State v. Faria

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SHAWN FARIA, Appellant.

No. 1 CA-CR 23-0504
FILED 09-24-2024

Appeal from the Superior Court in Coconino County
No. S0300CR202100501
The Honorable Ted Stuart Reed, Judge

AFFIRMED

COUNSEL

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

Barber Law Group, PLLC, Phoenix
By Bretton Barber
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Anni Hill Foster delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Angela K. Paton joined.

F O S T E R, Judge:

¶1 Defendant Shawn Faria appeals his convictions for indecent
exposure, aggravated assault, and misdemeanor assault. He argues the
superior court abused its discretion by admitting other acts evidence under
Arizona Rule of Evidence 404(c) (“Rule 404(c)”) and three segments of an
audio-recorded phone call. For the following reasons, this Court affirms.

FACTS AND PROCEDURAL HISTORY

¶2 In 2013, Faria began a relationship with Ravin and moved in
with her that same year. At the time, Ravin had four minor daughters,
Jamie1, Karen, Haley, and Toni; Faria had one minor daughter, Emily.
(collectively “the children”). In mid-2014, they all moved from Tucson to
the Flagstaff area.

¶3 In 2019, Jamie called Faria’s aunt and reported that Faria
inappropriately touched Haley, masturbated in front of Jamie and her
sisters and exposed himself to Jamie. The aunt recorded the conversation
and attempted to send the recording to the Department of Child Safety
(“DCS”). But because of its size, she had to send it in segments. She also
sent three segments to local law enforcement, which were later admitted at
trial. The full conversation was about an hour long, but the three segments
were less than a minute each. Sometime after sending the three snippets,
the phone with the recording was damaged or destroyed.

¶4 In December 2020, DCS removed the children from the home
with assistance from local law enforcement. During forensic interviews a
couple of weeks later, each child except Jamie reported Faria routinely
spanked, smacked, grabbed, squeezed and pinched their buttocks and

1 This Court uses pseudonyms to protect the identity of victims and
witnesses. See, e.g., State v. Agueda, 253 Ariz. 388, 389, ¶ 2 n.1 (2022); Ariz. R.
Sup. Ct. 111(i).

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made sexual comments to some of them. Haley also described two separate
incidents where Faria molested her in when they lived in Tucson.

¶5 Faria was indicted on twelve charges allegedly committed
between 2016 and 2020: five counts of Indecent Exposure in Haley’s
presence; four counts of Aggravated Assault with a sexual motivation
against Haley, Karen, Toni and Emily; two counts of Public Sexual
Indecency in Karen’s and Jamie’s presence; and one count of misdemeanor
Assault with a sexual motivation against Karen. The State moved to admit
evidence of two acts under Rule 404(c) to show Faria has an abhorrent
sexual propensity: molesting Haley in Tucson and regularly touching and
squeezing the children’s buttocks. Faria moved to suppress the three
recorded phone call segments. After an evidentiary hearing addressing
both motions, the court granted the State’s motion and denied Faria’s
motion, thus admitting both the other acts evidence and the recordings.

¶6 The jury found Faria guilty of seven counts: two counts of
Indecent Exposure, all four counts of Aggravated Assault, and the
misdemeanor Assault count. The two Public Sexual Indecency counts were
dismissed before the jury’s deliberation, and the jury was unable to agree
on the remaining counts. The superior court sentenced him to 6 years and
30 days’ imprisonment, with 48 days of presentence incarceration credit.
Faria timely appealed.

¶7 This Court has jurisdiction under Article 6, Section 9 of the
Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031 and 13-
4033(A)(1).

DISCUSSION

¶8 Faria appeals the superior court’s admission of the Rule 404(c)
evidence. Faria further contends the court erred by failing to give a Willits
instruction to account for the missing portions of Jamie’s recorded phone
call. See State v. Willits, 96 Ariz. 184, 191 (1964) (allowing a jury instruction
that the jury may draw “an inference unfavorable to the prosecution” when
the State destroys evidence). This Court reviews the admission of evidence
for an abuse of discretion. State v. Lehr, 227 Ariz. 140, 147, ¶ 19 (2011) (prior
bad acts); State v. Cornman, 237 Ariz. 350, 354, ¶ 10 (App. 2015) (motion to
suppress). “In reviewing a ruling on a motion to suppress, [this Court]
view[s] the facts in the light most favorable to upholding the trial court’s
ruling.” Cornman, 237 Ariz. at 354, ¶ 10. “[T]he appellate court considers
only the evidence presented at the suppression hearing.” State v. Becerra,

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239 Ariz. 90, 91, ¶ 2 (App. 2016) (citing State v. Spears, 184 Ariz. 277, 284
(1996)).

