                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
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                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                JAMES GODREY MORPHIS, III, Appellant.

                             No. 1 CA-CR 18-0177
                               FILED 8-8-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-126427-001
                   The Honorable Dean M. Fink, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

DM Cantor, Phoenix
By Christine Whalin, Jazmyn Taitingfong
Counsel for Appellant
                           STATE v. MORPHIS
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Judge David D. Weinzweig joined.


H O W E, Judge:

¶1            James Godrey Morphis, III, appeals his convictions and
sentences for 14 crimes consisting of sexual abuse, child molestation, and
sexual conduct with a minor. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509 ¶ 93 (2013). Morphis lived with
his girlfriend and her daughter, M.M. On June 1, 2016, shortly after M.M.
turned 12 years old, Morphis picked her up from “summer camp” at a local
school and took her to a clothing store. When they arrived home, M.M.
locked herself in her room because she was “scared” that something “was
going to happen.” She later informed her mother that Morphis had been
touching her inappropriately, and her mother called the police. M.M.
underwent a forensic interview and medical examination on June 2.

¶3            During the forensic interview, M.M. stated that she was about
nine years old when Morphis started to touch her private parts. He would
put his hand up her shirt and touch her “chest.” He would also put his hand
in M.M.’s pants and rub “on the outside[] with his hands[,]” but did not
“put his finger inside” her vagina. She stated that he “started to do more
things” when she turned 11 years old. For example, one night while M.M.
was sleeping in her room, Morphis went naked into her room and pulled
down her shorts and underwear. He then touched M.M. with his “private
area” and then put it “inside” of M.M.’s “private area.” M.M. stated that
Morphis “basically” had “sex with [her]” and had done so more than once.
The interviewer asked her to elaborate what she meant by “sex.” M.M.
replied that Morphis stuck his “private area into [her] pee private” and
“then stuff came out, and it was in [her].” She then explained that the
“stuff” was “white” and “creamlike.” The interviewer asked M.M. to
describe another time that Morphis had sex with her. M.M. did not describe
an incident of penile-vaginal intercourse, but instead an incident where
Morphis rubbed his penis on her butt. Afterwards, M.M. stated that


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                           STATE v. MORPHIS
                           Decision of the Court

Morphis “licked” the inside of her “private area” on multiple occasions. She
stated that the last time Morphis touched her inappropriately was on May
27, 2016.

¶4            M.M.’s mother made a “confrontation call” to Morphis, which
the police recorded. She told Morphis that M.M. had claimed that he “stuck
[his] thing in her thing.” Morphis admitted that he had “touched [M.M.]
inappropriately” and that he was “very ashamed.” During the course of
their conversation, Morphis stated that he had (1) “licked” M.M.; (2) put his
fingers inside M.M.; (3) put his penis against M.M.’s vagina about three
times, but did not put it in her vagina; (4) laid M.M. down on a bed after a
shower and “licked” her; (5) put his finger in M.M.’s butt four to six times;
(6) “licked” M.M. less than ten times; (7) put his fingers in M.M.’s butt or
vagina eight times; (8) ejaculated one time while he put his penis against
M.M.’s vagina, but not in it; (9) made M.M. rub his penis with her hands
sometimes; (10) made M.M. “cum,” usually with his tongue; (11) made
M.M. “cum” with this tongue about three weeks ago; and (12) had sexual
activity with M.M. 18 to 20 times.

¶5            Morphis stated that he had committed these acts with M.M.
because of his “overwhelming desires,” which he described as an addiction.
After the confrontation call, Morphis sent M.M. a text stating, “I’m so sorry
for everything I’ve done. I love you so much and I promise you, I will never
touch you again. I hope some day you will be able to forgive me.” M.M.’s
mother sent Morphis a text stating that she loved him, and Morphis
responded, “I don’t know how you can. I hate myself.”

