State of Arizona v. Justin Alexander Copeland ( 2022 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
JUSTIN ALEXANDER COPELAND,
Appellant.
No. 2 CA-CR 2019-0229
Filed April 1, 2022
Appeal from the Superior Court in Cochise County
No. CR201800252
The Honorable Wallace R. Hoggatt, Judge
The Honorable Laura Cardinal, Judge
VACATED AND REMANDED
COUNSEL
Mark Brnovich, Arizona Attorney General
Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee
Cochise County Office of the Legal Advocate
By Xochitl Orozco, Legal Advocate, Bisbee
Counsel for Appellant
STATE v. COPELAND
Opinion of the Court
OPINION
Presiding Judge Espinosa authored the opinion of the Court, in which Vice
Chief Judge Staring and Judge Eckerstrom concurred.
E S P I N O S A, Presiding Judge:
¶1 Justin Copeland appeals from his convictions and sentences
for fifty counts of child molestation, challenging the trial court’s denial of
his motion to dismiss the indictment for lack of specificity and certain of its
evidentiary rulings. Copeland further contends there was fundamental
error due to prosecutorial misconduct and because the court imposed
multiple assessments at sentencing. Although we conclude under the
circumstances of this case, involving a young victim and an alleged resident
child molester, 1 that the indictment was sufficient for purposes of due
process, because we cannot say the verdicts were not influenced by
inadmissible hearsay evidence, we vacate the convictions and resulting
sentences and remand to the trial court for a new trial or further
proceedings consistent with this opinion.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to
upholding the jury’s verdicts, resolving all reasonable inferences against
Copeland. See State v. Gill, 248 Ariz. 274, ¶ 2 (App. 2020). When R.H. was
four years old, her mother married Copeland. At some point, he began
touching R.H.’s “private parts” over her clothing “once a week or more”
while her mother was busy. In June 2016, when R.H. was eleven, the family
moved to Sierra Vista. Copeland continued to touch R.H. over and
sometimes under her clothing—“mostly in the hallway” in an area not
readily visible, and sometimes in Copeland’s or R.H.’s bedroom. R.H.
recounted this had happened numerous times while they lived in Sierra
Vista. Copeland had instructed R.H. not to tell anyone and on some
1 Resident child molesters have been defined as “defendants who
have regular access to and control over children whom they sexually abuse
in secrecy for long periods of time.” State v. Lente, 453 P.3d 416, ¶ 1 (N.M.
2019).
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STATE v. COPELAND
Opinion of the Court
occasions told her to stop him if she was uncomfortable with what he was
doing.
¶3 In September 2017, Copeland and R.H.’s mother separated,
and she and R.H. moved away. In November, R.H.’s physical education
(PE) teacher noticed she was “not her usual self.” When she broached the
subject, R.H. started crying and then said that her stepfather “had touched
her in the wrong way,” more than once, gesturing towards her breasts and
genitals. R.H. was taken to the school counselor’s office where she told the
counselor that her stepfather “had been touching her” in “[t]he way a man
shows that he loves a woman.” The counselor reported R.H.’s statements
to police.
¶4 Later that day, a forensic interviewer spoke with R.H.,
observed by the lead detective assigned to the case. The following day,
Copeland sent a friend a photograph of himself with a gun to his head and
told her “he wanted to end it all” and “didn’t want to go to jail or prison.”
When his friend asked why he would go to prison, Copeland responded
that he had been “f- - - ing around with” R.H. Copeland’s friend later
elaborated that, from the context of the conversation, she understood it to
mean Copeland had engaged in conduct of a sexual nature with R.H. The
friend contacted R.H.’s mother who telephoned the police. When officers
went to Copeland’s house, he was upset and intoxicated. Copeland
repeatedly told them “he was going to go to jail” because he had been
accused of assaulting his stepdaughter. In the course of the conversation
with one officer, Copeland kept “going back and forth,” saying that he
“might be a sex offender” and it “might have been sexual” but also denying
that he could behave in such a way.
¶5 Copeland was taken to the hospital, where he confided in
another friend that when he was drinking, he would sometimes “wake up
on top of” R.H. He also told his friend that “whenever he was drinking” he
“touched [R.H.],” which his friend testified he understood to mean that
Copeland had “repeatedly” touched R.H. “[i]nappropriate[ly],” “in places
you shouldn’t touch a child.”
¶6 Copeland was charged with fifty counts of child molestation
occurring in 2016 and 2017 and one count of continuous sexual abuse,
charged in the alternative. On the state’s motion, the trial court dismissed
the continuous sexual abuse count with prejudice, and the jury found
Copeland guilty of the remaining fifty charges. The court subsequently
sentenced him to a combination of consecutive and concurrent sentences
totaling thirty-four years’ imprisonment and imposed a Dangerous Crimes
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STATE v. COPELAND
Opinion of the Court
Against Children Assessment of $500 per offense, for a total of $25,000. We
have jurisdiction over Copeland’s appeal pursuant to A.R.S. §§ 12-
120.21(A)(1), 13-4031, and 13-4033(A)(1).
Motion to Dismiss Indictment
¶7 As noted above, the indictment charged Copeland with fifty
counts of molestation of a child and one count of continuous sexual abuse
of a child.2 Count one stated,
On or between June, 2016 and December, 2017
Justin Alexander Copeland intentionally or
knowingly engaged in sexual contact with a
person who was under fifteen years of age, to
wit: R.H., the first time, in violation of A.R.S.
§§ 13-1410(A)(B), 13-1401, 13-105, 13-701, 13-
702, 13-703, 13-705(D), and 13-801, a class 2
felony.
The remaining forty-nine molestation counts were worded the same, except
each specified an increasing numerical designation from “the second time”
to “the fiftieth time.” Before trial, Copeland moved to dismiss the
indictment, arguing it was duplicitous because each count may have
charged more than one act based on R.H.’s statement that she had been
abused an average of twice per week over a period of seventy-eight weeks.3
He also asserted the indictment’s “imprecision” put him “in the untenable
position of having to defend against some unknown act on some unknown
date” because it failed to describe the specific acts and dates of the alleged
offenses. The trial court denied Copeland’s motion, stating, “Arizona law
doesn’t recognize a motion for a bill of particulars.” Copeland maintains
the court erred because the Sixth Amendment and Rule 13.1(a), Ariz. R.
