State v. Ordway

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RICKY ORDWAY, Appellant.

No. 1 CA-CR 23-0543
FILED 08-07-2025

Appeal from the Superior Court in Maricopa County
Nos. CR2019-005766-001, CR2019-122267-001, CR2021-002307-001
The Honorable Kathleen H. Mead, Judge, Retired
The Honorable Peter A. Thompson, Judge
The Honorable Jeffrey A. Rueter, Judge

AFFIRMED

COUNSEL

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

Apfel Law Group, Phoenix
By Seth M. Apfel
Counsel for Appellant
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MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Angela K. Paton and Judge Brian Y. Furuya joined.

K I L E Y, Judge:

¶1 Ricky Ordway appeals his convictions and sentences for
aggravated assault and attempted molestation. For the following reasons,
we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the evidence “in the light most favorable to
upholding the jury’s verdicts.” State v. Copeland, 253 Ariz. 104, 108, ¶ 2 (App.
2022) (citation omitted).

¶3 At all relevant times, Ordway was a fifth-grade teacher at an
elementary school in Peoria. Ordway described himself as “playful” with
his students, explaining that he liked to “poke” them “in the ribs,” “flip[]
[their] ponytails,” and “tickle” them by “squeez[ing]” their knees.

¶4 At various times over the course of nearly two years, Ordway
would invite girls, but never boys, up to his desk to sit next to him during
class. On numerous occasions when the rest of the class was occupied
watching a video or working on assignments, Ordway would caress the
thigh of the girl sitting next to him. K.W., for example, testified about an
occasion when she was sitting next to Ordway at his desk while the class
watched a movie.1 K.W. stated that Ordway put his hand on her thigh and
began “[m]oving it . . . [s]lowly.” She “didn’t feel comfortable,” she testified,
and when Ordway was distracted by disruptive students in the back of the
classroom, she returned to her assigned seat. M.M. likewise testified about
an occasion when she was sitting in a chair next to Ordway at his desk while
the class watched a video. Ordway put his hand “[r]ight above the knee,”
she stated, then “started rubbing in a circular motion on [her] thigh” while
he “slid” his hand “upwards” until his fingers made “a brushing motion”
against her “genitals.”

1 We use initials to protect the identities of victims. Ariz. R. Sup. Ct. 111(i).

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¶5 Ordway’s actions came to the attention of school officials
when a student overheard two of Ordway’s students, E.D. and M.C.,
talking about Ordway “putting his hand down [their] pants.” This student
reported the allegation to her mother, who called the school principal,
Stephen Balliet. Balliet contacted E.D.’s family, then the Peoria Police
Department. Officers reached out to the families of the children to arrange
forensic interviews.

¶6 Concurrently with these reports, K.W. told her mother that
Ordway asked her to stay for after-school detention in his classroom.
Aware that students generally spent after-school detentions in a group
setting in the school library, K.W.’s mother “didn’t feel comfortable” with
K.W. spending detention alone with her teacher. K.W. and her mother
spoke with Balliet to express their concerns about Ordway.

¶7 After an investigation, Ordway was charged with multiple
offenses against 15 victims, including offenses against his daughter which
occurred at home. The counts involving Ordway’s daughter were severed
for trial.

¶8 Meanwhile, some of the victims and their families filed a civil
suit for damages against Ordway and the school district. Before trial,
Ordway moved in limine for permission to question those victims about the
civil suit. “Evidence that an alleged victim has instituted a civil lawsuit
against the defendant for money damages,” he argued, “bears on [her]
credibility” by showing a possible “bias on the part of the victim.” The trial
court granted Ordway’s motion.

¶9 Trial began in March 2023. At trial, multiple victims testified,
as did the investigating detective and the forensic interviewers. The State
also called, as an expert witness, Wendy Dutton, Ph.D., a psychologist with
extensive experience in providing treatment to sex offenders and victims.
Dutton testified, among other things, that abusers often use “physical
contact” such as “tickling games” and other “horseplay” as a means to
“introduce sexuality into the relationship.”

¶10 Ordway called university professor and psychologist Bradley
McAuliff, Ph.D., as an expert witness. McAuliff testified, among other
things, that girls “on the cusp of puberty” are particularly sensitive to the
“approval” of “peer groups,” and may use rumors as a kind of “social
commodity” to win attention and acceptance. McAuliff further testified that
hearing rumors may change children’s “perception” of innocent behavior,
leading them to interpret “non-sexualized behaviors” like “poking or

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flipping a ponytail” as “sexually motivated and even sinister when they are
not.”

¶11 Ordway testified in his own defense. He admitted that girls
sometimes sat next to him at his classroom desk. When asked why boys
never sat with him, Ordway responded, “I don’t think the boys [would]
want to put themselves out there as being a teacher’s pet.” Ordway
admitting touching the legs of some of the girls when they sat next to him,
describing his touch as “a hello squeeze” on the “knee” designed to “elicit
a tickle response.” He denied, however, touching any girl on the thigh, and
further denied touching a girl with sexual interest or with the intent to
injure, insult or provoke.

¶12 The jury found Ordway guilty of eight counts of aggravated
assault and three counts of attempted molestation. On two of the
aggravated assault counts, the jury found that the offense was sexually
motivated. The jury acquitted Ordway on the remaining 17 counts. At
sentencing, Ordway requested that his sentences run concurrently, while
the State argued that the sentences for all counts should run consecutively.
Citing in part “the totality of the circumstances,” the superior court
sentenced Ordway to consecutive sentences, totaling 16 years, with two
probation terms to follow.

