State v. Centeno-Sarabia

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee
v.
JORGE CARLOS CENTENO-SARABIA, Appellant
No. 1 CA-CR 11-0803
FILED 12-11-2014
Appeal from the Superior Court in Maricopa County
No. CR2008-147702-001
The Honorable Sherry K. Stephens, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee
DeBrigida Law Offices PLLC, Glendale
By Ronald M. DeBrigida, Jr.
Counsel for Appellant
Jorge Carlos Centeno-Sarabia, Florence
Appellant
STATE v. CENTENO-SARABIA
Decision of the Court
MEMORANDUM DECISION
Judge Diane M. Johnsen delivered the decision of the Court. Presiding
Judge Samuel A. Thumma specially concurred in part and concurred in the
judgment. Judge Michael J. Brown specially concurred in part and
dissented in part.
J O H N S E N, Judge:
¶1 Jorge Carlos Centeno-Sarabia (“Defendant“) appeals his
convictions and sentences for one count of sexual abuse and two counts of
sexual conduct with a minor. Counsel for Defendant filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297, 451 P.2d 878 (1969), advising that after searching the record
on appeal, he was unable to find any arguable grounds for reversal.
Defendant was granted the opportunity to file a supplemental brief in
propria persona, and has done so. Our obligation is to review the entire
record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89,
96 (App. 1999).
BACKGROUND1
¶2 The State charged Defendant with one count (Count 1) of
sexual abuse, a Class 3 felony, in violation of Arizona Revised Statutes
(“A.R.S.“) section 13-1404(A) (2014) for intentionally or knowingly
touching the victim’s breasts, and two counts (Counts 2 and 3) of sexual
conduct with a minor, Class 2 felonies, one involving digital-vaginal
penetration and the other involving penile-vaginal penetration, in violation
of A.R.S. § 13-1405(A) (2014).2
¶3 The victim, age 13 at the time, was playing at her apartment
complex with two boys when the victim told one of the boys “a story.“ One
1 We view the facts in the light most favorable to sustaining the
convictions and resolve all reasonable inferences against Defendant. State
v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
2 Absent material revision after the date of the alleged offense, we cite
a statute’s current version.
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Decision of the Court
of the boys accompanied the victim to his apartment, and informed his
mother, N.H., that the victim had a story she needed to tell. The victim then
told N.H. that a neighbor had invited her over to his apartment and “hurt
her down there“ in her “private parts.“
¶4 Officer Gary Hodgekiss was dispatched to the apartment
complex. The manager directed Hodgekiss to an apartment rented by L.C.,
a woman Hodgekiss had known for several years; she worked at a nearby
grocery store where he worked off-duty as a security guard. Hodgekiss
also was acquainted with L.C.’s daughter, the victim, and he was aware that
the victim had developmental delays, but she was capable of doing her
homework and understanding basic conversation.
¶5 When Hodgekiss started walking toward L.C.’s apartment,
L.C., the victim and the Defendant all were present – standing within an
arm’s length of each other. L.C. then informed Hodgekiss that her next-
door neighbor had molested her daughter. When Hodgekiss went to talk
to the victim, he noted that she was animated, bouncing sporadically on the
living room sofa. When Hodgekiss asked the victim what happened, she
indicated that “the man next door pinched me real hard, right here,“ while
pointing to her pelvic area. She then followed that statement by “blurt[ing]
out“ that the man had “kissed [her] titties.“3
¶6 Hodgekiss walked past Defendant’s apartment, where he
observed Defendant standing in the doorway. As Hodgekiss walked past,
Defendant spontaneously told him that the victim had never gone past the
threshold of his apartment. When Hodgekiss returned to the victim’s
apartment to speak with her a second time, the victim became very agitated
and pointed to Defendant, who was standing outside, yelling out that he
was the individual who abused her.
3 The victim testified at trial that on the day of the incident, Defendant
called her into his apartment, told her she was his girlfriend, removed her
clothes, “humped“ her, and then “wiped“ her. She stated that Defendant
touched her “butt“ with his hand and “hump[ed]“ her with his “weenie.“
(Although the victim repeatedly referred to penetration of her “butt,“ she
clarified that penetration took place where her “pee“ comes out.) She also
testified that Defendant kissed her breasts. Although the victim initially
equivocated in identifying Defendant, she eventually clarified he was the
individual who lived in the neighboring apartment who sexually abused
her.
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¶7 Detective Gregory McKay searched Defendant’s apartment.
According to McKay, Defendant’s apartment appeared to be consistent
with the victim’s description of what she observed.
¶8 McKay testified that the clothing collected from the victim
during the medical exam had been placed in sealed envelopes and stored
in the police evidence locker. McKay identified the clothing as what the
victim had been wearing the day of the incident. Based on the fit of the
clothing, he opined that while the victim was wearing her clothing, it would
have been impossible for Defendant’s DNA to accidentally transfer onto the
victim’s chest.
¶9 Dr. Leslie Quinn examined the victim after the incident.
Based on the appearance of injuries to the victim's genitals, Quinn testified
that the injuries certainly “occurred within 24 hours of“ her examination
and were consistent with the victim’s explanation that a neighbor had
sexually abused her.
¶10 Stephanie Novak, a forensic biologist and DNA analyst at the
Phoenix Police Department’s crime lab, testified that the victim’s vaginal
swabs revealed the victim’s DNA and DNA from an unidentifiable source.
Novak was not able to identify the other source because there was
insufficient DNA present.
¶11 Vincent Miller, the DNA technical leader at Chromosomal
Laboratories in Phoenix, testified that analysis of a swab from Defendant’s
genitals revealed the presence of DNA that was substantially similar to the
victim’s, but Miller could not draw any definitive conclusions based on the
analysis. However, Miller testified that the DNA collected from the tip of
Defendant’s penis contained two matching alleles consistent with the
victim’s DNA profile. Miller then went on to testify that the DNA analysis
from the victim’s chest area definitively showed the presence of both the
victim’s and Defendant’s DNA.
¶12 Defendant elected to waive his right to counsel and
represented himself at trial, with the assistance of court-appointed advisory
counsel. In opening statements, the prosecutor explained the relevance of
the victim’s mental condition as follows:
Something that you should know about [the victim] is that she
has a learning disability. [The victim] is mentally disabled.
