State v. Gonzalez ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
BENITO MANRIQUEZ GONZALEZ, Appellant.
No. 1 CA-CR 19-0202
FILED 10-6-2020
Appeal from the Superior Court in Maricopa County
No. CR 2018-125217-001
The Honorable Douglas Gerlach, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Jesse Finn Turner
Counsel for Appellant
STATE v. GONZALEZ
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge D. Steven Williams and Judge Paul J. McMurdie1 joined.
B R O W N, Judge:
¶1 Benito Manriquez Gonzalez appeals his convictions and
sentences for three counts of sexual abuse. He argues the superior court
erred by precluding evidence of the victim’s alleged sexual encounter with
another individual because the evidence was relevant to show motive and
bias. For the following reasons, we affirm.
BACKGROUND
¶2 The victim, A.M., and Gonzalez’s daughter, Jessica2, were “on
again, off again friends.” When she was in sixth grade, A.M. visited Jessica
at Jessica’s grandmother’s house. A.M. went into the bathroom to change
into her swimsuit and allegedly found Gonzalez hiding in the shower with
his phone. On another occasion, A.M. spent the night at Jessica’s house and
Gonzalez allegedly came into the room and touched her vagina under her
clothing. Gonzalez allegedly touched A.M. inappropriately on several
other occasions.
¶3 After not communicating for some time, A.M. reconnected
with Jessica the summer between her freshman and sophomore years of
high school; they planned a sleepover at Jessica’s home. On July 1, 2017,
Gonzalez picked A.M. up in his van and while driving back to his home, he
grabbed her breasts over her clothes. A.M. pushed his hand away and told
him to stop.
¶4 When the girls went to sleep in Jessica’s room that evening,
they moved the mattress from the top bunk and put it on the floor for A.M.
1
Judge Paul J. McMurdie replaces the Honorable Kenton D. Jones, who
was originally assigned to this panel. Judge McMurdie has read the briefs and
reviewed the record.
2 Although Jessica is not a victim, because she was a minor at the time
of the offense and given the nature of the issues raised on appeal, we refer
to her by pseudonym to protect her identity.
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STATE v. GONZALEZ
Decision of the Court
to sleep on. Jessica fell asleep, and A.M. stayed awake and was video-
chatting with a friend on her phone when Gonzalez came into the room and
told her to go to sleep. Gonzalez returned to the room a few minutes later,
and A.M. put her phone on mute. Gonzalez forced his way on top of A.M.
and touched her breast under her bra with one hand while putting his other
hand into her underwear, touching her vagina. A.M. told him to stop but
tried to stay quiet because she did not want to wake Jessica. A.M. pushed
Gonzalez off her at one point, but he forced himself back on top of her again.
He used more force the second time and repeatedly said “just let me” when
she told him to stop and leave. Gonzalez eventually left the room.
¶5 A.M. then contacted a friend, and the friend and her
grandmother agreed to pick A.M. up at a nearby community center. The
incident was reported to law enforcement, at which time A.M. spoke to a
police officer and, the next day, received a medical exam. A.M. told the
nurse she had not showered since the event occurred and had only changed
her shorts. Testing later revealed male DNA on A.M.’s right breast, left
breast, face, right neck, left neck, and external genitals. The test also
revealed that the DNA on A.M.’s right breast and right neck matched
Gonzalez’s DNA. Several months later, a detective asked Gonzalez why
his DNA was on A.M.’s breast and neck. Gonzalez said he “didn’t have a
reason,” and “shrugged his shoulders and chuckled.” The State then
indicted Gonzalez on charges of voyeurism, aggravated assault, and sexual
abuse, allegedly occurring on various dates between July 2013 and June
2017; and three counts of sexual abuse relating to the July 2017 incident.
¶6 Shortly before trial, the State filed a motion in limine seeking
to preclude, inter alia, Gonzalez from presenting evidence of the victim’s
sexual history under A.R.S. § 13-1421, Arizona’s rape shield statute.
Specifically, the State noted that “[Gonzalez] and his witness have made
insinuations” that the victim had a sexual relationship with Jessica, but that
Gonzalez had not filed the notice required by § 13-1421(B). The next day
the parties met for a pretrial conference, and defense counsel stated he did
not object to the State’s motion. However, he changed his position the
following day, raising an objection to precluding prior sexual acts under
§ 13-1421. Gonzalez argued § 13-1421 should not apply because the alleged
sexual conduct between A.M. and Jessica was not “past conduct” and it was
the reason he went into Jessica’s bedroom. Specifically, defense counsel
asserted his client went into Jessica’s room because he heard noises and
“saw something he considered inappropriate.” The State responded that it
filed the motion, in part, because Gonzalez told police that when he entered
the room A.M. was not wearing a top or bra when he found her lying in bed
with Jessica and he insinuated they were having “a lesbian affair.” The
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STATE v. GONZALEZ
Decision of the Court
State added that Jessica told a detective she and A.M. were kissing and A.M.
was trying to engage in other sexual conduct. According to the State, A.M.
denied those allegations.