¶13 Ordway timely appealed. We have jurisdiction pursuant to
Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12-
120.21(A)(1), 13-4031, -4033(A)(1).

DISCUSSION

I. Alleged Errors in Jury Instructions

A. Curative Instruction During Voir Dire

¶14 During voir dire, the prosecutor asked prospective jurors,
“[I]s there anybody who is unwilling to give any weight to the fact that
there are 14 victims in this case?” Ordway objected to the question before
any jurors answered. At a sidebar conference, the prosecutor withdrew the
question. Ordway moved for a mistrial, which the court denied. Before voir
dire ended, Ordway moved to strike “the whole panel . . . because of the
taint from” the prosecutor’s suggestion that “the number of accusers should
have [evidentiary] weight.” The court agreed that the prosecutor’s question
was “improper,” but declined to strike the panel, reasoning that
appropriate jury instructions “would cure any taint.” Ordway then
requested the following curative instruction:

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The fact that there are multiple alleged accusers in this case
has no bearing on whether the defendant is guilty of the
charges. You must not think the defendant is guilty of any one
offense or the offenses because there are multiple alleged
accusers. Instead, you must consider each charge
independently of all other charges and consistently with all
other instructions you are given.

¶15 The State contended that no curative instruction was needed.
Rejecting each party’s position, the court gave the jurors the “separate
counts” instruction found in Revised Arizona Jury Instruction (“RAJI”)
Standard Criminal 30 (6th ed. 2022), which reads as follows:

Each count charges a separate and distinct offense. You must
decide each count separately on the evidence with the law
applicable to it, uninfluenced by your decision on any other
count. You may find that the State has proved beyond a
reasonable doubt, all, some, or none of the charged offenses.
Your finding for each count must be stated in a separate
verdict.

RAJI Stand. Crim. 30. (separate counts).

¶16 Ordway contends that the court erred in failing to cure the
State’s “improper[] suggest[ion]” during voir dire that the “mere fact that
there were fourteen alleged victims” constituted “evidence of Ordway’s
guilt.” Ordway acknowledges that “there is nothing incorrect” about the
RAJI “separate counts” instruction that the court gave but insists that the
instruction was insufficient to “cure” the “taint” from the “improper”
question. “We review a trial court’s decision to give a jury instruction for
an abuse of discretion.” State v. Ewer, 254 Ariz. 326, 329, ¶ 10 (2023)
(quotation omitted).

¶17 As the court correctly noted, the prosecutor’s question
improperly suggested that the number of accusers was a fact that was
entitled to evidentiary weight. But the question was withdrawn before it
was answered, and the court denied Ordway’s motion for a mistrial. We
must defer to the court’s implicit determination that the unanswered
question did not, as Ordway maintains, “taint” the jury. See State v. Newell, 212 Ariz. 389, 402, ¶ 61 (2006) (citations omitted) (observing that “the trial
court is in the best position to determine the effect of a prosecutor’s
comments on a jury”).

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¶18 Moreover, the “separate counts” instruction correctly told the
jurors that the evidence in support of each count must be assessed
separately. We presume, of course, that jurors follow the court’s
instructions. State v. Prince, 204 Ariz. 156, 158, ¶ 9 (2003) (citation omitted).
We need not rely solely on presumptions here, however; the fact that the
jurors acquitted Ordway of 17 of the 34 counts makes clear that they did, in
fact, weigh the evidence on each count individually. Cf. State v. Stuard, 176
Ariz. 589, 600 (1993) (rejecting defendant’s argument that court erred in
refusing to sever counts due to danger of unfair prejudice and noting that
the fact that the jury acquitted defendant of several counts demonstrated
that “the jury followed the judge’s instructions and considered the evidence
separately on each charge”). We conclude that the RAJI “separate counts”
instruction sufficiently resolved any potential prejudice from the question
that the prosecutor posed and then withdrew during voir dire. Ordway has
not shown that the court abused its discretion by not giving his proposed
curative instruction instead.

B. The Court’s Answer to the Jurors’ Question

¶19 The final instructions told the jurors, among other things, that
knowingly touching the victim “with the intent to injure, insult or provoke”
is an element of aggravated assault. See A.R.S. §§ 13-1203(A)(3), -1204(A)(6).
During jury deliberations, the jury submitted a question to the court asking
for a “clarifying definition” of “injure, insult, or provoke,” adding, “Would
these need to be in a positive or negative response?” The State proposed
giving the jurors a definition of those terms based on “their ordinary
meanings” as set forth in State v. Guzman-Castro. 2 CA-CR 2016-0373, 2018
WL 2143252, at *2, ¶ 6 (Ariz. App. May 9, 2018) (mem. decision) (quoting
definitions of “injure,” “insult,” and “provoke” found in American
Heritage Dictionary). Stating, “I don’t think it’s proper to go to dictionary
definitions,” Ordway urged the court to simply “refer [the jurors] back to
the jury instructions.” The court accepted the State’s suggestion, telling the
parties:

I’m going to indicate to the jury there is no further statutory
definition of insult, injure, or provoke; and then I’m going to
indicate in those circumstances . . . statutorily undefined
words must be construed according to their common
approved use of language.

The court went on to state,

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I’m going to give [sic] injure means to cause physical harm to
or hurt and cause distress to; insult means to treat with gross
insensitivity, insolence, or contemptuous rudeness and . . . to
affront or demean; and provoke means to incite anger or
resentment or disturb to action or feeling.2

¶20 Ordway argues the trial court abused its discretion in its
response to the jury’s request for a definition of “insult, injure, or provoke.”
Challenging only the court’s definition of the word “provoke,” Ordway
argues, first, that “[b]y defining the term, the trial court invaded the
province of the jury by interposing its own definition.”

