State of Arizona v. Richard Portugal Ortiz

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
RICHARD PORTUGAL ORTIZ,
Appellant.
No. 2 CA-CR 2014-0330
Filed October 16, 2015
Appeal from the Superior Court in Pima County
No. CR20122655001
The Honorable Javier Chon-Lopez, Judge
AFFIRMED
COUNSEL
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee
Steven R. Sonenberg, Pima County Public Defender
By Michael J. Miller and David J. Euchner,
Assistant Public Defenders, Tucson
Counsel for Appellant
STATE v. ORTIZ
Opinion of the Court
OPINION
Judge Howard authored the opinion of the Court in which Presiding
Judge Vásquez and Judge Kelly1 concurred.
H O W A R D, Judge:
¶1 Following a jury trial, appellant Richard Ortiz was
convicted of four counts of sexual conduct with a minor and
sentenced to enhanced prison terms. On appeal, he argues the trial
court erred by allowing unfairly prejudicial expert testimony on the
characteristics of child victims of sexual abuse and violated his
Confrontation Clause rights by ruling the state did not need to call
as witnesses the technicians who handled Ortiz’s deoxyribonucleic
acid (DNA) sample during the preliminary testing process. He
additionally argues the court illegally enhanced his sentences
because the jury, and not the court, should have determined
whether they had been committed on the same occasion. Because
the court did not err in admitting any evidence, and the sentencing
error was harmless beyond a reasonable doubt, we affirm Ortiz’s
convictions and sentences.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to
affirming the jury’s verdicts. State v. Haight-Gyuro, 218 Ariz. 356,
¶ 2, 186 P.3d 33, 34 (App. 2008). At the start of her freshman year of
high school, J.V. joined the wrestling team and Ortiz was her coach.
The following summer, in June 2012, J.V. was fifteen years old and
she and Ortiz, who was fifty-three, engaged in a series of sexual
encounters. The first occurred in mid-June, when J.V. was exercising
in the school gym. Ortiz approached her, kissed her, and placed his
1The Hon. Virginia C. Kelly, a retired judge of this court, is
called back to active duty to serve on this case pursuant to orders of
this court and our supreme court.
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STATE v. ORTIZ
Opinion of the Court
hands inside J.V.’s pants and inserted his fingers into her vagina.
Later that month, Ortiz drove J.V. to a park, and they engaged in
sexual intercourse.
¶3 On June 30, Ortiz drove J.V. home in his mother’s
minivan from a martial arts event. At some point, Ortiz parked the
minivan and began kissing J.V. The two then moved into the
backseat, where they engaged in sexual intercourse and, afterwards,
J.V. began masturbating Ortiz. Meanwhile, a Pima County Sheriff’s
deputy, responding to a suspicious vehicle report, parked in front of
Ortiz’s vehicle and shined his lights into the minivan. When the
deputy approached the minivan, Ortiz was in the driver’s seat and
J.V. was in the back seat getting dressed. Ortiz’s DNA and sperm
were found on J.V.’s underwear and J.V.’s DNA was found on
Ortiz’s penis and underwear.
¶4 Ortiz was charged with seven counts of sexual conduct
with a minor, and a jury found him guilty of four of those counts.2
The trial court determined some of the offenses had not occurred on
the same occasion and sentenced him to enhanced, presumptive,
concurrent and consecutive prison terms totaling 3.75 years. We
have jurisdiction over Ortiz’s appeal pursuant to A.R.S. §§ 12-
120.21(A)(1) and 13-4033(A)(1).
Expert Abused Child Testimony
¶5 Ortiz first argues the trial court improperly allowed the
expert testimony of Dr. Wendy Dutton on the general characteristics
of child sexual abuse victims. He contends the probative value of
several areas of Dutton’s testimony was outweighed by the potential
for unfair prejudice. We review a trial court’s ruling on the
admissibility of expert testimony for an abuse of discretion, State v.
Salazar-Mercado, 234 Ariz. 590, ¶ 13, 325 P.3d 996, 1000 (2014),
viewing “the evidence in the ‘light most favorable to its proponent,
maximizing its probative value and minimizing its prejudicial
2The counts of which Ortiz was acquitted were alleged to have
occurred on different dates and at different places from the counts of
which he was found guilty.
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Opinion of the Court
effect,’” State v. Harrison, 195 Ariz. 28, ¶ 21, 985 P.2d 513, 518 (App.
1998), quoting State v. Castro, 163 Ariz. 465, 473, 788 P.2d 1216, 1224
(App. 1989).
¶6 After a Daubert 3 hearing, the trial court concluded that
Dutton was qualified as an expert under Rule 702, Ariz. R. Evid.,
and that the probative value of her testimony was not outweighed
by the potential for unfair prejudice. Dutton testified at trial as a
“blind” or “cold” expert, meaning she had no knowledge about the
facts of this case and would not offer any opinions specific to it. As
relevant here, Dutton testified that children often disclose abuse in a
“piecemeal” fashion, disclosing the least embarrassing or shameful
details first, and, depending on the reaction they receive, will later
reveal more details. And, Dutton testified studies have shown
children often “under report” the abusive acts that have occurred.
¶7 Dutton also explained that children typically disclose
information either purposefully—taking the initiative to report the
abuse to someone else—or are prompted—when someone else asks
the child a direct question after, for example, the abuse is somehow
discovered. She further stated, based on her “experience and the
current research and literature,” children “are more likely to be
abused by somebody they know.” She went on to describe the
“grooming” process, which is how the abuser will “acquaint [the
child] with physical contact or sexuality.”
¶8 Rule 702, which governs the admissibility of expert
witness testimony, “does not bar ‘cold’ experts from offering
general, educative testimony to help the trier of fact understand
evidence or resolve fact issues.” Salazar–Mercado, 234 Ariz. 590, ¶ 6,
325 P.3d at 998. “When the facts of the case raise questions of
credibility or accuracy that might not be explained by experiences
common to jurors—like the reactions of child victims of sexual
abuse—expert testimony on the general behavioral characteristics of
3 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579(1993); State v. Perez, 233 Ariz. 38, ¶ 16, 308 P.3d 1189, 1193 (App.
2013) (Rule 702, Ariz. R. Evid., reflects Arizona’s adoption of Daubert
standard).
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Opinion of the Court
such victims should be admitted.” State v. Lujan, 192 Ariz. 448, ¶ 12,
967 P.2d 123, 127 (1998); see also State v. Tucker, 165 Ariz. 340, 346, 798
P.2d 1349, 1355 (App. 1990) (“[A]n expert witness may testify about
the general characteristics and behavior of sex offenders and victims
if the information imparted is not likely to be within the knowledge
of most lay persons” so long as the expert does not “quantify nor
express an opinion about the veracity of a particular witness or type
of witness.”).
¶9 Even if admissible under Rule 702, expert testimony still
must undergo a Rule 403, Ariz. R. Evid., analysis. Salazar-Mercado,
234 Ariz. 590, ¶ 20, 325 P.3d at 1001. Under Rule 403, relevant
evidence may be excluded if its probative value is substantially
outweighed by a danger of unfair prejudice. Ariz. R. Evid. 403.
