when 

he asked Earl about an interaction with N.M., Earl’s story changed when 

confronted with N.A.’s statement that she and Earl were in his bedroom.

¶15 After the State rested, Earl moved for a judgment of acquittal, 

arguing that the State presented no corroborating evidence, no scientific 

evidence, and no DNA evidence. He further argued that the victims’ 

testimonies were inconsistent. The State responded that the victims’ 

testimonies were consistent, and that substantial evidence existed such that

a jury could find Earl guilty. The court therefore denied Earl’s motion. 

¶16 After trial, Earl was convicted of the charged offenses and was 

sentenced to 7 years’ imprisonment for sexual assault, 5 years’ 

imprisonment for each kidnapping conviction, lifetime probation for sexual 

abuse, 6 months’ jail for public sexual indecency, and 30 days’ jail for assault 

with 714 days’ presentence incarceration credit. Earl timely appealed.

DISCUSSION

¶17 Earl argues that the trial court erred by finding that the other 

act evidence was admissible because his right to confront the three other act 

victims was violated, as none of them were present at the evidentiary 

hearing. When a defendant does not object at trial, we review for 

fundamental error and must first determine whether trial error exists. State 

v. Escalante, 245 Ariz. 135, 140, 142 ¶¶ 12, 21 (2018). We review evidentiary 

rulings that implicate the Confrontation Clause de novo. State v. Stuebe, 249 

Ariz. 127, 130 ¶ 4 (App. 2020). “In all criminal prosecutions, the accused 
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shall enjoy the right . . . to be confronted with the witnesses against him[.]” 

U.S. Const. amend. VI. 

¶18 Earl’s right to confront the other act victims was not violated. 

The Confrontation Clause does not apply to the same extent at pretrial 

hearings as it does at trial, State v. Riley, 196 Ariz. 40, 43 ¶ 7 (App. 1999); see 

also Barber v. Page, 390 U.S. 719, 725 (1968) (“The right to confrontation is 

basically a trial right.”) and the right to confront one’s accusers is satisfied 

if defense counsel receives wide latitude to question the witnesses at trial, 

Pennsylvania v. Ritchie, 480 U.S. 39, 53 (1987). Because Earl cross-examined 

all three other act victims at trial, his right to confront the other act victims 

at the pretrial hearing was not violated.

¶19 Earl argues next that the trial court erred by finding that he 

had committed the other acts by clear and convincing evidence because two 

of the recorded interviews were audio recordings and the trial court 

therefore could not have found the other act victims credible. When a 

defendant is charged with a sexual offense, evidence of other acts may be 

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

aberrant sexual propensity to commit the offense charged.” Ariz. R. Evid. 

404(c). The court must find, by clear and convincing evidence, that the other 

act evidence is sufficient to permit the jury to find that the defendant 

committed the other act and that the other act evidence provides a 

reasonable basis for the jury to infer that the defendant had a character trait 

giving rise to an aberrant sexual propensity to commit the charged offense. 

See Ariz. R. Evid. 404(c)(1)(A)–(B); see also State v. James, 242 Ariz. 126, 131 

¶ 17 (App. 2017). The court must also find that the evidentiary value of the 

other act evidence is not substantially outweighed by a danger of unfair 

prejudice after considering, among other things, the remoteness of the other 

act, the similarity or dissimilarity of the other act, the surrounding 

circumstances, and other similarities or differences. Ariz. R. Evid. 

404(c)(1)(C).

¶20 The trial court properly found that the recorded interviews of 

the other act victims proved by clear and convincing evidence that Earl 

committed the other acts. Video and audio recorded interviews are 

sufficient to prove that a defendant committed the alleged other acts. State 

v. LeBrun, 222 Ariz. 183, 187–88 ¶¶ 13, 15–16 (App. 2009). The recorded 

interviews of the other act victims were therefore sufficient for the trial 

court to find that Earl committed the other acts by clear and convincing 

evidence.
STATE v. EARL

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¶21 Earl argues that the other act evidence could not provide the 

jury with a reasonable basis to infer that he had a character trait giving rise 

to an aberrant sexual propensity to commit the charged offenses. He 

contends that the other act evidence was dissimilar from the charged 

offenses because the business relationship was different and that he knew 

the alleged victims for different lengths of time. He also argues that the 

timeframes were different because the other acts were committed in 2014, 

while the charged offenses were committed in 2017. 