¶6            Morphis was subsequently indicted for two counts of sexual
abuse, seven counts of child molestation, and seven counts of sexual
conduct with a minor. Under Arizona Rule of Criminal Procedure 15.1 and
Arizona Rule of Evidence (“Rule”) 404, the State disclosed that “[a]ny
written or electronically recorded statements of any witnesses” and “[a]ny
written or electronically recorded statements of the defendant” may be
introduced into evidence.

¶7             Morphis was tried nearly two years later in February 2018.
M.M. testified at Morphis’s trial but stated that she could not remember
details involving the sexual contacts on at least three different occasions
during her testimony, and she omitted explanation of multiple charged
acts. In contrast, during the recorded interview, M.M. supplied many more
details concerning the charged acts. M.M. testified that she remembered the
events better when she was interviewed and that she told the truth during
the interview. The State subsequently asked to publish her recorded


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                           STATE v. MORPHIS
                           Decision of the Court

interview to the jury. Morphis objected, arguing that M.M.’s recorded
interview was not a “recorded recollection” under Rule 803(5). The court
granted the request over Morphis’s objection. Morphis objected once again,
arguing that the interview presented evidence of “other acts” that were
inadmissible under Rule 404. The trial court overruled the objection,
however, finding that M.M.’s statements did not constitute evidence of
other acts.

¶8            Morphis also objected to the admission of the confrontation
call. Because he was charged with only 16 instances of sexual contact, he
argued the other occasions discussed in the confrontation call constituted
inadmissible other-acts evidence under Rule 404. The trial court rejected his
argument, ruling that Rule 404 did not apply because Morphis
approximated the number of acts as opposed to specifically identifying
other acts.

¶9             A detective who searched Morphis’s phone after his arrest
testified that he discovered that the text message sent to M.M. expressing
regret over his actions was not in the phone’s memory. The detective
testified that a possible explanation for the missing message was that it had
been deleted. The State consequently requested a concealment jury
instruction. Over Morphis’s objection, the court granted the State’s request.
The court instructed the jury that

      you may consider any evidence of the defendant’s . . . hiding[]
      or concealing evidence, together with all the other evidence
      in the case. (You may also consider the defendant’s reasons
      for . . . hiding[] or concealing evidence.) . . .

¶10           During trial, Morphis requested that the court instruct the
jury that sexual interest was an element of the charged offenses. The court
denied his request. Morphis moved for a judgment of acquittal, and the
court granted Morphis’s motion on two charges for sexual conduct with a
minor. After trial, the jury convicted Morphis of the remaining charges. He
was sentenced to five consecutive terms of life in prison. Morphis timely
appealed.

                              DISCUSSION

¶11           Morphis argues that the trial court erred by (1) admitting in
evidence M.M.’s recorded interview as a “recorded recollection[,]”
(2) failing to exclude M.M.’s recorded interview statements and the
confrontation call because they contained evidence of “other acts” that were
inadmissible under Rule 404(b)–(c), (3) denying his motions for directed


                                     4
                            STATE v. MORPHIS
                            Decision of the Court

verdicts based on insufficient corpus delicti, (4) instructing the jury on flight
or concealment, and (5) not instructing the jury that sexual interest was an
element of the offenses.

              1. The Recorded Interview Was Admissible as a Recorded
              Recollection Under Rule 803(5).

¶12            We review a trial court’s evidentiary ruling for an abuse of
discretion. State v. Sanders, 245 Ariz. 113, 128 ¶ 58 (2018). Under Rule 803(5),
a recorded recollection may be read into evidence if the recording is (1) on
a subject that the witness once knew about but now cannot remember well
enough to testify fully and accurately, (2) was made by the witness when it
was fresh in the witness’s memory, and (3) accurately reflects the witness’s
knowledge.

¶13            Here, all three factors were sufficiently met. M.M. testified
that she could not remember details involving the sexual contacts on at least
three different occasions, and she omitted explanation of multiple charged
acts. M.M. also struggled to answer questions regarding the allegations
against Morphis. During the recorded interview, M.M. gave many more
details concerning the charged acts. Regarding the freshness of her
memory, M.M. testified that she remembered the events better when she
was interviewed. Regarding the accuracy of her recorded recollection, she
stated that she told the truth during the interview. The testimony she
provided also coincided with the statements she made during her recorded
recollection, bolstering the accuracy of the recorded recollection. Thus, the
publication of the recording was not an abuse of discretion.