I. The superior court properly admitted other acts evidence.

¶9 Faria contends that the superior court improperly allowed the
State to introduce allegations that he molested Haley in Tucson. Although
the court also admitted evidence that Faria frequently touched the
children’s buttocks, he made no arguments on appeal against the court’s
admission of that evidence; thus, such arguments are waived. See Dawson
v. Withycombe, 216 Ariz. 84, 111, ¶ 91 (App. 2007).

¶10 “[E]vidence of other bad acts is not admissible to show a
defendant’s bad character.” State v. Aguilar, 209 Ariz. 40, 42, ¶ 9 (2004)
(citation omitted); accord Ariz. R. Evid. 404(a) (“Evidence of a person’s
character or a trait of character is not admissible for the purpose of proving
action in conformity therewith on a particular occasion, [with some
exceptions].”). But when a defendant is charged with a sexual offense in a
criminal case, “evidence of other crimes, wrongs, or acts may be admitted
. . . if relevant to show that the defendant had a character trait giving rise to
an aberrant sexual propensity to commit the offense charged.” Ariz. R.
Evid. 404(c).

¶11 To admit such evidence, the State must first provide clear and
convincing evidence that the defendant committed the acts. Ariz. R. Evid.
404(c)(1)(A); State v. Terrazas, 189 Ariz. 580, 582 (1997) (standard for prior
bad acts is clear and convincing evidence). “Clear and convincing evidence
creates a high probability that a proposition is true but need not establish
that it is certainly or unambiguously true.” State v. Vega, 228 Ariz. 24, 29,
¶ 19 n.4 (App. 2011) (cleaned up). At the pre-trial hearing, the court
admitted and reviewed transcripts2 and recordings of the children’s
interviews, including Haley’s. During her forensic interview, Haley
recounted the Tucson molestation incidents. She stated she was
approximately eight years old. “[T]estimony of the victim is a sufficient
basis on which to conclude by clear and convincing evidence that the
incident occurred.” Id.; cf. State v. Williams, 111 Ariz. 175, 177–78 (1974)
(uncorroborated testimony can support a conviction requiring proof
beyond a reasonable doubt “unless the story is physically impossible or so
incredible that no reasonable person could believe it”).

2 Although admitted at the pre-trial hearing, the transcripts were not
admitted at trial.

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¶12 Faria argues that Haley’s allegations should not have been
admitted because he was not living with her during the time she alleges he
molested her. But this Court has noted that “children cannot easily link
experiences to dates or other specific points in time.” State v. Copeland, 253
Ariz. 104, 113, ¶ 18 (App. 2022). Thus, this Court has been lenient regarding
the specificity required of children who are victims of sexual offenses. See
id. (“noting that the ‘true issue’ in repetitive molestation cases is
credibility”); State v. Herrera, 232 Ariz. 536, 546, ¶ 26 (App. 2013) (“And
although [the defendant] notes that [the victim] was unable to specify what
time of day the first incident occurred, [this Court] agree[s] with the court
that her testimony provided sufficient proof that the [prior] Acts occurred.”
(cleaned up)).

¶13 Faria attempts to distinguish Vega by pointing out that Haley
did not give sworn, in-person testimony at the evidentiary hearing, thus
preventing the court from assessing her credibility. But Faria stipulated to
the admission of Haley’s recorded interview, and that precludes him from
asserting that the admission was error. State v. Parker, 231 Ariz. 391, 405,
¶ 61 (2013) (citations omitted).

¶14 Faria next argues the court’s findings were inconsistent with
the evidence. The court found that the Tucson molestations occurred “when
[Haley] was approximately eight years old,” or “approximately 2012,” and
that “[Haley] lived with [Faria] at the time of the alleged other act and
continuously since then.” During her interview, Haley repeatedly reported
the molestation incidents happened at night when she was eight. Although
no evidence at the hearing provided her birth month, Haley was 16 years
old when she participated in the forensic interview at the end of December
2020. The superior court could have reasonably concluded that the timeline
was credible.

¶15 Faria also points to the State’s assertion that Faria moved in
with Ravin “near the end of 2013,” which minimized Haley’s credibility.
But no witness testified that Faria moved in near the end of 2013, and
counsel’s statement is not evidence. See State v. Riley, 248 Ariz. 154, 191,
¶ 144 (2020). Although Faria argues Jamie’s testimony suggested the
Tucson molestation was committed by Haley’s father, the court also heard
evidence that her father was in a coma at some point in 2013. The court
could reasonably infer that the 2013 coma predated Faria’s contact with
Ravin’s children. Based on the evidence at the hearing, the court could infer
that Faria had the opportunity to molest Haley as alleged. And Haley’s
account is not “physically impossible or so incredible that no reasonable
person could believe it.” Williams, 111 Ariz. at 177–78. Thus, Haley’s

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interview report provided clear and convincing evidence that Faria
previously molested her. See Vega, 228 Ariz. at 29, ¶ 19 n.4.

