Opinion
No. 1 CA-CR 18-0594
12-22-2020
STATE OF ARIZONA, Appellee, v. JACKSON WILLIAM OSBORNE, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Nicholas Chapman-Hushek Counsel for Appellee The Nolan Law Firm PLLC, Mesa By Todd E. Nolan 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
No. CR2016-150099-001
The Honorable Joseph P. Mikitish, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee
The Nolan Law Firm PLLC, Mesa
By Todd E. Nolan
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in which Judge David B. Gass and Judge Michael J. Brown joined.
PERKINS, Judge :
¶1 Jackson William Osborne appeals his convictions and sentences for three counts of child molestation and three counts of sexual abuse. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 The victims in this case, E.R. (born April 2004) and M.R. (born February 1999), are Osborne's granddaughters. In September 2015, Osborne called his daughter, Melissa, to ask if E.R. wanted to visit him and his wife Bernice. When Melissa told E.R. about Osborne's invitation, E.R. became upset. Melissa later found E.R. crying in her bedroom. Melissa asked E.R. why, and she mentioned that Osborne touched her inappropriately.
¶3 Melissa and her husband, Victor, called the police the next day. A few days later, a detective spoke with Melissa about E.R.'s disclosure. The detective requested to interview E.R., but Melissa and Victor declined. They told the detective E.R. did not want to cause Osborne trouble, so the family would instead seek counseling.
¶4 After E.R.'s disclosure, Melissa refused to let her visit Osborne, despite Osborne's repeated requests. Because Osborne kept asking to see E.R., Victor called Osborne to confront him with what E.R. disclosed. He told Osborne he heard "some pretty disturbing" information that Osborne "touch[ed]" E.R. Osborne replied, saying he did not touch her "with her clothes off." During the call, Osborne never denied touching E.R. inappropriately.
¶5 Osborne called Melissa later that night. He told Melissa that E.R. had a "crush" on him and she thought she was his "girlfriend."
¶6 Melissa soon told her brothers, Jeffery and Jeremy, about Osborne's abuse, but she did not tell her mother Bernice, who was visiting family in another state. M.R. eventually called Bernice to tell her that Osborne touched E.R. Osborne traveled to join Bernice and her family,
where Bernice confronted him with E.R.'s accusations. In a recorded phone call, Bernice told Melissa that when she confronted Osborne about touching E.R., he said he did not know why he did it. Bernice later told one of M.R.'s close friends that Osborne said he touched E.R. because she left dirty underwear on the floor. During trial, Bernice testified that Osborne responded to that accusation, saying, "[n]o, I did not. Are you crazy?"
¶7 The detective again reached out to Melissa and Victor in February 2016. By then, E.R. was ready to talk about Osborne's abuse. The detective prepared a forensic interview with E.R., during which she recounted Osborne's sexual abuse.
¶8 In September 2016, a detective helped Melissa confront Osborne on a recorded "one-party consent call." Melissa told Osborne she wanted to talk to him about the "issues" with E.R., now that E.R. was doing "great" after going to counseling for a year. Melissa then said she called to give Osborne an "opportunity to tell [her] in [his] words" what happened, rather than "hear[ing] it through" Bernice. Osborne replied, "I don't know what to tell you . . . I don't know nothin[g]. I don't even [want to] think about it. I'm tryin[g] to put it all out of my [ ] brain[.]" He said he did not "do that anymore . . . [and had] put it all down."
¶9 Shortly after, Melissa told Osborne she knew he had "touched" E.R. She asked, "[h]ow many times did it happen?" He answered, "I don't know. That's it. I don't want to talk about it ever again." Melissa then asked if he had "any remorse from it." Osborne replied that he did, saying he would "wake up at [ ] night with cold sweats and don't feel good . . . I'm sorry that it happened. I have no idea." Osborne continued, saying when he awoke at night, he would think to himself, "[w]hy in the world did this happen? Why in the world did I let this happen? Why did I do this? . . . It just drives me crazy tryin[g] to figure it out." Osborne told Melissa it would "never happen again in my lifetime."