Now we tell you this not to engender any passion or empathy
towards her. Because you should judge [the victim’s]
testimony just like you would anybody else’s. And we expect
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Decision of the Court
you to hold her to the same standards that you would any
other witness that testifies. But with that being said, we do
ask you to consider the fact that she does have a disability and
she's a child. So as you hear that testimony, just keep that in
mind, but at the same time hold her to the same standard.
The prosecutor also urged jurors to focus on the evidence that would
corroborate the victim’s testimony. In his opening statement, Defendant
urged jurors to pay attention to the DNA evidence and the testimony of
Officer Hodgekiss. Defendant cross-examined witnesses, including the
victim, but did not testify on his own behalf.
¶13 The jury found Defendant guilty as charged. The trial court
sentenced Defendant to the presumptive terms on each count: 15 years’
imprisonment on Count 1 and 30 years’ imprisonment on Counts 2 and 3,
with each term to be served consecutively. This timely appeal followed.
DISCUSSION
I. Issues Raised in Penson Order.
¶14 Following our initial review of the record, we issued an order
pursuant to Penson v. Ohio, 488 U.S. 75 (1988), directing the parties to file
supplemental briefs addressing the following issues:
1. Did fundamental error occur when Officer Hodgekiss, on
direct examination, gave his opinion regarding the victim’s
character for truthfulness and stated that the victim was not
capable of fabrication?
2. If fundamental error occurred, was the error prejudicial? In
evaluating prejudice, what is the significance of statements
made by the prosecution about the victim’s credibility during
closing arguments? Did the State present overwhelming
evidence in support of each count? In particular, what
evidence, other than the victim’s statements and testimony,
supports the conviction on Count 2 (sexual conduct with a
minor based on digital penetration)?
¶15 The testimony that gave rise to our order was that of
Hodgekiss, who began his testimony on direct examination by explaining
that he was the first responder to the 9-1-1 call and that he knew the victim
prior to the date of the incident. Hodgekiss had worked for three years
during his off-duty time as a security guard at a grocery store where the
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Decision of the Court
victim’s mother was a clerk. Hodgekiss observed the victim “three times a
week for hours each time“ during his shifts, as the victim would regularly
come to her mother’s workplace to do homework after school and eat
dinner. When Hodgekiss was asked on direct examination whether one can
tell if the victim had developmental delays just by looking at her, Hodgekiss
stated, “If you are walking up to her and you are just kind of watching her
mannerisms, if she’s doing something, you could probably tell that there
was something there, something amiss.“ Later, describing Defendant’s
conduct at the apartment complex during the crime investigation,
Hodgekiss testified that Defendant pulled him aside and whispered that he
thought the victim was “retarded,“ and therefore the police should not
listen to her. Shortly after this testimony the following exchange occurred
between the prosecutor and Hodgekiss:
Q. Based on your training and your personal experience with
[the victim] for three or so years, three days a week, have you
had an opportunity to form an opinion about her sort of character
trait for truthfulness?
A. Oh, yeah.
Q. What . . . is that opinion?
A. [The victim] is a very literal person. In my opinion she is
absolutely not capable of fabricating a story. She in my opinion has
no imagination whatsoever. She learns stuff from school, it’s
what she sees and what she is told that she knows. She
knows, in my opinion, nothing beyond that.
Q. Was [the victim] able to point to the person who she said
hurt her that day in July of 2008?
A. Yes.
Q. Was she able to articulate to you at least basically what had
happened?
A. Yes.
Q. Was she able to point on her body where it was that she
had been touched and hurt?
A. Yes.
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Decision of the Court
Q. Based on your experience with [the victim], do you consider her
to be a malicious person?
A. No, absolutely not.
Q. Would you consider her to be vindictive?
A. No.
(Emphasis added.)
¶16 Because Defendant failed to object to this testimony, we
review it for fundamental error only. See State v. Henderson, 210 Ariz. 561,
567, ¶ 19, 115 P.3d 601, 607 (2005). To prevail under this standard,
Defendant must establish that (1) an error occurred; (2) the error was
fundamental in nature; and (3) the error caused him prejudice. Id. at ¶ 20.
¶17 We conclude the Hodgekiss testimony did not constitute
fundamental error requiring reversal of any of Defendant’s convictions.
¶18 Our colleague who dissents as to Count 2 concludes that the
testimony was admitted in violation of case authorities forbidding a
witness from testifying about the accuracy, reliability or credibility of a
particular witness. Under this principle, a witness may not opine about the
truth of a statement by another witness. See State v. Moran, 151 Ariz. 378,
382, 728 P.2d 248, 252 (1986); State v. Lindsey, 149 Ariz. 472, 475, 720 P.2d 73,
76 (1986); State v. Reimer, 189 Ariz. 239, 240-41, 941 P.2d 912, 913-14 (App.
1997); State v. Schroeder, 167 Ariz. 47, 50-51, 804 P.2d 776, 779-80 (App. 1990).
These authorities, however, do not bar testimony about a witness’s
character for truthfulness or untruthfulness, pursuant to Arizona Rule of
Evidence 608. Nor do they preclude testimony about a witness’s ability to
perceive, remember and recount events. See Wigley v. Whitten, 78 Ariz. 88,
90, 276 P.2d 517, 519 (1954) (“Undeniably a lay witness, if he can meet the
qualifications prescribed by law, may give his opinion concerning mental
competency.“).
¶19 Hodgekiss’s testimony falls into the latter of the two
categories of permissible comment. Although he was asked about the
victim’s “character trait for truthfulness,“ Hodgekiss did not address
whether the victim had a “character trait for truthfulness or
untruthfulness,“ as Rule 608(a) permits. Instead of responding with his
opinion about the witness’s character for truthfulness or untruthfulness
pursuant to Rule 608(a), he gave his opinion, based on his experience from
watching her and talking with her on many instances prior to the incident
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Decision of the Court
here, about her mental capacity to lie: “[S]he is absolutely not capable of
fabricating a story.“ Although stating that one is “not capable of fabricating
a story“ may in some circumstances be hyperbole designed to mean that
the witness would not ever lie, the circumstances here make plain that
Hodgekiss was not testifying that the victim would not lie but that she could
not, because she lacked the imagination to do so.