2Thetrial court granted the state’s motion to amend the continuous
sexual abuse charge as an alternative to the fifty molestation charges,
following Copeland’s first motion to dismiss.
3 Copeland has not meaningfully raised this argument on appeal,
merely referring to the duplicity holding of Spencer v. Coconino County, 136
Ariz. 608 (1988). Any argument as to duplicity is therefore waived. See
State v. Vargas, 249 Ariz. 186, ¶ 22 (2020) (when appellant fails to properly
develop argument, court may consider it abandoned and waived).
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Opinion of the Court
Crim. P., entitled him to “more notice and specificity” of the charges. And
he additionally urges, for the first time on appeal, that the state was
restricted to prosecuting him only for continuous sexual abuse of a child.
We will not disturb a court’s ruling on a motion to dismiss an indictment
absent an abuse of discretion. State v. Ramsey, 211 Ariz. 529, ¶ 5 (App. 2005).
“An error of law constitutes an abuse of discretion.” State v. Maciel, 240
Ariz. 46, ¶ 9 (2016).
Notice of Charges
¶8 The Sixth Amendment provides, in relevant part, “In all
criminal prosecutions, the accused shall enjoy the right . . . to be informed
of the nature and cause of the accusation.” U.S. Const. amend. VI. Rule
13.1(a), Ariz. R. Crim. P., defines an indictment as “a plain, concise
statement of the facts sufficiently definite to inform the defendant of a
charged offense.” “An indictment is legally sufficient if it informs the
defendant of the essential elements of the charge, is definite enough to
permit the defendant to prepare a defense against the charge, and affords
the defendant protection from subsequent prosecution for the same
offense.” State v. Far W. Water & Sewer Inc., 224 Ariz. 173, ¶ 36 (App. 2010).
In determining sufficiency, “the indictment ‘must be read in the light of the
facts known by both parties.’” Id. (quoting State v. Magana, 178 Ariz. 416,
418 (App. 1994)).
¶9 Our research has revealed no Arizona precedent specifically
addressing the sufficiency of an indictment in which a resident child
molester was charged with multiple counts of child molestation in the
manner presented here. But in an unpublished decision, we reviewed a
similar situation in which the appellant had been charged with, and
convicted of, numerous counts of child molestation and sexual conduct
with a minor, including counts that nonspecifically alleged the “first” and
“last” times various types of abuse had occurred. State v. Brown, No. 2 CA-
CR 2018-0207, ¶¶ 8, 10, 15-18 (Ariz. App. Sept. 23, 2019) (mem. decision).4
The appellant argued, inter alia, that the indictment had not provided
sufficient notice of the allegations against him, due to the vagueness of the
victim’s testimony and “because she did not remember with particularity
more than one incident and could only testify that they had occurred ‘more
4 We cite this memorandum decision, issued after January 1, 2015,
only for its persuasive value in the absence of specific, on-point authority
for this issue and to aid our determination whether to publish this opinion.
See Ariz. R. Sup. Ct. 111(c)(1)(B),(C).
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STATE v. COPELAND
Opinion of the Court
than once’” during an approximate eight-month period at a particular
residence. Id. ¶¶ 2-4, 14, 17, 20. We rejected that argument, concluding that
the appellant’s challenge actually invoked the sufficiency of the evidence
rather than the adequacy of the indictment, id. ¶ 14, and that the victim’s
testimony that each type of act had occurred multiple times was sufficient
to permit the jury to find that the challenged acts had been committed as
charged, id. ¶ 20.
¶10 Considering decisions from other jurisdictions for this issue
of first impression, we note that California’s and New Mexico’s highest
courts have dealt with similar claims involving multiple counts of
residential child molestation and resolved them with reasoning similar to
that in our decision in Brown, though with more explication that may
provide guidance here. In People v. Jones, a teacher was convicted of sexual
offenses against four young children, two of whom he had adopted. 792
P.2d 643, 645-46 (Cal. 1990). Because the victims were young and had been
abused numerous times, much of their testimony was nonspecific as they
were unable to provide dates and precise locations of the offenses. Id. at
646-47. The California Supreme Court held that prosecuting alleged
resident child molesters based on nonspecific charges and “generic
testimony” does not violate a defendant’s due process rights to notice, to
prepare a defense, or to a unanimous jury. It so concluded because the
elements of the offenses did not include specific acts and locations, grand
jury and pretrial discovery procedures informed the defendant of the
allegations, and trials on such charges generally turned on the credibility of
victims. Id. at 657-59. The court reasoned that “even generic testimony
(e.g., an act of intercourse ‘once a month for three years’) outlines a series
of specific, albeit undifferentiated, incidents each of which amounts to a
separate offense, and each of which could support a separate criminal
sanction.” Id. at 654.
¶11 As we did in Brown, the Jones court looked to the sufficiency
of the evidence and concluded that an alleged victim’s nonspecific
testimony satisfied due process so long as the victim could describe the
kind of acts committed, the number of acts committed “(e.g., ‘twice a
month’ or ‘every time we went camping’),” and the general time frame “to
assure the acts were committed within the applicable limitation period.” Id.
at 654-56. The court noted that “[a]dditional details regarding the time,
place or circumstance of the various assaults may assist in assessing the
credibility or substantiality of the victim’s testimony, but are not essential
to sustain a conviction.” Id. at 656; cf. State v. Berry, 101 Ariz. 310, 314 (1966)
(molestation victim’s inability to recall details like date and time goes to
credibility, an issue for the jury, and such testimony insufficient grounds
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STATE v. COPELAND
Opinion of the Court
for fatal variance between information and bill of particulars and trial
evidence), superseded by statute, 1983 Ariz. Sess. Laws, ch. 202, § 10, as
recognized in State v. Holle, 101 Ariz. 310, ¶ 28 (2016). To hold otherwise
“could effectively insulate the most egregious child molesters from
prosecution.” Jones, 792 P.2d at 651 (quoting People v. Van Hoek, 246 Cal.