¶14            Morphis contends that the State should have tried to refresh
M.M.’s memory with the forensic interview before seeking to admit it. But
Rule 803(5) does not require an attempt to refresh. See State v. Salazar-
Mercado, 234 Ariz. 590, 592 ¶ 4 (2014) (“If a rule’s language is plain and
unambiguous, we apply it as written without further analysis.”) Despite
this, Morphis relies on State v. Ortega, 220 Ariz. 320 (App. 2008) to support
his position. In Ortega, this Court stated that “[i]f the attempt to refresh the
witness’s recollection [under Rule 612] is unsuccessful, the writing may
then be read into the record [under Rule 803(5)], although it may not be
separately admitted into evidence.” Id. at 330 ¶ 33. Rule 803(5) was not at
issue in Ortega, and it did not hold that in addition to the requirements
outlined in Rule 803(5), an additional, unwritten requirement to refresh also
exists. Thus, the cited language is nothing more than nonbinding dicta. In
contrast, this Court in Goy v. Jones allowed the reading of a police officer’s
report to a jury under Rule 803(5) even though the record did not show that


                                       5
                             STATE v. MORPHIS
                             Decision of the Court

anyone had attempted to refresh the testifying witness’s recollection before
reading the report. 205 Ariz. 421, 422–24 ¶¶ 4–11 (App. 2003). This
argument is therefore unpersuasive.

¶15            Morphis next argues that the court erred when it concluded
that Rule 803(5)’s freshness prong was satisfied because the interview
included events that were three to five years old. The trial court had a
sufficient basis to find that the events were fresh in M.M.’s mind when she
was interviewed. The record shows that M.M. testified that the last time
Morphis inappropriately touched her was on May 27, 2016, and the June 2
interview occurred less than a week later. Additionally, Rule 803(5) does
not contain a time limitation regarding the freshness prong, and the trial
court has broad discretion over this matter. See United States v. Patterson, 678
F.2d 774, 779 (9th Cir. 1982) (“Broad discretion for the trial judge is clearly
intended under [Fed. R. Evid.] 803(5), as the advisory committee notes
indicate: ‘No attempt is made in the exception to spell out the method of
establishing the initial knowledge or the contemporaneity and accuracy of
the record, leaving them to be dealt with as the circumstances of the
particular case might indicate.’”); see also State v. Alatorre, 191 Ariz. 208, 212
¶ 10 (App. 1998) (upholding the trial court’s ruling admitting the victim’s
interview statements when “[t]he offenses occurred between November 1,
1994, and March 17, 1995[,]” and the interview occurred in “early April
1995”), abrogated on other grounds by State v. Ferrero, 229 Ariz. 239 (2012).1

              2. M.M.’s Interview Statements and the Confrontation Call
              Were Admissible

¶16            Morphis argues that the trial court abused its discretion in
admitting M.M.’s interview because various statements in the interview
were inadmissible “other acts” under Rule 404. Morphis also contends that
the trial court abused its discretion in admitting the confrontation call. He
argues that because he was charged with 16 specific instances of sexual
contact but the confrontation call discusses other occasions of sexual



1      Morphis also argues that because M.M. stated that the interview
occurred on June 1 rather than June 2, the trial court could not be sure that
M.M. testified to the same interview. The court noted, however, that “there
[was] absolutely no basis . . . to believe that there was a separate interview
done on June 1st” and that neither party could “offer any information to
indicate there was a separate interview done.”