¶21 A trial court’s response to a jury question is reviewed for an
abuse of discretion. State v. Fernandez, 216 Ariz. 545, 548, ¶ 8 (App. 2007)
(citation omitted).

¶22 At trial, Ordway asked the court to respond to the jury’s
question simply by referring them back to the instructions they had already
been given. Since those instructions did not include a definition of
“provoke,” Ordway’s proposal would have left the jury’s question
unanswered. The court did not abuse its discretion in rejecting Ordway’s
suggestion to ignore the jury’s request for help. See Ariz. R. Crim. P. 22.3(b)
(“If, after the jury retires, the jury . . . requests additional instructions, the
court may . . . further instruct the jury as appropriate.”); State v. Ramirez, 178 Ariz. 116, 126 (1994) (“The decision to further instruct a jury on a matter
. . . is within the trial court’s discretion.” (citation modified)).

¶23 Ordway next argues that the court’s definition of “provoke”
— which included the phrase “disturb to action or feeling” — was overly
broad. According to Ordway, “any touching of any nature,” including “a
pat on the back” or a “celebratory hand slap,” might “arouse[] feeling of
some kind.” “[T]he offense of assault,” he goes on, “is not intended to
encompass . . . these sorts of touchings,” but only “touching motivated by
a negative intent of some kind.” As a result, the court “misstated the law”
by telling the jurors they could convict Ordway based on physical touch
without “any evidence of negative intent.”

2 The record contains no copy of the written response to the jury question,

evidently because it was “lost or inadvertently destroyed.” But neither
party disputes that the court’s statement to the parties accurately reflects
the content of the court’s written response to the jurors.

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¶24 A term not defined by statute is generally construed in
accordance with its ordinary meaning, which, in turn, may be determined
by reference to the dictionary. In re Drummond, 257 Ariz. 15, 18, ¶ 7 (2024)
(“Absent a statutory definition, courts generally give words their ordinary
meaning and may look to dictionary definitions.” (citation omitted)). The
definition of “provoke” that the court gave is consistent with its ordinary
meaning. See, e.g., Provoke, Merriam-Webster.com, https://www.merriam-
webster.com/dictionary/provoke (last visited Jul. 15, 2025) (defining
“provoke” as “to call forth (a feeling, an action, etc.), evoke; to stir up
purposely; to provide the needed stimulus for; to incite to anger; to arouse
to a feeling or action”).

¶25 Further, we may consider counsel’s closing arguments in
assessing the potential harm from purportedly erroneous or inadequate
jury instructions. See State v. Bruggeman, 161 Ariz. 508, 510 (App. 1989)
(“Closing arguments of counsel may be taken into account when assessing
the adequacy of jury instructions.” (citations omitted)); cf. State v. Fierro, 254
Ariz. 35, 41, 44, ¶¶ 17, 34 (2022) (holding that “[e]ven though the court
improperly instructed the jury” that defendant “could be found guilty of
attempted second degree murder without intending to kill,” erroneous
instruction caused no prejudice because “the prosecutor repeatedly made
clear the jury had to find an intent to kill”). The closing arguments of both
parties made clear that the jurors could not properly convict Ordway of
aggravated assault without considering his motivation for touching the
victims. Ordway’s counsel, for example, argued that to convict him of
aggravated assault, the jurors had to find beyond a reasonable doubt that
he touched the victims with a “sexual motivation” rather than a “playful”
or “joking” manner.

¶26 The State took the same position, arguing at length that the
evidence showed that Ordway had “a sexually motivated reason” for
touching the thighs of the girls he invited to sit next to him at his desk.
Referring to Dutton’s testimony, the State argued that Ordway instituted a
“culture of physical touching” in his classroom, which included “touching”
his students’ “hair” and “squeezing” their knees, in order to “break
down . . . resistances and . . . emotional barriers to physical touching with
these girls” to “get them to the point of victimization.” Citing Dutton, the
State argued that “the process of victimization” may begin with “open
touching,” such as “flipping hair or zipping ribs,” before “progress[ing]” to
“the actual assault” that occurs “behind the desk.” Both parties argued, in
other words, that Ordway could not be found guilty based merely on
innocent physical contact.

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¶27 Because the jury “received the information necessary to arrive
at a legally correct decision,” the court did not abuse its discretion when it
provided a definition of the word “provoke” at the jury’s request. See
Fernandez, 216 Ariz. at 548, ¶ 8 (citation omitted).

II. Evidentiary Rulings

¶28 Ordway contests a variety of the superior court’s evidentiary
rulings. We review evidentiary rulings for an abuse of discretion and will
uphold a ruling if supported by reasonable evidence. State v. Salamanca, 233
Ariz. 292, 294-95, ¶ 8 (App. 2013).

A. Preclusion of Evidence of Allegations Against Others

¶29 At trial, Ordway sought to admit evidence of unfounded
accusations against other male teachers and staff at the school to establish
the school’s “culture of complaints” which would, in turn, undermine “the
credibility of the alleged victims.” The court precluded Ordway from
introducing “evidence that there were false allegations made against other
teachers,” finding the evidence irrelevant. Ordway now argues that
precluding this evidence “depriv[ed] him of the opportunity to present a
complete defense” by showing that “accusations ran rampant” at Ordway’s
school, with “[e]very male teacher and/or staff member” being, at one time
or another, “the subject” of baseless “complaints” and “allegations.”

