Opinion
2 CA-CR 2023-0038
07-23-2024
The State of Arizona, Appellee, v. Anthony Enrique Rodriguez Lozano, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee Vanessa C. Moss, 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. CR20211761001 The Honorable Renee T. Bennett, Judge AFFIRMED
Kristin K. Mayes, Arizona Attorney General
Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals
By Amy Pignatella Cain, Assistant Attorney General, Tucson
Counsel for Appellee
Vanessa C. Moss, Tucson
Counsel for Appellant
Judge Brearcliffe authored the decision of the Court, in which Judge Eckerstrom and Judge Kelly concurred.
MEMORANDUM DECISION
BREARCLIFFE, JUDGE:
¶1 Anthony Lozano appeals from his convictions and sentences for two counts of sexual assault. For the following reasons, we affirm.
Factual and Procedural Background
¶2 "We view the evidence in the light most favorable to upholding the jury's verdicts, resolving all reasonable inferences against" Lozano. State v. Copeland, 253 Ariz. 104, ¶ 2 (App. 2022). In May 2021, M.W. went out with two of her friends to celebrate her twenty-first birthday. The next morning, when M.W. woke up, she was lying naked in a hotel room bed beside a naked man-Lozano-whom she did not know. She went to the bathroom and discovered that "[her] anus was bleeding." She went to the hospital, and a social worker there called the police. M.W. spoke to the responding officers, who transferred her to another hospital, where she underwent a sexual assault examination by a sexual assault nurse examiner.
¶3 Officers thereafter located and interviewed Lozano. In the interview, Lozano denied knowing M.W. and stated that he did not remember having sex with her and "didn't try to have sex with her" because she was too drunk. Lozano was charged with and then tried on two counts of sexual assault under A.R.S. § 13-1406(A).
¶4 On the second day of trial, M.W. testified that she did not remember most of the night of the incident, although she had a "flash" memory of being on her back with Lozano on top of her, of being in pain and saying "ow," and of Lozano saying "[o]h, I'm sorry." She explained on cross-examination that she thought Lozano "possibly slipped or something and [his penis] had gone in [her] anus."
¶5 On the third day of trial, the nurse examiner testified to her findings from M.W.'s sexual assault examination. She stated that she had found lacerations near M.W.'s posterior fourchette and anal area, which were "consistent with penetration," and that, while she did not know if the lacerations were recent, injuries of this nature "heal[] very quickly." She explained to the jury that there are two general purposes for sexual assault examinations like the one she performed on M.W.-looking for medical injury and collecting forensic evidence:
The main thing is taking care of the patient medically, taking care of what kind of medications they might need, looking for injury, taking care of maybe any emotional or psychiatric follow-up that they will need. And then while we're doing that, we also collect forensic evidence.
¶6 When the parties concluded questioning the nurse examiner, a juror asked whether she had inquired about M.W.'s sexual activity in the days preceding the incident. The trial court and counsel discussed the question. The prosecutor told the court the state would typically object to such a question under the "rape-shield" law but that she would not do so because she knew the answer and was "comfortable" with it. Lozano, however, did object to the question solely based on the rape-shield law. The court ultimately allowed the juror question, to which the nurse examiner responded that M.W. had "indicated" on the sexual assault questionnaire that she did not have "consensual sex in the last five days."
Section 13-1421(A), A.R.S., commonly referred to as the "rapeshield" law, provides:
A.....Evidence of specific instances of the victim's prior sexual conduct 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, and if the evidence is one of the following:
....
2. Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease or trauma.
¶7 The state's final witness was a DNA criminalist who testified that male DNA was found on swabs of M.W.'s external genitals and perianal area taken during the sexual assault examination. The criminalist testified that Lozano could not be excluded as the source of the DNA found in each area.
¶8 After the state presented its case-in-chief, Lozano moved for acquittal on both counts of sexual assault pursuant to Rule 20, Ariz. R. Crim. P. He argued that the evidence had not shown beyond a reasonable doubt that he "was responsible for any sort of sexual penetration" of M.W. The trial court denied the motion.
¶9 The jury found Lozano guilty of both counts of sexual assault. Lozano renewed his Rule 20 motion and moved for a new trial pursuant to Rule 24.1, Ariz. R. Crim. P. The trial court denied each. In denying the Rule 24.1 motion, the court stated that "even if this Court had unbridled veto power over a jury verdict, it would not exercise it in this case." The court sentenced Lozano to 5.25 years' imprisonment on each count, to run consecutively, and ordered that Lozano register as a sex offender. 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
¶10 Lozano challenges the trial court's admission of testimony regarding M.W.'s recent sexual history. He also challenges the constitutionality of the statute under which he was convicted, claiming that the definition of sexual intercourse under A.R.S. § 13-1401(A)(4) violates the Equal Protection Clauses of the United States and Arizona constitutionsand that his convictions under § 13-1406 violate both the Equal Protection and Due Process Clauses. He further contends that his consecutive sentences violate double jeopardy protections and constitute cruel and unusual punishment. Finally, Lozano maintains the court erred in denying his Rule 20 motion for a judgment of acquittal and Rule 24.1 motion for a new trial, arguing insufficient evidence supports his convictions. We find no error.