Rptr. 352, 354 (Ct. App. 1988)). The court thus struck a balance to
accommodate “all legitimate due process concerns” without immunizing
resident child molesters “merely because [they have] repeatedly molested
[their] victim[s] over an extended period of time.” Id. at 645, 648, 654.
¶12 In State v. Lente, the defendant was convicted of twenty-six
sexual offenses perpetrated against a child who had lived with him, after
the child testified about nearly continuous sex abuse for years. 453 P.3d
416, ¶¶ 5-6, 19 (N.M. 2019). The defendant’s trial strategy was to show he
had lacked access to the victim on certain occasions, emphasize
inconsistencies in her allegations, and discredit her testimony by
suggesting she had a motive to fabricate the accusations. Id. ¶¶ 5, 18. In a
habeas corpus proceeding, it was successfully argued that the vague
allegations in the indictment had failed to provide adequate notice of the
charges and potentially subjected the defendant to double jeopardy. Id.
¶¶ 10-12. The New Mexico Supreme Court, in a comprehensive, wide-
ranging opinion, rejected those arguments and reversed. Lente, 453 P.3d
416. Regarding sufficiency of notice, the court stated there was “nothing to
suggest that Lente was unsure of the charges he faced or was somehow
precluded from defending himself.” Id. ¶ 20. And it determined that
charging documents in resident child molester cases only required some
form of “minimal differentiation between criminal counts.” Id. ¶ 43
(quoting Valentine v. Konteh, 395 F.3d 626, 636-37 (6th Cir. 2005)). That
differentiation could be satisfied “by the provision of ‘time ranges or certain
locations or certain actions.’” Id. (quoting Valentine, 395 F.3d at 637). The
court explained:
[C]harging documents in resident child
molester cases have unique significance. They
must channel the jury’s focus and require it to
determine if specific instances of illegal conduct
were established. A charging document
achieves this end by specifying the exact sex-
abuse crimes that allegedly occurred and
identifying the dates or date ranges when those
crimes purportedly happened. Such charges do
indeed ask the jury to decide if specific, illegal
sex acts took place. This point is particularly
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Opinion of the Court
evident where the evidence elicited indicates
that repeated molestations exceeding the
number of specific acts charged were
perpetrated, a likely occurrence in resident
child molester cases.
Id. ¶ 71 (citation omitted).
¶13 In similarly striking a balance between due process and
immunizing residential child molestation, we conclude the indictment here
was legally sufficient to provide Copeland with adequate notice of the
charges against him. It tracked the language of the molestation statute,
§ 13-1410, identified the victim, asserted the offenses had occurred in
Cochise County, and provided a time frame for the offenses. See State v.
Self, 135 Ariz. 374, 380 (App. 1983) (indictment that tracks statutory
language generally provides sufficient notice). The state was not required
to provide notice of the specific acts giving rise to the charges or the manner
in which the offenses would be proven. See State v. Arnett, 158 Ariz. 15, 18
(1988). Moreover, the date of the offense is not an element of molestation
of a child. See § 13-1410; cf. State v. Jones, 188 Ariz. 534, 543 (App. 1996) (date
of offense not element of sexual assault), abrogated on other grounds by State
v. Ferrero, 229 Ariz. 239 (2012); Jones, 792 P.2d at 655, 657 (specific date, time,
place, or circumstances not elements of molestation and prosecution
utilizing generic testimony does not, of itself, violate due process because
sufficient notice generally provided by pretrial disclosure, including
preliminary hearing or grand jury transcripts). And the disclosed grand
jury transcript in this case informed Copeland of the nature of the
allegations, including where and approximately when the offenses were
said to have occurred. See Far W. Water & Sewer Inc., 224 Ariz. 173, ¶ 36
(indictment read in light of facts known by both parties).
¶14 Copeland maintains the lack of specificity in the indictment
limited his ability to defend himself and he was subjected to “trial by
ambush.” However, he has not shown or argued he was unaware of or
surprised by the continuously recurring conduct alleged. Cf. State v. Sirisun,
279 N.W.2d 484, 487 (Wis. Ct. App. 1979) (reversing dismissal based on
child’s nonspecific testimony at preliminary hearing where no claim or
indication defendant was misled or prejudiced and charged offense within
statute of limitations (quoting Tapp v. State, 269 N.E.2d 367, 369 (Ind. 1971))).
And, other than the possibility that he could have presented an alibi defense
for times he may have been out of town, Copeland does not specify what
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STATE v. COPELAND
Opinion of the Court
defenses were unavailable to him.5 See State v. Hamilton, 177 Ariz. 403, 410
n.6 (App. 1993) (assertion that defendant was unable to present alibi
defense, “because he could not reconstruct his life for a specific year, is a
theoretical, not an actual, prejudice that could be asserted any time an
offense was alleged to have occurred over a period of time”); see also State
v. Rankin, 181 N.W.2d 169, 171-73 (Iowa 1970) (no deprivation of alibi
defense although date of offense not specified or proved, defendant
complained he could not account for all his time during month-long period
in which incest was charged, defendant had access to child, he did not
proffer an alibi at trial, and defense was denial it happened and child’s
alleged animosity).
¶15 Nor has Copeland meaningfully explained how he would
have defended differently had the indictment and R.H. been more specific.
See Commonwealth v. Kirkpatrick, 668 N.E.2d 790, 794 (Mass. 1996) (rejecting
defendant’s claim of inability to prepare defense where no showing defense
would have been different had victim been more precise about dates and
times of sexual assaults). Although, as noted above, he contends he was
prevented from asserting an alibi defense, he has not shown that such a
defense was available. Furthermore, the indictment did not, as he claims,
force him to limit his trial defenses only to “it could not have happened.”
