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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAVIER RAMOS-RAMIREZ, Appellant.

No. 1 CA-CR 16-0748

Appeal from the Superior Court in Maricopa County

No. CR2014-000953-001

The Honorable Alfred M. Fenzel, Judge Retired

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Jillian Francis

Counsel for Appellee

The Stavris Law Firm, PLLC, Scottsdale

By Christopher Stavris

Counsel for Appellant

FILED 6-21-2018
STATE v. RAMOS-RAMIREZ

Decision of the Court

2

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding 

Judge Jon W. Thompson and Judge James P. Beene joined.

S W A N N, Judge:

¶1 Javier Ramos-Ramirez challenges the admission of the state’s 

other-act evidence offered to show his propensity to commit the crimes of 

sexual misconduct for which he was charged and convicted. We hold that 

the evidence supported the superior court’s finding that the probative value 

of the proffered other act, an attempted sexual assault, was not substantially 

outweighed by a danger of unfair prejudice. We therefore affirm, and we 

correct the superior court’s sentencing minute entry to reflect the court’s 

intended sentence.

FACTS AND PROCEDURAL HISTORY

¶2 A grand jury indicted Ramos-Ramirez on seven counts for the 

rape of A.D. He pleaded not guilty.

¶3 At trial the state presented evidence of the following facts. On 

an early morning in February 2005, A.D. returned home from taking her 

husband to work. As normal, she had left their three children, ages four, 

seven, and nine, asleep at home. As A.D. entered her home, a man 

suddenly appeared behind her, covered her mouth with his hand, and held 

a screwdriver to her back. She told him he could take whatever he wanted, 

and he replied, “I want you.” He claimed that he had a partner in A.D.’s 

children’s room who would hurt them if she did not comply with his 

demands. He had a white shirt over his face, and she did not know who he 

was. He forced her to her bedroom and raped her, threatening her children 

several more times. After he left, A.D. made sure that her children were 

safe, and then called her sister, who called the police.

¶4 Police were not able to confirm the identity of the rapist until 

2011, after a database connected Ramos-Ramirez with the single DNA 

profile found inside A.D. A.D. recognized Ramos-Ramirez’s name because 

he had worked with her husband and was a social acquaintance of theirs.

¶5 Ramos-Ramirez testified in his defense that he and A.D. were 

involved in an extra-marital affair beginning in November 2004, and that 
STATE v. RAMOS-RAMIREZ

Decision of the Court

3

they regularly engaged in consensual sex. He claimed that the DNA found 

inside A.D. was the result of consensual sex the day before the rape, and 

denied he was the one who raped her.

¶6 Before trial, to show that Ramos-Ramirez had a propensity to 

commit the crimes charged, the state moved to introduce evidence under 

Ariz. R. Evid. (“Rule”) 404(c) of another incident of sexual misconduct, in 

which he had been convicted of attempted kidnapping and attempted 

sexual conduct with a minor. Specifically, the state sought to call S.W., the 

victim of Ramos-Ramirez’s other crime, to testify.

¶7 The state asserted that S.W. was prepared to testify to the 

following facts. In August 2007, as S.W. was leaving the women’s restroom 

at a grocery store, Ramos-Ramirez was standing right in front of her, staring 

at her. She had never seen him before. He immediately forced her back 

into the restroom, grabbed her by her waist, and pulled her against him, 

placing their weight against the closed door. She tried to call police, but he

threw her phone into the corner. When she screamed, he put his hand over 

her mouth and his fingers up her nostrils so that she could not breathe. He 

began to unbutton her pants, but a bystander was able to push the restroom 

door open and Ramos-Ramirez ran away. He was caught by bystanders 

and police near the grocery store. S.W. was thirteen years old at the time.

