State v. Gonzalez
| Decision Date | 13 April 2020 |
| Docket Number | No. 2 CA-CR 2018-0201,2 CA-CR 2018-0201 |
| Parties | THE STATE OF ARIZONA, Appellee, v. RAUL OTTO GONZALEZ, Appellant. |
| Court | Arizona Court of Appeals |
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NOT FOR PUBLICATION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
The Honorable Gus Aragón, Judge
AFFIRMED
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee
Joel Feinman, Pima County Public Defender
By Michael J. Miller, Assistant Public Defender, Tucson
Counsel for Appellant
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred.
¶1 Raul Gonzalez appeals from his convictions and sentences for three counts of child molestation. For the following reasons, we affirm.
¶2 "We view the evidence presented at trial in the light most favorable to upholding the verdict, drawing all reasonable inferences against the defendant." State v. Mendoza, 234 Ariz. 259, ¶ 2 (App. 2014). The victim in this case is Gonzalez's granddaughter, B.G., who was six and seven years old at the time of the events charged in the indictment.
¶3 B.G. was adopted by her grandmother, Gonzalez's wife, when B.G. was one year old. In October 2015, Gonzalez left B.G.'s grandmother and moved to Las Vegas with his girlfriend.
¶4 In April 2016, when B.G. was seven years old, Gonzalez returned to Tucson and stayed with her for two days while her grandmother was in the hospital for knee surgery. B.G. testified that, during that time, Gonzalez did "some inappropriate stuff" to her, including "putting his private part inside [her] bottom."
¶5 Gonzalez visited Tucson again around the Fourth of July holiday in 2016, when B.G. was still seven. She testified at trial that, during this visit, Gonzalez had her sit on his lap in the garage and made her feel uncomfortable, although she had some difficulty remembering the details. After the state refreshed her recollection using the transcripts of her forensic interviews at the Children's Advocacy Center, B.G. testified that, while she sat on his lap, Gonzalez used his fingers to "dig" in or rub her "private part," under her underwear, which made her feel "gross."
¶6 B.G. also testified that when she was six years old, Gonzalez "did something inappropriate" to her, but she did not recall the details. The video recordings of B.G.'s forensic interviews were then played for the jury. In those videos, B.G. told the interviewer that, when she was six years old and sleeping in her grandmother's bed, Gonzalez had rubbed his privatepart on her bottom, making her "butthole" feel "slimy." During the recorded interview, B.G. also stated that she had asked Gonzalez to stop without success, and that he had warned her not to tell anyone because the police would "get him."
¶7 At the end of an eight-day trial, a jury found Gonzalez guilty of three counts of molestation of a child twelve years of age or younger. The trial court sentenced him to concurrent twenty-year prison terms. We have jurisdiction over Gonzalez's appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
¶8 At trial, Gonzalez argued his wife encouraged B.G. to fabricate the claims against him in retaliation for his infidelity. In support of that claim, Gonzalez repeatedly sought to elicit testimony that his wife had called their son (B.G.'s uncle) on July 2—a number of days before B.G. was said to have reported the abuse—to tell him "something bad or horrible had happened." Each time, the state objected on hearsay grounds. Gonzalez explained he was "not trying to bring it out for the truth of the matter asserted" (that something horrible had happened), "but rather to impeach what [his wife] had said during her testimony regarding the contact." Nevertheless, the trial court sustained the hearsay objections. Gonzalez now challenges those rulings, arguing the statements were being introduced not for their truth, but to show that Gonzalez's wife "had a plan" to harm him by fabricating abuse and influencing B.G. to report it.1
¶9 We review hearsay rulings on grounds raised at trial for an abuse of discretion, but the meaning of the rules of evidence is a legal question we review de novo. See State v. Payne, 233 Ariz. 484, ¶ 49 (2013). Out-of-court statements are hearsay only if they are offered "to prove the truth of the matter asserted in the statement." Ariz. R. Evid. 801(c)(1), (2). The statements of Gonzalez's wife at issue here were not being offered for their truth; indeed, Gonzalez's entire defense was that any statements claiming "something horrible" had happened to B.G. were not true. The trial court erred in excluding those statements on hearsay grounds.