¶7 Although the court generally agreed that Gonzalez had the
right to explain why he went into the bedroom, it later clarified that under
Arizona Rule of Evidence (“Rule”) 403, Gonzalez could testify that he heard
noises coming from his daughter’s room, but could not testify about what
he discovered when he entered the room unless he could show that such
evidence would make the accusations against him more or less probable.
Gonzalez expressed concern that the jury would not understand he “pulled
the covers” off the girls because he thought they were engaged in a sexual
relationship and that in response to what he discovered, he was yelling and
stuttering, which is how his spit landed on A.M.’s body. Gonzalez planned
to introduce this evidence to show the spit was the source of his DNA on
A.M.3
¶8 Gonzalez raised the issue again at the close of jury selection.
The superior court ruled that Jessica could testify as to what she saw
regarding Gonzalez’s conduct, but she could not testify about what
happened before he came into her room because it was not relevant as to
Gonzalez’s behavior. The court clarified that Gonzalez could testify about
what he observed when he walked into Jessica’s room to explain his
reaction and why saliva came out of his mouth, the saliva being a potential
source of the DNA later found on A.M.’s body. At the same time, Gonzalez
admitted he did not see them engaged in sexual behavior when he entered
the room, he just perceived they were doing so because they were lying
together.
¶9 A jury found Gonzalez guilty on the three counts of sexual
abuse that occurred on or about July 1, 2017, but not guilty of the remaining
counts. The superior court sentenced him to consecutive terms of two years
3
At trial, Gonzalez testified that he entered the room because he heard
“moaning.” He shouted at the girls angrily, called them “dirty,” and told
A.M. he “was going to tell her mom everything [he] knew,” to which he
heard A.M. say, “well, fine[,] but . . . you don’t have to spit, man, or
something like that.” Other than this vague reference to spitting, Gonzalez
provided no evidence indicating why his DNA was found on A.M.’s breast
and neck.
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STATE v. GONZALEZ
Decision of the Court
in prison for two counts and imposed lifetime supervised probation on the
third count. Gonzalez timely appealed.
DISCUSSION
¶10 The superior court has considerable discretion in determining
the relevance and admissibility of evidence, and we will not disturb its
ruling absent an abuse of discretion. State v. Rose, 231 Ariz. 500, 513, ¶ 62
(2013); State v. Gilfillan, 196 Ariz. 396, 405, ¶ 29 (App. 2000), abrogated on other
grounds by State v. Carson, 243 Ariz. 463 (2018). We review de novo the
interpretation of statutes. State v. Gates, 243 Ariz. 451, 453, ¶ 7 (2018). We
may “affirm a court’s evidentiary ruling on any basis supported by the
record.” State v. Inzunza, 234 Ariz. 78, 83, ¶ 18 (App. 2014).
¶11 Arizona’s rape shield statute provides in relevant part:
A. Evidence relating to a victim’s reputation for chastity and
opinion evidence relating to a victim’s chastity are not
admissible in any prosecution for any offense in this chapter.
Evidence of specific instances of the victim’s prior sexual
conduct may be admitted only if a judge finds the evidence is
relevant and is material to a fact in issue in the case and that
the inflammatory or prejudicial nature of the evidence does
not outweigh the probative value of the evidence, and if the
evidence is one of the following:
...
3. Evidence that supports a claim that the victim has a motive
in accusing the defendant of the crime.
...
B. Evidence described in subsection A shall not be referred to
in any statements to a jury or introduced at trial without a
court order after a hearing on written motions is held to
determine the admissibility of the evidence. . . . The standard
for admissibility of evidence under subsection A is by clear
and convincing evidence.
A.R.S. § 13-1421.
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STATE v. GONZALEZ
Decision of the Court
¶12 Gonzalez argues the superior court erred by not allowing him
to introduce evidence of A.M. and Jessica’s alleged sexual activity. We
disagree on several grounds.
¶13 First, the alleged sexual activity evidence Gonzalez sought to
present at trial was presumptively prohibited by the plain language of § 13-
1421(A). Gonzalez was therefore required to establish that the evidence
could be admitted under at least one of the listed exceptions. But he did
not file a written motion or otherwise request that the court hold a hearing.
Nor did he assert the motive exception supported admission of the alleged
sexual activity. See infra ¶ 18 A.R.S. § 13-1421(A)(3). And other than general
assertions about the alleged sexual activity made by his counsel, Gonzalez
made no attempt to support those assertions with any evidence, which
necessarily means he did not satisfy the “clear and convincing”
requirement of the statute. A.R.S. § 13-1421(B).
¶14 Second, based on his counsel’s statements to the court,
Gonzalez did not see A.M. and Jessica engaged in sexual activity. He
merely “perceived” they were engaged in such activity because they were
lying together. Evidence of a speculative relationship is irrelevant and
immaterial. See State v. Herrera, 232 Ariz. 536, 550, ¶ 40 (App. 2013); see also
Ariz. R. Evid. 401 (Evidence is relevant if it “has any tendency to make a
fact more or less probable than it would be without the evidence.”).