Indeed, Copeland challenged R.H.’s credibility, arguing she had a motive
to fabricate the allegations, he highlighted discrepancies between her
testimony and that of other witnesses, particularly as demonstrating his
lack of opportunity to commit the offenses, and pointed out logistical and
arguably improbable implications of R.H.’s allegations. Accordingly, for
all the above reasons we conclude that due process does not require that an
indictment precisely delineate numerous molestations when those acts are
5Copeland complains that during her forensic interview, R.H.
related an incident of molestation during a Super Bowl party, which he
“spent time addressing” with R.H.’s mother as part of his trial preparation,
but R.H. did not remember the particular incident at trial. He points to this
as an example of how he was deprived of the ability to defend against the
charges. He fails to explain, however, how he would have defended any
differently than his denials of the other recurring incidents R.H. testified to
and attacking her credibility. We note that by the time of trial, over two
years had elapsed since the reported Super Bowl incident, R.H. testified
about being molested during and after a weekend party where the adults
were drinking alcohol, and the jury could have reasonably concluded she
forgot that it was the Super Bowl. We are not persuaded that Copeland
suffered any prejudice.
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Opinion of the Court
alleged to have been committed against a child victim and to have
happened repeatedly over a substantial period of time with little or no basis
for the child to make any such differentiation.
Double Jeopardy
¶16 Copeland also asserts the indictment’s claimed deficiencies
could subject him to double jeopardy “if the state were to charge another
[fifty] counts in that time frame because, other than the time frame and the
number, there is nothing to nail down when any of these events occurred.”
Although at oral argument, the state generally conceded that double
jeopardy would preclude it from charging Copeland with any additional
counts for molesting R.H. during the same period of time, neither we nor a
future court are bound by the state’s concession on a matter of law. See State
v. Solis, 236 Ariz. 242, ¶ 23 (App. 2014).
¶17 Considering a similar double jeopardy argument in Lente, the
New Mexico Supreme Court first observed that once it is determined an
indictment provides sufficient notice, “double jeopardy concerns . . . have
marginal significance in practice.” 453 P.3d 416, ¶ 35. The court went on to
quote Federal Practice and Procedure: Criminal:
[i]t is doubtful that the second . . . function[, the
double jeopardy protection,] add[s] anything
not implicit in the notice requirement of the first
function. If a defendant claims prior jeopardy
in defense to a pending charge, the court is free
to review the entire record of the first
proceeding, not just the pleading, and so the
need for the indictment to serve this role is
limited.
Id. (alterations in Lente) (quoting 1 Charles Alan Wright & Andrew D.
Leipold, Federal Practice and Procedure: Criminal, § 125, at 543-44 (2008).
¶18 The Lente court, applying a similar approach as in Jones, then
looked to the sufficiency of the evidence, noting that unlike adults, children
cannot easily link experiences to dates or other specific points in time. Id.
¶ 56; Jones, 792 P.2d at 654-56. And “when sexual abuse is repeated and
frequent, isolating any particular instance of abuse becomes a significant
challenge for child victims.” Lente, 453 P.3d 416, ¶ 57. Even “a mature
victim might understandably be hard pressed to separate particular
incidents of repetitive” abuse. Id. (quoting Jones, 792 P.2d at 648). The court
went on to question how appellate courts could “resolve the tension
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Opinion of the Court
between the rights of an alleged victim and the [double jeopardy] rights of
an alleged child molester.” See id. ¶¶ 60, 84 (quoting R.A.S. v. State, 718 So.
2d 117, 119 (Ala. 1998)). The court answered this by noting that the “true
issue” in repetitive molestation cases is credibility, and that if the jury
“believe[s] the child victim’s testimony that he or she was subjected to
multiple acts of sexual abuse over a long period of time, the prosecution
will have necessarily ‘proven beyond a reasonable doubt that the defendant
committed a specific act.’” Id. ¶ 65-66 (quoting Jones, 792 P.2d at 659). Thus,
if a child has sufficiently described the type and general number of
proscribed acts, and a general time period in which they occurred, the
evidence is sufficient and eliminates double jeopardy concerns. Id. ¶¶ 68-
70, 84.
¶19 This appears to be a majority view among courts that have
considered similar due process questions, and one that we believe strikes
an appropriate and just balance.6 Here, each count of the indictment was
6See,e.g., Jones, 792 P.2d at 655-56, 659 (due process satisfied if child’s
testimony sufficiently describes kind of acts committed, number of acts
committed, and general time period); R.L.G., Jr. v. State, 712 So. 2d 348, 362-
64 (Ala. Crim. App. 1997) (due process a “flexible concept” accommodating
“competing interests” allowing prosecution of resident child molesters
based on generic testimony (quoting State v. Brown, 780 P.2d 880, 885-86
(Wash. Ct. App. 1989)); State v. Cozza, 858 P.2d 270, 274 (Wash. Ct. App.
1993) (due process not violated when resident molestation victim cannot
recall specific dates); Baker v. State, 948 N.E.2d 1169, 1171-72, 1179 (Ind.
2011) (affirming molestation convictions despite generic testimony because
trial turned on credibility); State v. Reynolds, 193 A.3d 168, ¶ 20 (Me. 2018)
(specific evidence of particular incidents of sexual abuse not required to
support guilty verdicts for multiple sexual crimes); State v. Swan, 753
N.W.2d 418, ¶ 12 (S.D. 2008) (specific date not essential element of sexual
offenses against child; courts lenient as to dates in such cases unless
defendant shows he was deprived of defense); Rankin, 181 N.W.2d at 171-
73 (no denial of adequate defense or double jeopardy protections although
child could not specify date of incest and state did not identify specific
“carnal knowledge” event among several on which it relied for conviction);
State v. Mitchell, 34 N.W.2d 661, 661-62 (Wis. 1948) (affirming convictions
despite fourteen-year-old victim’s inability to recall the dates and exact
locations of sex crimes; evidence sufficient for jury to conclude victim was
credible and offenses occurred); Brodit v. Cambra, 350 F.3d 985, 988-89 (9th
Cir. 2003) (rejecting argument in habeas petition that convictions for sex
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Opinion of the Court
at least minimally differentiated from the others, such that Copeland was
indicted for the first fifty times he molested R.H. in Sierra Vista within the
specified time period, and within the statute of limitations. See id. ¶¶ 43,
49. Additionally, Copeland’s argument is highly speculative and ignores
that the entire record of the trial would be available to raise a double
jeopardy challenge in the unlikely event that the state would seek to
prosecute him later for similar offenses occurring in the same time frame.
