State v. Rivera ( 2016 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
DAMIEN FAUSTINO RIVERA, Appellant.
No. 1 CA-CR 15-0061
FILED 2-25-2016
Appeal from the Superior Court in Maricopa County
No. CR 2012-153107-001
The Honorable Warren J. Granville, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Christopher M. DeRose
Counsel for Appellee
The Law Office of Kyle T. Green, PLLC, Mesa
By Kyle Green
Counsel for Appellant
STATE v. RIVERA
Decision of the Court
MEMORANDUM DECISION
Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge John C. Gemmill joined.
D O W N I E, Judge:
¶1 Damien Faustino Rivera appeals his convictions for four
counts of molestation of a child, class 2 felonies and dangerous crimes
against children, five counts of sexual conduct with a minor, class 2 felonies
and dangerous crimes against children, and eight counts of public sexual
indecency to a minor, class 5 felonies, in violation of Arizona Revised
Statutes (“A.R.S.”) sections 13-1410, -1405, and -1403. For the following
reasons, we affirm.
DISCUSSION
I. Motion for Judgment of Acquittal
¶2 In cursory fashion, Rivera argues the superior court erred by
denying his motion for judgment of acquittal pursuant to Arizona Rule of
Criminal Procedure 20 (“Rule 20”). We review the denial of a Rule 20
motion de novo. State v. Boyston, 231 Ariz. 539, 551, ¶ 59 (2013). We view
the evidence “in the light most favorable to the prosecution” in determining
whether substantial evidence — both direct and circumstantial — supports
the convictions. See State v. West, 226 Ariz. 559, 562, ¶ 16 (2011).
¶3 Rivera contends the two victims’ “statements failed to
corroborate with each other,” and asserts that the victims “failed to agree
as to where the alleged acts took place.” The record, however, reveals
evidence sufficient to submit the issue of Rivera’s guilt or innocence to the
jury.
¶4 The older victim testified Rivera had molested her and the
younger victim in both the victims’ bedroom and their parents’ bedroom.
The younger victim testified about “[a] bunch of times” she recalled Rivera
molesting both victims, which “usually” happened in their parents’
bedroom. Both victims also testified consistently in other respects,
including: being touched by Rivera while in the same room together; their
pants being removed; where their other siblings were while the molestation
was occurring; the presence of Rivera’s semen; and promises Rivera made
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STATE v. RIVERA
Decision of the Court
to keep them from disclosing the molestation. The victims’ brother also
testified he had come into the house to “see where everybody was” and saw
Rivera in the bedroom, under the covers, with the victims.
¶5 “No rule is better established than that the credibility of the
witnesses and the weight and value to be given to their testimony are
questions exclusively for the jury.” State v. Clemons, 110 Ariz. 555, 556–57
(1974). Any inconsistencies in the victims’ recounts were subject to cross-
examination, and jurors were entitled to give the victims’ testimony the
weight they believed it deserved. This Court does not reweigh the evidence
on appeal to determine whether we would reach the same conclusion as the
jurors. See State v. Guerra, 161 Ariz. 289, 293 (1989).
¶6 Rivera also states without elaboration that his Rule 20 motion
should have been granted because “the State’s counts were duplicative of
each other in dates and acts.” Issues not clearly raised and argued in a
party’s appellate brief are waived. Schabel v. Deer Valley Unified Sch. Dist.
No. 97, 186 Ariz. 161, 167 (App. 1996). Waiver notwithstanding, the record
reflects that the superior court carefully analyzed Rivera’s claims and
dismissed several counts it deemed duplicative and/or not supported by
the evidence.1
¶7 The superior court did not err in denying Rivera’s motion for
judgment of acquittal.
II. Evidentiary Ruling
¶8 Rivera also argues the superior court improperly precluded
cross-examination of the older victim about a false statement she had made
about an unrelated incident. He contends that, because the victims’
credibility was a central issue, “[p]rohibiting him from challenging the
witness’s credibility prevented him from being able [to] assert his theory of
the case.”
