Opinion
2 CA-CR 2022-0053
01-29-2024
The State of Arizona, Appellee, v. Juan Manuel Valdez Jr., Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, 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
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20194733001 The Honorable Scott McDonald, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, 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
Judge Gard authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Vasquez concurred.
MEMORANDUM DECISION
GARD, JUDGE
¶1 Juan Valdez appeals his conviction and sentence for aggravated assault. Valdez argues the trial court erred by denying his motion for a judgment of acquittal, admitting opinion testimony from two law-enforcement officers, and admitting the victim's out-of-court statements to medical professionals. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the verdict, resolving all reasonable inferences against Valdez. State v. Hood, 251 Ariz. 57, n.1 (App. 2021). Early one morning in September 2019, A.S. called 9-1-1 from Valdez's home to report that Valdez had beaten her in the face. Responding officers encountered A.S. standing in the street, crying and with visible facial injuries. Inside Valdez's home, near the front door, officers saw blood and shattered glass on the floor and various items that had been knocked over.
¶3 At the hospital, medical personnel diagnosed A.S. with an orbital floor fracture beneath her right eye. Throughout the morning, A.S. told multiple law-enforcement officers and medical providers that she had been struck in the face, and at times identified Valdez as her assailant. While in jail after the incident, Valdez asked his mother to contact A.S. and to dissuade her from appearing for court.
¶4 A grand jury indicted Valdez for aggravated assault causing temporary but substantial disfigurement and aggravated assault on an incapacitated victim. A.S. testified at trial, but, contrary to her earlier statements, she denied that Valdez had assaulted her. She explained that Valdez had attempted to physically remove her from his residence after she had refused to leave, leading to a struggle during which glass wall art fell to the ground and shattered. A.S. testified that she had slipped and fallen during the altercation, striking her face on a doorknob. She maintained that she had falsely accused Valdez of assaulting her because she was intoxicated and angry and wished to blame him for her injury.
¶5 A jury found Valdez guilty of aggravated assault causing temporary but substantial disfigurement but not guilty of aggravated assault on an incapacitated victim. The trial court subsequently found that Valdez had two historical prior felony convictions and sentenced him to the presumptive term of ten years' imprisonment. This appeal followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
I. Motion for a Judgment of Acquittal
¶6 Valdez contends the trial court erred by denying his motion for a judgment of acquittal. He argues that A.S.'s trial testimony attributing her injury to an accident is more trustworthy than her initial statements accusing Valdez of striking her. The court did not err by denying Valdez's motion.
In his opening brief, Valdez appeared to challenge the trial court's denial of his motion for a judgment of acquittal as to both counts of the indictment. But after receiving the state's answering brief, Valdez filed a notice of errata effectively withdrawing his argument as to the count for which the jury found him not guilty. We therefore do not address the state's mootness and jurisdictional arguments with respect to that count.
¶7 We review de novo a trial court's ruling denying a motion for a judgment of acquittal, viewing the facts in the light most favorable to sustaining the verdict and resolving all evidentiary conflicts against the defendant. State v. Andersen, 255 Ariz. 320, ¶ 7 (App. 2023). A trial court must enter a judgment of acquittal when there is "no substantial evidence to support a conviction." Ariz. R. Crim. P. 20(a)(1). "Substantial evidence is more than a mere scintilla and 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. Mathers, 165 Ariz. 64, 67 (1990) (quoting State v. Jones, 125 Ariz. 417, 419 (1980)). "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." Andersen, 255 Ariz. 320, ¶ 7 (quoting State v. Lee, 189 Ariz. 590, 603 (1997)).
¶8 "[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." State v. West, 226 Ariz. 559, ¶ 16 (2011) (quoting Mathers, 165 Ariz. at 66); see also State v. Brock, 248 Ariz. 583, ¶ 22 (App. 2020) ("In reviewing the sufficiency of the evidence, we compare the evidence 'against the statutorily required elements of the offense.'" (quoting State v. Pena, 209 Ariz. 503, ¶ 8 (App. 2005))). A person commits assault by "[i]ntentionally, knowingly or recklessly causing any physical injury to another person" or by "knowingly touching another person with the intent to injure, insult or provoke such person." A.R.S. § 13-1203A(1), (3). As charged here, a person commits aggravated assault by committing assault through "any means of force that causes temporary but substantial disfigurement, temporary but substantial loss or impairment of any body organ or part or a fracture of any body part." A.R.S. § 13-1204(A)(3).
