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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SEAN M. TROTTER, Appellant.

No. 1 CA-CR 14-0005

Appeal from the Superior Court in Apache County

No. S0100CR201100159

The Honorable Donna J. Grimsley, Judge

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Terry M. Crist

Counsel for Appellee

Law Offices of David Michael Cantor, Phoenix

By Elizabeth Mullins

Counsel for Appellant
STATE v. TROTTER

Decision of the Court

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MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which 

Presiding Judge Margaret H. Downie and Judge Andrew W. Gould

joined.

T H U M M A, Judge:

¶1 Sean M. Trotter appeals his convictions and sentences on 

two counts of sexual conduct with a minor under 15 years of age. Trotter 

contends the superior court erred by improperly admitting sexual 

propensity and other acts evidence, failing to question a prospective juror

and failing to give credit for presentence incarceration. Finding no error, 

Trotter’s convictions are affirmed and his sentences are affirmed as 

modified to reflect 159 days of presentence incarceration credit.

DISCUSSION

¶2 Trotter was charged by information with three counts of 

sexual conduct with a minor under 15 years of age, each a class 2 felony 

and dangerous crime against children. After a three-day jury trial, Trotter 

was convicted on Counts 1 and 2 and acquitted on Count 3. The superior 

court sentenced Trotter to two consecutive 13-year prison terms. From 

Trotter’s timely appeal, this court has jurisdiction pursuant to the Arizona 

Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) 

sections 12-120.21(A), 13-4031 and -4033 (2015).

1

I. Admission Of Sexual Propensity Evidence.

¶3 Before trial, the State moved to admit evidence pursuant to 

Arizona Rule of Evidence (Rule) 404(c) to show Trotter had a character 

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

offenses. The evidence consisted of testimony by the victim’s sister that,

within approximately a year before the dates of the charged offenses and 

at a time when the victim’s sister was 12 or 13 years old, Trotter had 

shown her a pornographic movie and later, while lying in bed with her, 

 

1 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated.
STATE v. TROTTER

Decision of the Court

3

slipped his hand inside her pajama bottoms and moved it close to her 

genitals. After an evidentiary hearing at which the victim’s sister testified

about Trotter’s acts, the superior court ruled that the evidence would be 

admissible under Rule 404(c).

¶4 At trial, the victim’s sister testified about Trotter’s conduct 

with her. Unlike her testimony at the pretrial hearing, however, the 

victim’s sister testified that the movie Trotter showed her was R-rated 

rather than pornographic. Trotter argues the superior court erred in 

admitting the testimony by the victim’s sister, particularly in light of the 

change in her testimony about the nature of the movie. The admission of 

evidence under Rule 404(c) is reviewed for an abuse of discretion. State v. 

Lehr, 227 Ariz. 140, 147 ¶ 19, 254 P.3d 379, 386 (2011).

¶5 Before admitting evidence pursuant to Rule 404(c), the 

superior court must find each of the following:

(A) The evidence is sufficient to permit the trier of 

fact to find that the defendant committed the other 

act.

(B) The commission of the other act provides a 

reasonable basis to infer that the defendant had a 

character trait giving rise to an aberrant sexual 

propensity to commit the crime charged.

(C) The evidentiary value of proof of the other act 

is not substantially outweighed by danger of unfair 

prejudice, confusion of issues, or other factors 

mentioned in Rule 403[, taking into consideration 

enumerated factors].

Ariz. R. Evid. 404(c)(1). If Rule 404(c) evidence is admitted at trial, the 

court “shall instruct the jury as to the proper use of such evidence.” Ariz. 

R. Evid. 404(c)(2); State v. Garcia, 200 Ariz. 471, 475–76 ¶ 27, 28 P.3d 327,

331–32 (App. 2001). As applied, the superior court did not abuse its 

discretion in admitting the evidence under Rule 404(c).

¶6 First, the testimony of the victim’s sister showed by clear 

and convincing evidence that Trotter committed the acts with her. See 

State v. Terrazas, 189 Ariz. 580, 582, 944 P.2d 1194, 1196 (1997); see also State 

v. Vega, 228 Ariz. 24, 29 n.4 ¶ 19, 262 P.3d 628, 633 n.4 (App. 2011) (noting 

victim’s testimony is sufficient basis on which to conclude by clear and 

convincing evidence that other incidents occurred). Trotter questions the 
STATE v. TROTTER

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credibility of the victim’s sister because of the change in her testimony 

about the nature of the movie, but “[t]he finder-of-fact, not the appellate 

court, weighs the evidence and determines the credibility of witnesses.”

