State v. Ramirez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GABRIEL TORRES RAMIREZ, Appellant.

No. 1 CA-CR 24-0004

FILED 11-26-2024

Appeal from the Superior Court in Maricopa County
No. CR2022-125730-001
The Honorable Michael C. Blair, Judge

AFFIRMED

COUNSEL

The Law Office of Kyle T. Green P.L.L.C., Mesa
By Kyle Green
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Amy Pignatella Cain
Counsel for Appellee
 STATE v. RAMIREZ
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge David D. Weinzweig joined.

F U R U Y A, Judge:

¶1 Gabriel Torres Ramirez appeals his convictions and sentences
for sexual conduct with a minor, arguing the superior court erred when it
did not instruct the jury on lesser included offenses. For the following
reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Ramirez started sexually abusing Anna1 when she was under
the age of 15 and continued in the years after. Though Anna recalls some
events as early as seventh or eighth grade, she reported the abuse many
years later. Anna also recalls other memories of abuse as occurring during
high school years. She turned 15 one month into her first year of high
school, creating a similar reference point in Anna’s memories and her age.

¶3 The jury convicted Ramirez on Count 1, sexual conduct with
a minor, a Class 2 felony because they found the State proved the victim
was under 15 years old at the time of that offense, and therefore classified
it as a Dangerous Crime Against Children (“DCAC”) offense. Ramirez was
also convicted on Count 2, sexual conduct with a minor, a Class 6 felony
because the victim was under the age of 18 at the time of that offense.
Ramirez was sentenced to the presumptive term of 20 years in prison for
Count 1. For Count 2, the court imposed a suspended sentence and
consecutive term of lifetime supervised probation.

¶4 We have jurisdiction under Article 6, Section 9 of the Arizona
Constitution and Arizona Revised Statutes (“A.R.S.”) §§ 12-120.21(A)(1),
13-4031, and -4033(A).

1 Pursuant to Rule 31.10(f) of the Arizona Rules of Criminal
Procedure, we use a pseudonym to protect the victim’s identity.

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 STATE v. RAMIREZ
Decision of the Court

DISCUSSION

¶5 Ramirez argues the court erred when it denied his request for
a jury instruction covering a lesser included offense that omitted the DCAC
designation regarding Count 1. We review the court’s decision regarding
Ramirez’s requested jury instructions for an abuse of discretion. State v.
Rios, 255 Ariz. 124, 132 ¶ 32 (App. 2023). “A party is entitled to a jury
instruction on any theory that is reasonably supported by the evidence.” Id.
“The ‘slightest evidence’ is sufficient to support a jury instruction.” Id.
(quoting State v. King, 225 Ariz. 87, 90 ¶ 14 (2010)). However, a requested
instruction supported only by speculation is improper. Cf. State v. Togar, 248
Ariz. 567, 575 ¶¶ 26–27 (App. 2020) (court did not abuse its discretion in
denying a requested Willits instruction premised entirely on speculation
and contrary to other record evidence).

¶6 Count 1 required the State to prove Anna was under 18 years
of age for conviction under A.R.S. § 13-1405(A). The sentencing provisions
of A.R.S. § 13-1405(B) additionally provide for a DCAC designation if the
State proved she was under 15 years old at the occurrence of the abuse. A
DCAC designation permits the court to impose an enhanced sentence on a
defendant for certain crimes, including the sexual conduct with a minor,
which is the charge at issue in this case. A.R.S. § 13-705.

¶7 Ramirez argues that the jury could have found that Anna may
have been over the age of 15 at the time of the events of Count 1 because
she could not state with certainty when those events occurred. Ramirez
points to the events involved in Count 2 as support, arguing because Anna
was uncertain about when that incident occurred and indicated that it could
have occurred during high school, the events of Count 1 could have as well.
He essentially argues that because there was uncertainty about the timing
of both events—and some evidence suggested Anna may have been over
15 when Count 2 occurred—the jury should have been specifically
instructed that it could also find Count 1 was not a DCAC eligible offense.
But this position is premised entirely on speculation.

¶8 Anna recalled, with “certain[ty],” that the events surrounding
Count 1 occurred between seventh and eighth grade, undeniably prior to
her 15th birthday. And Anna’s recollection of the abuse associated with
Count 2 is centered around different events, situated in a different
timeframe, than for Count 1. This record contains no evidence to establish
that Anna’s broader timeline and recollection of events associated with
Count 2 should impact the timeline of Anna’s recollection of Count 1. Such
speculation, especially because it contradicts Anna’s testimony, cannot

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 STATE v. RAMIREZ
Decision of the Court

justify Ramirez’s requested jury instruction. See Togar, 248 Ariz. at 575 ¶ 27;
State v. Smith, 158 Ariz. 222, 227 (1988).

¶9 Further, even assuming general uncertainties in Anna’s
recollection could support Ramirez’s requested instruction, a failure to give
that instruction is not reversible error “unless it is prejudicial to the
defendant and the prejudice appears in the record.” State v. Rosas-
Hernandez, 202 Ariz. 212, 220 ¶ 31 (App. 2002).

¶10 But here, counsel for the State and Ramirez both
acknowledged during closing arguments that the jury was required to find,
beyond a reasonable doubt, that Anna was under 15 to convict Ramirez of
Count 1 as a DCAC offense. See State v. Bruggeman, 161 Ariz. 508, 510 (App.
1989) (stating that we do not evaluate jury instructions out of context and
the “[c]losing arguments of counsel may be taken into account when
assessing the adequacy of jury instructions”). Further, the court instructed
the jury to determine Anna’s age when Count 1 occurred. See Ariz. R. Crim.
P. 23.2(d) (“If the verdict of guilty is to an offense that is divided into
degrees, the verdict must specify the degree of the offense for which the
jury has found the defendant guilty.”). And the verdict form for Count 1
also prompted jurors to determine whether Anna was under 15 at that time.
These factors effectively provided the jury the necessary directive and
instruction as to its duty to find whether Anna was under 15 during the
events associated with Count 1. Thus, a lesser-included instruction as to
Count 1 would have been redundant, and therefore, moot. See State v.
Marshall, 197 Ariz. 496, 505 ¶¶ 33–34 (App. 2000) (holding that the
defendant’s lesser-included sexual conduct offense argument was rendered
moot by the jury’s explicit finding that the victim was less than fifteen). As
such, Ramirez cannot demonstrate prejudice requiring relief.

CONCLUSION

¶11 We affirm Ramirez’s convictions and sentences.

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

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