                                        6
                            STATE v. MORPHIS
                            Decision of the Court

contact, evidence of the other occasions constituted evidence of “other acts”
that was inadmissible under Rule 404.2

¶17            Rule 404(b) provides that “[e]xcept as provided in Rule 404(c)
evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.” Rule
404(c) provides that other acts may be admitted in cases alleging sexual
offenses “to show that the defendant had a character trait giving rise to an
aberrant sexual propensity to commit the offense charged.” To admit
evidence of another act in sexual misconduct cases, the court must find that
(1) the evidence is sufficient to allow the jury to find that the defendant
committed the other act, (2) the other act provides a reasonable basis to infer
that the defendant has a character trait showing a sexual propensity to
commit the charged crime, and (3) the evidentiary value of the other act is
not substantially outweighed by unfair prejudice. Ariz. R. Evid.
404(c)(1)(A)–(C). The evidence supporting a finding that a defendant
committed the other act must be clear and convincing. State v. Aguilar, 209
Ariz. 40, 49 ¶ 30 (2004).

¶18            M.M.’s interview statements were admissible under Rule
404(c). She made statements that Morphis had committed sexual offenses
against her, and those statements alone were sufficient to provide clear and
convincing evidence that the acts occurred. See State v. Vega, 228 Ariz. 24,
29 ¶ 19 n.4 (App. 2011) (“The testimony of the victim is a sufficient basis on
which to conclude by clear and convincing evidence that the incident
occurred.”). M.M.’s statements also provided a reasonable basis to infer that
Morphis had a character trait giving rise to an aberrant sexual propensity
to commit the charged sexual offenses because evidence of a prior similar
sex offense committed against the same victim may show a defendant’s
sexual propensity toward the particular victim. See State v. Herrera, 232 Ariz.
536, 547 ¶ 28 (App. 2013). Further, the probative value of M.M.’s statements
was not outweighed by the danger of unfair prejudice because they helped

2       Morphis claims that M.M.’s interview statements and confrontation
call were undisclosed Rule 404 character evidence. The record, however,
shows that the State’s disclosure under Arizona Rule of Criminal Procedure
15.1 disclosed both forms of evidence. The State’s disclosure specifically
stated that under Arizona Rule of Criminal Procedure 15.1 and Rule 404,
the State gave notice that it “may introduce into evidence . . . any written or
electronically recorded statements of any witnesses” and “any written or
electronically recorded statements of the defendant.” M.M.’s interview
statements fell under “statements of any witnesses” and the confrontation
call fell under “statements of the defendant.”


                                      7
                            STATE v. MORPHIS
                            Decision of the Court

establish Morphis’s propensity to engage in sexual contact with M.M.,
supported M.M.’s limited ability to testify at trial, and supported her
credibility. As such, the court did not err in admitting M.M.’s interview
statements.

¶19           Regarding the confrontation call, the record demonstrates
that the requirements under Rule 404(c) were met. Concerning the proof
supporting the acts, Morphis himself provided the evidence. M.M. also
corroborated Morphis’s statements. These sexual acts involved a
prepubescent minor, indicating Morphis had a character trait giving rise to
an aberrant sexual propensity. While Morphis argues that the admission of
his statements caused unfair prejudice, we disagree. These other acts were
similar to the charged offenses, frequent, and not remote in time. See Ariz.
R. Evid. 404(c)(1)(C). The admission of these alleged other acts—albeit
prejudicial—was not unfair. Thus, the court did not err in admitting the
confrontation call.

              3. Sufficient Corpus Delicti Existed to Use Morphis’s
              Statements as a Basis for His Convictions

¶20           Morphis argues that the court erred by not granting his
request for directed verdicts for three counts that alleged oral-vaginal
contact with M.M. after a shower, digital penetration of M.M.’s anus, and
causing M.M. to touch his penis. He contends that his conviction for these
counts were based on insufficient corroborating evidence. We review
whether a court abused its discretion when ruling on the evidentiary
sufficiency of corpus delicti. State v. Carlson, 237 Ariz. 381, 387 ¶ 7 (2015).

