State v. Canales-Perez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RAFAEL CANALES-PEREZ, Appellant.

No. 1 CA-CR 21-0107
FILED 4-19-2022

Appeal from the Superior Court in Maricopa County
No. CR2018-005540-001
The Honorable Monica S. Garfinkel, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Andrew Reilly
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Aaron J. Moskowitz
Counsel for Appellant
 STATE v. CANALES-PEREZ
Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Randall M. Howe joined.

M O R S E, Judge:

¶1 Rafael Canales-Perez appeals his convictions and sentences
for sexual conduct with a minor, sexual abuse, kidnapping, and sexual
assault. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Canales-Perez was the long-term boyfriend of Christine's
mother and acted as a father figure to all her children.1 When Christine was
eleven or twelve years old, Canales-Perez pulled her into a bedroom and
attempted to engage in penile-vaginal intercourse, forcing the tip of his
penis inside her vagina. Canales-Perez also touched Christine's breasts and
rubbed her vagina. She begged him to stop and finally managed to push
him off her and flee from the bedroom.

¶3 Years later, when Christine was fifteen years old, Canales-
Perez approached her from behind and began kissing her. Over Christine's
protests, Canales-Perez touched her breasts, rubbed her vagina, and
pressed his penis against her backside. Canales-Perez stopped when he
heard someone coming into the room. Shortly after, Christine disclosed the
abuse to her siblings and they told their mother.

¶4 Christine's mother contacted law enforcement and
participated in a confrontation call with Canales-Perez. During that call,
Canales-Perez admitted to touching Christine's breasts, digitally
penetrating her vagina, lying on top of her, and kissing her while she was
naked. Although Canales-Perez acknowledged that Christine was still just
a "little girl," he claimed she instigated and consented to the sexual conduct.

¶5 Christine participated in a forensic interview and recounted
the abuse. At that time, she did not report any instances of penile-vaginal
penetration. However, around two years after the initial investigation,
Christine participated in a second forensic interview and disclosed penile-

1 We use a pseudonym to protect the privacy of the victim.

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Decision of the Court

vaginal penetration. Christine explained that the ongoing support from her
family gave her the confidence to disclose all the details. An expert on
sexual abuse later testified that victims commonly provide "piecemeal
disclosure," giving the details they find the most embarrassing later on in
the process.

¶6 A grand jury indicted Canales-Perez on two counts of sexual
conduct with a minor under fifteen years old, class 2 felonies, one count of
sexual abuse of a minor under fifteen years old, a class 3 felony, one count
of kidnapping, a class 2 felony, two counts of sexual abuse, class 5 felonies,
and one count of sexual assault, a class 2 felony. All except three of the
counts constituted dangerous crimes against children.

¶7 During the first day of trial testimony, Christine's mother
referenced material found on Christine's tablet. Outside the presence of the
jury, the parties indicated that they were not aware of any evidence
contained on a tablet. Through brief interviews with relevant witnesses,
the parties learned that, in the month following the initial investigation in
this case, Christine's family discovered that she exchanged sexually explicit
material with unknown individuals using her tablet and they provided the
device to law enforcement. Law enforcement had opened an investigation
under a separate case number and neither relayed the information to the
State nor conducted a forensic examination of the device.

¶8 The superior court delayed the trial for nearly two weeks to
give Canales-Perez time to review the evidence, interview relevant
witnesses, and file any corresponding motions. Shortly after, the parties
confirmed that the forensic examination had been completed and disclosed.
The examination revealed that Christine sent sexually explicit material to
unknown individuals in the days surrounding the initial investigation.

¶9 The State moved to exclude the evidence as prejudicial and
barred by A.R.S. § 13-1421(A), commonly referred to as Arizona's rape-
shield statute. Canales-Perez objected, arguing the evidence was
admissible under the "motive to accuse" exception. See A.R.S. § 13-
1421(A)(3). He claimed the evidence showed that Christine participated in
the second forensic interview to shift attention from her "consensual sexual
contacts on the tablet." The superior court found that the evidence lacked
any "temporal relationship" to the current offenses, noting the two-year gap
between the family's discovery of the evidence and the second forensic
interview. Finding no sufficient nexus between the events, the court
excluded the evidence under A.R.S. § 13-1421(A). Canales-Perez moved for
mistrial, arguing the State's untimely disclosure prevented him from

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demonstrating the relevancy of the evidence and presenting a complete
defense. The court denied the motion, finding the nearly two-week
continuance remedied any potential harm.