¶9 Valdez does not dispute the nature or severity of A.S.'s injury, instead challenging only the sufficiency of the evidence that he caused it. Highlighting A.S.'s alcohol consumption, her voluntary cooperation with his defense, and other factors bearing on her initial statements' trustworthiness, Valdez asserts that the trial court should have deferred to A.S.'s trial testimony in ruling on his motion. Valdez also highlights testimony from defense witness Hector Morando, whose account of the incident was consistent with A.S.'s trial testimony.
¶10 Valdez asks us to reweigh A.S.'s credibility, as well as Morando's, which we will not do. See State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 38 (App. 2013) ("It is not the province of an appellate court to reweigh evidence or reassess the witnesses' credibility."). And contrary to Valdez's position, evidence "is not insubstantial merely because testimony is conflicting or reasonable persons may draw different conclusions from" it. State v. Sasak, 178 Ariz. 182, 186 (App. 1993); see also Buccheri-Bianca, 233 Ariz. 324, ¶¶ 38-40 (inconsistency and vagueness in victims' testimony did not render evidence insufficient but was for jury to consider in determining credibility and weight). Rather, as previously stated, we must resolve all evidentiary conflicts against Valdez, and he is not entitled to a judgment of acquittal when reasonable persons could view the evidence differently. Andersen, 255 Ariz. 320, ¶ 7.
¶11 Valdez contends that these legal principles do not apply in the recanting-witness context. But the authority he cites arises from state and federal collateral-review proceedings and primarily involves actual innocence or newly discovered evidence claims in which a court is the factfinder. See Jones v. Taylor, 763 F.3d 1242, 1243-45, 1248-51 (9th Cir. 2014) (recanted testimony insufficient to establish actual innocence in federal habeas corpus proceeding); Christian v. Frank, 595 F.3d 1076, 1078-80 (9th Cir. 2010) (reversing district court's decision granting federal habeas relief based on state court's exclusion of evidence that third party had confessed to offense for which habeas petitioner was convicted); State v. Wagstaff, 161 Ariz. 66, 71-72 (App. 1988) (evidence of victim's recantation established colorable claim for post-conviction relief based on newly discovered evidence under Rule 32, Ariz. R. Crim. P.), approved as modified, 164 Ariz. 485 (1990); State v. Fritz, 157 Ariz. 139, 139-41 (App. 1988) (trial court did not abuse its discretion by granting post-conviction relief under Rule 32 where victim recanted allegations). Valdez directs us to no authority holding that, when reviewing the sufficiency of the evidence on direct appeal, we may choose which of a recanting witness's version of events is credible or that a trial court may do so in determining whether to submit a matter to the jury. Given A.S.'s conflicting accounts, the resolution of which was within the jury's exclusive province, the court did not err by denying Valdez's motion for a judgment of acquittal. See Andersen, 255 Ariz. 320, ¶ 7; Buccheri-Bianca, 233 Ariz. 324, ¶ 38.
II. Opinion Testimony
¶12 Valdez contends the trial court erred by admitting opinion testimony from two law-enforcement officers. He asserts the officers inappropriately opined regarding A.S.'s credibility, which "went to the heart" of the case's ultimate issue: whether Valdez assaulted A.S. Although Valdez objected to the disputed testimony, he did so on different grounds than he argues on appeal. We therefore review only for fundamental, prejudicial error, and we conclude that Valdez has failed to establish such error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005) ("Fundamental error review . . . applies when a defendant fails to object to alleged trial error."); State v. Long, 119 Ariz. 327, 328 (1978) ("[R]aising one objection at trial does not preserve another objection on appeal."); State v. Meeds, 244 Ariz. 454, ¶ 13 (App. 2018), disavowed on other grounds by State v. Arevalo, 249 Ariz. 370, ¶ 27 (2020) ("Because Meeds did not raise any objection at trial to the expert testimony on the ground it improperly addressed the ultimate issue . . . we review this issue only for fundamental error.").