See State v. Bruce, 125 Ariz. 421, 423-24 (1980); see also Lente, 453 P.3d 416,
¶ 35. Given the nature of the charges and the generic testimony supporting
them, a situation attributable to the victim’s young age, Copeland’s
continuous access to her, and the alleged frequency of his repeated acts, we
conclude the indictment was sufficient for purposes of double jeopardy. Cf.
Berry, 101 Ariz. at 314 (rejecting claim of fatal variance between information
and victim’s testimony, otherwise “it would . . . behoove one who chooses
to sexually assault children . . . to make sure that the child is sufficiently
young to be incapable of effectively testifying as to specific dates in the year
and minutes on the clock”); see also Lente, 453 P.3d 416, ¶ 77 (circumstance
of repeated abuse and victim’s generic recollection should not be
transformed into “a shield” from prosecution).
Continuous Sexual Abuse
¶20 Copeland lastly contends that because of the lack of
specificity regarding the timing and location of the offenses, the trial should
have been limited to the continuous sexual abuse charge. He did not raise
this issue below, and our review is therefore limited to fundamental error.
See State v. Escalante, 245 Ariz. 135, ¶ 12 (2018). Copeland, however, has
failed to argue fundamental error or establish the first step: to demonstrate
that error occurred. See id. ¶ 21; State v. Starks, 251 Ariz. 383, ¶ 6 (App. 2021)
(concluding appellant waived all review of issue by failing to meaningfully
argue fundamental error). As outlined above, the trial court did not err in
denying Copeland’s motion to dismiss the molestation charges. Moreover,
he was not entitled to a trial for the crime he preferred to be charged with
where the evidence could support multiple other offenses. See Brown, No. 2
CA-CR 2018-0207, ¶¶ 15-18 (state has discretion to charge sexual offenses
individually or as continuous sexual abuse);7 People v. Johnson, 46 Cal. Rptr.
crimes where charging document did not specify precise dates violated due
process).
Again, cited only for persuasive value absent other on-point
7
Arizona authority. See Ariz. R. Sup. Ct. 111(c)(1)(C).
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Opinion of the Court
2d 838, 839-40 (Ct. App. 1995) (rejecting argument state was required to
charge continuous sexual abuse rather than numerous individual offenses,
even when evidence was only “generic testimony”). The prosecution, not
the court or the defendant, determines whether to file criminal charges and
which charges to file. A.R.S. § 11-532(A); State v. Hankins, 141 Ariz. 217, 221
(1984). Nor does the language of the statute, which enacted continuous
sexual abuse as a crime, indicate any legislative intent to modify the
prosecution’s traditional discretion in choosing how to structure charges
against an individual defendant. See A.R.S. § 13-1417. Copeland has
demonstrated no error or abuse of discretion in the court’s denial of his
motion to dismiss. See Ramsey, 211 Ariz. 529, ¶ 5.
Admission of Evidence
¶21 Copeland next challenges the trial court’s rulings on several
evidentiary issues. We review such rulings for an abuse of discretion. See
State v. Pina-Barajas, 244 Ariz. 106, ¶ 4 (App. 2018). This includes
“evidentiary rulings involving hearsay and related exceptions.” State v.
Giannotta, 248 Ariz. 82, ¶ 8 (App. 2019).
Victim’s Statements to School Officials
¶22 Copeland first argues the trial court erred by admitting
inadmissible, highly prejudicial hearsay over his objections. Specifically,
the court allowed both R.H.’s PE teacher and school counselor to testify in
the state’s case-in-chief that R.H. had told them Copeland touched her
inappropriately.
¶23 Hearsay is an out-of-court statement offered “to prove the
truth of the matter asserted in the statement,” Ariz. R. Evid. 801(c), and is
inadmissible unless it falls within one or more recognized exceptions, Ariz.
R. Evid. 802. The state initially argued the testimony at issue was not
hearsay because it was offered to show its effect on the listeners, specifically
why the school officials contacted law enforcement. It maintained the
testimony was offered to “explain the reasons that the employees contacted
police despite [R.H.’s] reluctance and preference that they not do so.”8 At
8 Below,the state also argued that R.H.’s extrajudicial statements
were admissible as evidence of her mental state. See Ariz. R. Evid. 803(3).
The state wisely abandoned this argument on appeal. See State v.
Fulminante, 193 Ariz. 485, ¶ 37 (1999) (declarant’s statement about conduct
of another person not admissible under Rule 803(3) state-of-mind hearsay
exception).
13
STATE v. COPELAND
Opinion of the Court
oral argument in this court, however, the state decided “not to dispute” that
the testimony at issue was hearsay, only maintaining any error was
harmless. Again, because the state’s apparent concession on legal issues is
not binding, see Solis, 236 Ariz. 242, ¶ 23, and because the hearsay error is
dispositive in our reversal and remand of Copeland’s convictions, we
address both issues on their merits.
