Opinion
1 CA-CR 22-0006
02-28-2023
STATE OF ARIZONA, Appellee, v. JERRY ALLEN JOHNSON, JR., Appellant.
Arizona Attorney General's Office, Phoenix By Jana Zinman Counsel for Appellee. Carr Law Office PLLC, Kingman By Sandra Carr Counsel for Appellant.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Mohave County No. S8015CR201800897 The Honorable Billy K. Sipe, Judge Pro Tempore
Arizona Attorney General's Office, Phoenix By Jana Zinman Counsel for Appellee.
Carr Law Office PLLC, Kingman By Sandra Carr Counsel for Appellant.
Judge Randall M. Howe delivered the decision of the court, in which Presiding Judge David D. Weinzweig and Judge D. Steven Williams joined.
MEMORANDUM DECISION
HOWE, Judge.
¶1 Jerry Allen Johnson, Jr., appeals his convictions and sentences for sexual conduct with a minor under 12 and 15 years of age. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Johnson started dating Mary in 2010. She lived with several relatives in Yucca, Arizona, including her six-year-old daughter Zara. Johnson eventually moved in with the family and the couple married in 2013. Soon after meeting Mary, Johnson began sexually abusing Zara. This abuse occurred on an almost daily basis between February 2010 and April 2016. In the first year, Johnson touched and digitally penetrated Zara's genitals. After the first year, the abuse escalated with Johnson forcing Zara to engage in penile-vaginal penetration.
We use pseudonyms to protect the privacy of the victim and witnesses.
¶3 All of the abuse occurred at the Yucca house, mainly in Zara's bedroom, while Mary was sleeping and other relatives were not present. Typically, the abuse began with Johnson asking Zara "if he could play." If Zara refused, Johnson would physically hold her down, call her names, prevent her from leaving the home, or restrict her use of electronic devices. Once, he punched a hole in the wall. Johnson threatened to kill Zara if she disclosed the abuse. Zara felt scared of Johnson and suffered "panic attacks" because of the abuse.
¶4 In 2012, Zara told her friend, Cathy, that Johnson touched her genitals using lotion. Zara told Cathy not to tell anyone because she did not want Mary to learn of the abuse. Cathy eventually told her family members, and they contacted authorities. At that time, fearing what Johnson would do, Zara denied the allegations to law enforcement.
¶5 In early 2016, when Zara was 12 years old, she told Mary that Johnson had been sexually abusing her. Although Mary did not report the abuse at that time, she would later testify that she found Johnson's behavior with Zara to be suspicious. Mary noted that Johnson frequented Zara's bedroom at night, harbored anger toward the child, and called her "a little bitch." Shortly after Zara disclosed the abuse to Mary, she told her friend, Samantha, that Johnson was touching her genitals. While disclosing the abuse, Zara appeared both "scared and relieved." Samantha would later recall that Zara avoided Johnson and appeared uncomfortable around him. Although Zara asked Samantha not to report the abuse, Samantha told a school guidance counselor, and the counselor contacted authorities. Again, believing Mary wanted the abuse to remain secret, Zara denied the allegations to law enforcement.
¶6 After Samantha reported the abuse, Johnson arrived at her home with what appeared to be blood on his knuckles. Johnson was angry and screamed and cursed at Samantha through her window. When confronted by Samantha's father, Johnson replied, "if I found out it came from this house, I will kill you." Samantha took this to mean her and her entire family.
¶7 In April 2016, Zara moved out-of-state to live with her grandmother. When Zara first arrived, her grandmother noticed that she seemed withdrawn and depressed. Zara eventually told her grandmother about the abuse, and her grandmother scheduled an appointment with a therapist. At the first appointment, Zara disclosed the abuse to the therapist, who contacted authorities. This time, Zara disclosed the abuse to law enforcement.
¶8 The State charged Johnson with six counts of sexual conduct with a minor under 12 years of age and one count of sexual conduct with a minor under fifteen years of age, all class 2 felonies and dangerous crimes against children. The State alleged a date range for each count, all occurring between February 2010 and April 2016, with one count per year of abuse. After the grand jury returned an indictment, the State filed a corresponding probable cause statement, which included the specific location of the offenses, the alleged sex acts, the repetitive nature of the abuse, a thorough timeline of Zara's disclosures, and listed her age at the time of each underlying offense.