¶21           To prevent convictions based solely on uncorroborated
statements, the State—if it introduces a defendant’s confession—must
present evidence corroborating the confession. Id. at ¶ 8. “The standard for
the corroborating evidence is not high.” Id. The corroborating evidence
must enable jurors to reasonably infer that the charged crime actually
occurred. Id. Further, “. . . when a defendant confesses to several related
crimes, independent evidence that establishes the commission of the closely
related crimes may suffice to corroborate the confession as a whole . . . .”Id.
at 388 ¶ 11.

¶22            Here, Morphis confessed to committing—on multiple
occasions—sexual abuse, child molestation, and sexual conduct with a
minor. M.M. provided independent evidence that Morphis had committed
all three types of crimes. Morphis, however, contends that these crimes are
not sufficiently related because the crimes occurred over a number of years.



                                      8
                            STATE v. MORPHIS
                            Decision of the Court

He cites two cases: State v. Carlson, 237 Ariz. 381 (2015) and State v. Morgan,
204 Ariz. 166 (App. 2002). Both opinions analyze whether crimes supported
by independent evidence were closely related to the crimes the defendants
had confessed to committing. Carlson, 237 Ariz. at 388–89 ¶¶ 11–14; Morgan,
204 Ariz. at 172–73 ¶ 23. These cases, however, do not support his
argument. While the Carlson decision considered the crimes’ temporal
proximity, neither of the opinions held that crimes are not closely related
unless committed in close temporal proximity to one another. 237 Ariz. at
388–89 ¶ 14; see Morgan, 204 Ariz. at 172–73 ¶ 23. In Morphis’s case, the 14
crimes involved similar acts of sexual activity committed by the same
person against the same victim, establishing that the crimes were closely
related. Although the victim did not specifically mention the oral-vaginal
contact after the shower and two other acts Morphis confessed to
committing, her statements and testimony established the commission of
closely related crimes. Therefore, his confession is corroborated as a whole.

              4. The Court Did Not Abuse Its Discretion By Instructing
              the Jury on Concealment

¶23           Morphis argues that insufficient evidence supported the
concealment      instruction    because     the    detective     testified    on
cross-examination that Morphis’s text to M.M. might have disappeared
from the phone’s memory for innocent reasons. We review the provision of
a jury instruction for abuse of discretion. State v. Solis, 236 Ariz. 285, 286 ¶
6 (App. 2014).

¶24            The court may provide a concealment instruction if the
defendant’s actions could be read as revealing a consciousness of guilt. State
v. Weible, 142 Ariz. 113, 116 (1984). Here, the detective’s testimony
established that one explanation for the missing text message was that the
message had been deleted. This evidence alone could be read to indicate a
consciousness of guilt. Although Morphis argues that other non-
incriminating reasons might have been present, an alternative explanation
does not preclude the court from providing a concealment instruction. See
State v. Parker, 231 Ariz. 391, 404 ¶ 50 (2013). The alternative explanation
created a factual question for the jury to decide. Id. Thus, we find no error.

              5. The Court Did Not Unconstitutionally Shift the Burden
              of Proof

¶25           Morphis argues that the trial court’s decision to not instruct
the jurors that sexual interest was an element of the charged offenses was
unconstitutional. We review questions of statutory interpretation and



                                       9
                           STATE v. MORPHIS
                           Decision of the Court

constitutional issues de novo. State v. Holle, 240 Ariz. 300, 302 ¶ 8 (2016).
Our supreme court has held that sexual interest is not an element of child
molestation or sexual abuse. Id. at 304 ¶ 19. We are bound by that decision.
State v. Smyers, 207 Ariz. 314, 318 ¶ 15 (2004). As for the other charges,
sexual interest is not an element of sexual conduct with a minor. A.R.S.
§ 13–1405(A).

¶26           Even if sexual interest were an element of the charged
offenses, no reasonable juror could have concluded that the offenses were
not committed with sexual interest. Morphis admitted he sexually touched
M.M. numerous times, and he explained that the sexual contact was due to
an overwhelming desire that resembled an addiction. Any possible error
would have been harmless.

                              CONCLUSION

¶27          For the foregoing reasons, we affirm.




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




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