State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995) (citation 

omitted).

¶7 Second, given the nature of the acts and their similarity to 

Trotter’s alleged acts towards the victim, the superior court properly 

could find that the acts provided a reasonable basis for concluding that 

Trotter has a character trait giving rise to an aberrant sexual propensity to 

commit the charged offenses. See State v. McDaniel, 119 Ariz. 373, 376, 580 

P.2d 1227, 1230 (App. 1978) (holding evidence defendant put hand 

halfway up preteen’s dress without actually touching genitals showed 

sexual aberration). Although Trotter’s conduct with the victim’s sister was 

not identical to that of the charged offenses, “[a]cts need not be perfectly 

similar in order for evidence of them to be admitted under Rule 404.” Lehr, 

227 Ariz. at 147 ¶ 21, 254 P.3d at 386. Such differences go to the weight of 

the evidence, not its admissibility. State v. Roscoe, 145 Ariz. 212, 218, 700 

P.2d 1312, 1318 (1984).

¶8 While the trial testimony of the victim’s sister that the movie

was R-rated rather than pornographic varied from her pretrial testimony, 

this difference does not preclude admissibility under Rule 404(c). The 

State presented evidence of her prior description of the movie, and the 

jury could still find that it contained pornographic images. Moreover, the 

evidentiary value of this evidence was that it depicted explicit sexual 

scenes and Trotter, as a form of sexual grooming, insisted the victim’s 

sister, who was only 12 or 13 at the time, watch it with him,

notwithstanding that the movie made her uncomfortable.

¶9 Third, the superior court reasonably could find that the 

evidence was not subject to exclusion under Rule 403, which allows a 

superior court to exclude admissible evidence if the probative value is 

“substantially outweighed” by a danger of, among other things, unfair 

prejudice or confusion of the issues. Ariz. R. Evid. 403. Because the 

superior court “is in the best position to balance the probative value of 

challenged evidence against its potential for unfair prejudice,” it has broad

discretion in this decision. State v. Connor, 215 Ariz. 553, 564 ¶ 39, 161 P.3d 

596, 607 (App. 2007) (citation omitted). On this record, the court did not 

abuse its discretion in ruling that the probative value of the testimony of 

the victim’s sister was not substantially outweighed by the danger of 

unfair prejudice, confusion of the issues or any of the other prohibitions 

listed in Rule 403.
STATE v. TROTTER

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¶10 Finally, the superior court gave a proper limiting instruction

regarding the Rule 404(c) evidence, directing the jurors “[y]ou may not 

convict the defendant of the crimes charged simply because you find that 

he committed [the other] acts or that he had a character trait that 

predisposed him to commit the crimes charged.” See Ariz. R. Evid. 

404(c)(2). There was no error in admitting the sexual propensity evidence.

II. Admission Of Other Acts Evidence.

¶11 Trotter argues the superior court erred in admitting evidence 

of his possession of pornography, his computer searches for bestiality and 

teen pornography, his inappropriate “cuddling” of the victim and 

violence between him and his ex-wife. He claims this evidence should 

have been excluded as inadmissible “other acts evidence” pursuant to 

Rule 404(b), which provides that “evidence of other crimes, wrongs, or 

acts is not admissible to prove the character of a person in order to show 

action in conformity therewith,” but may be admissible for other, nonpropensity purposes. Ariz. R. Evid. 404(b). More specifically, Trotter 

claims the court abused its discretion in admitting this evidence because it 

was not relevant and was unfairly prejudicial and that the State did not 

prove by clear and convincing evidence that Trotter committed the 

alleged other acts. 