U.S. Const. amend. XIV, § 1; Ariz. Const. art. II, § 13.
U.S. Const. amend. XIV, § 1; Ariz. Const. art. II, §§ 4, 13.
U.S. Const. amends. V, XIV; Ariz. Const. art. II, § 10.
U.S. Const. amends. VIII, XIV; Ariz. Const. art. II, § 15.
I. Victim's Reported Sexual History
¶11 Lozano first argues that the sexual assault nurse examiner's testimony that M.W. had reported no consensual sex in the five days preceding the night of the assault, should have been excluded as inadmissible (and irrelevant and prejudicial) hearsay and for violating the Confrontation Clause of the Sixth Amendment of the United States Constitution. Because he raises these objections for the first time on appeal, we examine these issues for fundamental error. State v. Escalante, 245 Ariz. 135, ¶ 12 (2018).
U.S. Const. amends. VI, XIV.
¶12 Under the fundamental error standard, Lozano must first demonstrate that trial error occurred. Id. ¶ 21. Then he must show, by a totality of the circumstances, that the error was fundamental. Id. Fundamental error can be shown if "(1) the error went to the foundation of the case, (2) the error took from the defendant a right essential to his defense, or (3) the error was so egregious that he could not possibly have received a fair trial." Id. Under the first two prongs, Lozano must also demonstrate prejudice. See id. (showing prejudice is "fact-intensive inquiry" (quoting State v. Henderson, 210 Ariz. 561, ¶ 26 (2005)). However, if Lozano "establishes the third prong, he has shown both fundamental error and prejudice, and a new trial must be granted." Id. We do not reach those latter questions, however, because we conclude that no error occurred.
A. Hearsay and relevancy
¶13 Lozano argues that the testimony relating to M.W.'s recent sexual history, having derived from out-of-court responses to a written sexual assault questionnaire, constituted "irrelevant and prejudicial hearsay." He reasons that "there was no medical purpose for eliciting whether M.W. had engaged in sexual intercourse in the 5 days preceding the alleged sex with [Lozano], nor did it have any relevance except to prejudice [Lozano]." He further asserts that the testimony was prejudicial because "it precluded the likelihood that the ostensible sex-related injuries came from previous consensual sex with someone other than [Lozano]."
¶14 In response, the state argues that the testimony was admissible under the exception to the hearsay prohibition in Rule 803(4), Ariz. R. Evid., as a statement made for a medical purpose and relevant to her medical treatment. Although this issue was not raised below and the trial court therefore did not have an express opportunity to address it, we nonetheless review evidentiary rulings for an abuse of discretion. State v. King, 213 Ariz. 632, ¶ 15 (App. 2006).
¶15 Hearsay is an out-of-court statement offered "to prove the truth of the matter asserted in the statement." Ariz. R. Evid. 801(c). Even if relevant, hearsay is generally not admissible unless covered by an exception. Ariz. R. Evid. 802. The statement made by M.W. on the questionnaire, as related by the nurse examiner, is an out-of-court statement; it was not made by M.W. directly while testifying at trial under oath. See Ariz. R. Evid. 801(c). Additionally, the statement was offered for its truth-that M.W. had indeed not had consensual sex within the five days preceding the assault by Lozano. Id. Therefore, the questionnaire response is hearsay, and inadmissible unless covered by an exception-such as the medical purposes exception.
¶16 Under Rule 803(4), an otherwise inadmissible hearsay statement may be admissible if it is "made for-and is reasonably pertinent to-medical diagnosis or treatment" and "describes medical history; past or present symptoms or sensations; their inception; or their general cause." The rationale underlying this exception is that, while hearsay arising from other contexts may be typically unreliable, statements made for medical treatment tend to be reliable because doctors pursue, and patients offer, accurate information to advance proper treatment. State v. Lopez, 217 Ariz. 433, ¶ 8 (App. 2008).
¶17 In applying the medical purposes exception, we examine "(1) whether 'the declarant's apparent motive . . . [was] consistent with receiving medical care'; and (2) whether it was 'reasonable for the physician to rely on the information in diagnosis or treatment.'" Id. (first alteration in Robinson, second alteration in Lopez) (quoting State v. Robinson, 153 Ariz. 191, 199 (1987)). A medical examination "in a hospital setting," where a patient's information is collected before a physical examination, presents a circumstance where a declarant would be motivated to "give reliable information to further necessary treatment." Id. ¶ 14 (quoting State v. Rushton, 172 Ariz. 454, 457 (App. 1992)). In crimes involving later medical treatment, it is reasonable for a medical examiner to rely on a victim's history in order to identify injuries and offer proper diagnosis and treatment. Id. ¶ 13. Information gathered during a forensic medical examination that is primarily undertaken "to check for injury" is deemed sufficiently reliable and permitted, and "statements relevant to diagnosis or treatment can be admissible even when the recipient of the statements engages in the dual purposes of medical examination and evidence collection." Id. ¶¶ 14-15.
