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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                          DAVID PONCE, Appellant.

                             No. 1 CA-CR 17-0119
                               FILED 9-6-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-001572-001
                  The Honorable Gregory Como, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Elizabeth B. N. Garcia
Counsel for Appellee

Stephen M. Johnson PC, Phoenix
By Stephen M. Johnson
Counsel for Appellant
                             STATE v. PONCE
                            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 Peter B. Swann joined.


H O W E, Judge:

¶1            David Ponce appeals his convictions and sentences for
molestation of a child, sexual conduct with a minor, sexual exploitation of
a minor, furnishing obscene or harmful items to a minor, aggravated
assault, and kidnapping. 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). In March 2013, Ponce’s
16-year-old daughter, K.P., confided to her mother (“Mother”) that Ponce
had repeatedly sexually abused her when she was 11 and 12 years old.
Mother immediately removed K.P. from the family residence and
accompanied her to her paternal grandparents’ home. Shortly after they
arrived, Mother relayed K.P.’s sexual abuse allegations to her in-laws and
K.P. told her grandmother and aunt that she had documented the abuse in
a notebook diary.

¶3            At the grandmother’s prompting, Mother contacted the
police. After K.P. spoke with an officer and submitted a written account of
the abuse, Mother obtained an order of protection against Ponce. The next
morning, Mother traveled with K.P. and her younger daughter, E.P., to
California to stay with her parents while waiting for service of the
protection order.

¶4           When Mother, K.P., and E.P. returned to the family residence
about a week later, they found that it had been “ransacked.” Once Mother
contacted the police, she and her daughters surveyed the home and
discovered that numerous items were missing, including K.P.’s diary.

¶5            In the weeks that followed, Mother divulged K.P.’s abuse
allegations to a family friend. When this friend later discussed the reported
abuse with her own daughter, B.B., she learned that B.B. had a sexual
relationship with Ponce several years earlier when B.B. was only 15 years
old. Meanwhile, E.P. disclosed to a counselor that Ponce had repeatedly


                                       2
                            STATE v. PONCE
                           Decision of the Court

compelled her to watch child pornography with him when she was a young
child.

¶6            As part of an ensuing police investigation, officers executed a
search warrant on the paternal grandparents’ home, where Ponce had
relocated. They seized several computers and other electronic devices that
had been removed from the family residence, but did not locate K.P.’s diary.
Through subsequent forensic analysis of the devices, officers recovered
numerous videos and images, including several photographs displaying
the genitals of unidentified females.

¶7           The State charged Ponce with six counts of sexual conduct
with a minor (Counts 1, 3–4, and 8–10: Victims K.P. and B.B.), two counts
of molestation of a child (Counts 2 and 7: Victim K.P.), one count of
aggravated assault (Count 5: Victim K.P.), one count of sexual exploitation
of a minor (Count 6: Victim K.P.), four counts of furnishing obscene or
harmful items to a minor (Counts 11–13, 15: Victim E.P.), and one count of
kidnapping (Count 14: Victim E.P.).1 The State also alleged numerous
aggravating circumstances.

¶8            After trial, the jury found Ponce guilty as charged. The trial
court sentenced Ponce to presumptive terms on each count, including four
consecutive life sentences. Ponce timely appealed.

                              DISCUSSION

             1. Preclusion of Email Evidence

¶9            Ponce argues that the trial court improperly precluded
evidence of an email that K.P. purportedly sent to her brother and sister-in-
law, A.P. Because the email stated that K.P.’s sexual abuse allegations were
false, Ponce contends that the court’s preclusion ruling deprived him of his
constitutional right to present a complete defense. He further asserts that
the court improperly curtailed his cross-examination of the lead detective
about the police investigation into the email’s source.

¶10          Before trial, the State moved to preclude any evidence
regarding the email. The State, arguing lack of foundation, explained that
(1) the email was sent from K.P.’s maternal grandmother’s account,

1     As set forth in the indictment, the State also charged Ponce with four
counts of surreptitiously photographing, videotaping, filming or digitally
recording (Counts 16–19: Victim Mother), but Ponce moved to sever those
counts for trial, which the trial court granted.