¶13 Fundamental error review involves three steps, and Valdez carries the burden of persuasion for each one. State v. Murray, 250 Ariz. 543, ¶ 14 (2021); Henderson, 210 Ariz. 561, ¶ 20. First, Valdez must prove an error occurred. Murray, 250 Ariz. 543, ¶ 14. Second, Valdez must establish that the error is fundamental. Id. "A defendant establishes fundamental error by showing that (1) the error went to the foundation of the case, (2) the error took from the defendant a right essential to his defense, or (3) the error was so egregious that he could not possibly have received a fair trial." State v. Escalante, 245 Ariz. 135, ¶ 21 (2018). Third, unless the basis for finding fundamental error at step two is that he could not have received a fair trial, Valdez must show prejudice by establishing that a reasonable jury could have reached a different verdict without the error. Murray, 250 Ariz. 543, ¶ 14. "In applying the 'could have' standard, an appellate court should examine the entire record, including the parties' theories and arguments as well as the trial evidence." Escalante, 245 Ariz. 135, ¶ 31.
¶14 Valdez has not shown error, fundamental or otherwise. At trial, Sergeant Anthony Castro testified that he had been the domesticviolence unit supervisor with the Pima County Sheriff's Department for more than four years, had been a domestic-violence detective for one year, had received training specific to domestic-violence investigations, and had participated in or overseen thousands of those investigations. The prosecutor asked Castro whether, in light of his training and experience, it is "common for victims of domestic violence to later change or take back their original statement[s] to the police." Castro answered affirmatively but offered no further detail. On cross-examination, however, Castro admitted that he had also encountered individuals who had falsely accused others of domestic violence and that he had seen individuals do so when affected by alcohol, emotion, or a desire for vengeance. And on redirect, Castro testified that he had seen more victims recant their allegations than offer false initial accusations.
¶15 Similarly, Detective Jenika Ford testified that she had previously been assigned to the domestic-violence unit, had received training specific to domestic violence, had carried between nine and fifteen active cases at any one time as a domestic-violence detective, and had investigated between two and four domestic-violence incidents each night as a patrol officer. The prosecutor asked Ford whether, in her experience as a domestic-violence detective, she had "ever had domestic violence cases where a victim ha[d] recanted or changed their previous testimony." Like Castro, Ford answered affirmatively but did not provide additional detail. On cross-examination, Valdez elicited from Ford that she had encountered accusers who had made untruthful domestic-violence allegations. Ford further admitted it was possible that A.S. had lied about what had happened between her and Valdez.
¶16 Valdez contends that, by testifying they had encountered domestic-violence victims who recanted their allegations, the officers opined regarding A.S.'s credibility. A party may offer opinion testimony from lay or expert witnesses, so long as the testimony meets the criteria set forth in our rules of evidence. See Ariz. R. Evid. 701 (governing admission of lay witness testimony), 702 (governing admission of expert witness testimony). As Valdez recognizes, "[a]n opinion is not objectionable just because it embraces an ultimate issue." Ariz. R. Evid. 704(a).
The state does not challenge Valdez's characterization of the testimony as opinion evidence or his assertion that the officers testified as expert witnesses. We note, however, that Ford's testimony is factual in nature; she agreed that she had seen domestic-violence victims change their prior statements but offered no opinion as to this phenomenon's reasons or frequency. Because it is not material to the outcome, we assume without deciding that the officers offered opinion testimony as expert witnesses and limit our discussion to whether, by doing so, they commented on A.S.'s credibility.
¶17 However, "Arizona prohibits lay and expert testimony concerning the veracity of a statement by another witness." State v. Boggs, 218 Ariz. 325, ¶ 39 (2008); see also State v. Moran, 151 Ariz. 378, 382 (1986) ("[E]xpert testimony may not be admitted 'to tell the jury who is correct or incorrect, who is lying and who is truthful.'" (quoting State v. Lindsey, 149 Ariz. 472, 474 (1986)); State v. Schroeder, 167 Ariz. 47, 50 (App. 1990) ("The Arizona Supreme Court has held that an expert witness may not give an opinion as to the credibility of a victim."). This is because a jury is well-positioned to evaluate credibility on its own and admitting opinion testimony on that topic usurps the jury's role. See Moran, 151 Ariz. at 382; Schroeder, 167 Ariz. at 50. Thus, regardless whether credibility is an ultimate issue, a witness may not opine that another witness is or is not credible.
