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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
KENNETH RAY COPPLE, Appellant.
No. 1 CA-CR 19-0107
FILED 8-11-2020
Appeal from the Superior Court in Maricopa County
No. CR2017-001173-001
The Honorable Thomas L. Fink, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee
Michael J. Dew Attorney at Law, Phoenix
By Michael J. Dew
Counsel for Appellant
STATE v. COPPLE
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Cynthia J. Bailey joined.
H O W E, Judge:
¶1 Kenneth Copple appeals his convictions and sentences
because the trial court did not sua sponte hold a hearing under Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) before admitting expert
testimony on memory recovery, memory repression, and Eye Movement
Desensitization Reprocessing therapy. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 The Copple family and four extended families share a ranch
in Christopher Creek, Arizona. All five families, which included victims
S.S., J.N., and A.V. (Copple’s nieces), spent various holidays together at the
ranch.
¶3 On multiple occasions between 1979 and 1982, when S.S. was
between four and eight years old, Copple engaged in sexual conduct with
her. Between 1980 and 1982, when J.N. was between seven and eight,
Copple engaged in sexual conduct with her on multiple occasions. And
between 1981 and 1984, when A.V. was between four and seven years old,
Copple engaged in sexual conduct with her on multiple occasions. Neither
S.S., J.N., nor A.V. told anyone what had happened and all three suppressed
the memories.
¶4 S.S., J.N. and A.V. each saw various counselors between 2000
and 2014, when they were adults. J.N. had some memories of Copple’s
abuse before counseling, but her memories became more detailed after
counseling in 2007. S.S.’s memories returned after counseling around 2008
or 2009. And A.V.’s memories returned in 2014, after her counselor used
Eye Movement Desensitization Reprocessing (“EMDR”) therapy, which
decreases the anxiety and stress surrounding a traumatic event.
¶5 J.N. and S.S. tried speaking with Copple in 2012 about what
had happened, but he denied any wrongdoing. Copple and his wife went
to their church leader who then called J.N. and S.S. and told them to move
on and forget what had happened. In 2014, J.N. told her aunt what had
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STATE v. COPPLE
Decision of the Court
happened. Her aunt then shared that information with someone else and a
new church leader called J.N. and S.S. again. Around May 2014, the
church’s legal department called the police who then contacted J.N., S.S.,
and A.V., who reported what Copple had done to them.
¶6 Copple was indicted for 14 counts of sexual conduct with a
minor, 1 count of sexual abuse, 1 count of attempted sexual conduct with a
minor, and 1 count of child molestation. The State also alleged the physical
and emotional harm suffered by each victim as aggravating circumstances.
Before trial, the court granted Copple’s motion to sever the trial, addressing
counts 18 and 19 in a separate trial.
¶7 The State retained three expert witnesses, Sharon Welch, a
registered nurse, Dr. Wendy Dutton, a forensic interviewer, and Dr. James
Chu, a board-certified psychiatrist. At trial, Dr. Dutton testified about the
different ways children disclose sexual abuse, delayed disclosure, coping
mechanisms, the different memory types, and how children remember
certain things. On cross-examination, Dr. Dutton admitted repressed
memory “tends to be more of an issue or a controversial issue with adults.”
¶8 Copple retained Dr. Deborah Davis as an expert witness. She
testified that memory science has generally not supported the idea of
repression of traumatic events and that EMDR therapy is an effective tool
to alleviate anxiety and stress surrounding a memory but is not an effective
memory recovery tool. She admitted, however, that EMDR might help a
person remember things that are true but could also help a person
remember things that are false. The State’s rebuttal expert, Dr. Chu, agreed
that EMDR therapy is not used for memory retrieval but to reduce anxiety
surrounding memories. He also testified that EMDR therapy would not
result in the creation of false memories if used properly.
¶9 At the conclusion of trial, Copple was convicted of all 17
counts. The jury found that the State had proved that each victim suffered
physical or emotional harm as aggravating circumstances. Copple was
sentenced to 14 aggravated 25-year terms of imprisonment for each sexual
conduct with a minor conviction with 735 days’ presentence incarceration
credit, 2 aggravated 15-year terms of imprisonment for the sexual abuse
and attempted sexual conduct with a minor convictions, and 22 years’
imprisonment for the child molestation conviction. All his convictions were
ordered to run consecutive to each other. Copple timely appealed.
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STATE v. COPPLE
Decision of the Court
DISCUSSION
¶10 Copple argues that the trial court fundamentally erred
because it did not fulfill its gatekeeper function under Arizona Rule of
Evidence (“Rule”) 702 by holding a Daubert hearing sua sponte before
allowing expert testimony on memory recovery, memory repression, or
EMDR therapy. He contends that the jury determined the reliability of the
methodologies discussed by “no less than five experts.” He also argues that
he was prejudiced because the court would have limited or precluded such
expert testimony had it held a Daubert hearing. We need not review for
fundamental error, however, if no error occurred. State v. Silva, 222 Ariz.
457, 459 ¶ 11 (App. 2009).
¶11 Copple’s argument fails for two reasons. First, Copple fails to
develop his argument. He merely concludes, without citation to the record,
that “no less than five” experts opined differently and that if the trial court
had held a Daubert hearing, it would have “severely limited, if not
precluded” expert testimony about memory recovery, memory repression,
and EMDR therapy. He does not make any argument challenging the
prongs of Rule 702 to support his argument. As a result, not only is Copple’s
prejudice argument waived, see State v. Sanchez, 200 Ariz. 163, 166 ¶ 8 (App.
2001) (failure to develop an argument results in waiver), but his argument
fails because prejudice cannot be shown by speculation, see State v.
Martin, 225 Ariz. 162, 166 ¶ 15 (App. 2010).
¶12 Second, even if Copple had not waived and failed to develop
his argument, “the trial court has broad discretion to determine the
reliability of evidence and need not conduct a hearing to make a Daubert
decision.” State v. Favela, 234 Ariz. 433, 436 ¶ 11 (App. 2014) (quoting State
v. Perez, 233 Ariz. 38, 43 ¶ 19 (App. 2013)). This is especially true where, as
here, Copple did not file a pretrial motion or object to the testimony before
or at trial. Copple cites no Arizona authority to support his argument.
Instead, he cites several cases that he claims allows a trial court to make a
Daubert determination sua sponte. But a court’s authority to sua sponte
conduct a Daubert hearing does not equate to an obligation to do so. Copple
does not cite any authority requiring sua sponte intervention by the trial
court, and we are unaware of any. Accordingly, Copple has not established
error.
¶13 Finally, even assuming, for the sake of argument, that the trial
court was required to sua sponte conduct a Daubert hearing, the information
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STATE v. COPPLE
Decision of the Court
the court needed to make a Daubert decision was not presented until the
expert witnesses finished testifying on the sixth day of trial, after the State
had rested. By that point, all the testimony about memory recovery,
memory repression, and EMDR therapy had been presented. Accordingly,
insufficient information existed from which to sua sponte conclude that a
Daubert hearing was necessary before those witnesses testified. Therefore,
Copple has not established a basis for relief.
CONCLUSION
¶14 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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