Opinion
2 CA-CR 2022-0067
06-04-2024
The State of Arizona, Appellee, v. Joseph Michael Desisto, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Rebecca Jones, Assistant Attorney General, Phoenix Counsel for Appellee Emily Danies, Tucson Counsel for Appellant.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20202051001 The Honorable Howard Fell, Judge Pro Tempore.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Rebecca Jones, Assistant Attorney General, Phoenix Counsel for Appellee
Emily Danies, Tucson Counsel for Appellant.
Presiding Judge Brearcliffe authored the decision of the Court, in which Judge Eckerstrom and Judge Kelly concurred.
MEMORANDUM DECISION
BREARCLIFFE, PRESIDING JUDGE.
¶1 Joseph Desisto appeals his convictions and sentences for two counts of molestation of a child, seven counts of sexual conduct with a minor under the age of fifteen, one count of continuous sexual abuse of a child, one count of sexual abuse of a minor, and one count of furnishing harmful items to a minor. Desisto challenges evidentiary rulings by the trial court and the court's denial of his Rule 20, Ariz. R. Crim. P., motion for directed verdict as to the furnishing harmful items count. For the following reasons, we affirm.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to sustaining the jury's verdict." State v. Smith, 250 Ariz. 69, n.1 (2020). From 2017 to 2020, Desisto sexually abused his step-granddaughter, K.K. When K.K. told family members about Desisto's abuse, they did not report Desisto to police. K.K. emailed her teachers for help using her school-issued computer, prompting one of the teachers to report the email to her principal and call police. The Pima County Sheriff's Department performed a welfare check at Desisto's home, and K.K. was taken to the Children's Advocacy Center, where she was first interviewed and then examined by a doctor. K.K. and her sister were moved to a group home, and Desisto was charged with and then tried on thirteen counts: two counts of molestation of a child, eight counts of sexual conduct with a minor under the age of fifteen, one count of continuous sexual abuse of a child, one count of sexual abuse of a minor, and one count of furnishing harmful items to a minor.
¶3 At the close of the state's evidence, Desisto moved for directed verdict on all counts; the trial court dismissed one count of sexual conduct with a minor for insufficient evidence, which the state conceded, but otherwise denied the motion. Desisto renewed his motion for directed verdict at the close of trial, which the court denied. The jury found Desisto guilty of all twelve of the remaining counts, and the court sentenced him to consecutive prison terms, including life in prison. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
I. Evidentiary Decisions
¶4 Desisto argues that the trial court erred when it: (1) admitted hearsay testimony from a doctor that was not for purposes of medical treatment; (2) admitted hearsay statements in emails between K.K. and her teacher; and (3) precluded evidence of K.K.'s prior sexual conduct offered to establish motive. Generally, we review a court's evidentiary rulings for abuse of discretion. State v. Giannotta, 248 Ariz. 82, ¶ 8 (App. 2019). We review legal questions, like the interpretation of statutes and court rules, de novo. State v. Chandler, 244 Ariz. 336, ¶ 3 (App. 2017); State v. Bernstein, 237 Ariz. 226, ¶ 9 (2015). When a defendant objects to an evidentiary ruling that we conclude was erroneously made, we then examine the effect of the ruling for harmlessness. State v. Armstrong, 218 Ariz. 451, ¶ 20 (2008). "Harmless error review places the burden on the state to prove beyond a reasonable doubt that the error did not contribute to or affect the verdict or sentence." State v. Henderson, 210 Ariz. 561, ¶ 18 (2005).
A. Doctor Woolridge's Testimony
¶5 Desisto argues that hearsay testimony Dr. Woolridge provided was not for purposes of medical treatment and the trial court erred in admitting it. As an initial matter, the state argues that Desisto failed to specifically object to Woolridge's testimony and that we must review for fundamental error. See State v. Hulsey, 243 Ariz. 367, ¶ 38 (2018) (where defendant fails to object to evidentiary ruling, fundamental error applies). As described below, Desisto made a hearsay objection to Woolridge's testimony at trial, which the court overruled on the basis of Rule 803(4), Ariz. R. Evid. We therefore review for harmless error, see Henderson, 210 Ariz. 561, ¶ 18, but we must first determine if allowing the testimony was error, see Lockhart v. Fretwell, 506 U.S. 364, n.2 (1993) ("Harmless-error analysis is triggered only after the reviewing court discovers that an error has been committed."). We conclude that allowing the testimony was not error.