The trial court granted the State's motion to dismiss an additional count of molestation of a child short of trial. As such, we do not consider this count in our discussion.
¶9 Before trial, Johnson moved to preclude the victim's prior consistent statements to her friends, arguing the evidence would not be admissible under Arizona Rule of Evidence ("Rule") 801. The trial court declined to rule on the motion until trial. In opening remarks and early cross-examination, Johnson characterized this case as a "he-said/she-said" case without corroborating evidence, accused Zara of telling "two opposite stories," and attacked her credibility. In cross-examining Zara, Johnson highlighted her potential motive for lying, inability to recall details, inconsistencies in her disclosures, and prior denials to law enforcement. Based on this defense strategy, the court found that Zara's prior consistent statements could be admitted to rehabilitate her credibility under Rule 801(d)(1)(B)(ii).
¶10 Johnson testified and denied committing any of the offenses. He also denied visiting Zara's bedroom at night, calling her "a little bitch," or going to Samantha's home to threaten her. He claimed that he had a good relationship with Zara, and occasionally disciplined her by taking away her electronic devices. Throughout the trial, Johnson attempted to ask a number of the State's witnesses, including Zara, about sexual abuse allegations an unrelated victim made. Each time, the trial court sustained the State's objection to the testimony. The State asked Johnson whether the State's witnesses, including Zara, were lying about the facts and circumstances of the offenses. Johnson responded mainly in the affirmative.
¶11 Zara denied fabricating the sexual abuse allegations and that she finally told law enforcement to prevent Johnson from abusing anyone else. A "blind" or "cold" expert on child sexual abuse testified that victims commonly provide a delayed disclosure, particularly when they are fearful of what will happen if the abuse comes to light. She testified that piecemeal disclosure is also common, wherein the victim will provide some of the information to determine how people will respond. The expert testified that victims of long-term abuse will typically develop "script memory," blending memories of different incidents into one general pattern of abuse. She also testified that abusers may use threats to maintain their control over and access to the victim.
¶12 After a four-day trial, a jury convicted Johnson on all counts. The trial court sentenced Johnson to six consecutive terms of life imprisonment with each sentence carrying the possibility of release after 35 years, and to another term of 20 years' imprisonment. Johnson timely appealed.
DISCUSSION
I. Sufficiency of the Evidence
¶13 Johnson contends that insufficient evidence supports the convictions. We review the sufficiency of evidence de novo and view the evidence in the light most favorable to sustaining the verdict, resolving all reasonable inferences against the defendant. See State v. West, 226 Ariz. 559, 562 ¶¶ 15-16 (2011).
¶14We will reverse a conviction for insufficient evidence "only if no substantial evidence supports the conviction." State v. Pena, 209 Ariz. 503, 505 ¶ 7 (App. 2005). "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." State v. Mathers, 165 Ariz. 64, 67 (1990) (internal quotation marks and citations omitted). In evaluating the sufficiency of the evidence, we test the evidence "against the statutorily required elements of the offense." Pena, 209 Ariz. at 505 ¶ 8. We do not, however, "perform as a second-echelon jury and reweigh the evidence to decide whether we would reach the same conclusion as the trier-of-fact." State v. Long, 121 Ariz. 280, 281 (1979).
¶15 A person commits sexual conduct with a minor if he "intentionally or knowingly engag[es] in sexual intercourse or oral sexual contact with any person who is under eighteen years of age." A.R.S. § 13-1405(A). The offense is a class 2 felony if committed against a child under 15 years of age and carries a mandatory term of life imprisonment if committed against a child under 12 years of age. See A.R.S. §§ 13-705(B), 13-1405(B). Sexual intercourse is defined by statute as "penetration into the penis, vulva or anus by any part of the body or by any object or masturbatory contact with the penis or vulva." A.R.S. § 13-1401(A)(4).
Because A.R.S. § 13-705(B) has been materially revised, we apply the version in effect at the time of the offenses. See 2014 Ariz. Leg. Sess., ch. 224, § 2; 2008 Ariz. Leg. Sess., ch. 301, §§ 17, 29.