¶16 The court considered the specific factors required for
admissibility under Rule 404(c). Ariz. R. Evid. 404(c)(1). It found clear and
convincing evidence that Faria committed the acts, that the acts provided a
reasonable basis to infer Faria had an abhorrent sexual propensity to
commit the charged offenses and that the probative value of admitting such
evidence was not substantially outweighed by a danger of unfair prejudice.
The superior court did not abuse its discretion in admitting evidence that
Faria molested Haley in Tucson.

II. The superior court properly admitted the three segments of the
recorded phone call.

¶17 Faria contends that the court violated his due process rights
by admitting the three recorded phone call segments between Jamie and
Faria’s aunt. This Court “review[s] the denial of a motion to suppress under
an abuse of discretion standard,” Cornman, 237 Ariz. at 354, ¶ 10, but
reviews claims of due process violations de novo, State v. O’Dell, 202 Ariz.
453, 457, ¶ 8 (App. 2002). Though failure to disclose evidence that seriously
impedes the right to a fair trial may violate the due process clause, “the
nonproduction of evidence alone . . . will not be presumed a denial of due
process.” State, ex rel. Hyder v. Hughes, 119 Ariz. 261, 263 (1978).

¶18 The State must disclose any tangible object or electronically
stored information that it has and intends to use at trial. Ariz. R. Crim. P.
15.1(b)(5). Faria claims that the State lost or destroyed the full phone
recording and relies on Arizona caselaw saying, “[w]here there is a loss or
destruction of evidence, [this Court] will reverse a defendant’s conviction
if it can be shown (1) bad faith or connivance on the part of the government
or (2) that he was prejudiced by the loss of the evidence.” State v. Jefferson, 126 Ariz. 341, 343 (1980).

¶19 But the superior court found no evidence that the State ever
possessed the complete audio recording or acted in bad faith. The pre-trial
hearing evidence supports that the State never had the full recording.
Although Faria’s aunt testified that she sent DCS the entire recording, she
admitted that she received no confirmation that DCS received it, and the
DCS case manager testified that he never received it. The aunt also testified
that she never sent the complete recording to the sheriff’s office, and a
county detective confirmed that neither he nor the sheriff’s office ever
received the full recording. The State cannot lose or destroy evidence it

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never had. And although the aunt’s phone containing the recording was
destroyed, there was no evidence that the state acted to destroy it.

¶20 Faria fails to show the State lost or destroyed evidence. Nor
has he shown the State acted in bad faith or that he was prejudiced. Faria
admits in his briefing that “it is impossible to prove whether the loss of this
phone call was a result of good or bad faith.” And he admitted that “the
rest of the two-hour phone conversation has never been obtained by the
State.” Nothing in the record shows Faria was prejudiced by the lack of the
full recording. At trial, both Faria’s aunt and Jamie testified that much of
the undisclosed portion of the call concerned Jamie’s desire to move into
the aunt’s home, evidence that was not relevant to the charged offenses.
Faria could have asked Jamie about the call’s contents when she testified at
trial. Faria raised no claim that the unavailable recording was exculpatory
or would otherwise have assisted Faria in his defense. “Where the nature
of the evidence—exculpatory, inculpatory, or neutral—is unknown . . .
there can be no showing of prejudice in fact.” State v. Youngblood, 173 Ariz.
502, 507 (1993).

¶21 The superior court did not abuse its discretion by admitting
the three recorded segments of the phone call, nor did it violate Faria’s right
to due process.

III. The Willits instruction was not required.

¶22 Finally, Faria contends that “there is no doubt a Willits
instruction was called for” because of the lost phone call. This Court
reviews rulings on Willits instructions for an abuse of discretion. State v.
Hernandez, 250 Ariz. 28, 31, ¶ 9 (2020).

¶23 “Generally, a defendant is entitled to a Willits instruction if:
(1) the [S]tate failed to preserve obviously material and reasonably
accessible evidence that could have had a tendency to exonerate the
accused; and (2) there was resulting prejudice.” Id. at ¶ 10. As addressed
above, the State cannot fail to preserve something it never had. And Faria
“‘must do more than simply speculate about how the evidence might have
been helpful’; there must be ‘a real likelihood that the evidence would have
had evidentiary value.’” Id. (quoting State v. Glissendorf, 235 Ariz. 147, 150,
¶ 9 (2014)). As discussed above, there is no evidence that the missing
segments of the phone call would have helped Faria’s defense. Faria was
not prejudiced by the lost phone call.

¶24 The superior court did not abuse its discretion by denying
Faria’s request for a Willits instruction.

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CONCLUSION

¶25 For the reasons above, this Court affirms.

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

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