State v. Riepe

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JORDAN RIEPE, Appellant.

No. 1 CA-CR 19-0555
FILED 9-8-2020

Appeal from the Superior Court in Coconino County
No. S0300CR201700891
The Honorable Mark R. Moran, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michelle L. Hogan
Counsel for Appellee

Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant
 STATE v. RIEPE
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge D. Steven Williams and Chief Judge Peter B. Swann1 joined.

B R O W N, Judge:

¶1 Jordan Riepe appeals his convictions and sentences for two
counts of sexual assault. For the following reasons, we affirm.

BACKGROUND

¶2 The State tried Riepe on three counts of sexually assaulting
his 16-year-old stepsister.2 The victim testified Riepe put his fingers, an
object, and his penis in her vagina without her consent after they had been
drinking alcohol at Riepe’s girlfriend’s apartment. That same night, the
victim told family members, medical personnel, and law enforcement that
Riepe raped her. The State indicted Riepe on three counts of sexual assault.
At the conclusion of a four-day trial, the jury found Riepe not guilty of the
charge involving an object but found him guilty of the other two sexual
assault charges.

¶3 The superior court sentenced Riepe to consecutive mitigated
terms of 5.25 years’ imprisonment for each conviction. This timely appeal
followed.

DISCUSSION

A. Use of Facility Dog

¶4 Before trial, the State filed a “motion for use of a facility dog
in court proceedings.” See A.R.S. § 13-4442. The State asserted that the
victim, now 18 years old, would have less “anxiety and stress” while

1 Chief Judge Peter B. Swann replaces the Honorable Kenton D. Jones,
who was originally assigned to this panel. Chief Judge Swann has read the
briefs and reviewed the record.

2 Though not technically stepsiblings, the victim testified that she and
Riepe considered themselves such because Riepe’s mother and the victim’s
father had been a couple for a long time.

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participating in the case if a service dog were allowed to accompany her.
Riepe did not respond to the State’s motion, and the superior court granted
it, stating it would consider restrictions on the dog’s use before jury
selection. At a pretrial conference, the State asked that the dog be allowed
in the courtroom during Riepe’s trial and placed at the victim’s feet while
she testified. Riepe did not oppose the request, provided the dog was not
“paraded in front of the jury.” The court ruled the victim could testify with
the dog beside her but the dog should not be visible to the jury during her
testimony or while it was brought to and from the witness stand.

¶5 On the second day of trial, before the jury was empaneled,
Riepe complained that on the previous day, “because of the way the seating
was done, the [prospective] jurors had to walk past the victim and her
family and the dog, and one almost tripped on the dog and [on] a number
of occasions the jurors saw [the victim] petting the dog while they were
sitting [in the court] during jury selection.” Riepe stated he was not asking
for a mistrial but believed it was “outside of the spirit of the court’s ruling”
to allow the victim to “pet the dog in front of the jury.” Noting its previous
ruling did not address the dog’s use when the victim was in the gallery, the
superior court ruled the dog could not be “paraded back and forth in front
of the jury” or “used in a manner in which the victim is actively interacting
with the dog while the jury is present.”

¶6 After the State rested its case, Riepe asserted the dog had been
walking around while witnesses testified, distracting jurors, and it should
be removed from the courtroom if it could not be less obtrusive. The
superior court “dispute[d]” Riepe’s account of the dog’s behavior, stating it
closely observed the dog during the proceedings, the dog was not walking
around, and the jurors’ attention was focused on the evidence. The court
denied Riepe’s motion.

¶7 On appeal, Riepe argues the statute permitting facility dogs
to be used by victims at trial violates due process. He contends the practice
sends a message to jurors that a defendant has caused trauma to the victim,
which erodes the presumption of innocence and encourages jurors to
consider extrinsic evidence.

¶8 Because Riepe did not challenge the constitutionality of the
facility dog’s use before the superior court, we review only for fundamental
error. See State v. Williams, 220 Ariz. 331, 334, ¶ 8 (App. 2008). Under that
standard, Riepe has the burden to show the claimed error (1) goes to the
foundation of his case, (2) takes away a right essential to his defense, or (3)
is of such magnitude that it denied him a fair trial. State v. Escalante, 245

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Ariz. 135, 138, ¶ 1 (2018). If the error falls under either of the first two
prongs, Riepe must establish prejudice; if it falls under the third prong,
prejudice is presumed. Id.