                                     3
                            STATE v. PONCE
                           Decision of the Court

(2) attempts to identify the associated IP address were unsuccessful, (3) the
service provider had erased the login data entered at the relevant time, and
(4) K.P. denied sending the email. In addition, the State argued that the
email’s content belied any claim that K.P. had authored it. First, the email
stated, “I just didn’t know how else to get a hold of you,” but K.P. and A.P.
regularly spoke over the phone and exchanged text messages. Second, the
email contained inaccurate information about Mother’s move to a new
house with her daughters. Third, the email’s writing style differed
markedly from other writings K.P. authored around the same time.

¶11           At a hearing on the State’s motion, the trial court agreed that
“serious questions [existed] about whether the defense w[ould] be able to
lay the foundation to get that email into evidence.” Defense counsel
acknowledged that he may be unable to do so by stating, “[i]f I can’t lay the
foundation, I can’t lay the foundation[.]” Defense counsel nonetheless
argued that he could refer to the email during his opening statement based
on “a good-faith [belief] that the evidence w[ould] come in[.]” As support
for this claim, defense counsel suggested that Ponce might testify that the
email reflects K.P.’s tone. After hearing from the parties, the trial court
warned defense counsel to “tread very carefully” if he elected to mention
the email during opening statements and further admonished that no
discussion “about the contents” of the email could be presented to the jury
absent a subsequent finding of admissibility.

¶12            As part of his opening statement, defense counsel referred to
the email, explaining that K.P. purportedly sent it, but that Mother claimed
Ponce authored it when she presented it to the police. Defense counsel also
told the jurors that the email stated that K.P.’s sexual abuse allegations
against Ponce were false. When defense counsel questioned K.P. about the
email on cross-examination, K.P. acknowledged that she had “set up” her
maternal grandmother’s email account and was aware that an email
relevant to the case had been sent from that address. K.P. explained that the
email had been sent to her brother and A.P. and that Mother had provided
her with a copy, but K.P. denied that she had sent the email. Defense
counsel likewise raised the email while cross-examining Mother, asking
when she had received it. After sustaining the State’s objection, the court
“cautioned” defense counsel not to refer to the contents of the email. Mother
then testified that she believed either Ponce or a member of his family had
sent the email.

¶13          The next day, the court addressed the email’s admissibility
and found that no evidence was presented that would allow a jury to
reasonably conclude the email was authentic. In reaching this conclusion,


                                     4
                             STATE v. PONCE
                            Decision of the Court

the court specifically noted that (1) the email was not sent from K.P.’s email
account, (2) the email contained inaccurate factual information, and (3) no
other evidence corroborated that K.P. wrote the email.

¶14           Later, the State objected when defense counsel questioned the
lead detective about police efforts to ascertain who had sent the email.
Given its previous ruling that defense counsel could not reveal the contents
of the email to the jury, the court sustained the State’s objection and held
that the nature of any police investigation relating to the email was
irrelevant and potentially confusing.

                     1a. Lack of Foundation

¶15           We review a trial court’s evidentiary ruling for an abuse of
discretion. 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).

¶16             “[A]s a condition precedent to admissibility,” a party seeking
to introduce evidence must produce proof “sufficient to support a finding
that the matter in question is what its proponent claims.” State v. George, 206
Ariz. 436, 446 ¶ 30 (App. 2003). “[T]his standard is satisfied if the evidence
can be identified by its distinctive characteristics taken in conjunction with
the circumstances of the case.” Id. Arizona Rule of Evidence 901’s
authentication requirement may be satisfied by circumstantial evidence.
State v. Best, 146 Ariz. 1, 2 (App. 1985); see also State v. Adamson, 136 Ariz.
250, 257 (1983) (holding that a typewritten note with a typewritten
signature could be authenticated by circumstantial evidence). In ruling on
admissibility, “[t]he question for the trial judge is not whether the evidence
is authentic, but [] whether evidence exists from which the jury could
reasonably conclude that it is authentic.” State v. Wooten, 193 Ariz. 357, 368
¶ 57 (App. 1998).

