State v. Gomes

Decision Date01 November 2022
Docket Number1 CA-CR 21-0340
PartiesSTATE OF ARIZONA, Appellee, v. JOAO RICARDO GOMES, Appellant.
CourtCourt of Appeals of Arizona

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No CR2018-143519-001 The Honorable Ronee Korbin Steiner, Judge

Arizona Attorney General's Office, Phoenix By Brian R Coffman Counsel for Appellee

The Law Office of Michael Alarid III PLLC, Phoenix By Michael Alarid, III (argued) Co-Counsel for Appellant

The Law Office of Elizabeth Mullins, PLLC, Phoenix By Elizabeth Mullins Co-Counsel for Appellant

Judge Paul J. McMurdie delivered the Court's decision, in which Presiding Judge Brian Y. Furuya and Judge Jennifer B Campbell joined.

MEMORANDUM DECISION

McMURDIE, JUDGE

¶1 Joao Ricardo Gomes appeals from his conviction and sentence for sexual conduct with a minor. He argues the superior court erred by denying his motion to suppress evidence, motion for a directed verdict, and motion for a new trial. He asserts the State's misconduct deprived him of a fair trial. And he claims our supreme court's COVID-19 administrative order violated his due process rights. We find no reversible error and affirm.

FACTS[1] AND PROCEDURAL BACKGROUND

¶2 Gomes is Nina's[2] uncle. Nina often stayed the night at Gomes's home, where she spent time with her cousins and aunt. In January 2018, when Nina was ten years old, she slept at Gomes's house after a dance recital. She showered and put on her dance shorts and her aunt's shirt before going to sleep. The shirt originally belonged to Gomes, but her aunt wore it to bed almost every night. Nina slept in her cousin's bed, and her cousin, Gomes's daughter, slept on the trundle bed underneath her.

¶3 After Nina went to sleep, she woke up because her cousin was "crying and wanting a bottle." Gomes entered the room and gave her cousin a bottle. Her cousin fell back asleep. Then, Gomes sat on Nina's bed. Nina believed Gomes smelled like alcohol and pretended she was asleep. Gomes lifted her dance shorts, "put his finger where [she] pee[s]," and "scratched]." He also" lick[ed] . . . where [she] peed" and then "put [her] hand where [he] peed." Nina felt pain "[w]here [she] pee[s]." Gomes then left the room. After the assault, Nina used the bathroom and "[i]t burnt when [she] peed." She did not experience this pain before Gomes entered the room.

¶4 The next morning, Nina texted her grandmother that she was sick. Her grandmother retrieved Nina, and they went to the grandmother's house. Later, Nina told her grandmother what had happened the previous night. Nina's mother and aunt came to the house after her grandmother called them. Nina told them what had happened, and Nina's mother called the police.

¶5 Following police department instructions, Nina placed her dance shorts in a plastic bag and took them to the police. Nina's mother drove her to a facility so a forensic nurse could examine her. The nurse examined Nina and swabbed DNA samples from her body. The nurse documented "redness" in the tissue in front of Nina's hymen and labeled the finding "indeterminate." At trial, the nurse testified that physiological variations, poor hygiene, tight clothing, wiping, general irritation, rubbing, or trauma could cause the redness.

¶6 Meanwhile, a detective interviewed Gomes, took pictures of his hands, and swabbed his body for DNA samples. The detective collected Nina's shirt worn when she spent the night at Gomes's home. The police sent Nina's dance shorts and Nina's and Gomes's body samples to the crime laboratory for testing.

¶7 The crime laboratory did not detect male DNA on Nina's anal or vaginal swabs or vaginal aspirate. The laboratory detected small amounts of male DNA on Nina's right-hand swabs and external genital swabs. Nina's dance shorts tested positive for alpha-amylase, an enzyme commonly found in saliva. The Y-STR DNA profile from a sample in the crotch area of Nina's shorts matched Gomes's profile at 23 of 23 loci, meaning Gomes and his paternal line could not be excluded. This specific profile "is not expected to occur more frequently than 1 in 499 Caucasian males[,] 1 in 441 African-American males[,] and 1 in 329 Hispanic males." The laboratory did not test Gomes's body swabs based on their policy that they stop testing DNA samples when they get "comparable results" and can source DNA from a "specific individual."

