Opinion
2 CA-CR 2022-0180
08-02-2024
The State of Arizona, Appellee, v. John Johnson, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Jacob Lines, Assistant Attorney General, Tucson Counsel for Appellee Law Offices of Thomas Jacobs, Tucson By Thomas Jacobs Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR201900110 The Honorable Howard Fell, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Jacob Lines, Assistant Attorney General, Tucson Counsel for Appellee
Law Offices of Thomas Jacobs, Tucson By Thomas Jacobs Counsel for Appellant
Judge Kelly authored the decision of the Court, in which Presiding Judge O'Neil concurred and Judge Eckerstrom concurred in part and dissented in part.
MEMORANDUM DECISION
Kelly, Judge
¶1 John Johnson appeals from his conviction and sentence for attempted sexual conduct with a minor under the age of fifteen. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 "We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining" Johnson's conviction. State v. Allen, 235 Ariz. 72, ¶ 2 (App. 2014). One day in 1999 or 2000, when B.J. was fourteen years old, she stayed home from school because she was sick. Her stepfather, Johnson, stayed home with her. After Johnson gave her two doses of NyQuil, B.J. started to feel scared and confused by the way Johnson was behaving, so she went to her brother's bedroom. A short time later, Johnson entered her brother's bedroom, "told [her] that [they] were going to have sex," and started to remove her clothes. B.J. fought and begged with Johnson as he tried to rape her. She eventually convinced him to stop, and he forced her to take a shower and then swear on a Bible that she would never tell anyone what happened. Johnson described to her the manner in which he would kill both her and her brother if she ever told.
¶3 In 2001, when B.J. was sixteen years old, she disclosed the incident to her mother in the presence of Johnson and P.G., her boyfriend.Then, in 2018, while Johnson and B.J.'s mother were separated amidst divorce proceedings, B.J. received a Facebook message from Johnson that she perceived as a "veiled threat." She called the police and reported both the Facebook message and that Johnson molested her when she was fourteen years old.
P.G. was the victim's boyfriend in 2001 and her husband at the time of trial in 2022.
¶4 In 2019, Johnson was indicted for one count of attempted sexual conduct with a minor under the age of fifteen. In August 2022, a jury was unable to reach a verdict as to this offense, resulting in a mistrial. In October 2022, Johnson was tried again, and the jury found him guilty of attempted sexual conduct with a minor under fifteen. The trial court suspended the imposition of sentence and placed Johnson on a ten-year term of probation which included six months in jail, and ordered him to register as a sex offender. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Johnson was also charged in the same indictment with five other counts unrelated to the charge he was ultimately convicted of. The other counts were either severed or dismissed and the state proceeded to trial only on the attempted sexual conduct charge.
Discussion
¶5 Johnson raises four issues on appeal. He argues that the trial court erred in precluding him from admitting into evidence a petition for dissolution of marriage he contends was filed by B.J.'s mother in 2017, and in denying his request to obtain B.J.'s therapy records for in camera review. He additionally asserts that the court erred in admitting Johnson's Facebook message into evidence and in permitting P.G. to testify regarding B.J.'s 2001 disclosure.
Preclusion of Divorce Petition
¶6 Johnson argues that the trial court erred during his first trial by refusing to take judicial notice of the date that B.J.'s mother filed a petition for dissolution of marriage against him, which he asserts occurred in 2017, and alternatively in precluding him from admitting the petition as evidence in the second trial. Johnson argues this evidence was necessary to show "the correct time frame of divorce proceedings" between Johnson and B.J.'s mother, which he contends was "directly relevant to the defense argument that B.J.'s report in 2018 was fabricated in order to support her mother during the divorce." "We review a trial court's ruling on the admissibility of evidence for an abuse of discretion." State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 7 (App. 2013). However, we must first determine whether Johnson properly preserved this issue for appeal. See State v. Romero, 248 Ariz. 601, ¶ 7 (App. 2020). Failure to object to an alleged error at trial waives all but fundamental, prejudicial error review of the issue. State v. Escalante, 245 Ariz. 135, ¶ 12 (2018).
