Opinion
No. 2 CA-CR 2017-0199
05-18-2018
THE STATE OF ARIZONA, Appellee, v. JOHN WILLIAM INMAN, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Jason Lewis, Assistant Attorney General, Phoenix Counsel for Appellee Joel Feinman, Pima County Public Defender By Michael J. Miller, Assistant Public Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20161781001
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Jason Lewis, Assistant Attorney General, Phoenix
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Michael J. Miller, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:
¶1 After a jury trial, John Inman was convicted of molestation of a child, a class two felony and dangerous crime against children, and sentenced to fourteen years in the Arizona Department of Corrections. He now appeals, arguing that the trial court erred by allowing the victim, H.I., to refer to portions of a transcript of her forensic interview during her testimony. For the following reasons, we affirm.
Factual and Procedural Background
We view the facts in the light most favorable to sustaining the jury's verdict. See State v. Joe, 234 Ariz. 26, n.1 (App. 2014).
¶2 After his daughters came forward with allegations of sexual abuse against them, Inman was indicted and tried for two counts of molestation of a child under fifteen years of age.
¶3 At trial, H.I. answered a number of questions by either claiming not to remember or stating that she did not want to answer. Over defense objection, the prosecutor provided H.I. with a copy of the transcript of her forensic interview, and after receiving an apparently evasive answer, asked H.I. to read portions of that transcript to herself. Once H.I. had finished reading, the prosecutor would ask the question again, and H.I. provided responsive answers. Inman was convicted of the count involving H.I. The count related to L.I. was dismissed without prejudice after the jury was unable to reach a unanimous verdict. Inman was sentenced as described above, and this timely appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
¶4 We review the admission of evidence for an abuse of discretion. See State v. Ellison, 213 Ariz. 116, ¶ 42 (2006). Inman argues the state's use of the transcript procedure is "not authorized by any of the rules of evidence," and amounted to the introduction of inadmissible hearsay. He is mistaken.
¶5 Once it has been established that a witness's memory has failed, Rule 612, Ariz. R. Evid., permits the witness to refer to a writing in an attempt to refresh that witness's recollection. See State v. Salazar, 216 Ariz. 316, n.2 (App. 2007). Thus, there was no error in those instances in which H.I., having insisted that she could not remember, was asked to read a portion of the transcript to herself and then provided an answer after the state re-asked the question. Inman has conceded this issue.
¶6 Inman argues, however, that the trial court erred by allowing H.I. to refer to the transcript in those instances when she "could recall what happened [but] just did not want to say." Inman correctly notes that Rule 612 does not allow a testifying witness to refer to a writing to refresh her recollection when her memory of an event is not in question. However, he is incorrect in asserting that no rule of evidence authorized the procedure employed in this case.
¶7 Rule 801(d)(1)(a), Ariz. R. Evid., provides an exception to the rule against hearsay when a "declarant testifies and is subject to cross-examination about a prior statement" and the statement sought to be introduced "is inconsistent with the declarant's testimony." "A statement's inconsistency . . . is not limited to cases in which diametrically opposite assertions have been made." State v. King, 180 Ariz. 268, 275 (1994), quoting United States v. Rogers, 549 F.2d 490, 496 (8th Cir. 1976). "[I]nconsistency is to be determined not by individual words or phrases alone, but by the whole impression or effect of what has been said or done." State v. Joe, 234 Ariz. 26, ¶ 15 (App. 2014), quoting State v. Hines, 130 Ariz. 68, 71 (1981). "The superior court 'has considerable discretion in determining whether a witness's evasive answers or lack of recollection may be considered inconsistent with that witness's prior out-of-court statements.'" Id., quoting Salazar, 216 Ariz. 316, ¶ 15. When witnesses who previously gave a detailed description of an event repeatedly avoid answering specific questions about it, stating not that they do not recall the answer, but rather do not want to provide it, the trial court has the discretion to allow the introduction of those prior statements as impeachment evidence. Id. ¶ 16.
¶8 In Joe, the state asked the recalcitrant witness whether she had made specific statements, id. ¶ 8, whereas here the prosecutor asked H.I. to read portions of the transcript to herself, and then re-asked the questions. Notwithstanding this minor difference, we find this court's reasoning in Joe dispositive of the issue here. Indeed, Inman concedes as much in his reply brief, but argues that we should not follow Joe. Because we conclude that case was correctly decided, we decline Inman's invitation. The trial court did not abuse its discretion in permitting the state to provide H.I. a copy of her interview transcript in its effort to impeach her trial testimony.
Rule 613(a), Ariz. R. Evid., states: "When examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness." The rule implicitly allows counsel to show the witness the prior statement during said examination. As such, while this practice looks nearly identical to the procedure authorized by Rule 612, it was a permissible method of impeaching H.I. with her prior inconsistent statements under Rule 801(d)(1)(A). --------
Disposition
¶9 For the foregoing reasons, Inman's conviction and sentence are affirmed.