Opinion
2 CA-CR 2022-0073
09-05-2023
The State of Arizona, Appellee, v. Alfredo Alvarez-Lopez, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Joshua C. Smith, Assistant Attorney General, Phoenix Counsel for Appellee Megan Page, Pima County Public Defender By Erin K. Sutherland, Assistant Public Defender, 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. CR20203114001 The Honorable Javier Chon-Lopez, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Joshua C. Smith, Assistant Attorney General, Phoenix Counsel for Appellee
Megan Page, Pima County Public Defender By Erin K. Sutherland, Assistant Public Defender, Tucson Counsel for Appellant
Vice Chief Judge Staring authored the decision of the Court, in which Judge Sklar and Judge O'Neil concurred.
MEMORANDUM DECISION
STARING, Vice Chief Judge
¶1 Alfredo Alvarez-Lopez appeals from his convictions and sentences for two counts of public sexual indecency. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts. See State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). Alvarez-Lopez and S.V. married in 1990 and subsequently had four children together. In 2015, Alvarez-Lopez and S.V. separated but remained legally married.
¶3 In 2020, S.V. and Alvarez-Lopez were living with their adult son, M.A. Each had a separate bedroom. On August 10, S.V. and Alvarez-Lopez planned to go to a casino together. While S.V. was getting ready, Alvarez-Lopez came into her room, pushed her onto the bed, masturbated, and ejaculated on her clothing and the sheets with which she had tried to cover herself. S.V. did not call the police or tell M.A. or any of her other children what had happened.
¶4 On the morning of August 16, Alvarez-Lopez came home drunk and pulled down S.V.'s shorts and underwear while she was in the kitchen. She went to her room, and Alvarez-Lopez followed. S.V. told him to leave, but he grabbed her, threw her onto the bed, and attempted to force her to touch his penis. Alvarez-Lopez then masturbated while groping S.V.'s breast and digitally penetrating her vagina before ejaculating on the bed. During the incident, S.V. was able to take several photos and a video of Alvarez-Lopez. S.V. then called her adult children and asked them to tell Alvarez-Lopez to leave the house, which they did.
¶5 That same day, S.V. called the Tucson Police Department to report the incidents, and officers responded to her home on August 18. She subsequently went to the hospital for a sexual-assault examination.
¶6 When a detective interviewed Alvarez-Lopez about the August 16 incident, Alvarez-Lopez admitted to masturbating in front of S.V. and digitally penetrating her vagina, but he claimed the contact had been consensual. Detectives collected Alvarez-Lopez's phone and downloaded its contents pursuant to a search warrant. The phone was then mistakenly labeled as personal property instead of evidence, and, per police department policy, it was later destroyed.
¶7 Alvarez-Lopez was charged with two counts of public sexual indecency, one count of attempted sexual abuse, one count of sexual assault, and one count of sexual abuse. After a jury trial, he was convicted of the two counts of public sexual indecency and acquitted of the remaining charges. For each count of public sexual indecency, he was sentenced to 180 days in jail for an "effective sentence of time served." This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
I. Other-Act Evidence
¶8 On appeal, Alvarez-Lopez argues the trial court erred in precluding evidence related to a past act by S.V. We review the court's evidentiary rulings for an abuse of discretion. See State v. Snelling, 225 Ariz. 182, ¶ 18 (2010).
¶9 Under Rule 404(b), Ariz. R. Evid., "evidence of other . . . acts is not admissible to prove the character of a person in order to show action in conformity therewith." Other-act evidence may be admissible for nonpropensity purposes, including "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Ariz. R. Evid. 404(b)(2); see State v. Leteve, 237 Ariz. 516, ¶ 11 (2015); see also State v. Fish, 222 Ariz. 109, ¶ 42 (App. 2009) (list of permitted uses in Rule 404(b)(2) not exhaustive).
¶10 When other-act evidence is offered for a non-propensity purpose under Rule 404(b), it is also subject to Rules 402 and 403, Ariz. R. Evid. Leteve, 237 Ariz. 516, ¶ 11. Relevant evidence is admissible unless it is otherwise precluded by the federal or state constitution or an applicable statute or rule. Ariz. R. Evid. 402. Evidence is relevant if "it has any tendency" to make a fact of consequence in determining the action "more or less probable than it would be without the evidence." Ariz. R. Evid. 401; see also Fish, 222 Ariz. 109, ¶ 48 ("The standard of relevance is not particularly high."). Nonetheless, even relevant evidence may be excluded "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Ariz. R. Evid. 403.