“Unfair prejudice results if the evidence has an undue tendency to
suggest decision on an improper basis, such as emotion, sympathy,
or horror.” State v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046, 1055
(1997). “Deciding whether expert testimony will aid the jury and
balancing the usefulness of expert testimony against the danger of
unfair prejudice are generally fact-bound inquiries uniquely within
the competence of the trial court.” State v. Moran, 151 Ariz. 378, 381,
728 P.2d 248, 251 (1986).
¶10 Ortiz argues that Dutton is not qualified as an expert
under Rule 702(a), which requires that “the expert’s scientific,
technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue.” He argues
Dutton’s testimony is within the common knowledge of a juror, and
is therefore not helpful.
¶11 At oral argument, Ortiz acknowledged our case law
finding that “the average juror is [not] familiar with the behavioral
characteristics of victims of child molesting,” thus making Dutton’s
testimony proper under Rule 702(a). State v. Lindsey, 149 Ariz. 472,
473-74, 720 P.2d 73, 75 (1986); see also Moran, 151 Ariz. at 382, 728
P.2d at 251. He argued, however, that in today’s society, much of
Dutton’s testimony is within the common knowledge of jurors. But
Ortiz conceded the record in this case does not contain anything that
allows this court to revisit the conclusion reached in Lindsey. See
Salazar-Mercado, 234 Ariz. 590, ¶¶ 17, 19, 325 P.3d at 1000-01 (absent
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Opinion of the Court
“studies, testimony, or other evidence casting doubt on” continued
value of Dutton’s testimony on Child Sexual Abuse Accommodation
Syndrome, court would not reconsider whether testimony still
admissible under Rule 702(a)). Ortiz’s argument on Dutton’s
qualifications under Rule 702(a) accordingly fails.
¶12 The main thrust of Ortiz’s argument is that the
prejudicial effect of several areas of Dutton’s testimony outweighed
any probative value. He first argues her testimony that most child
abusers know their victims is “not a ‘behavioral characteristic’” and
was irrelevant because “there was no claim here that [J.V.] was being
abused by a stranger.” But J.V.’s credibility was a central issue in
this case and, as Dutton explained during the Daubert hearing,
“there are some myths out there which tend to suggest that rape is
predominately perpetrated by somebody unknown to the victim.”
Ortiz did not contest this assertion with any evidence. This
testimony therefore was helpful to the jurors in assessing the
credibility of the witnesses and determining the facts. See Lujan, 192
Ariz. 448, ¶ 12, 967 P.2d at 127.
¶13 Ortiz further argues this testimony was unfairly
prejudicial because it “implied that [Ortiz] committed other offenses
as well.” He does not, however, explain, and we fail to see, how this
testimony would have given rise to such an implication. Dutton
provided only generalized testimony, stated she did not know any
of the underlying facts of this case, and did not opine as to J.V.’s
credibility or Ortiz’s guilt or innocence. And Ortiz was able to cross-
examine Dutton. Thus, “the ‘good common sense of jurors [could]
discern that which is true from that which is false’” and the trial
court did not abuse its discretion in finding the probative value of
the testimony was not substantially outweighed by the risk of unfair
prejudice. Moran, 151 Ariz. at 384, 728 P.2d at 254, quoting State v.
Moran, 151 Ariz. 373, 377, 728 P.2d 243, 247 (App. 1985).
¶14 Ortiz next argues Dutton’s testimony regarding
“piecemeal disclosure . . . was not probative of the actual situation”
in this case because J.V.’s disclosures were not made to a “neutral
supportive forensic interviewer.” But Ortiz mischaracterizes
Dutton’s testimony. She stated “[p]iecemeal disclosure refers to”
children disclosing the “least embarrassing or the least shameful”
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STATE v. ORTIZ
Opinion of the Court
aspects of the abuse, and then waiting to see how people react before
revealing more details. Although she noted that children may be
more likely to disclose additional details to a trained interviewer,
she did not state that was a requirement.
¶15 After the deputy found J.V. and Ortiz in the minivan on
June 30, J.V. was handcuffed, read the Miranda 4 warning, and
interrogated by detectives. She initially told detectives that night
was the only time any sexual conduct between herself and Ortiz had
occurred. One week later, however, she disclosed several other acts
of sexual conduct between herself and Ortiz to that same detective.
¶16 This scenario fits precisely into what Dutton described.
Thus, her testimony aided the jury in understanding the reasons for
J.V.’s delayed disclosure and in assessing J.V.’s credibility. See
Salazar-Mercado, 234 Ariz. 590, ¶ 15, 325 P.3d at 1000; see also Lujan,
192 Ariz. 448, ¶ 12, 967 P.2d at 127 (“When the facts of the case raise
questions of credibility or accuracy that might not be explained by
experiences common to jurors—like the reactions of child victims of
sexual abuse—expert testimony on the general behavioral
characteristics of such victims should be admitted.”).
¶17 Ortiz contends, however, he “was prejudiced by the
implication that this was a normal situation.” He does not explain
that assertion, and we fail to see how he was prejudiced. The jury
was informed that J.V. disclosed the incidents after she was
handcuffed, read the Miranda warning, and interrogated by the
detectives. The detective who questioned J.V. testified about his
reasons for not using a forensic interviewer. The jury was therefore
able to assess the credibility of the witnesses and weigh their
testimony accordingly. See State v. Bustamante, 229 Ariz. 256, ¶ 5,
274 P.3d 526, 528 (App. 2012).
¶18 Additionally, the fact that Dutton’s description of how
children disclose abuse was consistent with the evidence presented
at trial does not render her testimony unfairly prejudicial. See State
v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993) (“not all harmful
4Miranda v. Arizona, 384 U.S. 436 (1966).
7
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Opinion of the Court
evidence is unfairly prejudicial” because “relevant and material
[evidence] will generally be adverse to the opponent”). Nor does
the testimony “suggest decision on an improper basis, such as
emotion, sympathy, or horror.” Mott, 187 Ariz. at 545, 931 P.2d at
1055. The trial court did not abuse its discretion by admitting it. See
Moran, 151 Ariz. at 381, 384, 728 P.2d at 251, 254.
¶19 Next, Ortiz argues Dutton’s testimony regarding
children’s tendency to under report was not probative and, instead,
“implied other acts [occurred] that were not raised at trial.” But
Dutton’s testimony actually was that children tend to under report
what happened during a particular incident, not that other incidents
occurred. Therefore, it did not have the implication Ortiz attempts
to impose on it.
¶20 Moreover, even if the testimony had the implication
Ortiz suggests, Dutton repeatedly stated her testimony was based
only on research and literature she had reviewed, as well as her own
experience in the field, and she was unaware of any of the facts of
this particular case. She specifically stated she did not wish to know
the facts in order to prevent her from “purposely or inadvertently
tailor[ing her] testimony to fit the facts of the case” and that her
testimony was not meant to be an opinion on whether or not the
victim had been abused in this case.
¶21 Additionally, the fact that Ortiz was acquitted of three
of the seven charged counts indicates that Dutton’s testimony did
not unfairly prejudice the jury against him. Based on the argument
presented here, the trial court did not abuse its discretion in finding
any probative value of Dutton’s testimony regarding under
reporting was not substantially outweighed by the danger of unfair
prejudice. See Moran, 151 Ariz. at 381, 728 P.2d at 251.