¶20 Accordingly, Hodgekiss’s testimony was permissible
comment on the victim’s capacity to accurately recount events, not opinion
testimony about her “character trait for truthfulness“ that might have
implicated Rule 608. See 4 Joseph M. McLaughlin et al., Weinstein’s Federal
Evidence § 608.12[3], at 608-22 (2d ed. 2014) (attack on witness’s memory or
knowledge does not implicate Rule 608); id. § 608.13[3][a], at 608-29
(distinguishing testimony “about a witness's character for lying“ from
testimony “about his or her capacity for telling the truth“); id. § 607.05[1], at
607-46 (distinguishing “mental capacity for truth-telling“ from “moral
inducements for truth-telling“); see also United States v. Awkard, 597 F.2d 667,
670 (9th Cir. 1979) (witness’s ability to recall was relevant to credibility but
“had nothing to do with his character“). Cf. United States v. Drury, 396 F.3d
1303 (11th Cir. 2005) (Rule 608(a) not implicated by testimony highlighting
inconsistencies in witness's testimony because that testimony did not
constitute an attack on witness's “reputation for truthfulness“); United
States v. Med. Therapy Scis., Inc., 583 F.2d 36, 41 (2d Cir. 1978) (character
evidence allowed under Rule 608 to counter evidence “relating to the moral
character“ of the witness).
II. Issues Raised Separately by Defendant.4
A. Chain of Custody.
¶21 In his supplemental brief, Defendant challenges the chain of
custody of DNA evidence presented during trial. Defendant does not
challenge the foundation for the testimony of any witness, but rather
contends that the DNA evidence should have been disregarded by the jury
based on alleged deficiencies in the custodial process. Specifically,
Defendant argues that a numerical inconsistency in a lab technician’s notes
suggests evidence was compromised and led to potential contamination. In
particular, Defendant points to a notation in Exhibit 48 indicating that the
envelope containing Defendant’s buccal swabs was labeled as number
4 In addition to the arguments addressed below, Defendant challenges
the sufficiency of the evidence. Our review of the record discloses sufficient
evidence supporting his convictions.
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Decision of the Court
3712646.0001.02A. According to Defendant, the item should have been
labeled as number 3712679.0001.02A. Vincent Miller clarified this mistake,
however, when he testified that the error was simply clerical and the
photographs taken upon receipt of the samples confirmed the correct
identification numbers and preservation of the chain of custody. Our
review of the record supports Miller’s conclusion and we have found
nothing to suggest there were defects in the procedures followed to
preserve the chain of custody of the DNA evidence.
B. Conflict of Interest.
¶22 Defendant also argues an impermissible conflict of interest
existed because the State allegedly hired Chromosomal Laboratories to
testify after Defendant had hired the lab to do DNA testing. To support
that contention, Defendant relies on United States v. Bagley, 473 U.S. 667, 683-
84 (1985), which held that a prosecutor’s withholding of evidence indicating
that a witness had been offered inducements to testify constituted
reversible error. Citing Bagley, Defendant argues his conviction should be
reversed because the State paid Chromosomal Laboratories for Vincent
Miller’s testimony.
¶23 The record does not support Defendant’s argument. When
Defendant raised this issue to the superior court, he alleged he had a
document indicating that the State had paid money to Chromosomal
Laboratories for testimony of its employee. In response, the State pointed
out that Defendant’s original trial counsel had hired the lab to perform
DNA testing on the samples that the Phoenix Police Department’s lab
indicated would be consumed during analysis. Further, the State
confirmed that when defense counsel originally hired the lab, the fee
included trial testimony. Nothing in the record indicates that the
prosecution ever paid Chromosomal Laboratories. Accordingly, Bagley is
inapplicable here and we find no error relating to the State’s decision or
ability to call Vincent Miller as a witness.
C. Defendant’s Remaining Arguments.
¶24 Defendant’s four remaining arguments in his supplemental
brief were not raised during trial; therefore, we review only for
fundamental error. See Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607.
¶25 Defendant argues that absent testimony from a physician
regarding the victim’s mental faculties, the victim was not competent to
testify at trial. Defendant has presented no argument on appeal for why
the victim would be unable to testify other than his conclusory allegation
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Decision of the Court
that the victim’s mental disability somehow rendered her incompetent.
Arizona Rule of Evidence 601 states that “[e]very person is competent to be
a witness unless these rules or an applicable statute provides otherwise.“
Defendant cites no rule or statute supporting his broad claim of error. Thus,
the superior court did not err in allowing the victim to testify without first
conducting a competency hearing. See State v. Perez, 109 Ariz. 572, 574, 514
P.2d 493, 495 (1973) (superior court had no duty to sua sponte conduct a
competency hearing of a witness over the age of ten); State v. Jones, 95 Ariz.
230, 233, 388 P.2d 806, 808 (1964) (upholding the admission of testimony
from two children that defense counsel claimed were “retarded“).
¶26 Defendant also asserts the jury instructions were improper.
He fails, however, to identify any specific instruction he believes was
erroneous; instead, he suggests that the jury could not possibly have
followed the instructions and found him guilty because there was
insufficient evidence to do so. We have independently reviewed the
instructions and find no error.
¶27 Defendant further contends that his sentence was improperly
aggravated without expert testimony. Our review of the record indicates
that notwithstanding the jury’s finding of an aggravating factor, the
superior court imposed presumptive terms of imprisonment on all counts.
Thus, any argument related to the necessity of expert testimony at the
aggravation stage is moot. See State v. Canaday, 117 Ariz. 572, 575-77, 574
P.2d 60, 63-65 (App. 1977).
¶28 Finally, Defendant claims that many of the State’s witnesses
lied under oath. It is well settled, however, that “[a]bsent a showing that
the prosecution was aware of any false testimony, the credibility of
witnesses is for the jury to determine.“ State v. Rivera, 210 Ariz. 188, 194, ¶
28, 109 P.3d 83, 89 (2005). If, as Defendant alleges, false testimony was
provided, Defendant has made no showing that the prosecution was aware
of it.
III. Review of Record.
¶29 As for the remainder of the record, all proceedings were
conducted in accordance with the Arizona Rules of Criminal Procedure.
The record shows Defendant knowingly and voluntarily waived his right
to counsel and was appointed advisory counsel. Defendant was present at
all pertinent stages of the proceedings, was afforded the opportunity to
speak before sentencing, and the sentences imposed were within statutory
limits.
