Opinion
No. 1 CA-CR 19-0494
03-18-2021
STATE OF ARIZONA, Appellee, v. CUAUHTEMOC VELEZ VISORIO, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Jillian Francis Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Paul J. Prato Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2018-006832-001
The Honorable John R. Hannah, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Jillian Francis
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Paul J. Prato
Counsel for Appellant
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge Jennifer B. Campbell joined. CATTANI, Judge:
¶1 Cuauhtemoc Velez Visorio appeals his convictions and sentences for four counts of sexual conduct with a minor and two counts of sexual abuse. Visorio's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), certifying that, after a diligent search of the record, he found no arguable question of law that was not frivolous. Visorio was given the opportunity to file a supplemental brief but did not do so. Counsel asks this court to search the record for reversible error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999).
¶2 This court subsequently ordered Penson briefing to address whether the superior court properly admitted the testimony of a forensic investigator under the recorded recollection exception to the rule against hearsay. After reviewing the record and considering the parties' briefing, we affirm Visorio's convictions and sentences.
Penson v. Ohio, 488 U.S. 75 (1988).
FACTS AND PROCEDURAL BACKGROUND
¶3 Visorio and the victim's mother, C.T., married in 2012. C.T. had four children unrelated to Visorio, and they had two children together. On an evening in May 2016, Visorio entered the room of C.T.'s 11-year-old daughter, A.P., wearing only a towel.
¶4 Visorio got into bed with A.P., undressed her, touched her breasts and genitals, and, despite her protests, had sexual intercourse with her. As this was happening, Visorio's three-year-old daughter, E.V., entered the room and asked Visorio what he was doing.
¶5 After C.T. returned home, E.V. told her what she had seen. C.T. asked Visorio and A.P. separately what happened, and both denied any inappropriate contact. But after C.T. assured A.P. that she would not be in trouble, A.P. told her what had happened.
¶6 C.T. called the police, and Visorio was taken into custody, where he was read his Miranda rights and questioned by an officer. Throughout the course of the almost two-hour interview, Visorio confessed to getting on top of A.P. and touching her breasts and genitals as she attempted to push him off, but denied engaging in sexual intercourse.
Miranda v. Arizona, 384 U.S. 436 (1966). --------
¶7 The State charged Visorio with two counts of sexual abuse, four counts of sexual conduct with a minor, one count of child molestation, and one count of public sexual indecency.
¶8 C.T., A.P., and E.V. testified during Visorio's 13-day trial. One of C.T.'s other children also testified to seeing Visorio kissing A.P. in A.P.'s bedroom on a separate occasion. Two forensic scientists testified that they analyzed DNA samples taken from Visorio and A.P. on the night of his arrest and that testing showed that the swabs taken from A.P.'s breast and her underwear contained Visorio's DNA. A swab from Visorio's genitals contained A.P.'s DNA.
¶9 After the State rested its case, Visorio moved for a judgment of acquittal under Arizona Rule of Criminal Procedure 20, arguing that the evidence presented was insufficient to support a conviction on seven of the eight counts charged. The court granted the motion as to the count of public sexual indecency but denied the motion as to the remaining counts.
¶10 Visorio testified in his own defense. He admitted touching A.P.'s breasts on the night of his arrest, but he asserted that any contact with A.P.'s genitals was unintentional, and he denied having sexual intercourse with her. Visorio also denied any previous inappropriate contact with A.P.
¶11 The jurors convicted Visorio on two counts of sexual abuse and four counts of sexual conduct with a minor but acquitted him of child molestation. The court imposed a combination of concurrent and consecutive terms of imprisonment totaling three consecutive life sentences followed by an additional term of 20 years' imprisonment. Visorio timely appealed.
DISCUSSION
¶12 We requested Penson briefing to address whether the court properly admitted the testimony of a forensic interviewer under the recorded recollection exception to the rule against hearsay. See Penson, 488 U.S. at 80. After A.P. testified at trial that she did not remember some of the events she had reported to the police, the court permitted a forensic interviewer to testify regarding the details of her May 2016 interview with A.P.
¶13 The forensic interviewer's testimony provided the only direct evidence to support Count 1 (sexual assault) because A.P did not remember whether Visorio touched her breasts. Additionally, the forensic interviewer's testimony clarified A.P.'s testimony in which she had difficulty distinguishing between two instances of sexual contact.
¶14 Visorio objected to the forensic interviewer's testimony on the basis of hearsay. The State argued that the testimony was admissible as a recorded recollection. The court ruled it was admissible. Then, the forensic interviewer testified from memory without further objection, referring to her written report as needed. The video of the forensic interviewer's conversation with A.P. was not played for the jury.
