Opinion
2 CA-CR 2023-0125
03-20-2024
The State of Arizona, Appellee, v. Andrew Anthony Magana, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Kenney Law LLC, Florence By Anthony Kenney Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court.
Appeal from the Superior Court in Pinal County No. S1100CR202201293 The Honorable Daniel A. Washburn, Judge.
COUNSEL
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee
Kenney Law LLC, Florence By Anthony Kenney Counsel for Appellant
Judge Kelly authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Gard concurred.
MEMORANDUM DECISION
Kelly, Judge
¶1 Andrew Magana appeals from his conviction and sentence for sexual assault. Magana argues there was insufficient evidence presented at trial to prove him guilty beyond a reasonable doubt, and that the trial court erred in both denying his motion to preclude evidence and in allowing the state to impeach him with his prior felony conviction. For the reasons that follow, we affirm Magana's conviction and sentence.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to affirming the jury's verdict. See State v. MacHardy, 254 Ariz. 231, ¶ 2 (App. 2022). In June 2021, J.P. was shopping at a Walmart in Pinal County when Magana came up behind her, touched her buttocks, and shoved his hand into the fabric of her leggings with sufficient force to penetrate her vagina with his fingers over her clothes. She turned around, grabbed his arm, and scratched him. A struggle ensued between them. J.P. knocked off Magana's hat and sunglasses, put him in a headlock, and yelled for help. Magana dropped down, almost losing his shirt, and shoved J.P. in the stomach. J.P., who was several months pregnant, immediately released him and clutched her abdomen, providing Magana an opportunity to escape. He ran away and left the Walmart.
¶3 Magana was subsequently indicted on one count of sexual assault. Before trial, he filed a motion in limine, asserting among other claims that evidence of J.P.'s pregnancy at the time of the offense was irrelevant and should be precluded. The trial court denied Magana's motion as to the pregnancy issue, finding that evidence of J.P.'s pregnancy was relevant and not unfairly prejudicial.
¶4 After a two-day trial, the jury found Magana guilty of sexual assault, and the trial court sentenced him to a prison term of seven years.
This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
¶5 On appeal, Magana argues that the state failed to present sufficient evidence to support his conviction. He also argues that the trial court erred in allowing the state to present evidence that the victim, J.P., was pregnant at the time of the sexual assault, and in allowing the state to impeach him with his prior felony conviction when he testified.
Sufficiency of the Evidence
¶6 Magana argues that the evidence presented at trial was insufficient to support his conviction, because the state's only evidence that he penetrated the victim was her own testimony. We review sufficiency of the evidence de novo. State v. West, 226 Ariz. 559, ¶ 15 (2011). "Evidence is insufficient only where there is no substantial evidence to support a conviction." State v. Rodriguez, 251 Ariz. 90, ¶ 16 (App. 2021). "Substantial evidence is more than a mere scintilla and is such proof that 'reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.'" State v. Mathers, 165 Ariz. 64, 67 (1990) (quoting State v. Jones, 125 Ariz. 417, 419 (1980)).
¶7 "To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury." State v. Bustamante, 229 Ariz. 256, ¶ 5 (App. 2012) (quoting State v. Arredondo, 155 Ariz. 314, 316 (1987)). We do not reweigh the evidence and we resolve all reasonable inferences against the defendant. State v. Lee, 189 Ariz. 590, 603 (1997). Furthermore, a conviction may properly rest on the uncorroborated testimony of a victim of sexual assault unless "the story is physically impossible or so incredible that no reasonable person could believe it." State v. Williams, 111 Ariz. 175, 177-78 (1974). The "credibility of a witness is for the trier-of-fact, not an appellate court." State v. Gallagher, 169 Ariz. 202, 203 (App. 1991).