¶17           Applying these principles here, Ponce failed to present
sufficient evidence from which the jury could have reasonably concluded
that the email was authentic. First, the email had not been sent from K.P.’s
own email account. Second, the parties do not dispute that the email
contained inaccurate information about Mother and her daughters’
relocation to a new home. Third, contrary to the email’s representations,
K.P.’s contact with her brother and sister-in-law was not limited and she
had regularly communicated with her sister-in-law by phone. Finally, K.P.
unambiguously denied authoring the email. Cf. State v. Damper, 223 Ariz.



                                      5
                             STATE v. PONCE
                            Decision of the Court

572, 577 ¶ 19 (App. 2010) (concluding that sufficient evidence existed to
properly authenticate a text message as sent from a certain individual based
on the recipient’s testimony that she often communicated with that
individual by text message, had saved the individual’s cell phone number
in her own cell phone, denominated by a nickname, and when the text
message at issue arrived, her phone displayed that nickname as the sender
of the message). Although defense counsel proffered that Ponce might
testify that he recognized the email’s tone as K.P.’s writing, the trial court
did not abuse its discretion by finding such self-serving identification
testimony would fail to provide sufficient circumstantial evidence to
authenticate. Therefore, a jury could not reasonably conclude that K.P.
authored the email.

                     1b. Limits on Cross-Examination

¶18           Trial courts “retain wide latitude to impose reasonable limits
on cross-examination to prevent confusion of the issues or interrogation
that is only marginally relevant.” State v. Buccheri-Bianca, 233 Ariz. 324, 328
¶ 8 (App. 2013). Accordingly, a court’s ruling restricting cross-examination
will be upheld absent an abuse of discretion. State v. Sucharew, 205 Ariz. 16,
21 ¶ 9 (App. 2003). Generally, relevant evidence is admissible unless it is
otherwise precluded by the federal or state constitutions, an applicable
statute, or rule. Ariz. R. Evid. 402. Evidence is relevant if it has “any
tendency” to make a fact of consequence in determining the action “more
or less probable than it would be without the evidence[.]” Ariz. R. Evid. 401.
Relevant evidence may be excluded, however, if its probative value “is
substantially outweighed” by a danger of unfair prejudice, confusion of the
issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence. Ariz. R. Evid. 403.

¶19            Here, once the trial court determined that Ponce had failed to
authenticate the email, the police investigation into the source of the email
became a collateral matter that could potentially confuse the jury. See
Buccheri-Bianca, 233 Ariz. at 328 ¶ 8 (explaining that a trial court may limit
questioning that is “collateral to the issues at trial and would potentially
confuse the jury[]”). Therefore, under these circumstances, the court did not
abuse its discretion by curtailing defense counsel’s cross-examination of the
detective regarding his investigation into the source of the email.

              2. Preclusion of Polygraph Evidence

¶20         Ponce contends that the trial court improperly precluded
evidence regarding polygraph tests that were either ordered for or



                                      6
                             STATE v. PONCE
                            Decision of the Court

performed on him and Mother as part of a 1999 custody evaluation. He
argues that this preclusion ruling deprived him of his constitutional right
to present a full defense. He is incorrect.

¶21          Before trial, the State moved to preclude any evidence of
exams conducted on Ponce and Mother during the 1999 custody evaluation.
After hearing argument on the motion, the trial court precluded any
evidence that a polygraph test was ordered or conducted as part of that
proceeding.

¶22           A defendant has a due process right to have “a meaningful
opportunity to present a complete defense.” State v. Lehr, 227 Ariz. 140, 150
¶ 39 (2011). This right to present a complete defense “is not unlimited,”
however, and “is subject to reasonable restrictions[.]” United States v.
Scheffer, 523 U.S. 303, 308 (1998). Because polygraph examinations are
considered “unreliable,” Arizona law is well-settled that absent a
stipulation, any reference to a polygraph test is “inadmissible for any
purpose[.]” State v. Hoskins, 199 Ariz. 127, 144 ¶ 69 (2000). In this case, the
parties did not stipulate to the admission of evidence regarding polygraph
exams. Therefore, the trial court did not abuse its discretion by excluding
that evidence.

