State v. Alcantar
| Docket Number | 2 CA-CR 2020-0105 |
| Decision Date | 31 August 2022 |
| Parties | The State of Arizona, Appellee, v. Marcos Antonio Alcantar, Appellant. |
| Court | Arizona Court of Appeals |
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20181862001 The Honorable Javier Chon-Lopez, Judge
Mark Brnovich, Arizona Attorney General Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals By Casey Ball, Assistant Attorney General, Phoenix Counsel for Appellee
Megan Page, Pima County Public Defender By Erin K. Sutherland Assistant Public Defender, Tucson Counsel for Appellant
Vice Chief Judge Staring authored the decision of the Court, in which Presiding Judge Eppich and Judge Brearcliffe concurred.
¶1 Marcos Alcantar appeals from his convictions and sentences for six counts of sexual conduct with a minor and two counts of sexual assault. For the reasons that follow, we affirm Alcantar's convictions and sentences.
¶2 We view the evidence in the light most favorable to upholding the jury's verdicts, and thus resolve all reasonable inferences against Alcantar. See State v. Gill, 248 Ariz. 274, ¶ 2 (App. 2020). Alcantar and his partner Yvette adopted C.V. and her biological sister A.V. At the time, C.V. was six years old and A.V. was four. Alcantar and Yvette had previously adopted a child who was older than C.V and A.V., and they later had a biological child of their own P.O.
¶3 In 2014, when C.V. was sixteen, Yvette was diagnosed with cancer. C.V. stopped attending school to care for Yvette and began sleeping on the living room couch while Yvette slept nearby on a hospital bed. At some point, C.V. asked Alcantar if she could borrow his phone to communicate with her friends because she did not have her own cell phone. Alcantar then asked if he could perform oral sex on her, and although she did not "want him to do that," he went ahead and did so. C.V. testified the oral sex became a "regular thing," with Alcantar performing oral sex on her "the whole time" she was sixteen in exchange for use of his phone while Yvette was asleep in the same room. Before Yvette died in December 2014, C.V. confronted Alcantar about the sexual acts and "told him [to] . . . stop." Alcantar apologized, started crying, and told her not to tell anyone, and the oral sex stopped.
¶4 Following Yvette's death, and after C.V. had turned seventeen, C.V. began sleeping in Alcantar's bed with him because Alcantar claimed he wanted to prevent her from sneaking out of the house at night. C.V. was having trouble sleeping, and Alcantar began giving her melatonin or Trazodone[1] to help her sleep. C.V. testified she "would fall asleep" but "would wake up from . . . the Trazodone sleep" to Alcantar "licking [her] again or him on top of [her]," having, or attempting to have, intercourse with her. She further testified this occurred "[p]robably like every night," always after she had been given Trazodone and always involving both oral sex and intercourse.
¶5 After she turned eighteen, C.V. left the house and moved in with her boyfriend, J.D. After C.V. moved out, A.V. confronted Alcantar about his sexual contact with C.V., and he responded that C.V. "was grown, she knew it, [and] she could have said no." C.V. ultimately told her boyfriend's mother about the acts, and she called the police.
¶6 In 2018, a grand jury indicted Alcantar for six counts of sexual conduct with a minor under the age of eighteen and two counts of sexual assault.[2] Following a five-day jury trial, he was convicted as charged and sentenced to consecutive and concurrent terms of imprisonment totaling fourteen years. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
¶7 On appeal, Alcantar argues he was deprived of due process because the indictment failed to provide adequate notice of the charges against him, the state's presentation of evidence at trial rendered the charges duplicitous, and he may have been convicted for offenses not presented to the grand jury. He further contends the trial court erred in denying his motions for mistrial based on the introduction of irrelevant and prejudicial evidence during the testimony of several of the state's witnesses. Additionally, Alcantar asserts the court erred in allowing three of the state's witnesses to testify that C.V. had disclosed the sexual contact to them before such contact was reported to law enforcement. Finally, he alleges the state committed various instances of prosecutorial error that individually and cumulatively deprived him of his right to a fair trial.
¶8 As noted, Alcantar contends his right to due process was violated because "the indictment failed to give sufficient notice of the charges" against him and "the State's presentation of evidence rendered the charges duplicitous." We review constitutional and legal issues de novo. See State v. Moody, 208 Ariz. 424, ¶ 62 (2004).