¶22 The fact that two of the other act victims were employed by 

Earl in a different capacity than the two victims in this case is not so 

dissimilar to render the other act evidence inadmissible. Both victims and 

all three other act victims were Earl’s employees. The ages of the other act 

victims and the victims at trial were similar during their employment and

Earl groped the other act victims’ breasts or genitals, similar acts to the 

charged offenses here. The jury therefore had a reasonable basis to infer that 

he had a character trait giving rise to an aberrant sexual propensity to 

commit the charged offenses. That Earl knew some of the other act victims 

for a longer period is a small difference that does not render the other act 

evidence inadmissible. See Ariz. R. Evid. 404(c) cmt. to 1997 Amendment 

(Rule 404(c) “does not contemplate any bright line test of remoteness or 

similarity, which are solely factors to be considered under subsection 

(1)(c).”) Further, the fact that the other acts were committed between one

and three years earlier did not render them inadmissible. See id.; see also 

State v. Van Adams, 194 Ariz. 408, 416 ¶ 24 (1999) (remoteness goes to the 

weight of the evidence but generally not to its admissibility); State v. Salazar, 

181 Ariz. 87, 92 n.5 (App. 1994) (admitting other act evidence that occurred

20 years earlier). The trial court therefore properly admitted the other act 

evidence under Rule 404(c).

¶23 Earl also argues that the trial court erred by admitting 

statements that N.A. made to Larson under Rule 803(4) because none of the 

statements were made for the purpose of medical diagnosis or treatment.

Because Earl objected at trial, we review the admission of evidence for an 

abuse of discretion. See State v. Murray, 247 Ariz. 447, 452 ¶ 12 (App. 2019). 

¶24 Hearsay is “a statement, other than one made by the declarant 

while testifying . . . offered in evidence to prove the truth of the matter 

asserted” and is generally inadmissible at trial. Ariz. R. Evid. 801(c), 802. 

Otherwise inadmissible hearsay may be admitted if it consists of 

“statements made for purposes of medical diagnosis or treatment and 

describing medical history, or past or present symptoms, pain, or 

sensations, or the inception or general character of the cause or external 
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source thereof insofar as reasonably pertinent to diagnosis or treatment.” 

Ariz. R. Evid. 803(4). In determining whether a hearsay statement is 

“reasonably pertinent to diagnosis or treatment[,]” courts consider 

“whether the declarant’s apparent motive [is] consistent with receiving 

medical care[] and [] whether it [is] reasonable for the physician to rely on 

the information in diagnosis or treatment.” State v. Lopez, 217 Ariz. 433, 435 

¶ 8 (App. 2008).

¶25 N.A.’s apparent motive was consistent with receiving medical 

care. Larson testified that N.A.’s statement of what happened guided the 

exam and that she prescribed N.A. medication and gave her aftercare 

instructions based on her statements. Further, N.A. testified that she went 

to get a medical exam after speaking with police and that Larson examined 

her body and gave her medication. Larson therefore reasonably relied on 

N.A.’s statements in treating her, N.A.’s statements were reasonably 

pertinent to medical diagnosis, and the trial court properly admitted N.A. 

statements under Rule 803(4). Even if the court did err, such error was 

harmless because N.A.’s statements to Larson were cumulative of her 

testimony about Earl’s conduct. See id. at 437 ¶ 12 n.2 (noting that admission 

of statements that the victim had made to a nurse was harmless because the 

victim testified about what the defendant had done to her in direct 

examination).

¶26 Earl also argues that the trial court erred by denying his 

motion for a judgment of acquittal because no evidence corroborated the 

victims’ testimony, and the State presented no biological evidence. He 

contends that he never admitted to any wrongdoing and that the entire case 

was based on “he said, she said” evidence that did not rise to the level of 

circumstantial evidence. We review the denial of a motion for a judgment 

of acquittal de novo. State v. Brock, 248 Ariz. 583, 591 ¶ 21 (App. 2020). 

“[T]he relevant question is whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.” Id.

at 591–92 ¶ 22 (quoting State v. West, 226 Ariz. 559, 562 ¶ 16 (2011).

¶27 The trial court did not err by denying Earl’s motion. No

corroborating evidence was needed because the testimony of a single 

witness is sufficient. See State v. Felix, 234 Ariz. 118, 120–21 ¶ 10 (App. 2014)

(affirming conviction based on single witness’s testimony). And even 

though Earl denied any wrongdoing, the jury was free to find that the 

victims were more credible. Id. The victims’ testimony alone was sufficient 

to sustain a conviction and the trial court properly denied Earl’s motion.
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¶28 Earl argues last that the trial court erred by allowing Detective 

Russo to testify about statements that Earl had made without evidence that 

he had first received the warnings required by Miranda v. Arizona, 384 U.S. 

436 (1966), or that he had waived his constitutional rights. “To safeguard 

this privilege, law enforcement officers must provide the well-known 

Miranda warnings before interrogating a person in custody.” State v. Maciel, 

240 Ariz. 46, 49 ¶ 10 (2016). Earl never objected to Detective Russo’s

testimony and his police report reflects that Earl waived his Miranda rights

before he was questioned. Therefore, the trial court did not err by allowing 

Detective Russo to testify about Earl’s statements. Even if the court did err, 

Earl fails to establish prejudice because he offers only a speculative, 

conclusory assertion that the jury “could have reached a different verdict.”

See State v. Martin, 225 Ariz. 162, 166 ¶ 15 (App. 2010) (“Speculative 

prejudice is insufficient under fundamental error review.”).

CONCLUSION

¶29 For the foregoing reasons, we affirm.