Opinion
No. 2 CA-CR 2017-0360-PR
02-26-2018
THE STATE OF ARIZONA, Respondent, v. TEODORO GOMEZ-TORRES, Petitioner.
COUNSEL Ronald S. Gilleo, Mohave County Legal Defender By Eric Devany, Deputy Legal Defender, Kingman Counsel for Petitioner
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NOT FOR PUBLICATION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). Petition for Review from the Superior Court in Mohave County
No. CR201301013
The Honorable Derek Carlisle, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Ronald S. Gilleo, Mohave County Legal Defender
By Eric Devany, Deputy Legal Defender, Kingman
Counsel for Petitioner
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred. BREARCLIFFE, Judge:
¶1 Petitioner Teodoro Gomez-Torres seeks review of the trial court's order denying his petition for post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007). We find no such abuse here.
¶2 After a jury trial, Gomez-Torres was convicted of child molestation, sexual abuse, and four counts of aggravated assault. The trial court sentenced him to concurrent and consecutive prison terms totaling 23.5 years. We affirmed his convictions and sentences on appeal. State v. Gomez-Torres, No. 1 CA-CR 14-0761 (Ariz. App. Oct. 22, 2015) (mem. decision). Gomez-Torres then sought post-conviction relief, arguing trial counsel had been ineffective by failing to: (1) file certain pretrial motions and move for a mistrial; and, (2) cross-examine one of the victims, A.G., regarding alleged inconsistent statements between her first interview with the police and her testimony at trial. Following an evidentiary hearing limited to the second claim, the court denied Gomez-Torres's Rule 32 petition, and this petition for review followed.
During A.G.'s initial police interview, she reported she would "rest [her] head near [Gomez-Torres's] lap and he would move his hands . . . over himself," and that one time she "woke up and [Gomez-Torres] was . . . sucking on [her] toes." A.G. also told the detective she thought "those were the only times" Gomez-Torres had made her feel "uncomfortable." At trial, A.G. testified Gomez-Torres had "suck[ed] on [her] toes" on two occasions and had rubbed her hand against his penis over his clothing on another occasion. --------
¶3 To obtain relief, Gomez-Torres was required to establish that trial counsel's conduct fell below prevailing professional norms and that he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). "To establish prejudice, a defendant must 'show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Kolmann, 239 Ariz. 157, ¶ 9 (2016), quoting Hinton v. Alabama, ___ U.S. ___, ___, 134 S. Ct. 1081, 1089 (2014).
¶4 On review, Gomez-Torres asserts the trial court should have found trial counsel's conduct deficient for failing to cross-examine A.G. about the inconsistencies between her initial police interview and her testimony at trial, when she testified there were two incidents, rather than one, involving her toes and an incident involving the placement of her hand on Gomez-Torres's penis. Gomez-Torres also argues trial counsel's failure to cross-examine A.G. was prejudicial, in that it denied him "an opportunity to challenge the veracity of [A.G.'s] testimony in front of the jury," particularly in a case like this one, where there was no physical evidence and the state relied "almost entirely" on the testimony of the witnesses. He also suggests that, because the court found "there was information that could have been 'more thoroughly developed'" during cross-examination, the court necessarily should have found counsel ineffective for failing to cross-examine A.G.
¶5 At the evidentiary hearing, trial counsel testified that before trial he had reviewed A.G.'s first police interview, in which she had disclosed a single incident with Gomez-Torres, and he was aware, also before trial, of a second interview, in which she had disclosed two more incidents. When asked why he did not cross-examine A.G. at trial, counsel pointed out that "the prosecutor had brought up the reasons for the late disclosure" about the "second two events," and added that A.G.'s late disclosure had not surprised him in light of her being "a juvenile and the nature of the offenses." Importantly, trial counsel explained that cross-examining A.G. could have harmed Gomez-Torres by leading the jury to believe counsel was "trying to beat up on" the then seventeen-year-old victim, and added that keeping A.G. on the witness stand longer than necessary might have encouraged the jury to "put more weight on her testimony." He explained that he did not "want to magnify [A.G.'s impact on the jury] by keeping her on the stand and re-emphasizing what she had already testified to." Counsel agreed that his decision not to cross-examine A.G. was calculated and was based on strategy. He explained that if the state had not pointed out on direct examination the reasons for A.G.'s late disclosure of the other incidents, he would have cross-examined her, and testified that he also knew he would have the opportunity during closing argument to point out the differences in A.G.'s statements.
¶6 Ruling from the bench, the trial court determined Gomez-Torres had not established that trial counsel's performance was deficient, and even if deficient, that he was prejudiced thereby. Notably, the court stated that although A.G. had testified about three incidents at trial, she also had testified that she had not wanted to talk to the officer during the first interview and she had not told him everything at that time. The court expressly considered trial counsel's explanation as to why he had not cross-examined A.G., finding counsel's "trial decisions and his explanation" for those decisions were "reasonable." Although the court found A.G. could have been impeached with her prior statements, it nonetheless noted if this had occurred, the state would have rehabilitated her and her second inconsistent interview "would have come in in more detail." The court also pointed out that, in any event, A.G. may have been referring during the first interview to multiple incidents when she mentioned "those . . . times," suggesting she had experienced more than one "uncomfortable" event with Gomez-Torres.
¶7 Based on the record before us, we conclude the trial court did not abuse its discretion by denying relief. Trial counsel provided a plausible and factually-supported explanation based on sound trial strategy for his decision not to cross-examine A.G. Tactical or strategic decisions rest with counsel, State v. Lee, 142 Ariz. 210, 215 (1984), and we will presume "that the challenged action was sound trial strategy under the circumstances," State v. Stone, 151 Ariz. 455, 461 (App. 1986). As previously noted, trial counsel explained he did not want to place A.G. in front of the jury longer than necessary or make the jury believe he was "beat[ing her] up." This became especially apparent in light of A.G.'s repeated statements at trial that Gomez-Torres's actions made her feel "disgusted." "Disagreements as to trial strategy or errors in trial [tactics] will not support a claim of ineffective assistance of counsel as long as the challenged conduct could have some reasoned basis," as it did here. State v. Meeker, 143 Ariz. 256, 260 (1984).
¶8 We grant review but deny relief.