¶22 Ortiz next takes issue with Dutton’s testimony
regarding grooming because, again, he claims it did not fit the facts
of this case and was therefore not probative. Ortiz argues the only
evidence presented on this topic was the testimony of another
wrestling coach that J.V. and Ortiz appeared “too friendly” and
“Dutton did not testify that friendliness was grooming.”
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Opinion of the Court
¶23 But that contention mischaracterizes that witness’s
testimony and ignores other evidence presented at trial. The
wrestling coach also testified that, at a wrestling tournament, Ortiz
and J.V. acted “like boyfriend/girlfriend” and he had received
complaints about their behavior from other parents. Additionally,
J.V. testified that, in early June, she was riding in the back seat of a
car while Ortiz was in the front passenger seat. She “put [her] feet
up between [the driver] and Ortiz,” when Ortiz began rubbing her
feet. Ortiz then removed J.V.’s socks and “put [her] foot in his
mouth.” He later told J.V. he had a “foot fetish” and “couldn’t resist
himself.”
¶24 Shortly thereafter, Ortiz began sending J.V. “flirtatious”
text messages. It was soon after this the incident in the school gym
took place. J.V.’s brother, classmates and another teacher testified
that Ortiz showed more attention to J.V. than other students and the
two often spent time alone together. Dutton’s testimony regarding
grooming was therefore relevant to help the jury understand the
general behavior of child abuse perpetrators and their victims.
See Salazar-Mercado, 234 Ariz. 590, ¶ 15, 325 P.3d at 1000.
¶25 Ortiz also contends Dutton’s testimony that, in the
grooming process, “perpetrators will engage in physical contact that
children enjoy, for example, wrestling games, tickling games,
snuggling, [and] lap sitting,” unfairly implied that “female wrestling
was rife with possibilities for sexual abuse.” When viewed in
context, Dutton’s description of “wrestling games” was clearly not a
reference to the regulated sport of wrestling in high schools and, as
Dutton made clear, her testimony was not a comment on any of the
particular facts in this case. The trial court did not abuse its
discretion in allowing the testimony. See Moran, 151 Ariz. at 381,
728 P.2d at 251.
¶26 Ortiz lastly takes issue with Dutton’s testimony as to
the manner of a child’s disclosure. He contends that whether the
“disclosure may be prompted, spontaneous, or discovered” has no
probative value and instead implied that “this was a normal
situation.” But he admits the state believed J.V.’s disclosure
followed accidental discovery, which did fit the facts here. And, as
we noted above, that the disclosure occurred after J.V. was
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STATE v. ORTIZ
Opinion of the Court
handcuffed and interrogated does not demonstrate Ortiz was
prejudiced. The jury was told of the circumstances under which J.V.
had disclosed the incidents and could weigh the evidence
accordingly. See Bustamante, 229 Ariz. 256, ¶ 5, 274 P.3d at 528;
see also Moran, 151 Ariz. at 384, 728 P.2d at 254. The trial court did
not abuse its discretion. See Moran, 151 Ariz. at 381, 728 P.2d at 251.
Confrontation Clause
¶27 Ortiz next argues the trial court violated his right under
the Confrontation Clause of the Constitution by admitting the
testimony of forensic analyst Emily Jeskie. He complains that her
analysis of the DNA evidence relied on preparation and testing of
samples conducted by technicians who did not testify at trial and
were not subject to cross-examination. “[W]e review de novo
challenges to admissibility based on the Confrontation Clause.”
State v. Bennett, 216 Ariz. 15, ¶ 4, 162 P.3d 654, 656 (App. 2007).
¶28 At trial, the state introduced DNA evidence collected
from Ortiz’s penis and underwear, and J.V.’s underwear through the
testimony of Jeskie, a lead forensic DNA analyst with Sorenson
Forensics, and her written report. Jeskie testified about the contents
of her report and her opinion that J.V. was a contributor to the DNA
found on Ortiz’s penis and underwear, and that a DNA profile of
sperm collected from J.V.’s underwear matched Ortiz’s DNA profile.
The written report stated that it was a case report generated as part
of the investigation of Ortiz for the offense of sexual conduct with a
minor.
¶29 Jeskie testified to the steps by which technicians at
Sorenson Forensics process physical evidence to derive and compare
DNA profiles. The steps include receipt of the evidence, assignment
of a unique identifier to each piece of evidence, preparation of
testing samples, extraction of DNA from cells on the prepared
samples, duplication of the extracted DNA, processing the DNA
through a machine referred to as a “genetic analyzer,” entry of data
received from the genetic analyzer into a software program, and the
review and comparison of the data entered into the program. The
process requires participation by a number of different technicians,
each of whom is “trained in the standard operating procedures of
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STATE v. ORTIZ
Opinion of the Court
the lab,” “ha[s] . . . been tested and made sure [each] qualif[ies] and
can . . . perform” in compliance with those procedures, and “deemed
competent.” Through the process, a chain of custody is recorded
and each technician takes notes on the tasks performed. But the
technicians do not reach any conclusions regarding the evidence or
prepare a report.
¶30 Jeskie then reviewed the data from the genetic analyzer
that had been entered into the software program, compared the
DNA profiles generated from each piece of physical evidence to a
sample from Ortiz, formulated her opinion, and wrote a report. She
did not conduct and was not present for any of the other steps. She
did, however, review all of the work conducted by others in
generating the DNA profiles to ensure that proper procedures had
been followed and found that no problems with the chain of
custody, such as tampering, appeared to have occurred. And she
was familiar with and had performed each of the other steps in the
process. She also confirmed that quality assurance protocols had
been followed for each of the samples processed in this case and that
the protocols demonstrated the tests run on the samples worked
properly and no contamination occurred.
¶31 “The Sixth Amendment . . . prohibits the introduction of
testimonial statements by a nontestifying witness, unless the witness
is ‘unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.’” Ohio v. Clark, ___ U.S. ___, ___,
135 S. Ct. 2173, 2179 (2015), quoting Crawford v. Washington, 541 U.S.
36, 54 (2004). “Testimonial evidence is ‘ex parte in-court testimony or
its functional equivalent . . . such as affidavits, custodial examinations,
prior testimony that the defendant was unable to cross-examine, or
similar pretrial statements that declarants would reasonably expect
to be used prosecutorially.’” State v. Medina, 232 Ariz. 391, ¶ 54, 306
P.3d 48, 62 (2013), quoting Crawford, 541 U.S. at 51. A forensic report
“created solely for an ‘evidentiary purpose,’ . . . made in aid of a
police investigation, ranks as testimonial.” Bullcoming v. New
Mexico, ___ U.S. ___, ___, 131 S. Ct. 2705, 2717 (2011), quoting
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009).
¶32 The parties agree that Ortiz’s claim here is “exactly the
same” as that addressed by our supreme court in State v. Gomez, 226
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Opinion of the Court
Ariz. 165, 244 P.3d 1163 (2010). In Gomez, the state introduced DNA
evidence derived by nearly the same “‘assembly line’” process used
by Sorenson Forensics through the testimony of a senior forensic
analyst and supervisor. 226 Ariz. 165, ¶¶ 3-4, 244 P.3d at 1164.
