Opinion
No. 2 CA-CR 2020-0026
03-12-2021
THE STATE OF ARIZONA, Appellee, v. EDWIN HERNANDEZ, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee Emily Danies, 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NOT FOR PUBLICATION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. CR20181904001
The Honorable Teresa Godoy, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee Emily Danies, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Brearcliffe concurred. VÁSQUEZ, Chief Judge:
¶1 After a jury trial, Edwin Hernandez was convicted of sexual abuse, and the trial court sentenced him to a prison term of 4.5 years. On appeal, Hernandez argues the court erred by denying his motion for a judgment of acquittal and by instructing the jury on the lesser-included offense of sexual abuse, over his objection. For the reasons stated below, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining Hernandez's conviction. State v. Allen, 235 Ariz. 72, ¶ 2 (App. 2014). On an autumn evening in 2016, M.P. was at her apartment after socializing and having a few drinks with a friend earlier in the evening. Around midnight, she went outside to smoke a cigarette and heard people talking in the courtyard and thought she knew them. She walked to the courtyard and saw a group of three men, whom she later learned were visiting one of her neighbors. Although she did not know them, she decided to stay and talk. The four of them stayed in the courtyard and talked and drank for about "thirty or forty-five minutes" before M.P. invited the three men back to her apartment. There, the group "continued to drink and play games," and at one point, she left with one of the men to get more alcohol. After about seven to nine drinks, M.P. blacked out.
¶3 The next morning, M.P. woke up with pain in her jaw and left eye. Although she was wearing her bra and top from the night before, she was naked from the waist down. She immediately went to the bathroom to inspect her face and saw that her eye was bruised and swollen. Panicked, she returned to her bedroom and saw Hernandez, one of the men from the night before, in her bed. She started screaming at him, demanding to know what had happened to her face. Hernandez replied, "Calm down or I'll do it again." He then "panicked to get dressed and took off running" out of her apartment. Neither of the other two men were in her apartment the next morning.
¶4 Once Hernandez left, M.P. called 9-1-1 to report that she had been sexually assaulted. An officer arrived shortly thereafter, followed by a detective, both of whom interviewed M.P. Two officers also interviewed M.P.'s neighbor, whose house the three men had initially visited the night before. Through the neighbor, police identified Hernandez as a suspect, and M.P. identified Hernandez a few days later in two photographic lineups.
¶5 After M.P.'s interview with the detective, she went to the hospital for a "sex assault examination." A sexual assault nurse examiner (SANE) completed a comprehensive full-body exam and documented M.P.'s injuries, including a "circumorbital contusion" with swelling to her left eye, which was caused by blunt-force trauma and consistent with getting punched. M.P. also had an abrasion on the back of her right ear and contusions along her jaw and shin. An examination of her genitals revealed two small tears to her anus.
¶6 During the exam, the SANE also collected swabs for DNA testing that included, "anal swabs, external genital swabs and vaginal swabs." Only the external genital swabs had enough DNA for comparative testing. After comparing this sample to Hernandez's DNA, a criminalist was not able to exclude him as a possible donor, and Hernandez was among only one in approximately 1,700 Hispanic males who would have that DNA profile. The criminalist also matched Hernandez's DNA to the DNA collected from a liquor bottle that M.P. found in her freezer several days after Hernandez was at her apartment.
¶7 A grand jury indicted Hernandez on two counts of sexual assault. His first trial ended in a mistrial after a witness made a statement suggesting that Hernandez had been in prison. At the close of evidence in the second trial, the state requested instructions on the lesser-included offenses of sexual abuse as to Count One (sexual assault by vaginal penetration) and attempted sexual assault as to Count Two (sexual assault by anal penetration). The trial court granted the request over Hernandez's objection. The jury found Hernandez not guilty of both counts of sexual assault but found him guilty of the lesser-included offense of sexual abuse as to Count One. He was sentenced as described above. This appeal followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Hernandez was also indicted for one count of trafficking in stolen property, which was severed before trial.
