THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

(Not for Publication — Rule 111, Rules of the Arizona Supreme Court)

MEMORANDUM DECISION

HALL, Judge.

¶1 Defendant appeals his convictions and sentences for one count of assault and one count of sexual abuse. The only issue he raises on appeal is the trial court's partial denial of his motion in limine. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 The facts relevant to the issue raised on appeal are not disputed. On June 2, 2011, defendant was charged by information with one count of assault, a class three misdemeanor, and one count of sexual abuse, a class five felony. The State also alleged that defendant had nine prior felony convictions.

¶3 On September 30, 2011, defendant filed a motion in limine requesting, among other things, that all evidence that he is affiliated with a gang or has been imprisoned be excluded from trial. On the first day of trial, the court partially granted defendant's motion in limine, ruling that the victim could testify as to statements defendant made to her regarding his imprisonment and gang affiliation, but no other evidence of imprisonment or gang affiliation could be introduced. The trial court also informed the parties that it would provide a limiting instruction to the jury, following the victim's testimony, explaining that the jurors could not consider defendant's statements about gang membership and imprisonment "for any purpose except how [they] might have affected the [victim's] state of mind."

¶4 The following evidence was presented at trial. On April 2, 2011, the victim was working her regular shift at the Wal-Mart jewelry counter. A man she did not know, defendant, approached the counter. Defendant was wearing orange pants, no shirt, and was tattooed on his chest.1 He told the victim he had just been released from prison and she congratulated him on his release. At that point in the victim's testimony, the trial court admonished the jury as follows:

¶5 The victim then continued testifying. Defendant asked the victim whether she had a boyfriend and she informed him that she did. Defendant responded that he "did not care" and told the victim that he was in a gang and "would take care of" her boyfriend. The trial court again interrupted the victim's testimony and further instructed the jury:

¶6 The victim then continued testifying. Defendant asked for assistance in viewing watches and the victim walked around the showcase to defendant. When the victim approached defendant, he "took [her] hand and placed it on his penis." The victim turned to walk away and "he grabbed [her] hand and he licked the inside of [her] ear." The victim then "walked away," returned "to the inside of the showcase" and called her assistant manager and requested that she "come over." After the victim finished the phone call to her manager, defendant informed the victim that "he hadn't fucked a bitch in 20 years or 25 years." When the assistant manager arrived, defendant "grabbed" the victim's hand, kissed it and said "thank you" and then turned to exit the store. The victim testified that throughout her encounter with defendant, she was "scared" but "continued smiling" because she was afraid she may "upset him or tick him off." She expressly testified that she did not "consent" to any physical contact with defendant.

¶7 After a three-day trial,2 the jury found defendant guilty as charged. The trial court suspended imposition of a sentence and placed defendant on probation for a period of three years to be served consecutively to a nine-year prison term in an unrelated case.

¶8 Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2003), 13-4031, and -4033(A)(1) (2010).

DISCUSSION

¶9 As his sole issue on appeal, defendant contends the trial court erred by partially denying his motion in limine. Specifically, defendant contends that the victim's testimony that defendant informed her he was affiliated with a gang and recently released from prison was irrelevant pursuant to Arizona Rules of Evidence (Rule) 402, unduly prejudicial pursuant to Rule 403, and inadmissible evidence of "other crimes, wrongs, or acts" pursuant to Rule 404(b). We address each claim in turn.

¶10 We review a trial court's denial of a motion in limine for an abuse of discretion. Warner v. Sw. Desert Images, LLC, 218 Ariz. 121, 133, ¶ 33, 180 P.3d 986, 998 (App. 2008).

¶11 Pursuant to Rule 402, relevant evidence is admissible unless precluded by constitution, statute or rule, but "[i]rrelevant evidence is not admissible." "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Ariz. R. Evid. P. 401.

¶12 As set forth in A.R.S. § 13-1404 (2010), in pertinent part, "[a] person commits sexual abuse by intentionally or knowingly engaging in sexual contact with any person who is fifteen or more years of age without consent of that person[.]" Thus, pursuant to statute, lack of consent is an essential element of sexual assault and therefore a "fact [] of consequence in determining the action."3 As defined in A.R.S. § 13-1401(5)(a), the term "without consent" includes that "[t]he victim [was] coerced by the immediate use or threatened use of force against a person[.]" We conclude, as did the trial court, that evidence that defendant intimidated and frightened the victim by informing her that he had just been released from prison, was a member of a gang, and could "take care of" her boyfriend "ha[d] a tendency" to make it more likely that the victim was "coerced" by threats and therefore did not consent to the sexual contact with defendant. Therefore, the evidence was relevant.

¶13 Next, we consider defendant's claim that the evidence was unduly prejudicial. Pursuant to Rule 403, the "court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." "Evidence is unfairly prejudicial only if it has an undue tendency to suggest a decision on an improper basis, such as emotion, sympathy, or horror." State v. Gulbrandson, 184 Ariz. 46, 61, 906 P.2d 579, 594 (1995).

¶14 We conclude that the nature of the evidence at issue here, namely that defendant had been imprisoned and is affiliated with a gang, is not inflammatory in the context of the crime and would not otherwise have an undue tendency to suggest a decision on an improper basis. Moreover, the possibility of prejudice4 posed by the evidence was insufficient to substantially outweigh its significant probative value with respect to the victim's state of mind and corresponding lack of consent. Therefore, the evidence was not unfairly prejudicial.5

¶15 Finally, we consider defendant's claim that the evidence was inadmissible because it pertained to "other crimes, wrongs, or acts." Pursuant to Rule 404(b), "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."6

¶16 First, as repeatedly explained by the trial court's limiting instruction, the evidence was not admitted to prove defendant's character but to demonstrate the victim's state of mind. Second, the evidence is intrinsic, that is, it was "performed contemporaneously with and directly facilitate[d] commission of the charged act," State v. Ferrero, 229 Ariz. 239, 243, ¶ 20, 274 P.3d 509, 513 (2012), and, as a result, is not subject to a Rule 404(b) analysis. See State v. Nordstrom, 200 Ariz. 229, 248, ¶ 56, 25 P.3d 717, 736 (2001), abrogated on other grounds by Ferrero, 229 Ariz. at 243, ¶¶ 17-20, 274 P.3d at 243. Therefore, the evidence was not inadmissible pursuant to Rule 404(b) and the trial court did not abuse its discretion by denying defendant's motion to exclude the statements.7

CONCLUSION

¶17 For the foregoing reasons, we affirm.

MARGARET H. DOWNIE, Presiding Judge, MAURICE PORTLEY, Judge, concurring.