¶7 During his cross examination of B.J. in the first trial, Johnson attempted to elicit testimony from her confirming that she was aware her mother had filed for divorce before she called the police in 2018 to report the offense. Johnson requested that the trial court take judicial notice of the filing date of the divorce petition after B.J. was unable to testify as to when her mother filed for divorce. The court sustained the state's objection and declined to take judicial notice of the date the petition was filed. Through further questioning, B.J. acknowledged that she had heard her mother and Johnson were separating, but that her mother "was always threatening to get divorced from him." During closing arguments, Johnson argued that B.J. had fabricated the offense in order to aid her mother in the divorce proceedings.
¶8 Following the mistrial, Johnson urged the trial court to allow him to introduce the dissolution petition as evidence in the upcoming retrial. The state objected, and the court did not rule on the matter, informing the parties that it would "think about that one." During the second trial, B.J. testified that she was not certain exactly when her mother had filed for divorce, but she admitted both that she was aware of the divorce proceedings when she made her initial report to law enforcement, and that she included mention of the divorce in that report. Johnson made no further attempt to admit the dissolution petition, seek judicial notice of it, or obtain any other ruling on the matter.
¶9 Johnson asserts he has preserved the issue for appeal because the trial court did not explicitly rescind its ruling from the first trial, which remained "the law of the case." Conversely, the state argues that because Johnson did not object during the second trial and failed to obtain a ruling below, he did not preserve this issue and must therefore demonstrate fundamental, prejudicial error.
¶10 Here, Johnson asked the trial court to take judicial notice of the petition in the first trial, his request was denied, and after that trial resulted in a hung jury, Johnson raised the issue again. Johnson properly preserved this issue below by obtaining a ruling on the admissibility of the evidence during the first trial. See State v. Moody, 208 Ariz. 424, ¶ 39 (2004) ("Challenges to the admissibility of evidence can be preserved only by a motion to preclude that evidence or by a specific, contemporaneous objection to its admission."). We therefore review for an abuse of discretion. See Buccheri-Bianca, 233 Ariz. 324, ¶ 7. However, "[t]o warrant reversal, any error must also have prejudiced" Johnson. State v. Roque, 213 Ariz. 193, ¶ 117 (2006), overruled on other grounds by State v. Escalante-Orozco, 241 Ariz. 254, ¶¶ 13-14 (2017).
¶11 Even if Johnson could establish that the trial court abused its discretion in refusing to take judicial notice of the filing date of the petition, Johnson has failed to explain how this purported error prejudiced him. See Roque, 213 Ariz. 193, ¶ 118 ("Even assuming arguendo that the judge abused his discretion in excluding this statement, [the defendant] suffered no prejudice."). B.J.'s testimony during the second trial established that she was not only aware of the divorce proceedings at the time she made her report to law enforcement, but also that she disclosed the issue to law enforcement in making that report. This testimony supported Johnson's theory of the case, that B.J. fabricated the attempted sexual assault in order to "support her mother during the divorce" such that he was free to argue that theory to the jury. Johnson fails to articulate how, under these facts, he was prejudiced by failure to admit the petition for dissolution itself or the specific date on which it was filed.
Motion to Compel
¶12 Next, Johnson argues that the trial court erred in denying his request to obtain B.J.'s therapy records for in camera review. "A trial court has broad discretion over discovery matters, and we will not disturb its rulings on those matters absent an abuse of that discretion." State v. Kellywood, 246 Ariz. 45, ¶ 5 (App. 2018) (quoting State v. Fields, 196 Ariz. 580, ¶ 4 (App. 1999)).
¶13 In September 2022, Johnson filed a motion to compel disclosure of B.J.'s therapy records. Johnson argued that because the state intended to call Pima County Attorney's Office Detective Calvin Fuller, who took a recorded statement from B.J. in 2019 and would testify that B.J. described her 2018 police report as "the first time [she] told anybody other than therapists, psychiatrist, family, or friends what had happened to [her] in [her] youth," he was entitled to all of her therapy records for impeachment purposes. He requested "all records of [B.J.] reporting this incident in 1999 to mental health professionals." At the hearing on the motion, the state informed the trial court that it would not call the detective to testify, or inquire into B.J.'s alleged disclosure to a therapist. The court then asked Johnson's counsel if the issue was moot, and he replied, "Yes, [y]our [h]onor." Johnson later filed a renewed motion to compel disclosure, requesting an in camera review of B.J.'s therapy records and asserting that the issue was no longer moot because Johnson himself now expected to call Detective Fuller "to impeach" B.J.'s statements. The court denied Johnson's motion.