¶16 The record here sustains Johnson's convictions. At trial, Zara provided the date range of the offenses, the location of the offenses, and her age during the relevant time. She testified that Johnson touched and digitally penetrated her genitals in the first year of the abuse, and then "started using his penis" in all subsequent years. The abuse began when she first met Johnson, when she was six years old, and it ended only when she left home when she was 12 years old.
¶17 Even though the abuse occurred on a constant basis over a number of years, Zara could recall the types of sexual acts Johnson perpetrated and his pattern of behavior surrounding the abuse. She could recall that, at times, he used punishment, threats, and force to maintain the abuse, which left her feeling scared and hopeless. Zara denied fabricating the allegations, stating that she finally told law enforcement to prevent Johnson from abusing anyone else. Other State witnesses testified that Zara appeared uncomfortable around Johnson, he frequented her bedroom at night, and he treated her with hostility.
¶18 A "blind" or "cold" expert on child sexual abuse testified that victims commonly provide a delayed disclosure, particularly when they are fearful of what will happen if the abuse comes to light. She testified that piecemeal disclosure is also common, wherein the victim will provide some of the information to determine how people will respond. The expert testified that victims of long-term abuse will typically develop "script memory," blending memories of different incidents into one general pattern of abuse. She testified that abusers may use threats to maintain their control over and access to the victim. This testimony explained how the pattern of victimization affected Zara's ability to disclose the abuse.
¶19 Based on the foregoing, sufficient evidence supports Johnson's convictions for sexual conduct with a minor under 12 and 15 years of age. Here, the victim's testimony supported each element of the offense, and such testimony alone may constitute sufficient evidence to support a conviction. 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."). Evidence provided by the remaining State witnesses supported or contextualized the victim's testimony. Thus, the State presented "such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." Mathers, 165 Ariz. at 67.
II. Indictment
¶20 Johnson raises a number of challenges to the indictment and the State's charging decisions. Because Johnson failed to challenge the indictment before trial, he bears the burden of establishing fundamental error, which requires him to prove that error occurred and that the error either prejudiced him, or "was so egregious that he could not possibly have received a fair trial." State v. Escalante, 245 Ariz. 135, 140, 142 ¶¶ 12, 21 (2018).
¶21 The State charged Johnson with seven counts of sexual conduct with a minor under 12 and 15 years of age. As to each count, the State provided all necessary statutory language, the location of the offenses, the name of the victim, and specified that the allegations involved sexual intercourse. See A.R.S. § 13-1405. The State alleged a date range for each count, all occurring between February 2010 and April 2016, with one count per year of abuse. After the grand jury returned an indictment, the State filed a corresponding probable cause statement, which included the specific location of the offenses, the alleged sexual acts, the repetitive nature of the abuse, a thorough timeline of Zara's disclosures, and listed her age at the time of each underlying offense.
¶22 Johnson did not challenge the indictment below. At trial, Johnson denied committing any of the offenses, arguing in both opening and closing remarks that the State failed to present specific details of the abuse and provided no corroborating evidence. He argued that the State's decision to charge one count per year of abuse demonstrated the weakness of its case, attacking Zara's credibility as a reliable witness. The trial court instructed the jury that each count charged a separate and distinct offense, and that they must decide each count separately on the evidence uninfluenced by their decision on any other count.
A. Notice of the Charges and Continuous Sexual Abuse
¶23 Johnson argues that the indictment lacked specificity and failed to provide adequate notice of the charges. He further contends that the appropriate unit-of-prosecution for this "set of allegations" was one count of continuous sexual abuse of a child under A.R.S. § 13-1417. He claims that his convictions and sentences for multiple counts of sexual conduct with a minor resulted in multiple punishments for the same offense in violation of double jeopardy. In raising these claims, Johnson asks that we either reject or distinguish the recent holding in State v. Copeland, 253 Ariz. 104 (App. 2022). We decline to do so here.