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CONCLUSION
¶30 For the reasons stated above, we affirm Defendant’s
convictions and the resulting sentences.
¶31 Upon the filing of this decision, counsel shall inform
Defendant of the status of the appeal and his options. Defense counsel has
no further obligations unless, upon review, counsel finds an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57
(1984). Defendant shall have 30 days from the date of this decision to
proceed, if he so desires, with a pro per motion for reconsideration or
petition for review.
T H U M M A, Judge, specially concurring in part and concurring in
judgment:
¶32 I agree with the thoughtful analysis of the lead decision and
its conclusions, with the exception of certain aspects of Part I. Although not
neatly fitting into any specific evidentiary classification, as quoted in
paragraph 15 of the lead decision, Hodgekiss appears to have provided
testimony about the victim’s “character for truthfulness” under Rule 608 in
his nonresponsive answer to the question “What . . . is that opinion?” In
doing so as the State’s first witness on direct examination, his testimony ran
afoul of the requirement that “evidence of truthful character is admissible
only after the witness’s character for truthfulness has been attacked.” Ariz.
R. Evid. 608(a) (emphasis added). Accordingly, had a timely objection and
motion to strike been made, the superior court properly could have
sustained the objection, granted the motion and stricken the response. That
conclusion, however, does not end the inquiry.
¶33 The victim later testified at trial, and on cross-examination,
Defendant sought to impeach her with purportedly inconsistent
statements. Following such testimony by the victim and attempted
impeachment by Defendant, case law indicates that evidence regarding the
victim’s character for truthfulness under Rule 608 would have been proper.
See State v. Byrd, 160 Ariz. 282, 283, 772 P.2d 1135, 1136 (App. 1988) (“The
impeachment of the victim by inconsistent statements put her truthfulness
in issue. Blankinship v. Duarte, 137 Ariz. 217, 669 P.2d 994 (App. 1983). The
rehabilitation of the victim by the state with character evidence was
proper.”). Under this analysis, although the receipt of the testimony by
Hodgekiss (the State’s first witness) was error, receipt of the same evidence
from the same witness after the victim testified would not have been. As a
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Thumma, J., Specially Concurring in Part and Concurring in Judgment
result, although erroneous, Defendant has not shown and cannot show that
such testimony was fundamental error or that the error resulted in
prejudice. State v. Henderson, 210 Ariz. 561, 567 ¶ 20, 115 P.3d 601, 607
(2005).
¶34 For these reasons, I concur in judgment in these aspects of
Part I of the lead decision and, in all other respects, I agree with the
thoughtful analysis of the lead decision and its conclusions.
B R O W N, Judge, specially concurring in part, dissenting in part:
¶35 For the reasons explained below, I conclude that admission of
Hodgekiss’s testimony regarding the victim’s character for truthfulness
constitutes fundamental error. However, because overwhelming evidence
exists as to Count One and Count Three, I agree that Defendant’s
convictions and sentences on those two counts should be affirmed. Because
the fundamental error as to Count Two was prejudicial, I would vacate that
conviction and sentence and remand for a new trial. As to the resolution of
issues raised separately by Defendant, I am in agreement with the lead
decision.
Testimony Regarding Victim’s Character for Truthfulness
¶36 “Opinions of a witness regarding questions of truthfulness
and guilt are generally inadmissible for a variety of reasons.“ State v.
Williams, 133 Ariz. 220, 227-28, 650 P.2d 1202, 1209-10 (1982). Both our
supreme court and this court have applied the corresponding principle that
while expert testimony may be permitted to present general behavioral
characteristics of crime victims that affect credibility or accuracy of
observation, neither experts nor lay witnesses should be allowed to give an
opinion concerning the “accuracy, reliability or credibility of a particular
witness in the case being tried.“ See Lindsey, 149 Ariz. at 475, 720 P.2d at 76
(emphasis added); see also Moran, 151 Ariz. at 383, 728 P.2d at 253
(recognizing that “the credibility of a witness and the weight to be given his
testimony rests exclusively with the jury“) (citation omitted); Reimer, 189
Ariz. at 240-41, 941 P.2d at 913-14 (explaining that testimony offered by
police officer regarding victim’s credibility, whether considered as expert
or lay opinion, was not admissible “because Arizona courts have expressly
determined that neither expert nor lay witnesses assist the trier of fact to
understand the evidence or to determine a fact in issue when they merely
opine on the truthfulness of a statement by another witness“); Schroeder, 167
Ariz. at 50-51, 804 P.2d at 779-80 (finding that investigating officer’s opinion
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Brown, J., Specially Concurring in Part, Dissenting in Part
on the credibility of victim was improper, but affirming because the error
was harmless).
¶37 These general principles are consistent with Arizona’s Rule of
Evidence 404(a), which provides that relevant “[e]vidence of a person’s
character or a trait of character is not admissible for the purpose of proving
action in conformity therewith on a particular occasion.“ Ariz. R. Evid.
404(a). Stated differently, Rule 404(a) generally prohibits using a person’s
character to prove that they are guilty of the crime alleged. Accordingly,
courts have historically been concerned with the introduction of character
evidence because “[e]vidence of the general character of a party or witness
almost always has some probative value, but in many situations, the
probative value is slight and the potential for prejudice large.“ 1 McCormick
On Evidence (“McCormick“) § 186 (Kenneth Broun ed., 7th ed. 2013); see also
Ariz. R. Evid. 403 (“The court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of . . . unfair prejudice . . . .“).
¶38 This rule, however, is subject to three relatively narrow
exceptions, one of which permits “[e]vidence of the character of a witness“
as provided in Rule 608. Ariz. R. Evid. 404(a)(3). Rule 608(a), as it read at
the time of the trial,5 controls the admission of testimony related to a
witness’s character for truthfulness or untruthfulness:
The credibility of a witness may be attacked or supported by
evidence in the form of opinion or reputation, but subject to
these limitations: (1) the evidence may refer only to character
for truthfulness or untruthfulness, and (2) evidence of truthful
character is admissible only after the character of the witness for
truthfulness has been attacked by opinion or reputation evidence or
otherwise.
