State v. Valvano

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSHUA D. VALVANO, Appellant.

No. 1 CA-CR 20-0489
FILED 1-27-2022

Appeal from the Superior Court in Maricopa County
No. CR2018-001618-001
The Honorable Jennifer Ryan-Touhill, Judge
The Honorable Michael J. Herrod, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Andrew S. Reilly
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Robert W. Doyle
Counsel for Appellant

STATE v. VALVANO
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Samuel A. Thumma and Chief Judge Kent E. Cattani joined.

C A M P B E L L, Judge:

¶1 Joshua D. Valvano appeals his convictions and sentences for
sexual conduct with a minor, attempted sexual conduct with a minor, and
continuous sexual abuse of a child. He contends the trial court erred by
denying his motion to suppress admissions he made during telephone
conversations, by denying his motion for mistrial after one of the victims
commented on his failure to testify, by admitting the testimony of a cold
expert, and by failing to mitigate his presumptive sentences. For the reasons
below, we affirm.

BACKGROUND1

¶2 In 2004, the victims’ family moved to Arizona. For the next
couple years, Valvano, a family friend, would frequently visit and stay
overnight. During those visits, Valvano slept with Kevin or his brother
Noah, and sexually abused them.2 Kevin and Noah were young teenagers
at the time.

¶3 In 2018, Noah called Valvano and confronted him about the
abuse. Valvano denied the allegations at first, but he eventually made
incriminating statements. Detectives who were with Noah during the
telephone call recorded the conversation.

¶4 Approximately one month later, Noah made another call to
Valvano, who admitted to the abuse. Kevin was with Noah at the police
station during this second call, and before hanging up, Noah suggested
Valvano call Kevin. Valvano promptly did so, and during that call, he
admitted sexually abusing Kevin.

¶5 In a three-count indictment, the State charged Valvano with
the following dangerous crimes against children: sexual conduct with a

1 “We view the facts in the light most favorable to sustaining the
convictions.” State v. Robles, 213 Ariz. 268, 270, ¶ 2 (App. 2006).
2 We use pseudonyms to protect the victims’ privacy.

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minor, a class 2 felony; attempt to commit sexual conduct with a minor, a
class 3 felony; and continuous sexual abuse of a child, a class 2 felony.
Before trial, Valvano moved to suppress his recorded admissions, arguing
they were involuntary. The superior court listened to the recordings, found
Valvano’s statements were voluntary, and denied the motion.

¶6 The jury ultimately found Valvano guilty as charged, and the
superior court imposed two presumptive consecutive 20-year prison terms
for the class 2 felony convictions followed by lifetime probation for the class
3 felony conviction. Valvano timely appealed.

DISCUSSION

I. Motion to Suppress

¶7 Valvano argues the superior court erred by denying his
motion to suppress. He contends the victims exerted undue pressure on
him that rendered his incriminating statements involuntary.

¶8 “Monitoring and recording of a telephone conversation with
the consent of one party . . . is authorized by statute in Arizona.” State v.
Allgood, 171 Ariz. 522, 523–24 (App. 1992); A.R.S. § 13-3012(9).
Nevertheless, “[t]o be admissible, [Valvano’s] statement[s] must be
voluntary, not obtained by coercion or improper inducement.” State v.
Ellison, 213 Ariz. 116, 127, ¶ 30 (2006). The State has the burden of proving,
by a preponderance of the evidence, that a statement was voluntary. State
v. Amaya–Ruiz, 166 Ariz. 152, 164 (1990). A statement was involuntary if
there was (1) “coercive police behavior” and (2) “a causal relation between
the coercive behavior and [the] defendant’s overborne will.” State v. Boggs, 218 Ariz. 325, 336, ¶ 44 (2008). In evaluating voluntariness, “the trial court
must look to the totality of the circumstances surrounding the confession
and decide whether the will of the defendant [was] overborne.” State v.
Lopez, 174 Ariz. 131, 137 (1992). A finding of voluntariness will be sustained
absent a showing of error. State v. Poyson, 198 Ariz. 70, 75, ¶ 10 (2000).

¶9 Valvano has not shown the superior court erred in
determining Valvano’s admissions to the victims were voluntary. The court
listened to the recorded calls and was therefore able to consider
conversational subtleties such as tone and nuance as factors to find that
Valvano voluntarily incriminated himself. Specifically, the court found that
Noah was not unduly pressuring Valvano, but “frustrat[ed]” with
Valvano’s initial obfuscation and attempts to deflect. Such frustration does
not amount to coercion. See State v. Keller, 114 Ariz. 572, 573 (1977) (finding
that the victim’s demands for the return of her property, including a threat

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to call police, did not exert such pressure to render defendant’s statements
involuntary). Further, the superior court properly found Valvano could
have terminated the calls before incriminating himself. Indeed, in the call
to Kevin, Valvano made the call, apologized for the abuse, and invited
further dialogue. Valvano has not shown that the court erred by denying
his motion to suppress.

II. Motion for Mistrial

¶10 As defense counsel was cross-examining him, Kevin
unexpectedly blurted out, “Is [Valvano] going to have the nerve to come up
on the stand or is he going to stay there?” Valvano then moved for a
mistrial. The court ordered the comment immediately stricken, and the
court denied Valvano’s subsequent mistrial motion.

