Hansen v. Chon-Lopez

• Decision Date: 09 November 2021
• Docket Number: No. 2 CA-SA 2021-0015,2 CA-SA 2021-0015
• Parties: John Christian HANSEN II, Petitioner, v. Hon. Javier CHON-LOPEZ, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF PIMA, Respondent, and The State of Arizona, Real Party in Interest.
• Court: Arizona Court of Appeals

57 Arizona Cases Digest 9

501 P.3d 762

John Christian HANSEN II, Petitioner,

v. Hon. Javier CHON-LOPEZ, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF PIMA, Respondent,andThe State of Arizona, Real Party in Interest.

No. 2 CA-SA 2021-0015

Court of Appeals of Arizona, Division 2.

Filed November 9, 2021

Law Office of Hernandez & Hamilton PC, Tucson, By Joshua F. Hamilton and Carol L. Lamoureux, Counsel for Petitioner

Laura Conover, Pima County Attorney, By Amy S. Ruskin, Deputy County Attorney, Tucson, Counsel for Real Party in Interest

Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Espinosa and Vice Chief Judge Staring concurred.

ECKERSTROM, Judge:

¶1 In this special action, petitioner John Hansen challenges the respondent judge's denial of his motion to remand the underlying charge of child molestation to the grand jury for a new finding of probable cause, pursuant to Rule 12.9, Ariz. R. Crim. P. We are asked to decide whether polygraph evidence, which is inadmissible at trial under Arizona law, may be introduced to a grand jury, particularly when it is favorable to the defense and has been offered as clearly exculpatory evidence. We conclude the respondent judge correctly found such evidence per se inadmissible. Nevertheless, based on the state's violation of its obligation under Trebus v. Davis , 189 Ariz. 621, 944 P.2d 1235 (1997), coupled with the unfair presentation of its case, the respondent abused his discretion in denying Hansen's Rule 12.9 motion. We therefore grant special-action relief and reverse the order.

Factual and Procedural Background

¶2 Hansen married Heather in April 2010. Heather had two children, Z.A. and T.A., from her August 2003 marriage to Greg, which ended in January 2010. Heather and Hansen, who have two children in common, twins J.H. and G.H., were divorced in August 2018. In June 2020, when Z.A. was fourteen years old, she told a friend, and then Heather, that Hansen had molested her about five years earlier. Heather reported the allegation to law enforcement. Z.A. was forensically interviewed at the Child Advocacy Center (CAC). Z.A. claimed that Hansen had molested her after a shopping trip to Costco with her older brother T.A., and that T.A. was the only other person in the house when this occurred. In July 2020, Hansen was charged by indictment with one count of child molestation, which allegedly was committed between January 1 and July 22, 2014. In light of certain defects, the case was returned to the grand jury for a new presentation of the evidence.

¶3 In October 2020, in anticipation of the second grand jury proceeding, through his counsel Hansen sent a ten-page letter to the prosecutor assigned to the case, emphatically denying he had committed the offense. He requested she either dismiss the charge or, pursuant to Trebus and its progeny, present to the grand jury the "clearly exculpatory information" outlined in the letter and supported by nearly 240 pages of attachments. Hansen pointed to text messages and photographs that reflected Z.A. had a warm, positive relationship with him—arguably inconsistent with her having been victimized—even after Hansen and Heather separated. Hansen asserted in the letter that the offense could not have been committed in 2014, as alleged in the initial indictment, given documentation that showed Z.A. could not have gone to Costco with Hansen and T.A. during that period. Hansen also asserted the evidence refuted Z.A.’s claim that the offense was committed shortly before her tenth birthday, which was at the end of July 2015. He provided Costco records and emails showing Z.A. had not gone to Costco with only Hansen and T.A. during that period. It appears she had gone with Hansen, T.A., and the twins on one occasion and only with Hansen on another occasion. In addition, the letter stated Hansen had taken and passed a polygraph test in October 2020. The polygraph report, which was also provided, stated Hansen had shown no deception when he answered "no" to the questions whether he had ever made Z.A. touch his bare penis and whether he had ever touched her bare bottom.

¶4 The Trebus letter also stated that in July 2014, Greg's girlfriend's ten-year-old daughter alleged Greg had molested her. Hansen characterized the allegations as "strikingly similar" to Z.A.’s accusations against him. The letter stated that in August 2014, after the allegations against Greg were reported to the Tucson Police Department (TPD), TPD investigators and the Department of Child Safety (DCS) interviewed Z.A., referring to a DCS Report Summary that previously had been disclosed. Hansen summarized the interview, stating Z.A. told the interviewers no one had ever touched her inappropriately. The letter also provided, "while [Z.A.] felt safe around [Hansen], she indicated he was the disciplinarian in the family."

