Opinion
2 CA-CR 2023-0225
07-12-2024
The State of Arizona, Appellee, v. Jesus Orlando Grajeda, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee Rosemary Gordon Panuco, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100CR202101835 The Honorable Steven J. Fuller, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee
Rosemary Gordon Panuco, Tucson Counsel for Appellant
Judge Vasquez authored the decision of the Court, in which Presiding Judge O'Neil and Judge Kelly concurred.
MEMORANDUM DECISION
VASQUEZ, Judge
¶1 Following a jury trial, Jesus Grajeda was convicted of three counts of sexual conduct with a minor under the age of twelve. The trial court imposed consecutive life sentences for each count, without the possibility of release for thirty-five years. On appeal, Grajeda argues there was insufficient evidence to support his convictions for two of the counts and the court therefore erred by denying his motion for a judgment of acquittal under Rule 20, Ariz. R. Crim. P. For the following reasons, we affirm.
Grajeda concedes he cannot "colorably challenge" his conviction and sentence for the third count of sexual conduct with a minor, and we therefore affirm it.
Factual and Procedural Background
¶2 "We view the evidence and all reasonable inferences therefrom in the light most favorable to sustaining the jury's verdicts." State v. Miles, 211 Ariz. 475, ¶ 2 (App. 2005). In September 2021, Grajeda was living with his girlfriend, P.M., and P.M.'s two minor children, including five-year-old K.A. On September 20, P.M. found the master bedroom door locked with Grajeda and K.A. inside. P.M. pounded on the door and when K.A. came out of the bedroom her hair was "messy in the back" and she "didn't have her little underwear on." P.M. asked K.A. what had happened to her underwear, and K.A. explained "they were in the closet because [Grajeda] had left them there" and that he had her "locked up" because he "wanted to put the bird inside of [her]." P.M. knew K.A. used the term "the bird" to describe a penis and immediately called 9-1-1.
¶3 When responding officers knocked on the front door, Grajeda "stepped out of the house . . . turned around and placed his hands behind his back." He was handcuffed and transported to the city jail. One of the officers then drove P.M. and K.A. to a family advocacy center for a forensic interview, followed by a forensic sexual assault exam. The exam revealed abnormalities, including vulvar redness on K.A. "consistent with penetration." External genital DNA swabs from K.A.'s sexual assault kit also revealed DNA consistent with Grajeda's.
¶4 A grand jury indicted Grajeda for four counts of sexual conduct with a minor, each charged as a dangerous crime against children in violation of A.R.S. § 13-705. He was convicted and sentenced as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
On the state's motion, the court dismissed with prejudice the fourth count involving oral sexual conduct.
Discussion
¶5 Grajeda argues the trial court erred by denying his Rule 20 motion because there was insufficient evidence to support his convictions for sexual conduct with a minor as charged in counts one and two. He maintains that "there is no evidence of what sexual acts took place or when anything took place to support those convictions." We review de novo whether sufficient evidence supports a conviction. State v. West, 226 Ariz. 559, ¶ 15 (2011).
¶6 "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. ¶ 16 (quoting State v. Mathers, 165 Ariz. 64, 66 (1990)). We will reverse only if no substantial evidence supports the conviction. State v. Pena, 209 Ariz. 503, ¶ 7 (App. 2005). "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.'" State v. Sharma, 216 Ariz. 292, ¶ 7 (App. 2007) (quoting Mathers, 165 Ariz. at 67). "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. Arredondo, 155 Ariz. 314, 316 (1987). We test the sufficiency of the evidence against the statutorily required elements of the offense. Pena, 209 Ariz. 503, ¶ 8.
¶7 "A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse . . . with any person who is under eighteen years of age." A.R.S. § 13-1405(A). Sexual intercourse is defined 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.R.S. § 13-1401(A)(4).
¶8 Counts one, two, and three of the indictment charged Grajeda with sexual conduct with a minor "on or between September 20, 2020 and September 20, 2021." The language differed only in that count one was for the "first time," count two for the "next time," and count three for the "last time." Grajeda argues the evidence was insufficient for counts one and two because there was "no testimony whether sexual intercourse or oral contact took place at any time prior to September 20, 2021."