¶18 Here, M.W. provided the questionnaire response as to her recent sexual history in a hospital setting, on a medical form before being physically examined where the "main" purpose of the exam was to treat her injuries. Despite Lozano's unsupported claim that there was no medical (or other relevant) purpose for the question, the nurse examiner expressly testified that she uses "the [patient's medical] history to decide . . . where to look for injury."
¶19 Because the information M.W. provided was of a type typically relied upon for medical treatment, her testimony satisfies the requirements of Rule 803(4)'s exception. See Lopez, 217 Ariz. 433, ¶ 13. And, because it related to the discovery of M.W.'s injuries and their treatment, it was otherwise relevant. See Ariz. R. Evid. 401.
¶20 We are also unconvinced by Lozano's argument that the probative value of this evidence was outweighed by any potential prejudicial effect. See Ariz. R. Evid. 403. The trial court therefore did not err, let alone fundamentally err, in admitting the statement.
B. Confrontation Clause violation
¶21 Lozano also argues that the nurse examiner's testimony violated his constitutional rights under the Confrontation Clause. We review claimed violations of a defendant's right to confrontation de novo. King, 213 Ariz. 632, ¶ 15. The Confrontation Clause of the Sixth Amendment to the United States Constitution-as applicable to the states through the Fourteenth Amendment-guarantees an accused the right "to be confronted with the witnesses against him." U.S. Const. amends. VI, XIV; see State v. Montano, 204 Ariz. 413, ¶ 21 (2003). "[T]he Confrontation Clause prohibits the admission of testimonial evidence from a declarant who does not appear at trial unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant." King, 213 Ariz. 632, ¶ 17. Although the protections are distinct, both the Confrontation Clause and the evidentiary hearsay rule generally serve as procedural safeguards to ensure that certain evidence can be challenged by cross-examination. See Idaho v. Wright, 497 U.S. 805, 814 (1990); Crawford v. Washington, 541 U.S. 36, 68 (2004).
Lozano also asserts that the testimony violated article II, § 24 of the Arizona Constitution, but he does not develop or support this argument with any independent analysis. Therefore, we will not address it here. See Ariz. R. Crim. P. 31.10(a)(7) (contentions in appellate brief must be developed with reasoning and supported by legal authority); State v. Carver, 160 Ariz. 167, 175 (1989) (failure to develop argument "constitutes abandonment and waiver of that claim"). Regardless, our analysis of the right to confrontation under the Arizona Constitution does not differ from our interpretation of the Sixth Amendment's Confrontation Clause. See State v. Carr, 216 Ariz. 444, n.2 (App. 2007).
¶22 Lozano argues that the nurse examiner's testimony was impermissible because it was testimonial and that, although M.W. "was not unavailable"-she testified as the state's first witness-his right to confrontation was violated because M.W. testified before the nurse examiner testified to the statement. Lozano also contends the statement's admission was prejudicial because it likely eliminated-at least in the mind of the juror who proposed the question-any reasonable doubt as to his guilt. The state asserts, and we conclude, that the testimony did not violate Lozano's right to confrontation because M.W. "appeared at trial and was subject to crossexamination." Therefore, no trial error occurred.
¶23 In general, a witness is considered "subject to cross examination" if "he is placed on the stand, under oath, and responds willingly to questions." United States v. Owens, 484 U.S. 554, 561 (1988). Even assuming without deciding that M.W.'s statement on the questionnaire was testimonial, because M.W., the declarant, was present at trial, testified and was cross-examined, and was subject to being recalled for further examination by Lozano, there was no Confrontation Clause violation. See Crawford, 541 U.S. at 59 n.9 ("[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.").
¶24 Although the order of witnesses (in that the nurse examiner testified the day after M.W. had been questioned and cross-examined) may have necessitated Lozano recalling M.W. in his case in chief if he wished to examine her on the questionnaire response, he could have done so. Lozano certainly does not claim that M.W. was not available to be recalled following the nurse examiner's testimony. Consequently, we conclude that, because M.W. was subject to cross-examination and was not unavailable, there was no constitutional violation. Id.
II. Constitutionality of Arizona's Sexual Assault Statute
¶25 Lozano claims that the definition of sexual intercourse under § 13-1401(A)(4) violates the Equal Protection Clauses of the United States and Arizona constitutions and that his convictions under § 13-1406 violate both the Equal Protection and Due Process Clauses. He raises these constitutional arguments for the first time on appeal, and we therefore review for fundamental error only. See Henderson, 210 Ariz. 561, ¶ 19. And, again, Lozano must first demonstrate error. Escalante, 245 Ariz. 135, ¶ 21. "We review issues of constitutional law de novo." State v. Coleman, 241 Ariz. 190, ¶ 6 (App. 2016).
U.S. Const. amend. XIV, § 1; Ariz. Const. art. II, § 13.
U.S. Const. amend. XIV, § 1; Ariz. Const. art. II, §§ 4, 13.