Although that analyst “had not witnessed all of the steps in the
process,” she “had checked the technicians’ records for any
deviations from the laboratory’s protocols, . . . performed the initial
evidence screening and DNA extraction on most of the items,” and
“personally performed the final step in the process, interpretation
and comparison” of “the DNA profiles generated in the laboratory.”
Id. ¶¶ 3-4 & n.1.
¶33 The court noted the final step that the testifying analyst
had completed “was the only step involving human analysis.”
Id. ¶ 4. And similar to this case, the analyst in Gomez testified “about
the laboratory’s operating procedures, standards, and safeguards,”
the chain of custody, and “that several profiles derived from the
evidence at the crime scene ‘matched’ the profile obtained from
Gomez’s blood sample.” Id. ¶¶ 4-5.
¶34 Gomez argued that “the analyst’s testimony about the
DNA profiles was hearsay because she was not involved in
generating those profiles.” Id. ¶ 11. The court, relying on Melendez-
Diaz, began by noting that “the Confrontation Clause does not
require that every person in the chain of custody be available for
cross-examination.” Id. ¶ 14. Rather, “[t]he Sixth Amendment
requires only that those who do testify about the chain of custody be
available for cross-examination.” Id.
¶35 The court ultimately held that, even assuming the DNA
profiles were hearsay and that the analyst’s testimony was the
functional equivalent of entering the DNA profiles into evidence, the
testimony did not violate the Confrontation Clause because “[t]he
analyst was able to review that work, testify from her own
knowledge as to the procedures used, and answer questions during
cross-examination about the accuracy of the results.” Id. ¶¶ 12-13,
21. The technicians, on the other hand, “at most could have testified
about the mechanical steps they took to process the DNA samples.”
Id.
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Opinion of the Court
¶36 The court then concluded the analyst’s expert testimony
that the DNA profiles “matched” similarly did not violate the
Confrontation Clause because the analyst did not “‘act as a conduit
for another non-testifying expert’s opinion’” and instead “formed
her own opinions, based on a type of data normally relied upon by
experts in her field.” Id. ¶¶ 5, 22-23, quoting State v. Snelling,
225 Ariz. 182, ¶ 19, 236 P.3d 409, 414 (2010). Additionally, the
analyst “was subject to cross-examination about her independent
conclusion that several of the DNA profiles came from the same
person.” Id. ¶ 24.
¶37 Ortiz argues that Gomez is no longer valid law in light of
the United States Supreme Court’s recent decision in Bullcoming. He
contends Bullcoming stands for the proposition that a “defendant has
the right to confront the technicians who prepare and load the
sample and the ability to question the analyst on the read-out of the
[genetic analyzer] and the standard protocols.” He further contends
that Bullcoming “rejected Gomez’s holding that ‘the mechanical steps
[the technicians] took to process the DNA samples’ [were] not
subject to the [C]onfrontation [C]lause, but could be testified to by
the analyst.” See Gomez, 226 Ariz. 165, ¶ 21, 244 P.3d at 1167.
¶38 But Bullcoming does not stand for these propositions.
As the Court stated, Bullcoming addressed the question of “whether
the Confrontation Clause permits the prosecution to introduce a
forensic laboratory report containing a testimonial certification—
made for the purpose of proving a particular fact—through the in-
court testimony of a scientist who did not sign the certification or
perform or observe the test reported in the certification.” ___ U.S. at
___, 131 S. Ct. at 2710.
¶39 In that case, analyst Curtis Caylor’s report certified that
“he received Bullcoming’s blood sample intact with the seal
unbroken, that he checked to make sure that the forensic report
number and the sample number ‘correspond[ed],’ and that he
performed on Bullcoming’s sample a particular test, adhering to a
precise protocol.” Id. at ___, 131 S. Ct. at 2714. Additionally, Caylor
certified that “no ‘circumstance or condition . . . affect[ed] the
integrity of the sample or . . . the validity of the analysis.’” Id. At the
time of trial Caylor had been placed on unpaid leave and, in his
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Opinion of the Court
place, the state relied upon the testimony of Gerasimos Razatos, an
analyst who worked for the same laboratory as Caylor, but “had
neither observed nor reviewed Caylor’s analysis.” Id. at ___, 131
S. Ct. at 2711-12. The state never asserted Razatos had developed an
independent opinion on the results of the forensic testing. Id. at ___,
131 S. Ct. at 2716.
¶40 The Court concluded Razatos’s testimony violated
Bullcoming’s Confrontation Clause right. Id. at ___, 131 S. Ct. at
2714-15. In doing so, the Court found Razatos only provided
“surrogate testimony,” which “could not convey what Caylor knew
or observed about the events his certification concerned . . . [or]
expose any lapses or lies on the certifying analyst’s part.” Id. at ___,
131 S. Ct. at 2715. And Bullcoming could not cross-examine Caylor
about the reason he had been placed on unpaid leave or any other
facts that may have raised doubts about the certifying analyst’s
credibility. Id. at ___, 131 S. Ct. at 2715-16. “In short, when the State
elected to introduce Caylor’s certification, Caylor became a witness
Bullcoming had the right to confront.” Id. at ___, 131 S. Ct. at 2716.
¶41 Despite Ortiz’s insistence, Bullcoming did not create a
new rule requiring the state to call every person in the chain of
custody or every person who had participated in testing to testify at
trial. The court instead was analyzing its precedent that “[a]n
analyst’s certification prepared in connection with a criminal
investigation or prosecution . . . is ‘testimonial,’ and therefore within
the compass of the Confrontation Clause” under a specific factual
scenario. Id. at __, 131 S. Ct. at 2714; see also Williams v. Illinois, ___
U.S. ___, ___, 132 S. Ct. at 2221, 2233 (2012) (Bullcoming “held that [a]
scientific report could not be used as substantive evidence against
the defendant unless the analyst who prepared and certified the
report was subject to confrontation.”).
¶42 This interpretation was reiterated by Justice Sotomayor
in her concurring opinion, which was meant, in part, “to emphasize
the limited reach of the Court’s opinion.” Bullcoming, ___ U.S. at
___, 131 S. Ct. at 2719 (Sotomayor, J., concurring). Justice Sotomayor
pointed out that Razatos “played no role in producing the . . .
report[,] . . . did not observe any portion of [Caylor’s] conduct of the
testing” and did not offer an “independent, expert opinion about
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Opinion of the Court
Bullcoming’s blood alcohol concentration.” Id. at ___, 131 S. Ct. at
2722. And she also confirmed, as the court previously had stated in
Melendez-Diaz, that the Confrontation Clause does not require “‘that
anyone whose testimony may be relevant in establishing the chain of
custody, authenticity of the sample, or accuracy of the testing device,
must appear in person as part of the prosecution’s case.’” Id. at ___,
131 S. Ct. at 2721 n.2 (Sotomayor, J., concurring), quoting Melendez-
Diaz, 557 U.S. at ___, 129 S. Ct. at 2532 n.1.