¶10 The detective arrested Osborne several weeks later. After Osborne's arrest, the detective arranged a forensic interview with M.R. She disclosed that Osborne touched her breasts three times while staying at his house.
¶11 The State charged Osborne with five counts of child molestation and dangerous crimes against children, a class 2 felony, and three counts of sexual abuse, a class 5 felony.
¶12 At trial, E.R. testified that Osborne touched her vagina on three days in 2015 while visiting his house. In the first incident, Osborne
and E.R. were watching a movie in the living room. Osborne sat in "his blue chair" while E.R. sat in a chair next to him. Osborne then "stuck his hand down the back of [her] pants underneath [her] underwear and put it at the front part on top of the front part," placing his hand on her vagina. E.R. testified that the second time involved the "same thing as the first time." They were watching television in the "same spots," when Osborne again placed his hand down the back of her pants, on her vagina. The third incident occurred in Osborne's bedroom while he lied in bed. E.R. testified that after hugging Osborne, "he put his hand on the outside of my pants on the back part." The last incident involved the "same thing as the first time." While watching a movie and sitting in the same chairs, Osborne "stuck his hands down the back of [her] pants underneath the underwear" and touched her vagina.
¶13 M.R. testified that Osborne first touched her breasts while she slept in Osborne and Bernice's bed. During the night, Osborne moved his hand inside M.R.'s shirt and rubbed her breasts. A month or two later, Osborne again put his hand "inside [her] shirt" and rubbed her breasts, while she slept in his bedroom. The third incident also occurred while M.R. slept in Osborne's bed. Facing away from Osborne, she felt Osborne's hand go inside her shirt, rub the side of her "nude body," and then rub "up and down the side of her breasts" and down towards her "bottom area."
¶14 Osborne testified that he never looked at either of his granddaughters "in a sexual way." He refuted his family members' testimony that he admitted to abusing E.R., insisting that he referred to an incident where he "accidentally touched [E.R.] with his foot."
¶15 The State dismissed two counts of child molestation during trial, but the jury convicted Osborne of the remaining charges. The trial court sentenced Osborne to five concurrent presumptive terms of imprisonment, the longest being seventeen years. On one sexual abuse conviction, the court suspended the sentence, instead imposing lifetime probation following his release from prison. Osborne timely appealed. We have jurisdiction under Arizona Revised Statutes ("A.R.S.") §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
I. Osborne's Constitutional Right to Silence
¶16 Osborne first argues the prosecutor committed misconduct by impermissibly eliciting testimony from various witnesses in violation of his constitutional right to silence. Specifically, Osborne cites these instances:
(1) Melissa testified that Osborne never denied E.R.'s accusations when she confronted him in their two phone conversations; (2) Victor testified that Osborne never denied E.R.'s accusations when Victor confronted him on the phone; (3) a detective testified that during an interview, Bernice never said Osborne denied E.R.'s accusations, contrary to Bernice's testimony at trial; (4) Jeffery and Jeremy each testified that Osborne did not deny E.R.'s accusations when they confronted him; (5) a detective testified that after reading Osborne his rights under Miranda v. Arizona, 384 U.S. 436 (1966), Osborne told her he did not know why he had been arrested; (6) the detective also testified that Osborne did not question his arrest before receiving the Miranda warnings; and (7) the cross-examination of Osborne about whether he ever asked why he was being arrested.
¶17 Osborne neither objected to the challenged testimony nor asserted prosecutorial misconduct at trial. He thus forfeits appellate relief on these issues absent fundamental, prejudicial error. See State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018). To establish fundamental error, a defendant must first prove the trial court erred and then show that the error: (1) went to the foundation of the case; (2) took from the defendant a right essential to his defense; or (3) was so egregious that he could not possibly have received a fair trial. Id. at 142, ¶ 21. If the defendant establishes fundamental error under prongs one or two, he must make a separate showing of prejudice. Id.