Discussion
¶8 Hernandez argues the trial court erred by denying his motion for a judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P., on the sexual assault charges because the state produced insufficient evidence that penetration had occurred. However, because Hernandez was not convicted of this offense, the issue is moot. See Lana A. v. Woodburn, 211 Ariz. 62, ¶ 9 (App. 2005) (appeals court generally does not address moot issues); State v. Henderson, 210 Ariz. 561, n.2 (2005).
¶9 Hernandez further contends that the evidence was insufficient to support his sexual-abuse conviction. We review de novo a trial court's ruling on a Rule 20 motion. State v. West, 226 Ariz. 559, ¶ 15 (2011) (citing State v. Bible, 175 Ariz. 549, 595 (1993)). "[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). Substantial evidence may include both circumstantial and direct evidence. See West, 226 Ariz. 559, ¶ 16.
¶10 To obtain a conviction for sexual abuse, the state was required to present evidence that Hernandez "intentionally or knowingly engag[ed] in sexual contact" with M.P. "without consent." A.R.S. § 13-1404(a). "Sexual contact" requires proof of "any direct or indirect touching, fondling or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object or causing a person to engage in such contact." A.R.S. § 13-1401(A)(3)(a). Sexual contact is "[w]ithout consent" if the victim was "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." § 13-1401(A)(7)(b).
¶11 Sufficient evidence supports the jury's finding that Hernandez engaged in sexual contact with M.P. The state presented evidence that sperm was found on the "external genital swabs" collected from M.P. during her sex assault examination. A partial Y-STR profile was developed from the sample and subsequent analysis could not exclude Hernandez or his paternal male relatives as the donors, and the profile was estimated to be present only in "one in 2,800 Caucasians, one in 2,300 African Americans, and one in 1,700 Hispanics."
Y-STR profiles isolate male DNA, which allows for better testing of samples that contain an overwhelming amount of female DNA as compared to male DNA, such as samples taken from female genitals.
Y-STR profiles are specific to male lineage, not individuals.
¶12 Hernandez argues that the DNA found on "the external area near [M.P.'s] vagina" was not "conclusively" his. DNA evidence, however, need not be conclusive to support a jury finding of guilt. See State v. Escalante-Orozco, 241 Ariz. 254, ¶ 58 (2017) (finding Y-STR profile helpful to jury and probative of defendant's guilt; even though "the Y-STR results could be attributed to a statistically significant percentage of the general population, this circumstance does not diminish or eliminate the fact that [the defendant] was among that group"), abrogated on other grounds by State v. Escalante, 245 Ariz. 135 (2018); see also State v. Gomez, No. CR-19-0292-PR, slip op. ¶ 32 (Ariz. March 9, 2021) (permitting "limited use of inconclusive DNA evidence to establish that a crime occurred"). The evidence also established that the other two men who had been in M.P.'s apartment were not related to Hernandez, lending further support to a conclusion that Hernandez had engaged in sexual contact with her.
¶13 Hernandez further argues that even if the DNA were his, "[i]t does not establish if, how, where or when he touched her, and it certainly doesn't establish any other necessary element." But the state presented evidence that unequivocally showed Hernandez had been with M.P. on the night at issue. That evidence included testimony of a neighbor that three men, including one named Edwin, had been with her that night and the men, including Edwin, had left with a girl they met in the courtyard; M.P.'s positively identifying Hernandez as the man in her bed from two photo lineups; and DNA on a liquor bottle in M.P.'s apartment conclusively matched Hernandez's DNA. M.P.'s and her neighbor's testimony, coupled with the DNA evidence, provided the jury with substantial evidence from which it could infer that Hernandez had engaged in sexual contact with M.P.
A partial Y-STR profile from the liquor bottle matched the DNA profile of Hernandez and his male lineage. The estimated frequency that an unrelated individual would also match this partial profile was "one in 200 quadrillion." Viewed in the light most favorable to the prosecution, it is reasonable to conclude it was Hernandez's DNA because none of Hernandez's male relatives were at M.P.'s apartment the night of the incident.