¶43 Under Bullcoming, the state is not required to present
the live testimony of every technician who assisted in generating the
DNA profiles. Therefore, we reject Ortiz’s argument that, after
Bullcoming, Gomez is no longer good law. See State v. Michaels, 95
A.3d 648, 662 (N.J. 2014) (Bullcoming does not stand “for the
proposition that forensic reports require, for their admission, the
testimony of all analysts involved in the handling and testing of a
sample used in any forensic analysis.”).
¶44 Ortiz also appears to rely on some portions of the
Supreme Court’s decision in Williams, while distinguishing its result.
There, the Court affirmed Williams’s conviction for sexual assault,
even though the testifying analyst drew independent conclusions
about DNA profiles she had received from an outside laboratory,
but lacked personal knowledge of the procedures and testing
conducted to generate one of the DNA profiles on which she opined.
See Williams, ___ U.S. at ___, 132 S. Ct. at 2227, 2236. In particular,
the case centered around the expert’s testimony that the DNA
profile was “produced from semen found on the victim’s vaginal
swab” despite the fact that she did not have any actual knowledge of
whether that was true. Id. at ___, 132 S. Ct. at 2227, 2235-36, 2267,
2270 (Kagan, J., dissenting).
¶45 The plurality opinion first determined the DNA profiles
were not hearsay because “[o]ut-of-court statements that are related
by the expert solely for the purpose of explaining the assumptions
on which that opinion rests are not offered for their truth and thus
fall outside the scope of the Confrontation Clause.” Id. at ___, 132
S. Ct. at 2228. Rather, the testifying analyst in that case “referred to
the report not to prove the truth of the matter asserted in the report,
i.e., that the report contained an accurate profile of the perpetrator’s
15
STATE v. ORTIZ
Opinion of the Court
DNA, but only to establish that the report contained a DNA profile
that matched the DNA profile deduced from [the defendant’s]
blood.” Id. at ___, 132 S. Ct. at 2240. Justice Thomas and the four
dissenting justices, however, found the statements clearly were
offered for the truth of the matter asserted, and the plurality’s
analysis on that point had “no merit.” Id. at ___, 132 S. Ct. at 2256
(Thomas, J., concurring), 2268 (Kagan, J., dissenting).
¶46 Applying the plurality’s hearsay analysis here shows
that Jeskie did not relate testimonial hearsay. When discussing the
DNA profiles, Jeskie was explaining only the “assumptions on
which” her opinion rested. Id. at ___, 132 S. Ct. at 2228; see also State
v. Joseph, 230 Ariz. 296, ¶ 8, 283 P.3d 27, 29 (2012) (“a testifying
medical examiner may offer an opinion based on an autopsy
performed by a non-testifying expert without violating the
Confrontation Clause” where report not admitted into evidence and
testifying expert reaches independent conclusions). Consequently,
Jeskie’s testimony did not violate the Confrontation Clause.
¶47 The plurality however, identified a “second,
independent basis” for its conclusion that Williams’s Confrontation
Clause right was not violated. Williams, ___ U.S. at ___, 132 S. Ct. at
2228. It found the profiles, even if offered for the truth of the matter
asserted, were not testimonial. Id. at ___, 132 S. Ct. at 2242. It
concluded that, post-Crawford, Confrontation Clause violations
occur when the statements at issue are “formalized” and have “the
primary purpose of accusing a targeted individual of engaging in
criminal conduct.” Id. at ___, 132 S. Ct. at 2242; see also State v.
Medina, 232 Ariz. 391, ¶ 58, 306 P.3d 48, 63 (2013); Young v. United
States, 63 A.3d 1033, 1040-41 (D.C. 2013).
¶48 In Williams, the DNA profiles were created before a
suspect was identified and thus the “primary purpose” was “to
catch a dangerous rapist who was still at large.” Williams, ___ U.S.
at ___, 132 S. Ct. at 2243. The authors of the reports could not have
known the results would inculpate the defendant. Id. at ___, 132
S. Ct. at 2243-44. After concluding the profiles failed the “primary
purpose” test, the Court did not discuss whether the profiles would
be considered “formalized statements.” Id. at ___, 132 S. Ct. at 2244.
16
STATE v. ORTIZ
Opinion of the Court
¶49 The DNA profiles in this case, unlike those in Williams,
were created for the “primary purpose” of gathering evidence
against Ortiz. See id. at ___, 132 S. Ct. at 2242. However, until Jeskie
issued her opinion that the samples matched, they did not inculpate
Ortiz. Jeskie was thus the only “‘witness[] against’” Ortiz because,
“[a]bsent [her] analysis, we are left with an abstract graph or set of
numbers that has no bearing on the trial.” See State v. Lui, 315 P.3d
493, ¶ 67 (Wash. 2014), quoting U.S. Const. amend. VI.
¶50 Further, the DNA profiles were not “formalized
statements, such as affidavits, depositions, prior testimony, or
confessions.” Id. at ___, 132 S. Ct. at 2242. The report in this case,
like that in Williams, “lack[ed] the solemnity of an affidavit or
deposition, for it is neither a sworn nor a certified declaration of
fact,” did not “attest that its statements accurately reflect the DNA
testing processes used or the results obtained . . . [a]nd, . . . produced
at the request of law enforcement, it was not the product of any sort
of formalized dialogue resembling custodial interrogation.” Id. at
___, 132 S. Ct. at 2260 (Thomas, J., concurring). Consequently,
regardless of whether the profiles in this case meet the “primary
purpose” requirement, they do not meet the second formality
requirement identified by the plurality and therefore are not
testimonial and not within the scope of the Confrontation Clause.
¶51 In his concurrence, Justice Thomas found the profiles
were hearsay but not testimonial. Id. at ___, 132 S. Ct. at 2259. In
doing so, he rejected the plurality’s “primary purpose” test and
instead relied solely on the plurality’s second identified criteria: the
statements must contain some “‘indicia of solemnity.’” Id. at ___,
132 S. Ct. at 2259-60, 2262, quoting Davis v. Washington, 547 U.S. 813,
836-37 (2006) (Thomas, J., concurring in part and dissenting in part).
Accordingly, as discussed above, the DNA profiles here are not
testimonial because they lacked the required “solemnity” under
Justice Thomas’s test.
¶52 Williams is a plurality decision and has limited if any
precedential value. See State v. Medina, 232 Ariz. 391, ¶ 60, 306 P.3d
48, 63 (2013) (“when no ‘single standard . . . legitimately constitutes
the narrowest ground for a decision on that issue, there is then no
law of the land’”), quoting United States v. Alcan Aluminum Corp., 315
17
STATE v. ORTIZ
Opinion of the Court
F.3d 179, 189 (2d Cir. 2003); Seminole Tribe of Fla. v. Florida, 517 U.S.
44, 66 (1996) (When “a majority of the Court expressly disagree[s]
with the rationale of the plurality,” a case is “of questionable
precedential value.”). But its result is antithetical to Ortiz’s claim—
five of the nine justices ultimately concluded no Confrontation
Clause violation had occurred when the analyst relied on DNA
profiles generated by a third-party because the challenged statement
was not testimonial. Id. at ___, 132 S. Ct. at 2244, 2248 (Breyer, J.,
concurring), 2255 (Thomas, J., concurring). Under either of the tests
proposed by the plurality opinion, or Justice Thomas’s solemnity
test, Williams supports the conclusion that no Confrontation Clause
violation occurred here.