¶18 The Fifth and Fourteenth Amendments protect individuals from compelled self-incrimination. U.S. Const. amend. V, amend. XIV, § 1; see Malloy v. Hogan, 378 U.S. 1, 6 (1964) (the Fifth Amendment's exception from compulsory self-incrimination is incorporated by the Fourteenth Amendment, protecting against abridgment by the states). In general, "[a] prosecutor may not comment on a defendant's invocation of his Fifth Amendment rights." State v. Parker, 231 Ariz. 391, 406, ¶ 64 (2013). "The Fifth Amendment gives a person the right to remain silent once in custody, even if Miranda warnings have not yet been given." State v. VanWinkle, 229 Ariz. 233, 236, ¶ 14 (2012). The privilege against self-incrimination is not self-executing, meaning a person "who desires its protection must claim it." Salinas v. Texas, 570 U.S. 178, 181 (2013) (quotations omitted).
¶19 "[W]hen a defendant's silence is not the result of state action, the protections of the Fifth Amendment do not prohibit the state's comment on that defendant's pre-arrest, pre-Miranda silence." State v. Lopez, 230 Ariz. 15, 20, ¶ 16 (App. 2012); see also State v. Sharp, 193 Ariz. 414, 421 (1999) ("Fulfilling the state action requirement is essential because the protections contemplated by the Fourteenth Amendment . . . apply only to state actors,
not to private parties."). A defendant who voluntarily speaks has not remained silent, Anderson v. Charles, 447 U.S. 404, 408 (1980), and a prosecutor is thus not "commenting on the accused's right to remain silent" when discussing such defendant's statements. State v. Raffaele, 113 Ariz. 259, 262 (1976).
¶20 Osborne does not argue, much less establish, that any of the statements he made to family members - namely, Melissa, Victor, Jeffery, Jeremy, and Bernice - were compelled by a state actor. See Lopez, 230 Ariz. at 20, ¶ 17; see also Colorado v. Connelly, 479 U.S. 157, 167 (1986) ("[C]oercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment."). Neither his express statements to family members, nor his failure to deny E.R.'s accusations within them, resulted from any form of custodial interrogation. See VanWinkle, 229 Ariz. at 237, ¶ 15; see also In re Timothy C., 194 Ariz. 159, 162, ¶ 11 (App. 1998) ("[T]he Fifth Amendment privilege against compulsory self-incrimination applies in custodial interrogations."). Thus, the Fifth Amendment does not protect Osborne's purported silence.
¶21 As for the detective's testimony that Osborne told her that he did not know why he had been arrested, he was not "silent." See Charles, 447 U.S. at 408; see also Raffaele, 113 Ariz. at 262. Instead, after receiving Miranda warnings, Osborne voluntarily spoke to the detective. Osborne therefore waived his right to silence, a point he does not contest. See Salinas, 570 U.S. at 181; see also State v. Payne, 233 Ariz. 484, 501, ¶ 40 (2013) (invocations of the right to silence must be unequivocal and unambiguous).
¶22 Arguably, the detective's testimony that Osborne did not ask pre-Miranda why he was being arrested could constitute an improper comment on his silence. See VanWinkle, 229 Ariz. at 238, ¶ 20 (admissions of post-custody, pre-Miranda silence and prosecutorial comment on that silence violates a defendant's right to remain silent). But Osborne waived his right to silence post-Miranda. See State v. Trostle, 191 Ariz. 4, 14 (1997) (answering questions after police properly give the Miranda warnings constitutes waiver by conduct). Osborne does not assert ever exercising his right to silence, nor does he claim to have remained silent when questioned by police. See Salinas, 570 U.S. at 181.
¶23 Osborne next complains that the prosecutor improperly questioned him "repeatedly . . . if he ever affirmatively asked the police why he was being arrested." He also contends the prosecutor committed misconduct by asking him, "[n]ow, you expect this jury to believe the story
that you're telling them, the story that you've had two years to come up with; isn't that true, sir?"