¶26 In interpreting a statute, we rely on the statute's plain meaning. See State ex rel. Ariz. Dep't of Revenue v. Tunkey, 254 Ariz. 432, ¶¶ 31-32 (2023) (Bolick, J., concurring); Roberts v. State, 253 Ariz. 259, ¶ 20 (2022) ("'[C]ourts will not read into a statute something which is not within the manifest intention of the legislature as gathered from the statute itself,' and similarly the 'court will not inflate, expand, stretch or extend a statute to matters not falling within its expressed provisions.'" (quoting City of Phoenix v. Donofrio, 99 Ariz. 130, 133 (1965)). Section 13-1406(A) states: "A person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person." Additionally, § 13-1401(A)(7)(b) provides that a person "is incapable of consent by reason of . . . alcohol, sleep or any other similar impairment of cognition and such condition is known or should have reasonably been known to the defendant." Lastly, § 13-1401(A)(4) defines sexual intercourse as "penetration into the penis, vulva or anus by any part of the body or by any object or masturbatory contact with the penis or vulva."
A. Equal Protection
¶27 Lozano argues that there was an equal protection violation amounting to fundamental error because, as alleged, both he and M.W. were intoxicated during the sexual intercourse but only he was charged under § 13-1406. He contends that, under the plain language of the statutes, read together, "only a man can be charged for sexual intercourse that takes place when both parties are too drunk to consent," because "the penis is not penetrated during sexual intercourse." (Emphasis omitted.)
¶28 Lozano reasons that, when penetration into a vulva occurs-which is the common form of sexual intercourse between a man and a woman-only the man can be charged with assault under the statute. In contrast, he argues, for a woman to be charged she must cause "penetration into the penis," which creates a "legal fiction" and is extremely uncommon. He explains, "Bottom line, under the relevant Arizona statutes, if a completely sober female had vaginal sexual intercourse with a man who was intoxicated past the point of consent, she is not charged, but the converse does not apply." (Emphasis omitted.) He argues that such a distinction violates equal protection. Lozano misreads the law.
¶29 It is beyond cavil that Arizona's statute punishing sexual assault by non-consensual vaginal intercourse has historically been employed predominantly, if not exclusively, against men. Indeed, we are unable to find a reported Arizona case where a woman was charged under § 13-1406(A) or elsewhere under similarly worded laws for such conduct. But that does not prove a constitutional equal protection violation. See State v. Nichols, 201 Ariz. 234, ¶ 7 (App. 2001) ("A statute is presumed to be constitutionally valid and should be construed to avoid constitutional conflicts."). This law does not make a distinction between defendant men and women. Section 13-1401(A)(4) defines the act of intercourse used in § 13-1406(A) without regard to who initiates it or under what circumstances it occurs. The definition does not preclude a charge being brought against a woman who engages in non-consensual vaginal intercourse with a man. A woman, like a man, may be charged under the statute when the man penetrates the woman's vulva without his consent. The criminal charge only requires a non-consensual act of sexual intercourse, which includes "penetration into the . . . vulva." § 13-1401(A)(4); see also State v. Stevens, 510 A.2d 1070, 1071 n.2 (Me. 1986) (discussing repealed statute with similar definition of "sexual intercourse" and concluding, "The definition reflects the biological reality that during intercourse the male sex organ penetrates the female sex organ, but we do not interpret that definition as determining the sex of the perpetrator of crimes involving sexual intercourse"); Ex parte Groves, 571 S.W.2d 888, 892-93 (Tex. Ct. App. 1978) (discussing Texas statute that defines "[s]exual intercourse" as "any penetration of the female sex organ by the male sex organ"; holding no equal protection violation because it "merely defines what 'sexual intercourse' is; it does not purport to define the 'actual perpetrator' of the intercourse"). Even so, "sexual intercourse" involves other acts which undoubtedly could be achieved by a woman without the man's consent, such as penetration of the anus or "masturbatory contact." § 13-1401(A)(4).
¶30 Nonetheless, here, it was not patently unreasonable to charge Lozano, and Lozano alone, under the statute. His statement to police investigators in which he admitted that M.W. had been too drunk to consent to sex was consistent with M.W.'s testimony that she did not remember most of her time spent with Lozano during the evening and other evidence that she was disabled by the effects of alcohol. This evidence indicates that Lozano was sufficiently coherent to recognize that M.W. was too drunk to consent and provides a reasonable basis to have charged him and not her with sexual assault. Cf. State v. Tsosie, 171 Ariz. 683, 685 (App. 1992) ("It is within the sound discretion of the prosecutor to determine whether to file criminal charges and which charges to file."). No equal protection violation occurred.
B. Due Process
¶31 Lozano also contends that § 13-1401(A)(7)(b) is unconstitutionally vague on its face because there are no "legally established factors for determining when a person is too drunk to consent." In his reply brief, he expressly encourages us to revisit and expand upon our holding in State v. Causbie, 241 Ariz. 173 (App. 2016), by providing a list of non-exhaustive factors that "a person can consider in determining whether another party is incapable of consent due to alcohol, and which a jury can rely upon to determine [if] a crime took place" under §§ 13-1401(A)(7)(b) and 13-1406(A). We presume the constitutionality of a statute when the statute is challenged as vague and, "if possible, construe the statute to give it a constitutional meaning." State v. Poshka, 210 Ariz. 218, ¶ 3 (App. 2005). "A statute is unconstitutionally vague if it does not give persons of ordinary intelligence a reasonable opportunity to learn what it prohibits and does not provide explicit instructions for those who will apply it." State v. McMahon, 201 Ariz. 548, ¶ 7 (App. 2002).