¶6 Dr. Woolridge, as director of the Southern Arizona Children's Advocacy Center, oversaw "all medical care" provided to "children who are suspected or have concern of abuse, whether that be physical, sexual, or even neglect." After K.K. was brought to the advocacy center, she was first forensically interviewed. After that interview, Woolridge performed a medical evaluation that included an "assault history." When asked to "explain what the assault history does for [him] within the exam," Woolridge testified: "It directs my care, and I liken that to delivering care in any environment. You want to know some information about how the person is feeling, what happened, what led to the illness, what led to them getting medical care, because it directs the medical care that we offer." The state asked Woolridge to discuss the portion of K.K.'s "assault history" where he "start[s] to ask the patient questions," and the following exchange occurred:
Q: So in going forward can you provide to the jury the information you received once you started to examine [K.K.], starting with the-
[Woolridge]: In the check box section?
Q: Yes.
[Woolridge]: Okay. So there's a series of check box[es] that will delineate my focus of the exam, what areas of the body were involved, what areas of the body were involved. And in relation to my checkmarks, did the penis penetrate the vulva? I did check that. Was there digital penetration? I did check that.
Q: Was there digital penetration, and where did you check?
[Woolridge]: Vulva.
[Counsel for Desisto]: Your Honor, I'm going to object to this. This information did not come from-this information is hearsay as it came from-
The court: Overruled. It's an exception to the hearsay rule for medical intervention and potential treatment.
Woolridge continued with his testimony, describing the remainder of the examination.
¶7 "Hearsay" is an out-of-court statement offered for the truth of the matter asserted. Ariz. R. Evid. 801(c). Hearsay is not admissible, unless another rule, statute, or constitutional provision provides otherwise. Ariz. R. Evid. 802. Under Rule 803(4), regardless of whether a declarant is available to testify, statements made for medical diagnosis or treatment are not excluded by the rule against hearsay. To be admissible, the statement must be "made for-and [be] reasonably pertinent to-medical diagnosis or treatment," and "describe[] medical history; past or present symptoms or sensations; their inception; or their general cause." Ariz. R. Evid. 803(4). The reason for this exception "is that doctors will seek and patients will give reliable information to further necessary medical treatment." State v. Robinson, 153 Ariz. 191, 199 (1987). The primary question in determining whether a statement was properly admitted under Rule 803(4) is if it was "'reasonably pertinent' to diagnosis or treatment." Id. (quoting United States v. Renville, 779 F.2d 430, 436 (8th Cir. 1985)).
¶8 To guide our review on this question, our supreme court provided a two-step test: "(1) was the declarant's apparent 'motive . . . consistent with receiving medical care;' and (2) was it 'reasonable for the physician to rely on the information in diagnosis or treatment.'" Id. (quoting State v. Jeffers, 135 Ariz. 404, 420-21 (1983)). In Robinson, our supreme court upheld the trial court's admission of the victim's statements made during a doctor's medical examination about the nature of the abusive acts. It so held because those statements were elicited in the course of treatment and the record established the doctor's reliance on the statements to provide treatment. Id. at 199-200. It also upheld the court's admission of the victim's statements in the course of treatment that identified her abuser. Id. In so doing, it observed that even statements identifying a victim's abuser and attributing fault, can be acceptable under Rule 803(4) because treatment for child sexual abuse often depends on the abuser's identity. Id. at 200. That is, "effective treatment may require that the victim avoid contact with the abuser, not just to prevent further abuse, but also to facilitate recovery from past abuse," and abuse by a relative may require different treatment than abuse by a stranger. Id.
¶9 Here, from Woolridge's testimony, the trial court did not err in implicitly finding that K.K. was motivated to provide information in the course of medical treatment. See Robinson, 153 Ariz. at 199. And, it was not unreasonable for Woolridge to rely on K.K.'s first-hand information when determining treatment. Id.