¶11 Before trial, the state moved to preclude evidence of a 2017 incident during which S.V. had smashed Alvarez-Lopez's car window. The state did not dispute the incident had occurred but rather argued the evidence only "serve[d] to paint S.V.[] in a bad light and [wa]s not relevant" to any of the charges against Alvarez-Lopez. Further, it asserted, the evidence was "substantially more prejudicial than probative and w[ould] only serve to confuse the issues for the jury." Alvarez-Lopez alleged the incident had occurred after S.V. found out about his relationship with his then-girlfriend, S.R., and a trip they took together. Thus, he argued, the evidence was admissible under Rule 404(b) to show S.V.'s "inten[t]" and "plan" to "cause damage to . . . Alvarez-Lopez," as well as her modus operandi, based on anticipated testimony that S.V. "had learned very recently that he was back with [S.R.] and that was upsetting to [S.V.]."
¶12 The trial court granted the state's motion, reasoning the incident was "too remote" and "not admissible pursuant to Rule 404(b)" as evidence of S.V.'s "motive, opportunity, intent, preparation or plan." Additionally, the court concluded that even if the evidence were relevant for a proper purpose and not too remote, its probative value was substantially outweighed by "unfair prejudice, misleading the jury and confusing the issues."
¶13 Alvarez-Lopez argues the trial court erred in precluding the evidence because it was relevant to his defense that S.V. had fabricated the allegations of sexual conduct in retaliation against him for his relationship with S.R. and to rebut S.V.'s "claim that she could care less about [S.R.]."And, he contends, evidence of the incident was admissible as other-act evidence because it established "S.V.'s modus operandi" and "motive to fabricate." Further, he asserts the evidence was more probative than prejudicial and "there was no real danger of unfair prejudice."
At trial, S.V. testified that in August 2020 she was "not at all" jealous of S.R.
¶14 As an initial matter, the state relies on State v. Machado, 226 Ariz. 281 (2011), in arguing that "Rule 404(b) applies only to other-act evidence offered against a defendant." In Machado, our supreme court concluded "[t]he admission of third-party culpability evidence is governed by the standards of Rules 401 through 403 of the Arizona Rules of Evidence, not by Rule 404(b)." Id. ¶ 16. In contrast, the evidence at issue in this case involves an "other-act" of the victim as opposed to the third-party culpability evidence at issue in Machado. See id. ¶¶ 6-7. We need not reach the question of whether Rule 404(b) applies, however, because the trial court acted well within its discretion in excluding evidence of the 2017 incident under Rule 403.
¶15 "In deciding whether to preclude a victim's otherwise admissible [other-]act under Rule 403, a court may consider factors such as" how recent or remote the act was "and the degree to which the evidence would likely engender hostility in the jury." State v. Zaid, 249 Ariz. 154, ¶ 13 (App. 2020). And, although we review a trial court's exclusion of evidence pursuant to Rule 403 "in a light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect," State v. Castro, 163 Ariz. 465, 473 (App. 1989) (quoting United States v. Jamil, 707 F.2d 638, 642 (2d Cir. 1983)), we will not reverse a court's Rule 403 determination "absent a clear abuse of discretion," State v. Taylor, 169 Ariz. 121, 126 (1991).
¶16 Here, in addition to being remote in time, evidence of the 2017 incident has only tenuous relevance to the charged sexual offenses. See Ariz. R. Evid. 401. Thus, as noted, we cannot conclude the trial court abused its discretion by concluding that any probative value of the evidence was substantially outweighed by the risk of prejudice to the state, misleading the jury, and confusion of the issues. See Ariz. R. Evid. 403; cf. State v. Buccheri-Bianca, 233 Ariz. 324, ¶¶ 6-7, 9 &10 (App. 2013) (trial court could properly exclude evidence victim had applied for visa available to victims of certain crimes one year after alleged molestation; probative value was "outweighed by the risk of unfair prejudice and confusion of the issues stemming from a collateral mini-trial on the victims' immigration status").
