State v. Mendez-Hernandez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RIGOBERTO MENDEZ-HERNANDEZ,
Appellant.

No. 1 CA-CR 21-0366
FILED 3-8-2022

Appeal from the Superior Court in Yavapai County
No. P1300CR201801497
The Honorable Krista M. Carman, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Deborah Celeste Kinney
Counsel for Appellee

Law Office of Nicole Countryman, Phoenix
By Nicole Countryman
Counsel for Appellant
 STATE v. MENDEZ-HERNANDEZ
Decision of the Court

MEMORANDUM DECISION

Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Brian Y. Furuya and Judge Jennifer M. Perkins joined.

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

¶1 Rigoberto Mendez-Hernandez appeals his convictions and
sentences for four counts of sexual conduct with a minor, one count of
attempt to commit sexual conduct with a minor and one count of
molestation of a child. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 We view and thus recount the facts in the light most favorable
to sustaining the jury’s verdicts. See State v. Payne, 233 Ariz. 484, 509, ¶ 93
(2013). And here, we use a pseudonym to protect the minor victim’s
identity.

¶3 Jane’s mother was sent to prison in 2009 when Jane was about
five years old. And so, Jane was forced to live with her uncle, Mendez-
Hernandez. Nine years later, Jane ran away from Mendez-Hernandez’s
home and appeared unannounced at her cousin’s home. Asked by her
cousin what happened, Jane answered that Mendez-Hernandez “was
touching her in her private area.” The cousin called the police. Jane
minimized Mendez-Hernandez’s misconduct at first, but eventually sat for
a forensic interview and revealed that her uncle had been sexually abusing
her since she moved into his home. Jane described seven instances in which
Mendez-Hernandez sexually abused her, all from between ages eight and
fifteen. She estimated there were 30 to 50 encounters in all, but said it was
hard to keep track.

¶4 Jane’s claims were corroborated by the eyewitness testimony
of her brothers, who saw Mendez-Hernandez sexually abuse Jane.
Mendez-Hernandez confessed, but said it was consensual.

¶5 The State charged Mendez-Hernandez with four counts of
sexual conduct with a minor, class 2 felonies, one count of attempted sexual
conduct with a minor, a class 3 felony, and two counts of molestation of a
child, class 2 felonies, all involving a victim under fifteen years old. The

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State further alleged the offenses constituted dangerous crimes against
children.

¶6 At trial, the forensic interviewer testified that she evaluates
juvenile victims in a manner that avoids coerced or suggested responses.
As part of the forensic interview, she instructs victims to tell the truth and
ask for clarification if they feel confused. The interviewer avowed that she
used these techniques in Jane’s interview. When Jane testified, she initially
stated that she remembered participating in a forensic interview. When
pressed, however, Jane testified that she lacked any clear memory of the
interview. Jane confirmed that she reviewed a recording of the interview
before trial, but it had not refreshed her recollection. She avowed that her
memory would have been better at the time of the interview. Jane testified
that the abuse occurred many times over a long period, and she had done
her best to forget it in the years leading up to trial.

¶7 After Jane testified, the State moved for permission to play
Jane’s recorded forensic interview for the jury, arguing it was a recorded
recollection under Arizona Rule of Evidence 803(5). The court agreed,
reasoning that although Jane answered “yes” when asked if she
remembered portions of the interview, she ultimately confirmed that she
had no real memory of the interview and could not accurately testify about
details of the abuse. The jury watched a portion of Jane’s forensic interview.
The court did not admit the interview as an exhibit for the jury’s use during
deliberations.

¶8 The jury returned guilty verdicts on all counts, except for one
count of molestation of a child. The superior court sentenced Mendez-
Hernandez to an aggregate term of 67 years’ imprisonment. Mendez-
Hernandez timely appealed. We have jurisdiction. See Ariz. Const. art. 6,
§ 9; A.R.S. §§ 12-120.21(A)(1), 13-4031, -4033(A).

DISCUSSION

¶9 Mendez-Hernandez argues the superior court erred by
allowing the State to play Jane’s forensic interview at trial. He argues the
interview constituted inadmissible hearsay. We will not disturb the court’s
ruling on the admissibility of hearsay evidence absent a clear abuse of
discretion. See State v. Valencia, 186 Ariz. 493, 498 (App. 1996).

¶10 One exception to the rule against hearsay is a recorded
recollection under Rule 803(5). A record qualifies as a recorded recollection
if it “(A) is on a matter the witness once knew about but now cannot recall
well enough to testify fully and accurately; (B) was made or adopted by the

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witness when the matter was fresh in the witness’s memory; and (C)
accurately reflects the witness’s knowledge.” Ariz. R. Evid. 803(5). If these
requirements are satisfied, the record may only be read into evidence, not
received as an exhibit for the jury’s use during deliberations, unless offered
by an adverse party. Id. We have held that a recording of a victim’s forensic
interview may qualify as a recorded recollection. State v. Martin, 225 Ariz.
162, 165, ¶¶ 11–12 (App. 2010).

¶11 The superior court did not err when it allowed the State to
play Jane’s forensic interview for the jury. Jane’s memory was unclear and
she could not recall the events well enough to testify “fully and accurately”
about them. See Ariz. R. Evid. 803(5)(A). She could not describe what had
happened to her, only responding “yes” to leading questions. She could
remember neither the forensic interview nor the acts themselves. She
avowed her memory was better at the time of the interview and explained
she’d been trying to forget about the abuse and move on. See Ariz. R. Evid.
803(5)(B). The forensic interviewer also testified that she interviewed Jane
in a manner that avoids suggested responses, informs victims they must tell
the truth, and promotes a noncoercive atmosphere. See Ariz. R. Evid.
803(5)(C). Before playing the interview for the jury, the State redacted all
irrelevant or prejudicial information from the recording. And last, the
interview was not admitted as an exhibit for the jury’s use during
deliberations. The interview therefore satisfied the requirements of Rule
803(5).

¶12 Mendez-Hernandez also argues that Jane “never once
testified that she was truthful and accurate when she gave her statements
to the interviewer.” But this is not what the rule requires. Rule 803(5)(C)
merely requires that the record “accurately reflects the witness’s
knowledge.” A victim does not need to expressly testify that their
statements at the time of the recording are accurate, so long as there are
facts which support an inference of accuracy. See State v. Gianotta, 248 Ariz.
82, 84, ¶¶ 12-13 (App. 2019). Jane confirmed that what she told interviewers
had actually happened. And the social worker who interviewed Jane
explained the unique procedures used in forensic interviews, including
building a rapport, asking the child to tell the truth and asking open-ended
questions. These procedures bolster the trustworthiness of forensic
interviews. We discern no error.

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CONCLUSION

¶13 We affirm Mendez-Hernandez’s convictions and resulting
sentences.

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

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