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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
                               FILED 6-21-2018


           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
                       STATE v. RAMOS-RAMIREZ
                          Decision of the Court



                      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


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                       STATE v. RAMOS-RAMIREZ
                          Decision of the Court

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.




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                       STATE v. RAMOS-RAMIREZ
                          Decision of the Court

                               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 Ramos-
Ramirez knew A.D. had been available at the time of the evidentiary
hearing, and the court had considered Ramos-Ramirez’s familiarity with



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                       STATE v. RAMOS-RAMIREZ
                          Decision of the Court

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 Ramos-
Ramirez 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


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                       STATE v. RAMOS-RAMIREZ
                          Decision of the Court

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.




                           AMY M. WOOD • Clerk of the Court
                            FILED: AA

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