¶12 In challenging this evidence for the first time on appeal, 

Trotter argues “[i]t simply cannot be said beyond a reasonable doubt, that 

the jury would have disbelieved [his] defense and convicted him of the 

charged crimes if the challenged evidence had never been admitted.” That 

standard of review may apply when a timely objection to evidence 

erroneously is overruled. State v. Valverde, 220 Ariz. 582, 585 ¶ 11, 208 P.3d 

233, 236 (2009) (citing cases). Trotter, however, made no such timely 

objection, meaning review on appeal is limited to fundamental error. See

Ariz. R. Crim. P. 21.3(c); State v. Henderson, 210 Ariz. 561, 567 ¶¶ 19–20, 

115 P.3d 601, 607 (2005). “Accordingly, [Trotter] ‘bears the burden to 

establish that “(1) error exists, (2) the error is fundamental, and (3) the 

error caused him prejudice.”’” State v. James, 231 Ariz. 490, 493 ¶ 11, 297 

P.3d 182, 185 (App. 2013) (citations omitted). A defendant seeking to 

establish fundamental error must “affirmatively ‘prove prejudice’ and 

may not rely upon ‘speculation’ to carry his burden.” State v. Dickinson, 

233 Ariz. 527, 531 ¶ 13, 314 P.3d 1282, 1286 (App. 2013) (citation omitted).

¶13 Trotter neither argues nor proves that the alleged error in 

admitting the other acts evidence was fundamental or caused him 

prejudice. Accordingly, Trotter cannot show fundamental error resulting 
STATE v. TROTTER

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in prejudice. See James, 231 Ariz. at 493 ¶ 11, 297 P.3d at 185. Moreover, on 

this record, Trotter has not shown the superior court abused its discretion 

in admitting this evidence without objection or that the State failed to 

prove the other acts by clear and convincing evidence. 

¶14 Trotter argues that admitting evidence of a defendant’s 

possession of adult pornography may be problematic when facing charges 

of possession of child pornography. See State v. Coghill, 216 Ariz. 578, 169 

P.3d 942 (App. 2007). Trotter, however, was charged with sexual conduct 

with a minor, not possession of child pornography. Moreover, Trotter’s 

possession of adult pornography was relevant to his grooming behavior, 

as was evidence of his inappropriate “cuddling” of the victim. Trotter’s 

possession of adult pornography and computer searches also reinforced 

testimony by the victim’s sister of Trotter watching a movie depicting 

explicit sexual scenes with her. Finally, evidence of violence between 

Trotter and his ex-wife goes to credibility. In short, although the superior 

court would have had the discretion to sustain a timely, proper objection 

to some of this evidence, no such objection was made and Trotter has not 

shown error that was fundamental resulting in prejudice by the admission 

of this other act evidence.

III. Failure To Speak With A Prospective Juror.

¶15 At the conclusion of voir dire, the superior court excused the 

prospective jurors from the courtroom to permit the parties to exercise 

their peremptory challenges. As the prospective jurors exited, the 

following exchange took place between an unidentified male and the 

superior court:

MALE SPEAKER: Can I speak with you for 

one second?

THE COURT: I’m sorry?

MALE SPEAKER: Can I speak with you for 

one second?

THE COURT: No, at this point we’ve already –

we’ve already done that.

The male speaker, who Trotter assumes was a prospective juror, was 

never identified and did not further address the court.
STATE v. TROTTER

Decision of the Court

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¶16 Trotter claims the superior court erred in not conducting 

further inquiry about whatever the male speaker wanted to discuss. He 

asserts that, in failing to do so, the court may have permitted a biased 

juror to sit as a juror. Because Trotter failed to timely object, the review on 

appeal is for fundamental error. Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d 

at 607. Because Trotter failed to raise the issue with the superior court, the 

record does not indicate the identity of the speaker, what he wanted to 

discuss or whether he was seated as a juror. Consequently, on this record,

Trotter cannot show prejudice required to obtain relief under fundamental 

error review. See Dickinson, 233 Ariz. at 531 ¶ 13, 314 P.3d at 1286.

IV. Presentence Incarceration Credit.

¶17 Trotter argues, and the State concedes, that he is entitled to 

159 days of presentence incarceration credit to be applied against the 

sentence imposed on Count 1. See A.R.S. § 13–712(B). The record reflects 

that Trotter was held in custody for 159 days before sentencing.

Accordingly, pursuant to A.R.S. § 13–4037(B), Trotter’s sentence is 

modified to reflect 159 days of presentence incarceration credit to be 

applied against the sentence imposed on Count 1. See State v. Stevens, 173 

Ariz. 494, 496, 844 P.2d 661, 663 (App. 1992). 

CONCLUSION

¶18 Trotter’s convictions and sentences are affirmed as modified 

to reflect 159 days of presentence incarceration credit for Count 1.