¶24 The cited exchanges do not reflect comments on his right to silence, which he first waived by speaking to the detective post-Miranda and then by testifying. See Anderson, 447 U.S. at 408. Here, the prosecutor impeached Osborne with post-Miranda statements that differed from his trial testimony, in which he claimed to merely touch E.R. with his foot. See State v. Tuzon, 118 Ariz. 205, 207 (1978) ("When one who has voluntarily made statements to police officers after his arrest makes new exculpatory statements at trial, the fact that he failed to make these statements earlier may be used for impeachment.").
¶25 The court also sustained Osborne's objection to the prosecutor's line of questioning about believing Osborne's "story," leaving the question unanswered. The court eliminated any remaining prejudice by instructing the jury that the prosecutor's comments are not evidence and to disregard any question to which it sustained an objection. See State v. Kuhs, 223 Ariz. 376, 387, ¶ 55 (2010) (we presume jurors follow instructions).
¶26 Because the prosecutor did not comment on Osborne's right to silence or impermissibly introduce evidence related to it, we reject his contention that the prosecutor committed misconduct. See State v. Bocharski, 218 Ariz. 476, 492, ¶ 75 (2008) ("Absent any finding of misconduct, there can be no cumulative effect of misconduct sufficient to permeate the entire atmosphere of the trial with unfairness."). We find no error, let alone fundamental, prejudicial error.
II. Alleged Other-Act Evidence
¶27 Osborne next contends the trial court erred by admitting evidence of: (1) Victor's financial losses; (2) Jeremy's financial losses; (3) Osborne's financial and marital problems; and (4) Melissa's testimony that Osborne was prohibited from returning to his work site because of E.R.'s accusations. Osborne argues the evidence violated his constitutional right of confrontation and it is also unfairly prejudicial other-act evidence. Because Osborne did not object on these grounds at trial, our review is limited to fundamental, prejudicial error. See Escalante, 245 Ariz. at 140, 142, ¶¶ 12, 21.
¶28 Other-act evidence is generally inadmissible to show a defendant "is a bad person or has a propensity for committing crimes." State v. Naranjo, 234 Ariz. 233, 246, ¶ 61 (2014) (quotation omitted). Evidence of a person's character is inadmissible to show conduct in conformity. Ariz.
R. Evid. 404(a). But other-act evidence may be admissible to show proof of "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Ariz. R. Evid. 404(b).
¶29 Four "protective provisions" control the trial court's admission of other-act evidence: (1) the evidence must be admitted for a proper purpose; (2) the evidence must be relevant under Rule 402; (3) the court must determine that the potential for unfair prejudice does not substantially outweigh the probative value of the evidence under Rule 403; and (4) if requested, the court must give a proper limiting instruction. State v. Lee, 189 Ariz. 590, 599 (1997). In addition, "the profferer must prove by clear and convincing evidence that the prior bad acts were committed and that the defendant committed the acts." State v. Terrazas, 189 Ariz. 580, 582 (1997). The list of other purposes in Rule 404(b) is not exclusive; if the evidence is relevant for another purpose, then it is admissible despite its referral to prior bad acts. State v. Jeffers, 135 Ariz. 404, 417 (1983).
¶30 Before E.R. reported Osborne's abuse, Victor and Osborne kept their semi-trucks at the same yard. Victor moved his trucks elsewhere shortly after learning the accusations. At trial, the prosecutor elicited testimony from Victor that moving his trucks led to a financial loss.
¶31 Osborne objected to the testimony's relevance. The prosecutor explained that the State offered the testimony to rebut Osborne's argument that the family has a financial motive linked to E.R. and M.R. making false allegations. The judge allowed the testimony but warned the prosecutor to make it "pretty short." The prosecutor then asked Victor if he lost money from the move, and Victor responded "yes." No questions on this matter remained.