              3. Limits on Scope of Opening Statements

¶23           Ponce argues that the trial court improperly restricted his
opening statements by precluding him from discussing the email and
polygraph evidence. A defendant is entitled to make an opening statement
advising the jury of the facts he will rely on, and thereby provide context
for the evidence to be admitted at trial. Ariz. R. Crim. P. 19.1(b)(3); see also
State v. Pedroza-Perez, 240 Ariz. 114, 116 ¶ 9 (2016). Stated differently, an
“opening statement affords the defense an opportunity to explain [its]
theory of the case, to provide the jury an alternative interpretive matrix by
which to evaluate the evidence, and to focus the jury’s attention on the
weaknesses of the government’s case.” Id.

¶24           “Although a defendant enjoys considerable latitude in
making an opening statement, it should not include statements which will
not or cannot be supported by proof.” Id. at ¶ 10 (internal citations omitted).
“Specific evidence may be referenced in the opening statement as long as
the proponent has a good faith basis for believing the proposed evidence
exists and will be admissible.” Id. at ¶ 12. The trial court “may require a
party to identify the good faith basis for the proffered evidence, but may
not impose a more exacting standard for inclusion in the opening



                                       7
                             STATE v. PONCE
                            Decision of the Court

statement.” Id. We review a trial court’s ruling restricting the content of
opening statements for an abuse of discretion. Id. at ¶ 8.

¶25            With respect to Ponce’s email claim, the record reflects that
the trial court did not preclude defense counsel from discussing the email
during opening statements. Rather, the court warned defense counsel to
“tread carefully” when referring to the email, and admonished him to avoid
mentioning the email’s contents. Notwithstanding this exhortation, defense
counsel informed the jurors that K.P. purportedly wrote an email denying
her abuse allegations. The State did not object to this portion of defense
counsel’s opening remarks, however, and the court did not strike it.
Therefore, on this record, the court appropriately exercised its discretion
regarding defense counsel’s opening statement.

¶26           Turning to the polygraph evidence, the trial court indeed
precluded any reference to a polygraph test during opening statements. But
because evidence regarding such a test was inadmissible absent a
stipulation—and the parties did not stipulate to its admission—the court
did not abuse its discretion by limiting defense counsel’s opening
statements in that respect.

              4. Admission of Detective’s Testimony

¶27           Ponce argues that the trial court improperly permitted the
lead detective to testify that A.P. no longer supported him. We generally
review a trial court’s evidentiary rulings for an abuse of discretion. Ellison,
213 Ariz. at 129 ¶ 42. We review de novo, however, evidentiary rulings
implicating the Confrontation Clause. Id.

¶28             The lead detective mentioned that he had interviewed A.P. in
his direct testimony. On cross-examination, defense counsel questioned the
detective extensively about A.P., and elicited testimony that A.P. had
testified on Ponce’s behalf during a 2013 divorce proceeding. On redirect,
the prosecutor asked the detective whether A.P. had “actually” testified on
Ponce’s “behalf.” The detective responded that A.P. had testified in support
of Ponce “because at that time she believed him[.]” Defense counsel
objected to the latter part of this response and the court struck that portion
of the detective’s testimony. The prosecutor then asked the detective
whether A.P. continued to support Ponce. At that point, defense counsel
objected again and the parties approached the bench. Although defense
counsel agreed that A.P.’s continued support or lack thereof was relevant,
he challenged the detective’s ability to testify on the matter, and argued that
the State needed to call A.P. as a witness to present that evidence.



                                      8
                             STATE v. PONCE
                            Decision of the Court

Specifically, defense counsel argued that the detective lacked personal
knowledge of A.P.’s allegiances, and therefore any testimony he provided
would necessarily be “entirely based on . . . hearsay[.]”

¶29            After hearing from the parties, the trial court overruled
defense counsel’s objection, finding that the detective had personal
knowledge of A.P.’s lack of support based on his interview with her.
Accordingly, when the prosecutor resumed redirect, he again asked the
detective about his “understanding” of A.P.’s support for Ponce at the time
of the interview. When the detective stated that “[s]he told me she did not
believe,” defense counsel objected. The court sustained the objection and
admonished the detective not to relay any statements A.P. made during the
interview. The prosecutor then asked whether A.P.’s initial support of
Ponce had “changed” by the time of the interview, and the detective
responded, “[i]t had.”