Ariz. R. Evid. 608(a) (2011) (emphasis added). Thus, under the plain
language of the rule, the credibility of a witness may be supported by
character or reputation evidence only after an “attack“ against the witness
has occurred. See McCormick § 33 (“[T]he general norm is that the witness’s
5 Rule 608 was amended, effective January 1, 2012, to conform to the
federal restyling of the Evidence Rules to make them more easily
understood and to make style and terminology consistent throughout the
rules. The changes were intended to be stylistic only, and there was no
intent to change any result in any ruling on evidence admissibility. See
Ariz. R. Evid. 608 cmt. to 2012 amend.
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STATE v. CENTENO-SARABIA
Brown, J., Specially Concurring in Part, Dissenting in Part
proponent may not bolster the witness’s credibility before any attempted
impeachment. For example, on direct examination it would be improper
for the witness’s proponent to elicit the witness’s own testimony that the
witness ‘always tells the truth.’“); Roger Park, et al., The New Wigmore: A
Treatise on Evidence: Impeachment and Rehabilitation § 9.1 (West 2014) (“A
witness may not be supported with evidence of good character for
truthfulness until her character for truthfulness has been attacked by the
other party.“); Courtroom Handbook Federal Evidence (“Courtroom Handbook“)
ch. 5, art. IV, Rule 608 cmt. 6 (West 2014) (“Rule 608(a) stipulates that
evidence of a witness’s truthful character may not be offered unless an
attack has first been made on the witness’s veracity. Opposing counsel
often object to such evidence as impermissible “bolstering.“ The more
precise, and thus more prudent ground for objection, however, is that such
evidence violates Rule 608(a).“).
¶39 Hodgekiss’s testimony regarding his opinion of the victim’s
character for truthfulness occurred before the victim’s character was
attacked as contemplated by Rule 608.6 Therefore, even assuming such
6 The lead decision concludes that Hodgekiss’s testimony was a
“permissible comment on the victim’s capacity to accurately recount
events, not opinion testimony about her ‘character trait for truthfulness.’“
Nothing in the State’s briefing advocates such an interpretation; nor is it
supported by the record. The prosecutor specifically asked the officer if he
had formed an opinion as to the victim’s character for “truthfulness.“
Hodgekiss responded that she was “not capable of fabricating a story“ and
“[had] no imagination whatsoever.“ If the prosecutor had left this
testimony alone, then perhaps it could be construed as relating only to the
victim’s mental capacity. But the prosecutor focused on the matter
repeatedly during closing arguments, mentioning the victim’s inability to
fabricate twice and noting at least a dozen times that jurors needed to assess
credibility of the witnesses, with particular emphasis on the victim’s
credibility. Given that degree of emphasis, a reasonable juror would not
have found Hodgekiss’s opinion was unrelated to the victim’s character for
truthfulness.
Moreover, even assuming that Hodgekiss was offering an
opinion solely as to the victim’s mental capacity, he did not testify as an
expert and therefore was not permitted to testify about whether she had the
mental capacity to tell a lie. Cf. Moran, 151 Ariz. at 381, 728 P.2d at 251
(“Jurors, most of whom are unfamiliar with the behavioral sciences, may
benefit from expert testimony“ explaining behavior they might otherwise
14
STATE v. CENTENO-SARABIA
Brown, J., Specially Concurring in Part, Dissenting in Part
evidence could be deemed properly admitted under the prohibition set
forth in Lindsey and Reimer, it was improper under Rule 608 for the
prosecutor to ask for, and the officer to give, opinion testimony about the
victim’s character for truthfulness before the victim testified.
¶40 Relying on several cases from other jurisdictions, the State
asserts that Rule 608 permits testimony supporting a witness’s character for
truthfulness in a general context so long as it does not relate to a witness’s
truthfulness on a particular occasion. See, e.g., State v. Arrington, 840 P.2d
477, 482 (Kan. 1992); Adams, 5 P.3d at 646, ¶ 14; State v. Rimmasch, 775 P.2d
388, 392 (Utah 1989); State v. King, 248 P.3d 984, 997, ¶ 44 (Utah App. 2010).
Unlike the case at bar, each of those cases involved the admissibility of
expert testimony. Nothing in the trial record indicates Hodgekiss testified
as an expert and even if he did, he would not have been permitted to opine
as to the truthfulness or character of the victim. See ¶ 36, supra.
¶41 More importantly, the State’s argument fails to address the
threshold requirement under Rule 608 that a witness’s character for
truthfulness must be attacked before it can be bolstered. Each of the cases
cited by the State that permitted bolstering involved situations where the
witness’s credibility had been attacked before attempted rehabilitation, or
bolstering, of the witness. Here, the State acknowledges that the prosecutor
“elicited the opinion testimony at issue during direct examination of Officer
Hodgekiss, who was its first witness, before [Defendant] explicitly
challenged [the victim’s] truthfulness.“ Thus, the State does not dispute
there had been no attack when Hodgekiss testified that the victim was
incapable of fabrication.7 Under these circumstances, error occurred.
“attribute to inaccuracy or prevarication.“); Adams, 5 P.3d 642, 647, ¶ 18
(Utah 2000) (explaining that “the ability to assess and evaluate the
intellectual capacities of a mentally handicapped individual is not within
the knowledge or experience of the average individual“ and therefore
testimony from expert psychologist regarding victim’s mental capacity was
helpful to the finder of fact). The lead decision cites no authority supporting
the proposition that a police officer investigating a crime may opine as to
whether a victim has the mental capacity to accurately recall events.
7 The State argues that “[b]ecause the State could have recalled
Hodgekiss to render his opinion regarding [victim’s] truthfulness after
these lines of cross-examination, the premature admission of his opinion
testimony was not prejudicial.“ However, this argument goes to the third
15
STATE v. CENTENO-SARABIA
Brown, J., Specially Concurring in Part, Dissenting in Part
Fundamental Error
¶42 Error is fundamental if a defendant shows “that the error
complained of goes to the foundation of his case, takes away a right that is
essential to his defense, and is of such magnitude that he could not have
received a fair trial.“ Henderson, 210 Ariz. at 568, ¶ 24, 115 P.3d at 608. This
inquiry is case-specific and thus Defendant must show the error was
fundamental in light of the facts and circumstances of this case. State v.
James, 231 Ariz. 490, 493, ¶ 13, 297 P.3d 182, 185 (App. 2013).