¶32 Osborne asserts this testimony constitutes impermissible other-act evidence. As an initial matter, it is not clear that evidence of Victor's financial costs from moving his trucks qualifies as other "crimes, wrongs, or acts." Similarly, the prosecutor did not introduce this evidence to show Osborne's propensity to act in a particular manner. This is particularly true because Osborne's crimes were sexual offenses that presuppose an aberrant sexual propensity as a character trait. See Ariz. R. Evid. 404(c); see also State v. Aguilar, 209 Ariz. 40, 43, 48-49, ¶¶ 11, 28 (2004) (child molestation involves an aberrant sexual propensity).
¶33 Even if Victor's testimony constitutes other-act evidence, we find no error. The prosecutor explained the testimony's probative value to rebut an assertion that Victor and Melissa were financially motivated to
pressure the victims into fabricating their allegations. And in closing argument, the prosecutor emphasized this point to the jurors, asking them to consider Osborne's "distractions" that included "what did the Defendant's theory end with? Oh, maybe it was some sort of money issues . . . [but] you heard testimony from Victor that he actually lost money after these allegations came out." Any prejudice that resulted from this testimony was minimal. See State v. Mott, 187 Ariz. 536, 545-46 (1997) (unfair prejudice exists only when the evidence has an undue tendency to suggest decision on an improper basis such as emotion, sympathy, or horror). Osborne neither contests the sufficiency of Victor's testimony to prove his own financial cost by clear and convincing evidence, nor did he request a limiting instruction at trial.
¶34 Osborne also challenges Jeffery's testimony that he stopped working with Osborne in a business they ran together after hearing the sexual abuse allegations, causing Jeffery a financial loss. But the record shows that this testimony explains why Osborne called Jeffery after the two had not spoken in a year. On a phone call, Jeffery confronted Osborne with the victims' allegations. Osborne's challenge to Jeffery's testimony fails for the same reasons as his challenge to Victor's.
¶35 Osborne also argues that the prosecutor's impeachment of Bernice was hearsay aimed to make him look like a "bad guy." Bernice testified that Osborne denied E.R.'s accusations; this testimony was inconsistent with Bernice's statements to Melissa in a recorded call. See supra ¶ 6. And shortly after Bernice confronted Osborne, she sent several text messages to Melissa discussing whether to divorce him. In one such text message, Bernice told Melissa, "[a]nd I need to talk to you. Guess I will get a divorce from your daddy?" In another message, Bernice wrote, "I'm just beside myself over the whole ordeal!! I've got to get in counseling and try to decide what [I']m doing with my life! If it means getting a divorce from your Dad well so be it!!"
¶36 When the prosecutor presented the text messages to Bernice, she claimed to never consider divorcing Osborne or getting counseling "based on what happened" to E.R. Bernice also testified to not remembering sending the text messages. The State later recalled Melissa to explain the text messages and the trial court admitted the messages in evidence.
¶37 Contrary to Osborne's assertion, this testimony does not involve hearsay or propensity evidence. The trial court allowed the prosecutor to use Bernice's prior inconsistent statements to impeach her testimony that Osborne denied E.R.'s allegation when Bernice confronted
him. A witness's prior inconsistent statement is not hearsay when the witness is subject to cross-examination. State v. Hernandez, 232 Ariz. 313, 323, ¶ 47 (2013); Ariz. R. Evid. 801(d)(1)(A). Prior inconsistent statements may be used both as substantive evidence and for impeachment. See, e.g., State v. Skinner, 110 Ariz. 135, 142 (1973). The superior court did not err by admitting the evidence.
¶38 Finally, Osborne challenges Melissa's testimony that the owners of the yard where Osborne worked would call the police if Osborne returned "based on what he had done." Osborne argues the testimony was irrelevant and offered to "make him look bad." Even assuming the trial court erred by admitting the testimony, Osborne fails to meet his burden to show the error was fundamental and resulted in prejudice. The brief testimony was cumulative, and it did not take away a right essential to his defense, go to the foundation of his case, or render his trial unfair. See State v. Moody, 208 Ariz. 424, 455, ¶ 121 (2004) (finding no fundamental error where challenged evidence is cumulative to other evidence); see also State v. Shearer, 164 Ariz. 329, 339-40 (App. 1989) (the introduction of inadmissible evidence was harmless error when said evidence was cumulative to and consistent with other trial testimony).