¶9 We first address Alcantar's argument that the "indictment failed to give adequate notice as to which acts constituted the charged offenses." Because Alcantar failed to challenge the indictment before trial, he has forfeited review for all but fundamental, prejudicial error.[3] See State v. Escalante, 245 Ariz 135, ¶ 12 (2018); see also State v. Hargrave, 225 Ariz. 1, ¶ 28 (2010) (). To establish fundamental error, Alcantar must show error that (1) went to the foundation of his case, (2) denied him a right essential to his defense, or (3) was so egregious as to deny him the possibility of a fair trial. See Escalante, 245 Ariz. 135, ¶ 21. Under the first two prongs, he must also show prejudice. See id. If a defendant shows the error was so egregious he could not have received a fair trial, however, he has necessarily shown prejudice and must receive a new trial. Id.
¶10 The Sixth Amendment provides, in relevant part, that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation." U.S. Const. amend. VI; see also Ariz. Const. art. II, § 24. "An indictment is legally sufficient if it informs the defendant of the essential elements of the charge, is definite enough to permit the defendant to prepare a defense against the charge, and affords the defendant protection from subsequent prosecution for the same offense." State v. Far W. Water & Sewer Inc., 224 Ariz. 173, ¶ 36 (App. 2010). To determine whether a defendant received constitutionally sufficient notice, we examine "whether the defendant had actual notice of the charge, from either the indictment or other sources." State v. Freeney, 223 Ariz. 110, ¶ 29 (2009); see also Far W. Water & Sewer, 224 Ariz. 173, ¶ 36 (indictment read in light of facts known by both parties).
¶11 Each count of the indictment in this case listed a date range spanning one year, which corresponded to the dates when C.V. was either sixteen or seventeen years old. Counts One through Six of Alcantar's indictment charged him with sexual conduct with a minor under the age of eighteen pursuant to A.R.S. § 13-1405. Count One alleged that, "[o]n or about the 7th day of May, 2014 through the 6th day of May, 2015," Alcantar had "committed sexual conduct with a minor, by intentionally or knowingly engaging in an act of oral sexual contact, with C.V., to wit: The first time defendant performed oral sex on the victim when she was sixteen years old." Count Two was identical to Count One but specified the charged act was "the last time [Alcantar] performed oral sex on [C.V.] when she was sixteen years old." Similarly, Counts Three and Five alleged that, "[o]n or about the 7th day of May, 2015 through the 6th day of May, 2016," Alcantar had engaged in oral sexual contact with C.V., respectively referring to the first and last times he performed oral sex on C.V. when she was seventeen. Counts Four and Six were alleged to have been committed within the same date range as Counts Three and Five, both occurring when C.V. was seventeen, with Count Four stating the charged act was "the first time [Alcantar] had vaginal intercourse with [C.V.]" and Count Six stating the charged act was "the last time [he] had vaginal intercourse with [C.V.]."
¶12 Counts Seven and Eight charged Alcantar with sexual assault occurring "[o]n or about the 7th day of May, 2015 through the 6th day of May, 2016"-the year C.V. was seventeen-pursuant to A.R.S. § 13-1406(A). Count Seven alleged he had "intentionally or knowingly engag[ed] in sexual intercourse or oral sexual contact with C.V. by performing oral sex on the victim after administering Trazodone, without her consent." Count Eight alleged he had "intentionally or knowingly engag[ed] in sexual intercourse or oral sexual contact with C.V., by engaging in vaginal intercourse with the victim . . . after administering Trazodone to her, without her consent."
¶13 Before trial, Alcantar noticed two defenses -"[b]urden of [p]roof" and "[g]ood [character" - but made no challenge with respect to the indictment. At trial, the state presented evidence that Alcantar had regularly performed oral sex on C.V. "the whole time" she was sixteen and sleeping on the couch. It also presented evidence that "[p]robably . . . every night" when C.V. was seventeen, Alcantar had performed oral sex on her before getting on top of her and putting his penis between the lips of her vagina, always after he had given her Trazodone, and that this had occurred in Alcantar's bedroom. In its closing argument, the state...
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