¶24 In Copeland, this court considered a similar fact pattern involving long-term sexual abuse by a "resident child molester." 253 Ariz. at 416-17 ¶¶ 1-2, 7. In reviewing the sufficiency of the 50-count indictment, the Copeland court concluded that "due process does not require that an indictment precisely delineate numerous molestations when those acts are alleged to have been committed against a child victim and to have happened repeatedly over a substantial period of time with little or no basis for the child to make any such differentiation." Id. at 420 ¶ 15. Thus, the court held that the indictment was legally sufficient because it tracked the language of the statute, identified the victim, listed the county where the offenses occurred, and provided a date range for the offenses. Id. at 419 ¶ 13. The court further recognized that the State was "not required to provide notice of the specific acts giving rise to the charges or the manner in which the offenses would be proven," nor was it required to establish the date of offense as an element of the crime. Id.; see also State v. Davis, 206 Ariz. 377, 390 ¶ 60 (2003) (finding that "the date of the offense is not an element of the crime of sexual conduct with a minor").
¶25 The Copeland court further rejected the defendant's assertion that the State should have been limited to charging one count of continuous sexual abuse of a child under A.R.S. § 13-1417. 253 Ariz. at 422 ¶ 20. The court recognized the State's authority to determine the appropriate charges, concluding that the defendant was "not entitled to a trial for the crime he preferred to be charged with where the evidence could support multiple other offenses." Id.; see also State v. Lopez, 174 Ariz. 131, 143 (1992) ("When conduct can be prosecuted under two or more statutes, the prosecutor has the discretion to determine which statute to apply."). The court noted that the language of the continuous sexual abuse statute did not "indicate any legislative intent to modify the prosecution's traditional discretion in choosing how to structure charges against an individual defendant." Copeland, 254 Ariz. at 422 ¶ 20. Though not specifically addressed in Copeland, charges do not exceed the "allowable unit-of-prosecution" for double jeopardy purposes if they are based on separate and distinct events. See State v. Via, 146 Ariz. 108, 115-16 (1985) (holding that the defendant was correctly charged with two separate offenses of "scheme or artifice to defraud" when he used two stolen credit cards at two locations because he had engaged in "two separate courses of conduct").
¶26 Like the defendant in Copeland, Johnson has failed to demonstrate that he "was unaware of or surprised by the continuously recurring conduct alleged." 253 Ariz. at 420 ¶ 14. The indictment tracked the statutory language, alleged that the offenses occurred in Mohave County, identified Zara as the victim, and specified that the charges involved sexual intercourse. Each count listed a separate date range, corresponding with the timeline of the abuse. The grand jury transcript and probable cause statement, both available to Johnson, provided additional details regarding the date ranges, Zara's age, and the nature of the underlying offenses. When viewed together, Johnson had adequate notice of the charges. See State v. Magana, 178 Ariz. 416, 418 (App. 1994) (recognizing that "the indictment must be read in the light of the facts known by both parties"). Moreover, as in Copeland, Johnson has failed to establish that the sufficiency of the indictment affected his ability to mount a defense. Though Johnson now claims he presented "differing defenses," his entire defense at trial revolved around a blanket denial that he committed the offenses. Thus, he has failed to demonstrate that the "generic" nature of the charges prevented him from asserting an available defense. A theoretical inability to present a defense is not enough to establish that Johnson suffered actual prejudice. See State v. Hamilton, 177 Ariz. 403, 410 (App. 1993).
¶27 Similarly, Johnson has failed to demonstrate that the appropriate unit-of-prosecution should have been one count of continuous sexual abuse of a child. Like the defendant in Copeland, Johnson was not entitled to the indictment of his choice. Here, the State acted within its authority in determining the appropriate charges to be filed. Although the charges involved long-term sexual abuse, the underlying offenses for each charge occurred in a separate date range and entailed distinct sexual conduct. Thus, the charges did not exceed the "allowable unit-of-prosecution" leading to multiple punishments for the same offense. See Via, 146 Ariz. at 115-16.
B. Duplicitous Charges
¶28 Johnson argues that the indictment contained duplicitous charges, resulting in the potential for non-unanimous verdicts and preventing him from pleading double jeopardy in a future prosecution of the same offenses. Given Zara's testimony that the sexual abuse occurred on an almost daily basis and one charge represented one year of abuse, Johnson contends that the State presented multiple criminal acts to prove each of the charged offenses.