¶10 We acknowledge that these rulings prevented Gonzalez from presenting evidence to support his theory of the case with as much vigor as might otherwise have been possible. However, other evidencedemonstrating that the phone calls occurred on July 2 was properly admitted. This allowed Gonzalez to argue the issue in summation, which he did. In light of the substantial evidence of guilt, we find this modest constraint on the defense case harmless. See State v. Granados, 235 Ariz. 321, ¶ 30 (App. 2014) ().
¶11 In its rebuttal closing argument, the prosecution stated the following to the jury:
Well, ladies and gentlemen, the defense in this case has no burden. That all rests with the State. But you can bet that if there was an expert witness out there that could describe the behavior that [B.G.] was exhibiting as her hiding something, they would have brought that person in here and you would have heard from them.
Defense counsel objected on the ground of burden shifting. The trial court overruled the objection but warned the state: The state then proceeded to argue to the jury:
¶12 On appeal, Gonzalez contends the state's argument constituted prosecutorial misconduct because it involved burden shifting, reference to facts not in evidence, and vouching. We review the trial court's ruling on Gonzalez's burden-shifting objection for an abuse of discretion. State v. Pandeli, 215 Ariz. 514, ¶ 30 (2007); see also State v. Zaragoza, 135 Ariz. 63, 68 (1983) (). However, because Gonzalez did not argue below that the prosecutor argued facts not in evidence or vouched, we review those claims only for fundamental error. State v. Hulsey, 243 Ariz. 367, ¶ 88 (2018).
¶13 Gonzalez had argued at length during his closing argument that B.G. was lying during her forensic interviews and on the stand. The challenged statements from the prosecution responded to those arguments. The state was entitled to respond, and we find no burden shifting, particularly given that Gonzalez took the stand in his own defense such that the state's comments could not have been understood as a comment on hisright to remain silent. See State ex rel. McDougall v. Corcoran, 153 Ariz. 157, 160 (1987) ().
¶14 However, parties must avoid making arguments from which a jury could draw an incorrect inference, and they "cannot make insinuations that have no evidentiary support." Hulsey, 243 Ariz. 367, ¶ 97. The prosecution's statement at issue here implied that expert testimony regarding B.G.'s credibility would have been admissible,2 and that the defense had necessarily explored with potential experts whether B.G.'s statements bore the hallmarks of truthfulness—an inference with no basis in the record. See State v. Corona, 188 Ariz. 85, 89-90 (App. 1997) ().
¶15 Indeed, the prosecution's statement also could be understood by a jury to imply: (a) that such experts are commonly called by defendants to give an opinion contrary to a child victim;3 (b) that, if such an expert exists, Gonzalez or the public defender had the resources necessary toretain him or her; (c) that, as a matter of strategy, a defendant would necessarily call such an expert regardless of other considerations (e.g., that such expert testimony might be perceived as demeaning to or invasive of the jury's role to determine credibility); and (d) that an expert, if called, would not have provided testimony favorable to Gonzalez. None of these potential inferences was supported by any evidence presented in the case. See Hulsey, 243 Ariz. 367, ¶ 97.
¶16 When a prosecutor suggests in argument that it possesses information bearing on a witness's credibility that the jury has not received in evidence, the prosecutor engages in improper vouching. State v. Acuna Valenzuela, 245 Ariz. 197, ¶ 75 (2018) (quoting State v. Vincent, 159 Ariz. 418, 423 (1989)). Here, the state's argument suggested it possessed knowledge, not presented in evidence, about how an expert would assess the victim's credibility and how the defense team had assembled its case in light of that information. In so doing, it bolstered B.G.'s credibility by reference to matters not in evidence. See id. (quoting State v. King, 180 Ariz. 268, 277 (1994)). In short, this argument was improper both...
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