State v. Garcia

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JUAN CRISTOBAL GARCIA, Appellant.

No. 1 CA-CR 21-0370
FILED 10-20-2022

Appeal from the Superior Court in Maricopa County
No. CR2014-001032-001
The Honorable Kerstin G. LeMaire, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Tucson
By Jacob R. Lines
Counsel for Appellee

Bain & Lauritano PLC, Glendale
By Sheri M. Lauritano
Counsel for Appellant
 STATE v. GARCIA
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.

F U R U Y A, Judge:

¶1 Juan Cristobal Garcia appeals his convictions and sentences
for one count of sexual abuse, one count of kidnapping, two counts of child
molestation, and two counts of sexual conduct with a minor. He argues (1)
insufficient evidence supports his convictions, and (2) the superior court
erroneously denied his motion to vacate the judgments under Arizona Rule
of Criminal Procedure (“Rule”) 24.2. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In November 2013, Vanessa, Karina, and Gina1 disclosed that
Garcia—their uncle—performed various sexual acts on them between
February 2009 and November 2013. Vanessa and Karina are sisters, and
Gina is their cousin. Vanessa was born in 2002, Karina was born in 2005,
and Gina was born in 1994.

¶3 Based on the allegations, a grand jury indicted Garcia on one
count of attempted sexual conduct with a minor, a Class 3 felony (Count
one); two counts of kidnapping, Class 2 felonies (Counts two and seven);
sexual abuse, a Class 3 felony (Count three); three counts of child
molestation, Class 2 felonies (Counts four, five, and six); and three counts
of sexual conduct with a minor, Class 2 felonies (Counts eight, nine, and
ten). Two previous trials ended in mistrials due to deadlocked juries before
Garcia was convicted in the instant matter. Viewed in the light most
favorable to upholding the convictions, State v. Klokic, 219 Ariz. 241, 242 ¶
2 n.1 (App. 2008), the evidence presented at trial established the following
facts.

¶4 In November 2013, Vanessa attended a sleepover at Garcia’s
house. While she was sleeping on a couch, she “felt [Garcia] go under [her]
clothes and touch [her vagina] with [his] hand.” She kicked him to make

1 We refer to the victims by the pseudonyms that the State used in the
Answering Brief.

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Decision of the Court

him stop. On another occasion in 2013, Vanessa was “walking from the
kitchen to the living room” at Garcia’s house when he “came up behind
[her], put his hands through [her] shirt, under [her] bra, and grabbed [her]
breasts[,]” then told her that her “breasts were growing.”

¶5 During another sleepover at Garcia’s house in 2013, Karina
was sleeping on a bedroom floor when Garcia entered the room and
approached her. He put his hand under her blanket and touched her vagina
under her underwear.

¶6 When Gina was 15 years old, she stayed home from school
one day, and Garcia unexpectedly visited her house while she was doing
chores. He invited Gina to go out to eat, and she agreed. After they left the
restaurant, he drove them to an “empty community lot” where he parked
his truck. Garcia “had [her] lay down inside the . . . long single bed up
front[,]” made her put her head on his lap, then “put his hands under [her]
underwear and started touching” her vagina. He eventually “placed [her]
hand on his penis” and made her “masturbate him.”

¶7 Following the State’s case-in-chief, Garcia moved for
judgments of acquittal under Rule 20. The superior court denied his motion
on Counts one through nine but entered an acquittal on Count ten.

¶8 Garcia testified in his defense and denied committing the
crimes. He asserted that Gina and her older sister had contrived the
allegations out of anger after he accidentally saw Vanessa naked one day at
the swimming pool. He accused the police and the prosecutor of “coaching”
the victims. He further claimed that the police had “manipulate[d]” his
post-arrest interview video, and as a result, three different versions existed.
Garcia called an expert witness, who opined that the video of Garcia’s
police interview had been altered.

¶9 The jury found Garcia guilty on Count three for sexually
abusing Vanessa, Count four for molesting Vanessa, Count five for
molesting Karina, amended2 Count seven for kidnapping Gina, and
amended Counts eight and nine for sexual conduct with Gina. The jurors
could not reach verdicts on the remaining counts, and the superior court
later granted the State’s motion to dismiss those charges without prejudice.

2 Based on Gina’s testimony that she was 15 years old when Garcia
committed the charged offenses against her, the court granted the State’s
motion to amend (1) Count seven to a non-dangerous offense and (2)
Counts eight and nine from Class 2 felonies to Class 6 felonies.

