State v. Mendoza, 052820 AZAPP1, 1 CA-CR 18-0847

Docket Nº:1 CA-CR 18-0847, 1 CA-CR 19-0200
Opinion Judge:JONES, Judge:
Party Name:STATE OF ARIZONA, Appellee, v. RAFAEL NADIM MENDOZA, Appellant.
Attorney:Arizona Attorney General's Office, Phoenix By Terry M. Crist III Counsel for Appellee Piccarreta Davis Keenan Fidel, P.C., Tucson By Michael L. Piccarreta, Jefferson L. Keenan Counsel for Appellant
Judge Panel:Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Michael J. Brown and Judge D. Steven Williams joined.
Case Date:May 28, 2020
Court:Court of Appeals of Arizona
 
FREE EXCERPT

STATE OF ARIZONA, Appellee,

v.

RAFAEL NADIM MENDOZA, Appellant.

Nos. 1 CA-CR 18-0847, 1 CA-CR 19-0200

Court of Appeals of Arizona, First Division

May 28, 2020

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Nos. CR2016-002288-001, CR2016-002288-001 The Honorable Geoffrey H. Fish, Judge

Arizona Attorney General's Office, Phoenix By Terry M. Crist III Counsel for Appellee

Piccarreta Davis Keenan Fidel, P.C., Tucson By Michael L. Piccarreta, Jefferson L. Keenan Counsel for Appellant

Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Michael J. Brown and Judge D. Steven Williams joined.

MEMORANDUM DECISION

JONES, Judge:

¶1 Rafael Mendoza appeals from his convictions and sentences for child molestation, sexual abuse, and aggravated assault, and the trial court's order denying his post-trial motion to vacate the judgment of guilt. For the following reasons, we vacate the convictions and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶2 In October 2018, the State tried Mendoza on six counts of aggravated assault, four counts of sexual conduct with a minor, and one count each of sexual abuse and child molestation, all involving the ten-year-old daughter of Mendoza's former girlfriend (the victim).[1] The State presented evidence that Mendoza visited the victim's home on May 21, 2014. The victim testified that while her mother and sister were in another room, Mendoza touched, kissed, and/or licked the victim's toe, stomach, breast, vagina, and anus. The victim reported the contact to her mother, who called the police one hour later. The victim participated in a videotaped forensic interview the next day, and Mendoza's DNA was found on swabs taken from the victim's toe, navel, and breast. Over Mendoza's objections, the recorded interview was admitted into evidence at trial, played in its entirety, and made available to the jury during its deliberations.

¶3 Mendoza defended the charges upon the theory that the victim "confabulated" the incident - that is, that the victim genuinely, but mistakenly, believed the events occurred as described.2 To support his theory, Mendoza presented evidence that the victim had been diagnosed with autoimmune encephalitis3 and was experiencing a flare-up at the time. According to Mendoza's expert, this condition could cause the victim to hallucinate and rendered her extremely susceptible to suggestion from her mother, who was angry at Mendoza for seeing another woman. The defense also proposed that Mendoza's DNA was transferred onto the victim's body through innocent contact - when he rubbed her feet that evening and after the victim had lain in her mother's bed.

¶4 The jury convicted Mendoza of two counts of aggravated assault, one count of sexual abuse, and three counts of child molestation.4The trial court sentenced him to concurrent prison terms, the longest of which was thirteen years. After moving unsuccessfully to vacate the judgment, Mendoza timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1), 5 13-4031, and 13-4033(A)(1), (3).

DISCUSSION

I.

Admission of Recorded Interview

¶5 Mendoza argues the recording of the forensic interview was hearsay, and the trial court erred in admitting it to bolster the victim's credibility and as substantive evidence of the offenses. The State argues the recorded interview constituted non-hearsay evidence of the victim's demeanor, and, to the extent the State "occasionally" relied upon the recording for its truth, it was admissible as a recorded recollection, and, to the extent the recording was not admissible, the evidence was cumulative. We review the interpretation and application of the Arizona Rules of Evidence de novo. Johnson v. State, Dep't of Transp., 224 Ariz. 554, 556, ¶ 9 (2010) (citing State v. Hansen, 215 Ariz. 287, 289, ¶ 6 (2007)).

¶6 Hearsay is "a statement . . . the declarant does not make while testifying at the current trial or hearing . . . [and is] offer[ed] in evidence to prove the truth of the matter asserted in the statement." Ariz. R. Evid. 801(c). Hearsay is generally considered unreliable and inadmissible unless an exception applies. See Ariz. R. Evid. 802.

¶7 The State argues the trial court properly admitted the recording of the forensic interview as non-hearsay evidence to rebut Mendoza's suggestion that the victim was experiencing a flare-up of autoimmune encephalitis during the reported events. But even if symptoms of the victim's condition were observable on a video-recording, which is not...

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