¶30           As set forth in Arizona Rule of Evidence 602, a witness “may
testify to a matter only if evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter.”
Accordingly, “lay testimony may include inferences or opinions” only if the
witness perceived or observed that which he testifies to. State v. Ayala, 178
Ariz. 385, 387–88 (App. 1994). On this record, the detective’s opinion
testimony about A.P.’s allegiance was not based on events that he had
perceived or observed, but on her statements. That is, the detective did not
testify that he formed his opinion after witnessing A.P.’s attitude or
behavior toward Ponce; rather, he reached his conclusion based on the
content of her interview.

¶31            Out-of-court statements offered to prove the truth of the
matter asserted are generally inadmissible absent a hearsay exception. Ariz.
R. Evid. 801(c), 802. The Confrontation Clause bars testimonial hearsay—
including statements given in response to formal police questioning—when
the declarant does not appear at trial, unless the declarant is unavailable
and the defendant had a prior opportunity to cross-examine the declarant.
Crawford v. Washington, 541 U.S. 36, 59 (2004). Although the detective did
not directly recount an out-of-court statement, he implied that A.P. had told
him that she no longer believed or supported Ponce. Because nothing
shows that A.P. was unavailable to testify, this evidence was testimonial
hearsay admitted in violation of Ponce’s Confrontation Clause rights.

¶32           A Confrontation Clause violation, however, is subject to
harmless error review. State v. Parks, 211 Ariz. 19, 31 ¶ 54 (App. 2005). Error
is harmless if we can conclude beyond a reasonable doubt that it did not


                                      9
                             STATE v. PONCE
                            Decision of the Court

contribute to or affect the verdict. State v. Henderson, 210 Ariz. 561, 567 ¶ 18
(2005). To assess whether a Confrontation Clause violation is harmless, we
consider several factors, including “the importance of the witness’[s]
testimony in the prosecution’s case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or contradicting the
testimony of the witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the
prosecution’s case.” Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).

¶33            Applying this standard here, the record reflects that the
detective’s testimony regarding A.P.’s loyalties was not significant to the
prosecution’s case. Indeed, the prosecutor elicited only a passing reference
to the detective’s interview with A.P. on direct examination. Defense
counsel questioned the detective extensively about A.P. on cross-
examination, however, and elicited testimony that A.P. had testified on
Ponce’s behalf in 2013. This line of questioning placed A.P.’s allegiance in
the case at issue, and the State attempted to refute the suggestion that A.P.
supported Ponce in the present matter by introducing evidence that her
support had waned. Importantly, this evidence did not directly relate to
any element of the charged offenses and the State did not affirmatively use
it to prove its case. Therefore, given the collateral nature of the challenged
evidence and the overall strength of the State’s case, the court’s erroneous
admission of this portion of the detective’s testimony was harmless beyond
a reasonable doubt.

              5. Amendment to the Indictment

¶34           Ponce contends that the trial court improperly granted the
State’s motion to amend Counts 5 and 7. He argues that the amendments
substantively changed the charges and did not constitute the mere
correction of technical errors. We review the trial court’s amendment of an
indictment for an abuse of discretion. State v. Johnson, 198 Ariz. 245, 247 ¶ 4
(App. 2000).

¶35           After presenting its case-in-chief, the State moved to amend
several counts of the indictment. For Counts 1–8, involving victim K.P., the
State moved to amend the associated dates of commission for each count to
“December 8, 2007 to December 8, 2009,” consistent with K.P.’s testimony
that Ponce committed all the acts of sexual abuse when she was 11 and 12
years old. In addition, the State moved to modify the “to wit” language on
Count 5, which initially read, “the time her sister was in the
hospital/rubbing butt” to add the qualifying words “in the bedroom,” such
that the amended Count 5 alleged “the time her sister was in the


