State v. Gomez

THE STATE OF ARIZONA, Appellee, v. EDWARD MICHAEL GOMEZ, Appellant.

No. 2 CA-CR 2018-0177

ARIZONA COURT OF APPEALS DIVISION TWO

February 26, 2020

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).

Appeal from the Superior Court in Pima County

No. CR20163540001

The Honorable Michael Butler, Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Chief Counsel

By Mariette S. Ambri, Assistant Attorney General, Tucson

Counsel for Appellee

Joel Feinman, Pima County Public Defender

By Sarah L. Mayhew, Assistant Public Defender, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Eppich authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred.

EPPICH, Presiding Judge:

¶1 After a jury trial, Edward Gomez was convicted of eight counts of aggravated domestic violence, five counts of aggravated harassment, and three counts of burglary. He now appeals, contending the trial court erred by precluding text messages and voicemails on relevance grounds, preventing him from impeaching the victim with her medical records, and allowing the state to present cold expert testimony. We affirm.

Factual and Procedural Background

¶2 "We view the facts in the light most favorable to sustaining the jury's verdict." State v. Murray, 247 Ariz. 447, ¶ 2 (App. 2019). Gomez and T.P. had an off and on romantic relationship for several years and they lived together during some of that time. In January 2016, T.P. met her ex-husband at a restaurant to discuss a tax audit for one of their businesses. As the two left the restaurant and got into T.P.'s car, Gomez appeared. T.P. tried to drive out of her parking space, but Gomez stood in her path and yelled at them to get out of the car because he wanted "to inflict pain" on both of them. T.P. honked her horn to get the attention of restaurant patrons. Gomez then positioned his car to block T.P.'s exit. He allowed her to depart only after T.P. continued honking her horn. T.P. then drove to her ex-husband's home and called the police.

¶3 Two months later, Gomez entered T.P.'s home through her dog door after she refused to admit him. He searched the house and demanded to know who else was there. After T.P. pleaded with him to leave, Gomez left but then returned, kicked in the front door, entered the house, and demanded T.P. tell him who had been there.

¶4 In late May 2016, T.P. hosted a yard sale and Gomez showed up repeatedly throughout the day. At one point, a male friend brought pizza and Gomez became angry after T.P. took a bite from a slice in the friend's hand. Gomez told everyone to leave and ordered T.P. to go to the bedroom and shut the door. Gomez then followed her inside, and an argument ensued in which he accused her of "sucking face" with the friend.

T.P. asked Gomez to leave and tried to call police but he refused, smashed her phone and took her car keys to prevent her from leaving. He then forced her to stay in the spare bedroom where he beat her throughout the night, causing her to fall and hit her head several times, leaving her with numerous bruises and scratches. The next morning, while Gomez was still there, T.P. found her keys and left to get her phone repaired. She subsequently called police and went to the hospital. She also obtained an order of protection against Gomez, which was served on June 2, 2016. The protection order prohibited contact with T.P. except through attorneys or in legal proceedings.

¶5 On June 5th and June 7th, Gomez telephoned and texted T.P. several dozen times from different numbers. On June 11, 2016, Gomez banged on T.P.'s front door and back window, demanding to know who was inside with her. T.P.'s daughter reported the incident to police, and Gomez was later arrested. While at the jail, he left a voicemail on T.P.'s phone. After that call, there were no further calls from him.

¶6 Gomez was indicted on eight counts of aggravated domestic violence, five counts of aggravated harassment, and three counts of burglary, related to the events that occurred between January 8, 2016 and June 11, 2016. The jury found him guilty on all counts and the trial court sentenced him to concurrent, presumptive terms of imprisonment, the longest of which was 6.5 years. Gomez appealed and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

Text Messages and Voicemail Messages

¶7 The day before trial, Gomez disclosed that he intended to use "photographs of text messages [T.P.] sent to [him] for impeachment purposes." That same day, the state filed a motion to compel disclosure of these text messages and other voicemail messages that had not yet been disclosed by the defense.¹ After a hearing on the first day of trial, the court ordered Gomez to disclose the messages.² Following an additional hearingon their admissibility, the court precluded the messages as irrelevant and misleading to the jury.