¶17 Alvarez-Lopez also argues the preclusion of this evidence violated his constitutional right to "establish his defense" because the evidence "rebut[ted] the State's case by showing S.V.'s motive and bias to lie." Defendants have a constitutional right to present a complete defense. Holmes v. South Carolina, 547 U.S. 319, 324 (2006); California v. Trombetta, 467 U.S. 479, 485 (1984); State v. Dunbar, 249 Ariz. 37, ¶ 25 (App. 2020). We review constitutional issues de novo. See State v. Guarino, 238 Ariz. 437, ¶ 5 (2015).
¶18 Alvarez-Lopez relies on State ex rel. Montgomery v. Duncan, 228 Ariz. 514 (App. 2011), and Holmes for the principle that "[w]here an evidentiary rule conflicts with a defendant's right to a fair trial, the evidentiary rule must bend to the constitutional right." In Montgomery, we recognized that relevant evidence could be precluded under a victim's-rights statute unless a trial court determined that the evidence's probative value was substantial enough that preclusion would offend a defendant's constitutional rights. 228 Ariz. 514, ¶¶ 4, 7. Similarly, in Holmes, the Supreme Court explained that although the Constitution "prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury." 547 U.S. at 326; see also State v. Abdi, 226 Ariz. 361, ¶ 32 (App. 2011) ("right to present evidence in one's defense is limited to evidence which is relevant and not unduly prejudicial" (quoting State v. Oliver, 158 Ariz. 22, 30 (1988))).
¶19 As discussed above, the trial court did not err in precluding evidence of the 2017 incident. Acting within its discretion, it determined the evidence was not sufficiently probative to withstand the analysis called for in Rule 403. Trial courts routinely make this type of determination, and Alvarez-Lopez has not persuasively explained why the issues in this case would preclude the court from doing so here. Thus, Alvarez-Lopez's constitutional right to present a complete defense was not violated. See State v. Davis, 205 Ariz. 174, ¶ 33 (App. 2002), as amended (Apr. 23, 2003) ("[A] defendant's constitutional rights are not violated where, as here, evidence has been properly excluded.").
II. Witness Testimony
¶20 Alvarez-Lopez also argues the trial court erred in admitting "the hearsay statement that S.V. purportedly told [Alvarez-Lopez] she wanted a divorce prior to the acts he was charged with committing." "We review a trial court's admission of evidence for an abuse of discretion." State v. Tucker, 215 Ariz. 298, ¶ 58 (2007). Because Alvarez-Lopez objected to admission of this statement on hearsay grounds below, we review for harmless error. See State v. Henderson, 210 Ariz. 561, ¶ 18 (2005). The state must establish any error was harmless by proving beyond a reasonable doubt that the error "did not contribute to or affect the verdict or sentence." Id.; see also State v. Copeland, 253 Ariz. 104, ¶ 27 (App. 2022) (error harmless when evidence of guilt is overwhelming or evidence is cumulative).
¶21 Hearsay is a statement "the declarant does not make while testifying at the current trial or hearing" and "a party offers in evidence to prove the truth of the matter asserted in the statement." Ariz. R. Evid. 801(c). But "[s]tatements 'offered for a purpose other than [proving] the truth of the matter asserted' are not hearsay." State v. Allen, 253 Ariz. 306, ¶ 27 (2022) (alteration in Allen) (quoting State v. Larson, 222 Ariz. 341, ¶ 21 (App. 2009)).
¶22 At trial, Detective Acevedo testified that during his interview with Alvarez-Lopez, Alvarez-Lopez had stated that S.V. "talk[ed] about wanting a divorce" on the morning of August 16. After the state asked Acevedo what Alvarez-Lopez had "said [S.V.] . . . told him," Alvarez-Lopez objected on hearsay grounds. The state argued the statement was only being used for its "effect on the listener" and not to assert as true that S.V. wanted to get a divorce.
¶23 The trial court overruled the objection, reasoning the statement "comes from the defendant" and "could be a lie." Acevedo then testified Alvarez-Lopez had told him S.V. said, "[L]et's do things right and let's get divorced." Acevedo continued that Alvarez-Lopez had said he then hugged S.V. and she "allowed" him to masturbate in front of her and digitally penetrate her vagina. In its closing argument, the state asked the jurors to "think about [Alvarez-Lopez's] statements" to Acevedo and "their reasonableness." It referred to those statements, arguing that Alvarez-Lopez had "mention[ed] that [S.V.] . . . said something about a divorce" and continuing that "[i]f she . . . told him before" the incident "that she wanted a divorce, why did he pull his penis out and masturbate in front of her? .... It really just doesn't line up or make sense."