¶14 Crime victims in Arizona have constitutional rights under Arizona's Victims' Bill of Rights. Kellywood, 246 Ariz. 45, ¶ 7; Ariz. Const. art. II, § 2.1. This includes the right to refuse a discovery request by the defendant and the right to refuse to turn over medical records. Ariz. Const. art. II, § 2.1(A)(5); Ariz. R. Crim. P. 39(b)(12); see also State v. Sarullo, 219 Ariz. 431, ¶ 20 (App. 2008). A victim's right to deny the defendant access to her medical records is not without exception, however. See Sarullo, 219 Ariz. 431, ¶ 20. When a defendant's due-process right to disclosure conflicts with a victim's constitutional or statutory privilege, the disclosure may be produced for in camera review if the defendant shows "a reasonable possibility that the information sought includes evidence that would be material to the defense or necessary to cross-examine a witness." R.S. v. Thompson, 251 Ariz. 111, ¶ 1 (2021). However, "the burden of demonstrating a 'reasonable possibility' is not insubstantial, and necessarily requires more than conclusory assertions or speculation on the part of the requesting party." Id. ¶ 23 (quoting Kellywood, 246 Ariz. 45, ¶ 9).
¶15 Johnson attached to his motion a transcript of B.J.'s 2019 recorded statement to Detective Fuller, which occurred several months after Johnson's arrest and indictment. B.J. explained to Fuller that she called the police the day after receiving the April 2018 Facebook message because she wanted to report it and intended to "get a restraining order." She explained:
When I was making the statement, I had to explain why such . . . I mean, the message seems fine, but why it was a veiled threat. How could I explain to them why I was freaking out, why I was scared? So, I had to tell them and it was the first time I told anybody other than therapists, psychiatrists, family, or friends what had happened to me in my youth, and honestly . . . and throughout my adulthood, the manipulation and the abuse.
Later in the interview, Fuller asked B.J. if she specifically told the deputy that she was sexually molested, and her response was, "I believe I did. I believe I just told him that I was abused by [Johnson] in the past. I'm not certain."
¶16 Johnson's motion mischaracterized this portion of the interview as an affirmative-and disprovable-statement by B.J. that she had told medical professionals that Johnson attempted to sexually assault her in 1999. Johnson reasons on appeal, as he did below, that if B.J.'s medical records contain no mention of this specific incident when B.J. was fourteen, then her 2019 statement to Detective Fuller was necessarily a false statement and he should be entitled to use what is not in her records to impeach her. But this is a logical fallacy that distorts what she actually said. B.J. stated broadly, and in the context of explaining why she perceived the 2018 Facebook message as a threat, that her initial phone call to law enforcement was the first time she had reported "what happened to me in my youth" and "throughout my adulthood" to someone other than therapists, psychiatrists, family or friends. Moreover, this 2019 statement described Johnson's conduct generally as "manipulation" and "abuse," rather than identifying a specific instance of attempted sexual assault occurring when she was fourteen.
¶17 Our dissenting colleague adopts Johnson's reasoning, as well as his argument that A.R.S. § 13-3620(A)(1) provides additional support for the conclusion that B.J. must not have told any medical provider about the 1999 incident because that provider would necessarily have then reported it to law enforcement. Section 13-3620(A)(1) provides that behavioral health professionals must report to law enforcement if they reasonably believe that a "minor is or has been the victim of physical injury, abuse, child abuse, a reportable offense or neglect." As we have noted, B.J. did not expressly state in her interview that she had ever told a medical provider about the incident. Regardless, this argument relies on speculative assumptions, including that B.J. would have clarified that the incident in question occurred when she was a minor, as opposed to simply "in [her] youth" or during her "adulthood," and that every behavioral health professional who treated B.J. in the twenty years between 1999 and 2019 maintained written records from every therapy session. If either of these assumptions is incorrect, allowing Johnson to "impeach" B.J. with her own inability to produce a medical record - authored by a person over whose record-keeping habits she had no control-documenting the 1999 incident would be confusing, misleading, and ultimately unfair. See Ariz. Const. art. II, § 2.1 (crime victims have a right to be "treated with fairness, respect, and dignity").