¶8 Gomez argues the trial court abused its discretion by precluding the messages, claiming they were relevant because they showed T.P. voluntarily initiated contact with Gomez during the time period of the offenses. According to Gomez, this evidence of mutual and consensual contact between him and T.P. tended to show he was not disturbing T.P.'s peace. He further contends that precluding this evidence allowed the state to claim a "constant state of harassment during this entire six-month period in direct testimony, without allowing the defense to rebut that claim by showing text and voice messages from [T.P.] that demonstrated that she voluntarily initiated contact with [him]."

¶9 Evidence is relevant if it has "any tendency" to make a consequential fact "more or less probable." Ariz. R. Evid. 401. Relevant evidence is generally admissible, Ariz. R. Evid. 402, but may be precluded "if its probative value is substantially outweighed by a danger of . . . misleading the jury." Ariz. R. Evid. 403. We review a trial court's exclusion of evidence for abuse of discretion. State v. Fuentes, 247 Ariz. 516, ¶ 27 (App. 2019). Although we view the precluded evidence in a light most favorable to its proponent, see State v. Castro, 163 Ariz. 465, 473 (App. 1989), when the record is incomplete, we assume any evidence not available on appeal supports a trial court's actions. See State v. King, 226 Ariz. 253, n.3 (App. 2011); see also State v. Rivera, 168 Ariz. 102, 103 (App. 1990) (defendant has duty to prepare record so appellate court can pass upon questions sought to be raised on appeal).

¶10 Here, Gomez fails to show that the text messages or voicemail messages were made at relevant times. All the charges in this case relate to specific events that occurred in 2016. When the state suggested the text messages were from 2014 based on the phone number visible in the photographs, Gomez admitted that "[o]n their face there's nothing that proves they're not from 2014." Gomez also admitted the voicemails had nothing to do with the order of protection at issue in this case because they were created before June 2016. Because Gomez conceded the voicemails were not created during any order of protection at issue in this case, we cannot say the trial court abused its discretion in ruling them irrelevant. See A.R.S. § 13-2921.01(A)(1) (A person commits aggravated harassment if theyharass someone after a valid order of protection has been served.). And because the text messages were not made part of the record, we assume they would support the trial court's ruling. See King, 226 Ariz. 253, n.3. Therefore, the trial court did not abuse its discretion by precluding the text messages and voicemail messages as irrelevant.

Medical Records

¶11 On cross-examination, T.P. testified that she had been diagnosed with a concussion at the hospital. Gomez attempted to use her medical records to impeach her testimony by showing that she was not diagnosed with a concussion. The state objected on hearsay grounds and Gomez argued this was not hearsay because it was not being offered for the truth and it should be allowed to impeach T.P.'s credibility. The trial court sustained the hearsay objection and also suggested this information was irrelevant because it would not suggest T.P. was dissembling and there were no prior inconsistent statements by the victim in her medical history.

¶12 On appeal, Gomez argues he should have been able to use the medical records to impeach T.P.'s claim that she was diagnosed with a concussion. Gomez claims the trial court abused its discretion by precluding him from using the records on hearsay grounds. Hearsay includes any statement made outside of trial that is offered to prove the truth of the matter asserted in the statement. See Ariz. R. Evid. 801(c). A "statement" means "a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion." Ariz. R. Evid. 801(a). Hearsay is generally inadmissible unless an exception applies. Ariz. R. Evid. 802, 803, 804.

¶13 Here, the medical records Gomez attempted to use for impeachment constituted hearsay because they contained assertions made outside of trial and offered for the truth of the matter—to show T.P. was not diagnosed with a concussion. See Ariz. R. Evid. 801(c). As the court suggested, Gomez was not offering any prior inconsistent statements which would qualify as non-hearsay. See Ariz. R. Evid. 801(d)(1)(A). Even if Gomez was attempting to impeach on non-collateral matters as he suggests, he cites no case, nor are we aware of any, showing that this makes otherwise inadmissible hearsay admissible. At the trial court level, Gomez did not argue any hearsay exception applied. Now, for the first time on appeal, Gomez argues the medical records qualify under the hearsay exceptions of Rules 803(4) and (6). Because Gomez did not preserve this issue in the trial court, it is waived. See State v. Blakley, ...