¶30 Under Rule 401, evidence is relevant if “it has any tendency
to make a fact more or less probable than it would be without the evidence”
and “the fact is of consequence in determining the action.” Ariz. R. Evid.
401. Irrelevant evidence is not admissible. Ariz. R. Evid. 402. We review a
court’s relevance determination for abuse of discretion. State v. Rose, 231
Ariz. 500, 513, ¶ 59 (2013) (quotation omitted).

¶31 Evidence of false allegations against other teachers and staff
may have been relevant if those false allegations were made by Ordway’s
accusers. Evidence that Ordway’s accusers had previously made false claims
against others might, in other words, bear on their credibility or intent to
fabricate. See A.R.S. § 13-1421(A)(5) (setting forth conditions that must be
met for admission of “[e]vidence of false allegations of sexual misconduct
made by the victim against others”); see also State v. Beeler, 2 CA-CR 2020-
0131, 2023 WL 3031317, at *2-5, ¶¶ 10-21 (Ariz. App. Apr. 20, 2023) (mem.
decision) (evaluating the admissibility of alleged victim’s prior false
allegations of sexual misconduct made against others under A.R.S. § 13-
1421); cf. State v. Parkinson, 258 Ariz. 601, 608-09, ¶ 23 (App. 2024) (citation
omitted) (holding that “evidence of [victim’s] prior alleged fabrications”

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against defendant, “if credited by the jury, could have established her
possible motive, plan, and intent to fabricate” the allegation giving rise to
the pending charge). But nothing in the record suggests that the false
allegations Ordway sought to admit were made by the victims in this case.
Without such a showing, the superior court did not err in precluding, on
relevance grounds, evidence of unfounded allegations that other students
may have made against other teachers and staff.

¶32 Ordway also challenges the court’s determination, in the
alternative, that Rule 403 bars the admission of evidence of false allegations
that other students made against other teachers and staff. Because we affirm
the court’s determination that such evidence was irrelevant, we need not
address the court’s reliance on Rule 403 as an alternative basis to preclude
this evidence. State v. Bigger, 227 Ariz. 196, 209, ¶ 44 (App. 2011) (“Because
the court did not abuse its discretion in excluding the evidence based on
relevance, we need not address whether it otherwise was inadmissible
under Rule 403.” (citation omitted)).

B. Preclusion of Evidence of Rumors About Ordway

¶33 At trial, Ordway sought to present the testimony of students
who reported hearing “outrageous” rumors about him, such as rumors that
he raped a student at gunpoint and that police officers found a whip in his
classroom. The court permitted Ordway to introduce evidence that he was
the subject of unflattering rumors, including a rumor that he was “a
pervert,” but precluded evidence of rumors about Ordway’s purported
rape at gunpoint and possession of a whip. Ordway now argues that the
court erred in precluding him from eliciting evidence of “the details of the
rumors,” asserting that the rumors were so transparently false that they
undermine “the credibility of the alleged victims” in this case. Even if these
outlandish rumors did not originate with the victims, Ordway maintains,
they were nonetheless admissible to “demonstrate[] the capacity for girls of
the age of the victims” to fabricate “vicious, sexually charged and very
detailed rumors about a teacher.”

¶34 The record refutes Ordway’s claim that he was denied the
opportunity to challenge the credibility of the victims with evidence of “the
capacity” of “girls” their age to make baseless allegations of a sexual nature.
On the contrary, Ordway elicited testimony from his expert witness,
McAuliff, that preteen girls’ suggestibility and their desire for status among
their peers may lead them to both misinterpret innocent behavior and make
wholly unfounded allegations.

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¶35 But no evidence in the record suggests that any of the victims
in this case spread any rumor about Ordway committing rape at gunpoint
or keeping a whip in his classroom. Nor does any evidence indicate who
the source of these rumors was. Absent such evidence, these specific rumors
could prove nothing about the credibility, or the state of mind, of the
testifying victims. The court did not abuse its discretion in precluding
evidence of the details of outlandish rumors about Ordway that originated
with unidentified sources.

C. Cross-Examination Concerning Allegations in Complaint
filed in the Civil Lawsuit

¶36 At trial, Ordway’s attorney cross-examined four victims
about the civil suit their families filed against Ordway and the school
district. Specifically, defense counsel asked A.A., E.D., T.H., and I.V. if their
families had filed a $25 million lawsuit against Ordway and the school
district. Each replied that she was unaware of the lawsuit against Ordway.
Evidently referring to specific allegations in the civil complaint, Ordway’s
attorney (1) asked A.A., T.H. and I.V. whether Ordway ever gave them
expensive gifts, (2) asked E.D., T.H. and I.V. whether Ordway had students
sit on his lap, (3) asked T.H. whether Ordway ever “cup[ped her] breast in
front of the whole class,” and (4) asked T.H. whether Ordway ever
unbuttoned her pants. Each victim answered each of these questions in the
negative. When defense counsel attempted to ask Ordway about those
same allegations, the court sustained the State’s objection, ruling that
allegations in the civil complaint could not “be attributed to an individual
victim” as “prior inconsistent statements,” and so were inadmissible
hearsay.

¶37 Ordway now argues that the court erred in failing to allow
him to question these four victims about specific allegations in the civil
complaint. Restricting the scope of his cross-examination of the victims, he
contends, denied him his right under the Confrontation Clause to confront
his accusers. See U.S. Const. amend. XI.