¶53 Ortiz further contends that courts in other states have
determined that Melendez-Diaz and Bullcoming stand for the
proposition “that testimony about earlier steps in the analysis [are]
important to determin[e] the truth of the matter and therefore [are]
covered by the” Confrontation Clause. See Martin v. State, 60 A.3d
1100 (Del. 2013); Young, 63 A.3d 1033; State v. Navarette, 294 P.3d 435(N.M. 2013).
¶54 Martin and Navarette do not support Ortiz’s position
because they involved an expert’s recitation of observations,
interpretations, and conclusion of a non-testifying witness.
See Martin, 60 A.3d at 1101, 1107-08; see also Navarette, 294 P.3d 435,
¶¶ 1, 5, 16-17, 21. Unlike Martin and Navarette, Jeskie authored the
certified report to which she testified and exercised her own
independent judgment to reach the conclusion in that report. She
did not base her conclusions on, or testify to, a different, non-
admitted report prepared by a non-testifying analyst. These cases
are therefore inapposite to our analysis here.
¶55 Nor do we find the reasoning of Young persuasive. The
court in Young, based on facts similar to those in this case, found the
defendant’s Confrontation Clause rights were violated where the
testifying analyst who certified the report that Young’s DNA
matched DNA found on the victim based her conclusion on DNA
profiles created by other analysts. 63 A.3d at 1048. The court
determined that “without evidence that [the certifying analyst]
performed or observed the generation of the DNA profiles . . .
18
STATE v. ORTIZ
Opinion of the Court
herself, her supervisory role and independent evaluation of her
subordinates’ work product are not enough to satisfy the
Confrontation Clause.” Id.¶56 We decline to adopt Young’s analysis because it extends
the reach of the Confrontation Clause further than the Supreme
Court has chosen to do in any of its cases. And, “we are not bound
by decisions from other states.” State v. Solis, 236 Ariz. 242, ¶ 14, 338
P.3d 982, 987 (App. 2014). Young also would extend the
Confrontation Clause further than Gomez, which is binding
precedent from our state. See State v. McPherson, 228 Ariz. 557, ¶ 13,
269 P.3d 1181, 1186 (court of appeals bound by decisions of supreme
court). Accordingly, we do not follow Young.
¶57 Furthermore, our conclusion is consistent with that
reached by many other states confronted with this issue since
Melendenz-Diaz and Bullcoming. The courts in those cases also have
found that the state’s failure to call a technician from the preliminary
steps of preparing a DNA or blood sample does not violate the
Confrontation Clause. See, e.g., Milligan v. State, 116 A.3d 1232,
1239-40 (Del. 2015) (Confrontation Clause did not require state to
call each individual who possessed defendant’s blood sample
during testing process); Speers v. State, 999 N.E.2d 850, 852-53 (Ind.
2013) (Confrontation Clause does not require technician who
transferred blood sample for testing from piece of glass to swab);
Michaels, 95 A.3d at 670-73 (state need not call “all fourteen analysts”
involved in testing defendant’s blood sample despite fact that
testifying analyst did not conduct any preliminary testing or directly
observe technicians); Commonwealth v. Yohe, 79 A.3d 520, 540-42 (Pa.
2013) (Confrontation Clause required only testimony of toxicologist
that reached conclusion on defendant’s blood-alcohol level based on
raw data generated by other analysts he supervised; collecting
similar cases); State v. Lui, 315 P.3d 493, ¶¶ 12, 45, 61, 74 (no
Confrontation Clause violation where testifying DNA analyst’s
conclusions based on test results she “did not personally participate
in or observe”).
¶58 In sum, recent Supreme Court cases do not invalidate
Gomez, and, consequently, we apply its holding here. Like the
testifying analyst in Gomez, Jeskie reviewed the work that created
19
STATE v. ORTIZ
Opinion of the Court
the DNA profiles for deviations from laboratory protocols and any
quality issues and testified based on her personal knowledge as to
the testing conducted by the technicians. See 226 Ariz. 165, ¶¶ 4, 21,
244 P.3d at 1164, 1167. Ortiz was able to cross-examine her on the
procedures and testing, by asking, for example, whether
contamination of the samples could occur despite the quality
assurance procedures. Further, she performed the final analysis in
which she interpreted the data received and compared the samples.
She also formed the opinion that the samples matched Ortiz’s DNA.
¶59 The DNA profiles had no evidentiary value until they
were compared and matched by Jeskie. Therefore, the other
technicians’ work and notes were not testimonial. See Williams, ___
U.S. at ___, 132 S. Ct. at 2228; see also Gomez, 226 Ariz. 165, ¶ 21, 244
P.3d at 1167. Consequently, Jeskie did not act as a “conduit” for
another expert’s opinion, but instead “formed her own opinions,
based on a type of data normally relied upon by experts in her
field.” Gomez, 226 Ariz. 165, ¶¶ 22-23, 244 P.3d at 1167-68. Because
the state sought to introduce Jeskie’s report, “[she] became a witness
[Ortiz] had the right to confront.” Bullcoming, ___ U.S. at ___, 131
S. Ct. at 2716. We thus conclude that Jeskie’s testimony relying on
the DNA profiles created by other technicians in the same laboratory
did not violate the Confrontation Clause.
Sentence Enhancement Under A.R.S. § 13-703
¶60 Ortiz additionally argues that the trial court improperly
enhanced his sentence pursuant to A.R.S. § 13-703 because the jury,
rather than the court, should have decided whether the offenses had
been committed on separate occasions but consolidated for trial.
This presents a mixed question of fact and law, which we review de
novo. See State v. Derello, 199 Ariz. 435, ¶ 8, 18 P.3d 1234, 1237 (App.
2001).
¶61 Before trial, the state filed an allegation, for sentence-
enhancement purposes, that Ortiz’s offenses had not been
committed on the same occasion but were consolidated for trial. See
20
STATE v. ORTIZ
Opinion of the Court
A.R.S. § 13-703(A). 5 During trial, Ortiz requested that the jury
determine whether his offenses were committed on the same or
separate occasions. The trial court denied that request and, after the
jury returned its verdicts, held a separate hearing on this issue.
Based on the evidence presented at trial, the court found counts one
and five were not committed on the same occasion as each other or
counts six and seven.
¶62 “Any fact that, by law, increases the penalty for a crime
is an ‘element’ that must be submitted to the jury and found beyond
a reasonable doubt.” Alleyne v. United States, ___ U.S. ___, ___, 133
S. Ct. 2151, 2155 (2013); see also Apprendi v. New Jersey, 530 U.S. 466,
483, n.10 (2000). As relevant here, a person convicted of three or
more “felony offenses that were not committed on the same occasion
but that either are consolidated for trial purposes or are not
historical prior felony convictions” is sentenced as a category two,
repetitive offender, and therefore, subject to a higher sentencing
range than a category one or first-time offender. § 13–703(A); see also
A.R.S. § 13-702.