¶9 Viewing the evidence in the light most favorable to upholding Grajeda's convictions, as we are required to do, the record is sufficient here. See West, 226 Ariz. 559, ¶ 16. On the first day of trial, six-year-old K.A. testified that Grajeda had "put the bird" in her "parts" "three times or more." She testified that it happened in her house, "in the room he shared with [her] mom," and that it "hurt every time." K.A. also testified that she knew "milk" comes out of "the bird" because she had "seen milk come out of his bird before." The evidence established that there was no sperm or semen DNA found in samples taken from the incident on September 20, 2021, which supported the state's argument that Grajeda had engaged in sexual conduct with K.A. prior to that date.
¶10 Grajeda contends that K.A.'s testimony was insufficient to support counts one and two because it "consisted of simple 'yes' answers to the prosecutor's leading questions about whether 'it' or 'this' happened more than one time or more than three times." It is within the trial court's discretion to allow leading questions during direct examination of a minor witness. State v. Jerousek, 121 Ariz. 420, 426 (1979). This is particularly true "where the delicate nature of the subject matter prevents detailed answers to general questions." State v. Godsoe, 107 Ariz. 367, 370 (1971). The court may also permit leading questions when a witness has difficulty speaking or understanding the English language. State v. King, 66 Ariz. 42, 49 (1947). K.A. was six years old at the time of trial and was being assisted by a Spanish interpreter. Despite Grajeda's contention that K.A.'s trial testimony was a "biddable child's affirmative answers to the prosecutor's vague [and] leading questions," the weight and credibility of her testimony was solely for the jury to determine and will not be reassessed on appeal. State v. MacHardy, 254 Ariz. 231, ¶¶ 29, 34 (App. 2022).
¶11 Grajeda admits his conduct with K.A. on the day of his arrest included "sexual penetration." He nevertheless argues that, because K.A. did not describe the specific nature of the other charged sexual acts during her testimony, there was no way for the jury to know what her references to "'it' and 'this' mean[t] with regard to the sexual conduct charged here." We disagree.
¶12 On direct examination, K.A. confirmed that on "the day that [Grajeda] got taken to the police" "something happened" "that involved the bird," meaning "[Grajeda's] private part," and her "privates." When asked where Grajeda put "the bird," K.A. said, "[I]n my parts." In response to the next four questions, K.A. confirmed "it" happened the day the police came to the house, "it" hurt when he put "the bird" in her, and that "this" had happened other times. Given the entire context of K.A.'s responses to the prosecutor's questions, a jury could reasonably infer that, when the words "it" and "this" were used to describe the prior occurrences of sexual conduct by Grajeda, they referred to sexual penetration as had occurred on September 20, 2021. K.A.'s testimony therefore provided sufficient evidence to support Grajeda's convictions for all three counts of sexual conduct with a minor.
¶13 Grajeda further contends the evidence was insufficient because there was "no time anchor of any kind as to when 'it' or 'this' happened other than the September 20, 2021 incident." Contrary to Grajeda's argument, the indictment provided a distinct time span of one year for all three offenses, specifying that they occurred "on or between September 20, 2020 and September 20, 2021." And as noted above, the indictment distinguished each offense-count one was for the "first time," count two for the "next time," and count three for the "last time."
¶14 Moreover, in cases involving sexual conduct with a minor, specific dates of each offense are not required. See State v. Copeland, 253 Ariz. 104, ¶ 13 (App. 2022) (specific date not required when date is not element of offense); see also § 13-1405(A). A victim's testimony is sufficient, so long as a general timeframe is described and there is an indication of the kind and frequency of the acts committed. Id. ¶ 11. Even when the victim is a young child, and therefore "incapable of effectively testifying as to specific dates in the year and minutes on the clock," a defendant can be convicted on the uncorroborated testimony of the victim alone. Jerousek, 121 Ariz. at 427 (quoting State v. Berry, 101 Ariz. 310, 314 (1966), superseded by statute, 1983 Ariz. Sess. Laws, ch. 202, § 10, as recognized in State v. Holle, 240 Ariz. 300, ¶ 28 (2016)). "[A]dditional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a conviction." Copeland, 253 Ariz. 104, ¶ 11 (quoting People v. Jones, 792 P.2d 643, 656 (1990)). K.A.'s testimony was sufficient to allow a reasonable jury to conclude that counts one and two, alleging offenses prior to the date of the arrest, occurred as alleged in the indictment. See Sharma, 216 Ariz. 292, ¶ 7. The trial court did not err in denying Grajeda's Rule 20 motion.
Disposition
¶15 Grajeda's convictions and sentences are affirmed.