¶24 On appeal, Alvarez-Lopez argues S.V.'s "out-of-court statement" constituted inadmissible hearsay because the state used it at trial to establish "the truth of the matter that she, in fact, wanted a divorce," not solely to "show [the] effect" it had on him. He maintains S.V.'s statement did not explain why he had masturbated on her, but that the state had instead relied on the truth of S.V.'s statement about wanting a divorce to argue his claim she had consented was unreasonable. Thus, he contends, the statement was hearsay because it was not "offered to show [its] effect on one whose conduct is at issue." State v. Hernandez, 170 Ariz. 301, 306 (App. 1991).
¶25 However, as the state asserts, "It was immaterial to the State's case whether [S.V.] actually wanted [a] divorce." Indeed, it did not argue S.V. had actually wanted a divorce, instead "us[ing] her statement to highlight the irrationality of [Alvarez-Lopez's] claim the conduct was consensual." The state asserted it did not "make sense" that after hearing S.V. wanted a divorce Alvarez-Lopez would "pull his penis out and masturbate in front of her." Thus, insofar as the state relied on Acevedo's testimony, it was to challenge the truth of Alvarez-Lopez's statement that S.V. had said she wanted a divorce and then allowed him into her room and to masturbate. This use did not require that S.V.'s statement be true, and, because it was not used for its truth, it was not hearsay. Cf. State v. Ceja, 113 Ariz. 39, 42 (1976) (officer's testimony as to what he told husband wife had said "not objectionable as hearsay for it was not offered to prove the truth of the words spoken, but to prove the conversation between appellant and the police officer"); Wallace v. Casa Grande Union High Sch. Dist. No. 82 Bd. of Governors, 184 Ariz. 419, 424 (App. 1995) (defendant's statement that plaintiff had affair not hearsay because "not offered to prove the truth of the matter asserted . . . but rather to prove that [defendant] made a defamatory statement").
¶26 Even were we to conclude the state had improperly relied on the statement for the truth of the matter asserted-that S.V. wanted to divorce Alvarez-Lopez-any resulting error was harmless beyond a reasonable doubt. See Henderson, 210 Ariz. 561, ¶ 18. Alvarez-Lopez argues he was prejudiced because the state used S.V.'s statement in closing to rebut his consent defense and "to show that S.V. would be offended or alarmed by him masturbating in front of her, and that [he] should have known that she would be offended or alarmed" by such conduct. But, as discussed above, we do not agree that the truth of that statement was necessary to the state's argument, and, in any event, Alvarez-Lopez was not convicted of any crimes requiring lack of consent as an element. Rather, Alvarez-Lopez was convicted of two counts of public sexual indecency under A.R.S. § 131403, which requires that he had been "reckless" as to whether S.V. "would be offended or alarmed" by his conduct. Under A.R.S. § 13-105(10)(c), Alvarez-Lopez was reckless if he had been "aware of and consciously disregard[ed] a substantial and unjustifiable risk that the result w[ould] occur or that the circumstance exist[ed]." As such, the jury's finding of Alvarez-Lopez's recklessness did not depend on S.V.'s-but Alvarez-Lopez's-state of mind. Thus, any error in the admission of the statement was harmless beyond a reasonable doubt. See Henderson, 210 Ariz. 561, ¶ 18.
III. Curative Instruction
¶27 Lastly, Alvarez-Lopez argues the trial court erred "by denying [his] request to give the jury a curative instruction stating that [he] had no duty to preserve . . . evidence." We review a court's refusal to give a jury instruction for an abuse of discretion. See State v. Bolton, 182 Ariz. 290, 309 (1995); State v. Robinson, 253 Ariz. 121, ¶ 53 (2022), cert. denied sub nom. Robinson v. Arizona, __U.S.__, 143 S.Ct. 494 (2022). We "consider de novo whether the instructions given were legally sufficient when viewed as a whole." State v. Causbie, 241 Ariz. 173, ¶ 15 (App. 2016).