¶18 The officers here did not comment on A.S.'s credibility. The challenged testimony established, as a general matter, that the officers had encountered recanting victims in their experience investigating domesticviolence cases. Neither officer expressly referred to A.S.'s credibility, suggested that her initial accusations were more credible than her trial testimony, or commented on the reasons domestic-violence victims may recant. Nor can the officers' general testimony about other victims' behavior reasonably be viewed as commenting indirectly on A.S.'s credibility, particularly given their additional admissions that they had also encountered false domestic-violence allegations. No error, much less fundamental error, occurred when the trial court admitted this testimony.
Sergeant Castro's comment on redirect that he had experienced more victims recant than initially make false allegations approaches the line of indirectly commenting on A.S.'s credibility. See Moran, 151 Ariz. at 382 (observing that an "expert's opinion as to credibility [may not] be adduced indirectly by allowing the expert to quantify the percentage of victims who are truthful in their initial reports despite subsequent recantation"). But the state elicited that testimony only in response to Valdez's cross-examination concerning false reporting, and its admission does not amount to reversible error.
In light of our resolution above, we do not address Valdez's argument that he suffered prejudice because the state's failure to disclose the officers as expert witnesses deprived him of the opportunity to retain rebuttal experts. To the extent Valdez presents a disclosure claim as an independent ground for reversal, it is waived for insufficient argument. See State v. Bolton, 182 Ariz. 290, 298 (1995). Even were we to overlook this waiver, Valdez cannot show any error here, as the challenged testimony became necessary only when A.S., without notice to the state, changed her account of how she had been injured. The state disclosed both officers before trial, as well as "any witness . . . needed in rebuttal."
III. Out-of-Court Statements
¶19 Valdez asserts the trial court erred by allowing Dr. Shethal Bearelly and paramedic Samuel Garcia to testify regarding A.S.'s out-ofcourt statements, which he maintains were hearsay and did not fall within any exception to the hearsay rule. Valdez further contends that the court erred by "disturb[ing]" a pretrial order precluding the state from eliciting from Dr. Bearelly that A.S. had identified Valdez as her assailant. Valdez has not established reversible error.
A. Pertinent facts
¶20 Before trial, the trial court denied the state's motion to admit, through Dr. Bearelly, A.S.'s statements to hospital personnel that her boyfriend had assaulted her. See Ariz. R. Evid. 803(4). The court clarified that the remainder of A.S.'s statements could be admitted.
¶21 During trial, Dr. Bearelly-an ear, nose, and throat surgeon who also performs facial trauma surgery-testified that he had been consulted at the hospital to evaluate A.S.'s orbital floor fracture. Dr. Bearelly testified that such a fracture's cause only rarely affects the manner in which doctors treat that injury and that he could not recall an instance in which such information affected his treatment decisions. Over Valdez's hearsay objection, the trial court allowed Dr. Bearelly to testify, under Rule 803(4), that A.S.'s medical records memorialized her report to emergencyroom providers that she had been struck in the face with a fist. Dr. Bearelly also testified that he relies on the type of records at issue in treating patients.
¶22 Garcia-a paramedic-testified that he had transported A.S. to the hospital. The prosecutor inquired whether A.S. had told Garcia how she had been injured. Valdez objected on hearsay grounds, but the trial court overruled the objection, permitting the testimony for the purposes of impeaching A.S. Garcia thereafter testified that A.S. had described having been struck in the face multiple times. Garcia recalled A.S. stating that "whatever man she was with that night" had struck her.
B. Hearsay and prior inconsistent statements
¶23 We review a trial court's evidentiary rulings for an abuse of discretion. State v. Davolt, 207 Ariz. 191, ¶ 60 (2004). Hearsay is an out-ofcourt statement offered to prove the truth of the matter asserted. Ariz. R. Evid. 801(c). In general, hearsay is not admissible. Ariz. R. Evid. 802. But the rule against hearsay is subject to several exceptions, including that set forth in Rule 803(4), which applies when an out-of-court statement "(A) is made for-and is reasonably pertinent to-medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause." See also Ariz. R. Evid. 802.