1 During argument of the Rule 20 motion, the court stated that “in
light of the fact that the charges in this case have broad time span and broad
action allegations and the manner in which the testimony was provided by
the two young victims, the Court would ask the State to provide proof of
substantial evidence for each of the counts.” Following that request, the
prosecutor recited evidence supporting each count. The court subsequently
granted Rivera’s Rule 20 motion with respect to five of the counts in the
original 25-count indictment.
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STATE v. RIVERA
Decision of the Court
¶9 We discern no abuse of discretion. See State v. Murray, 184
Ariz. 9, 30 (1995) (appellate court reviews decision to preclude
impeachment evidence using specific instances of conduct for an abuse of
discretion). The statement Rivera sought to introduce concerned a report
of sexual activity between the older victim and a 16-year-old boy. Rivera
wanted to question the victim about her initial statement to Child Protective
Services (“CPS”) because — at the direction of her mother — the victim had
related that the activity occurred at school, rather than at her mother’s
home, in order to “shift the blame” away from her mother. When the
victim’s father and stepmother confronted her about the misstatement, she
cried and promptly “retracted what she said.”2
¶10 The State argues Rivera’s intended cross-examination would
have violated A.R.S. § 13-1421, Arizona’s “Rape Shield Statute.” This
statute prohibits evidence of a victim’s prior sexual conduct except under
five enumerated circumstances, all of which apply only after the trial court
“finds the evidence is relevant and is material to a fact in issue in the case
and that the inflammatory or prejudicial nature of the evidence does not
outweigh” its probative value. A.R.S. § 13-1421(A). Rivera contends the
statute does not apply because he intended only to question the victim “as
to previous statements she made, which were false.”
¶11 We assume, without deciding, that A.R.S. § 13-1421 did not
apply to the proffered statement. The superior court, however, based its
evidentiary ruling on a second, independent ground that is clearly
supported by the record. Specifically, the court ruled that, “independent of
the [s]tatute,” the victim’s statement was “not relevant as to whether the
allegations against Mr. Rivera . . . more likely occurred or less likely
occurred or would involve confusion and a mini-trial on allegations that are
not in front of this jury, not involving this defendant.” The court also
expressed concern that, unless the State could offer the entire explanation
surrounding the victim’s reporting of the other incident, the intended
questioning would confuse the jury.
¶12 The extent of cross-examination to be permitted is within the
discretion of the trial judge and will not be disturbed on appeal unless that
discretion has clearly been abused. State v. Zuck, 134 Ariz. 509, 513 (1982).
And although trial courts should permit “wide latitude” in cross-
examination, Arizona Rule of Evidence 403 permits the preclusion of
questioning that does little to impair credibility and may be invasive of a
witness’s privacy. Id. “The court may prevent cross-examination into
2 Rivera accepted the State’s factual proffer on this point as accurate.
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STATE v. RIVERA
Decision of the Court
collateral matters of a personal nature having minor probative value . . . .”
Id.; see also State v. Dunlap, 187 Ariz. 441, 456 (App. 1996) (cross-examination
may be limited based on concerns for harassment, prejudice, confusion of
issues, witness safety, or marginal relevance).
¶13 A reasonable trier of fact could conclude that the probative
value of the victim’s initially false statement to CPS about the location of
the incident with the teenaged boy was minimal, particularly because she
had been instructed by her mother to provide the false information. There
is no suggestion the victim falsely accused anyone of improper sexual
conduct on that occasion.3 Under these circumstances, the superior court
could conclude that questioning the victim about the statement would do
little to impair her credibility and would likely confuse the jury and require
inquiry into collateral matters. Cf. Shotwell v. Donahoe, 207 Ariz. 287, 296,
¶ 34 (2004) (“The greater the probative value and the more significant in the
case the issue to which it is addressed, the less probable that factors of
prejudice or confusion can substantially outweigh the value of the
evidence.”).
¶14 The superior court did not abuse its discretion in precluding
Rivera’s proposed questioning of the victim.
CONCLUSION
¶15 For the foregoing reasons, we affirm Rivera’s convictions.
:ama
3 Indeed, when the trial court asked whether the defense had “a
proffer that there is a motive by [the victim] to falsely accuse Mr. Rivera
because of this prior incident,” defense counsel responded, “As it relates to
the prior incident, Judge, no.”
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