¶28 "A party is entitled to an instruction on any theory of the case reasonably supported by the evidence." Bolton, 182 Ariz. at 309; see also State v. Ewer, 254 Ariz. 326, ¶ 11 (2023). "When making this assessment, the question is whether the evidence, viewed in the light most favorable to the proponent, supports giving the instruction." State v. Almeida, 238 Ariz. 77, ¶ 9 (App. 2015). "[W]hen a jury is properly instructed on the applicable law, the trial court is not required to provide additional instructions that do nothing more than reiterate or enlarge the instructions in defendant's language." Bolton, 182 Ariz. at 309; see also State v. Wilson, 253 Ariz. 191, ¶ 22 (App. 2022) ("A court need not provide a requested jury instruction that is adequately covered by other instructions.").
¶29 Before trial, Alvarez-Lopez moved "to preclude the State from introducing any jail calls pertaining to [his] phone, [his] knowledge of the whereabouts of the phone, [his] conversations with family and defense counsel about the whereabouts of his phone, and any efforts by defendant and defense counsel to obtain the phone." He argued admission of such evidence was improper because it would shift the state's burden of preserving evidence to him and create an ethical conflict for defense counsel, who would "be converted into a witness . . . to defend [her] efforts . . . to retrieve the phone."
¶30 The state responded that the evidence was relevant to show Alvarez-Lopez "had actual notice that the phone was in [personal] property," that "he could go pick it up," and that "it was going to be destroyed if he did not pick it up." The trial court granted Alvarez-Lopez's motion to preclude, clarifying that the state could not ask the detective "whether there's a notice that goes out once [items] go[] into personal property."
¶31 At trial, the state asked Detective Acevedo whether items placed in personal property "eventually get destroyed" pursuant to department policy, to which Acevedo responded affirmatively, adding that "[g]enerally notice is sent to the owner." Alvarez-Lopez later objected to Acevedo's testimony, arguing it was "in direct violation of [the court]'s previous order," which had prohibited questioning of "the detective about the letter that was sent to [Alvarez-Lopez] regarding his phone." He also suggested the violation was sufficiently egregious to warrant a mistrial.
¶32 Alvarez-Lopez subsequently requested an instruction pursuant to State v. Willits, 96 Ariz. 184 (1964). The trial court granted his request, reasoning "evidence was lost or destroyed that could have been potentially helpful or potentially useful to [Alvarez-Lopez] in preparing and defending the case." Accordingly, the court instructed the jury as follows:
"[I]f the state fails to preserve evidence that is potentially exonerating, the accused might be entitled to an instruction informing the jury that it may draw an adverse inference from the state's action." State v. Glissendorf, 235 Ariz. 147, ¶ 1 (2014); see Willits, 96 Ariz. at 191.
If you find that the State has lost, destroyed, or failed to preserve evidence whose contents or quality are important to the issues in this case, then you should weigh the explanation, if any, given for the loss or unavailability of the evidence. If you find any such explanation is inadequate, then you may draw an inference unfavorable to the State, which in itself may create a reasonable doubt as to the defendant's guilt.
¶33 Alvarez-Lopez requested an additional instruction addressing Acevedo's testimony about the department's practice of sending notice to owners of personal property retained by police. The trial court denied his request to instruct the jury "that the defendant bore no burden to conserve evidence in the State's custody." The court explained that the instruction would "point [the testimony] out to [the jury] more than resolving things," and the Willits instruction would make it "obvious" that the court had determined the state "lost or destroyed evidence."
¶34 On appeal, Alvarez-Lopez argues the "jury could have . . . used [his] notice of the impending destruction of his phone as evidence that [he] was partially responsible for the phone's destruction." Thus, he continues, the Willits instruction "did not adequately convey to the jury that the State bore the sole responsibility of collecting and preserving [his] phone," and "there was a real danger that the jury may have placed some of that burden at [his] feet."
¶35 The trial court did not err in denying the instruction requested by Alvarez-Lopez. The subject of the instruction was adequately covered by the Willits instruction, which permitted the jury to draw an inference unfavorable to the state if it concluded the state-not Alvarez-Lopez-had failed to preserve the phone. See Wilson, 253 Ariz. 191, ¶ 22. Moreover, Alvarez-Lopez argued to the jury about the significance of the phone's destruction and his proposed application of the Willits instruction in these circumstances. The jury was therefore presented with all the material it needed to draw the unfavorable inference.
Disposition
¶36 For the foregoing reasons, we affirm Alvarez-Lopez's convictions and sentences.