¶29 A duplicitous charge exists when the "indictment refers only to one criminal act, but multiple alleged criminal acts are introduced to prove the charge." State v. Klokic, 219 Ariz. 241, 244 ¶ 12 (App. 2008). Such charges are "prohibited because they fail to give adequate notice of the charge to be defended, they present a hazard of a non-unanimous jury verdict, and they make a precise pleading of prior jeopardy impossible in the event of a later prosecution." State v. Whitney, 159 Ariz. 476, 480 (1989); see also Ariz. Const. art. 2, § 23 (recognizing a defendant's right to a unanimous verdict). An unremedied duplicitous charge, however, does not result in prejudice if "the defendant offers essentially the same defense to each of the acts" and "no reasonable basis [exists] for the jury to distinguish between them." Klokic, 219 Ariz. at 245 ¶ 18 (citation omitted). This is especially true when the defendant categorically denies that he committed the offenses and claims "the victims merely fabricated their stories." Whitney, 159 Ariz. at 480.
¶30 While Zara testified that multiple acts occurred during each of the charged date ranges, Johnson has failed to show that the potential for duplicity resulted in prejudice. The dispositive issue before the jury was whether to believe Zara's allegations or Johnson's blanket denial that he committed the offenses. The verdicts demonstrate that the jury accepted Zara's testimony as credible and rejected Johnson's chosen defense. Even if the State's case rendered the charges duplicitous, Johnson has not established that the jury reached a non-unanimous verdict resulting in prejudicial error. See State v. Schroeder, 167 Ariz. 47, 53 (App. 1990) ("[T]he possibility that the jury might have found that some but not all of the alleged acts occurred is irrelevant so long as they unanimously agreed that the child had been sexually abused by defendant.").
¶31 Because the potential for duplicity did not result in prejudice, the nature of the charges will not prevent Johnson from pleading double jeopardy in a second prosecution. "Double jeopardy will bar a second prosecution if the evidence necessary to support a second conviction was admissible and would have supported a conviction in the first prosecution." Schroeder, 167 Ariz. at 52. If tasked with pleading double jeopardy in a future prosecution, Johnson would not be "limited to the four corners of the indictment" and the entire trial record would be "available to bar a subsequent prosecution." State v. Schneider, 148 Ariz. 441, 446 (App. 1985). The evidence used to prove the charges in the current prosecution, namely testimony that Johnson repeatedly sexually abused Zara over a lengthy time period, could not be used to prosecute him in a second prosecution.
III. Admission of Prior Consistent Statements
¶32 Johnson claims that the trial court erred by allowing the State to admit prior consistent statements used solely to bolster Zara's credibility. He argues that the statements constituted inadmissible hearsay. We review admissions of evidence under exceptions to the rule against hearsay for an abuse of discretion. See State v. Tucker, 205 Ariz. 157, 165 ¶ 41 (2003).
¶33 In general out-of-court statements offered to prove the truth of the matter asserted are inadmissible unless rooted in a hearsay exception. See Rule 801(c), 802. A declarant's prior statement that is consistent with her testimony is admissible as non-hearsay, however, when offered "to rehabilitate the declarant's credibility as a witness when attacked." Rule 801(d)(1)(B)(ii). In creating this hearsay exception, the legislature expressed its intent "to extend substantive effect to consistent statements that rebut other attacks on a witness-such as the charges of inconsistency or faulty memory." Rule 801, Advisory Comm. Note, 2015 Amend.
¶34 The trial court did not err. Before trial, Johnson moved to preclude the victim's prior consistent statements to her friends, arguing the evidence would not be admissible under Rule 801. The trial court declined to rule on the motion until trial. In opening remarks and early cross-examination, Johnson characterized this case as a "he-said/she-said" case without corroborating evidence, accused Zara of telling "two opposite stories," and attacked her credibility. In cross-examining Zara, Johnson highlighted her potential motive for lying, inability to recall details, inconsistencies in her disclosures, and prior denials to law enforcement. Based on this defense strategy, the court found that Zara's prior consistent statements could be admitted to rehabilitate her credibility under Rule 801(d)(1)(B)(ii). Cathy and Samantha then testified that Zara disclosed that Johnson had been touching her genitals.