¶11 Valvano contends that the court should have granted the
mistrial motion, arguing this testimony violated his Fifth Amendment
rights, and that striking Kevin’s comment was insufficient to remedy the
constitutional violation. 3

¶12 “When a witness unexpectedly volunteers an inadmissible
statement, the remedy rests largely within the discretion of the trial court.”
State v. Marshall, 197 Ariz. 496, 500, ¶ 10 (App. 2000). In deciding whether
to grant a motion for mistrial after inadmissible testimony is unexpectedly
interjected, the trial court must consider “(1) whether the remarks called to
the attention of the jurors matters that they would not be justified in
considering in determining their verdict, and (2) the probability that the
jurors, under the circumstances of the particular case, were influenced by
the remarks.” State v. Stuard, 176 Ariz. 589, 601 (1993) (quoting State v.
Hallman, 137 Ariz. 31, 37 (1983)). We review the trial court’s denial of a
motion for mistrial for an abuse of discretion because the trial court “is in
the best position to determine whether the evidence will actually affect the
outcome of the trial.” State v. Jones, 197 Ariz. 290, 304,
¶ 32 (2000).

¶13 Here, Kevin’s comment was an improper comment on
Valvano’s Fifth Amendment right to remain silent. See State v. McDaniel, 136
Ariz. 188, 194 (1983) (“It is well settled that in criminal cases the jury is not
entitled to draw any inferences from the decision of a witness to exercise

3 The Fifth Amendment to the United States Constitution provides
that “[n]o person . . . shall be compelled in any criminal case to be a witness
against himself.” U.S. Const. amend. V.

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his Fifth Amendment privilege.”). However, the court immediately struck
the comment. Moreover, the prosecutor did not elicit the comment, nor did
the prosecutor refer during closing arguments to Valvano’s failure to
testify. Additionally, the evidence—including Valvano’s own statements
during the confrontation calls—overwhelmingly established his guilt.
Valvano cites no authority standing for the proposition that, under these
circumstances, a remedy less drastic than a mistrial amounts to reversible
error. See State v. Adamson, 136 Ariz. 250, 262 (1983) (“A declaration of a
mistrial is the most dramatic remedy for trial error and should be granted
only when it appears that justice will be thwarted unless the jury is
discharged and a new trial granted.”). On this record, Valvano has shown
no abuse of discretion.

III. Expert Testimony

¶14 Dr. Wendy Dutton testified for the State as a “cold” expert,
meaning she had no information about the facts of this case. Rather, based
on research in the field and her own experience as a forensic interviewer,
Dutton described the process of victimization and general behavioral
characteristics of child victims of alleged sexual abuse. On appeal, Valvano
relies on State v. Starks, 251 Ariz. 383 (App. 2021), to argue Dutton’s
testimony constituted inadmissible profile evidence.

¶15 Because he did not object to Dutton’s testimony on this basis,
Valvano bears the burden on appeal of establishing fundamental error,
which requires him to prove either error and resulting prejudice, or that the
error “was so egregious that he could not possibly have received a fair
trial.” State v. Escalante, 245 Ariz. 135, 140, 142, ¶¶ 12, 21 (2018). He fails to
do so.

¶16 Profile evidence is an informal compilation of behavioral
characteristics typical of persons who commit a particular crime. See State
v. Haskie, 242 Ariz. 582, 585, ¶ 14 (2017). It is admissible in limited
circumstances but is generally prohibited as substantive proof of guilt. See,
e.g., State v. Garcia-Quintana, 234 Ariz. 267, 272–73, ¶¶ 23–24 (App. 2014)
(citing State v. Lee, 191 Ariz. 542, 545, ¶ 14 (1998)).

¶17 In Starks, a molestation case, the defendant preserved his
claim that Dutton’s cold expert testimony constituted improper profile
evidence. Starks, 251 Ariz. at 388, ¶ 7. Reviewing Dutton’s testimony on
appeal, this Court found she “simply listed things that sexual abusers
commonly do to establish a relationship with the victim to enable the sexual
abuse.” Id. at 390, ¶ 16. For example, the prosecutor asked Dutton about

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“strategies perpetrators use to build a relationship with a victim,” and
Dutton responded that abusers would “do or say things to gain power and
control over [victims] and over their primary caretakers,” and she gave
general examples of how abusers typically do so. Id. at 388, ¶ 8. This Court
concluded such testimony was improper profile evidence that served “to
improperly invite the jury to conclude that Starks was guilty because his
actions matched those that the expert reported to be common to
perpetrators.” Id. at 390, ¶ 16. Further, because Dutton “did not attempt to
explain any victim behavior,” and her testimony generally “lacked the
larger context of victimization,” this Court concluded Dutton’s testimony
served no purpose other than to provide improper profile evidence. Id. at
390–91, 393, ¶¶ 16, 21, 30. The court then found that the error in permitting
the profile evidence was not harmless. Id. at 391, 395, ¶¶ 21, 42.

