Opinion
No. 1 CA-CR 14-0694
10-29-2015
STATE OF ARIZONA, Appellee, v. MICHAEL JOSEPH GONZALEZ, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Yavapai County Public Defender's Office, Prescott By Nicole S. Murray Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Yavapai County
No. V1300CR201280201
The Honorable Michael R. Bluff, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Yavapai County Public Defender's Office, Prescott
By Nicole S. Murray
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in which Judge Jon W. Thompson and Judge Lawrence F. Winthrop joined.
HOWE, Judge:
¶1 Michael J. Gonzalez appeals his convictions and sentences for one count of sexual conduct with a minor under 12 years old and two counts of molestation of a child. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 One night in 2006, six-year-old A.P. was sleeping over at her friend's house, five-year-old F.B. F.B. was living with her father, her father's girlfriend, her younger sister, "Uncle Mike" Gonzalez, and occasionally her uncle Jeremy. F.B.'s father and his girlfriend left for the evening, leaving Gonzalez to babysit the children.
¶3 The children were playing when Gonzalez called them into his room to watch "Sponge Bob." Gonzalez told A.P. and F.B. to lay on the bed; he sat in-between them. Gonzalez then started "rubbing [F.B.'s] leg" and moved his hand "under [F.B.'s] dress and started "rubbing [her] vagina." He then moved his hand "under [her] underwear" and put it "in [her] vagina." Meanwhile, Gonzalez was moving his other hand "back and forth" on top of A.P.'s "vaginal area."
¶4 The children eventually left Gonzalez's room, and F.B.'s father and his girlfriend returned home. Neither F.B. nor A.P. told their parents what had happened. After that night, the girls did not see or talk to each other, and F.B. soon moved out of state.
¶5 Almost three years later in 2009, A.P. told her daycare provider what happened that night. The daycare provider contacted A.P.'s mother who contacted the county sheriff's office. The sheriff's office began investigating the incident and conducted a forensic interviewed of A.P.
¶6 In 2012, F.B., now living in Oregon, told friends what had happened, and one of them reported it to a school counselor. F.B. also had a forensic interview, identifying and describing "Mike" as her abuser. After further investigation, the police department in Oregon contacted the county
sheriff's office in Arizona, notifying them of F.B.'s disclosure. Deputies interviewed Gonzalez at his home and then arrested him. As relevant, the State charged Gonzalez with one count of sexual conduct with a minor under 12 years old and two counts of molestation of a child.
¶7 Before trial, the prosecutor requested that five witnesses be permitted to testify by videoconference. The witnesses were living in Oregon and wanted to avoid "the time and expense of travel to Arizona." The prosecutor explained that the "videoconference systems [were] compatible and [that he] would test the equipment and capabilities [before] trial . . . to assure an accurate and meaningful presentation of evidence." The prosecutor stated that defense counsel did "not oppose the request provided the capabilities of the video conferencing provide a complete, clear and meaningful discourse between the witnesses and attorneys and a clear audio and visual presentation for the jury."
¶8 At a pretrial conference, the prosecutor explained that although several witnesses would be coming from Oregon, he preferred that "less crucial witnesses" testify by videoconference. He also provided that his office was working with a trial court in Oregon to set up a test run for technical problems. Defense counsel stated that she did not object to the State's motion, and the trial court granted it with the condition that the equipment be tested not less than three days before trial.
¶9 During trial, the prosecutor informed the trial court that two witnesses would be testifying by videoconference and that he had checked the technology, which "worked pretty well." The next day, F.B.'s school counselor and the police officer who conducted her forensic interview testified by videoconference.
¶10 The jurors convicted Gonzalez of one count of sexual conduct with a minor under 12 years old and two counts of molestation of a child. The trial court sentenced Gonzalez to 20 years' imprisonment for sexual conduct of a minor with 889 days presentence credit, concurrent with 17 years' imprisonment for molestation of a child with 889 days presentence credit, and consecutive with 17 years' imprisonment for the other count of molestation of a child with no presentence credit. Gonzalez timely appealed.
DISCUSSION
¶11 Gonzalez argues that his Sixth Amendment right to confront the witnesses against him was violated because the trial court allowed witnesses in Oregon to testify by videoconference. But Gonzalez waived
this argument by inviting the error. See State v. Pandeli, 215 Ariz. 514, 528 ¶ 50, 161 P.3d 557, 571 (2007) ("This court has long held that a defendant who invited error at trial may not then assign the same as error on appeal.") (internal quotation marks and citation omitted); see also State v. Parker, 231 Ariz. 391, 405 ¶ 61, 296 P.3d 54, 68 (2013) (providing that a defendant's "stipulation to admit the video-taped interviews precludes him from asserting on appeal their admission was error").
¶12 Before moving for videoconference testimony, the prosecutor consulted with defense counsel; counsel did not object, thereby opening the door to any error by stipulating to the videoconference testimony. Moreover, defense counsel later expressly confirmed agreement to videoconference testimony at a pretrial conference by stating: "I don't have an objection to the motion regarding the videoconferencing. I think that was noted in [the State's] motion." Gonzalez therefore may not assert error on this point on appeal. See State v. Kemp, 185 Ariz. 52, 60-61, 912 P.2d 1281, 1289-90 (1996) ("[T]he open door or invited error doctrine means that a party cannot complain about a result he caused.") (internal quotation marks and citation omitted). Accordingly, we need not address the merits of his argument.
¶13 Gonzalez next argues that his Sixth Amendment right to be informed of the nature and cause of the accusation was violated because the trial court allowed the State to amend the dates on the indictment from "on or about 2007" to "on or about 2006." Arizona Rule of Criminal Procedure 13.5(b) permits a trial court to amend charges to conform to the evidence or correct mistakes of fact. The trial court's amendment here was purely a technical modification clearly within the purviews of this rule. See State v. Fimbres, 222 Ariz. 293, 303 ¶ 38, 213 P.3d 1020, 1030 (App. 2009) (providing that an amendment to an indictment for formal or technical defect is permissible, if it does not change the nature of the offense charged or prejudice the defendant). In fact, defense counsel noticed the discrepancy in the dates and informed the prosecutor. The prosecutor checked the dates with F.B.'s father's landlord and lease and then accordingly moved to amend the indictment to conform to the evidence. Moreover, the indictment was legally sufficient to afford Gonzalez his Sixth Amendment right. It provided the essential elements of the charges, was definite enough to permit him to prepare a defense, and afforded him protection from subsequent prosecution for the same offenses. See State v. Rickard-Hughes, 182 Ariz. 273, 275, 895 P.2d 1036, 1038 (App. 1995).
CONCLUSION
¶14 For the foregoing reasons, we affirm.