¶24 Extrajudicial statements presented for the purpose of
explaining a hearer’s conduct may be “admissible where offered to show
their effect on one whose conduct is in issue,” and if they are not being
offered to prove the matter asserted in the statement. State v. Rivera, 139
Ariz. 409, 413-14 (1984). In Rivera, our supreme court held that a child
molestation victim’s extrajudicial statement to her mother, in which she had
conveyed being touched in her pubic area, was inadmissible despite the
theory that it “complete[d] the prosecution’s story showing what prompted
the mother to take her daughter[] to the hospital.” Id. at 410, 414. The court
concluded that neither the mother’s nor the victim’s conduct was at issue
and “[t]he reason the mother took her daughter to the hospital [wa]s not
relevant to the legal issues of the molestation charge.” Id.¶25 Similarly, in this case, the school employees’ duty to report
evidence of a student’s molestation was never in question, nor was their
testimony used by the state to explain R.H.’s motivation. Thus, the hearsay
in the context of this case had “no relevant use other than to prove the truth
of the matter asserted.” Id. at 414. Indeed, the manner in which the state
presented the testimony, not only as the leading evidence for its case-in-
chief but in its opening statement and closing arguments, demonstrates that
it relied on the hearsay to prove the substance of the allegations. In her
opening statement, the prosecutor informed the jury that the PE teacher
would testify R.H. “broke down into inconsolable sobbing” and said
Copeland had “been touching her private parts.” The prosecutor continued
that R.H. was then taken to the school counselor, who would testify that a
“sobbing” R.H. said Copeland had touched her “in the way a man who
loves a woman touches her.” Similarly, during closing argument, the
prosecutor exhorted the jury that:
[R.H.] is your witness. She told you that
[Copeland] loves her like a girlfriend or the way
a man loves a woman. And she said loves her
like a girlfriend. Well, remember [the] school
counselor . . . remembered [R.H.] describing it
as the way a man loves a woman? Kind of
14
STATE v. COPELAND
Opinion of the Court
corroborating that [R.H.] consistently reports it
in that manner.
See Rivera, 139 Ariz. at 410, 414 (statement in question was “a simple
assertion of appellant’s conduct,” with “no relevant use other than to prove
the truth of the matter asserted and is therefore hearsay”).
¶26 Because Copeland moved to preclude the testimony at issue,
we review its erroneous admission for harmless error. See State v. Briggs,
112 Ariz. 379, 382 (1975) (motion to preclude preserves issue for appeal);
State v. Wood, 180 Ariz. 53, 63 (1994) (erroneously admitted testimony
reviewed for harmless error). Under harmless error review, the state has
the burden of demonstrating beyond a reasonable doubt that the error had
no influence on the jury’s judgment. Wood, 180 Ariz. at 63; State v. Bible, 175
Ariz. 549, 588 (1993). Whether an error is harmless is a fact-specific inquiry
which must be evaluated in light of the totality of properly admitted
evidence. State v. Fulminante, 193 Ariz. 485, ¶ 50 (1999); State v. Poyson, 198
Ariz. 70, ¶ 21 (2000). In order for error to be harmless, we must be firmly
convinced that “the guilty verdict actually rendered in this trial was surely
unattributable to the error.” See Bible, 175 Ariz. at 588 (quoting Sullivan v.
Louisiana, 508 U.S. 275, 279 (1993)).
¶27 A trial court’s erroneous admission of evidence, including
hearsay, can be harmless under some circumstances, including when it is
“entirely cumulative,” State v. Williams, 133 Ariz. 220, 226 (1982), or when
there is “overwhelming” properly admitted evidence of a defendant’s guilt,
State v. Davolt, 207 Ariz. 191, ¶ 64 (2004) (erroneous admission of
photographs and videotape harmless when other evidence of guilt
“overwhelming”); see also State v. Romero, 240 Ariz. 503, ¶ 8 (App. 2016)
(listing variety of factors “frequently considered by courts” in determining
harmless error). Erroneously admitted evidence is cumulative not simply
when “other evidence exists to support a conviction,” but when it “supports
a fact otherwise established by existing evidence,” meaning that it was
“superfluous and could not have affected the verdict.” State v. Bass, 198
Ariz. 571, ¶ 40 (2000). Stated differently, errors are harmless when the
untainted evidence “present[s] . . . a body of proof, firmly convincing on the
essential facts, that the jury would have convicted even without the error.”
Id. ¶ 45.
¶28 But erroneously admitted evidence is less likely to be
harmless if it is admitted without a limiting instruction, see Fulminante, 193
Ariz. 485, ¶ 50, if it is presented repeatedly, see Williams, 133 Ariz. at 227, if
it is argued in closing, see State v. Charo, 156 Ariz. 561, 563 (1988), if it
15
STATE v. COPELAND
Opinion of the Court
identifies the defendant as the perpetrator, cf. State v. Wilson, 113 Ariz. 363,
366 (1976) (reasoning erroneously admitted hearsay was harmless, in part
because it did not identify the defendant as the perpetrator), and when it
goes directly to a critical issue, see Bass, 198 Ariz. 571, ¶ 46. Each of those
factors is applicable here.
¶29 When credibility is “the central issue” because of scant
physical evidence or a dearth of corroborating eyewitnesses, the repeated
admission of inadmissible hearsay can be highly prejudicial. State v.
Thompson, 167 Ariz. 230, 235 (App. 1990); State v. Thompson, 169 Ariz. 471,
476 (App. 1991); see also State v. Taylor, 196 Ariz. 584, ¶ 15 (App. 1999); State
v. Martin, 135 Ariz. 552, 555 (1983) (a “parade of corroborating witnesses”
repeating inadmissible hearsay bolstering a victim’s credibility may be
prejudicial). The initial hearsay was reinforced by repetition here, and
Copeland argues the “error cannot be viewed as harmless” because the
state used it to bolster R.H.’s credibility at the outset, previewing the
hearsay in its opening statement, and emphasizing it in closing arguments.
See Charo, 156 Ariz. at 563 (state’s use of inadmissible hearsay in closing
argument weighs in favor of finding reversible error); Fulminante, 193 Ariz.
485, ¶ 50 (use of evidence in closing argument belies the assertion that it
was relatively unimportant).
¶30 The state responds that any error was harmless because the
testimony at issue was cumulative of other evidence, including testimony
from R.H., a former police detective, and the forensic interviewer.9 The
state also points out that Copeland had the opportunity to “extensively and
effectively cross-examine, confront, and impeach” R.H. The state thus
maintains that its use of the hearsay to bolster the victim’s credibility “is of
no moment given that the same information was admitted through two
other witnesses, . . . [a]nd numerous witnesses testified that R[.H.] was
truthful and did not lie.”
¶31 We cannot conclude that the hearsay testimony of the teacher
and the counselor, particularly given its primacy in the state’s presentation
of the evidence, was harmless here. At trial, the state acknowledged to the
9The state’s suggestion that substantially similar hearsay testimony
was subsequently introduced “without objection” by Copeland is not
supported by the record. Copeland repeatedly objected, and made a
“continuing objection,” when the state elicited hearsay testimony from the
forensic interviewer that R.H. had told her Copeland touched R.H.’s
“private places,” and touched her in Georgia and Sierra Vista.