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¶10 Following the trial—but before entry of judgment and
sentence—Garcia filed several motions to vacate the judgments and dismiss
the charges with prejudice, alleging the State violated its disclosure
obligations under Brady v. Maryland, 373 U.S. 83 (1963), and Rule 15.1. In
relevant part, he asserted that the State unlawfully withheld the following
impeachment evidence: (1) an internal police investigation finding a
testifying detective had mishandled a drug pipe in 2016; (2) Officer L., who
did not testify, had a felony conviction; and (3) Officer S., who also did not
testify, had numerous “prior disciplinary actions making his performance
as an officer unacceptable.” The State countered that the detective’s
disciplinary actions did not constitute impeachment evidence implicating
Brady and that the non-testifying officers had minimal, if any, involvement
in investigating the charged offenses.

¶11 After an in-camera review of the detective’s personnel file, the
superior court found that the failure to disclose the disciplinary proceeding
did not violate Brady or Rule 15.1. The disciplinary investigators concluded
that the detective had accidentally damaged a glass pipe recovered during
an armed-robbery investigation, violating a departmental policy on
handling property. The superior court similarly concluded that the
nondisclosure of the other two officers’ misconduct did not violate Brady or
Rule 15.1 because (1) Officer L. merely interviewed a victim’s aunt, who
relayed a conversation she had with the victim about the allegations; and
(2) Officer S. was not involved in investigating the charged offenses but
instead had years earlier assisted in a separate investigation of a different
victim’s child-molestation allegations against Garcia.

¶12 The superior court sentenced Garcia to an aggregate prison
term of 34 years and placed him on probation upon his release. He timely
appealed, and we have jurisdiction under A.R.S. § 12-120.21(A)(1), 13-4031,
and -4033(A)(1).

DISCUSSION

I. Sufficiency of the Evidence.

¶13 Garcia argues insufficient evidence supports his convictions
because the State did not present “any direct physical evidence,” no non-
victims witnessed the charged offenses, the victims delayed their
disclosure, and he consistently denied the allegations. In the context of a
Rule 20 motion, we review de novo whether sufficient evidence supports a
conviction, viewing the evidence in a light most favorable to sustaining the
verdict. State v. West, 226 Ariz. 559, 562 ¶ 15 (2011).

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¶14 Courts must 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.” West, 226 Ariz. at 562 ¶ 16 (citation omitted).
“Reversible error based on insufficiency of the evidence occurs only where
there is a complete absence of probative facts to support the conviction.”
State v. Soto-Fong, 187 Ariz. 186, 200 (1996). Evidence is sufficient as a matter
of law when reasonable jurors could fairly debate whether the evidence
establishes a particular fact. State v. Davolt, 207 Ariz. 191, 212 ¶ 87 (2004).

¶15 A victim’s testimony alone may constitute sufficient evidence
to support a conviction, absent an account that is “physically impossible or
so incredible that no reasonable person could believe it.” State v. Williams,
111 Ariz. 175, 177–78 (1974) (quoting State v. Pollock, 57 Ariz. 415, 417
(1941)); see State v. Jerousek, 121 Ariz. 420, 427 (1979) (“In child molestation
cases, the defendant can be convicted on the uncorroborated testimony of
the victim.”). “No rule is better established than that the credibility of the
witnesses and the weight and value to be given to their testimony are
questions exclusively for the jury.” State v. Cox, 217 Ariz. 353, 357 ¶ 27 (2007)
(quotation omitted). Consequently, we do not reweigh the evidence or
reassess credibility in our review. State v. Buccheri-Bianca, 233 Ariz. 324, 334
¶ 38 (App. 2013).

¶16 To convict Garcia of sexually abusing Vanessa, the State had
to prove he intentionally or knowingly touched her breast when she was
under 15. See A.R.S. § 13–1404(A) (defining sexual abuse). In Counts two
and three, the State charged Garcia with committing child molestation
against Vanessa and Karina, thereby requiring proof that he intentionally
or knowingly engaged in sexual contact with them—other than contact
with their breasts—or otherwise caused them to engage in such sexual
contact when they were under 15 years old. See A.R.S. § 13–1410(A)
(defining child molestation); A.R.S. § 13-1401(A)(3)(a) (defining sexual
contact as “any direct or indirect touching, fondling or manipulating of any
part of the genitals, anus or female breast by any part of the body or by any
object or causing a person to engage in such contact”). In relevant part,
Garcia kidnapped Gina in violation of § 13–1304(A)(3) if he knowingly
restrained her “with the intent to . . . [i]nflict . . . a sexual offense.” To prove
Garcia committed sexual conduct with a minor under § 13-1405(A), the
State had to show Garcia intentionally or knowingly engaged in “sexual
intercourse or oral sexual contact” with Gina when she was under 18 years
old.