¶63 “Accordingly, the determination whether [Ortiz’s]
offenses had been committed on the same occasion pursuant to
[§ 13–703(A)] was required to have been submitted to the jury,
inherent in the jury’s verdicts, or otherwise excepted from Alleyne
and Apprendi.” State v. Flores, 236 Ariz. 33, ¶ 5, 335 P.3d 555, 557
(App. 2014); see also Alleyne, ___ U.S. at ___, 133 S. Ct. at 2155 (“Other
than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”),
quoting Apprendi, 530 U.S. at 490; Blakely v. Washington, 524 U.S. 296,
303 (2004) (defendant entitled to separate jury finding if fact not
already reflected in verdict or admitted by defendant).
5Ortiz was sentenced pursuant to A.R.S. § 13-703(B)(1), which
has since been renumbered as § 13-703(A). 2015 Ariz. Sess. Laws,
ch. 51, § 1. We refer to the current version of the sentencing statute.
See 2012 Ariz. Sess. Laws, ch. 190, § 2.
21
STATE v. ORTIZ
Opinion of the Court
¶64 To determine whether offenses were committed on the
same occasion, the trier of fact must look at five factors: “1) time,
2) place, 3) number of victims, 4) whether the crimes were
continuous and uninterrupted, and 5) whether they were directed to
the accomplishment of a single criminal objective.” State v. Kelly, 190
Ariz. 532, ¶ 6, 950 P.2d 1153, 1155 (1997); see also Flores, 236 Ariz. 33,
n.2, 335 P.3d at 557, n.2 (noting Kelly factors are exclusive). Whether
a Kelly factor is “inherent in the jury’s verdict” requires an
examination of the elements of the offense and the indictment.
See Flores, 236 Ariz. 33, ¶¶ 7-8, 335 P.3d at 557; see also Blakely, 542
U.S. at 303-04 (court may not enhance sentence if “additional
findings” outside of verdicts required); cf. State v. Larin, 233 Ariz.
202, ¶ 38, 310 P.3d 990, 1000-01 (App. 2013) (courts look to statutes
defining offense, the indictment, and “whether ‘an element of the
offense charged contains an allegation and requires proof’ of
dangerousness” when determining if dangerousness inherent in
offense), quoting State v. Parker, 128 Ariz. 97, 98, 624 P.2d 294, 296
(1981).
¶65 Ortiz argues “[t]he jury was not asked to determine any
of these factors, [as] they were not inherent in the verdict,” are not
elements of the offenses, and, most importantly, the jury was
explicitly told it did not need to determine the date on which the
offenses were committed. Ortiz was convicted of four counts of
sexual conduct with a minor, which required the state to prove he
“intentionally or knowingly” engaged in the “penetration into the
. . . vulva . . . by any part of the body . . . or masturbatory contact
with the penis” with a person “under eighteen years of age.” A.R.S.
§ 13-1405; A.R.S. § 13-1401. Count one alleged that Ortiz “digitally
penetrat[ed J.V.’s] vulva . . . [o]n or about the 15th of June, 2012.”
Count five alleged that Ortiz “penetrat[ed J.V.’s] vulva with his
penis . . . [o]n or about the 25th day of June, 2012.” Counts six and
seven alleged that Ortiz engaged in “masturbatory contact with
[J.V.’s] hand” and “penetrat[ed J.V.’s] vulva with his penis . . . [o]n
or about the 30th of June, 2012.”
¶66 The state requested an instruction that the evidence
simply had to show that the events occurred “on or about” the dates
charged. It argued J.V. “was very clear it happened between June
22
STATE v. ORTIZ
Opinion of the Court
6th or 7th to June 30.” Ortiz objected and the trial court overruled
the objection. The jury was instructed that it was “not necessary that
the proof establish with certainty the exact dates of the alleged
offenses. It is sufficient if the evidence shows beyond a reasonable
doubt that the offenses were committed on a date reasonably near
the dates alleged.”
¶67 The state, citing State v. Roylston, 135 Ariz. 271, 660 P.2d
872 (1983), relies on an evaluation of the evidence adduced at trial to
show that each Kelly factor was inherent in the verdict. Prior to
Apprendi, Arizona trial courts were authorized to make factual
findings that could result in the enhancement of a defendant’s
sentence, including whether the offenses were committed on the
same occasion but consolidated for trial. See, e.g., Roylston, 135 Ariz.
at 272, 660 P.2d at 873; State v. Sands, 145 Ariz. 269, 276-77, 700 P.2d
1369, 1376-77 (App. 1985). As discussed in Flores, however, Apprendi
now dictates that the jury, not the court, must determine whether
the offenses were committed on the same occasion pursuant to
§ 13-703(A), unless such a finding was inherent in the verdicts.
Flores, 236 Ariz. 33, ¶¶ 4-5, 335 P.3d at 557; see also Ring v. Arizona,
536 U.S. 584, 602 (2002) (“If a State makes an increase in a
defendant’s authorized punishment contingent on the finding of a
fact, that fact—no matter how the State labels it—must be found by a
jury beyond a reasonable doubt.”).
¶68 In Flores, we noted that our review of the indictment
was consistent with the approach taken by federal courts
interpreting the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), a
statute similar to § 13-703. 236 Ariz. 33, n.7, 335 P.3d at 560, n.7. We
stated: “Federal trial courts may evaluate [whether prior offenses
were committed on different occasions] by examining, inter alia, the
charging documents, jury instructions, and verdicts.” Id.; see also
Shepard v. United States, 544 U.S. 13, 16 (2005) (for sentence
enhancement under 18 U.S.C. § 924, court must limit examination to
“statutory definition [of crime], charging document, written plea
agreement, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented”).
¶69 This limitation also is consistent with our approach to
analyzing whether, for sentence-enhancement purposes, an out-of-
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STATE v. ORTIZ
Opinion of the Court
state conviction qualifies as an historical prior conviction, State v.
Crawford, 214 Ariz. 129, ¶¶ 7-9, 149 P.3d 753, 755-56 (2007); 6
A.R.S. § 13-703(M), and whether dangerousness is inherent in a jury
verdict, Larin, 233 Ariz. 202, ¶ 42, 310 P.3d at 1001; A.R.S. § 13-704.
We therefore conclude that when reviewing whether a
determination that offenses were not committed on the same
occasion was inherent in the verdict, we will review only the
indictment, jury verdict forms, and elements of the offense, or “some
comparable judicial record of this information.” See Shepard, 544
U.S. at 26.
¶70 At oral argument, the state conceded that, based on the
wording of the indictment along with the instruction that the jury
need not determine the date on which the offenses were committed,
the Kelly factors were not inherent in the jury’s verdicts. Cf. Flores,
236 Ariz. 33, ¶¶ 7-8, 335 P.3d at 557 (three Kelly factors inherent in
verdict where verdict forms stated jury found Flores guilty of
offenses “‘as alleged’” in indictment, which listed specific dates,
different property taken, and different victims). Because the
verdicts did not require a determination of the facts necessary for
the trial court to consider each of the Kelly factors, the court erred by
sentencing Ortiz to enhanced prison terms pursuant to § 13-703(A).
See Flores, 236 Ariz. 33, ¶ 5, 335 P.3d at 557.
¶71 A sentence imposed in violation of Apprendi, however,
can be reviewed for harmless error. State v. Miranda-Cabrera, 209
Ariz. 220, ¶ 30, 99 P.3d 35, 42 (App. 2004). Error may be harmless if
the state can show no reasonable jury would have failed to find the
facts necessary to enhance the defendant’s sentence. Id.; State v.