¶18 Accordingly, given the breadth of the specific statement Johnson claims he sought to impeach, we conclude there was not a reasonable possibility that B.J.'s confidential medical records contained information material to the defense or necessary to cross-examine her. Simply put, the absence of any mention of the 1999 incident in her medical records would not have proven that her statement to Detective Fuller was false, it would have proven only that the behavioral health professionals whose records were actually maintained, preserved, and produced in response to Johnson's motion did not include written mention of it. Johnson's request here relied on "conclusory assertions," Kellywood, 246 Ariz. 45, ¶ 9, and represents the sort of broad and speculative request our supreme court has deemed insufficient to show he is constitutionally entitled to B.J.'s privileged records, see Thompson, 251 Ariz. 111, ¶ 30. The trial court therefore did not abuse its discretion in denying Johnson's motion to compel disclosure of the victim's therapy records.
Admissibility of Facebook Message
¶19 Johnson next argues that the trial court erred in admitting a Facebook message sent from Johnson to B.J. because the message did not contain sufficient indicia of authorship. We review a trial court's authentication ruling, which determines whether sufficient "evidence exists from which the jury could reasonably conclude that it is authentic," for an abuse of discretion. State v. Fell, 242 Ariz. 134, ¶¶ 5-6 (App. 2017) (quoting State v. Lavers, 168 Ariz. 376, 386 (1991)).
¶20 Before the second trial, Johnson filed a motion in limine to preclude a Facebook message purportedly sent from Johnson to B.J. for lack of foundation. B.J. testified that the message, which she received in April 2018 stated, "No one likes a liar. Why don't you just do like you said you were going to do and live as far away as possible? Another state would be best." Johnson argued that there was insufficient evidence to show that he sent the message because it was not certified by Facebook, it was non-dispositive that the account that sent the message used Johnson's name, and the profile picture was not of Johnson himself. The trial court denied the motion, concluding that the Facebook message satisfied the test for admissibility.
¶21 Authentication of an item requires that the proponent "produce evidence sufficient to support a finding that the item is what the proponent claims it is." Ariz. R. Evid. 901(a). If the state claims the message was sent by the defendant, the state must "provide 'some indicia of authorship' to satisfy its authentication obligation before the message [can] be admitted into evidence." State v. Griffith, 247 Ariz. 361, ¶ 11 (App. 2019) (quoting Fell, 242 Ariz. 134, ¶ 9). Under Rule 901, authenticity may be established by numerous means, including, "[t]estimony that an item is what it is claimed to be," and "[t]he appearance, contents, [and] substance" of the piece of evidence, "taken together with all the circumstances." Ariz. R. Evid. 901(b)(1), (4). The trial court "does not determine whether the evidence is authentic, but only whether evidence exists from which the jury could reasonably conclude that it is authentic." State v. Damper, 223 Ariz. 572, ¶ 18 (App. 2010) (quoting Lavers, 168 Ariz. at 386). Any remaining uncertainty goes to the weight rather than the admissibility of the evidence. Fell, 242 Ariz. 134, ¶ 6.
¶22 Here, the record supports the trial court's determination that the jury could reasonably conclude Johnson sent the Facebook message. See Damper, 223 Ariz. 572, ¶ 19. The message was sent from an account user with the name of John Johnson. The account's profile contained photographs that B.J. recognized as photographs of her mother, herself, and her brothers. To the extent that Johnson argues that the only evidence of authorship was that the message was sent from "what appeared to be John Johnson's [Facebook] account," this argument goes to the weight of the evidence and not its admissibility. See Fell, 242 Ariz. 134, ¶ 6. Accordingly, the court did not abuse its discretion in finding there was sufficient indicia of authorship to admit the Facebook message into evidence. See id. ¶ 5.
Admissibility of P.G.'s Testimony
¶23 Last, Johnson argues that the trial court erred in reconsidering its previous ruling from the first trial and allowing the victim's husband, P.G., to testify in the second trial that he had witnessed B.J.'s 2001 disclosure of Johnson's attempted sexual assault. We review a trial court's reconsideration of an earlier ruling under Rule 16.1(d), Ariz. R. Crim. P., for an abuse of discretion. State v. King, 180 Ariz. 268, 279 (1994).
