State v. Kogan

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

NAUM KOGAN, Appellant.

No. 1 CA-CR 19-0385
FILED 1-12-2021

Appeal from the Superior Court in Maricopa County
No. CR2017-155708-001
The Honorable Howard D. Sukenic, Judge
The Honorable Susanna C. Pineda, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

DM Cantor, Phoenix
By Christine Whalin
Counsel for Appellant
 STATE v. KOGAN
Decision of the Court

MEMORANDUM DECISION

Chief Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Jennifer B. Campbell and Judge Lawrence F. Winthrop
joined.

S W A N N, Chief Judge:

¶1 Naum Kogan appeals from his convictions and sentences for
sexual conduct with a minor, attempted sexual conduct with a minor, and
sexual abuse. Kogan contends that the superior court wrongly excluded
evidence admissible under the Rape Shield Law, A.R.S. § 13-1421. We
detect no reversible error in the superior court’s evidentiary rulings. We
therefore affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Kogan, 67 years old at the time, met the 14-year-old victim
several days after she ran away from home. The victim had run away
several times before.

¶3 Kogan was living at an extended-stay hotel not far from the
victim’s house. Kogan saw the victim as he was carrying groceries from his
car into his room. Kogan invited her into his room for something to eat and
drink, and she accepted.

¶4 After Kogan and the victim talked and watched television for
a short time, Kogan began kissing her. He then escorted her to the bed and
removed her shirt and bra. According to the victim, Kogan undressed
himself, kissed her breasts, and alternated between touching her vagina
with his fingers and having penile-vaginal intercourse with her. At a
certain point, the victim realized she had an opportunity to leave and did
so. She walked directly to the hotel’s front office and called her mother to
come get her, without explaining why.

¶5 When the victim’s mother arrived, the victim was crying
quietly. Her mother asked, “[w]ere you raped?” and the victim said,
“[y]eah.” The mother called law enforcement, who came to the hotel.

¶6 Police officers found Kogan sitting in his car in the hotel
parking lot. When an officer asked him whether anyone had been in his

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Decision of the Court

room that afternoon, Kogan said he and a female had sex in his room after
eating and drinking. After being taken into custody and interrogated later
that night, Kogan again admitted to having sex with the victim. He told the
detective who questioned him that when he asked the victim how old she
was, she said “eighteen,” although Kogan believed she looked twenty-one
or twenty-two. Kogan said they talked for a while and then mutually
hugged, kissed, and had intercourse before the victim abruptly left. Kogan
described taking the victim’s shirt and bra off, touching and kissing her
breasts, touching her vagina with his fingers, and having “normal sex” with
her, i.e., penile-vaginal intercourse. After Kogan described the encounter,
the detective told him he had spoken with the victim and while she
confirmed the majority of Kogan’s account, she also said she had told
Kogan she was “fourteen.” Kogan appeared surprised and insisted the
victim told him she was eighteen but also remarked, “maybe I didn’t hear
well.”

¶7 The state charged Kogan with three counts of sexual conduct
with a minor under A.R.S. § 13-1405, alleging that he inserted his fingers in
the victim’s vagina two separate times (Counts One and Three) and had
penile-vaginal intercourse with her (Count Two). The state also charged
Kogan with one count of sexual abuse under A.R.S § 13-1404 (Count Four),
alleging that he touched the victim’s breasts.

¶8 At trial, Kogan testified that he and the victim reciprocally
hugged and kissed, and she voluntarily accompanied him to the bed. He
admitted helping her undress but said that he could not obtain an erection
and the victim left his room without him touching her breasts or vagina.
He said that he asked the victim to wait, hoping he would be able to obtain
an erection with time, but she insisted on leaving. Kogan said that he lied
to officers about having sex with the victim because he did not believe the
victim was underage, he suspected he was being accused of nonconsensual
sex, he was confused, and he was embarrassed to admit he could not
perform.

¶9 The victim’s shirt, shorts, and bra (she was not wearing
underwear) were collected for evidentiary purposes a few hours after the
incident, and swabs were taken from her clothing and various parts of her
body. Of DNA profiles recovered from the evidence, Kogan matched
swabs taken from the victim’s left ear, bra clasp, and vagina.1 The victim’s

1 The DNA analyst made a statistical association between Kogan’s
DNA and the sample taken from the victim’s left ear of one in 8.9 octillion.