Henderson, 210 Ariz. 561, ¶ 18, 115 P.3d 601, 607 (2005); see State v.
Ketchner, 236 Ariz. 262, ¶¶ 20-26, 339 P.3d 645, 648-50 (2014)
(conducting harmless error review despite state’s failure to argue
error was harmless in brief). Although the state failed to explicitly
argue the error was harmless beyond a reasonable doubt, in its
erroneous reliance on Roylston, the state did, in fact, discuss the
6The discussion in Crawford refers to former A.R.S. § 13-604(N),
which has since been renumbered to § 13-703(M). 2007 Ariz. Sess.
Laws, ch. 287, § 1; 2008 Ariz. Sess. Laws, ch. 301, §§ 15, 16, 28.
24
STATE v. ORTIZ
Opinion of the Court
evidence adduced at trial and analyze whether that evidence
supported the trial court’s finding that Ortiz’s offenses were not
committed on the same occasion. The state thus, in essence,
conducted a harmless error analysis. See Miranda-Cabrera, 209 Ariz.
220, ¶ 30, 99 P.3d at 42 (Apprendi sentencing error harmless in light
of evidence adduced at trial); see also State v. Lizardi, 234 Ariz. 501,
¶ 19, 323 P.3d 1152, 1157 (App. 2014) (“We consider the error ‘in
light of all of the evidence.’”), quoting State v. Bible, 175 Ariz. 549,
588, 858 P.2d 1152, 1191 (1993). Furthermore, Ortiz had the
opportunity at oral argument before this court to contest the state’s
assertion of harmless error. Thus, a review of the evidence in this
case must show that no reasonable jury would have failed to find, in
light of the Kelly factors, that the offenses “were not committed on
the same occasion.” A.R.S. § 13-703(A).
¶72 Count one alleged that Ortiz “digitally penetrat[ed
J.V.’s] vulva . . . [o]n or about the 15th of June, 2012.” As to this
count, J.V. testified at trial that within a week of returning from a
wrestling trip to New Mexico on June 6 or 7, Ortiz took her into a
weight room while she working out at her high school, kissed her,
and inserted his fingers into her vagina. Another wrestler also
testified he saw J.V. and Ortiz leave the weight room together and
return approximately thirty minutes later.
¶73 Count five alleged that Ortiz “penetrat[ed J.V.’s] vulva
with his penis . . . [o]n or about the 25th day of June, 2012.” In
relation to this count, J.V. testified that, on June 25, Ortiz picked her
up from her house, drove her to a park, and the two engaged in
sexual intercourse on a set of bleachers in a park.
¶74 Counts six and seven alleged that Ortiz engaged in
“masturbatory contact with [J.V.’s] hand” and “penetrat[ed J.V.’s]
vulva with his penis . . . [o]n or about the 30th of June, 2012.” At
trial, both J.V. and the deputy testified that the minivan incident
occurred the night of June 30 while parked on the “dead-end side of
[a] road.”
¶75 The evidence thus shows the weight room incident, the
bleachers incident, and the minivan incident all occurred on
different dates and at different locations. Although J.V. was not sure
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STATE v. ORTIZ
Opinion of the Court
of the exact date of the weight room incident, her testimony
established that it was in the first half of June 2012 and before the
other incidents. She also was sure of the location, which was
supported by another witness. The dates and locations of the
incidents on June 25 and June 30 were established with specificity by
J.V. and, with respect to the latter, a sheriff’s deputy. Neither Ortiz
nor the state has cited any cases where offenses committed on
separate dates were found to have occurred on the same occasion.
See Flores, 236 Ariz. 33, ¶ 9, 335 P.3d at 558 (“[W]e have found no
Arizona case concluding that offenses were committed on the same
occasion when the crimes were committed on different days,
involved different property, or had unrelated victims.”). And,
because the offenses clearly occurred on separate dates, the offenses
could not have been “continuous and uninterrupted.” Flores, 236
Ariz. 33, ¶ 10, 335 P.3d at 559.
¶76 Ortiz nevertheless argues “there was clearly . . . a single
objective implied by the allegations . . . [which] support[s] the
finding of one occasion.” In State v. Perkins, our supreme court
found that a string of robberies, which occurred on the same day
and in the same location, did not occur on the same occasion despite
the defendant’s assertion they were committed with “a common
scheme . . . to rob whomever they could” because “the acts used to
establish each robbery incident were distinct[,] . . . the accomplices
apparently did not form the intent to proceed to a new robbery until
after completing the prior robbery[, and t]he additional criminal
incidents were not necessary to complete either the initial robbery
encounter or to escape afterward” and “[d]ifferent evidence was
used to prove each robbery incident.” 144 Ariz. 591, 595, 597, 699
P.2d 364, 368, 370 (1985), overruled on other grounds by State v. Noble,
152 Ariz. 284, 287, 731 P.3d 1228, 1231 (1987).
¶77 Thus, although Ortiz’s motive may have been the same
in each instance—to engage in illegal sexual conduct with J.V.—that
does not necessarily mean each incident was aimed at a single
criminal objective. Rather, each act of sexual conduct was distinct
from the others, each act did not depend on the completion of the
others, it does not appear Ortiz formed the intent to commit the next
act of sexual conduct until after the completion of the previous act,
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STATE v. ORTIZ
Opinion of the Court
and different evidence was used to prove each incident. See Perkins,
144 Ariz. at 597, 699 P.2d at 370; cf. Noble, 152 Ariz. 284, n.2, 731 P.2d
at 1231 n.2 (single criminal objective where defendant kidnapped
child to carry out objective of molesting her); State v. Sheppard, 179
Ariz. 83, 84-85, 876 P.2d 579, 580-81 (1994) (single criminal objective
where theft of specific car “was motivated by the same criminal
objective as the trafficking: to provide the undercover officer with
the specific car he ordered.”). Consequently, the evidence here
shows there was not a “single criminal objective.”
¶78 The only Kelly factor weighing in favor of finding the
offenses occurred on the same occasion is that the victim is the same.
That alone, however, is insufficient to support a finding the offenses
were committed on the same occasion when they occurred on
different dates and at different places. Cf. Kelly, 190 Ariz. at 534, 950
P.2d at 1155 (“‘[W]hen different crimes . . . are committed at the
same place, on the same victim or group of victims, and at the same
time,’” they are committed on same occasion.), quoting State v. Henry,
152 Ariz. 608, 612, 734 P.2d 93, 97 (1987).
¶79 Based on the evidence, no reasonable jury would have
failed to find that counts one and five occurred on separate
occasions from counts six and seven. Miranda-Cabrera, 209 Ariz. 220,
¶ 30, 99 P.3d at 42; see also State v. Henry, 152 Ariz. 608, 611, 734 P.2d
93, 96 (1987) (“The common meaning of the phrase ‘same occasion’
is same time, same place.”). The error was thus harmless beyond a
reasonable doubt and Ortiz’s sentences were enhanced properly
pursuant to § 13-703(A).
Disposition
¶80 For the foregoing reasons, we affirm Ortiz’s convictions
and sentences.
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