¶24 Before the first trial, Johnson moved to preclude P.G. from testifying about B.J.'s 2001 disclosure. The trial court granted the motion and precluded P.G. from testifying that he witnessed the 2001 disclosure, as its "probative value does not outweigh the nature of unfair prejudice." During the first trial, B.J. was allowed to testify that P.G. was present when she disclosed the offense to her mother in 2001, but P.G. was not permitted to testify himself that he was present when she did. Then, during his closing argument, Johnson argued that there was no evidence, such as "witnesses that were supposedly there," to support B.J.'s contention that she disclosed the offense to her mother in 2001.
¶25 Following the mistrial, the state asked the trial court to reconsider its ruling as to P.G.'s testimony under Rule 16.1(d). The state argued that, given Johnson's argument that no witnesses were present to corroborate B.J.'s contention that she disclosed this offense to her mother in 2001, P.G. should be permitted to testify that he was present for that disclosure, as this testimony was relevant and more probative than prejudicial. Johnson objected, and during the hearing on the motion, the court explained that it previously misunderstood the nature and purpose of P.G.'s testimony in ruling to preclude it. The court stated that it would have permitted P.G. to testify had it understood that his testimony was limited to merely being present during the 2001 disclosure. The court granted the state's motion to reconsider, and ruled that P.G. could testify that he was present when B.J. disclosed the incident to her mother in 2001.
¶26 Johnson now argues that P.G.'s testimony should have been precluded during the second trial because, he contends, the trial court never changed its previous Rule 403, Ariz. R. Evid., ruling that the evidence was more prejudicial than probative, and its first ruling was the law of the case. "'Law of the case' concerns the practice of refusing to reopen questions previously decided in the same case by the same court or a higher appellate court." State v. Whelan, 208 Ariz. 168, ¶ 8 (App. 2004) (emphasis added in Whelan) (quoting Davis v. Davis, 195 Ariz. 158, ¶ 13 (App. 1999)). Consistent with this principle, Rule 16.1(d) provides that "[a] court may not reconsider an issue previously decided in the case except for good cause." Therefore, "[a] court does not lack the power to change a ruling simply because it ruled on the question at an earlier stage." King, 180 Ariz. at 279 (quoting Love v. Farmers Ins. Grp., 121 Ariz. 71, 73 (App. 1978)). Moreover, a court "may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice." Ariz. R. Evid. 403.
¶27 Here, the trial court had good cause to reconsider its previous ruling precluding P.G. from testifying about the 2001 disclosure. As the court observed, B.J. testified that P.G. was present during her 2001 disclosure. However, with no witnesses to confirm this, Johnson took the opportunity to argue to the jury that the disclosure did not actually occur. After observing the first trial and in response to the state's motion, the court reconsidered its ruling to permit P.G.'s limited testimony, stating that if the court had "understood that the only thing that the [s]tate wanted to do was to indicate that [P.G.] was present when [B.J.] made a disclosure, . . . [it] would have permitted it" in the first trial. 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). And because Rule 16.1(d) empowered the court to reconsider its ruling for good cause, the court did not abuse its discretion by changing this ruling after the first trial. See King, 180 Ariz. at 279.
Johnson does not argue that the trial court otherwise erred in allowing P.G. to testify.
Disposition
¶28 We affirm Johnson's conviction and sentence.
ECKERSTROM, Judge, concurring in part and dissenting in part:
¶29 In this case, the state indicted the defendant for a sexual assault that allegedly occurred nearly two decades before the victim first reported it to the police. Given that delay, neither party could, contemporaneous with the offense, collect physical or eyewitness evidence to either corroborate or refute the victim's allegations. The state presented the testimony of a "cold" expert, Wendy Dutton, to explain why some victims may delay reporting sexual assault. The state's case, then, necessarily turned entirely on whether the testimony of the victim, B.J., could be believed beyond a reasonable doubt notwithstanding that she had delayed so long in reporting it.
¶30 Johnson maintained that B.J. had fabricated the allegations in 2018 to empower her mother's then-active divorce case against him. To support that theory of the case, Johnson filed pre-trial motions seeking an in camera inspection of B.J.'s therapy and psychiatric records. If such records did not memorialize any mention by B.J. of a traumatic sexual assault, it would support Johnson's theory that the allegations were a motivated fabrication-and constitute a basis for impeaching B.J.'s claims.
