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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MARCO ANTONIO GARCIA, Appellant.
No. 1 CA-CR 19-0561
FILED 10-6-2020
Appeal from the Superior Court in Maricopa County
No. CR2017-120373-001
The Honorable Andrew J. Russell, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By David R. Cole
Counsel for Appellee
Bain & Lauritano PLC, Glendale
By Amy E. Bain
Counsel for Appellant
STATE v. GARCIA
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Paul J. McMurdie joined.
C R U Z, Judge:
¶1 Marco Antonio Garcia appeals his convictions and sentences
for two counts of sexual conduct with a minor, one count of molestation of
a child, and two counts of sexual abuse. For the following reasons, we
affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Garcia had sexual contact with the victim, S.S., who was the
daughter of Garcia’s long-term girlfriend, on one occasion. S.S. told her
mother about the incident approximately three years later, and Garcia,
when confronted by S.S.’ mother, admitted to inappropriately touching S.S.
After a few more years elapsed, S.S. reported the incident to law
enforcement. The State charged Garcia with the crimes, alleging he
committed them between September and December of 2010 when S.S. was
fourteen years old.
¶3 At Garcia’s trial in 2019, S.S. testified that sometime around
Thanksgiving of 2010, Garcia touched her breasts with his hands and
mouth, engaged in masturbatory contact with her vagina, and directed her
to rub his testicles and masturbate his penis. Garcia elected to testify at trial
and admitted to that same conduct—except as to when it occurred.
According to Garcia, the incident took place in October 2011, when S.S. was
fifteen years old, not fourteen.1
1 The distinction is significant given the charged offenses. See Arizona
Revised Statutes (“A.R.S.”) sections 13-1404(A) (criminalizing “sexual
abuse” limited to contact with the female breast only if the victim is under
fifteen); -1405(B) (categorizing “sexual conduct with a minor” committed
by a person in Garcia’s position in 2010 or 2011 as a class 2 felony if the
victim is under fifteen but as a class 6 felony if the victim is at least fifteen);
-1410(A) (criminalizing “molestation of a child” only if the victim is under
fifteen).
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STATE v. GARCIA
Decision of the Court
¶4 The jury found Garcia guilty of all counts as charged,
including the allegation S.S. was under fifteen years old when Garcia
committed the offenses. The superior court sentenced him to concurrent
and consecutive prison terms totaling forty years. Garcia timely appealed,
and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
DISCUSSION
I. Rule 20 Motion
¶5 After the State rested its case, Garcia moved for a judgment of
acquittal under Rule 20 of the Arizona Rules of Criminal Procedure,
arguing the State failed to show he committed the charged acts during the
time alleged in the indictment—September to December 2010. The superior
court denied the motion, and Garcia now asserts the ruling was erroneous.
¶6 We review the superior court’s denial of a Rule 20 motion de
novo. State v. Goudeau, 239 Ariz. 421, 461, ¶ 168 (2016). The superior court
is required to enter a judgment of acquittal “if there is no substantial
evidence to support a conviction.” Ariz. R. Crim. P. 20(a)(1). Substantial
evidence “is such proof that reasonable persons could accept as adequate
and sufficient to support a conclusion of defendant’s guilt beyond a
reasonable doubt.” State v. West, 226 Ariz. 559, 562, ¶ 16 (2011) (internal
quotation marks and citations omitted). Our task on appeal is to determine
whether, considering both direct and circumstantial evidence “in the light
most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Id. (internal
quotation marks and citations omitted).
¶7 Substantial evidence supports the finding Garcia committed
the charged acts between September and December 2010. S.S. testified he
molested her not long after a family birthday party that took place around
November 20, 2010, and before she sustained an ankle injury playing high-
school soccer. S.S. played only one season of soccer in high school, during
the fall-winter of her 2010–2011 freshman year. Although she could not
recall whether she injured her ankle during a practice or a game in the
regular season, which ran from December 2010 to February 2011, S.S. was
“adamant” Garcia molested her in 2010, not 2011. Viewed in the light most
favorable to the State, the record contains substantial evidence Garcia
committed the offenses in late November or December of 2010. The
superior court did not err, therefore, in denying his motion for a judgment
of acquittal. See State v. Lee, 189 Ariz. 590, 603 (1997) (“When reasonable
minds may differ on inferences drawn from the facts, the case must be
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STATE v. GARCIA
Decision of the Court
submitted to the jury, and the trial judge has no discretion to enter a
judgment of acquittal.”).