¶9 Under Arizona law, the superior court may allow an adult
victim to be accompanied by a facility dog while the victim testifies,
provided the party seeking to use the dog “file[s] a notice with the court
that includes the certification of the facility dog, the name of the person or
entity who certified the dog and evidence that the facility dog is insured.”3
A.R.S. § 13-4442(A), (B); see also Ariz. R. Crim. P. 39(b)(9) (protecting an
eligible victim’s “right to the assistance of a facility dog when testifying as
provided in A.R.S. § 13-4442”). If a facility dog is used, “the court shall
instruct the jury on the role of the facility dog and that the facility dog is a
trained animal” to ensure the dog’s presence “does not influence the jury
or is not a reflection on the truthfulness of any testimony that is offered by
the victim.” A.R.S. § 13-4442(C).

¶10 We evaluate whether a particular practice inherently
diminishes the presumption of innocence in the mind of jurors by
considering “reason, principle, and common human experience.” Estelle v.
Williams, 425 U.S. 501, 504 (1976). Those considerations cut against Riepe’s
constitutional claim. Support animals have become commonplace in our
society. To the extent use of a facility dog poses a risk of prejudicing the
defendant, the superior court has discretion to place conditions on the dog’s
use and is obligated to instruct jurors not to consider the dog’s presence for
an improper purpose.4 Unlike compelling a defendant to attend trial in
prison clothes or shackles, the limited use of a support animal does not
present “a continuing influence throughout the trial” that creates “an
unacceptable risk . . . of impermissible factors coming into play.” Id. at 504–

3 The victim in this case was over 18 years old at the time of trial. The
superior court must allow a victim under 18 to use a facility dog while
testifying but has discretion whether to allow a victim over 18 to do so.
A.R.S. § 13-4442(A), (B).

4 The standard facility dog instruction reads as follows: “A witness
may be accompanied by a dog while testifying in court. The dog’s presence
is not and should not be a reflection on the truthfulness or credibility of any
testimony that is offered by the witness. The dog is trained to assist
witnesses in court proceedings. The presence of the dog should not
influence your deliberations in any way.” Rev. Ariz. Jury Instr. Stand.
Crim. 27 (facility dog) (5th ed. 2019).

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05; see also Holbrook v. Flynn, 475 U.S. 560, 569 (1986) (contrasting a
defendant’s conspicuous shackling or prison attire with the courtroom
placement of armed guards, to whose presence “[o]ur society has become
inured . . . in most public places”). Riepe has failed to show § 13-4442
“involves such a probability that prejudice will result that it is deemed
inherently lacking in due process.” Estes v. Texas, 381 U.S. 532, 542–43
(1965).

¶11 Moreover, the superior court had discretion to allow the
facility dog to accompany the victim at trial under State v. Millis, 242 Ariz.
33 (App. 2017). In that case, we rejected the defendant’s argument that
allowing a facility dog to accompany a victim sitting in the gallery at trial is
“presumptively prejudicial” to the defendant in every case. Id. at 41–42,
¶¶ 28, 32. Following the use of the dog at pretrial hearings, the defendant
filed a motion in limine to preclude the dog’s presence at trial and argued
repeatedly he would be prejudiced. Id. at 41, ¶ 28. We determined that use
of the dog was not prejudicial, partly because “there is no indication that
this policy contaminates a fair trial in every case.” Id. at 42, ¶ 32. Further,
the dog accompanied the victim while she sat in the gallery, not while
testifying. Id. at 41, 43, ¶¶ 28, 33. And in any case, we reasoned that
“[a]lthough § 13-4442 was not in effect at the time of Millis’s trial, it shows
the policy of the State of Arizona to accommodate crime victims’ use of a
dog.” Id. at 42, ¶ 32. We see no reason to depart from this analysis and
therefore conclude Riepe has not established that the practice of allowing a
facility dog to accompany a victim violates due process.

¶12 Riepe also argues the superior court erred by allowing the
dog to be used at his trial because (1) the dog lacked valid proof of insurance
and certification, (2) the court failed to instruct the jury on the dog’s role,
and (3) the court should have excluded the dog from the courtroom in
response to Riepe’s objections to its use and behavior.

¶13 When the State moved to use the facility dog in this case, it
submitted a letter describing insurance coverage for the dog and a
certificate showing the dog had completed training with a licensed
organization. See A.R.S. § 13-4442(A). Riepe argues the proof of insurance
was not current and the dog’s certificate was expired at the time of trial.5

5 The State filed the motion for use of a facility dog seven months
before Riepe’s trial. The proof of insurance was dated approximately one
year before trial and stated that it covered two service dogs, which were not
further identified. A certificate showed the dog used in this case had

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We review the superior court’s interpretation and application of § 13-4442
de novo. State v. Smith, 228 Ariz. 126, 129, ¶ 12 (App. 2011). Because Riepe
did not object to the State’s proof until now, he must establish fundamental,
prejudicial error to merit relief. See Escalante, 245 Ariz. at 138, ¶ 1.