III. Opinion Testimony
¶39 Osborne next contends the trial court erred by allowing Melissa to testify about Bernice considering divorcing Osborne over E.R.'s accusations. Absent a clear abuse of discretion, we will not second-guess a trial court's ruling on the admissibility or relevance of evidence. State v. Rodriguez, 186 Ariz. 240, 250 (1996).
¶40 Melissa testified to understanding why Bernice mentioned divorcing Osborne in her text messages, see supra ¶ 35, stating it was because of "what he had done to [E.R.]." Osborne objected, arguing the testimony was speculative and an improper opinion. Overruling the objection, the trial court found it was a "rational conclusion and the witness should be given the opportunity to explain why she's coming to that conclusion."
¶41 "Lay witnesses may give opinion testimony, even as to the ultimate issue, when it is 'rationally based on the perception of the witness and . . . helpful to a clear understanding of the witness's testimony or to the determination of a fact in issue.'" State v. Doerr, 193 Ariz. 56, 63, ¶ 26 (1998) (quoting Ariz. R. Evid. 701). "A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has
personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony." Ariz. R. Evid. 602. "Lay testimony may include inferences or opinion" if the witness perceived or observed the object of the testimony. State v. Ayala, 178 Ariz. 385, 387 (App. 1994).
¶42 The trial court acted well within its discretion in allowing the testimony. Given that E.R.'s allegation was the subject of the text messages and Bernice is Melissa's mother, Melissa's conclusion was a rational inference based on her perception and personal knowledge. A reasonable juror could perceive that, based on the circumstances and context, Bernice's text messages referred to E.R.'s allegations. And Melissa testified to her perception of what Bernice meant, rather than offering an opinion on what Bernice was thinking.
¶43 Osborne then argues for the first time on appeal that the testimony impermissibly embraced the ultimate issue. But Melissa did not give her opinion on whether Osborne was guilty of the charged offenses, let alone an expert opinion under Rule 704(b). In any event, Rule 701 does not forbid a lay person from opining on the ultimate issue. See Doerr, 193 Ariz. at 63, ¶ 26.
IV. Alleged Burden-Shifting
¶44 For the first time on appeal, Osborne contends the prosecutor unconstitutionally shifted the burden of proof while cross-examining him. We review for fundamental, prejudicial error. See Escalante, 245 Ariz. at 140, 142, ¶¶ 12, 21.
¶45 Osborne testified to selling two of his trucks to Melissa and Victor, but never being paid. Osborne also testified that Jeffery and Jeremy owed him money from business partnerships with them. During cross-examination, Osborne failed to object when the prosecutor asked Osborne if he had proof of the debts. Osborne answered, saying he did not have proof with him at the time.
¶46 "[T]he prosecutor may properly comment on the defendant's failure to present exculpatory evidence which would substantiate defendant's story, as long as it does not constitute a comment on defendant's silence." State ex rel. McDougall v. Corcoran, 153 Ariz. 157, 160 (1987). In State v. McKinley, 157 Ariz. 135, 138 (App. 1988), we held that the burden of proof did not shift to the defendant when the State disclosed to a jury that the defendant failed to test semen samples despite having the opportunity to do so. Likewise, the prosecutor did not burden-shift here by
commenting on Osborne's failure to substantiate his testimony about family members owing him money. See State v. Lindsey, 149 Ariz. 472, 477 (1986) (the open door or invited error doctrine means a party cannot complain about a result the party created). We find no error.
V. Motion for Judgment of Acquittal
¶47 Osborne moved for judgment of acquittal, which the superior court denied. See Ariz. R. Crim. P. 20(a)(1). Osborne claims the superior court wrongfully denied this motion, arguing the State produced insufficient evidence to satisfy the elements of the charged offenses. We review a trial court's denial of a Rule 20 motion de novo. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011).