¶10 Desisto argues that this case is different from Robinson because "K.K.'s allegations were not limited to the exam setting." He argues that K.K. made similar statements to others and that she had motives unrelated to medical treatment to make those statements. Desisto contends, without any specific record citation, that "there are arguments on the record that K.K.'s motive in reporting [her] story may have had to do with her phone being taken away, wanting attention from her father, and generally acting out." See Ariz. R. Civ. App. P. 13(a)(7)(A) (appellant must make "appropriate references to the portions of the record on which the appellant relies"). But the record supports the trial court's implicit finding that K.K.'s primary motive for her responses to Dr. Woolridge was not based on "her phone being taken away" or other such things. The specific testimony that defense counsel objected to was information provided by the patient, to the treating physician, in the course of treatment during a medical examination. See Robinson, 153 Ariz. at 199 (even where record is "not as clear" regarding motive, court noted that victim's statements "were elicited in the course of treatment"). Desisto's alternative explanations of K.K.'s motives do not undermine her statements' admissibility when the above requirements are met, but instead goes to the weight of the evidence. Cf. State v. Williams, 183 Ariz. 368, 376 (1995) ("alternative explanations" for motive or action "go to the weight of the evidence, not to its admissibility").
¶11 Finally, Desisto argues that the second prong of Robinson is not met because the extent of the information K.K. shared to Dr. Woolridge was unnecessary. Desisto notes that Woolridge testified that he could perform the evaluation with less information and argues that he "could have understood the extent of [K.K.'s] injuries or lack thereof without asking K.K. to differentiate between the modes of penetration in the alleged assault." Woolridge explained that "the last thing" he wants a victim to do is "go through all of the reporting" of what happened to them in a way that causes them to relive it. But, Woolridge elaborated that, if a victim is "willing to discuss, if they're willing to disclose, that's when [his] comments go in [his] note as to what they had said." By this testimony, Woolridge did not represent what minimum amount of information was needed to accurately diagnose and treat K.K.-he simply explained an aspect of his methodology in conducting an examination. Neither Rule 803(4) nor our supreme court's guidance in Robinson indicate that statements made for the purpose of medical treatment are only admissible up to the point that some kind of medical diagnosis or treatment becomes minimally possible. See 153 Ariz. at 199-200. When Woolridge asked K.K. to identify which parts of her body were affected and in what manner, he elicited information squarely pertinent to medical treatment. We see no error.
B. Emails Between Victim and Teacher
¶12 Desisto argues that the trial court erred in admitting statements from emails between K.K. and her teachers. Before trial, Desisto moved to "preclude the State's use of emails by the alleged victim, K.K., to teachers" on the basis that any such statement is inadmissible hearsay. The state responded that it "[would] not seek to elicit inadmissible hearsay" and that statements contained within K.K.'s emails are admissible as present sense impressions, excited utterances, or as statements regarding then-existing mental, emotional, or physical conditions. See Ariz. R. Evid. 803(1)-(3). In a hearing on the motion, the state asserted that K.K.'s emails were not sent immediately after she had been sexually assaulted; rather, they were sent "within hours" of "when she told someone" she had been assaulted. The state also argued that the "startling event" is when K.K. "final[ly] got up the courage to say something" to her family "and then her whole family turned on her .... [S]he was fearful for her life." The state further claimed that the emails were not being offered for the truth of the matter asserted-they would show "from [K.K.'s] perspective based on these messages she was fearful."
¶13 The trial court determined that K.K.'s emails qualified primarily as present sense impressions, essentially because they reflected an ongoing sense by K.K. that "she's in danger" and "doesn't think she's safe at home." The court reasoned that the first had been sent "within hours of her disclosing" to her family that Desisto assaulted her, which resulted in her family isolating her and taking away several of her devices; her teacher responded, and the second email was sent "another 20 minutes later or so." The court reasoned that in these emails, K.K.'s statements reflected her observations immediately during an event or condition-namely, a sense of danger in the ongoing isolation following her disclosure. The court also ruled that the emails qualified as an excited utterance-because her emails show that she was "startled by what her disclosure had been and what had happened to her when she made these accusations"-or as a statement about a then-existing condition because K.K.'s statements show "she thought she was in physical danger." However, the court ruled that the teachers' responses were not admissible. Desisto moved for reconsideration, but the court affirmed its earlier ruling.