                                      10
                             STATE v. PONCE
                            Decision of the Court

hospital/rubbing butt in the bedroom.” Likewise, the State moved to
amend the “to wit” language of Count 7, which initially read, “the time her
sister was in the hospital/rubbing vagina” to add the qualifying words “in
the shower,” such that the amended Count 7 alleged “the time her sister
was in the hospital/rubbing vagina in the shower.” In moving to amend
the “to wit” language, the State explained that K.P. had testified to two
incidents that were consistent with the offense set forth in Count 5 and to
two incidents that were consistent with the offense set forth in Count 7. The
State asserted that the greater specificity afforded by the amendments
would avert any potential claim of duplicitous charges. When invited to
respond, defense counsel stated that although he did not object to the date
amendments, which conformed to the evidence at trial, he did object to the
proposed modification of the “to wit” language, arguing that such changes
“would inappropriately bolster” the charges. The trial court granted the
motion to amend the date ranges for Counts 1–8 and took the additional
requests to amend the “to wit” language for Counts 5 and 7 under
advisement. The following day, the court granted the State’s motion to
amend Counts 5 and 7, finding that the amendments conformed to the
evidence and did not change the nature of the offenses or otherwise
prejudice Ponce.

¶36           A grand jury indictment “limits the trial to the specific charge
or charges” set forth in the indictment and absent a defendant’s consent, “a
charge may be amended only to correct mistakes of fact or remedy formal
or technical defects.” Ariz. R. Crim. P. 13.5(b). A defect is formal or technical
“when its amendment does not operate to change the nature of the offense
charged or to prejudice the defendant in any way.” Johnson, 198 Ariz. at 247
¶ 5 (quoting State v. Bruce, 125 Ariz. 421, 423 (1980)). To determine whether
the offense was changed or the defendant prejudiced, we consider whether
the amendment violated the defendant’s right to (1) notice of the charges
against him and (2) double jeopardy protection from subsequent
prosecution on the original charge. Id. at 248 ¶ 8. Although the defendant
bears the burden of showing actual prejudice, “[i]f either right has been
violated, the amendment has not corrected a technical defect and is
impermissible.” Id.

¶37           Relying on Johnson and State v. Mikels, 119 Ariz. 561 (App.
1978), Ponce argues that the amendments in this case “sought to do much
more than correct a mistake or remedy a formal defect.” The cases Ponce
cites, however, are inapposite. In Johnson, the defendant was brought to trial
on charges that he had digitally penetrated the victim’s vagina and caused
the victim to touch his penis with her hand. 198 Ariz. at 247 ¶ 2. At trial,
however, the victim testified that the defendant had penetrated her vagina


                                       11
                              STATE v. PONCE
                             Decision of the Court

with his penis and forced her to place her mouth on his penis. Id. at ¶ 3.
After the State rested, the trial court granted the State’s motion to amend
the counts to allege penile penetration rather than digital and oral contact
rather than manual. Id. On appeal, this court held that the trial court
improperly amended the charges, thereby causing impermissible prejudice
to the defendant. Id. at 248 ¶ 9. Specifically, we held the defendant “was not
given adequate notice of the charges with an ample opportunity to defend
against them.” Id. (internal quotes omitted).

¶38            In Mikels, the defendant was charged with committing an act
of sodomy in a shower stall of a jail cell. 119 Ariz. at 562. At trial, the victim
testified that the defendant had committed one act of sodomy against him
in the shower and a second act of sodomy against him in a bunk in the jail
cell. Id. During closing argument, “the prosecutor asked the jury to find [the
defendant] guilty of the act of sodomy which occurred in the bunk,” rather
than the one that took place in the shower. Id. Although “there [was] no
variance between the allegations on the face of the indictment and the
proof[,]” this Court vacated the conviction, holding that the defendant “was
tried for an offense which was not presented to the grand jury.” Id.

¶39           Unlike the facts in Johnson, here, the charges set forth in the
original indictment placed Ponce on notice of the precise offenses for which
he was later tried and convicted. And unlike Mikels, nothing shows that
Ponce was tried and convicted of offenses other than those presented to the
grand jury. Although the original charges for Counts 5 and 7 were detailed,
based on the evidence presented at trial, each count nonetheless
encompassed two distinct criminal acts. To ensure that the jury reached a
unanimous verdict, the trial court properly permitted the State to amend
the charges by adding greater specificity, thereby negating the possibility
that jurors would use different acts to convict Ponce of a single offense. For
these reasons, the trial court did not abuse its discretion by granting the
State’s motion to amend the charges to conform to the evidence.