Moreover, no evidence presented at trial supports his speculative assertion
about the alleged sexual activity. DNA testing showed there was male, not
female, DNA on A.M.’s right breast, left breast, face, right neck, left neck,
and external genitals. And the testing revealed the DNA on A.M.’s right
breast and right neck matched Gonzalez’s DNA.
¶15 Third, we reject Gonzalez’s contention that the superior court
misapplied Rule 403 by evaluating whether the evidence made the offense
more likely, rather than evaluating whether the evidence was relevant for
any reason. He argues the evidence of A.M. and Jessica having a sexual
encounter is so relevant that no amount of prejudice could ever
substantially outweigh it. As provided by Rule 403, 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.” As noted, the court gave the parties multiple
opportunities to discuss what evidence Gonzalez would be able to present
about what he heard and saw when entering the bedroom, and the court
gave Gonzalez wide latitude in testifying regarding his perceptions of that
portion of the incident. Thus, the court did not abuse its discretion in
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STATE v. GONZALEZ
Decision of the Court
finding that the alleged sexual activity with Jessica was precluded by Rule
403. See State v. Williams, 133 Ariz. 220, 230 (1982) (explaining that weighing
and balancing the Rule 403 factors falls within the trial court’s discretion
and “will not be disturbed on appeal unless it has been clearly abused”).
¶16 Fourth, the superior court’s ruling is consistent with the
purpose of § 13-1421, which is “intended to protect victims of [sex crimes]
from being exposed at trial to harassing or irrelevant questions concerning
any past sexual behavior.” Gilfillan, 196 Ariz. at 400-01, ¶ 15; see Michigan
v. Lucas, 500 U.S. 145, 146, 150 (1991) (noting that a rape shield law is
“designed to protect victims of rape from being exposed at trial to harassing
or irrelevant questions concerning their past sexual behavior,” and it
“represents a valid legislative determination that rape victims deserve
heightened protection against surprise, harassment, and unnecessary
invasions of privacy”). Accordingly, the court properly applied A.R.S. § 13-
1421, Rule 401, and Rule 403 in permitting Gonzalez to explain why he
entered the room, what he said, and what he observed, but precluding him
from exploring the unproven allegations about A.M.’s purported sexual
activity with Jessica.
¶17 Gonzalez argues nonetheless that § 13-1421 does not apply
because it does not address what happened here—alleged sexual activity
occurring contemporaneously with the conduct underlying the sexual
abuse convictions. Two of the sexual abuse counts were based on conduct
that occurred after the alleged sexual activity between A.M. and Jessica.
Thus, that activity constitutes A.M.’s “prior sexual conduct,” which is
barred from admission at trial under § 13-1421 unless an exception applies.
See State v. Burbey, 243 Ariz. 145, 147, ¶ 7 (2017) (“When the text is clear and
unambiguous, we apply the plain meaning and our inquiry ends.”); see also
Conrad v. State, 938 N.E.2d 852, 856 (Ind. Ct. App. 2010) (finding that
evidence alleging the victim may have been engaged in activities of a sexual
nature earlier in the same evening as the assault was properly precluded as
evidence of “past sexual conduct” under rape shield law); State v. Smith, 178
P.3d 672, 681 (Kan. Ct. App. 2008) (finding the victim’s sexual conduct with
her boyfriend the day before she was raped was not relevant). The third
count of sexual abuse was based on the incident in Gonzalez’s van before
the sleepover. Thus, it presumably does not fall within the “prior sexual
conduct” category. However, because the alleged sexual activity between
A.M. and Jessica occurred before Gonzalez’s conduct that formed the basis
for the other two sexual abuse counts, the superior court did not abuse its
discretion in precluding the alleged sexual activity.
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STATE v. GONZALEZ
Decision of the Court
¶18 Gonzalez further contends that even if § 13-1421(A) applies,
the evidence of A.M. and Jessica’s alleged sexual activity should have been
admitted under subsection (A)(3) to show A.M.’s motive and bias. He also
argues he was denied his constitutional rights to due process and the right
to confront witnesses by not being able to testify regarding those factors.
Because Gonzalez raises these issues for the first time on appeal, he must
show that fundamental, prejudicial error occurred. See State v. Escalante,
245 Ariz. 135, 140, ¶ 12 (2018).
¶19 As noted, Gonzalez did not file a motion as required by § 13-
1421(B) or request a hearing. And nothing in the record shows that he met
the statute’s clear and convincing standard of admissibility. Gonzalez has
therefore failed to meet his burden of showing that the superior court
committed fundamental error because the court acted in its discretion in
precluding the evidence of A.M. and Jessica’s alleged sexual activity.
Accordingly, we need not address Gonzalez’s arguments that he was
denied due process, the right to confront witnesses, or the right to present
a complete defense.
CONCLUSION
¶20 For the foregoing reasons, we affirm Gonzalez’s convictions
and sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
8