¶38 Although the Confrontation Clause guarantees defendants
the right to confront witnesses against them, it does not entitle them to
unfettered cross-examination. See Delaware v. Fensterer, 474 U.S. 15, 20 (1985)
(“The 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.” (citation modified)). Thus,
while the Confrontation Clause “protects a defendant’s ability to prove a
witness’s motive or bias,” it does not deprive trial courts of their “wide

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latitude to impose reasonable limits on cross-examination” to avoid,
“among other things, confusion of the issues.” State v. Almaguer, 232 Ariz.
190, 197-98, ¶ 22 (App. 2013) (citing Delaware v. Van Arsdall, 475 U.S. 673,
679 (1986)). We review rulings that implicate the Confrontation Clause de
novo. Id. (citation omitted).

¶39 Ordway asserts that the allegations in the civil complaint
were not hearsay because they were not being offered for their truth.
Instead, he asserts, he sought to offer evidence of the allegations in the civil
complaint to “impeach . . . [the] credibility of [the] victims by showing the
inconsistency of their claims.” Accordingly, he contends, the allegations in
the complaint were admissible as the victims’ prior inconsistent statements
because the complaint “reflect[s] statements” that “the victims and/or their
parents” made to counsel in the civil suit.

¶40 We acknowledge the general rule that “statements made by
an attorney concerning a matter within his employment may be admissible
against the party retaining the attorney.” Williams v. Union Carbide Corp.,
790 F.2d 552, 555-56 (6th Cir. 1986) (quotation omitted) (citing cases). That
principle does not apply here, however, since the victims testified they were
unaware of the civil suit. Ordway cites no authority, and we are aware of
none, for the proposition that a child-victim’s testimony may be impeached
with statements in a pleading filed by an attorney retained by the child’s
parents.

¶41 Here, the court permitted Ordway to question victims about
the civil suit that their families filed, including the $25 million in damages
being claimed. Such inquiry was proper to establish a potential motive for
the witnesses to lie. See State v. Gertz, 186 Ariz. 38, 42 (App. 1995) (“Evidence
of a civil action by a complaining witness against the defendant, arising
from the same transaction that is the subject of the prosecution, has a direct
bearing on the credibility of the witness to show bias and prejudice.”
(citation modified)). Further, Ordway was able to question A.A., E.D., T.H.
and I.V. about specific allegations in the civil complaint (which they
denied). In the absence of evidence that the individual victims themselves
were the source of the allegations in the complaint, the court did not abuse
its discretion in barring Ordway from testifying about those allegations to
impeach the victims’ testimony. Cf. Spears v. Adamson, 3:04-CV-00087, 2009
WL 948543, at *1 (D. Nev. Apr. 6, 2009) (applying federal evidence law,
court held that defendant could not impeach Spears’s testimony with
allegations in complaint filed on behalf of Spears and two other plaintiffs
“without some showing that the statements at issue in the complaint are
attributable to [Spears]”).

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D. Admission of Portions of Forensic Interviews

¶42 After T.H. and E.D. testified on direct examination about
Ordway’s conduct, Ordway asked each, on cross-examination, about the
$25 million suit their families filed. The State then sought leave to play
portions of the recording of their forensic interviews to “rebut” Ordway’s
“express or implied charge” that they had “recently fabricated” their
allegations. See Ariz. R. Evid. 801(d)(1)(B)(i). Finding that Ordway’s cross-
examination “implied” that T.H. and E.D. were testifying “in support of
[the] lawsuit” and the “financial rewards” they hoped to reap, the court
permitted the State to play portions of their forensic interviews. Ordway
now argues that the superior court abused its discretion by allowing the
State to publish segments of the forensic interviews with T.H. and E.D. as
prior consistent statements under Arizona Rule of Evidence (“Rule”)
801(d)(1)(B)(i).

¶43 Rule 801(d)(1)(B) defines, as non-hearsay, a declarant-
witness’s prior consistent statement when that statement is offered “to
rebut an express or implied charge that the declarant recently fabricated it
or acted from a recent improper influence or motive in so testifying.” Ariz.
R. Evid. 801(d)(1)(B)(i).

¶44 Ordway argues that Rule 801(d)(1)(B)(i) does not apply here
because, he maintains, he never claimed that “the victims’ stories were
recent fabrications.” On the contrary, he asserts, his position “from the
outset of trial was that the alleged victims’ stories were always
fabrications.” Relying on case law holding that “a prior consistent
statement” is admissible only if the statement was “made before the motive
to fabricate arose,” State v. Yonkman, 233 Ariz. 369, 376, ¶ 26 (App. 2013)
(citation omitted), Ordway contends that the victims’ statements during
their forensic interviews were not admissible as “prior consistent
statements” because they intended to falsely accuse Ordway all along, and
so their motive to lie predated their forensic interviews.

¶45 Before trial, Ordway successfully argued that evidence of the
civil suit was relevant and admissible because it would show that the
victims had a pecuniary motive to lie about him. Because Ordway expressly
linked the victims’ motive to lie to their civil suit, Rule 801(d)(1)(B)
authorized the admission of prior consistent statements they made before
the suit was filed. See In re Maricopa Cnty. Juv. Action No. JV-133607, 186
Ariz. 198, 201 (App. 1996) (quotations omitted) (noting that questioning that
“raise[s] an inference” that “the witness had a reason to fabricate her story
later” permits admission of prior consistent statement); see also United States

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v. Gonzalez, 533 F.3d 1057, 1062-63 (9th Cir. 2008) (holding that trial court
did not err in permitting investigating officer to testify about victim’s
statements when reporting the assault; defense counsel’s cross-examined
victim about her “pending civil case” to “suggest a mercenary purpose,”
and so “[t]he officer’s account of her story was properly admissible” under
Federal Rule of Evidence 801(d)(1)(B)). While Ordway was able to (and did
in fact) argue to the jury that the victims were lying all along, the trial court
did not abuse its discretion in determining that Ordway’s introduction of
evidence of the $25 million civil suit filed on behalf of the victims entitled
the State to present evidence of consistent statements they made before the
suit was filed.