¶14 At trial, K.K.'s teacher testified that she had received an email from K.K. on April 24, 2020. Over Desisto's objection, the teacher was asked to read the email, which stated, "Hey, I really need some help. I don't feel safe where I am at my house. Seriously. No joke. Please, please get back to me before 4:00 p.m. I would really appreciate it and please, please do not call my family. I just need some help. Thanks." The teacher was also asked to read another of K.K.'s emails-over Desisto's objection-which said, "So my cousin's caretaker is here, and she leaves at 4:00, and if she leaves, I'm terrified due to recent events that I will be in physical danger. I just need this to be over."
¶15 Under Rule 803(1), present sense impressions are excluded from the rule against hearsay. A present sense impression is "[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it." Id. When an impression is substantially contemporaneous with an observed event, the "likelihood of fabrication or misrepresentation" is negated. State v. Damper, 223 Ariz. 572, ¶ 16 (App. 2010); see State v. Tucker, 205 Ariz. 157, ¶ 42 (2003) ("Statements of present sense impressions are deemed reliable because they are made close in time to the events they describe."). If a declarant "has had little time to reflect on the event she has perceived, her statement will be spontaneous and therefore reliable." Tucker, 205 Ariz. 157, ¶ 42. There are three requirements to qualify as a present sense impression: "The statement must describe an event or condition, that was perceived by the declarant, and the statement must be made immediately after the event." Id. ¶ 43. There is no dispute as to the first two requirements here-K.K.'s statements describe an event or condition that she perceived herself. See id. The question is whether the lapse in time between her confiding in her family and sending the email is sufficiently "immediate[]" to satisfy Rule 803(1). How contemporaneous an impression must be "has never been specified because every case is decided on its individual facts" and "the totality of the circumstances." Tucker, 205 Ariz. 157, ¶ 45. A trial court has "some latitude in finding whether a statement was made immediately after the event." Id. ¶ 46.
¶16 Here, the trial court determined based on the totality of the circumstances that K.K.'s statements described or explained an event or condition-her ongoing isolation and sense of danger resulting from her disclosure to her family-as she was perceiving it; that is, contemporaneous with the incident causing the excitement. See Ariz. R. Evid. 803(1) ("[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it" (emphasis added)). We see no basis to question that determination. Because we conclude that these statements were admissible as present sense impressions, we need not address the other bases for which the court found the statements admissible.
C. Preclusion of Victim's Prior Sexual Conduct
¶17 Desisto argues that the trial court erred in precluding evidence of K.K.'s prior sexual activity under A.R.S. § 13-1421(A)(3). We review a court's decision to preclude evidence under § 13-1421 for abuse of discretion. State v. Herrera, 232 Ariz. 536, ¶ 38 (App. 2013). Desisto objected to preclusion below, so we review this argument for harmless error. See Henderson, 210 Ariz. 561, ¶ 18. But first, Desisto must show error. See id.
¶18 Before trial, the state moved to preclude testimony regarding "online conversations with boys [K.K.'s] age (13-16 years old) and possible photographic exchanges through social media sites," as well as "explicit photos found on [K.K.'s] cellphone download." Among other things, the state argued that testimony on these matters was irrelevant and prejudicial.
¶19 Desisto opposed the state's motion and sought to admit evidence that a police detective had downloaded the contents of K.K.'s phone. Through that process, he discovered "four or five pictures of [K.K.] . . . with a sex toy in various positions that she was using." Desisto alleged that there is evidence K.K. had sent sexually explicit "selfies" to others on her cell phone but admitted that he "[did not] know what these pictures are that she sent" to others. According to Desisto, his wife had discovered one of these images on K.K.'s phone, and several of K.K.'s devices had been taken away as a result. He argued this evidence would show that K.K. was motivated to fabricate allegations against him-since her devices were taken away, K.K. was trying to "turn the tables on [him]." He explained that this evidence is relevant to demonstrating K.K.'s "sexual proclivity" and is admissible under § 13-1421(A)(3). The state countered that there is no indication that K.K. ever sent sexually explicit photos to others and that any photos lacked evidentiary relevance.
¶20 The trial court concluded that any connections between K.K. and other sexual partners is inadmissible because "there's no evidence" of any such partners and the claim is "purely speculative." However, the court ruled that the parties may establish "that the victim has a black device (as stated on the record)" and that "the victim has used said device." The court further allowed the parties to establish that "there are photographs of the victim using said device, [Desisto] interacted with the victim while using said device, and the photographs depict what the victim indicated was given to her by [Desisto]."
