State v. Gomez

• Decision Date: 08 August 2019
• Docket Number: No. 2 CA-CR 2018-0052,2 CA-CR 2018-0052
• Parties: THE STATE OF ARIZONA, Appellee, v. CHRIS THOMAS GOMEZ, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee, v. CHRIS THOMAS GOMEZ, Appellant.

No. 2 CA-CR 2018-0052

ARIZONA COURT OF APPEALS DIVISION TWO

August 8, 2019

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).

Appeal from the Superior Court in Pima County

No. CR20163385001

The Honorable Bryan B. Chambers, Judge

REVERSED AND REMANDED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Chief Counsel

By Kathryn A. Damstra, Assistant Attorney General, Tucson

Counsel for Appellee

Richard C. Bock, Tucson

and

Harley Kurlander, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring concurred and Judge Brearcliffe dissented.

VÁSQUEZ, Chief Judge:

¶1 After a jury trial, Chris Gomez was convicted of sexual assault, and the trial court sentenced him to 5.75 years' imprisonment. This appeal requires us to consider the admissibility of DNA evidence—specifically, an "inconclusive" DNA profile that included two alleles also contained in Gomez's profile. For the reasons stated below, we reverse Gomez's conviction and remand for a new trial.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to affirming Gomez's conviction. See State v. Miles, 211 Ariz. 475, ¶ 2 (App. 2005). Early one morning in July 2016, J.B. was working as an Uber driver when she received a notification that someone—later identified as Gomez—had requested a ride. When J.B. picked him up, Gomez sat in the front passenger seat of her van and directed her to an apartment complex on the northeast side of Tucson, approximately forty minutes away.

¶3 According to J.B., once they arrived at the complex and she had parked, she tried to "end the trip" using the Uber software application on her cell phone, but Gomez grabbed her wrist. Gomez then used one arm to restrain her and the other to pull her closer to him. Gomez "push[ed J.B.'s] bra and . . . dress down," kissing her face, neck, chest, and breast. J.B. repeatedly told him to stop and tried scratching him. According to J.B., Gomez pulled up her dress and "put his fingers inside . . . [her] vagina." While Gomez tried to remove his pants, J.B. managed to push him away and get out of the van. J.B. then demanded that Gomez get out, and, after initially trying to coax her back into the van, he eventually complied. As Gomez walked toward her, J.B. "immediately got back in the van, closed the door and hit the lock button." Gomez started knocking on the window, telling J.B. that he "wanted to talk about what just happened," but she drove off.¶4 J.B. called her husband, R.R., and told him what had happened.¹ He told her to go somewhere safe, and she drove to a nearby gas station and called 9-1-1. After J.B. spoke with the responding officers, she went to a nearby hospital, where nurses performed a sexual-assault examination and collected DNA samples from her face, neck, chest, breasts, fingernails, vagina, and external genital areas.

¶5 Officers received information from Uber identifying Gomez as the individual to whom J.B. had given a ride that night. J.B. also received the following message from Gomez through the Uber application: "Sorry about all that. Way out of line." However, in an initial interview with officers, Gomez reported that "nothing happened" and that he "never touched" J.B. A grand jury indicted Gomez for one count of sexual assault of J.B. "by placing his finger(s) in her vagina."

¶6 A DNA analyst matched the DNA taken from J.B.'s face, neck, chest, and breasts to Gomez. However, the analyst could neither include nor exclude Gomez as a contributor of the DNA found under J.B.'s fingernails. As for the vaginal and external genital samples, the analyst performed a Y-DNA test to exclude J.B.'s DNA,² and those swabs showed the "full profile" for R.R.³ She excluded Gomez as a contributor to the vaginal swabs. On the external genital swabs, however, the analyst found "two additional male DNA markers or . . . [a]lleles," that were contained in Gomez's profile. She explained that because there were only "two markers" and "the rest of that minor DNA profile" was absent, she could draw no conclusions about whether it matched any specific person's DNA profile. The minor Y-DNA profile on the external genital swabs was therefore "inconclusive."