Like the defendant's arguments in Causbie, Lozano's "constitutional argument is intertwined with a state law contention," which we address together. 241 Ariz. 173, ¶ 14.
¶32 In Causbie, we held "that the phrase 'incapable of consent by reason of . . . alcohol' in § 13-1401(A)(7)(b) is not unconstitutionally vague." 241 Ariz. 173, ¶ 25 (alteration in Causbie). We reasoned that together, "§§ 13-1401(A)(7)(b) and 13-1406(A) provide sufficiently clear notice to a person of ordinary intelligence of what conduct is prohibited, namely, sexual intercourse with a person the defendant knows or reasonably should know is impaired by alcohol beyond the point of legal capacity to consent." Id. ¶ 24. Relatedly, our supreme court has consistently determined that expert testimony regarding alcohol intoxication is inadmissible because the effects of alcohol are common knowledge. See, e.g., State v. Plew, 155 Ariz. 44, 47 (1987) (citing numerous cases barring expert testimony on effect of alcohol).
¶33 Given such common knowledge, a reasonable juror could have concluded the evidence-including videos of M.W.'s behavior as she and Lozano travelled through the hotel, the vomit in Lozano's hotel room, her testimony that she did not remember most of the night, and Lozano's admission to police that he knew she was too drunk to consent-showed that M.W. was too drunk to consent to sex and that Lozano knew it. See Causbie, 241 Ariz. 173, ¶ 21 ("[The jury is] adequately equipped to assess whether a victim's cognition was so impaired by alcohol that he or she was unable to give legal consent at the relevant time."). Because we see no compelling reason to expand on Causbie by requiring additional jury instructions on this point, and it appears neither would our supreme court, we find no due process violation and no error.
III. Constitutionality of Lozano's Sentence
¶34 Lozano also argues that the consecutive nature of his sentences violates the Double Jeopardy Clause and that the aggregate length of his sentence amounts to cruel and unusual punishment. He also argues that his sentence is not permissible under A.R.S. § 13-116. We review these issues de novo and conclude otherwise. Coleman, 241 Ariz. 190, ¶ 6 (constitutional issues reviewed de novo); State v. Urquidez, 213 Ariz. 50, ¶ 6 (App. 2006) (sentencing under § 13-116 reviewed de novo).
U.S. Const. amends. V, XIV; Ariz. Const. art. II, § 10.
U.S. Const. amends. VIII, XIV; Ariz. Const. art. II, § 15.
A. Double Jeopardy
¶35 Section 13-116 states that "[a]n act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent." Section 13-1406 imposes a minimum sentence of 5.25 years' imprisonment for sexual assault and mandates that "[t]he sentence imposed on a person for a sexual assault shall be consecutive to any other sexual assault sentence imposed on the person at any time." § 13-1406(B), (C). The Double Jeopardy Clauses of the United States and Arizona constitutions prohibit convicting someone multiple times for the same crime. See State v. Eagle, 196 Ariz. 188, ¶ 5 (2000) (United States and Arizona constitutions' Double Jeopardy Clauses "grant the same protections"); State v. Jurden, 239 Ariz. 526, ¶¶ 10-11 (2016) ("[I]f multiple violations of the same statute are based on the same conduct, there can be only one conviction if there is a single offense.").
¶36 Lozano argues that his consecutive sentence for the two sexual assaults violates the federal and state prohibition against double jeopardy, as well as § 13-116, because his actions comprised a single event. Lozano supports his argument by noting that, by the victim's own testimony, he "possibly slipped or something and [his penis] had gone in [her] anus" while he was engaged in vaginal sex. Therefore, he argues, the two acts were not separate and distinct for double jeopardy purposes. Additionally, Lozano argues that punishing each act of penetration as a discrete unit of prosecution "does not meet the manifest legislative purpose of deterring unimpaired persons from taking advantage sexually of impaired persons."
¶37 The statutory definition of a crime "determines the scope of conduct for which a discrete charge can be brought." Jurden, 239 Ariz. 526, ¶ 11. "[I]f multiple violations of the same statute are based on the same conduct, there can be only one conviction if there is a single offense." Id. Here, as previously stated, § 13-1401(A)(4) defines sexual intercourse as "penetration into the . . . vulva or anus . . . by any part of the body." Thus, the unit of prosecution for a sexual assault is defined by penetration. Therefore, when separate and distinct penetrations occur during the course of even a single sexual episode, each penetration constitutes an act of sexual assault. Cf. State v. Boldrey, 176 Ariz. 378, 381 (App. 1993) ("Multiple sexual acts that occur during the same sexual attack may be treated as separate crimes."). Penetration of the anus, even in achieving the main goal of vaginal penetration, is sufficiently distinct from vaginal penetration as to allow multiple counts; indeed, even repeated vaginal penetrations during a sexual act can be sufficiently distinct. See State v. Williams, 182 Ariz. 548, 562-63 (App. 1995) (multiple charges permissible for sexual assaults "of the same type that occur in very rapid succession" and "[i]f the state can prove the necessary criminal elements of each act, the time span within which the acts were committed is immaterial" (quoting State v. McCuin, 167 Ariz. 447, 449 (App. 1991))).
