State v. Reyes

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

ROBERTO REYES, Appellant.

No. 1 CA-CR 18-0528
FILED 6-20-2019

Appeal from the Superior Court in Maricopa County
No. CR2015-120223-001
The Honorable William R. Wingard, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

The Bidwill Law Firm, PLLC, Phoenix
By Josephine F. Bidwill
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jennifer M. Perkins joined.

W E I N Z W E I G, Judge:

¶1 Roberto Reyes appeals his convictions and sentences for six
counts of sexual conduct with a minor and two counts of sexual abuse. We
affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Reyes first molested his daughter when she was 13 years old.
He continued to sexually abuse her until she was 18 years old, when she
confided in a family friend who then told the girl’s mother. Mother
confronted Reyes, but he denied the allegations. Mother also took her
daughter to “get checked” at the hospital. The hospital reported Reyes’
sexual abuse to the police. Police interviewed Reyes. Reyes first
downplayed the allegations, but then admitted he sexually abused his
daughter. He insisted the sexual contact only began after the daughter
turned 15 years old.

¶3 Reyes was arrested and charged with 12 counts of sexual
conduct with a minor, one count of incest and five counts of sexual abuse.
At the State’s request, the superior court later dismissed six counts of sexual
conduct with a minor, one count of sexual abuse and the incest count.
Reyes waived his right to a jury trial. The superior court held a two-day
bench trial in May 2018, during which the court received the transcript of
Reyes’ police interview and heard testimony from the daughter and two
detectives. The court found Reyes not guilty of two counts of sexual abuse,
but guilty of three counts of sexual conduct with a minor under fifteen years
old, class 2 felonies; three counts of sexual conduct with a minor fifteen
years of age or older, class 2 felonies; and two counts of sexual abuse of a
minor under fifteen years old, class 3 felonies. The court sentenced Reyes

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Decision of the Court

to three consecutive 20-year prison terms, and five concurrent five-year
prison terms. 1 Reyes timely appealed.

DISCUSSION

¶4 Reyes only challenges his convictions for two counts of sexual
conduct with a minor under fifteen years old (counts 2 and 3) and one count
of sexual abuse of a minor under fifteen years old (count 16). He argues the
only evidence that proves his daughter was under 15 years old when the
sexual misconduct occurred was impermissible hearsay evidence, and the
State committed prosecutorial vouching.

¶5 Reyes first argues the superior court erred in allowing a police
detective to testify at trial about the daughter’s early statement to police
that she was in seventh grade (13-14 years old) when Reyes first tried
having sexual intercourse with her. Earlier in the trial, the daughter
testified that Reyes first tried having sexual intercourse with her at some
point before spring break of her eighth-grade year, which could have meant
after she turned 15 years old.

¶6 Reyes argues the detective’s testimony was inadmissible
hearsay under Arizona Rule of Evidence (“Rule”) 801(c)-(d). We review the
court’s hearsay decision for an abuse of discretion, State v. Forde, 233 Ariz.
543, 564, ¶ 77 (2014), and affirm if it is correct for any reason, State v. Perez, 141 Ariz. 459, 464 (1984).

¶7 We find no abuse of discretion on this record. A statement is
not hearsay under Rule 801(d)(1)(A) if the “declarant testifies and is subject
to cross-examination about a prior statement,” and the prior statement “is
inconsistent with the declarant’s testimony.” Here, the daughter testified
at trial and was subject to cross-examination; her trial testimony also
conflicted with her prior statement to police about when Reyes first tried
having sexual intercourse with her. Reyes points to nothing in the record
showing he was prevented from cross-examining the daughter about her
prior statement at trial or subpoenaing her for further cross-examination
after the detective testified. See State v. Parris, 144 Ariz. 219, 221-22 (App.
1985).

¶8 Because the daughter’s prior statement is not hearsay, we do
not consider Reyes’ remaining hearsay-related arguments, which address

1 The sentencing minute entry and transcript conflict on whether the
five-year concurrent prison terms run consecutive to the last of the three 20-
year consecutive prison terms.

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Decision of the Court

Rule 801(d)(1)(B), Rule 803(5), and the alleged resulting prejudice from
admitting the prior statement.

¶9 Reyes next argues the prosecutor committed misconduct by
impermissibly vouching for the victim. He failed to raise this objection at
trial, however, so we review for fundamental error, which requires him to
show that (1) error exists; (2) the error is fundamental; and (3) the error
caused him prejudice. State v. Escalante, 245 Ariz. 135, 140, 142, ¶¶ 12, 21
(2018).

¶10 Two forms of prosecutorial vouching are recognized,
including “(1) where the prosecutor places the prestige of the government
behind its witness [and] (2) where the prosecutor suggests that information
not presented to the jury supports the witness’s testimony.” State v. Vincent, 159 Ariz. 418, 423 (1989). Reyes raises neither form. He instead argues the
prosecutor vouched for “the allegations in the indictment” when he
questioned the daughter at trial and referenced the daughter’s pretrial
police interview. This argument is not one of prosecutorial vouching.
Indeed, far from bolstering the daughter’s testimony, the prosecutor
suggested the daughter’s trial testimony was inconsistent with her earlier
statements to police. Cf. State v. King, 180 Ariz. 268, 277 (1994) (“We fail to
see, nor does defendant explain, how, by suggesting that one of its own
witnesses might lie on the stand, the state was vouching for the credibility
of its witness.”).

CONCLUSION

¶11 We affirm Reyes’ convictions and sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

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