¶7 Before trial, Gomez filed a motion in limine to preclude "[a]ny testimony of a minor Y-DNA profile obtained from the external genital swabs." He argued the evidence was not relevant because "there is not sufficient facts or data" to "make a scientific conclusion" or "run statistics." He therefore reasoned the evidence was inadmissible under Rules 401 and 702, Ariz. R. Evid. The state responded that the analyst "can't say, using statistical analysis, that this defendant is the one who is responsible for leaving that DNA there," but the state nevertheless argued "it is absolutely relevant" because "this is her analysis, this is how [the analyst is] able to run this comparison, this is how she performs her work." In reply, Gomez maintained the evidence "runs a gigantic risk of confusing the jury." The trial court ruled the evidence admissible but precluded the state from arguing that "this particular result of the DNA test shows that [Gomez's] DNA was there." In part, the court explained, "If we leave out the results here, we'll get a jury question." It reasoned that "the absence of a result . . . may lead to more speculation than just telling [the jury] it's inconclusive." The court also provided that if the state "infer[s] anything more than that, there might be a curative instruction."

¶8 During trial, the prosecutor asked the DNA analyst about the external genital swabs, and she confirmed that the major Y-DNA profile matched R.R. However, the analyst also testified she had identified a minor Y-DNA profile, explaining that, because she only found two DNA markers, there was insufficient information to make any sort of comparison. She thus stated that the minor Y-DNA profile was "inconclusive" and could not be matched to any specific DNA profile without additional testing. When the prosecutor asked about the minor alleles, defense counsel requested a sidebar conference. Defense counsel argued, "This is the exact same inference that the Court said could not be drawn. And this line of questioning is highlighting this portion of the report and asking the jury to draw that inference." In response, the prosecutor explained, "She's not going to be able to say it's him. I'm not going to argue it's him. But the jury can see the information. These are the facts." The court overruled the objection.

¶9 The analyst then testified that the two alleles found in the minor Y-DNA profile were contained in Gomez's profile but that she could not determine "this DNA is . . . Gomez's" because with "only two types in the minor DNA profile" there is not enough information for "any kind of comparison." She stated, "[T]he minor DNA profile and the external genital swab is inconclusive."

¶10 When Gomez testified later that day, he acknowledged that he had contacted Uber to request a ride and that J.B. was his driver. Gomez explained that, after J.B. had parked her van at the apartment complex, they had continued talking, and, because he thought J.B. was "interested" in him, he leaned over and started kissing her. According to Gomez, J.B. "[r]eciprocat[ed]"; he continued to kiss her neck, chest, and breasts, and she "[e]njoyed it." Gomez testified that when he tried to kiss J.B. on the lips again, she pulled away, explaining she was in a relationship. He stated that he stopped, apologized, and left. Gomez denied "put[ting his] fingers inside of her vagina" or doing anything that was not consensual.

¶11 During closing arguments, the prosecutor encouraged the jury to review the DNA analyst's reports, explaining that they should "read carefully what her results say because you need to make sure you're picking up on the major and the minor." She recounted the test results of the different DNA samples, and, specifically with regard to the external genital samples, she stated those swabs had "the exact same Y male profile" as R.R. but "there [were] two outliers" that belonged to another male contributor. She continued:

Gomez is excluded as the major contributor. The minor Y is inconclusive for comparison purposes. There is not enough for her to say and there never will be.

. . . .

What does inconclusive mean? What did she tell us? You can't say anything about it. You can't say whether someone's included or excluded. There's simply not enough.

[Defense counsel asked the analyst], so it could be anyone in the world and we just don't know? She said, yeah, it's true. But when we look at the evidence in this case, who can tell us who the other male was?

¶12 At that point, Gomez requested a mistrial. The prosecutor responded, "What I was about to say is the one person who can tell us who the other male was is [J.B.] because she is the one who says there is another male that touched me." The prosecutor reasoned that, because "[t]here's another male present on . . . her genital[] swabs[, t]hat's an inference fromthe evidence that I get to draw." The trial court denied Gomez's motion for a mistrial.

¶13 The prosecutor resumed her argument:

Who did [J.B.] tell you was forcing his fingers in her vagina? This defendant. That narrows down the it could be anyone in the world to the only other possibility that it could be.

It's not the DNA evidence because that's inconclusive. But you don't have to take things in a vacuum when you decide this case. You decide this case based on the totality of the circumstances, absolutely everything that you've heard in this courtroom.

In rebuttal, the prosecutor further stated, "The DNA evidence helps corroborate the things that [J.B.] said happened to her from the very...