16
STATE v. COPELAND
Opinion of the Court
jury that “this case is very much about credibility.” And the inadmissible
hearsay was repeatedly used to both bolster the substance of R.H.’s
allegations and identify Copeland as the perpetrator.10 See Thompson, 169
Ariz. at 476 (defendant prejudiced where “credibility was the central issue”
and court could not say “corroborating witnesses had no influence on the
jury’s deliberations.” (quoting Martin, 135 Ariz. at 555)). R.H.’s credibility
was crucial because the evidence against Copeland was not
“overwhelming.” See Davolt, 207 Ariz. 191, ¶ 64 (error may be harmless by
virtue of overwhelming properly admitted evidence of guilt). There was
no physical evidence, there was no eyewitness testimony corroborating
R.H.’s allegations, and all of Copeland’s recorded admissions were
equivocal. While such evidence is not required for the state to meet its
burden of proof, see State v. Jerousek, 121 Ariz. 420, 427 (1979) (“In child
molestation cases, the defendant can be convicted on the uncorroborated
testimony of the victim.”), its absence here is a factor in our determination
that the error was not harmless in light of the properly admitted evidence,
see Romero, 240 Ariz. 503, ¶ 9.
¶32 Further, the trial court did not provide a limiting instruction
to the jury, despite the hearsay being referenced by the state in its opening
statement and closing arguments. See Fulminante, 193 Ariz. 485, ¶ 50
(“Because the testimony was admitted without a limiting instruction, we
must assume the jury could have considered the statements as asserting the
truth of the matter testified to . . . .”). And finally, although not dispositive,
and indicative of the view of only one participant in the proceeding, we find
notable the court’s statement about this testimony at sentencing:
Of the days of testimony that were the most
compelling, it was the testimony of the school
officials who first received the report from the
child of the events that had taken place in her
home perpetrated on her by her father. The
testimony of the teacher and the school
counselor, together with the testimony of the
child herself, were the most compelling
testimony that was heard in this trial. It brought
home to everyone, the jury and everyone sitting
10Both the PE teacher and school counselor testified that R.H. had
identified her “stepdad” as the person who touched her inappropriately,
and the school counselor identified R.H.’s stepdad as “Mr. Copeland.”
17
STATE v. COPELAND
Opinion of the Court
in the courtroom, the profound effect that these
acts have had on this child.
This statement of the court’s perception of the testimony, particularly in
conjunction with the other factors considered above, makes it difficult to
conclude the improper admission of the hearsay evidence was harmless.
¶33 We note our supreme court’s comment in Rivera, that
“[p]roblems inherent in cases such as this tempt courts, including this one,
to stretch the rules of evidence to their utmost.” 139 Ariz. at 413 n.1.
However, as in Rivera, it is not our province to do so. Because the evidence
of Copeland’s guilt was not overwhelming, and because we cannot say
beyond a reasonable doubt that the testimony was immaterial to the jury’s
evaluation of R.H.’s credibility—the central issue in this case—we vacate
Copeland’s convictions and remand for a new trial or other proceedings
consistent with this opinion. See Thompson, 169 Ariz. at 476; Taylor, 196 Ariz.
584, ¶ 16; Martin, 135 Ariz. at 555.
Redacted Audio of Copeland’s Brother’s Police Interview
¶34 Although we vacate Copeland’s convictions as outlined
above, we nevertheless address some of his remaining assignments of error
that are likely to recur if he is retried. See Fulminante, 193 Ariz. 485, ¶ 10
(appellate court may address issues likely to recur upon retrial to promote
judicial economy). Copeland contends the trial court erred by admitting a
redacted audio recording of his brother J.C.’s interview with law
enforcement, which revealed what Copeland had said to him about the
allegations. Copeland objected to its admission on the grounds that it was
hearsay, irrelevant, and cumulative.11
¶35 On appeal, Copeland maintains the recording was
inadmissible hearsay because it contained out-of-court statements made by
J.C. And he argues it was “not impeachment” evidence because J.C. “was
not given the opportunity to describe what he meant.”
¶36 A witness’s prior extrajudicial statement is not hearsay if: the
witness testifies; the out-of-court statement is inconsistent with the
11 Copelandhas abandoned his arguments that the evidence was
cumulative and irrelevant. See Vargas, 249 Ariz. 186, ¶ 22 (failure to
properly develop argument constitutes abandonment and waiver). Thus,
we address only his contention that the recording contained inadmissible
hearsay.
18
STATE v. COPELAND
Opinion of the Court
witness’s testimony; and the witness is subject to cross-examination about
the prior statement. Ariz. R. Evid. 801(d)(1)(A). “Extrinsic evidence of a
witness’s prior inconsistent statement is admissible only if the witness is
given an opportunity to explain or deny the statement and an adverse party
is given an opportunity to examine the witness about it . . . .” Ariz. R. Evid.
613(b).
¶37 At trial, J.C. testified on redirect examination by the state that
Copeland had “simply told [him] that he believed he didn’t do it.” After
the prosecutor refreshed his recollection with a transcript, J.C.
acknowledged that Copeland had said: “[I]f I did do it, then, yeah, I deserve
to go away.” The audio recording of the interview, which was admitted
days after J.C. testified and to which Copeland objects, reflects J.C. telling a
detective that Copeland had said: “Did I really do something? If I did,
boom, then you know what? I deserve to go away.” The recording thus
contained a prior inconsistent statement used to impeach J.C., and
Copeland had the opportunity to cross-examine him about it because the
substance of the statement had been elicited by the state during J.C.’s
testimony. It therefore met the criteria of Rules 801(d)(1)(A) and 613(b),
Ariz. R. Evid.