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Decision of the Court

bra clasp also contained DNA from at least three males other than Kogan.
The inner crotch area of her shorts contained DNA from at least four males,
but the results were too limited to establish Kogan as a match. No semen
or sperm was found in tests of the victim’s shorts or vaginal aspirate.
Kogan’s genitals were swabbed as well and apparently did not show the
presence of the victim’s DNA. Kogan argued to the jury his DNA must
have been inadvertently transferred to the victim’s vagina, or her vaginal
swab, by either the victim or the forensic nurse who conducted the victim’s
sexual assault examination.

¶10 Jurors convicted Kogan of one count of sexual conduct with a
minor using his fingers and the sexual abuse count. They acquitted Kogan
of the second count of sexual conduct with a minor using his fingers.
Unable to agree whether he had penile intercourse with the victim, jurors
convicted him of the lesser offense of attempted sexual conduct with a
minor on that count. The court sentenced Kogan to the minimum term of
thirteen years’ imprisonment for sexual conduct with a minor and placed
him on lifetime probation for the other two convictions. Kogan appeals.

DISCUSSION

¶11 Before trial, Kogan filed motions in limine seeking to cross-
examine the victim about issues relating to prior sexual conduct. Kogan
contends that the superior court improperly restricted that examination
under A.R.S. § 13-1421, commonly referred to as the Rape Shield Law. We
review the superior court’s exclusion of evidence under § 13-1421 for an
abuse of discretion, but we consider the court’s interpretation of the statute
de novo. See State v. Nordstrom, 230 Ariz. 110, 114, ¶ 8 (2012); State v. Herrera, 232 Ariz. 536, 549, ¶ 38 (App. 2013).

¶12 A.R.S. § 13-1421 states:

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

The analyst testified that the statistical association between Kogan’s DNA
and samples taken from the victim’s bra and vaginal area was one in 1500.
Swabs from the victim’s vaginal area were processed using two different
methods, resulting in two sets of results. Kogan’s DNA was found in one
set but not the other.

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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:

1. Evidence of the victim’s past sexual conduct with the
defendant.

2. Evidence of specific instances of sexual activity showing
the source or origin of semen, pregnancy, disease or trauma.

3. Evidence that supports a claim that the victim has a motive
in accusing the defendant of the crime.

4. Evidence offered for the purpose of impeachment when
the prosecutor puts the victim’s prior sexual conduct in issue.

5. Evidence of false allegations of sexual misconduct made by
the victim against others.

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. If new
information is discovered during the course of the trial that
may make the evidence described in subsection A admissible,
the court may hold a hearing to determine the admissibility
of the evidence under subsection A. The standard for
admissibility of evidence under subsection A is by clear and
convincing evidence.

I. THE SUPERIOR COURT DID NOT ERR BY LIMITING KOGAN’S
CROSS-EXAMINATION OF THE VICTIM ABOUT A PRIOR FALSE
ALLEGATION.

¶13 Several months before the victim met Kogan, she ran away
from home and took a bus to California. After a few days, she called her
mother and told her she had been kidnapped. In speaking to police officers,
the victim said that a man named “David” had kidnapped her in Arizona
and taken to her to California against her will. She said that “David” told
her she would need to earn money by performing oral sex with his friend—
which led her to flee and call her mother. According to the victim’s mother,
the victim lied about being kidnapped to avoid getting into trouble for
going to California.

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¶14 Kogan filed a motion in limine to cross-examine the victim
about her false account, arguing that the evidence was admissible under the
Rape Shield Law because it showed the victim made “false allegations of
sexual misconduct . . . against others” and had “a motive in accusing [the]
defendant of a crime”—namely, to avoid being punished for running away
again. See A.R.S. § 13-1421(A)(3), (5). The superior court denied the motion,
reasoning that the evidence Kogan sought to present did not come within
§ 13-1421. The court ruled that under Arizona Rule of Evidence (“Rule”)
608, however, Kogan could ask the victim’s mother her general opinion on
the victim’s truthfulness and whether the victim was untruthful when she
was afraid of getting in trouble.