¶38 The jury could have reasonably concluded that Lozano had penetrated M.W. in two distinct ways based on the evidence of separate injuries to both the posterior fourchette and her perianal area that are each consistent with penetration, the DNA evidence for each area, M.W.'s testimony that her "anus was bleeding," and even, given that he admitted she was too drunk to consent, that it was his intent to do so while she could not resist him. M.W.'s testimony that Lozano possibly "slipped" was based on her presumption that they had sex after waking up naked in bed with him the next morning and only having limited recall of events. This testimony, alone, doesn't make the factfinder's conclusion unreasonable. See State v. Cid, 181 Ariz. 496, 500 (App. 1995) ("The finder-of-fact, not the appellate court, weighs the evidence and determines the credibility of witnesses."). The elements of sexual assault in each count were sufficiently proved, independent of each other, and there is sufficient evidence that the assault as encompassed by each count occurred while Lozano knew M.W. was too drunk to consent. We find no double jeopardy violation.
B. Cruel and unusual punishment
¶39 Lozano argues that his aggregated sentences, resulting in 10.5 years in prison, amount to cruel and unusual punishment under the Eighth Amendment of the United States Constitution. Lozano asserts that the legislature could not have intended "to punish one otherwise consensual sexual encounter rendered criminal solely by the intoxicated status of the victim (while disregarding the intoxicated status of the Defendant) the same way that two separate physically forcible sexual assaults would be punished if tried together." Additionally, he argues that the punishment is inappropriate, nonsensical, and shocking to the community given the outpouring of character letters written on his behalf and his "unblemished record full of accolades as a father, son, husband, soldier and overall upstanding citizen."
¶40 We review de novo whether Lozano's sentences violate the Eighth Amendment. See State v. Soto-Fong, 240 Ariz. 1, ¶ 6 (2020); State v. Davis, 206 Ariz. 377, ¶¶ 12-13 (2003) (finding no "compelling reason to interpret [article II, § 15 of the Arizona Constitution] differently from [the Eighth Amendment]"). The Eighth Amendment of the United States Constitution prohibits cruel and unusual punishment and mandates that individuals may not be subjected to excessive sanctions. U.S. Const. amend. VIII; see State v. Berger, 212 Ariz. 473, ¶ 8 (2006). "[N]oncapital sentences"- like those for sexual assault-are subject to "a 'narrow proportionality principle' that prohibits sentences that are 'grossly disproportionate' to the crime." Berger, 212 Ariz. 473, ¶ 10 (quoting Ewing v. California, 538 U.S. 11, 20, 23 (2003)). For this court to vacate Lozano's sentence on Eighth Amendment grounds, we must find that his sentence is grossly disproportionately high in light of his crimes by "comparing 'the gravity of [his] offense [and] the harshness of the [imposed] penalty.'" Id. ¶ 12 (first and third alteration added, second alteration in Berger) (quoting Ewing, 538 U.S. at 28). Ultimately, we ask whether Lozano's case is one of "the rare case[s] in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." Ewing, 538 U.S. at 30 (alteration added) (quoting Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J., concurring)).
¶41 We generally analyze the sentence for each crime separately. See Berger, 212 Ariz. 473, ¶ 28. That is, "if the sentence for a particular offense is not disproportionately long, it does not become so merely because it is consecutive to another sentence for a separate offense or because the consecutive sentences are lengthy in aggregate." Id.
¶42 Lozano relies in part on Davis for the argument that our courts have "a duty to examine the sentence . . . in light of the facts and circumstances under which it is imposed." In Davis, the Arizona Supreme Court departed from the general rule and considered the defendant's aggregate sentence. 206 Ariz. 377, ¶ 47. In that case, Davis, a twenty-year-old, had sex with two of his "girlfriends," who were younger than fifteen years old and "willingly participated." Id. ¶¶ 2-6, 14, 36. He was sentenced to four consecutive thirteen-year sentences, totaling fifty-two years in prison. Id. ¶ 11. The court determined that Davis's cumulative sentence was cruel and unusual and that the statute's broad reach unfairly captured the defendant's conduct because it criminalized to the same degree any sexual contact with a child under fifteen, regardless of the circumstances. Id. ¶¶ 36, 49. That is, that sexual conduct with someone under fifteen was criminalized under Arizona law "whether the offense [was] a rape-incest by a step-parent who force[d] sex on a trusting ward or a pedophile who uncontrollably prey[ed] upon young children or the more benign boyfriend-girlfriend situation in which one party is older than eighteen and the other younger than fifteen." Id. ¶ 36. The supreme court concluded that Davis had been subjected to the same kinds of punishment-or worse- than defendants receive for "more serious crimes." Id. ¶¶ 24, 38-40. Then the court justified considering Davis's sentences in the aggregate because, "in light of the specific facts and circumstances of Davis's offenses," it could not "uphold a sentence that becomes unconstitutionally disproportionate to the crimes committed because the sentences are mandatorily lengthy, flat, and consecutive." Id. ¶¶ 47-49.
