State v. Ruedas ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
GUILLERMO SOLIS RUEDAS, Appellant.
No. 1 CA-CR 21-0364
FILED 7-28-2022
Appeal from the Superior Court in Maricopa County
No. CR2018-143964-001
The Honorable Frank W. Moskowitz, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Jesse Finn Turner
Counsel for Appellant
STATE v. RUEDAS
Decision of the Court
MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the court, in which
Presiding Judge David D. Weinzweig and Judge Randall M. Howe joined.
W I L L I A M S, Judge:
¶1 Guillermo Solis Ruedas appeals his convictions and sentences
for two counts of sexual abuse, one count of sexual conduct with a minor,
and one count of molestation of a child. For the following reasons, we
affirm.
FACTUAL1 AND PROCEDURAL HISTORY
¶2 For a handful of years, Ruedas lived with his girlfriend and
her three children. One of the children, Anna,2 was twelve years old when
she told her mother that Ruedas had touched her inappropriately just
weeks prior. Anna’s mother confronted Ruedas, who admitted to touching
Anna. Ruedas moved out of the house that same day. Months later, Anna’s
mother took her to a therapist and contacted the police.
¶3 The State charged Ruedas with four counts of sexual abuse,
class three felonies, (Counts 1, 2, 4, 5), and three counts of sexual conduct
with a minor, class two felonies, (Counts 3, 6, 7). Ruedas was tried by a jury
in 2021.
¶4 At trial, Anna testified Ruedas touched her inappropriately
on two occasions in November 2017. The first occurred one evening while
she and Ruedas watched a movie together in the living room. Ruedas, who
was drinking beer, started massaging Anna’s arms and shoulder area. Anna
felt it was “a little weird” and left to take a shower.
¶5 When she returned, Ruedas massaged her breasts, touched
her vagina “inside of the folds” with his fingers, and licked her vagina.
1“We view the facts in the light most favorable to sustaining the convictions
with all reasonable inferences resolved against the defendant.” State v.
Valencia, 186 Ariz. 493, 495 (App. 1996).
2 “Anna” is a pseudonym used to protect the victim’s privacy.
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Anna was “scared” and “just couldn’t move.” Ruedas stopped when a car
pulled up to the house. Anna then went to her room for the night.
¶6 Anna testified the second occurrence happened the following
day. Ruedas, who was again drinking beer, went into Anna’s room, laid on
her bed, and started kissing her on the lips. Ruedas touched Anna’s breasts,
then “took out his penis” and asked if she “want[ed] to touch it.” Anna said
nothing. Ruedas left the room shortly after that. Later that day, Ruedas told
Anna not to tell anyone about what happened.
¶7 The State played for the jury portions of Anna’s forensic
interview, which she had given more than three years before trial. During
that interview, Anna stated Ruedas had also touched her breasts before she
showered the evening of the first occurrence.
¶8 The State also read for the jury portions of transcripts from
various confrontation calls police helped Anna’s mother make to Ruedas.
In one of those calls, Anna’s mother asked Ruedas if he had “touch[ed]
[Anna’s] vagina one time or two times” to which Ruedas responded, “I just
remember—just that one and that’s it.” Later in that same call, Anna’s
mother asked Ruedas if it was “one time or two times” that he had touched
Anna’s breasts to which Ruedas responded, “I just remember one. One
time.” In another call, Ruedas again stated, “I just remember one time,”
when Anna’s mother asked him if he had touched Anna’s vagina “one time
or two times.” Ruedas repeated the same, “I just remember one,” later in
that conversation when Anna’s mother asked him if he “touch[ed] [Anna’s]
breasts one or two times.”
¶9 At the close of the State’s case-in-chief, Ruedas moved for
judgment of acquittal on all counts under Arizona Rule of Criminal
Procedure (“Rule”) 20(a). The trial court granted the motion as to Count 6
but denied the motion as to all other counts. The court also discussed the
State’s proposed verdict forms. Ruedas agreed to the verdict forms when
the State agreed to add a lesser-included offense of molestation of a child to
Counts 3 and 7 pursuant to Rule 21.4.
¶10 The jury convicted Ruedas as charged in Counts 1 (sexual
abuse for touching Anna’s breast in the living room before she showered),
2 (sexual abuse for touching Anna’s breast in the living room after she
showered), and 3 (sexual conduct with a minor for penetrating Anna’s labia
with his fingers). The jury also convicted Ruedas of the lesser-included
offense in Count 7 (molestation of a child). The jury did not reach any
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verdict on Count 4 and acquitted Ruedas on Count 5. On the State’s motion,
the trial court dismissed Count 4 with prejudice.
¶11 The court sentenced Ruedas on each of the four Dangerous
Crimes Against Children as follows: 1) Counts 1 and 2 – a less than
presumptive term of 3 years imprisonment to run concurrently with each
other but consecutive to Counts 3 and 7 (presentence incarceration credit in
Count 2 of 1,073 days); 2) Count 3 – a term of life imprisonment without the
possibility of parole for 35 years (presentence incarceration credit of 1,073
days); 3) Count 7 – a less than presumptive term of 13.5 years imprisonment
to run consecutive to Count 3.
¶12 Ruedas timely appealed. We have jurisdiction under Article
6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1),
13-4031, and -4033(A)(1).
DISCUSSION
I. Rule 20 Motion
¶13 Ruedas first argues the trial court erred in denying his Rule
20 motion. We review the denial of a Rule 20 motion for a judgment of
acquittal de novo and will uphold the trial court’s decision if, “after viewing
the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt.” State v. Clow, 242 Ariz. 68, 70, ¶ 9 (App. 2017) (internal
quotation marks and citation omitted).