¶21 During opening statement, Desisto's counsel told the jury that they would find "a real motive in this case" because the jury would "find out what was really on [K.K.'s] phone when it was taken away from her, and when her phone was taken away from her, that's when she had made these accusations-pictures of herself using a sexual toy." During the state's direct examination, K.K. testified that her family took her phone and computer away only after she told them about Desisto's abuse. She testified about a sexual toy that Desisto would use to abuse her. She also testified that she had access to that device herself and that there are "photographs of [her] using" it "on [her] cell phone."
¶22 K.K. explained that her phone was a "[v]ery important part of [her] life" and when it was taken away, this contributed to her feeling "empty inside." In later cross-examination she admitted that she had taken the cell phone photographs herself. Desisto then asked K.K. why she took these pictures. She replied, "It doesn't matter to the case," and "It had nothing to do with this." Desisto then elicited testimony from K.K. about explicit photos of others that she had stored on her phone. After confirming again that K.K.'s phone and computer were taken away, Desisto asked, "And as a result of that, now you make this claim against Mr. Desisto that he's done all of these horrific things since 2016?" K.K. replied, "Because he has." Finally, in closing, Desisto again argued that K.K. was "caught" with explicit images on her phone and accused Desisto to "save face."
¶23 Arizona law does not correlate a victim's veracity with her chastity. See State ex rel. Pope v. Superior Court, 113 Ariz. 22, 26 (1976); § 13-1421(A) ("Evidence relating to a victim's reputation for chastity and opinion evidence relating to a victim's chastity are not admissible in any prosecution for any offense in this chapter."). Courts do not compel victims of sex crimes to "defend every incident of their pasts," nor do they allow the defendant to confuse the jury by diverting their attention from "the real matter in issue" to an irrelevant recitation of a victim's sexual history. State v. Oliver, 158 Ariz. 22, 26 (1988). This rule applies to cases involving sex crimes against children: "[C]hild molestation victims may be even more adversely affected by unwarranted and unreasonable inquiry into largely collateral and irrelevant evidence than victims in rape cases." Id. at 27.
¶24 There are, however, situations where evidence of a victim's sexual history has "sufficient probative value to outweigh its inflammatory effect." Id. Under § 13-1421(A)(3), "[e]vidence that supports a claim that the victim has a motive in accusing the defendant of the crime" may be admitted "only if a judge finds the evidence is relevant and is material to a fact in issue in the case and that the inflammatory or prejudicial nature of the evidence does not outweigh the probative value of the evidence." See Ariz. R. Evid. 401, 403.
¶25 On appeal, Desisto argues that the trial court "should have allowed evidence of K.K.'s prior sexual acts," specifically "the nude selfies stored on her phone." Desisto contends he had to "demonstrate the stakes in K.K.'s situation, which involved her phone being taken away for extremely sexually explicit content stored on it." But the court allowed Desisto to offer evidence about the nature of K.K.'s nude photos in its ruling on the motion to preclude. And clearly, as described above, testimony was elicited on the contents of the photos, and Desisto was given ample leeway to pursue and argue motive. To the extent Desisto argues that the images themselves should have been admitted, we are not persuaded that the court struck the wrong balance between "the inflammatory or prejudicial nature" of publishing the photos and "the probative value" of a witness's description of them. § 13-1421(A)(3).
¶26 Desisto also contends the trial court erred in precluding any evidence that K.K. had sent images to others. Below, Desisto inferred that the images were explicit but admitted that he did not know what was actually depicted in any images K.K. had apparently sent from her phone. Given the lack of evidence, the court rightly described his claim as "purely speculative." "The standard for admissibility of evidence under [§ 13-1421(A)] is by clear and convincing evidence." § 13-1421(B). Desisto's speculation falls far short of that showing. We cannot say the court abused its discretion in granting the state's motion to preclude.
II. Denying Dismissal of Count Thirteen
¶27 Under count thirteen, the state charged that Desisto, "with knowledge of the character of the item involved, recklessly furnished, presented, provided, made available, gave, lent, showed, advertised or distributed to [K.K.], a minor, an item that is harmful to minors, to wit: dildo and/or vibrator, in violation of A.R.S. § 13-3506." Desisto argues that the trial court erred in denying his Rule 20, Ariz. R. Crim. P., motion for a directed verdict as to that count. Desisto maintains that he could not have been convicted under § 13-3506(A) because a dildo is not an item that is harmful to minors.