¶8 At trial, J.P. testified that Magana "grabbed [her] butt and shoved his hand up [her] vagina." She explained that Magana touched her over her pink leggings, made of a thin, stretchy material, and that she felt his finger or fingers quickly penetrate her vagina. J.P. testified that she was "100%" sure that he penetrated her. The state also introduced photographs of Magana inside the Walmart on the evening of the assault, a video recording that showed Magana approaching and touching J.P. from behind, and photographs taken during a subsequent sexual assault examination of J.P.'s stomach, depicting what the examining nurse described as bruising.
¶9 Magana testified as to his own version of the offense: that he merely approached J.P., a stranger to him, inside the Walmart and "slapped her butt," but did not penetrate her. He argues on appeal that J.P.'s testimony lacked credibility because it was uncorroborated and she was "impeached" by other evidence. However, by finding Magana guilty, the jury necessarily found J.P.'s testimony more credible. See State v. Cox, 217 Ariz. 353, ¶ 27 (2007) (witness credibility is determined by the jury). J.P. testified that Magana digitally penetrated her vagina without her consent, which, standing alone, supports his conviction for sexual assault. See A.R.S. §§ 13-1406(A); 13-1401(A)(4) (defining sexual intercourse as "penetration into the penis, vulva or anus by any part of the body"); see also Williams, 111 Ariz. at 177-78. Under the evidence presented here, J.P.'s testimony was neither "physically impossible or so incredible that no reasonable person could believe it." Williams, 111 Ariz. at 177-78. Accordingly, the state presented sufficient evidence to support Magana's conviction for sexual assault.
Relevancy of J.P.'s Pregnancy
¶10 Next, Magana argues that the trial court erred in denying his motion in limine to prevent the state from introducing evidence that J.P. was pregnant at the time of the offense. He asserts that this evidence was irrelevant and should have been excluded under Rule 401, Ariz. R. Evid. In the alternative, he argues that if the evidence were relevant, it should have been precluded under Rule 403, Ariz. R. Evid., as it was highly prejudicial. We review the admission of evidence for an abuse of discretion. State v. Leteve, 237 Ariz. 516, ¶ 18 (2015); see also State v. Bocharski, 200 Ariz. 50, ¶ 21 (2001) (we will not disturb a trial court's Rule 403 determination absent clear abuse of discretion).
¶11 In response to Magana's motion in limine, the state argued that evidence of J.P.'s pregnancy was relevant to her credibility and to explain why she "reacted the way she did." The trial court found that this evidence was relevant because it goes "to [J.P.'s] credibility and corroborate[s] her story." It additionally found "that the danger of unfair prejudice does not outweigh the relevancy of such evidence."
¶12 At trial, J.P. testified that during her altercation with Magana, "he shoved [her] stomach," which immediately caused her to end the struggle. Magana denied shoving J.P. in the stomach, but he admitted that the video of the event showed J.P. with her hand on her stomach shortly before he ran away. J.P. testified that she went to the hospital after the assault because she began to have contractions from the "push or stress." While she was at the hospital, she saw an OB/GYN and was examined by a nurse. The nurse examiner testified that she did not perform a genital examination of J.P. "because of [J.P.'s] condition. She was pregnant and the OB/GYN, plus she was contracting, so we did not want to do that." The nurse examiner also testified that J.P. told her Magana "pushed on [her] stomach to get away and [she] let go because [she's] pregnant."
¶13 The state introduced two photographs of J.P.'s stomach taken during the sexual assault examination. These photos showed a linear mark that the nurse described as bruising, and the nurse confirmed that J.P. indicated the mark was from Magana pushing her.
¶14 Evidence that "has any tendency to make a fact more or less probable" and is "of consequence in determining the action" is relevant and admissible, unless otherwise excluded. Ariz. R. Evid. 401, 402. Relevant evidence need not "support a finding of an ultimate fact; it is enough if the evidence, if admitted, would render the desired inference more probable." State v. Togar, 248 Ariz. 567, ¶ 13 (App. 2020) (quoting State v. Paxson, 203 Ariz. 38, ¶ 17 (App. 2002)).