¶14 The trial court is obligated to enter a judgment of acquittal
after the State presents its evidence “if there is no substantial evidence to
support a conviction.” Ariz. R. Crim. P. 20 (a)(1). “The substantial evidence
required to support a conviction may be direct or circumstantial.” State v.
Teagle, 217 Ariz. 17, 27, ¶ 40 (App. 2007).
a. Sexual Abuse (Counts 1 and 2)
¶15 “A person commits sexual abuse by intentionally or
knowingly engaging in sexual contact . . . with any person who is under
fifteen years of age if the sexual contact involves only the female breast.”
A.R.S. § 13-1404(A). “Sexual contact” is defined as “any direct or indirect
touching, fondling or manipulating of any part of the . . . female breast by
any part of the body or by any object or causing a person to engage in such
contact.” A.R.S. § 13-1401(A)(3)(a).
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¶16 Here, because Anna was under fifteen years of age in
November 2017 (she was only twelve), the State had to establish that
Ruedas intentionally or knowingly engaged in any direct or indirect
touching, fondling or manipulating of any part of Anna’s breast (1) in the
living room before she showered (Count 1), and (2) in the living room after
she showered (Count 2). See A.R.S. § 13-1404(A); see also A.R.S. § 13-1401.
The State played for the jury portions of Anna’s forensic interview where
she stated that Ruedas touched her breasts in the living room before she
showered. The jury heard Anna testify that Ruedas touched her breasts in
the living room after she showered. The jury also had read to them portions
of confrontation call transcripts between Anna’s mother and Ruedas where
Ruedas admitted to touching Anna’s breasts once. Substantial evidence
supported convictions for Counts 1 and 2.
b. Sexual Conduct with a Minor (Count 3)
¶17 “A person commits sexual conduct with a minor by
intentionally or knowingly engaging in sexual intercourse . . . with any
person who is under eighteen years of age.” A.R.S. § 13-1405(A). “Sexual
intercourse” is defined as “penetration into the penis, vulva or anus by any
part of the body or by any object or masturbatory contact with the penis or
vulva.” A.R.S. § 13-1401(A)(4).
¶18 The State presented evidence that Ruedas penetrated Anna’s
vulva with his fingers as alleged in Count 3. Anna testified that when she
got out of the shower Ruedas “touch[ed] [her] vagina with his fingers,”
further describing the act as follows: “So at first it was like on the outside, I
believe that’s called the vulva, the hole, yeah. So then he like started putting
his fingers like inside of the folds, I guess, and then just like moving them
around.” Anna also used a diagram to illustrate how Ruedas put his finger
in between the labia minora and the labia majora. Further, Ruedas admitted
to Anna’s mother that he touched Anna’s vagina. Substantial evidence
supported a conviction for Count 3.
c. Molestation of a Child (Count 7)
¶19 “A person commits molestation of a child by intentionally or
knowingly engaging in or causing a person to engage in sexual contact . . .
with a child who is under fifteen years of age.” A.R.S. § 13-1410(A); see also
A.R.S. § 13-1401(A)(3)(a) (defining “sexual contact”).
¶20 Here, the State presented evidence during Anna’s testimony
that Ruedas molested Anna by intentionally or knowingly putting his
mouth on her genitals. Anna testified that, while in the living room, Ruedas
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STATE v. RUEDAS
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moved to “the floor and started using his tongue and licked my vagina.”
Substantial evidence supported a conviction of the lesser-included offense
of molestation of a child for Count 7.
¶21 The trial court correctly denied Ruedas’s Rule 20 motion on
Counts 1, 2, 3, and 7.
II. Verdict Form for Count 3
¶22 Ruedas also argues the trial court erred in not sua sponte
adding an interrogatory to Count 3’s verdict form asking the jury to
determine whether the offense constituted penetrative or masturbatory
conduct. Because Ruedas did not raise this issue at trial, he “must establish
both that fundamental error exists and that the error in his case caused him
prejudice.” See State v. Henderson, 210 Ariz. 561, 567, ¶ 20 (2005); see also Ariz.
R. Crim. P. 21.3(b) (providing appellate review may be limited “[i]f a party
does not make a proper objection” to a proposed verdict form).
¶23 Under Rule 21.2, parties “may submit to the court proposed
verdict forms.” “The court must confer with the parties before closing
argument and inform them of its proposed . . . verdict forms.” Ariz. R. Crim.
P. 21.3(a). Proper objections to a verdict form “must be made before the jury
retires to consider its verdict,” and, if not, appellate review may be limited.
Ariz. R. Crim. P. 21.3(b).
¶24 Here, the trial court discussed with the parties the State’s
proposed verdict forms and Ruedas agreed to them after the
lesser-included offense of molestation of a child was added to Counts 3 and
7. The verdict form for Count 3 specifically asked the jury to find whether
Ruedas committed sexual conduct with a minor by “penetrat[ing] [Anna’s]
. . . labia with [his] fingers.” And though Ruedas is correct that the jury was
provided the entirety of the definition of “sexual intercourse”—which
included reference to both penetration and masturbatory conduct—we
disagree that the court was obligated to instruct the jury to distinguish
whether it found his sexual conduct to have occurred through penetration
or through masturbatory conduct. The State alleged only that Ruedas
offended in Count 3 through penetration, not through masturbatory
conduct. Both the charge itself, and the verdict form provided,
contemplated only penetration as the act of sexual conduct Ruedas was
guilty of in Count 3. On this record, Ruedas has failed to show fundamental,
prejudicial error.
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STATE v. RUEDAS
Decision of the Court
CONCLUSION
¶25 For the foregoing reasons, we affirm Ruedas’s convictions
and sentences.
AMY M. WOOD • Clerk of the Court
FILED: JT
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