¶43 A key factor in the State’s case against Defendant was the
credibility of the victim. The prosecutor alerted the jury to the victim’s
mental condition at the outset of opening statements and repeatedly urged
the jury to consider the victim’s credibility and ability to accurately recall
specifics of her ordeal with Defendant, including offering the following
comments about her inability to fabricate in closing argument:
We’ve heard it was July 29th, 2008. [Y]ou heard from [the
victim]. This is what the people who knew her best said about
her, that she was a 13 year old girl but she functioned in the
age of six or seven. She was an innocent girl. She . . . is literal,
not capable of fabricating. She has no imagination. And what
she says is what she knows.
....
Over a three year period, I mean, we’re looking at a girl whose
got a mental disability whose been described as somebody who
can’t fabricate, I mean, this is a girl who could maintain that
type of detail consistently over three years of time and then
ultimately come in here and tell you the exact same things she
told the officers three years ago[.]
(Emphasis added.)
¶44 Additionally, I am unable to overlook the context of the
prosecutor’s improper solicitation of character evidence from Hodgekiss,
who was the State’s first witness, thus bolstering the victim’s credibility
before she even testified. Hodgekiss was personally acquainted with the
victim, assisted her with homework on numerous occasions, and had given
her and her mother to a ride in his patrol car several times when he saw
prong of fundamental error review—prejudice—not whether any error
occurred. See infra ¶¶ 46-53.
16
STATE v. CENTENO-SARABIA
Brown, J., Specially Concurring in Part, Dissenting in Part
them walking in the summer heat. His opinion as to the victim’s credibility
was therefore highly relevant as to whether the jury would believe the
victim’s testimony. Cf. State v. Nevarez, 178 Ariz. 525, 527, 875 P.2d 184, 186
(App. 1993) (“A police officer is not per se ‘interested’ merely by virtue of
his involvement in the criminal investigation, absent evidence of some personal
connection with the participants or personal stake in the outcome of the case.“)
(emphasis added).
¶45 Given this very unique factual and procedural scenario, the
admission of Hodgekiss’s opinion testimony that the victim is “absolutely
not capable of fabricating a story“ was fundamental error. Such testimony,
considered in the context which it was offered and when combined with
the substantial emphasis placed upon it by the prosecutor during closing
arguments, improperly bolstered the victim’s credibility, whose testimony
went to the core of the issues at trial and thus deprived Defendant of a right
essential to his defense. See Lindsey, 149 Ariz. at 474, 720 P.2d at 75 (finding
that testimony from an expert that most people in the expert’s field feel that
incest victims do not lie was improper opinion testimony and reversible
error); State v. Tucker, 165 Ariz. 340, 350, 798 P.2d 1349, 1359 (App. 1990)
(finding reversible error where expert witness was “allowed to testify as to
the believability of the victim in violation of Lindsey and Moran“); Reimer,
189 Ariz. at 242, 941 P.2d at 915 (finding reversible error based on officer’s
testimony addressing credibility of victim’s statements notwithstanding
defendant’s failure to object at trial); State v. Perez, 946 P.2d 724, 733 (Utah
App. 1997) (finding reversible error under Utah Rule of Evidence 608, based
on the State’s bolstering of its witness prior to any attack of the witness’s
credibility); cf. Schroeder, 167 Ariz. at 51, 804 P.2d at 780 (noting the trial
court erred in admitting testimony of investigating officer regarding the
victim’s credibility but finding no reversible error because defense
objection was sustained, jury was admonished not to consider either the
question or the answer, and no further reference to the victim’s credibility
occurred throughout the remainder of the trial).
Prejudice
¶46 Defendant must also establish that the error was prejudicial.
Henderson, 210 Ariz. at 568, ¶ 26, 115 P.3d at 608. “Fundamental error
review involves a fact-intensive inquiry, and the showing required to
establish prejudice therefore differs from case to case.“ Id. (citing State v.
Bible, 175 Ariz. 549, 572, 858 P.2d 1152, 1175 (1993)).
¶47 The State argues that because the victim’s character for
truthfulness was attacked during her cross-examination, Hodgekiss’s
17
STATE v. CENTENO-SARABIA
Brown, J., Specially Concurring in Part, Dissenting in Part
statements were not prejudicial because he would have been permitted to
make the statements if the State had recalled him after she testified. In other
words, the State asserts that the prosecutor could present rehabilitation
evidence by asking Hodgekiss for his opinion as a form of “anticipatory
bolstering.“
¶48 As a threshold matter, the victim’s character for truthfulness
was not attacked, within the meaning of Rule 608, at any point during the
trial. See Fed. R. Evid. 608 advisory committee’s note to 1972 proposed rules
(“Opinion or reputation that the witness is untruthful specifically qualifies
as an attack under [Rule 608], and evidence of misconduct, including
conviction of crime, and of corruption also fall within this category.“); see
also Ariz. R. Evid. 609 (setting forth the rules for “attacking a witness’s
character for truthfulness by evidence of a criminal conviction“); Courtroom
Handbook ch. 5, art. VI, Rule 608 cmt. 7 (West 2014) (“Attacks on truthful
character typically take the form of reputation or opinion testimony,
inquiry into specific acts, or proof of convictions pursuant to Rule 609.
Ordinarily, impeaching a witness through evidence of bias, contradiction
or prior inconsistent statements does not constitute an assault on
character.“).8
¶49 Accordingly, courts applying the “bolstering“ provision of
Rule 608 have done so sparingly when a witness’s character for truthfulness
has not been called directly into question by either reputation or opinion
evidence. See e.g., U.S. v. Dring, 930 F.2d 687, 692 (9th Cir. 1991) (upholding
denial of rehabilitative testimony when the prosecution did not introduce
opinion or reputation testimony attacking the witnesses’ general character
8 As a general rule, an attack on a witness’s memory or perception
does not justify permitting rehabilitation as to truthfulness. See United
States v. Lindstrom, 698 F.2d 1154, 1162 n.6 (11th Cir. 1983) (citing J.