¶5 The letter also documented that a counselor from the Family Center of the Conciliation Court interviewed Z.A. a second time in October 2016, pursuant to a superior court order entered in the custody litigation between Greg and Heather. During that interview, Z.A. said she had known Hansen since she was three. She described Hansen as "more of a stricter parent," particularly with her younger sibling, J.H., adding her "mom told [her] that's probably just because that's his son and he kind of wants him to grow up and be a good man." She stated, "He's not mean or anything like that," but he wants a "good household." She said she could talk to him about "stuff," he is "funny," and she does not think of him as a stepdad, she thinks of him "as a dad." Although she said he "yells sometimes," she added that her mother had helped him over the years and it had "gotten better for sure. He doesn't yell as much anymore." She said on a scale of one to ten, with ten being the most comfortable, she would give her mother's home, which at that time was also Hansen's home, a ten. She said she had no concerns about living with her mother or about her mother's home.

¶6 The second grand jury proceeding was held in November 2020. Neither the prosecutor nor the testifying detective mentioned the Trebus letter. The detective did, however, summarize portions of it. He testified about Z.A.’s forensic interview at the CAC in June 2020. He relayed that, according to Z.A.’s statement during that interview, she, Hansen, and T.A. had returned home from a shopping trip to Costco just before her tenth birthday. Hansen had asked her to come into his bedroom, said it was hot, and told her to take off her clothes. He then grabbed her hand and put it on his penis, "moving her hand and his penis for approximately 15 minutes." Hansen then told her not to tell her mother. T.A. had been the only other person in the house when this occurred. Afterward, Z.A. struggled to enjoy her tenth birthday party because of the incident. The detective also testified that, during the interview, Z.A. had estimated Hansen touched her twenty-five times on the bare back and the buttocks over the next year and a half.

¶7 The prosecutor asked the detective if he had information about when Hansen had gone to Costco in 2015. The detective said he did and that the information showed Hansen had gone to Costco six times between January 1 and July 22, 2015. He explained that there were corresponding emails between Hansen and Heather about trips to Costco and that Hansen had taken Z.A. with him on June 1 and June 15. The detective informed the grand jury that Heather and Hansen separated in June 2017 and were divorced in August 2018 but that Z.A. and Hansen continued to have contact until June 2020, when she alleged he had molested her five years earlier. The detective stated they continued to attend family celebrations together, including the twins’ birthday, a celebration of Heather's "work achievements," and other events.

¶8 The detective testified further that he had evidence regarding text messages between Hansen and Z.A. that began in October 2016 and ended on June 4, 2020, which was less than two weeks before Heather reported the alleged molestation to the police. The detective read and summarized messages from June 2019 to June 4, 2020, establishing Hansen and Z.A. had a continuing relationship.¹ He also told the grand jury about the custody litigation between Heather and Greg involving Z.A. and T.A. He explained that on October 4, 2016, Z.A. had been interviewed at the Family Center, "which is similar to DCS." He did not tell the grand jury that the interview had been conducted because Greg's girlfriend's daughter accused Greg of having molested her a year earlier, or that Hansen viewed the allegations as similar to those that Z.A. made against Hansen years later. The detective summarized the interview, noting Z.A.’s positive comments about Hansen, including that he was more like a father than a stepfather, and stated that Z.A. had not disclosed any type of abuse and had not been asked about sexual abuse.

¶9 The prosecutor then asked the detective, "[B]ased on your training and experience, is it uncommon for children to not disclose sexual abuse?" The detective answered, "It's not uncommon." He also agreed it is not uncommon for children not to disclose sexual abuse even when they are specifically asked about it. The prosecutor asked the detective if there is "a difference between a forensic interview at the CAC, as opposed to an interview conducted by say someone with DCS or at the Family Center." Responding that there is, the detective stated that a forensic interview creates "a safe place for children" and that the individuals who conduct the interviews "are trained to do interviews on children." He further testified that they are "certified professionals," who ask open-ended questions in a "controlled environment that makes the children feel safe when they are talking to an adult." The prosecutor emphasized the CAC interviewers are specially trained in interviewing...