¶48 Rule 20(a)(1) directs the trial court to enter a judgment of acquittal "if there is no substantial evidence to support a conviction." Sufficient evidence may be direct or circumstantial and "is such proof that reasonable persons could accept as adequate" to "support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Borquez, 232 Ariz. 484, 487, ¶ 9 (App. 2013). "[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." West, 226 Ariz. at 562, ¶ 16 (quoting State v. Mathers, 165 Ariz. 64, 66 (1990)).
¶49 "When reasonable minds may differ on inferences drawn from the facts, the case must be submitted to the jury, and the trial judge has no discretion to enter a judgment of acquittal." Id. at 563, ¶ 18. In reviewing the sufficiency of the evidence, we neither reweigh evidence nor assess the credibility of witnesses. See State v. Buccheri-Bianca, 233 Ariz. 324, 334, ¶ 38 (App. 2013). "Evidence is no less substantial simply because the testimony may be conflicting or reasonable persons may draw different conclusions therefrom." State v. Mercer, 13 Ariz. App. 1, 2 (1970).
¶50 As charged here, the crime of child molestation required proof that Osborne intentionally or knowingly engaged in sexual contact with E.R., who was under the age of fifteen. See A.R.S. §§ 13-1410(A), -1401(A)(3) (defining "sexual contact"). To prove Osborne sexually abused M.R., the State had to show he intentionally or knowingly had sexual contact with her without her consent. See A.R.S. §§ 13-1404(a), -1401(A)(3).
¶51 E.R. testified that Osborne touched her vagina three times. She gave detailed accounts for each incident, including the timeframe, the location, what she was wearing, the events before and after each incident,
and what Osborne did to her when he committed each act. She also told the jurors about the emotional harm it caused her, and she explained why she did not report the abuse immediately.
¶52 Likewise, M.R. testified that Osborne touched her breasts three times, providing details of time, location, what she was wearing, and what happened before and after the acts. She also explained the emotional harm she experienced from Osborne's acts and why she delayed reporting.
¶53 To help the jurors understand the process of victimization and why child victims may delay reporting sexual abuse, the prosecutor called a "cold" expert witness. The expert testified that delayed disclosure is common in child victims and generally results from a victim's fear, a victim's relationship with the abuser, or a victim's inability to understand what the abuser has done.
¶54 Osborne contends the trial court should have granted the Rule 20 motion because the victims' allegations were not credible, pointing to purported inconsistencies and lack of detail in their testimony. His contention is unavailing in the context of a trial court's Rule 20 ruling. See Buccheri-Bianca, 233 Ariz. at 334, ¶ 38; see also State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3 (App. 2005) (resolving testimonial conflicts is the jury's role). A reasonable juror could find Osborne guilty of the charges based on the victims' testimony alone. See State v. Jerousek, 121 Ariz. 420, 427 (1979) (a defendant in child molestation cases can be convicted with uncorroborated testimony of a victim); see also Manzanedo, 210 Ariz. at 293, ¶ 3 (the uncorroborated testimony of a single witness is enough to uphold a conviction). But the prosecutor also introduced evidence of Osborne's admissions to his family members to prove his guilt. See supra ¶¶ 5-6, 8-9, 15.
¶55 Finally, Osborne complains that the child molestation and sexual abuse statutes infringe on due process by shifting the burden to the defendant to disprove sexual motivation. Our supreme court has rejected this argument. See State v. Holle, 240 Ariz. 300, 308, ¶ 40 (2016). Sexual motivation is not an element of either offense, and the statutory schemes do not shift the burden in violation of due process. Id. at 301, 308, 311, ¶¶ 1, 40, 50; see also State v. Smyers, 207 Ariz. 314, 318, ¶ 15 n.4 (2004). The superior court did not err in denying Osborne's Rule 20 motion.
