In Re: Ms 2022-000001

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE: MS2022-000001

No. 1 CA-MH 24-0168 SP
FILED 09-25-2025

Appeal from the Superior Court in Maricopa County
No. MS2022-000001
The Honorable Dean M. Fink, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph Cada
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kathryn Rose Krejci, Daniel R. Raynak
Counsel for Appellant

MEMORANDUM DECISION

Vice Chief Judge David D. Weinzweig delivered the decision of the Court,
in which Presiding Judge Jennifer M. Perkins and Judge Michael J. Brown
joined.
 IN RE: MS 2022-000001
Decision of the Court

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

¶1 A.R. appeals a jury verdict finding him a sexually violent
person. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 A.R. was twice convicted of Attempted Molestation of a
Child, first in 1991 and again in 2015, both times for conduct with a 7-year-
old girl. For each offense, he was sentenced to 13 years in prison. A.R. was
about to be released for the second offense in February 2022, when the State
petitioned to commit A.R. as a sexually violent person. See A.R.S. § 36-
3701(7). The superior court found probable cause to believe A.R. was a
sexually violent person and transferred him to the Arizona Community
Protection and Treatment Center.

¶3 A four-day jury trial was held in August 2022 to determine
whether A.R. was a sexually violent person. The State presented testimony
from an expert witness named Dr. Nicole Pondell. She testified that A.R.
had a pedophilic disorder, serious difficulty controlling his sexual behavior,
and would likely engage in future acts of sexual violence. Her opinion was
based in part on A.R.’s penile plethysmograph (“PPG”) testing, which
measures a man’s arousal in response to different audio scenarios. Since
his first arrest in 1991, A.R. had been administered the PPG four times:

• In 1994, he registered high arousal for inappropriate children
scenarios.

• In 2005, he registered moderate arousal for inappropriate children
scenarios.

• In 2006, he registered low to nonsignificant arousal for inappropriate
children scenarios.

• In 2007, he registered no significant arousal to inappropriate
children scenarios.

¶4 Armed with that data, defense counsel characterized the PPG
test as “one of the most researched and longest used measures of sexual
interest,” adding that it has “been around for a while.” And defense
counsel featured A.R.’s decreased arousal responses in closing argument.
For its part, the State acknowledged that the PPG test “was an arousal test,”
and A.R. “had arousal to themes involving children.”

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Decision of the Court

¶5 The superior court instructed the jury on the State’s
evidentiary burden of beyond a reasonable doubt. The jury found A.R. a
sexually violent person by a 6-2 vote. A.R. timely appealed. We have
jurisdiction. A.R.S. § 12-2101(A)(10).

DISCUSSION

¶6 A.R. raises four issues on appeal. Because he did not object
below, we review each for fundamental error. See State v. Escalante, 245
Ariz. 135, 140, ¶ 12 (2018). He must show error that is both fundamental
and prejudicial. Id.

I. PPG Tests.

¶7 A.R. first argues the superior court erred by allowing the
State’s expert to testify about the PPG test results. Expert testimony is
admissible when (a) the expert’s scientific, technical or other specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue, (b) the testimony is based on sufficient facts or
data, (c) the testimony is the product of reliable principles and methods,
and (d) the expert has applied the principles and methods reliably to the
facts of the case. Ariz. R. Evid. 702.

¶8 We discern no error, much less fundamental error, because
there was no prejudice. See Escalante, 245 Ariz. at 140, ¶ 12. The PPG tests
furthered A.R.’s defense, and he featured them in his closing.

II. Due Process.

¶9 A.R. next argues his due process rights were transgressed
when the jury learned he invoked his right to remain silent during the
second arrest. We disagree.

¶10 The superior court should not admit evidence that a
defendant invoked his right against self-incrimination when it “suggest[s]
to the jury that the defendant was guilty because he had invoked his right
. . . during police questioning.” State v. Gilfillan, 196 Ariz. 396, 406, ¶¶ 36,
38 (App. 2000), abrogated on other grounds by State v. Carson, 243 Ariz. 463,
466, ¶ 10 (2018).

¶11 That concern is not present in this civil case. See Wohlstrom v.
Buchanan, 180 Ariz. 389, 391 n.2 (1994) (“[I]n civil cases, fact finders are
entitled to draw negative inferences against those who assert Fifth
Amendment rights against self-incrimination.”). And A.R. was ultimately

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convicted of the offenses; whether he invoked his right to remain silent
when arrested for that offense is of no consequence. See State v. Palenkas, 188 Ariz. 201, 212 (App. 1996); see also Brecht v. Abrahamson, 507 U.S. 619,
628 (1993) (use of defendant’s invocation at the later criminal trial violates
the due process clause).

III. Jury Instruction.

¶12 A.R. next argues the superior court failed to instruct the jury
on the various burdens of proof. A party is entitled to jury instructions “on
any theory reasonably supported by the evidence.” State v. Rodriguez, 192
Ariz. 58, 61, ¶ 16 (1998). The jury is properly instructed when it has
“received the information necessary to arrive at a legally correct decision.”
State v. Dann, 220 Ariz. 351, 363, ¶ 51 (2009).

¶13 A.R. argues the superior court should have supplied the jury
with Revised Arizona Jury Instruction Standard Criminal 4(b), which
describes the preponderance of the evidence and clear and convincing
evidence burdens of proof. We disagree. Neither burden of proof was
relevant here. State v. Thompson, 204 Ariz. 471, 479, ¶ 32 (2003) (jury
instructions should not mislead or confuse the jury). Arizona law required
the State to prove A.R. was a sexually violent person beyond a reasonable
doubt. A.R.S. § 36-3707(A).

IV. Burden.

¶14 A.R. argues the State improperly shifted the burden of proof
during closing argument when the prosecutor said: “When we talk about
Dr. Pondell’s opinion that [A.R.] meets all four criteria as a sexually violent
person, you did not hear evidence to the contrary.”

¶15 We discern no error. “’The State improperly shifts the burden
when it implies a duty upon the defendant to prove his innocence or the
negation of an element’ of a charge, or ‘when it comments upon the failure
of a defendant to testify or present a defense.’” State v. Crain, 250 Ariz. 387,
398, ¶ 40 (App. 2021) (citation omitted).

¶16 That did not happen here. The prosecutor’s statement did not
imply A.R. had a duty to prove his innocence; it only stressed that A.R. had
introduced no evidence to contradict Dr. Pondell’s opinion. State v. Still, 119 Ariz. 549, 551 (1978) (“A comment that certain facts brought out by the
prosecution are uncontradicted is not objectionable” unless it appears that
only the defendant could contradict the state’s evidence). Beyond that, the

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jury was properly instructed on the State’s burden, and the State reiterated
its burden during closing.

CONCLUSION

¶17 We affirm.

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

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