¶8 Ramos-Ramirez opposed the admission of S.W.’s testimony, 

arguing that its probative value would be substantially outweighed by a 

danger of unfair prejudice, mostly due to the highly inflammatory nature 

of child sexual assault crimes. After holding oral argument, the court

allowed the testimony, but ordered the parties to “sanitize” it, leaving out 

any mention of S.W.’s age because it was not relevant, and had the potential 

to unfairly prejudice Ramos-Ramirez. The court’s minute entry made 

specific findings in support of the ruling under Rule 404(c). S.W. testified

to the above information at trial.

¶9 The jury found Ramos-Ramirez guilty of Counts 1 and 3 

(sexual assault), Counts 4 and 5 (attempted sexual assault), Count 6 

(kidnapping), and Count 7 (burglary), but acquitted him of Count 2 (sexual 

assault). The court sentenced Ramos-Ramirez to 24.5 years’ imprisonment,

and he timely appeals.
STATE v. RAMOS-RAMIREZ

Decision of the Court

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DISCUSSION

I. THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION BY 

ADMITTING OTHER-ACT EVIDENCE UNDER RULE 404(c).

¶10 Ramos-Ramirez contends that the superior court’s admission 

of S.W.’s testimony about the attempted sexual assault was error because it 

was minimally probative and highly prejudicial. We review the superior 

court’s admission of other-act evidence under Rule 404(c) for an abuse of 

discretion, State v. James, 242 Ariz. 126, 130, ¶ 11 (App. 2017), and we will 

reverse the court’s ruling “only upon a finding of clear prejudice,” State v. 

Fischer, 219 Ariz. 408, 416, ¶ 24 (App. 2008).

¶11 Rule 404(c) provides that, as an exception to the general rule 

prohibiting character evidence, when “a defendant is charged with having 

committed a sexual offense, . . . evidence of other crimes, wrongs, or acts 

may be admitted by the court if relevant to show that the defendant had a 

character trait giving rise to an aberrant sexual propensity to commit the 

offense charged.” For the evidence to be admissible, the court must make 

several findings; as relevant here, it must find that the probative value of 

the other act is not substantially outweighed by the danger of unfair 

prejudice. Rule 404(c)(1)(A)–(C). The Rule provides several factors to guide 

the superior court’s analysis, including temporal remoteness of the other 

act, similarity of the other act, strength of the evidence that defendant 

committed the other act, frequency of the other acts, surrounding 

circumstances, and relevant intervening events. Rule 404(c)(1)(C).

¶12 Here, Ramos-Ramirez’s argument rests largely on the court’s 

analysis of the factual similarities between the attempted sexual assault in 

2007 and the rape in 2005. In particular, Ramos-Ramirez argues that the 

court’s analysis is based on the incorrect finding that both victims were 

strangers to him, and that if the court had known the facts as revealed at 

trial (that Ramos-Ramirez knew A.D.), it would not have admitted the 

other-act evidence.

¶13 In its detailed pretrial ruling admitting the testimony, the 

court found that “both [acts] appear to involve the use of force to cause or 

attempt to cause non-consensual sexual activity with an unknown victim.”

(Emphasis added.) Ramos-Ramirez is correct that evidence presented at 

trial showed that he knew A.D. at the time of the rape, and that, unlike S.W.,

she was not “an unknown victim.” But even if the evidence that RamosRamirez knew A.D. had been available at the time of the evidentiary 

hearing, and the court had considered Ramos-Ramirez’s familiarity with 
STATE v. RAMOS-RAMIREZ

Decision of the Court

5

the victims as a difference, rather than a similarity, the other-act evidence 

would still have been admissible. See Rule 404 cmt. to 1997 amend. (“[T]he 

rule does not contemplate any bright line test of . . . similarity.”); State v. 

Benson, 232 Ariz. 452, 459 (2013) (the two acts “did not have to precisely 

align” to be admissible under Rule 404).