¶24 Further, when a declarant testifies at trial in a manner inconsistent with his or her prior out-of-court statement, and is subject to cross-examination about that statement, the prior statement is not hearsay. Ariz. R. Evid. 801(d)(1)(A). A party may offer extrinsic evidence of a witness's prior inconsistent statement but "only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires." Ariz. R. Evid. 613(b).
¶25 Citing Dr. Bearelly's testimony that the means by which a patient sustains an injury does not affect the patient's treatment, Valdez contends that the statements at issue do not satisfy Rule 803(4). He further argues that the trial court erred by allowing Garcia to relay A.S.'s prior account of her injury when she had not been given the opportunity to explain or deny those specific statements.
¶26 We need not decide whether the trial court erred by admitting either set of statements because any potential error was harmless beyond a reasonable doubt. See State v. Riley, 248 Ariz. 154, ¶ 68 (2020). The standard for establishing harmless error "is an objective one, and requires a showing that without the error, a reasonable jury could have plausibly and intelligently returned a different verdict." Id. (quoting Escalante, 245 Ariz. 135, ¶ 31). The inquiry is whether the guilty verdict in Valdez's trial was surely unattributable to the error, not whether a jury would surely have rendered a guilty verdict in a trial without the error. Id.
¶27 Here, A.S.'s statements in her hospital records, as recounted by Dr. Bearelly, as well as those she made to Garcia, were cumulative to myriad other statements that Valdez does not challenge on appeal. Specifically, the jurors heard A.S.'s recorded 9-1-1 call, in which she stated repeatedly that Valdez had beaten her in the face. A.S. told officers who first responded to her 9-1-1 call, as well as detectives who interviewed her at the hospital, that she had been struck. At trial, A.S. admitted that she had previously told multiple persons that Valdez had struck her, but maintained that she had lied in order to retaliate against Valdez.
¶28 There was thus no dispute that A.S. had previously accused Valdez of striking her; the question for the jury was whether that version of events was truthful. Because the statements Valdez challenges were cumulative to A.S.'s numerous other, unchallenged-and undisputed- statements, the verdict here was surely unattributable to any error admitting them. See State v. Copeland, 253 Ariz. 104, ¶ 27 (App. 2022) (reasoning "admission of evidence, including hearsay, can be harmless under some circumstances, including when it is 'entirely cumulative'" (quoting State v. Williams, 133 Ariz. 220, 226 (1982))); State v. Turner, 251 Ariz. 217, ¶ 29 (App. 2021) ("We do not find reversible trial error where the erroneously admitted evidence is entirely cumulative of other properly admitted evidence."); Lopez, 217 Ariz. 433, n.2 (any error in admitting statement, which was "arguably . . . not relevant to diagnosis or treatment," harmless because statement was cumulative to victim's testimony).
C. Pretrial ruling
¶29 Valdez contends the trial court erred by failing to follow another judicial officer's pretrial ruling. See Dunlap v. City of Phoenix, 169 Ariz. 63, 66 (App. 1990) ("[A] superior court judge should exercise caution when considering a motion that has already been denied by another judge."). He specifically argues that the court "overruled" the pretrial ruling precluding A.S.'s statements identifying Valdez as the perpetrator by allowing Garcia to testify regarding her identification of the assailant. Valdez, however, did not object to Garcia's testimony on the ground that it violated the earlier ruling. See Long, 119 Ariz. at 328. We therefore review for fundamental error and resulting prejudice. See Murray, 250 Ariz. 543, ¶ 14; Henderson, 210 Ariz. 561, ¶¶ 19-20.
¶30 Valdez's assertions are not supported by the record. The state's motion in limine, and the prior judicial officer's resulting order, pertained to statements contained in A.S.'s hospital records, which the state sought to admit through Dr. Bearelly, not to A.S.'s statements to Garcia. The trial court thus did not disturb the prior ruling, as Valdez contends. And in any event, as explained in the harmless-error discussion above, the challenged statements to Garcia were cumulative to A.S.'s numerous other statements the night of the offense accusing Valdez of striking her in the face. Valdez thus cannot show prejudice from any hypothetical fundamental error. See Murray, 250 Ariz. 543, ¶ 14.
Disposition
¶31 For the foregoing reasons, we affirm Valdez's conviction and sentence.