¶31 Recognizing that an accused has a fundamental constitutional right to present a defense, our controlling jurisprudence compels our trial courts to grant such motions if the defendant can establish a "reasonable possibility" that the exculpatory information might be found in the disclosure. See R.S. v. Thompson (Vanders II), 251 Ariz. 111, ¶¶ 16, 30 (2021). I would conclude that Johnson's discovery request cleared this threshold and was neither speculative nor overly broad.
¶32 Let us first be clear about the challenge Johnson faced in factually disputing B.J.'s delayed accusations. Given the delay in reporting, Johnson possessed few avenues-other than reference to records of long past events-to factually investigate them. In seeking the disclosure of the records for in camera inspection, Johnson engaged in no speculation that B.J. had attended therapy and had received the services of a psychiatrist during the pertinent time window: B.J. clearly acknowledged to police investigators that she had spoken with therapists and psychiatrists in the years after the alleged incident. Nor was Johnson's motion based on speculation that B.J. had addressed topics related to Johnson during those sessions: B.J. expressly told police investigators she had spoken with her therapists about Johnson's alleged abusive behavior toward her.
¶33 Johnson's request for discovery was neither exploratory nor unfocused. It did not seek to broadly mine for evidence of mental imbalance. Cf. State v. Dunbar, 249 Ariz. 37, ¶ 29 (App. 2020) (request for mental health records spanning fifteen years and multiple states); State v. Kellywood, 246 Ariz. 45, ¶ 10 (App. 2018) (request failed to identify whether victim actually treated by medical provider). Rather, Johnson asked only that the trial court review those records regarding whether B.J. had mentioned any sexual assault by Johnson. That narrow inquiry targeted information directly relevant to the central issue in the case. If, as B.J. maintained to the police investigator, she had indeed discussed Johnson's abusive relationship with her therapists, she would almost certainly have referenced any traumatic sexual assaults by Johnson during that process.
¶34 Far from a fishing expedition then, Johnson's request only sought to explore B.J.'s own claims about what she had previously told others about Johnson's abuse of her. Cf. Dunbar, 249 Ariz. 37, ¶ 29; Kellywood, 246 Ariz. 45, ¶ 10. As my colleagues correctly observe, had those treatment notes contained entries indicating B.J. had indeed disclosed a sexual assault by Johnson long before 2018, those entries would definitively rebut Johnson's defense of recent fabrication. But, the absence of such entries would provide equally strong circumstantial evidence that B.J. had either exaggerated or fabricated the incident. It would demonstrate that B.J. had failed to mention, in a private therapeutic context, an intensely traumatic event that would necessarily be central to any discussion of Johnson's allegedly abusive relationship with her. In a close case focused both on the credibility of B.J. and whether she had recently fabricated the allegation, evidence of that failure could alone have created a reasonable doubt of Johnson's guilt.
At a previous trial with essentially the same evidence presented as in the instant case, the jury could not reach a verdict.
In their analysis, my colleagues focus narrowly on Johnson's use of the potential evidence to impeach B.J. for making an untruthful statement to the detective. In this vein, my colleagues correctly observe B.J. did not expressly state to the officer that she had told her therapists about the sexual assault, although that is arguably what she meant in context. That analysis fails to address a far more powerful exculpatory impact of any failure by B.J. to mention a sexual assault to therapists. This would constitute compelling substantive evidence that the sexual assault was a recent embellishment.
¶35 Johnson had good reason to believe that the records might not corroborate B.J. but rather reflect her failure to report the incident to her therapists. First, the state, which presumably had fewer obstacles to gaining the cooperation of the victim, failed to present evidence affirmatively demonstrating B.J.'s report of the incident to any therapist. The state had strong incentives for presenting such evidence if it existed: a prior jury had been unable to reach a verdict based on B.J.'s testimony. Such evidence would both corroborate B.J.'s testimony and definitively rebut the defense theory of the case.
¶36 Further, under all versions of the statute operative since the date of the alleged incident, behavioral health professionals possessed a duty to report their concerns to law enforcement if they reasonably believed that a minor "is or has been" the victim of a sexual assault. See, e.g., 1998 Ariz. Sess. Laws, ch. 276, § 37; 2003 Ariz. Sess. Laws, ch. 222, § 2; A.R.S. § 13-3620(A)(1) (requiring reporting of reasonable belief of incident involving a minor victimized by "child abuse" or "a reportable offense"). Although the versions of the statute operative since B.J.'s adulthood do not clarify whether this includes a duty to report an adult's discussion of a sexual assault that allegedly occurred during their minority, all versions of the statute would apply to any therapy Johnson attended during her minority: that would include any therapy she received during the first several years after the alleged incident. A therapist who fails to report a sexual assault on a minor commits a Class 6 felony. A.R.S. § 13-3620(O). The state presented no evidence that any such reports had been made. This gave Johnson another sound reason to believe that B.J. may have failed to describe any sexual assault to her therapists.