Weinstein, Weinstein’s Evidence ¶ 607[4] (1981)) (“The credibility of a
witness can always be attacked by showing that his capacity to observe,
remember or narrate is impaired. Consequently, the witness’ capacity at
the time of the event, as well as at the time of trial, are significant. Defects
of this nature reflect on mental capacity for truth-telling rather than on
moral inducements for truth-telling, and consequently Rule 608 does not
apply.“); U.S. v. Danehy, 680 F.2d 1311, 1314 (11th Cir. 1982) (explaining that
prosecution’s assertions of inconsistencies and lack of credibility in
defendant’s testimony did not constitute an attack on his reputation for
truthfulness within meaning of Rule 608 and therefore trial court properly
denied defendant’s request to call witnesses to testify to his reputation for
truthfulness).
18
STATE v. CENTENO-SARABIA
Brown, J., Specially Concurring in Part, Dissenting in Part
for truthfulness but merely emphasized inconsistencies between the
witnesses’ testimony and that of the other witnesses); U.S. v. Dury, 344 F.3d
1089, 1108-09 (11th Cir. 2003), aff’d on remand 396 F.3d 1303 (explaining that
prosecutor’s comments regarding inconsistencies and lack of credibility in
defendant’s testimony did not constitute an “attack“ on reputation for
truthfulness within the meaning of Rule 608); U.S. v. Medical Therapy
Sciences, Inc., 583 F.2d 36, 40 (2d. Cir. 1978) (where evidence as to bias
suggests only that witness’s testimony may be slanted for reasons unrelated
to general propensity for untruthfulness, character evidence is not relevant
to meet such attack). Here, Defendant did not present either reputation or
opinion evidence directly attacking the victim’s credibility within the
meaning of Rule 608(a).
¶50 The State points to Defendant’s cross-examination of the
victim, which occurred after Hodgekiss testified, to demonstrate an
“attack“ under Rule 608 had occurred. Specifically, the State asserts that
the Defendant attacked the victim’s credibility by asking her during cross-
examination (1) whether she had met with the two prosecutors during trial,
whether she considered one of the prosecutors to be her “friend,“ and what
they had told her during this meeting; and (2) whether her brother slept in
her apartment, how old her brother was, whether she loved him, and
whether he was with the victim the day she got hurt. Defendant therefore
insinuated the victim may have been coached by the prosecutors when he
asked the victim whether she had met with the two prosecutors before trial
and considered one of them her “friend.“ However, Defendant’s brief
questioning of the victim did not rise to the level of “corruption,“ which
generally exists only when “there is evidence a witness has attempted to
obtain false testimony in the case or has used coercive threats or pressure
to cause a witness to testify.“ 1 Joseph M. Livermore et. al., Arizona Practice
Series: Law of Evidence § 608:6 (Daniel J. McAuliffe & Shirley J. McAuliffe
eds., 4th ed. 2008); see also State v. Dunlap, 187 Ariz. 441, 456, 930 P.2d 518,
533 (App. 1996) (“Corruption of a witness is defined as the ‘conscious false
intent which is inferable from giving or taking a bribe or from expressions
of a general unscrupulousness for the case in hand.’“) (emphasis omitted).
Therefore, I am not persuaded by the State’s suggestions that Defendant’s
coaching insinuation constituted an attack on the victim’s character for
truthfulness.
¶51 Regarding the State’s argument that the Defendant’s cross-
examination questions also insinuated that the victim’s brother was the true
culprit, those questions were not an attack on the victim’s character for
truthfulness. The State has not cited, nor has my research revealed, any
authority supporting the proposition that raising the possibility of an
19
STATE v. CENTENO-SARABIA
Brown, J., Specially Concurring in Part, Dissenting in Part
alternative perpetrator alone is sufficient to constitute an attack of the
victim’s credibility for truthfulness. Instead, Defendant’s assertion that the
crime was committed by someone else amounts to an attack on the victim’s
memory or perception, which is not an attack on her character for
truthfulness. See supra note 6; cf. State v. Byrd, 160 Ariz. 282, 283, 772 P.2d
1135, 1136 (App. 1988) (holding that rehabilitation of the victim was proper
after impeachment involving inconsistent statements of the victim had
placed her truthfulness in issue).
¶52 Furthermore, even assuming Defendant had properly
attacked the victim’s character for truthfulness, the State cites no persuasive
authority supporting the use of “anticipatory bolstering.“ In United States
v. Bowie, 892 F.2d 1494, 1499 (10th Cir. 1990), the defendant argued on
appeal that testimony pertaining to the “truthfulness“ portions of a
cooperation agreement during direct examination of a law enforcement
officer impermissibly bolstered the credibility of the witnesses who had
entered the agreement even though those witnesses had not yet testified.
The court began its analysis by noting that an open question existed on
whether the Rule 608(a) attack requirement applied to the “’truthfulness’
portions of cooperation agreements.“ Id. Because “[m]ost of what might
be regarded as credibility bolstering was elicited by defense counsel in
cross-examination“ the court held “that the error, if there was any, does not
warrant reversal.“ Id. Unlike Bowie, the present case did not involve a
witness testifying pursuant to a cooperation agreement in which the
witness specifically agreed to tell the truth. Furthermore, unlike the
witnesses in Bowie, Hodgekiss’s testimony went directly to the truthfulness
and credibility of the victim, who was the only eyewitness to the crimes at
issue in this case. As such, Bowie is inapposite.9
¶53 Moreover, permitting the practice of anticipatory bolstering
runs counter to the plain language and purpose of Rule 608. See U.S. v.
Borello, 766 F.2d 46, 57–58 (2d Cir. 1985) (“For us to disapprove of the
present procedure permitting the bolstering of the witness’s testimony and
then to declare it harmless error would make our remarks in the previous
cases purely ‘ceremonial.’ The error cannot be deemed harmless.“); Perez,
9 The other authorities cited by the State relating to this argument are
not persuasive, as none of them involved Rule 608 or are otherwise
connected to admission of opinion evidence regarding the credibility of a
witness. See U.S. v. Beckman, 222 F.3d 512, 523-24 (8th Cir. 2000); U.S. v.