¶8 In 2018, a grand jury indicted Gomes on two counts of sexual conduct with a minor and two counts of child molestation. Gomes faced charges for "digital/anal penetration" ("Count 1"), "digital/vulva penetration" ("Count 2"), "penis touch" ("Count 3"), and "oral contact with Victim's genitals" ("Count 4"). Gomes stood trial in 2019. The jury reached an impasse on all counts, causing a mistrial.

¶9 After the first trial, the State directed the crime laboratory to test Nina's shirt the night the incident occurred. The shirt tested positive for saliva and sperm and negative for semen. The Y-STR DNA profile from the saliva sample matched Gomes's profile at 3 of 23 loci. Gomes and his paternal lineage could not be excluded from this result, and the profile is "not expected to occur more frequently than 1 in 29 African-American males[,] 1 in 103 Caucasian males [,] and 1 in 49 Hispanic males."

¶10 Before the retrial, Gomes moved to exclude the new lab results, arguing that the saliva and sperm evidence from the shirt was irrelevant and unfairly prejudicial. The superior court denied the motion, finding the evidence relevant to the State's position that Gomes performed sexual acts with Nina while she wore the shirt. The superior court allowed the defense to present its explanation for the shirt's saliva and sperm to the jury. But the court found the probative value of the new DNA evidence was not substantially outweighed by undue prejudice.

¶11 Before the trial, Gomes objected to the COVID-19 policies in the Arizona Supreme Court Administrative Order 2020-197. The superior court found no constitutional violations. It rejected Gomes's argument that the policy allowing automatic juror exclusion for any COVID-19 reason inhibited the jury from representing a fair cross-section of the community.

¶12 At the retrial, Gomes testified and conceded he went into the bedroom where Nina and his daughter slept that night but claimed he was only helping his daughter fall asleep. Gomes testified he sat near Nina to lean over and soothe his daughter. He claimed he went into the room again to comfort his daughter again. He explained that parts of the bed structure were loose, so when he stood up, he needed to shift Nina back on the bed to prevent her from falling. Additionally, Gomes confirmed he consumed three beers that afternoon and had three or four more alcoholic drinks during the evening and night.

¶13 Gomes moved for a Rule 20 judgment of acquittal on all four counts. The superior court granted the motion for Count 1 but denied the motion for Counts 2, 3, and 4. The jury returned a guilty verdict on Count 2 and found Nina was under 12 and Gomes was over 18.

¶14 Gomes moved for a new trial, arguing the verdict contradicted the weight of the evidence, the prosecutor committed misconduct, and a juror committed misconduct. Acknowledging the credibility of Nina's testimony and that the defense never challenged the veracity of her statements, the court found the verdict was not contrary to the weight of the evidence. For each of the defense's allegations of prosecutorial error, the superior court either found that the State's actions did not rise to the level of error or, if an error occurred, it did not prejudice Gomes. The court likewise rejected the juror misconduct claim and explained that even if juror misconduct occurred, the defense failed to show it prejudiced Gomes. Thus, the superior court denied the motion.

¶15 The superior court sentenced Gomes to life in prison with the possibility of release after 35 years. See A.R.S. § 13-705(B). Gomes appealed his conviction and sentence. We have jurisdiction under A.R.S. § 12-120.21(A)(1), § 13-4031, and § 13-4033(A).

DISCUSSION
A. The Trial Court Did Not Err by Denying Gomes's Motion to Suppress the DNA Evidence.

¶16 On appeal, Gomes argues the court abused its discretion by allowing the State's witness to testify that the crime laboratory found male DNA and sperm on the shirt Nina wore.

¶17 Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action." Ariz. R. Evid. 401. A "court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice." Ariz. R. Evid. 403. Evidence is unfairly prejudicial if it has "an undue tendency to suggest decision on an improper basis such as emotion, sympathy or horror." State v. Schurz, 176 Ariz. 46, 52 (1993) (citation omitted). The trial court is in the best position to weigh the evidence and has broad discretion under Rule 403. State v. Harrison, 195 Ariz. 28, 33, ¶ 21 (App. 1998).

¶18 At a pretrial hearing, the State's expert confirmed the laboratory found a few sperm on the shirt and a low male DNA level matching Gomes's profile at 3 of 23 loci. Other locations were either inconclusive or lacked sufficient DNA to analyze the profile. The DNA findings tracked the analysis performed on Nina's shorts.

¶19 Considering the low amount of sperm and male DNA, the State's expert stated the lab results generally conflict with fresh ejaculate. But the expert explained sperm could present on an item without coming from fresh ejaculate because sperm is sturdier than semen. Sperm can survive the...

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