Opinion
No. 1 CA-CR 17-0414
04-24-2018
STATE OF ARIZONA, Appellee, v. MANUEL RAMOS-OSORIO, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee The Nolan Law Firm, PLLC, Mesa By Cari McConeghy Nolan, Todd 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Yavapai County
No. P1300CR201600552
The Honorable Tina R. Ainley, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
The Nolan Law Firm, PLLC, Mesa
By Cari McConeghy Nolan, Todd Nolan
Counsel for Appellant
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.
PERKINS, Judge:
¶1 Manuel Ramos-Osorio appeals his convictions and sentences for sexual conduct with a minor and child molestation. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Ramos-Osorio lived in a home where Victim, then four years old, stayed on three consecutive weekends in early 2016. One day while the two were alone in the home, Ramos-Osorio inserted his finger into Victim's "butt" and touched Victim's genitals. After this incident, Victim began putting lotion inside his anus.
¶3 Victim's mother noticed the lotion and asked him about it. Victim initially responded that Ramos-Osorio had touched him and continued to tell his mother additional details over the following days. Victim's mother took him to the hospital, the incident was reported to the police, and a detective interviewed Victim. Police officers later interviewed Ramos-Osorio, who denied any wrongdoing. In a follow-up interview, Victim reiterated his account and provided additional details of what Ramos-Osorio had done to him.
¶4 In April 2016, a grand jury indicted Ramos-Osorio on one count of sexual conduct with a minor under fifteen years of age, one count of molestation of a child under fourteen years of age, and an additional charge for which he was acquitted. After a trial in April 2017, a jury convicted Ramos-Osorio of sexual conduct with a minor under the age of twelve and molestation of a child.
¶5 On the first day of trial, prior to jury selection, Ramos-Osorio objected to certain proposed testimony by Victim's sister ("Witness") regarding a time she saw Ramos-Osorio and Victim together outside the home. He argued the testimony constituted evidence of a prior act that was inadmissible under Arizona Rule of Evidence 404. Ramos-Osorio also
objected on relevance grounds to proposed testimony by Witness regarding interactions between him and Victim that occurred on the couch and in the bedroom of the home. The court declined to rule on either objection at that time and suggested Ramos-Osorio raise the issue again prior to Witness's testimony. Just before Witness testified, Ramos-Osorio renewed his objection to the proposed testimony regarding the event that occurred outside the home, and the court sustained the objection. Ramos-Osorio did not reiterate his earlier relevance objection to the proposed testimony regarding the couch or bedroom incidents but instead requested, and received, permission to lead Witness with regard to those incidents.
¶6 Victim testified that while visiting the home where Ramos-Osorio resided, Ramos-Osorio "touched [his] butt." Victim further testified Ramos-Osorio placed his finger inside Victim's butt while they were "[o]n the couch." Victim also testified Ramos-Osorio touched his genitals while on the couch and gave him five dollars afterward. Victim denied he was made to touch Ramos-Osorio and denied telling police he had touched Ramos-Osorio. Ramos-Osorio did not object to any of Victim's testimony and was acquitted of the charge related to the allegations he forced Victim to touch his genitals.
¶7 Ramos-Osorio was sentenced to life imprisonment without the possibility of parole for at least thirty-five years for the sexual conduct charge and seventeen years imprisonment, to be served consecutively, for the molestation charge. Ramos-Osorio now appeals.
DISCUSSION
¶8 Ramos-Osorio challenges the admissibility of testimony from Victim and Witness. We review the trial court's rulings on the admissibility of evidence for abuse of discretion. State v. Carlson, 237 Ariz. 381, 387, ¶ 7 (2015). Moreover, when a party fails to properly object to the admission of evidence at trial, we review only for fundamental error. State v. Lopez, 217 Ariz. 433, 435, ¶ 4 (App. 2008).