¶35 In Johnson's opening remarks, he challenged the victim's credibility, focusing on her delay in reporting the abuses, her issues remembering specific details, and her inconsistent responses to law enforcement. He highlighted Zara's opposing narratives and characterized her final disclosure as a complete fabrication. Thus, the State was entitled to introduce her out-of-court statements - which were consistent with her trial testimony-to rebut that attack. The trial court did not err in declining to preclude this evidence.
¶36 Even assuming arguendo that the trial court should have precluded the statements, any resulting error was harmless. The statements at issue were included in Zara's own testimony, and she was subject to cross-examination. See State v. Hoskins, 199 Ariz. 127, 144 ¶ 66 (2000) (finding harmless error because the statements were included in the declarant's testimony and he was subject to cross-examination).
IV. Admission of Threats to Witness
¶37 Johnson contends that the trial court erred by allowing the State to admit testimony that he threatened Samantha and her family after she reported Zara's disclosure. He claims the irrelevant and prejudicial testimony should have been precluded under Rule 404(b), arguing the testimony served only to portray him as a violent person. As Johnson concedes, he waived all but review for fundamental, prejudicial error by failing to challenge the testimony at trial. See Escalante, 245 Ariz. at 140, 142 ¶¶ 12, 21.
¶38 Typically, evidence of uncharged "crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Rule 404(b). If offered for a non-character purpose, however, other-act evidence may be admissible to show "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. To be admissible, the evidence must be admitted for a relevant, proper purpose and its probative value must not be substantially outweighed by the danger of unfair prejudice. See Rule 403; State v. Gulbrandson, 184 Ariz. 46, 60 (1995). Evidence of witness intimidation is relevant to a defendant's consciousness of guilt, and admissible so long as the threats are sufficiently linked to the defendant. See State v. Settle, 111 Ariz. 394, 396 (1975); State v. Contreras, 122 Ariz. 478, 480 (App. 1979).
¶39 At trial, Samantha testified that Johnson arrived at her home after she reported the abuse, appeared angry, and yelled at her through her window. Johnson then told Samantha's father that if he discovered the report came from them, that he would "kill" them. Samantha noted that Johnson's knuckles appeared to be bleeding, which implicitly corroborated Zara's testimony that Johnson threatened to kill her and once punched a hole in the wall. Johnson did not object to this testimony, nor did he request a limiting jury instruction.
¶40 The testimony was presented to show Johnson's consciousness of guilt, not that he had a propensity to commit the offenses or had a character for violence. Johnson made the threats as a direct result of Samantha reporting the abuse, intimidated her and her family, and demonstrated a concern that the abuse would be uncovered. The testimony was relevant to Johnson's state of mind and sufficiently linked him to the threats. See Contreras, 122 Ariz. at 480. Although this testimony was undoubtedly harmful to Johnson's defense, "not all harmful evidence is unfairly prejudicial." State v. Schurz, 176 Ariz. 46, 52 (1993). Here, the probative value of the evidence was not outweighed by the danger of unfair prejudice. See Rule 403. Johnson has shown no error, fundamental or otherwise.
V. Preclusion of Unrelated Sexual Abuse Allegations
¶41 Johnson argues that the trial court erred in precluding testimony of unrelated sexual abuse allegations, denying him the constitutional right to a fair trial. We review the court's evidentiary ruling for an abuse of discretion. See State v. Ellison, 213 Ariz. 116, 129 ¶ 42 (2006). "Absent a clear abuse of discretion, we will not second-guess a trial court's ruling on the admissibility or relevance of evidence." State v. Rodriguez, 186 Ariz. 240, 250 (1996).
¶42 A defendant has the due process right to have "a meaningful opportunity to present a complete defense." State v. Lehr, 227 Ariz. 140, 150 ¶ 39 (2011) (citation omitted). This right is not absolute, however, and is "subject to reasonable restrictions" by the trial court. United States v. Scheffer, 523 U.S. 303, 308 (1998). The court may limit evidence to that "which is relevant and not unduly prejudicial." State v. Oliver, 158 Ariz. 22, 30 (1988). For evidence to be admissible, it must be both relevant and its probative value must not be substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. See Rules 401-403.
