State v. Pogue

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RICK POGUE, Appellant.

No. 1 CA-CR 20-0346
FILED 7-27-2021

Appeal from the Superior Court in Navajo County
No. S0900CR201800709
The Honorable Dale P. Nielson, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellee

Weagant Law Offices PLC, Florence
By Megan K. Weagant
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge David D. Weinzweig joined.

B R O W N, Judge:

¶1 Rick Pogue appeals from his convictions and sentences for
multiple counts of sexual conduct with a minor and kidnapping. Finding
no reversible error, we affirm.

BACKGROUND

¶2 We view the evidence in the light most favorable to sustaining
the verdict, resolving all inferences against Pogue. State v. Davolt, 207 Ariz.
191, 212, ¶ 87 (2004).

¶3 In September 2017, V.P. reported that her adoptive father,
Pogue, sexually abused her for over ten years, starting when she was
between six and eight years old. V.P. disclosed that when Pogue was not
away from home working as a truck driver, he would force her to engage
in sexual intercourse, oral sexual contact, or digital-genital penetration on
an “almost daily” basis. Pogue abused V.P. in a locked bedroom, pinned
her with his body, and told her he would “go away for a long time” if she
reported the abuse. V.P. described several of Pogue’s distinct physical
characteristics and items he used while engaged in the sexual misconduct.

¶4 When Pogue spoke with detectives, he denied abusing V.P.
but admitted he was one of V.P.’s primary caregivers, and he
acknowledged using the items V.P. had referred to when she described the
abuse. During the police investigation, detectives learned that Pogue
committed similar offenses involving V.P.’s mother, Stephanie. In 1997,
Stephanie reported engaging in sexual conduct with Pogue for seven years,
starting when she was about 14 years old. At the time, Pogue was her uncle
through marriage. In a recorded phone call, Pogue admitted he sexually
abused Stephanie. She later claimed, however, that detectives forced her to
assist in the investigation and made errors in the transcription of the phone
conversation. In 1998, Stephanie married Pogue and he adopted V.P.
Stephanie gave birth to Pogue’s son the following year.

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¶5 A jury convicted Pogue of seven counts each of sexual
conduct with a minor and kidnapping, finding that all but two of the counts
were dangerous crimes against children. The superior court sentenced
Pogue to various sentences, including six consecutive terms of life in prison
with the possibility of parole after 35 years. He timely appealed.

DISCUSSION

A. Voluntariness of Statements

¶6 Pogue argues the superior court erred in failing to rule on the
voluntariness of his statements to detectives. Pogue does not, however,
claim his statements to detectives were involuntary and should have been
suppressed. We review the court’s ruling, or lack thereof, for an abuse of
discretion, State v. Cota, 229 Ariz. 136, 144, ¶ 22 (2012), and will not disturb
it absent a finding of clear and manifest error, State v. Blakley, 204 Ariz. 429,
436, ¶ 26 (2003).

¶7 Less than two weeks before trial, Pogue filed several motions,
including a motion to suppress involuntary statements. Though titled a
motion to suppress, it did not allege any constitutional violations or argue
detectives obtained statements through coercive methods. The motion
merely asked the court to examine whether Pogue’s statements were
admissible under applicable law. At a pretrial hearing on the first day of
trial, defense counsel conceded he filed the motion as a procedural
precaution. The court noted the untimeliness of the motion, declined to
make a pretrial ruling, and elected to consider the voluntariness of Pogue’s
statements through the course of trial. Pogue did not object.

¶8 At trial, both parties elicited testimony related to Pogue’s
statements to detectives. In relevant part, the testimony revealed Pogue
fully cooperated with the investigation, consented to a noncustodial
interview, and denied involvement in the offenses. Though the court noted
it had not formally ruled on the issue of voluntariness mid-way through
trial, Pogue did not object to proceeding without a ruling. In closing
argument, defense counsel claimed Pogue’s cooperation with detectives
demonstrated his innocence. When Pogue raised the court’s failure to rule
on the issue of voluntariness in a motion for new trial, the court denied the
motion and found the evidence at trial showed his statements were
voluntary.

¶9 The parties must raise all known issues by motion no later
than 20 days before trial. Ariz. R. Crim. P. (“Rule”) 16.1(b). Any motion not
timely raised may be precluded. Rule 16.1(c). Absent a timely challenge to

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the use of a defendant’s statements, the court is not required to sua sponte
make a voluntariness determination. Wainwright v. Sykes, 433 U.S. 72, 86
(1977); State v. Bush, 244 Ariz. 575, 588–90, ¶¶ 54–62 (2018); State v. Smith,
114 Ariz. 415, 419 (1977). Even if timely raised, we will not find statements
involuntary unless there is “both coercive police behavior and a causal
relation between the coercive behavior and the defendant’s overborne
will.” State v. Boggs, 218 Ariz. 325, 336, ¶ 44 (2008).