¶14 Riepe has not satisfied his burden. The superior court
reasonably accepted the State’s proof of insurance for the dog in this case,
and Riepe offers no support or explanation for his argument to the contrary.
Nor does he substantiate his claim the dog’s certification had lapsed. The
dog’s training certificate showed it was duly certified to provide assistance
by an organization currently licensed to provide that certification. That the
organization’s license might have been expired when the State filed its
motion to use the dog or at the time of trial has no bearing on whether the
dog was certified in accordance with § 13-4442.

¶15 Despite being required to do so under § 13-4442(C), the
superior court did not instruct jurors on use of the facility dog. After
receiving the court’s proposed instructions—which apparently did not
include the facility dog instruction envisioned by § 13-4442(C)—Riepe did
not request that instruction or otherwise point out the omission. A
defendant’s failure to object to an omitted instruction at trial limits our
review of the omission on appeal to fundamental error only. See State v.
Gallegos, 178 Ariz. 1, 11 (1994).

¶16 Even though the victim’s credibility was a critical issue at
Riepe’s trial, her use of the dog was not vital to jurors’ assessment of
credibility. The record reveals no indication jurors saw the victim with the
dog after the first day of jury selection. By instructing jurors both before
and after the close of evidence that Riepe was presumed innocent and they
should determine the facts solely on the basis of the testimony and admitted
exhibits without being influenced by sympathy, the superior court
mitigated the likelihood jurors would inappropriately consider the dog’s
presence in evaluating the victim’s testimony. See State v. White, 160 Ariz.
24, 31–32 (1989) (omission of presumption of innocence instruction was not
fundamental error where the court otherwise gave correct instructions
placing the burden of proof on the State). Although the court should have
instructed the jury on the limited purpose of the facility dog, Riepe has not
shown the error went to the foundation of his case or took away a right

completed training with a licensed organization 14 months before Riepe’s
trial. The organization’s license was current when the dog completed
training, but it was set to expire, if not renewed, three months after that
training.

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essential to his defense; nor has he established prejudice. See Escalante, 245
Ariz. at 138, ¶ 1.

¶17 Riepe also argues the superior court erred by not excluding
the dog in response to his objections during trial. We review the court’s
rulings on use of the dog during the trial for an abuse of discretion. Millis,
242 Ariz. at 41, ¶ 27. Because Riepe only asked to exclude the dog after his
second objection, we review his first objection for fundamental error only.
See Escalante, 245 Ariz. at 138, ¶ 1.

¶18 The superior court’s rulings on Riepe’s objections to the
facility dog were within its discretion. When Riepe objected to the victim
petting the dog in the presence of prospective jurors, the court ruled she
could no longer interact with the dog. Excluding the dog at that point was
unnecessary because jurors never saw the dog with the victim after the
court’s ruling. When Riepe later asserted the dog was distracting jurors,
the court disputed that observation. Barring the dog’s presence after
Riepe’s second objection was unnecessary because the court found the dog
was not a distraction and Riepe offers no evidence to counter that finding.

B. Exclusion of Evidence on Cross-Examination

¶19 Riepe argues the superior court violated his constitutional
right to confront an adverse witness by sustaining objections to his cross-
examination of the victim. We review rulings involving the Confrontation
Clause de novo. State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006).

¶20 Opportunity for cross-examination is the principal right
secured by the Confrontation Clause. Davis v. Alaska, 415 U.S. 308, 315–16
(1974). That right is not limitless, however. “[T]rial judges retain wide
latitude insofar as the Confrontation Clause is concerned to impose
reasonable limits on . . . cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the witness’[s]
safety, or interrogation that is repetitive or only marginally relevant.”
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). “[T]he Confrontation
Clause guarantees an opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever extent, the
defense might wish.” Id. (citation omitted).

¶21 In reviewing the reasonableness of restrictions on cross-
examination, we consider “whether the defendant has been denied the
opportunity of presenting to the trier of fact information which bears either
on the issues in the case or on the credibility of the witness.” State v. Riggs, 189 Ariz. 327, 331 (1997) (citation omitted).