Although no Arizona court has addressed the applicability of the post-2003 version of § 13-3620(A)(1) to a young adult's report of abuse during their minority, the public policy of exposing potential child predators to law enforcement would not expire when the victim turns eighteen. By its plain language, that statute requires therapists to report the suspected victimization of a minor that has occurred in the past. And it does not expressly exclude a duty to report a reasonable belief that a young adult was victimized while a minor. On the other hand, the remainder of the statute's requirements appear to contemplate the welfare and protection of those who are actual minors at the time of report. See, e.g., § 13-3620(D), (F) (contemplating that reports immediately trigger protection of victims who are still minors at time of report).
¶37 As our supreme court has emphasized in this very context, criminal defendants have a fundamental due process right to collect evidence to defend themselves. See Vanders II, 251 Ariz. 111, ¶¶ 13-14 (denying defendant meaningful opportunity to present complete defense is "a denial of fundamental fairness, shocking to the universal sense of justice" (quoting Oshrin v. Coulter, 142 Ariz. 109, 111 (1984))). That right sometimes includes probing the presumptively private records of their accusers by a process designed to minimize the intrusion when exculpatory evidence might reasonably be found there. Id. ¶¶ 17, 21, 24. I would hold that the trial court erred in depriving Johnson of that opportunity.
¶38 The majority contends that this conclusion is premised on speculative assumptions about the potential exculpatory nature of the records. Specifically, it observes that B.J.'s practitioners might not have generated or maintained comprehensive treatment notes from every therapy session. Further, it posits that B.J. might not have clarified to her therapists that the incident took place while she was a minor. But, the majority overlooks that a defendant need demonstrate only a "reasonable possibility" that the treatment notes might reveal exculpatory evidence; a defendant need not demonstrate a certainty that they would do so. See id. ¶¶ 16, 30. It also overlooks that evidence from those entries could be relevant and exculpatory even if, like most evidence presented in a criminal trial, imperfect. And, once found relevant and exculpatory, it is primarily the jury's role, not the court's, to assess the weight of that evidence in light of any counter arguments the opposing party may marshal. See Ariz. R. Evid. 403 (court may exclude relevant evidence only if its probative value "substantially outweighed" by danger of misleading the jury).
If an in camera inspection had disclosed the absence of any treatment notes mentioning the incident-in a context where mention would be expected-nothing would have prevented either party from conducting further investigation, supervised by the court, into the notation habits of the practitioner or practitioners in question. Thus, the probative value of the absence of those notations could be readily clarified before trial by further discovery.
¶39 The majority also conveys skepticism that B.J.'s mention of the charged incident to therapists would necessarily be memorialized in treatment notes. But at trial, B.J. described in graphic detail an assault by Johnson that would have been acutely traumatic for any child to endure. Many years later, when first reporting the incident to law enforcement, B.J. asserted that she had previously discussed with her therapists Johnson's abusive relationship toward her, including events occurring "in [her] youth." Given that context, a reasonable jury could conclude that any such discussion with therapists by B.J., focused on Johnson's abuse of her, would include mention of such a traumatic and pivotal event. Notably, B.J. testified that Johnson's attempted sexual assault of her fundamentally and permanently transformed her relationship with Johnson-from admiration to fear. A reasonable jury could also conclude that if a therapist generated any treatment notes at all, those notes would include mention of such an acutely traumatic event which so defined her subsequent relationship with Johnson.
¶40 Accordingly, I would remand to the trial court to conduct an in camera review of the records in question. I would direct the court to grant a new trial if that review, or any subsequent investigation triggered by that review, evidences that B.J. failed to report the incident to her behavioral health practitioners. If that review corroborates B.J.'s claims that she reported the incident to her therapists, Johnson's convictions and sentences should not be disturbed. I concur with the well-drafted majority opinion in all other respects.