¶15 Hearsay is an out-of-court statement that is inadmissible when offered to prove the truth of the matter asserted, unless the hearsay fits within a specified exception to the rule. Ariz. R. Evid. 801, 802. One such exception is for "recorded recollections," see Ariz. R. Evid. 803(5), which are admissible subject to three foundational requirements: (1) the recorded recollection must cover a matter the witness "once knew about but now cannot recall well enough to testify fully and accurately;" (2) the record was made by the witness while the witness's memory was fresh; and (3) the record accurately reflects the witness's knowledge. Ariz. R. Evid. 803(5)(A)-(C). If a record meets these three requirements, it may be read into evidence but is only admissible as an exhibit if the opposing party offers it. Id.
¶16 Arizona case law also provides for the admission of recorded recollections created by multiple witnesses. A multi-party recorded recollection is admissible if, in addition to the other foundational requirements, "each person in the chain testifies to performing his or her role accurately." State v. Giannotta, 248 Ariz. 82, 84, ¶ 11 (2019).
¶17 If a witness acknowledges the importance of providing correct information and testifies that they once knew but cannot now recall the information, the court may permit an inference that the recorded recollection is accurate. See id. at ¶ 12; see also Ariz. R. Evid. 803(5)(C). Additionally, accuracy may be inferred if the recorder "acknowledge[s] the general importance of recording key details in his written report and the specific importance of recording the correct [details] . . . for investigative purposes." Giannotta, 248 Ariz. at 84, ¶ 13. The original declarant can formally adopt the written record, or each participant can affirm the accuracy of his or her contribution. Id. at 85, ¶ 16. If these foundational requirements are met, the rules of evidence do not restrict which party reads the recorded recollection into the record. Id. at 84-85, ¶ 14; United States v. Hernandez, 333 F.3d 1168, 1177, 1179 (10th Cir. 2003).
¶18 Visorio argues that the interviewer's testimony was erroneously admitted because the State failed to first show that A.P. did not recall the events well enough to testify fully and accurately on her own behalf, and that the interviewer's testimony was prejudicial because it enhanced A.P.'s credibility. But A.P. testified in response to multiple questions that "some things . . . are harder to remember" and "details sometimes are hard to remember." Ultimately, A.P. testified that she could not recall an incident in which Visorio touched her breasts, and she had trouble distinguishing between two instances of sexual contact. A.P.'s stated lack of memory here satisfies the first prong of Rule 803(5). See Ariz. R. Evid. 803(5)(A).
¶19 The other foundational requirements for admission of a recorded recollection were similarly satisfied. A.P. testified that she recalled speaking to the forensic interviewer shortly after Visorio's arrest and that she told the truth at the time of the interview. Next, the forensic interviewer testified regarding her typical interview process: she asks questions of her interviewees and if "they don't understand, they. . . let [her] know, and [she] will ask the question in a different way." She also "repeat[s] back the things that they say, just to make sure [she] understand[s] everything that they mean," and if something is incorrect, they are "welcome to correct [her]." She also asks the interviewees to "promise to tell the truth." Finally, regarding her specific interview with A.P., the forensic interviewer testified that she "prepare[d] a report after [the] interview," and that the interview occurred "immediately after the disclosure" of the last incident with Visorio. Moreover, Visorio does not dispute that the testimony given by the forensic interviewer was accurate. This is significant given that interview was recorded and Visorio had access to the recorded interview. Cf. State v. Alatorre, 191 Ariz. 208, 212, ¶ 10 (App. 1998) (finding that a recording of a witness's statements is admissible where the recording "was faithful"), abrogated in part on other grounds by State v Ferrero, 229 Ariz. 239 (2012). Accordingly, and because both A.P. and the interviewer were present at trial and subject to cross-examination, the testimony was properly admitted as a jointly constructed recorded recollection. Id. at 211, ¶ 9; Giannotta, 248 Ariz. at 84, ¶ 11 (finding a "jointly constructed recorded recollection created by the victim and the officer" to be admissible because, in part, both testified and were subject to cross-examination).
¶20 Pursuant to our duty under Leon, 104 Ariz. at 300, we have reviewed the record for fundamental error. The record reflects that the superior court afforded Visorio all his constitutional and statutory rights, and that the proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. Visorio was present and represented by counsel at all stages of the proceedings except for hearings at which he waived his presence. The court conducted appropriate pretrial hearings, and the evidence presented at trial was sufficient to support the jury's verdicts. Visorio's sentences fall within the range prescribed by law, with proper credit given for presentence incarceration.
CONCLUSION
¶21 Visorio's convictions and sentences are affirmed. After the filing of this decision, defense counsel's obligations pertaining to Visorio's representation in this appeal will end after informing Visorio of the outcome of this appeal and his future options, unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). On the court's own motion, Visorio has 30 days from the date of this decision to proceed, if he desires, with a pro se motion for reconsideration or petition for review.