II. Ruling on Impeachment Evidence
¶8 Garcia also argues the superior court committed reversible
error concerning his examination of S.S.’ mother, who was a witness for the
prosecution. Before the mother testified, Garcia asked that he be allowed
to cross-examine her for bias against him relating to a custody dispute
involving their shared son. Garcia postulated that S.S.’ mother wanted him
out of her and their son’s lives and that her motive in that respect
contributed to S.S. both deciding to report Garcia to law enforcement and
exaggerating her account of his misconduct. The State disputed whether
the custody issue was relevant but argued it would be misleading for Garcia
to ask S.S.’ mother whether the criminal case was linked to custody issues
unless the State could then ask the mother whether she initiated the custody
dispute for an alternative reason. Specifically, there was evidence S.S.’
mother initially sought to modify custody because of an allegation Garcia
physically abused another child he shared with a different woman.2 Garcia
contested the necessity of introducing the physical abuse allegation and
argued that if the State could raise it, he should be allowed to introduce
evidence the Department of Child Safety closed the matter.
¶9 The superior court was skeptical the custody issue was
relevant but ruled that if Garcia questioned S.S.’ mother whether the
criminal charges against him were connected to her seeking to modify
custody of their son, the State could then ask the mother whether she
initiated the custody proceeding for another reason—namely, the
information she received about Garcia’s other child.
¶10 Garcia did not raise the custody dispute in his cross-
examination of S.S.’ mother. He now contends the superior court’s ruling
warrants reversal because by allowing the State to introduce irrelevant,
prejudicial evidence, the court chilled his right to impeach S.S.’ mother. The
rule in Arizona is that to challenge an adverse pretrial ruling, the challenged
2 According to the State, S.S. reported Garcia’s conduct to law
enforcement in early April 2017. Not long thereafter, the mother of Garcia’s
other child informed S.S.’ mother of the allegation Garcia physically abused
his other child. S.S.’ mother sought to modify custody of her child with
Garcia at that point, based on the physical abuse allegation. A few weeks
later, Garcia was arrested on charges in this case. S.S.’ mother then filed for
a further modification of custody based on the sex crime allegations.
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STATE v. GARCIA
Decision of the Court
evidence must be admitted at the trial. In State v. Duran, the Arizona
Supreme Court held,
Rather, as a matter of policy, when a trial court rules certain
evidence admissible for impeachment purposes if the
defendant testifies, a defendant must both object and testify
to preserve the issue for appellate review. We will not assume
that the defendant would have testified but for the adverse
ruling, or that the trial court would have adhered to its initial
ruling had the defendant taken the stand. (Indeed, in view of
its subsequent, ready acknowledgment of error, the trial court
here might well have corrected its in-limine ruling had the
impeachment issue been raised again during trial.).
State v. Duran, 233 Ariz. 310, 313, ¶ 19 (2013).
¶11 Because Garcia did not impeach S.S.’ mother with evidence of
the custody dispute, Garcia failed to preserve a claim of error and waives
appellate review. Without this cross-examination, “any harm to the
defendant is speculative because the trial court’s ruling is subject to change”
and on review, this court has no way of knowing whether the State would
have sought to rehabilitate S.S.’ mother with further evidence of the
custody dispute. See State v. Smyers, 207 Ariz. 314, 316, ¶ 9 (2004) (citing
Luce v. United States, 469 U.S. 38, 41-42 (1984). Thus, this issue is not
properly before this court, and we do not consider it further. See Duran, 233
Ariz. at 313, ¶ 20.
CONCLUSION
¶12 For the foregoing reasons, we affirm Garcia’s convictions and
sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
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