VI. Aggravation Hearing
¶56 Osborne next argues the trial court erred by forcing him to choose between attending the aggravation hearing in clothes provided by
the sheriff's department or waive his right to be present. We review for fundamental, prejudicial error. See Escalante, 245 Ariz. at 140, 142, ¶¶ 12, 21.
¶57 Following the verdict, the State sought to prove an aggravating circumstance, that Osborne emotionally harmed the victims. Outside the presence of the jurors, the trial court noted that Osborne wore clothes given to him by the sheriff's department, rather than his own clothes. Defense counsel informed the court that the sheriff's department would not allow Osborne to wear jeans brought by his family. The record does not disclose the sheriff department's reasoning.
¶58 The trial court therefore asked Osborne whether he wanted to be present in his current attire or waive his right to appear at the hearing. After consulting with counsel, Osborne replied, "I'll waive them" (his right to appear). Osborne did not object to the choices the court gave him about how to proceed.
¶59 Before the hearing, the trial court instructed the jurors not to consider Osborne's absence in their decision. The State presented no new evidence during the aggravation hearing, relying on trial testimony that Osborne's actions caused the victims emotional harm. The jury convicted Osborne with the aggravating circumstance.
¶60 Criminal defendants are generally entitled to appear in civilian clothing and be free from visible restraints during trial. State v. Hardy, 230 Ariz. 281, 292, ¶ 54 (2012). A violation of this right is subject to harmless or fundamental error review. See id.
¶61 First, we reject Osborne's initial premise that the clothes the sheriff's department gave him amounted to "unconstitutional jail garb." The record does not reveal what clothes he wore, nor does Osborne describe them. Osborne thus fails to meet his initial burden to show error. See Escalante, 240 Ariz. at 140, ¶ 12; see also State v. Zuck, 134 Ariz. 509, 513 (1982) (when evidence is not in the record on appeal, the appellate court presumes missing portions of the record support the trial court action).
¶62 Even assuming error, Osborne also fails to show prejudice. The evidence presented during trial established that he emotionally harmed the victims beyond a reasonable doubt. The victims did not need to testify again to prove the aggravating circumstance. And the trial court's instruction not to consider Osborne's absence eliminated the threat of resulting prejudice. See Kuhs, 223 Ariz. at 387, ¶ 55 (we presume jurors follow instructions).
VII. Right of Allocution
¶63 Finally, Osborne argues for the first time on appeal that the superior court prohibited him from making a statement at sentencing. We review for fundamental, prejudicial error. See Escalante, 245 Ariz. at 140, 142, ¶¶ 12, 21.
¶64 After presenting evidence in mitigation, Osborne's counsel addressed the court, asking for leniency and asserting Osborne's innocence. In defense counsel's statement, he informed the court that Osborne would "forego making a statement so that we protect his appeal rights going forward." Notwithstanding counsel's declaration, the trial court asked Osborne if he "would like to" speak. Osborne replied, "I don't think I can."
¶65 The trial court must invite a defendant to give a statement before sentencing. Ariz. R. Crim. P. 26.10(b)(1); see also State v. Nelson, 122 Ariz. 1, 2 (1979). The superior court did so. Osborne's attorney declared that Osborne would not address the court to protect his appellate rights. Osborne cites no authority, nor have we discovered any, to support the proposition that a trial court is compelled to sua sponte examine a defendant's decision not to address the court before sentencing, let alone a decision made in consultation with counsel. Furthermore, Osborne's counsel spoke on Osborne's behalf. See State v. Davis, 112 Ariz. 140, 141 (1975) (defense counsel may speak for the defendant to exercise rights of allocution).
¶66 Contrary to Osborne's assertion, the right of allocution is not absolute. State v. Anderson, 210 Ariz. 327, 350, ¶ 100 (2005). Osborne does not argue on appeal that he intended to add anything to the mitigating evidence already provided. Thus, he fails to meet his burden to show a need for resentencing. State v. Hinchey, 181 Ariz. 307, 313 (1995). The trial court committed no error, fundamental or otherwise.
CONCLUSION
¶67 We affirm Osborne's convictions and sentences.