¶10 Pogue did not timely raise voluntariness or argue his
statements to detectives should be suppressed. In essence, Pogue’s motion
asked the court to make a sua sponte voluntariness determination. Thus,
the court acted within its discretion in declining to rule on the untimely
pretrial motion and reviewing the nature of the evidence as trial
progressed. Rule 16.1(b), (c); Bush, 244 Ariz. at 588–90, ¶¶ 54–62. Though
delayed, the court found Pogue’s statements were voluntary, and nothing
in the record shows the delayed ruling impacted the evidence admitted at
trial. In fact, Pogue benefited from the admission of his statements because
his cooperation with detectives and denial of any misconduct supported his
claimed innocence. Pogue cannot seek to profit from the admission of his
statements and then argue the court’s failure to rule on his untimely,
equivocal challenge to those statements constitutes reversible error. See
State v. Tassler, 159 Ariz. 183, 185 (App. 1988) (“One may not deliberately
inject error in the record and then profit from it on appeal.”).

¶11 Even if properly raised, a motion that is not ruled on is
deemed denied by operation of law. See State v. Hill, 174 Ariz. 313, 323
(1993). Nothing in the record shows the court erred in effectively denying
the motion to suppress Pogue’s statements. Detectives did not use coercive
methods in obtaining Pogue’s statements. Because Pogue’s statements
were voluntary and properly admitted, no error occurred. See Boggs, 218
Ariz. at 335, ¶ 44.

B. Preclusion of Evidence Under Rape Shield Statute

¶12 Pogue contends the superior court erred by precluding
evidence of V.P.’s pregnancies and her alleged sexually transmitted
diseases. “The [superior] court has considerable discretion in determining
the relevance and admissibility of evidence, and we will not disturb that
ruling absent an abuse of discretion.” State v. Rose, 231 Ariz. 500, 513, ¶ 62
(2013).

¶13 Pogue filed an untimely motion in limine to admit evidence
pursuant to A.R.S. § 13–1421, known colloquially as the rape shield statute.

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Pogue sought to admit evidence of the following: (1) V.P. had two children
and once indicated Pogue may be the father; (2) testing excluded Pogue as
the father of the children; (3) V.P. received treatment for unspecified
sexually transmitted diseases; and (4) Pogue never received such treatment.
Pogue argued these instances occurred at the time of the offenses. Pogue
did not include any supporting documents with his motion; instead, he
requested the court allow him to lay foundation through a detective in a
brief pretrial hearing. After the hearing, the court denied the motion,
finding Pogue failed to demonstrate that specific instances of pregnancy or
disease could be used to undermine the State’s evidence, and the rape
shield statute barred admission.

¶14 At trial, V.P. testified she gave birth to her son during the time
of the offenses and told detectives she did not know if Pogue was the father.
She said that testing later excluded Pogue as the father. V.P. also explained
that Pogue removed his penis before ejaculating and helped her obtain
contraceptives around the age of 16. In Pogue’s case-in-chief, Stephanie
testified that when V.P.’s “kids were born, [V.P.] told [them] there were ten
different people that could have been the fathers” and V.P. “never told the
truth about anything.” Stephanie said V.P. saw an obstetrician at the age of
13 or 14 and there were no signs of sexual activity at that time. V.P.’s
brother testified that V.P. had a reputation for untruthfulness. In denying
Pogue’s motion for new trial, the court repeated its finding that the
precluded instances fell within the protections of the rape shield statute.

¶15 Evidence of “specific instances of the victim’s prior sexual
conduct may be admitted only if” a court finds (1) the evidence is relevant
and “material to a fact in issue,” and (2) “the inflammatory or prejudicial
nature of the evidence does not outweigh the probative value of the
evidence.” A.R.S. § 13-1421(A). Such evidence may be admitted for limited
purposes, including to show “the source or origin of semen, pregnancy,
disease or trauma.” A.R.S. § 13-1421(A)(2). And before their admission, the
alleged instances must be proven by clear and convincing evidence. A.R.S.
§ 13-1421(B). The purpose of A.R.S. § 13-1421 is to protect victims “from
being exposed at trial to harassing or irrelevant questions concerning any
past sexual behavior.” State v. Gilfillan, 196 Ariz. 396, 400–01, ¶ 15 (App.
2000), abrogated on other grounds by State v. Carson, 243 Ariz. 463, 465–66,
¶ 10 (2018).

¶16 Pogue has not shown the evidence was material to the facts at
issue here. In proving the offenses, the State did not present evidence that
Pogue was the source of physical or biological signs of sexual activity. The
evidence indicated Pogue used tactics to avoid pregnancy and V.P. showed

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no overt signs of sexual activity years into the abuse. Moreover, Pogue has
not established that evidence of V.P.’s alleged treatment for diseases could
be used to prove that his lack of treatment undermined the State’s
allegations.