¶43 Later, our supreme court in Berger explained that the Davis court had found the defendant's conduct to fall at the "periphery" of the conduct punishable by the law rather than at its "core." 212 Ariz. 473, ¶¶ 39-44 ("Only after concluding that objective factors about Davis's offense showed he had been caught up in the expansive reach of the statute did the court determine that the consecutive nature of his sentences was relevant to the Eighth Amendment analysis."); see Davis, 206 Ariz. 377, ¶ 47. This was so because, although the victims in Davis were not legally able to consent, the court found it significant that they purported to. Davis, 206 Ariz. 377, ¶ 36. The court in Berger further explained that "the broad sweep" of liability in Davis "coupled with a sentencing scheme mandating lengthy consecutive sentences for each offense" violated the Eighth Amendment, given the circumstances of the case. Berger, 212 Ariz. 473, ¶ 40; Davis, 206 Ariz. 377, ¶¶ 36, 49.
¶44 Like the statutes addressed in Davis, § 13-1406(A) here also covers a broad range of criminal activity. The statute makes any act of intentional non-consensual sexual intercourse a criminal sexual assault, whether the offense involves a defendant physically forcing a victim to commit sexual acts, a brutal gang rape, or, as Lozano claims here, a situation where both parties are intoxicated, memories are blurred, and they have sex when one party is past the point of being able to consent. Id.; see Davis, 206 Ariz. 377, ¶ 36; State v. Griffin, 148 Ariz. 82, 84, 86 (1986) (violent sexual assault initiated at knife-point charged under § 13-1406(A)); State v. Hill, 236 Ariz. 162, ¶¶ 2, 8 (App. 2014) (multiple assailants broke into apartment "and one or more of them sexually assaulted a pregnant teenage girl" resulting in multiple charges, including seven counts of sexual assault). Lozano seems to argue that his conduct, like Davis's, was swept up in the statute's wide breadth and that, like the victims in Davis, had M.W. been able to consent, and the same acts occurred consensually, no crime would have been committed.
¶45 But unlike in Davis, where the underage victims willingly participated in the conduct-notwithstanding their legal inability to consent-we do not know whether or not M.W. in her state of intoxication made any statement reasonably indicating consent before Lozano engaged in intercourse with her. Had she, perhaps the rationale of Davis would be more resonant. But we have no evidence that M.W. would have consented had she been sober, and certainly she did not so testify. In fact, M.W. at sentencing stated Lozano had "shattered" her and that she "felt degraded" and "less than human" as a result of Lozano's assault. Lozano certainly demonstrated that he had no previous criminal background, had a compelling personal story, and had the support of many friends and community members. But such similar evidence for the defendant in Davis appears to have been more redundant and confirmatory of the statements of the victims, which carried great weight with our supreme court. While Lozano's case may not be the textbook sexual assault case, it is sufficiently dissimilar from Davis. We cannot say that the sexual assault of a victim disabled by the effects of alcohol is at the periphery of conduct to be addressed by § 13-1406(A) rather than at its core. Therefore, Davis does not apply here.
¶46 In our analysis of gross disproportionality, we "accord substantial deference to the legislature and its policy judgments as reflected in statutorily mandated sentences." Berger, 212 Ariz. 473, ¶ 13. If the sentence length arguably "furthers the State's penological goals" and entails a "rational legislative judgment," then the sentence is not grossly disproportionate. Id. ¶ 17 (quoting Ewing, 538 U.S. at 30). To that end, we examine whether a rational basis exists for that scheme set out in § 13-1406(B)-(C), and whether the mandatory minimum sentence that Lozano received can arguably further the legislature's penological goals. Id.
¶47 We do not conclude that Lozano's sentence is grossly disproportionate to his crimes. Lozano was found guilty of having sex with M.W. when he knew she could not, and did not, consent. The gravity of this offense-sexual assault of an impaired victim-is not less offensive than the harshness of a 5.25 year penalty. Although this is not intended to downplay the loss of liberty involved here, even considered in the aggregate, 10.5 years' imprisonment for Lozano's crimes is a far cry from the fifty-two years assessed in Davis. See 206 Ariz. 377, ¶ 1. The legislature sets policy and has an interest in deterring the crime of sexual assault, and we defer to the elected legislature to decide what minimum sentence is appropriate to serve that penological goal. See Harmelin, 501 U.S. at 999 (Kennedy, J., concurring) (stating that legislatures have broad authority to decide "the types and limits of punishments for crimes" (quoting Solem v. Helm, 463 U.S. 277, 290 (1983))). Imposing a mandatory minimum sentence for sexual assault and requiring consecutive sentences for multiple acts of sexual assault are rationally related to deterring the criminal act and are not unreasonable. Lozano's case is not, as Davis was, an "exceedingly rare" case where the prison term is so grossly disproportionate as to comprise an Eighth Amendment violation. See Berger, 212 Ariz. 473, ¶ 17 ("Harmelin and Ewing reaffirm that only in 'exceedingly rare' cases will a sentence to a term of years violate the Eighth Amendment's prohibition on cruel and unusual punishment." (quoting Ewing, 538 U.S. at 22)).