¶38 Copeland, however, cites State v. Joe and argues the admission
of the recording was improper because J.C. was no longer present to
elaborate upon any discrepancies between his testimony and his prior
statements. 234 Ariz. 26, ¶ 12 (App. 2014). Copeland’s reliance on Joe is
unpersuasive. First, the sole issue in Joe was whether a declarant-witness’s
prior statements were in fact inconsistent with her testimony at trial, an
argument Copeland has not made. See id. ¶ 13. Moreover, the language
Copeland quotes from Joe only generally describes the rationale underlying
Rule 801(d)(1)(A) and does not prohibit the introduction of a prior
inconsistent statement after a declarant-witness has testified, when that
witness has had the opportunity to explain the inconsistency as required by
Rules 801(d)(1)(A) and 613(b). See Joe, 234 Ariz. 26, ¶ 12. Finally, Copeland
was not precluded from recalling J.C. to “describe what he meant.” We
thus cannot say the trial court abused its discretion in admitting the
recording of the interview.12
12Copeland also contends, for the first time on appeal, the manner in
which the audio recording was redacted “clearly misled the jury” and
prejudiced him, citing Rule 403, Ariz. R. Evid. Because Copeland did not
raise this issue below, it is subject to review only for fundamental error. See
Escalante, 245 Ariz. 135, ¶ 12. However, because if retried he can raise this
19
STATE v. COPELAND
Opinion of the Court
Body Camera Videos
¶39 Copeland next contends the trial court abused its discretion
by admitting, over his objections, clips of body camera video taken by
police when they responded to his home after he made a suicide threat. The
state explained it had edited the hours of bodycam footage into shorter clips
“to decrease the playing time in front of the jury, [and] decrease the
potential claims of prejudice for the defendant,” but noted it was amenable
to offering longer video clips “if [Copeland] want[ed] more context.”
¶40 Copeland responded that his
immediate concern with the . . . clips, as . . .
edited, is that they present an incomplete
version of the comments that Mr. Copeland
may have made when the police came to his
residence that evening. And my concern is that
that incompleteness will result in . . . a
misperception on the jury’s part of what Mr.
Copeland said, in the sense that if all they hear
is silence and something along the lines of I did
it, and silence, then they’re left to speculate as to
what came before. . . . His mouth is moving.
Words are coming out, but we’re not—the jury’s
not hearing those words. . . . If the state is going
to put on evidence of Mr. Copeland’s statement,
then I believe that those statements or that
evidence has to be complete so that the jury has
an accurate understanding of what Mr.
Copeland said under the circumstances.
The trial court permitted the state to introduce the edited footage over
Copeland’s objections, stating that Copeland could provide any necessary
context through cross examination.
¶41 Copeland acknowledges on appeal that “[t]here was no
dispute amongst the parties” that some edits were required to eliminate
references to precluded evidence. But he maintains that the footage was
edited in a manner that omitted necessary context and that the trial court
objection and allow the trial court to rule on it in the first instance, as we
note for his additional claims of unobjected-to fundamental error, see infra
n.15, we do not address this issue further.
20
STATE v. COPELAND
Opinion of the Court
abused its discretion by admitting it. He asserts that because there is a
portion of the videos in which Copeland is speaking but there is no sound,
“the jury could only speculate about what he was saying” and that the state
edited out Copeland’s “vehement denials that he committed these crimes.”
He thus contends the footage lacked necessary context and was admitted in
violation of Rule 106, Ariz. R. Evid.
¶42 We first note that the jury was instructed not to speculate and
to determine the facts only from the evidence produced in court, and we
presume the jury followed the trial court’s instructions. See State v. Newell,
212 Ariz. 389, ¶ 68 (2006). Furthermore, Rule 106 provides, “If a party
introduces all or part of a writing or recorded statement, an adverse party
may require the introduction, at that time, of any other part—or any other
writing or recorded statement—that in fairness ought to be considered at
the same time.” The rule is one of “inclusion rather than exclusion,” and it
does not “direct the exclusion of evidence in any circumstance.” State v.
Steinle, 239 Ariz. 415, ¶ 10 (2016). Thus, a court does not abuse its discretion
under Rule 106 by admitting evidence, only by excluding specific evidence
offered by a party that is necessary to provide context. See id. Notably,
Copeland could have identified and sought to admit additional portions of
body camera footage to provide the context he contends was necessary
under Rule 106, but he never made such an offer, even after the court
directly asked him whether there were “some other clips that [he] would
prefer to have in.” We conclude the trial court did not err.
Prosecutorial Error13
¶43 We lastly address Copeland’s contention that he suffered
fundamental error and prejudice arising from several instances of
prosecutorial error to which he did not object below. Specifically, he claims
the state failed to correct misleading testimony, mischaracterized evidence,
referred to expressly precluded evidence,14 and deceptively edited audio
13 Although Copeland alleges “prosecutorial misconduct,” we
“differentiate between ‘error,’ which may not necessarily imply a
concurrent ethical rules violation, and ‘misconduct,’ which may suggest an
ethical violation.” In re Martinez, 248 Ariz. 458, ¶ 47 (2020).
14Copeland points out that the state repeatedly alluded to an order
of protection specifically precluded by the trial court. While we do not
condone the prosecutor’s apparent violations of the court’s order, we do
not address this issue as one that is unlikely to recur at any retrial.
21
STATE v. COPELAND
Opinion of the Court
and video exhibits. We need not resolve these issues here, however,
because if retried, Copeland will have the opportunity to enter his
objections should these issues arise again, permitting the trial court to
address them in context and in the first instance. See Wood, 180 Ariz. at 72.15
Disposition
¶44 Based on the foregoing, we uphold the trial court’s denial of
Copeland’s motion to dismiss the indictment, but the admission of
prejudicial hearsay and its use by the state requires that his convictions and
resulting sentences be vacated, and we remand for a new trial or other
proceedings consistent with this opinion.
15 Copeland also challenges as fundamental error the trial court’s
imposition of fifty assessments pursuant to A.R.S. § 12-116.07, one for each
of his convictions. Because we vacate his convictions and resulting
sentences, and as noted above, because he can raise this objection to the trial
court if he is so sentenced again, we do not address the issue for the first
time here. See State v. Prince, 206 Ariz. 24, ¶ 4 (2003) (sentencing issues may
become moot when sentence is vacated).
22