State v. Reyes

1

The State of Arizona, Appellee, v. Frank Raymond Reyes, Appellant.

No. 2 CA-CR 2022-0127

Court of Appeals of Arizona, Second Division

December 21, 2022

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Pinal County No. S1100CR20200761 The Honorable Christopher J. O'Neil, Judge

Mark Brnovich, Arizona Attorney General Alice Jones, Acting Deputy Solicitor General/Chief of Criminal Appeals By Tanja K Kelly, Assistant Attorney General, Tucson Counsel for Appellee

Rosemary Gordon Pánuco, Tucson Counsel for Appellant

Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Eppich and Vice Chief Judge Staring concurred.

MEMORANDUM DECISION

BREARCLIFFE, JUDGE

¶1 Appellant Frank Reyes was convicted on six counts for crimes related to his sexual abuse of his niece, C.R. He challenges one of the convictions - count five for sexual conduct with a minor - and its sentence. For the following reasons, we affirm.

Factual and Procedural Background

¶2 "We view the facts in the light most favorable to upholding the conviction." State v. Griffin, 250 Ariz. 651, ¶ 2 (App. 2021). In July 2019, C.R. went to her grandparents' house in Casa Grande to spend the night. C.R. was twelve years old at the time. That night C.R., her grandparents, and her uncle- Reyes-were the only ones at the house. C.R. went to sleep alone in a bedroom, but woke up later that night to someone touching her buttocks. At first, C.R. did not know who it was, but she realized it was Reyes later when he whispered to her. Reyes touched C.R. "under [her] clothes," inserted "something" inside C.R.'s vagina and buttocks, and, after that, put his penis in her buttocks. C.R. felt something "wet" on and inside her, at which point Reyes stopped and left. He returned to the room later, early in the morning, and "put his penis back inside" C.R. and "put his penis in [her] hand." Reyes eventually stopped because he heard C.R.'s aunt coming back from work.

¶3 The next afternoon, C.R. told her mom, D.L., what had happened, and they went to the hospital. At the hospital, D.L. spoke with detectives about the forensic-interview process for C.R. D.L. then took C.R. from the hospital to the Family Advocacy Center, where she underwent, among other things, a full-body medical examination by a forensic nurse examiner. During the exam, the nurse noticed redness around C.R.'s anus and fossa navicularis.^[1] She collected swabs from C.R.'s left buttocks, external genitalia, vagina, and anus for a sexual-assault kit. The swab from the vagina was only a "blind vaginal swab" of C.R. - a swab that is slightly inserted into the patient's vagina but not "really far back into the cervix" -because C.R. had never had a full "obstetrics/gynecology exam."

¶4 The external genitalia swab had "insufficient data," meaning the result was "below [the lab's] limit of detection or [the lab's] reporting guidelines for the male-specific DNA." And the vaginal swab "did not detect male DNA." However, male DNA was found on the swabs from C.R.'s left buttocks and her anus, and the swab from the left buttocks matched the DNA sample collected from Reyes. Reyes was then arrested and charged with two counts of molestation of a child and four counts of sexual conduct with a minor.^[2] Following a two-day jury trial, Reyes was convicted of all six counts and sentenced to a total of 100 years in prison. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Analysis

¶5 Reyes argues on appeal that there was insufficient evidence to convict him of count five-the only conviction he contests. We review de novo whether evidence is sufficient to support a conviction. State v. Denson, 241 Ariz. 6, ¶ 17 (App. 2016).

¶6 Evidence is insufficient if there is no substantial evidence presented to support a conviction. State v Rodriguez, 251 Ariz. 90, ¶ 16 (App. 2021). "Substantial evidence is more than a mere scintilla and is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." Id. (quoting State v. Mathers, 165 Ariz. 64, 67 (1990)). Evidence is still considered sufficient even if "reasonable minds can differ on inferences to be drawn therefrom." Id. (quoting State v. Landrigan, 176 Ariz. 1, 4 (1993)). The evidence supporting a conviction may be direct or circumstantial. Denson, 241 Ariz. 6, ¶ 17. The sufficiency of the evidence is tested against the "statutorily required elements of the offense." State v. Pena, 209 Ariz. 503, ¶ 8 (App. 2005).

¶7 Count five charged that Reyes had "committed Sexual Conduct with a Minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with [C.R.], a minor under fifteen years of age, to wit: forcing his penis into the victim's vagina," in violation of A.R.S. § 13-1405, among other statutes. Below, Reyes argued in a Rule 20, Ariz. R. Crim. P., motion, that the state had not provided sufficient evidence to support count five because C.R. "denied" that Reyes had put his "penis in [her] vagina." The state responded, claiming C.R.'s testimony was "inconsistent, at best," because C.R. had told the examiner at the Family Advocacy Center that Reyes' "penis went into both her vagina and her anus" and, therefore, "substantial evidence . . . [was] produced at trial for all counts to go to the jury." The trial court denied the Rule 20 motion, finding that, although there was conflicting evidence regarding count five, there was "substantial evidence from which the jury could make a determination of guilt as to each element of . . . Counts 1 through 6."

¶8 On appeal, Reyes argues that because C.R. "specifically denied" that Reyes' penis had went into her vagina and because there was a "lack of male DNA from the genitalia swabs," there was insufficient evidence to support his conviction for count five.

¶9 To provide sufficient evidence to convict Reyes under count five, the state had to show that C.R. was under fifteen and that Reyes had "intentionally or knowingly engag[ed] in sexual intercourse or oral sexual contact" with C.R. by putting his penis in her vagina. See § 13-1405(A), (B). Reyes does not dispute that C.R. was under fifteen years old. Reyes is correct that, at trial, C.R. did not testify that Reyes had put his penis in her vagina; she only confirmed that he put it in her "butt" and denied that he put it "in the front too." However, as the trial court stated, there was other evidence supporting the charge.

¶10 The forensic nurse examiner who conducted C.R.'s medical exam read what C.R. had told her happened that night, and she testified, without objection by Reyes, that C.R. had stated "Uncle Frankie put his finger and thing inside in the...