¶9 Ramos-Osorio argues for the first time on appeal that the court erred in allowing Victim to testify without sua sponte assessing Victim's competency. Relying on Arizona Revised Statutes ("A.R.S.") section 12-2202(2) (2018), Ramos-Osorio asserts Victim's testimony should have been automatically barred, absent a finding by the court as to his competency, because Victim was under ten years of age when he testified. Ramos-Osorio further argues that A.R.S. § 13-1416(A)(1) requires the court
to conduct an in camera hearing to ascertain the reliability of a minor witness's testimony.
¶10 Ramos-Osorio's reliance on A.R.S. § 12-2202 is unavailing because that statute applies only to civil actions, and no criminal analog exists in current Arizona law. Instead, in criminal trials in this state, "every person is competent to be a witness." A.R.S. § 13-4061. Thus, a preliminary competency determination is not mandatory for witnesses under ten in criminal cases. State v. Superior Court In and For Pima County, 149 Ariz. 397, 400 (App. 1986). Similarly, A.R.S. § 13-1416(A)(1) applies only to out-of-court statements made by a minor and that are not otherwise admissible by statute or court rule. The statute does not require a hearing prior to taking testimony in open court. A.R.S. § 13-1416(A)(1) ("[A] statement made by a minor who is under the age of ten years describing any sexual offense . . . on or witnessed by the minor . . . is admissible in evidence in any criminal or civil proceeding if . . . the court finds, in an in camera hearing, that the time, content and circumstances of the statement provide sufficient indicia of reliability."); See State v. Robinson, 153 Ariz. 191, 196-197 (1987) (discussing application of statute to out-of-court statements). Thus, the trial court did not err in allowing Victim to testify.
¶11 Second, Ramos-Osorio argues the trial court improperly permitted Witness to testify regarding other alleged acts. At trial, Ramos-Osorio initially objected to several portions of Witness's proposed testimony. Ramos-Osorio specifically objected to any testimony regarding contact with Victim outside the home based on Rule 404 and objected to Witness's testimony regarding events inside the home based on relevance. The court sustained the former objection and, as to the latter, objections to admissibility on one ground do not preserve issues related to other grounds. State v. Hamilton, 177 Ariz. 403, 408 (App. 1993). Thus, in reviewing Ramos-Osorio's contention that Witness's testimony about the incidents inside the home was inadmissible under Rule 404, we confine our review to fundamental error.
¶12 Under a fundamental error standard, the burden is on the defendant to establish: (1) the trial court erred; (2) the error goes to the foundation of the case, deprives the defendant of a right essential to his defense, and is of such significance that he could not have received a fair trial; and (3) the error was prejudicial. State v. Henderson, 210 Ariz. 561, 608, ¶¶ 23-26 (2005). An appellant's opening brief must provide "significant arguments[] supported by authority," as failure to argue a claim typically constitutes waiver. State v. Carver, 160 Ariz. 167, 175 (1989). Here, Ramos-Osorio does not argue the allegedly improper testimony rises to
fundamental error, nor does he attempt to show he was prejudiced by the error. Consequently, Ramos-Osorio waived his claim of fundamental error after his earlier failure to preserve the issue by specifically objecting at trial. See State v. Moreno-Medrano, 218 Ariz. 349, 354, ¶ 17 (App. 2008). Moreover waiver notwithstanding, the claim is meritless.
¶13 Ramos-Osorio argues Witness was improperly permitted to testify about two occasions where she saw Ramos-Osorio and Victim alone together, once on the couch and once on Ramos-Osorio's bed. Witness further testified that Victim's pants were "crooked." Ramos-Osorio argues this testimony amounts to prohibited character evidence regarding other acts under Rule 404(b). Ramos-Osorio's arguments fails, however, because such evidence is admissible for non-character purposes, such as proof of opportunity. Ariz. R. Evid. 404(b). Indeed, Ramos-Osorio's own testimony put the question of opportunity at issue, as he testified he was never alone with Victim, contrary to Victim and Witness's testimony. Thus, the trial court did not err in permitting Witness's testimony regarding the couch and bed.
CONCLUSION
¶14 For the foregoing reasons, we affirm Ramos-Osorio's convictions and sentences.