¶46 In any event, any error in the admission of portions of the
forensic interviews of T.H. and E.D. was harmless in view of the fact that
those portions of their forensic interviews were cumulative to their trial
testimony and both witnesses were extensively cross-examined on the
matter. See State v. Hoskins, 199 Ariz. 127, 144, ¶ 66 (2000) (citation omitted)
(holding that any error in admitting evidence of witness Nelson’s prior
consistent statements was harmless “because all aspects of Nelson’s prior
statements were included in Nelson’s own testimony, and Nelson was
subjected to thorough cross-examination”).

¶47 M.V. frequently responded to questions posed on direct
examination by stating, “I don’t remember.” After she described an
occasion when Ordway “rubb[ed]” her thigh “up and down” while she sat
with him at his desk, for example, M.V. was asked if something similar
happened a second time. She replied, “I don’t remember.” After she
reviewed a transcript of her forensic interview, M.V. testified that she still
did not recall whether Ordway touched her thigh on a second occasion. She
also testified that she remembered being forensically interviewed, that she
told the truth during that interview, and that her memory of the events was
better at the time of the interview than it was at trial. The State later moved
to play portions of her forensic interview as a recorded recollection under
Rule 803(5), and the court granted the State’s request. Ordway argues that
the court abused its discretion by allowing the State to publish segments of
the forensic interview with M.V. under Rule 803(5). See Ariz. R. Evid. 803(5).

¶48 Rule 803(5) excepts from the hearsay rule a statement “on a
matter the witness once knew about but now cannot recall well enough to
testify fully and accurately . . . was made or adopted by the witness when
the matter was fresh in the witness’s memory . . . [and] accurately reflects
the witness’s knowledge.” Ariz. R. Evid. 803(5). In granting the State’s
request to play portions of M.V.’s forensic interview, the court found that

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she “was unable to fully testify regarding those events,” that she “adopted
those previous statements,” “[i]ndicated she was truthful when she made”
them, and “indicated that her memory was better at the time . . . the forensic
interview” was conducted.” The record supports these findings, which
satisfy the requirements of Rule 803(5). See, e.g., State v. Alatorre, 191 Ariz.
208, 211-12, ¶¶ 9-10 (App. 1998) (holding that trial court did not abuse its
discretion in admitting recording of 8-year-old victim’s police interview
because victim’s trial testimony about her “diminished” memory satisfied
Rule 803(5)), abrogated in part on other grounds by State v. Ferrero, 229 Ariz.
239 (2012). The superior court did not err in admitting portions of M.V.’s
forensic interview.

E. Ruling on Rebuttal Testimony of K.W.’s Mother

¶49 K.W. testified that when she and her mother met with Balliet,
she told Balliet that Ordway had touched her leg in a manner that made her
uncomfortable. When called as a defense witness, Balliet testified that K.W.
told him that Ordway “poke[d] girls in the ribs” and “play[ed] with their
hair,” but denied that K.W. disclosed that he touched her leg. In rebuttal,
the State called K.W.’s mother, who testified that during their meeting with
Balliet, she observed K.W. “demonstrate[] where she had been touched on
her legs.” Ordway argues that the superior court erred in allowing K.W.’s
“mother to testify about [K.W.’s] physical demonstration” of Ordway’s
conduct during the meeting with Balliet. The demonstration was “clearly
intended as an assertion,” Ordway argues, and “thus was non-verbal
conduct that fell within the hearsay rule.” The State responds that K.W.’s
mother’s testimony was admissible to impeach Balliet’s testimony and
rebut the inference that K.W. must have recently fabricated the allegation
that Ordway touched her leg because she purportedly did not disclose it to
Balliet.

¶50 A witness’s testimony about his or her observation of a
material event is always subject to impeachment by the testimony of
another observer. See Pub. Serv. Co. of Okla. v. Bleak, 134 Ariz. 311, 324 (1982)
(“Impeachment by contradiction is a well-recognized practice.” (citation
omitted)). Moreover, a declarant’s out-of-court statement is admissible if
offered as a prior consistent statement to rebut an express or implied charge
of recent fabrication. Ariz. R. Evid. 801(d)(1)(B)(i). Because K.W. testified
that she disclosed to Balliet that Ordway had touched her leg and Balliet
denied that K.W. made any such disclosure, the testimony of K.W.’s
mother, who was present during their conversation, was admissible to
support K.W.’s testimony and impeach Balliet’s. Ordway is not entitled to
relief.

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III. Sufficiency of the Evidence

¶51 Ordway argues there is insufficient evidence to support his
convictions. We review the sufficiency of evidence de novo. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011) (citation omitted). In doing so, we review the
evidence presented at trial to determine if “substantial evidence exists to
support the jury verdict.” State v. Pena, 235 Ariz. 277, 279, ¶ 5 (2014) (citation
omitted). “Substantial evidence is evidence that ‘reasonable persons could
accept as sufficient to support a guilty verdict beyond a reasonable doubt.’”
Id. (quoting State v. Hausner, 230 Ariz. 60, 75, ¶ 50 (2012)). Substantial
evidence must support each element of the crime charged. West, 226 Ariz.
at 562, ¶ 16. Because “the credibility of witnesses” is “exclusively for the
jury” to decide, we do not re-weigh evidence on appeal. State v. Buccheri-
Bianca, 233 Ariz. 324, 334, ¶ 38 (App. 2013).