¶14 Substantial evidence also showed that the sexual contact was without consent. A jury could draw a reasonable inference from M.P.'s testimony about her black eye, abrasions, and contusions that she had been forced to engage in sexual contact with Hernandez. Additionally, Hernandez's comment that M.P. needed to "calm down or I'll do it again," in response to her confronting him about her injuries, suggests that he was the one who gave her the black eye and committed the offense. Viewed in the light most favorable, the evidence supports the jury's finding that the sexual contact was nonconsensual.
¶15 Hernandez nevertheless contends that because M.P. "blacked out" from alcohol consumption, there was no evidence "about whether [M.P.] consented or was capable of consenting" or whether Hernandez "knew he was acting without consent or had reason to know [M.P.] was incapable of consenting." M.P. testified that she had consumed "[s]even to nine" drinks that night, only two to three of which she had consumed before meeting the men. She also testified that Hernandez had been present while she was drinking and when she blacked out, and "the topic of sex" never came up during any conversations that night.
¶16 M.P.'s testimony, including her account of Hernandez's reactions the next day, provided sufficient evidence from which the jury could reasonably conclude that she had been intoxicated to the point of being unable to consent and that Hernandez should have known of her condition. See State v. Godsoe, 107 Ariz. 367, 368-69 (1971) (holding victim's testimony alone is sufficient to sustain conviction as long as it is "reasonable, consistent and not inherently impossible or incredible and not inspired by malice"). The fact that M.P. had no recollection of how she had been injured further supports a conclusion that she was too intoxicated to consent and Hernandez knew this or should have known it. To the extent that Hernandez argues M.P.'s blackout prevented her from being able to "offer enough of details to determine" the reliability, consistency, or probability of her testimony, this goes to the weight of the evidence, which is the province of the jury, and not to the sufficiency of the evidence. See State v. Williams, 209 Ariz. 228, ¶ 6 (App. 2004) (finding sufficient evidence to support conviction and concluding "it was for the jury to weigh the evidence and determine the credibility of the witnesses"). In sum, although the evidence was largely circumstantial, it was nonetheless sufficient to support Hernandez's sexual-abuse conviction. See State v. Stuard, 176 Ariz. 589, 603 (1993) ("Arizona law makes no distinction between circumstantial and direct evidence.").
¶17 In a somewhat related issue, Hernandez argues the trial court erred in instructing the jury on the lesser-included offense of sexual abuse because the state did not present sufficient evidence "proving that [Hernandez] acted knowingly and without consent beyond a reasonable doubt." "We review the trial court's decision to give or refuse a jury instruction for an abuse of discretion." State v. Hurley, 197 Ariz. 400, ¶ 9 (App. 2000).
¶18 While the trial court was finalizing jury instructions, the state requested and the court granted the sexual-abuse instruction as a lesser-included offense as to Count One, sexual assault by vaginal penetration. Hernandez contends that although sexual abuse is a lesser-included offense of sexual assault, see State v. Wise, 127 Ariz. 477, 479 (App. 1983), it is not "necessarily included" in this case because the state did not present sufficient evidence to support a conviction of sexual abuse. He thus argues that the court abused its discretion by giving the instruction pursuant to Rule 21.4(a)(1), Ariz. R. Crim. P. (requiring a court to give instruction of "all offenses necessarily included in the offense charged" when "request[ed] by any party and if supported by the evidence"). However, as discussed above, the state presented sufficient evidence to support a sexual-abuse conviction for Count One. The court did not abuse its discretion by giving the instruction.
The court also granted the state's request for the instruction on the lesser-included offense of attempted sexual assault as to Count Two. But because Hernandez was acquitted of this offense, and he did not raise this issue on appeal, we need not address it. See State v. LeMaster, 137 Ariz. 159, 165 (App. 1983) (explaining that appellate court need not address issue where jury acquits defendant of offense). --------
Disposition
¶19 For the foregoing reasons, we affirm Hernandez's conviction and sentence.