              6. Denial of Motion for Judgment of Acquittal

¶40           Ponce contends that the trial court improperly denied his
motion for judgment of acquittal, arguing that insufficient evidence
supports his convictions. We review de novo a trial court’s ruling on a Rule
20 motion. State v. West, 226 Ariz. 559, 562 ¶ 15 (2011). “[T]he relevant
question is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at ¶ 16 (quoting State
v. Mathers, 165 Ariz. 64, 66 (1990)). Sufficient evidence upon which a


                                       12
                             STATE v. PONCE
                            Decision of the Court

reasonable jury can convict may be direct or circumstantial. Id. A judgment
of acquittal is appropriate only when “there is no substantial evidence to
support a conviction.” Ariz. R. Crim. P. 20(a)(1). In reviewing the
sufficiency of the evidence, we neither reweigh conflicting evidence nor
assess the credibility of witnesses. See Buccheri-Bianca, 233 Ariz. at 334 ¶ 38.
Because each count is supported by sufficient evidence, the trial court did
not err in denying Ponce’s Rule 20 motion.

                     6a. Counts 1, 3, 4, 8, 9, and 10—Sexual Conduct with
                         a Minor

¶41           Under A.R.S. § 13–1405(A), “[a] person commits sexual
conduct with a minor by intentionally or knowingly engaging in sexual
intercourse or oral sexual contact with any person who is under eighteen
years of age.” As defined by statute, “‘sexual intercourse’ means
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).

¶42            With respect to Counts 1, 3, and 4, Ponce argues that the lack
of any corroborating evidence renders K.P.’s testimony insufficient to
support the convictions. In addition, Ponce argues that B.B.’s testimony was
insufficient to support the convictions for Counts 9 and 10 because her
memory was admittedly hindered by years of substantial drug use. The
record reflects, however, that K.P. and B.B.’s testimony established each of
the elements of the offense for each count. K.P. testified that the following
acts occurred before her 13th birthday:

             Count 1—After being invited to swim at a friend’s house, K.P.
and Ponce returned home for swimsuits and Ponce removed his clothing,
lied down, and physically compelled K.P. to perform oral sex on him.

              Count 3—While driving K.P. home after attending a school
baseball game together, Ponce pulled over and compelled K.P. to perform
oral sex on him.

               Count 4—While E.P. was hospitalized, Ponce removed K.P.’s
clothing, lied down with her, and performed oral sex on her.

             Count 8—After being invited to swim at a friend’s house, K.P.
and Ponce returned home for swimsuits, lied down, and Ponce physically
compelled K.P. to manually touch his penis.




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                            STATE v. PONCE
                           Decision of the Court

¶43            Unlike K.P., B.B. characterized her sexual contact with Ponce
as a consensual “affair.” Nonetheless, she testified that her “sexual
relationship” with Ponce occurred when she was only 15 and 16 years old.
She testified that the following acts occurred:

            Count 9—After providing B.B. alcohol, Ponce joined B.B. in a
shower and then performed oral sex on her.

              Count 10—While seated in Ponce’s truck, B.B. performed oral
sex on him.

¶44          Because K.P. and B.B. testified that Ponce had intentionally
and knowingly engaged in sexual intercourse or oral sexual contact with
them when they were minors, sufficient evidence exists from which a
reasonable jury could find that Ponce committed each count of sexual
conduct with a minor.

                     6b. Counts 2 and 7—Molestation of a Child

¶45             “A person commits molestation of a child by intentionally or
knowingly engaging in or causing a person to engage in sexual
contact . . . with a child who is under fifteen years of age.” A.R.S. § 13–
1410(A). As relevant here, “sexual contact” means “any direct or indirect
touching, fondling or manipulation of any part of the genitals [or] anus[.]”
A.R.S. § 13–1401(A)(3)(a). At trial, K.P. testified to the following:

              Count 2—While riding together in a car, Ponce rubbed
lubricant on K.P.’s vagina.

             Count 7—While E.P. was hospitalized, Ponce joined K.P. in
the shower and manually washed her vagina.