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¶22 A nurse who examined the victim shortly after the assault
noticed some abrasions and redness on the victim’s neck. The victim did
not know how she received the marks. She did not remember Riepe
touching her neck, nor could she recall having the marks before the assault
or receiving them after it. Swabs taken from the area revealed a mixture of
DNA that excluded Riepe, assuming the mixture was limited to two
contributors. On cross-examination, Riepe asked the victim if she told
people the marks on her neck were not there before Riepe assaulted her.
After she answered yes, Riepe asked if she had “any explanation why some
other man’s DNA was on the marks on [her] neck.” The State objected and
the superior court sustained the objection as speculative, reasoning the
victim had previously testified “she did not know how the marks got
there.”

¶23 Riepe argues the superior court’s ruling deprived him of his
right to confront the victim because she might have remembered someone
else caused the marks, which would have weakened the State’s case against
Riepe. The record shows no error. Because there was no evidence the
unidentified DNA on the victim’s neck came from a man, Riepe’s question
to the victim mischaracterized the evidence and was both speculative and
argumentative. See State v. Perez, 141 Ariz. 459, 464 (1984) (appellate court
“obliged to affirm the trial court’s ruling if the result was legally correct for
any reason”).

¶24 Riepe also argues the superior court erred by sustaining
objections to questions he asked the victim about her body position when
Riepe assaulted her. The relevant exchange went as follows:

Q Did you tell anybody -- did you testify today that you tried
to stop him when he was pulling your pants down?

A No.

Q But in this version you were awake when he did that?

A Yes, I was awake when he did that.

Q Then you said that you rolled over onto your stomach;
correct?

A He got on top of me and then I rolled over on my stomach.

Q Well, if you’re on your side, how can he get on top of you
and put his penis into you?

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A I don’t know. I wasn’t watching.

Q You were on your side?

A Yes, I was on my side.

Q You rolled over onto your stomach?

A No. He got on top of me and then I rolled over on my
stomach.

....

Q He got on top of you while you are lying on your stomach;
is that what you said?

A I said I was lying on my side and then he got on top of me.

Q You’re saying he got on top of you while you were laying
on your side; correct?

A No.

Q Well, you said you didn’t --

A For him to be on top of me, I would have been on my back.

Q Well, then -- so now you’re saying he was on top of you
when you were lying on your back?

[PROSECUTOR]: Objection, misstates the evidence.

THE COURT: Also asked and answered. So let’s move on.
Sustained.

[DEFENSE COUNSEL:] When did you roll over onto your
stomach?

A I do not remember.

[PROSECUTOR]: Objection, asked and answered.

THE COURT: Sustained.

[DEFENSE COUNSEL]: Judge, it wasn’t answered.

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THE COURT: Yes, it has been. Sustained.

¶25 The superior court did not abuse its discretion because it
reasonably concluded Riepe’s questions were repetitive. See, e.g., State v.
Bible, 175 Ariz. 549, 595 (1993) (trial judge has discretion to limit “repetitive,
irrelevant, or argumentative questioning”); Ariz. R. Evid. 611(a) (court
should “exercise reasonable control” over examination of witnesses to
encourage “determining the truth,” to “avoid wasting time,” and to
“protect witnesses from harassment or undue embarrassment”). Riepe was
able to make his point to the jury without need for further emphasis.

C. Exclusion of Evidence on Direct Examination

¶26 When Riepe questioned the victim on direct examination
during the defense’s presentation of evidence, he sought to imply she
falsely accused him to get attention. To that end, Riepe asked the victim
whether she had 1500 Facebook friends at the time of the assault. The
superior court sustained the State’s objection on the ground of relevance.

¶27 Riepe argues the court’s ruling violated the Fourteenth
Amendment’s guarantee that he receive “a meaningful opportunity to
present a complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1984).
We review the ruling for an abuse of discretion, giving deference to the
court’s determination of relevance. State v. Chappell, 225 Ariz. 229, 238, ¶ 28
(2010).

¶28 Considering there was no evidence that the victim posted
about the assault on Facebook, the superior court reasonably concluded
that the mere number of Facebook friends the victim had was not probative
of whether she fabricated a claim of rape to get attention. See, e.g., State v.
Maloney, 101 Ariz. 111, 115 (1966) (court did not abuse its discretion by
precluding testimony about a remote incident whose relevance depended
on an “extremely tenuous” inference). The court’s ruling was within its
“considerable discretion.” State v. Smith, 136 Ariz. 273, 276 (1983).

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CONCLUSION

¶29 We affirm Riepe’s convictions and sentences.

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

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