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¶17 Here, as recounted supra ¶¶ 4–6, the victims’ testimony
satisfies the elements of the charged offenses listed above, and Garcia does
not assert otherwise. Nor does he contend their accounts were so
impossible or incredible that the jury could not have reasonably believed
them. And despite Garcia’s suggestion to the contrary, it is well settled in
Arizona that the absence of physical evidence or corroboration does not
render a victim’s testimony insufficient to support a conviction. See, e.g.,
State v. Dutton, 106 Ariz. 463, 465 (1970); State v. Montano, 121 Ariz. 147, 149
(App. 1978). In sum, there is no merit to Garcia’s argument because he
effectively asks us to reweigh the evidence and assess credibility, which we
will not do. State v. Fischer, 242 Ariz. 44, 52 ¶ 28 (2017) (“The appellate
court’s role is not to weigh the evidence.”). Furthermore, we resolve any
conflicts in the evidence against Garcia. State v. Pena, 235 Ariz. 277, 279 ¶ 5
(2014). Because substantial evidence supports his convictions, the court
properly denied his Rule 20 motion.

II. Motion to Vacate the Judgments.

¶18 Garcia next argues the court improperly denied his Rule 24.2
motion based on the alleged Brady and Rule 15.1 infractions. However, we
need not reach the merits of Garcia’s arguments because his Rule 24.2
motion was premature, and therefore, the court lacked jurisdiction to
consider it.

¶19 Defendants are directed to file Rule 24.2 motions “no later
than 60 days after the entry of judgment and sentence.” Ariz. R. Crim. P. 24.2(b)
(emphasis added). Because entry of a judgment and sentence is “the core
procedural predicate before a motion to vacate becomes viable,” it is error
for a court to grant relief under Rule 24.2 before that occurrence. State ex rel.
Adel v. Hannah, 249 Ariz. 537, 539 ¶ 13 (2020) (emphasis in original). Thus,
a defendant may not proceed under Rule 24.2 when, as here, “a judgment
of conviction and sentence ha[s] not yet been entered.” State v. Saenz, 197
Ariz. 487, 489 ¶ 6 (App. 2000). Moreover, a trial court “d[oes] not have
jurisdiction” to hear or consider a premature motion to vacate the judgment
under Rule 24.2 before it has entered judgment and imposed sentence. State
v. Hickle, 129 Ariz. 330, 332 (1981).

¶20 Here, Garcia filed his Rule 24.2 motion before sentencing
occurred. See State v. Montgomery, 233 Ariz. 341, 343 ¶ 7 (App. 2013) (“[T]he
entry of judgment and sentence occurs at sentencing.”). Therefore, Garcia’s
motion was premature, and the court lacked jurisdiction to consider it.
Hannah, 249 Ariz. at 539–40 ¶¶ 14–15 (2020) (stating courts “cannot vacate
a judgment and sentence where none exists” and collecting cases that

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“support the unremarkable proposition that a judgment and sentence must
be entered before a Rule 24.2 motion may be filed and considered by a trial
court”). Nevertheless, the court proceeded to consider and resolve Garcia’s
premature Rule 24.2 motion. This was error, rendering the court’s ruling on
the motion a nullity. See Solomon v. Findley, 165 Ariz. 45, 46 (App. 1990)
(“[A]ny action taken by a court which does not have jurisdiction is void and
a nullity.”).

¶21 Finally, Garcia mentions in passing that the court erred in
denying his dismissal motions. See supra ¶ 10. Because he does not develop
his argument or cite any supporting legal authority, he has waived that
claim. See State v. Moody, 208 Ariz. 424, 452 ¶ 101 n.9 (2004) (“Merely
mentioning an argument is not enough: In Arizona, opening briefs must
present significant arguments, supported by authority, setting forth an
appellant’s position on the issues raised. Failure to argue a claim usually
constitutes abandonment and waiver of that claim.”) (citation omitted).
Accordingly, Garcia is not entitled to relief.

CONCLUSION

¶22 We affirm Garcia’s convictions and resulting sentences.

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

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