¶10 The jury found Canales-Perez guilty as charged. The superior
court sentenced him to life imprisonment with the possibility of release
after 35 years, along with consecutive aggregate terms of 55.5 years'
imprisonment. We have jurisdiction to hear Canales-Perez's timely appeal
under A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

I. Denial of Motion for Mistrial Based on Untimely Disclosure.

¶11 Canales-Perez argues the superior court erred by denying his
motion for mistrial based on the untimely disclosure of the evidence found
on Christine's tablet. We give the court broad discretion in determining
whether a mistrial is warranted based on a disclosure violation. See State v.
Arvallo, 232 Ariz. 200, 201, 206, ¶¶ 6, 36 (App. 2013).

¶12 The superior court has the authority to impose appropriate
sanctions for disclosure violations. See Ariz. R. Crim. P. 15.7. The sanction
should be proportional to the degree of prejudice caused and the
availability of sufficient, less stringent remedies. See State v. Ramos, 239
Ariz. 501, 504, ¶ 9 (App. 2016). An appropriate sanction "should have a
minimal effect on the evidence and merits of the case," and factors to
consider include the importance of the evidence, prejudice to the defense,
and whether the violation involved bad faith. State v. Towery, 186 Ariz. 168,
186 (1996). "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." State v.
Adamson, 136 Ariz. 250, 262 (1983).

¶13 We find no abuse of discretion in this case. The court imposed
a proportional sanction for the circumstances of the disclosure violation
that served to remedy any potential prejudice to Canales-Perez's defense.
The court's nearly two-week continuance gave him sufficient time to review
and litigate the admissibility of the newly disclosed evidence. The court
found, and Canales-Perez conceded, that the State had not acted in bad faith
and expedited the forensic examination of the tablet. Nothing prevented
Canales-Perez from presenting his chosen defense, eliciting testimony, or
arguing in closing remarks that Christine lacked credibility and falsely
accused him of the charged offenses. On this record, the untimely

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disclosure did not necessitate the "dramatic remedy" of a mistrial. See
Adamson, 136 Ariz. at 262.

II. Admissibility of the Evidence.

¶14 Canales-Perez next contends that the superior court erred by
excluding the evidence found on Christine's tablet. We review the court's
ruling on the admissibility of evidence for an abuse of discretion. See State
v. Rivera, 152 Ariz. 507, 515 (1987).

¶15 Arizona's rape-shield statute generally bars the admission of
evidence "relating to a victim's reputation for chastity and opinion evidence
relating to a victim's chastity." A.R.S. § 13-1421(A). The purpose of the
statute is to protect victims from "harassing or irrelevant questions
concerning any past sexual behavior." State v. Gilfillan, 196 Ariz. 396, 400-
01, ¶ 15 (App. 2000), abrogated on other grounds by State v. Carson, 243 Ariz.
463 (2018). A defendant, however, may introduce evidence of "specific
instances of the victim's prior sexual conduct" to support a claim the victim
had a motive to accuse the defendant of the offenses. A.R.S. § 13-1421(A)(3).
Even so, the superior court must find that "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." A.R.S. § 13-1421(A).

¶16 The superior court did not abuse its discretion by excluding
the evidence under A.R.S. § 13-1421(A). The evidence did not show
Christine had a motive to accuse Canales-Perez of the current offenses. See
A.R.S. § 13-1421(A)(3). The family's discovery of the tablet containing the
evidence occurred a month after the initial investigation, and two years
before Christine disclosed additional details in a second forensic interview.
The record does not suggest Christine faced ongoing repercussions for the
material found on her tablet. The evidence lacked any relevant, material
connection to the charged offenses. The court properly concluded that the
evidence did not fall within the proposed exception to A.R.S. § 13-1421(A).

¶17 To the extent Canales-Perez argues the evidence does not
relate to Christine's chastity and, therefore, A.R.S. § 13-1421(A) does not
apply, he failed to raise this claim below and waived all but fundamental
error review. See State v. Bolton, 182 Ariz. 290, 304 (1995). Even if A.R.S.
§ 13-1421(A) does not apply, the exclusion of the evidence does not rise to
the level of fundamental error. The evidence was highly prejudicial, see
State v. Oliver, 158 Ariz. 22, 29 (1988) (noting that unless the victim's prior
sexual acts provided the ability to fabricate "then the trial court should

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exclude the evidence because its probative value is substantially
outweighed by the danger of unfair prejudice"), had minimal relevance, see
supra ¶ 16, and the superior court likely would have been within its
discretion to exclude it on that basis, see Ariz. R. Evid. 401, 403; see also State
v. Perez, 141 Ariz. 459, 464 (1984) ("We are obliged to affirm the trial court's
ruling if the result was legally correct for any reason."). But considering the
strength of the trial evidence, including Canales-Perez's admissions during
the confrontation call, we detect no fundamental error. See State v. Ramos, 235 Ariz. 230, 237, ¶ 20 (App. 2014) (finding defendant failed to prove
prejudice under fundamental-error review based on overwhelming
evidence of guilt).

CONCLUSION

¶18 We affirm Canales-Perez's convictions and resulting
sentences.

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

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