¶15 Kogan then brought another motion in limine seeking to
introduce evidence that “the victim . . . made the false allegation to her
mother and to LAPD that she was kidnapped from Arizona and
transported to Los Angeles” as showing that the victim’s modus operandi
was to lie after running away to avoid punishment. See Ariz. R. Evid.
404(b). After hearing argument, the superior court ruled that Kogan could
“ask whether or not the victim got to California on her own and whether or
not she lied about the kidnapping to avoid being in trouble.” At trial, the
victim admitted that she lied about being kidnapped so her mother would
not be angry and that she sometimes lied when she believed she would
otherwise get in trouble.

¶16 Kogan contends that the superior court abused its discretion
by not allowing him to cross-examine the victim about the oral sex
component of her story under A.R.S. § 13-1421. Kogan’s argument is
unconvincing. The superior court reasonably concluded that evidence the
victim was told she would have to perform oral sex for money—which
never actually occurred—was not a specific instance of the victim’s prior
sexual conduct subject to admission under § 13-1421. Cf. State v. Duncan, 228 Ariz. 514, 516, ¶ 4 (App. 2011) (holding that evidence not falling within
the plain language of the Rape Shield Law exceptions is inadmissible under
that statute). What Kogan sought to admit, in substance, was not evidence
of the victim engaging in prior sexual conduct but rather evidence that the
scope of her previous lie included an allegation relating to sexual conduct.2
We therefore detect no error in the superior court’s evidentiary ruling.

2 As we previously noted, the court allowed Kogan to cross-examine
the victim about the alleged kidnapping as other-act evidence showing a
modus operandi to lie in order to avoid being punished after running away.

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Decision of the Court

¶17 Further, even if the evidence could be deemed to show the
victim’s prior sexual conduct, we would find no error in the court’s ruling
because the evidence’s relevance depended upon the allegation being false
and Kogan failed to show, by “clear and convincing evidence” as A.R.S.
§ 13-1421(B) requires, that the oral sex allegation in the victim’s account was
a lie. See State v. Perez, 141 Ariz. 459, 464 (1984) (holding that an appellate
court is “obliged to affirm the trial court’s ruling if the result was legally
correct for any reason”). While the victim may have lied about being
kidnapped, her allegation of being asked to provide oral sex may or may
not have been truthful. To prove the falsity of the victim’s kidnapping
story, Kogan relied on an interview with the victim’s mother by law
enforcement. In the interview, the mother made clear that the victim lied
about being kidnapped from Arizona and taken to California. But the
mother did not discount that the victim might have been told she would
have to perform oral sex for money after she arrived in California and met
“David” on a local bus. Given the mother’s uncertainty, Kogan failed to
demonstrate that it was “highly probable or reasonably certain” the victim
was lying about the oral sex portion of her account. See Kent K. v. Bobby M., 210 Ariz. 279, 284–85, ¶ 25 (2005) (citation omitted).

II. THE SUPERIOR COURT’S ERROR IN LIMITING KOGAN’S
CROSS-EXAMINATION OF THE VICTIM ABOUT RECENT
SEXUAL PARTNERS WAS HARMLESS.

¶18 The nurse who conducted the victim’s sexual assault
examination reported some bruising on the victim’s breasts and minor
injuries to her genitals. When the nurse asked the victim whether she had
had sex with anyone other than Kogan in the five preceding days, the victim
said no.

¶19 Kogan filed a motion in limine seeking permission to cross-
examine the victim about sexual activity with other partners in the days
leading up to her encounter with Kogan, arguing that her testimony was
admissible under the Rape Shield Law because it might show that someone
other than Kogan caused the reported injuries. See A.R.S. § 13-1421(A)(2).
In support of the motion, Kogan pointed to the following: forensic evidence

Kogan’s Rule 404(b) motion referred only to the kidnapping aspect of the
victim’s account, without specifically asking the court to admit the oral sex
component of her story. The absence of a transcript of the hearing on the
motion leaves us unable to determine whether, and to what extent, the court
addressed the oral sex allegation under Rule 404(b). Kogan’s argument on
appeal is limited to exclusion of the evidence under the Rape Shield Law.

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showing DNA from multiple males other than Kogan on the victim’s bra
clasp and inner crotch area of her shorts, evidence that the victim had been
a runaway for several days when she met Kogan, and evidence that the
victim had been kicked out of another room at Kogan’s hotel, which had
been rented by a man, not long before she met Kogan.