¶43 During trial, Johnson attempted to ask a number of the State's witnesses, including Zara, about sexual abuse allegations that an unrelated victim made. Each time, the trial court sustained the State's objection to the testimony. Johnson did not file a formal pleading and provided no further argument regarding this line of questioning. For the first time on appeal, Johnson asserts that an unrelated victim accused his brother of sexually abusing her and Zara knew of these allegations. He contends that this unrelated matter may have planted the idea in Zara's mind to fabricate sexual abuse allegations as "an easy way to have a man removed from your life."
¶44 We see no abuse of discretion in sustaining the State's objection to such testimony. Any contention that allegations made by a wholly unrelated victim is, at best, marginally relevant and, at worst, speculative and tenuous. See State v. Dann, 205 Ariz. 557, 569 ¶ 36 (2003) (excluding evidence proper given the "tenuous and speculative nature of the evidence"). Without more, the record supports a conclusion that "the testimony was collateral to the issues at trial and would potentially confuse the jury." State v. Abdi, 226 Ariz. 361, 367 ¶ 23 (App. 2011). Because the trial court acted within its discretion in precluding the testimony, Johnson's constitutional right to present a complete defense was not violated. See State v. Davis, 205 Ariz. 174, 179 ¶ 33 (App. 2002) ("[A] defendant's constitutional rights are not violated where, as here, evidence has been properly excluded.").
VI. Prosecutorial Error
¶45 Johnson argues that various instances of prosecutorial error, individually and cumulatively, deprived him of a fair trial. He claims that the prosecutor repeatedly forced him to comment on the credibility of the State's witnesses and, given the central role of witness credibility in this case, the prosecutor's improper conduct entitles him to a new trial. Johnson did not object to the prosecutor's line of questioning below, so we review only for fundamental, prejudicial error. See Escalante, 245 Ariz. at 140, 142 ¶¶ 12, 21. To establish a cumulative claim of prosecutorial error under a fundamental-error standard, the defendant must show both that error occurred and "the error was so egregious that he could not possibly have received a fair trial." State v. Vargas, 249 Ariz. 186, 188-90 ¶¶ 1, 12-13 (2020).
Although Johnson describes the challenged acts as prosecutorial "misconduct," we treat his claim as one of prosecutorial "error" because he does not assert a violation of ethical rules. See In Re Martinez, 248 Ariz. 458, 470 ¶ 47 (2020).
¶46 Asking a witness to opine on the veracity of another witness is improper "because it usurps the jury's traditional functions." See State v. Lindsey, 149 Ariz. 472, 474-76 (1986). The admission of such testimony is reversible error if "specifically designed to boost the victim's credibility" and the defendant's guilt turns on the credibility of the victim. Schroeder, 167 Ariz. at 50. Arizona courts, however, have been reluctant to subscribe to a bright-line approach to "were they lying" questions, recognizing that such questions may be proper when a defendant has opened the door regarding the veracity of the State's witnesses. State v. Morales, 198 Ariz. 372, 375 ¶¶ 10, 12-13 (App. 2000).
¶47 To determine whether the prosecutor's cross-examination of Johnson constituted prosecutorial error, we look to the specific circumstances of the alleged misconduct. See Pool v. Superior Court, 139 Ariz. 98, 102-03 (1984). Here, without objection, the State asked Johnson whether the State's witnesses, including Zara, were lying about the facts and circumstances of the offenses. Johnson mainly responded yes. These responses harmonized with Johnson's characterization of the State's case from the outset of trial as wholly fabricated.
¶48 Without endorsing lines of questioning that ask a defendant to comment on the veracity of another witness, the prosecutor's cross-examination of Johnson was not error. Johnson raised the issue early on in trial, and consistently maintained that the State's witnesses were lying about key facts related to the allegations. Because Johnson opened the door to witness veracity, he cannot claim such testimony prevented him from receiving a fair trial. See State v. Kemp, 185 Ariz. 52, 60-61 (1996) (noting that a defendant cannot claim error after opening the door on cross-examination to the result of which he complains). The alleged prosecutorial error, whether considered individually or cumulatively, did not hinder Johnson's ability to receive a fair trial.
CONCLUSION
¶49 For the reasons stated, we affirm Johnson's convictions and resulting sentences.