¶17 Despite the court’s ruling, Pogue elicited testimony from
Stephanie and V.P.’s brother that V.P. had a reputation for untruthfulness,
and she had admitted her “kids” could be fathered by “ten different” sexual
partners. See supra ¶ 15. V.P. also conceded that testing excluded Pogue as
the father of a child conceived during the time of the offenses. Thus, any
error in the court’s ruling was harmless. An error is harmless if the State
proves beyond a reasonable doubt the error in precluding evidence did not
impact the jury’s verdict. State v. Henderson, 210 Ariz. 561, 567, ¶ 18 (2005).
To the extent Pogue sought to undermine V.P.’s credibility, that purpose
was accomplished. We find no reversible error.

C. Violation of Rule Excluding Witnesses from Trial

¶18 Pogue argues the superior court erred by allowing a rebuttal
witness to testify in violation of Rule 9.3(a)(1), (3), which states in part that
on a party’s request, a court must “exclude prospective witnesses from the
courtroom during opening statements and other witnesses’ testimony” and
direct them “not to communicate with each other about the case until all of
them have testified.” This rule extends to witnesses that may be recalled in
rebuttal. Rule 9.3(a)(4).

¶19 When trial began, at the State’s request the court explained
that “[t]he rule excluding witnesses has been invoked.” V.P.’s
grandmother, Vicki, testified on the first day of trial, providing details of
the family dynamic, V.P.’s disclosure, and the investigation involving her
daughter, Stephanie. The day after Vicki testified, the court released her
from subpoena upon the State’s request. The rest of that day and the
following day, the State presented testimony from V.P., detectives, and an
expert in child sexual abuse. Pogue called defense witnesses, Stephanie and
V.P.’s brother, who disputed V.P.’s version of events. On the fourth day of
trial, the State called Vicki to testify in rebuttal to claims made by defense
witnesses. Pogue objected, arguing Vicki’s testimony violated Rule 9.3(a)
because she attended portions of trial after her release from subpoena.
Acknowledging that Vicki remained present for some of the State’s
witnesses, the court accepted the State’s avowal that Vicki did not hear
testimony from defense witnesses and allowed her to testify only to rebut
their claims. Vicki’s testimony complied with this ruling, and she admitted
in the jury’s presence that she was present for some of the trial.

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¶20 In his motion for new trial, Pogue argued Vicki heard V.P.’s
testimony in violation of Rule 9.3(a), and at a post-trial hearing he asserted
she may have changed her testimony. At the hearing, Vicki testified she
was present when one of the detectives testified and for some portions of
V.P.’s testimony. Vicki avowed she did not speak with any witnesses about
their testimony and did not modify her testimony in any way based on
testimony she heard. In denying the motion for new trial, the trial judge
stated he did “not find that [Vicki] bolstered or . . . manipulated her
testimony.” The judge then explained the rebuttal testimony did not violate
the purpose of the rule and allowing it did not prejudice Pogue. The judge
added that he “did not observe anything that would have caused me
concern that she was intentionally changing testimony based upon what
she may have heard.”

¶21 The purpose of Rule 9.3 is “to prevent witnesses from
‘tailoring’ their testimony to that of earlier witnesses and to aid in detecting
testimony that is less than candid.” Spring v. Bradford, 243 Ariz. 167, 170,
¶ 14 (2017) (explaining the purpose of Arizona Rule of Evidence 615—
Excluding Witnesses) (quotations and citations omitted). When a party
violates Rule 9.3, it is within the court’s discretion to admit the witness’s
testimony. Id. at 583–84, ¶¶ 18–20; State v. Gulbrandson, 184 Ariz. 46, 63
(1995). We will reverse only if “the defendant shows that the trial court
abused its discretion and that the defendant suffered prejudice.” State v.
Jones, 185 Ariz. 471, 483 (1996).

¶22 Our review of the record reveals no abuse of discretion by the
court and no resulting prejudice to Pogue. Although Vicki’s presence in the
courtroom upon her release from subpoena violated Rule 9.3(a), there is no
indication she testified falsely or altered her rebuttal testimony to conform
to the State’s theory of the case. It appears undisputed that Vicki was not
present for Pogue’s case-in-chief, and the court properly limited her to
rebutting defense witness testimony. The court acted within its discretion
in accepting as reliable Vicki’s avowals that she did not modify her
testimony and did not share information with other witnesses. See State v.
Presley, 110 Ariz. 46, 48 (1973) (finding the trial court did not err in excusing
a violation of the witness exclusion rule based in part on attorney’s avowal
that he did not attempt to coach the witnesses); see also Wainwright v. Witt,
469 U.S. 412, 428 (1985) (noting that “determinations of demeanor and
credibility . . . are peculiarly within a trial judge’s province . . . [and] entitled
deference on direct review”). Finally, Pogue’s cross-examination of Vicki
as to the Rule 9.3(a) violation mitigated the threat of resulting prejudice. See
Spring, 243 Ariz. at 173–74, ¶¶ 28–29.

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CONCLUSION

¶23 We affirm Pogue’s convictions and sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

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