¶20 The superior court denied Kogan’s motion after an
evidentiary hearing. The court reasoned that Kogan’s theory the victim
might have had sex with someone before Kogan was “very speculative,”
and he failed to show “specific instances” of sexual conduct as
contemplated by A.R.S. § 13-1421.

¶21 During direct examination of the victim at trial, while
discussing the victim’s sexual assault examination, the prosecutor asked
her: “And one of the questions that [the nurse] asked you, was it—let me
rephrase. So, this happened on December 3rd, 2017. Prior to that, had you
had any sexual intercourse with anyone other than the defendant the five
days prior?” The victim answered, “No.”

¶22 The state’s question about the victim’s sexual activity
prompted Kogan to ask the superior court to revisit its earlier ruling. Kogan
argued that the state’s question opened the door to him examining her
about prior sex partners. The court concluded that the Rape Shield Law
was “still . . . intact” because the prosecutor’s question did not imply that
the victim had no sexual history. The court ruled that Kogan could ask the
victim the very same question asked by the state—namely, did she have sex
with anyone else in the five-day period before she met Kogan—but he could
go no further without court approval.

¶23 The court’s initial, pretrial ruling on Kogan’s motion in limine
was not an abuse of discretion because the court reasonably concluded that
evidence of unknown male DNA on the victim’s clothes, the victim’s
runaway status, and the victim’s presence in another hotel room was not
“clear and convincing evidence” that a prior sex partner caused the victim’s
injuries. But once the state asked the victim whether she had sex with
anyone in the days before Kogan—which was the very question Kogan
sought to ask the victim in his pretrial motion—the state opened the door
to cross-examination on that issue. Evidence of a victim’s prior sexual
conduct is subject to admission under A.R.S. § 13-1421(A)(4) where “offered
for the purpose of impeachment when the prosecutor puts the victim’s prior
sexual conduct in issue.” Here, the prosecutor put at issue the victim’s
sexual activity during the five-day period before she met Kogan. The

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superior court unreasonably limited Kogan’s efforts to ask follow-up
questions about that issue.

¶24 The court’s error was harmless, however, because the state
has shown “beyond a reasonable doubt that the error did not contribute to
or affect the verdict or sentence.” State v. Henderson, 210 Ariz. 561, 567, ¶ 18
(2005). The record contains no indication that Kogan’s cross-examination
would have revealed any evidence not otherwise presented at trial. Even
though an offer-of-proof requirement may be “relaxed” when the proof
consists of an answer on cross-examination that counsel will not normally
know in advance, “something more than speculation about possible
answers is required to show prejudice.” State v. Towery, 186 Ariz. 168, 179
(1996). Kogan’s argument for cross-examining the victim about recent
sexual partners was based on the DNA evidence, her runaway status, and
her presence in another hotel room—all issues presented at trial and
capitalized on by Kogan. Apart from pure speculation that the victim
would admit on cross-examination that her previous testimony about
sexual activity was a lie, Kogan had no information suggesting that he
could elicit additional testimony from the victim helpful to his case. See
State v. Gallegos, 178 Ariz. 1, 13 (1994) (holding erroneous exclusion of
evidence harmless because it was “merely cumulative” to other evidence
presented). We note also that even if Kogan did present evidence that the
victim engaged in sexual activity with other partners, that evidence would
not necessarily exculpate him.

¶25 In addition, we cannot ignore the overwhelming evidence
supporting Kogan’s convictions. “We can find error harmless when the
evidence against a defendant is so overwhelming that any reasonable jury
could only have reached one conclusion.” State v. Anthony, 218 Ariz. 439,
446, ¶ 41 (2008). Kogan’s DNA was found in the underage victim’s vagina,
and he himself testified that he kissed the victim, removed her bra, and
intended to have intercourse with her. In order for jurors to have reached
a different decision, they would have had to believe (1) Kogan’s confession
to specific details of where and how he kissed, touched, and had intercourse
with the victim were all false, (2) the numerous consistencies between the
victim’s account and Kogan’s confession were merely coincidental, and (3)
either the victim herself transferred Kogan’s DNA to her vagina or the
forensic nurse contaminated the victim’s vaginal swab with Kogan’s DNA.
To state the proposition is to show how untenable it is.

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CONCLUSION

¶26 We affirm for the reasons set forth above.

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

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