Beatty, 722 F.2d 1090, 1097 (3rd Cir. 1983); Bible, 175 Ariz. at 602, 858 P.2d at
1205; State v. Bates, 804 S.W.2d 868, 879 (Tenn. 1991); and Dickson v. State,
246 S.W.3d 733, 744 (Tex. Crim. App. 2007).
20
STATE v. CENTENO-SARABIA
Brown, J., Specially Concurring in Part, Dissenting in Part
946 P.2d at 732 (declining to adopt an “anticipatory rebuttal“ rule because
the express language of Rule 608 “clearly provides that a witness’s
credibility may not be bolstered before it is attacked[.]“). Allowing a party
to introduce character or reputation testimony to bolster the truthfulness of
a witness who has not yet testified, such as occurred here, would deprive
the opposing party of the right to a fair presentation of the evidence. I
therefore disagree with the State’s assertion that Hodgekiss’s opinion
testimony was not prejudicial based on the theory of anticipatory
bolstering.
Overwhelming Evidence—Counts 1 and 3
¶54 The State argues that Defendant cannot show prejudice
because overwhelming evidence exists as to all three counts. When an
appellate court determines that fundamental error occurred, absent
prejudice, reversal of a defendant’s conviction is not required. See
Henderson, 210 Ariz. at 568, ¶ 26, 115 P.3d at 608. As such, a defendant may
be unable to establish prejudice when the trial record overwhelmingly
establishes the defendant’s guilt. See State v. Morris, 215 Ariz. 324, 338, ¶ 61,
160 P.3d 203, 217 (2007); State v. Fimbres, 222 Ariz. 293, 304, ¶ 43, 213 P.3d
1020, 1031 (App. 2009).
¶55 For Count 1, the State had the burden to prove beyond a
reasonable doubt that Defendant intentionally or knowingly (1) engaged in
sexual contact (2) with any person who is under fifteen years of age and (3)
the sexual contact involved only the female breast. A.R.S. § 13-1404(A). It
is undisputed that the victim was less than fifteen years old. Regarding
sexual contact, the State corroborated the victim’s testimony with Dr.
Miller’s testimony that he positively identified Defendant as the major
contributor to the combination of DNA found in the swab samples that Dr.
Quinn took from the victim’s breasts less than three hours after the incident
and that there existed a probability of one in 13.9 quadrillion that someone
other than Defendant deposited this genetic material. For Count 3, the State
had the burden of proving Defendant intentionally or knowingly (1)
engaged in sexual intercourse (2) with a person under fifteen years of age.
A.R.S. § 13-1405.10 The State presented forensic and physical evidence
corroborating the victim’s pretrial statements and trial testimony. Given
this overwhelming evidence of guilt, Defendant cannot meet his burden of
showing that the error of permitting Hodgekiss to give opinion testimony
10 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(2).
21
STATE v. CENTENO-SARABIA
Brown, J., Specially Concurring in Part, Dissenting in Part
as to the victim’s truthfulness contributed to the jury’s verdicts on Counts
1 and 3.
Evidence Supporting Count 2
¶56 Count 2 alleged that Defendant penetrated the victim’s
vagina digitally, in violation of A.R.S. § 13-1405. In support of its argument
that there was overwhelming evidence to uphold the conviction on Count
2, the State directs us to essentially the same evidence it relies on to
demonstrate overwhelming evidence for Count 3. However, none of the
evidence supporting Count 3 overwhelmingly proves that digital insertion
took place.
¶57 Although blood stains were present in the victim’s
underwear, and a medical examination of the victim’s genitals
demonstrated trauma, the testimony surrounding this evidence does not
support a finding of overwhelming evidence of both digital and penile
penetration. The only testimony explicitly referencing digital penetration,
outside of the victim’s statements, was based on Dr. Quinn’s general
observation. The State points to Dr. Quinn’s testimony that the victim had
“blunt force trauma“ from “something being [forcibly] inserted into the
vagina“ and that the possible types of blunt force trauma that caused the
tear in the victim’s hymen included “somebody put[ting] a finger or an
object or a penis into the vaginal tissue[,] into the hymen[.]“ However, the
essence of Dr. Quinn’s testimony was that something penetrated the
victim’s vagina, causing a tear in the hymen. Dr. Quinn did not opine as to
the precise cause of the tear, nor did she offer an opinion that the tear was
caused by both a finger and penis.
¶58 The prosecutor asked the victim several times what had
happened to her before she explained she was “humped“ by Defendant.
When the victim described what Defendant did to her, she was unclear
what he touched her with, first referring to her hand then Defendant’s knee,
then referring to being touched in “the butt“ by the Defendant’s “weenie.“
When asked if she was touched with anything else, the victim said “no.“
However, the prosecutor then asked the victim if the Defendant “touch[ed]
[her] with his hand“ she responded “[y]eah.“ Ultimately, the victim
confirmed that Defendant’s hand went “inside“ her “butt“:
Q: It went in it? When he touched you with his hand,
touch your butt with his hand, did it go inside outside
or something else?
A: Inside.
22
STATE v. CENTENO-SARABIA
Brown, J., Specially Concurring in Part, Dissenting in Part
The victim’s testimony was sufficient to sustain the jury’s verdict on Count
2 under the substantial evidence standard. However, it does not constitute
overwhelming evidence.
¶59 This conclusion is also reinforced in light of the victim’s
testimony supporting Counts 1 and 3. On several occasions, she was able
to describe the details of Defendant’s penile penetration of her “butt“ and
Defendant’s contact with her breasts with much greater specificity than the
details she gave relating to Count 2. Furthermore, unlike Count 2, the
victim repeated the specifics of Defendant’s sexual misconduct under
Counts 1 and 3 to several other witnesses, each of whom testified at her
trial. Finally, the record lacks evidence corroborating the victim’s
testimony that digital penetration occurred. Unlike Counts 1 and 3, which
was corroborated by Dr. Quinn’s DNA testimony that Defendant had
kissed her breasts, and that Defendant penetrated the victim with his penis,
no such corroborating evidence exists for Count 2’s allegation of digital
penetration.
¶60 In sum, given the facts and circumstances of this case, a
reasonable jury “could have reached a different result“ on Count 2 if the
State had not presented and relied on Hodgekiss’s opinion regarding the
victim’s character for truthfulness. See Henderson, 210 Ariz. at 569, ¶ 27, 115
P.3d at 609. Accordingly, Defendant has met his burden of showing
prejudice resulting from the fundamental error. James, 231 Ariz. at 494-95,
297 P.3d at 186-87. I would therefore vacate the conviction and sentence on
Count 2 and remand for a new trial.
:ama
23