¶52 “A person commits molestation of a child by intentionally or
knowingly engaging in or causing a person to engage in sexual contact . . .
with a child who is under fifteen years of age.” A.R.S. § 13-1410(A). “Sexual
contact,” in turn, is defined to include “direct or indirect touching, fondling
or manipulating of any part of the genitals . . . by any part of the body or by
any object.” A.R.S. § 13-1401(A)(3)(a). A person commits attempted
molestation of a child if he intentionally does “anything which, under the
circumstances as such person believes them to be, is any step in a course of
conduct planned to culminate in” the molestation of a child. See A.R.S. § 13-
1001(A)(2). As relevant here, a person commits an aggravated assault by
“knowingly touching [the victim] with the intent to injure, insult or
provoke,” A.R.S. § 13-1203(A)(3), when “the person is eighteen years of age
or older” and the victim is “a minor under fifteen years of age,” A.R.S. § 13-
1204(A)(6).

¶53 Ordway was charged with three crimes against A.A.: two
counts of molestation and one count of aggravated assault. Ordway was
acquitted of both molestation counts. Ordway argues that insufficient
evidence supports his aggravated assault conviction because this
conviction is based on the same underlying conduct as the charges of which
he was acquitted.

¶54 A.A. testified about three occasions when Ordway touched
her as she sat next to him at his desk. The first time, she stated, he
“rubb[ed]” her thigh with “[h]is hands” in “a[n] up and down rubbing
motion.” On two subsequent occasions, she stated, he not only rubbed her
thigh but touched her vagina. Although the jury found Ordway not guilty
of the molestation counts (which related to the alleged touching of A.A.’s

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vagina), A.A.’s testimony about the first incident is sufficient to support
Ordway’s conviction for aggravated assault. See A.R.S. § 13-1203(A)(3);
State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3 (App. 2005) (stating that testimony
of a single witness is sufficient evidence to support a conviction, even if
uncorroborated). Ordway’s acquittal of molestation does not preclude his
conviction for aggravated assault that occurred on a prior occasion.

¶55 Ordway next argues that insufficient evidence supports his
convictions for aggravated assault against J.H. or K.W. because both
admitted, on cross-examination, that Ordway could have intended to touch
them merely in a “joking” or “playful” manner.

¶56 If jurors could reasonably differ about whether the evidence
establishes the elements of the charged crime, that evidence is sufficient to
support a conviction. See State v. Davolt, 207 Ariz. 191, 212, ¶ 87 (2004)
(quotation omitted). Here, J.H. testified about an occasion when she was
called up to Ordway’s desk and sat next to him. He began “[p]laying with”
her hair, she stated, then put his hand “on [her] leg” and “rub[bed] it.”
Although she acknowledged that his hand was on her leg “for only a few
seconds” and that he may have been “trying to be funny,” she also testified
that touching her leg “made [her] uncomfortable.” Similarly, K.W. testified
that when she sat next to Ordway while the class watched a movie, he “put
his hand” on her “lower thigh” and “kept it there.” When asked on cross-
examination if Ordway “could have been” acting in a “playful” manner,
she responded, “I’m not sure.” She also testified that she “didn’t feel
comfortable” when he touched her leg. Though differing conclusions might
have been drawn from their testimony, the weighing of testimony is the
province of the jury. State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004)
(citation omitted). The testimony of J.H. and K.W. was sufficient to support
Ordway’s conviction for aggravated assault.

¶57 Ordway argues that his conviction for attempted molestation
of M.M. is supported by insufficient evidence because M.M. “specified any
contact with her genitals was not intentional” and so, because “there was
no evidence of intent, [he] could not have been found guilty.”

¶58 M.M. testified that she sat next to Ordway while the class
watched a movie, and he put his hand “[r]ight above the knee,” “started
rubbing in a circular motion on [her] thigh,” and “slid” his hand “upwards”
until his fingers made “a brushing motion” against her “genitals.” When
asked if he touched her there on purpose, M.M. replied, “It wasn’t
intentional-intentional, but it could have been avoided.” But whether M.M.
believed Ordway acted intentionally or not is irrelevant; it is for the jury,

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not a witness, to determine whether the defendant acted with the requisite
state of mind. See State v. Rivera, 152 Ariz. 507, 514 (1987) (citations omitted)
(noting that “the jury . . . determine[s] the defendant’s intent at the time of
the alleged crime”). M.M.’s testimony, and inferences therefrom, were
sufficient for a reasonable jury to find Ordway guilty of attempted
molestation of a child. See State v. Lopez, 163 Ariz. 108, 112 (1990).

¶59 Finally, Ordway argues that all of his convictions are fatally
infirm because “there was insufficient evidence produced by independent
witness recollection to support conviction on any count.” The victims had
“little to no independent recollection . . . of anything that occurred,” he
maintains, and so he was improperly convicted “based almost entirely on
forensic interviews” rather than “live testimony.”