¶18 Unlike the expert’s testimony in Starks, Dutton’s substantive
testimony here exclusively described victim behavior in response to sexual
abuse. Furthermore, also in contrast with Starks, the prosecutor in this case
did not rely on an improper profile during closing arguments, but instead
only mentioned Dutton’s testimony briefly to explain the victims’ delayed
disclosures.4 See id. at 395, ¶ 42. Given these differences from Starks,
Valvano fails to establish error, let alone fundamental error. See id. at 389,
¶ 11 (recognizing that cold expert in child sex cases is generally admissible
to help the jury understand a victim’s delayed or inconsistent reporting of
abuse).

IV. Sentencing

¶19 Valvano raises three issues challenging his presumptive
prison sentences. See A.R.S. § 13-705(C) (presumptive sentence for sexual
conduct with a minor and continuous sexual abuse of a child is 20 years).
Because Valvano failed to bring these purported errors to the trial court’s
attention at sentencing, we review for fundamental error. Escalante, 245
Ariz. at 140, ¶ 12.

¶20 Valvano first claims the trial judge improperly expressed his
personal religious beliefs at sentencing when he told Valvano: “And,

4 For this reason, we reject Valvano’s summary assertion that Dutton’s
testimony was irrelevant and inadmissible under Arizona Rule of Evidence
702. See Ariz. R. Evid. 702(a) (“[An expert witness] . . . may testify in the
form of an opinion or otherwise if . . . the expert’s scientific, technical, or
other specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue.” ).

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frankly, you’ve harmed the Body of Christ. And you know what I mean
when I say that.” Although such a comment may have been inappropriate,
Valvano has not shown that it rose to the level of fundamental error here.

¶21 Valvano’s and the victims’ shared Christian faith was a major
theme at trial and sentencing. According to the evidence, both families were
active in the same church, and at sentencing, the victims’ and Valvano’s
fathers spoke in detail about their faith. Considering this context in light of
the court’s implicit finding that Valvano lacked remorse, see infra ¶ 23, the
court’s comment was more focused on the extent of harm Valvano caused
than it was a reflection of the judge’s personal religious views or perceived
victimization. See United States v. Bakker, 925 F.2d 728, 740 (4th Cir. 1991)
(finding a due process violation occurred when sentencing judge stated that
defendant “had no thought whatever about his victims and those of us who
do have a religion are ridiculed as being saps from money-grubbing preachers or
priests” because statement impermissibly reflected that “the court’s own
sense of religious propriety had somehow been betrayed”). Valvano
therefore fails to satisfy his burden of establishing fundamental error. See
Escalante, 245 Ariz. at 142, ¶ 21 (describing defendant’s burden to show
either error that goes to the foundation of his case, error that takes from him
a right essential to his defense, or error so egregious that a fair trial was
impossible).

¶22 Valvano next argues the trial court improperly punished him
for rejecting the State’s plea offer and exercising his right to trial. In support,
Valvano refers to the court’s following comments:

I read the mitigation report and it talked about your taking
responsibility in the confrontation call and your interview
with the officers, but you know how you should have taken
responsibility? You should have never forced this to a trial. And
for several reasons: you forced these victims to go through
trial. It is the most harrowing thing you can think of,
especially this kind of case, and you should have never done
that.

(Emphasis added.)

¶23 Aggravating a sentence based on a defendant’s lack of
remorse and failure to admit responsibility can constitute fundamental
error because it constitutes an improper comment on a defendant’s Fifth
Amendment right against self-incrimination. State v. Trujillo, 227 Ariz. 314,
318, ¶ 15 (App. 2011). Here, however, the trial court rejected Valvano’s

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proffered remorse as a mitigating factor and imposed presumptive
sentences. As the court told Valvano at sentencing: “The biggest concern I
have, Mr. Valvano, . . . in your statement . . . you said if you harmed anyone.
That’s not an apology. That’s not taking responsibility. That’s like when a
kid punches another kid and says, [‘]Well, if I hurt you, I’m sorry.[’]” Thus,
the court was not punishing Valvano for asserting his constitutional rights;
rather, the court found Valvano’s expressed remorse was not credible and
therefore not a mitigating factor. Valvano therefore fails to establish that,
although the court may have improperly admonished him for exercising
his right to trial, the court would have imposed a more lenient sentence
absent the error.

¶24 Finally, Valvano contends the court erred by failing to
recognize it had discretion to impose mitigated sentences. See State v. Garza, 192 Ariz. 171, 176, ¶¶ 17–18 (1998) (remanding for sentencing where the
sentence was within the appropriate range, but the trial court mistakenly
believed it had no discretion). As noted however, the court considered the
mitigation evidence Valvano presented and rejected it. Moreover, the
transcript from the sentencing reflects that the court understood it had the
discretion to impose a mitigated sentence, but decided not to do so.
Accordingly, the court properly recognized its discretion. No error,
fundamental or otherwise, occurred. See Escalante, 245 Ariz. at 142, ¶ 21
(“[T]he first step in fundamental error review is determining whether trial
error exists.”).

CONCLUSION

¶25 For the foregoing reasons, Valvano’s convictions and
sentences are affirmed.

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

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