Lozano raises for the first time in his reply brief a substantive argument that his post-imprisonment obligation to register as a sex offender should also be analyzed as an Eighth Amendment violation. In his opening brief, he only alluded to this in his conclusion, without any citation to the law or substantive argument. The state, consequently, did not address the matter of the sex offender registration at all. We will not address this substantive argument raised for the first time in a reply brief and instead deem it waived. See State v. Cohen, 191 Ariz. 471, ¶ 13 (App. 1998) (reply brief is confined to questions of law or fact raised by appellee's brief; "appellate court can 'disregard substantive issues raised for the first time in the reply brief'" (quoting State v. Cannon, 148 Ariz. 72, 79 (1985)).
IV. Rule 20 and Rule 24.1(c)(1) Motions
¶48 Finally, Lozano argues his convictions were not supported by sufficient evidence and the trial court erred by denying his motion for acquittal pursuant to Rule 20. He also asserts that the court abused its discretion in denying his motion for a new trial pursuant to Rule 24.1(c)(1). We review the court's denial of a Rule 20 motion de novo. State v. West, 226 Ariz. 559, ¶ 15 (2011). "Generally, we review a court's decision on a motion for a new trial based on the weight of the evidence for an abuse of discretion." State v. West, 238 Ariz. 482, ¶ 47 (App. 2015).
¶49 Lozano contends the state proved that M.W. had been intoxicated at the hotel with Lozano but did not prove that Lozano had sexually penetrated her or that the penetration had occurred during the time of intoxication. In support of this argument, he asserts that (1) the amount of DNA found in M.W.'s vaginal canal was consistent with "secondary transfer" (as in a transfer from clothing to person) rather than penetration, and (2) M.W.'s lacerations could have been attributed to someone else because there was no evidence connecting M.W.'s genital lacerations to any date-range and M.W. "blacked out" on the night in question.
¶50 Under Rule 20, a trial court must enter a judgment of acquittal if there is no substantial evidence to maintain a conviction. See West, 226 Ariz. 559, ¶ 14. Substantial evidence "is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." Id. ¶ 16 (quoting State v. Mathers, 165 Ariz. 64, 67 (1990)). We view the evidence in the light most favorable to sustaining the jury's verdicts, and if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," we will affirm the denial of a Rule 20 motion. Id. (emphasis in Mathers) (quoting Mathers, 165 Ariz. at 66); see also State v. Lee, 189 Ariz. 590, 603 (1997) (if reasonable minds can differ on factual inferences, evidence is substantial and trial court has no discretion to grant Rule 20 motion).
¶51 Rule 24.1(c)(1) states that a trial court may grant a new trial if "the verdict is contrary to law or the weight of the evidence." In deciding whether to grant or deny a motion for a new trial, a court will not set aside a verdict simply because the court would have reached a different result. State v. Fischer, 242 Ariz. 44, ¶ 20 (2017). Instead, a court should "assess the strength of the evidence, considering the credibility of the witnesses and conflicting testimony," as well as "the duration of the trial, the complexity of the issues in the case, and whether the case involves subjects outside the ordinary knowledge of jurors, giving greater scrutiny to more difficult cases." Id. ¶ 24. It should assess these factors "with a keen recognition of the importance of the jury's role." Id. We will affirm a court's Rule 24.1 ruling if, "resolving every conflict in the evidence in support of the order, substantial evidence supports [it]." Id. ¶¶ 26-28.
¶52 For us to affirm Lozano's convictions, the record must contain substantial evidence that Lozano intentionally or knowingly had sexual intercourse with M.W. without her consent. See § 13-1406(A). As such, there must be substantial evidence that (1) M.W. was incapable of consenting by reason of intoxication, (2) sexual intercourse occurred as alleged, and (3) Lozano engaged in the sexual intercourse intentionally or knowingly. See § 13-1401(A)(7)(b) ("[w]ithout consent" means "incapable of consent by reason of . . . alcohol . . . and such condition is known or should have reasonably been known to the defendant"); § 13-1401(A)(4) ("'Sexual Intercourse' means penetration into the . . . vulva or anus by any part of the body ....").
¶53 We acknowledge that the evidence of sexual penetration here is not robust. As Lozano seems to argue, since there was no evidence of sperm or a condom, it might be the case that the DNA found in M.W.'s vulva and perianal area could be attributed to "secondary transfer" rather than penetration. However, Lozano concedes that he did not offer any expert testimony on this subject, and he did not elicit a meaningful explanation from the state's expert on cross-examination explaining the concept of secondary transfer to the jury. From the evidence presented regarding DNA and the victim's injuries found, it was not unreasonable for the jury to conclude that both acts of sexual assault occurred as alleged.
¶54 Additionally, as discussed above, the state introduced substantial evidence that M.W. had been too drunk to consent to sex including her testimony, as stated above, which was consistent with Lozano's own statements to law-enforcement. Sufficient evidence therefore established that M.W. was too drunk to consent and also that Lozano knew of her condition.
¶55 All of the elements of the crimes are sufficiently supported by evidence from which a rationale jury could convict. The trial court therefore did not err in denying Lozano's Rule 20 and Rule 24.1 motions.
Disposition
¶56 For the foregoing reasons, we affirm Lozano's convictions and sentences.