¶60 When a witness’s memory fails, Rule 612 allows the use of
writings to refresh his or her memory while testifying. Ariz. R. Evid.
612(a)(1). Here, certain victims were initially unable to recall details of
events they were asked about but were able to testify on those matters after
their memories were refreshed upon reviewing transcripts of their prior
recorded statements. Rule 612 authorized the admission of their testimony
after their recollections were refreshed. Further, Rule 803(d)(1)(B)(i)
authorized the playing of the recordings of the forensic interviews of T.H.
and E.D., see supra ¶¶ 44-45, and Rule 803(5) authorized the playing of the
recording of M.V.’s forensic interview, see supra ¶¶ 47-48. A jury may base
its verdict on any evidence properly admitted at trial. The weight to give to
the evidence is for “[t]he finder-of-fact, not the appellate court,” to
determine. See State v. Cid, 181 Ariz. 496, 500 (App. 1995); see also Williams,
209 Ariz. at 231, ¶ 6 (“Appellant’s arguments regarding the sufficiency of
the evidence go merely to weight and credibility. However, we do not
weigh the evidence; that is the function of the jury.” (citation omitted)). We
reject as baseless Ordway’s challenge to the weight or sufficiency of
evidence that was properly admitted.

IV. Sentencing

A. Finding That the Offenses Were Not Committed on the
Same Occasion

¶61 The jury convicted Ordway of one count of aggravated
assault against M.A. and another count of aggravated assault against T.H.
The court imposed consecutive sentences on these counts after determining
that the two offenses were not committed on the same occasion. Ordway
argues the superior court erred in not allowing the jury to make that

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determination. Noting that the indictment lists the same dates of offense for
both counts, Ordway asserts that neither victim testified “as to the specific
date or time frame when the offense occurred,” and therefore the two
offenses “could have occurred on the same date, even within minutes of
each other.” In the absence of “clear evidence that these two counts were
committed on different occasions,” Ordway concludes, the court erred in
not leaving that determination to the jury. The State argues that this
determination was inherent in the jury verdicts, and thus the superior court
did not err. Cf. State v. Gatliff, 209 Ariz. 362, 365-66, ¶¶ 17-18 (App. 2004)
(noting no separate dangerousness finding required when dangerousness
inherent in offense).

¶62 “The right to a jury trial extends to any finding that would
increase a person’s sentence beyond the sentence that would otherwise be
authorized by the verdict alone.” State v. Porter, 258 Ariz. 590, 593, ¶ 9 (App.
2024) (citation omitted), depublished in part, 567 P.3d 1287 (Ariz. 2025).
Because being convicted of multiple offenses not committed on the same
occasion exposes a defendant to enhanced minimum sentences, see A.R.S. §
13-703, whether offenses are committed on the same occasion is generally a
question for the jury unless that finding is inherent in the jury’s verdicts. Cf.
Gatliff, 209 Ariz. at 365-66, ¶¶ 17-18 (affirming “dangerousness”
enhancement of defendant’s sentence for arson of an occupied structure
despite the absence of “[a] separate jury finding of dangerousness” because
“dangerousness is by definition inherent in the crime”). Factors to consider
when determining whether multiple offenses were committed on the same
occasion include: “1) time, 2) place, 3) number of victims, 4) whether the
crimes were continuous and uninterrupted, and 5) whether they were
directed to the accomplishment of a single criminal objective.” State v. Kelly, 190 Ariz. 532, 534, ¶ 6 (1997).

¶63 Here, the two counts of aggravated assault were alleged to
have been committed against two different victims, M.A. and T.H. A
determination that the aggravated assaults on two different victims were
not committed on the same occasion was inherent in the jury’s verdicts. See
State v. Flores, 236 Ariz. 33, 36, ¶ 9 (App. 2014) (“[W]e have found no
Arizona case concluding that offenses were committed on the same
occasion when the crimes were committed on different days, involved
different property, or had unrelated victims.” (citations omitted)); see also
State v. Williams, 169 Ariz. 376, 380-81 (App. 1991) (holding that defendant’s
offenses, which included escaping from prison, stealing items from a
parked vehicle, and assaulting the driver of another car, were not
committed on same occasion even though “all the crimes were completed
in five hours”). Ordway has shown no error.

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B. Imposition of Consecutive Sentences

¶64 Next, Ordway argues the superior court erred by failing to
explain why it imposed consecutive sentences as required by A.R.S. § 13-
711(A). He urges us to “suspend the appeal” and “revest jurisdiction in the
trial court” to comply with the statute.

¶65 Section 13-711(A) provides that “if multiple sentences of
imprisonment are imposed on a person at the same time . . . [the sentences]
may run consecutively or concurrently, as determined by the court. The
court shall state on the record the reason for its determination.” A.R.S. § 13-
711(A). The superior court errs when it fails to substantially comply with
A.R.S. § 13-711(A) by identifying the factors it considered and explaining
how those factors led to the court’s sentencing determination. State v. Perez-
Gutierrez, 257 Ariz. 334, 338, ¶ 16 (2024) (citations omitted). “A trial judge’s
reasons for imposing consecutive sentences” are reviewed for an abuse of
discretion. Id. at 337, ¶ 9 (citation modified).

¶66 Before imposing sentence, the court noted that it found
“significant mitigation” in Ordway’s “family support,” “community
support,” and past military service. The court also found, however, that
“each victim suffered individual harm.” The court went on to find that “the
totality of circumstances calls for” the sentences “to run consecutively.”
Viewed in context, the court’s comments at sentencing satisfied A.R.S. § 13-
711(A) by identifying the competing factors that the court weighed before
deciding to impose consecutive sentences. We conclude that the superior
court substantially complied with A.R.S. § 13-711(A), and Ordway is not
entitled to relief on this ground.

CONCLUSION

¶67 For the foregoing reasons, we affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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