¶14 In the context of one who is alleged to have attempted forcible 

rape on multiple occasions, the difference between preying on a stranger 

and preying on an acquaintance is hardly significant. And the probative 

value of evidence that the defendant preyed on two women with intent to 

force sexual activity is sufficient to withstand any non-trivial prejudicial 

impact—indeed, it is difficult to imagine such evidence lacking prejudicial 

effect. See State v. Lee, 189 Ariz. 590, 599–600 (1997) (“[N]ot all harmful 

evidence is unfairly prejudicial.”) The evidence of Ramos-Ramirez’s 

aberrant sexual propensity to commit non-consensual acts was also 

probative because it cast doubt on his trial defense that he had a prior

intimate relationship with A.D. and that the sex was consensual. The 

court’s single factual error, therefore, does not warrant relief on appeal.

¶15 To further support his contention that the court placed 

significant, or even dispositive, weight on the finding that he did not know 

either victim, Ramos-Ramirez points to the court’s finding that, with regard 

to surrounding circumstances, “neither victim knew the defendant.” But 

the point of that statement was not that Ramos-Ramirez did not know his 

victims, but that his victims did not know him. S.W. had never seen RamosRamirez before, and even though A.D. knew Ramos-Ramirez, his face was 

completely covered by a shirt, and she did not learn his identity until years 

later.

¶16 Ramos-Ramirez also lists “other areas of contrast” between 

the acts that the superior court did not mention, including that: one act was 

in a more public place, while the other was in a private home; one involved 

a weapon (a screwdriver), the other did not; one victim was a minor, the 

other an adult; one act did not involve penetration, the other did; and he

claimed to have an accomplice in one, but not the other. But these 

purported differences pale in comparison to the important similarities of 

the acts. See State v. Lehr, 227 Ariz. 140, 147, ¶ 21 (2011). For example, the 

superior court’s analysis finds that both acts involved “lying in wait and 

ambushing the victim,” and most importantly, that “both . . . involve[d] the 

use of force to cause or attempt to cause non-consensual sexual activity.” 

The fact that one victim was a minor is of little consequence here, as is the 

fact that Ramos-Ramirez was apprehended before he could complete the 

other act. And the fact that Ramos-Ramirez accosted both victims as they 
STATE v. RAMOS-RAMIREZ

Decision of the Court

6

were in a doorway renders the public/private distinction thin at best. We 

conclude that the court appropriately weighed the probative and 

prejudicial value of the other-act evidence, and reasonably found it was

sufficient to create an inference that Ramos-Ramirez had an aberrant sexual 

propensity to commit the crime charged.

II. WE CORRECT THE SUPERIOR COURT’S SENTENCING MINUTE 

ENTRY TO REFLECT THE ORAL PRONOUNCEMENT OF 

SENTENCE.

¶17 The superior court’s oral pronouncement of Ramos-Ramirez’s 

sentence (24.5 years’ imprisonment) conflicts with its sentencing minute 

entry (31.5 years). In its oral pronouncement, the court ordered that Counts 

1 (10.5 years), 3 (10.5 years), and 7 (3.5 years) be served consecutively to 

each other, and that Counts 4 (7.5 years), 5 (7.5 years), and 6 (10.5 years) be 

served concurrently with each other, and concurrently with the other 

sentences. But the court’s minute entry orders that Counts 1 and 3 be served 

consecutively to each other, and that Counts 4 through 7 be served 

concurrently with each other but consecutive to Counts 1 and 3.

¶18 The state does not dispute that Ramos-Ramirez’s sentence 

should be the one that the court pronounced at the hearing—24.5 years’ 

imprisonment. See State v. Whitney, 159 Ariz. 476, 487 (1989) (“Oral 

pronouncement in open court controls over the minute entry.”). 

Accordingly, pursuant to A.R.S. § 13-4037(A), we amend the superior 

court’s sentencing minute entry to reflect its intent that Counts 1, 3, and 7

be served consecutively to each other and that Counts 4, 5, and 6 run 

concurrently to each other and concurrently to the total of Counts 1, 3, and 

7. See State v. Stevens, 173 Ariz. 494, 496 (App. 1992) (permitting this court 

to correct a clerical sentencing error without remanding to the superior 

court).

CONCLUSION

¶19 For the foregoing reasons, we affirm Ramos-Ramirez’s 

convictions and sentences, as modified.