¶15 We agree with the trial court's rationale that the photographs were relevant to show the injury to J.P.'s stomach, and that her testimony concerning her pregnancy was relevant to explaining "why she reacted the way she did." The court reasoned that this evidence went towards J.P.'s credibility and "whether her story corroborates what's seen in any video or anything that's alleged." Moreover, J.P.'s pregnancy was also relevant to explain why the nurse examiner did not perform a genital examination, and common sense tells us that a victim's reaction to the alleged offense may tend to prove or disprove whether the offense occurred.
¶16 We also reject Magana's argument that the evidence was "highly prejudicial" and should have been precluded 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 means an undue tendency to suggest decision on an improper basis . . . such as emotion, sympathy or horror." State v. Riley, 248 Ariz. 154, ¶ 70 (2020) (quoting State v. Schurz, 176 Ariz. 46, 52 (1993)). And, because the trial court is in the best position "to weigh potential prejudice in the overall context of the case," it has broad discretion in applying Rule 403. State v. Gomez, 250 Ariz. 518, ¶ 15 (2021). Magana points to nothing in the record to support his claim that evidence of J.P.'s pregnancy tended to "inflame the jury's prejudices and emotions," and the jurors were properly instructed that they must not be influenced by "sympathy or prejudice." We assume they followed their instructions. See State v. Gallardo, 225 Ariz. 560, ¶ 40 (2010). Accordingly, the court did not abuse its discretion in determining that evidence of J.P.'s pregnancy was relevant, or in rejecting Magana's Rule 403 objection.
Prior Felony Conviction
¶17 Last, Magana argues that the trial court erred in permitting the state to impeach him with his prior felony conviction. We review the court's ruling on the admissibility of prior convictions for a clear abuse of discretion, see State v. Green, 200 Ariz. 496, ¶ 7 (2001), and the court has wide discretion in deciding whether the prejudicial effect is greater than the probative value as to credibility, see State v. Dixon, 126 Ariz. 613, 618 (App. 1980).
¶18 Before trial, the state filed a notice of its intent to introduce evidence of Magana's prior felony conviction for impeachment purposes pursuant to Rule 609, Ariz. R. Evid. Magana objected to the admission of his prior conviction, arguing that its probative value did not outweigh its prejudicial effect. The state responded that, if Magana should testify, it would not inquire into the details of his prior conviction. The trial court denied Magana's request, finding that a defendant's credibility may be attacked through evidence of a prior felony conviction, and that the prejudicial effect of introducing Magana's prior conviction "does not substantially outweigh the probative value." At trial, Magana testified that he was convicted of a felony in 2020 and that the offense for which he was currently on trial occurred in June 2021. The state did not ask about the nature of this prior conviction.
¶19 Rule 609 allows a criminal defendant's character for truthfulness to be attacked with a prior felony conviction "if the probative value of the evidence outweighs its prejudicial effect." "The purpose of [Rule 609] is to allow the fact-finder to weigh the witness's testimony by his or her general credibility and veracity." State v. Hatch, 225 Ariz. 409, ¶ 11 (App. 2010). And "[c]onviction of a felony is material to a witness's credibility." Id. (quoting State v. Gretzler, 126 Ariz. 60, 85 (1980)); see also State v. Beasley, 205 Ariz. 334, ¶ 19 (App. 2003).
¶20 Here, the trial court properly considered both the probative value of the prior conviction and its prejudicial effect in making its ruling. See State v. Ennis, 142 Ariz. 311, 315-16 (App. 1984) (trial court "must balance the probative value against the prejudicial effect of admission of the evidence of the prior conviction" (quoting State v. Hunter, 137 Ariz. 234, 237 (App. 1983))). The court also properly instructed the jury that it must limit consideration of Magana's prior conviction to his "believability as a witness," and that it "must not consider the prior conviction as evidence of guilt of a crime for which the defendant is now on trial." We, again, assume the jury followed these instructions. See Gallardo, 225 Ariz. 560, ¶ 40. Therefore, we cannot conclude that the court abused its discretion in allowing the state to impeach Magana with his prior felony conviction.
Disposition
¶21 We affirm Magana's conviction and sentence.