Opinion
No. 2 CA-CR 2018-0128
04-25-2019
THE STATE OF ARIZONA, Appellee, v. LUIS JESUS LOPEZ, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Vanessa C. Moss, 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NOT FOR PUBLICATION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. CR20153160001
The Honorable Howard Fell, Judge Pro Tempore
The Honorable Richard D. Nichols, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee Vanessa C. Moss, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. VÁSQUEZ, Judge:
¶1 Luis Lopez appeals from his convictions and sentences for sexual abuse of a minor under the age of fifteen, child molestation, and six counts of sexual conduct with a minor under the age of fourteen. He argues the statute of limitations had lapsed before his indictment and the trial court therefore erred by denying his motion to dismiss. Finding no error, we affirm.
¶2 In 2015, the state charged Lopez with numerous sexual offenses after the victim, his niece, reported his years-long sexual abuse, which had ended in 1995. He was also indicted for offenses committed against the victim's older sister. Lopez moved to dismiss the indictment, arguing the statute of limitations had lapsed because the state failed to investigate reports by third parties made to police in 2007 that the sisters disclosed sexual abuse by Lopez.
Lopez also grounded his motion in reports made to Child Protective Services in 1994. However, he does not argue that the 1994 reports are material to the argument he raises on appeal.
¶3 The trial court held an evidentiary hearing. The victim testified she would have denied the abuse had she been questioned by police in 2007. Her sister testified she did not know whether she would have admitted the abuse, but acknowledged she would have done so had investigators told her about Lopez's abuse of the victim. The court denied Lopez's motion for the charges involving the victim but granted it as to the charges involving her sister. After a jury trial, Lopez was convicted as described above; the court sentenced him to concurrent and consecutive prison terms totaling 137 years. This appeal followed.
¶4 Section 13-107(B)(1), A.R.S., defines the applicable statute of limitations in this case—seven years—and provides that the statute does not begin to accrue until the state actually discovers the offenses or should have discovered them "with the exercise of reasonable diligence." Lopez argues on appeal that, given the state had been informed of Lopez's conduct, its failure to further investigate cannot constitute reasonable diligence and that the information police received in 2007 constitutes actual discovery of Lopez's offenses. He also suggests the purpose of the statute and his constitutional rights were "undermin[ed]" because he had no way to refute the victim's "highly subjective and biased 'hindsight' about [her] hypothetical reaction to police contact ten years prior."
Lopez states in his brief that the parties agreed below that the "pre-1997" version of § 13-107 applies to Lopez's offenses. We need not resolve that question because the statute has not substantively changed as it applies to this case. See 1985 Ariz. Sess. Laws, ch. 223, § 1.
¶5 We review the trial court's ruling for an abuse of discretion, including its determination "whether the state acted with reasonable diligence." State v. Jackson, 208 Ariz. 56, ¶ 12 (App. 2004). We review legal issues do novo, State v. Gay, 214 Ariz. 214, ¶ 4 (App. 2007), but view the evidence presented at the motion hearing "in the light most favorable to upholding the trial court's ruling," Jackson, 208 Ariz. 56, ¶ 2. If a defendant "presents some reasonable evidence to support" a claim the statute of limitations applies, "the state bears the burden of establishing by a preponderance of the evidence that the prosecution is not time barred." Id. ¶ 26.
¶6 This court addressed a similar issue in Jackson, in which police officers had received information in 1994 from third parties that Jackson's daughter had said he "was doing 'nasty things' and 'messing with her.'" Id. ¶¶ 2, 4. When questioned by police, however, she "denied having made any such statements" and denied any sexual activity. Id. ¶ 3. In 2000, officers received another report that Jackson's daughter had reported sexual abuse had occurred in 1994, but took no further action. Id. ¶ 6. Two years later, during an investigation regarding Jackson's sexual abuse of his son, Jackson's daughter reported he had repeatedly sexually abused her, and Jackson admitted molesting her once or twice a week from 1989 through 1992. Id. ¶ 7.
¶7 We determined the statute would begin to run only when the state "has actually discovered or through the exercise of reasonable diligence should have discovered that the suspect probably committed the offense in question," that is, when the state has probable cause to believe the offense has been committed and the defendant committed it. Id. ¶¶ 28, 30-31. We additionally noted that, as a result, "the state's failure to adequately investigate or otherwise exercise reasonable diligence, in and of itself, does not bar a prosecution." Id. ¶ 41. And, "[m]ere suspicion or conjecture that a suspect might have committed an offense is insufficient to trigger the limitation period." Id. We concluded the record could not support a conclusion the state would have discovered Jackson's crimes earlier, noting it was "devoid of any evidence that, had the police interviewed [the victim] at school or reported the case to [Child Protective Services], either Jackson or [the victim] probably would have admitted that the sexual abuse had occurred." Id. ¶ 43.
¶8 Despite the state's reliance on Jackson below, Lopez does not meaningfully address it on review. We find it controlling. Uncorroborated statements that the victims had reported abuse to third parties do not establish probable cause. See id. ¶ 31 ("Probable cause exists 'when reasonably trustworthy information and circumstance would lead a person of reasonable caution to believe that a suspect has committed an offense.'" (quoting State v. Hoskins, 199 Ariz. 127, ¶ 30 (2000))). Despite claiming the 2007 uncorroborated information constituted "actual discovery," Lopez does not argue that it established probable cause. The only evidence in the record was that the victim would not have cooperated with an investigation, and Lopez does not assert there is other evidence that could have supported charges against him. In light of the state's burden of proof, that testimony is more than sufficient to support the trial court's conclusion the state would not have discovered Lopez's offenses against the victim within the meaning of § 13-107(B) had it investigated more thoroughly in 2007.
¶9 Nor do we find convincing Lopez's claim that the purpose of the statute of limitations or fairness principles were undermined because the state did not more thoroughly investigate. We implicitly rejected that argument in Jackson, concluding the inadequacy of the state's investigation matters only if an adequate investigation would have uncovered sufficient evidence to establish probable cause. See 208 Ariz. 56, ¶ 41. Lopez has not explained how requiring the state to pursue a fruitless investigation violates the statute's purpose or his constitutional rights. Thus, we do not address this argument further. See State v. Bolton, 182 Ariz. 290, 298 (1995) (insufficient argument waives claim on appeal).
As this court observed in Taylor v. Cruikshank, the United States Supreme Court has explained the statute of limitations generally "is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past." 214 Ariz. 40, ¶ 20 (App. 2006) (quoting United States v. Marion, 404 U.S. 307, 323 (1971)).
¶10 We also reject Lopez's suggestion that the proceeding against him was somehow unfair because he could not refute the victim's testimony that she would not have disclosed Lopez's abuse if questioned by police. That the state's evidence is strong does not make a proceeding unfair, nor does it—as Lopez suggests—somehow shift the burden of proof. Lopez has cited no authority suggesting the trial court was not entitled to find credible the victim's testimony about how she would have acted. See Bolton, 182 Ariz. at 298. Indeed, her testimony is corroborated by 2007 and 2017 statements by witnesses that the victim had denied at that time the abuse had occurred. The trial court did not abuse its discretion in denying Lopez's motion to dismiss.
We do not, however, address the state's suggestion that the trial court erred by requiring the state to show the victim "would have continued to deny the abuse had the police personally questioned [her]" despite having been told she would deny the allegations. --------
¶11 We affirm Lopez's convictions and sentences.