¶28 As stated above, we review statutory interpretation de novo. Chandler, 244 Ariz. 336, ¶ 3. We review the trial court's denial of Desisto's Rule 20 motion de novo, viewing the evidence in the light most favorable to sustaining the verdict. State v. West, 226 Ariz. 559, ¶ 15 (2011). The court must enter a judgment of acquittal "if there is no substantial evidence to support a conviction." Ariz. R. Crim. P. 20(a)(1). Substantial evidence exists if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." West, 226 Ariz. 559, ¶ 16 (quoting State v. Mathers, 165 Ariz. 64, 66 (1990)). Substantial evidence requires such proof that "reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." Id. (quoting Mathers, 165 Ariz. at 67). Both direct and circumstantial evidence suffice in evaluating substantial evidence. Id.
¶29 Under § 13-3506(A), it is illegal "for any person, with knowledge of the character of the item involved, to recklessly furnish, present, provide, make available, give, lend, show, advertise or distribute to minors any item that is harmful to minors." "Harmful to minors" is defined as "that quality of any description or representation, in whatever form, of nudity, sexual activity, sexual conduct, sexual excitement, or sadomasochistic abuse." A.R.S. § 13-3501(1). Two additional aspects of the definition must be met: (1) "To the average adult applying contemporary state standards with respect to what is suitable for minors," the thing "[a]ppeals to the prurient interest, when taken as a whole" and "[p]ortrays the description or representation in a patently offensive way"; and (2) "[t]aken as a whole does not have serious literary, artistic, political, or scientific value for minors." § 13-3501(1). "Item" includes "any material or performance which depicts or describes sexual activity"-the statute lists a variety of items that would fall under the statute, including an "object," "novelty device," "or other similar items," and lays out additional requirements to qualify as obscene. § 13-3501(2). "Sexual activity" includes "[p]atently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated," as well as "[p]atently offensive representations or descriptions of masturbation, excretory functions, sadomasochistic abuse and lewd exhibition of the genitals." § 13-3501(6). A "jury appropriately may determine that" an item is "harmful to minors when taken as a whole based on the evidence presented." State v. Grainge, 186 Ariz. 55, 59 (App. 1996).
¶30 Desisto relies on State v. Morgan, where a defendant forced his daughter to "masturbate in his presence by inserting vibrators he had provided to her" and was charged under § 13-3506. 248 Ariz. 322, ¶¶ 2, 10-11 (App. 2020). The defendant conceded that he had provided his daughter the vibrator, but contended that the vibrator "did not qualify as a harmful item." Id. ¶ 10. This court concluded that the particular sexual device-a "featureless metallic cylinder with a rounded point at one end"- did not depict an erect human penis in a "patently offensive way." Id. ¶ 12 (emphasis omitted). This court reasoned that, "[t]o the extent the device can be said to depict an erect penis, its plain metallic finish and lack of distinctive features appear to be designed to make any such depiction as generalized as possible." Id. Therefore, although the vibrator was "intuitively inappropriate and arguably harmful to a child," it did not fall under § 13-3506, and the conviction for that count was vacated. Id. ¶ 14.
¶31 At trial, K.K. testified about three different sexual devices Desisto used to abuse her and made available to her and how he used them. The sexual devices varied in the degree that they accurately depicted a human penis, but the testimony reflected that at least one represented the human penis in a state of sexual excitement and was designed to replicate the same for sexual purposes. We conclude that substantial evidence supported the jury's verdict on count thirteen. At least one of the devices, closely approximating the life-like appearance of an erect human penis, qualified as an item that an average person would find as appealing "to the prurient interest" and "patently offensive," and, taken as a whole, as lacking "serious literary, artistic, political or scientific value." § 13-3501(2). There is sufficient evidence that Desisto recklessly presented this device to K.K. and made it available to her. Because this evidence was sufficient for Desisto to be convicted beyond a reasonable doubt by a rational trier of fact of the crime under count thirteen, we need not evaluate whether any other device qualified as a harmful item. See West, 226 Ariz. 559, ¶ 16.
Disposition
¶32 We affirm Desisto's convictions and sentences.