¶46          Given this testimony, sufficient evidence exists from which a
reasonable jury could find that Ponce intentionally and knowingly
molested K.P. as charged.

                    6c. Count 5—Aggravated Assault

¶47          As relevant here, a person commits assault by “[k]nowingly
touching another person with the intent to injure, insult or provoke such
person.” A.R.S. § 13–1203(A)(3). Such contact constitutes aggravated
assault when the “person is eighteen years of age or older” and the assault
is committed “on a minor under fifteen years of age.” A.R.S. § 13–
1204(A)(6). At trial, K.P. testified that while E.P. was hospitalized, Ponce



                                    14
                            STATE v. PONCE
                           Decision of the Court

compelled her to remove her pants and he then touched her buttocks. On
this record, sufficient evidence exists from which a reasonable jury could
find that Ponce knowingly touched K.P. with the intent to insult or provoke
her.

                    6d. Count 6—Sexual Exploitation of a Minor

¶48           As charged in this case, a person commits sexual exploitation
of a minor by knowingly photographing a minor who is engaged in
exploitive exhibition or other sexual conduct. A.R.S. § 13–3553(A)(1).
“‘Exploitive exhibition’ means the actual or simulated exhibition of the
genitals or pubic or rectal areas of any person for the purpose of sexual
stimulation of the viewer.” A.R.S. § 13–3551(5). K.P. testified that after
Ponce performed oral sex on her, he took a picture of her vagina and then
showed her that picture. Given this testimony, and the pictures recovered
from Ponce’s electronic devices that displayed the genitals of unidentified
females, sufficient evidence exists from which a reasonable jury could find
that Ponce knowingly photographed K.P.’s genitals for sexual stimulation.

                    6e. Counts 11, 12, 13, and 15—Furnishing Obscene or
                    Harmful Items to a Minor

¶49            Under A.R.S. § 13–3506(A), “[i]t is unlawful for any person,
with knowledge of the character of the item involved, to recklessly furnish,
present, provide, make available, give, lend, show, advertise or distribute
to minors any item that is harmful to minors.” As pertinent here, an item is
“harmful to minors” if it depicts nudity or sexual activity that an “average
adult applying contemporary state standards” would find unsuitable for
minors based on its “patently offensive” appeal to prurient interests, and
taken as a whole, “does not have serious literary, artistic, political, or
scientific value for minors.” A.R.S. § 13–3501(1)(a)–(b).

¶50          At trial, E.P. testified that Ponce repeatedly compelled her to
watch “very inappropriate” videos with him when she was a young child.
Her testimony described the following:

              Count 11—When the family lived in the “Augusta house,”
Ponce showed E.P. a video depicting two adult women engaging in sexual
activity with a young, crying boy.

              Count 12—When the family lived in the “red kitchen house,”
Ponce showed her a video depicting an adult man engaging in sexual
activity with a young girl.



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                            STATE v. PONCE
                           Decision of the Court

             Count 13—When the family lived in the “Litchfield house,”
Ponce again showed E.P. the video depicting two adult women engaging
in sexual conduct with a young, crying boy, and explained that he was
using the video to “teach” her about sex.

           Count 15—Ponce showed E.P. pictures of naked men and
women on his iPhone or iPod.

¶51           During Mother’s direct examination, the prosecutor elicited
testimony about the family’s residential history. Mother testified that the
family lived at the “Augusta,” “red kitchen,” and “Litchfield” houses
between 2008 and 2012. As such, Counts 11, 12, and 13 were committed
when E.P. was between 8 and 12 years old. Although E.P. did not testify to
the precise date Ponce committed Count 15, or tether that event to a
residence, she was under age 15 when she reported the events, and was
therefore necessarily a minor at the time of that offense. On this record,
sufficient evidence exists from which a reasonable jury could find that
Ponce knowingly showed E.P. harmful videos and pictures depicting
patently offensive nudity and sexual activity.

                    6f. Count 14—Kidnapping

¶52            As relevant here and charged in the indictment, a person
commits kidnapping by knowingly restraining another person with the
intent to aid the commission of a felony. A.R.S. § 13–1304(A)(3). “Restrain”
here “means to restrict a person’s movements without consent, without
legal authority, and in a manner which interferes substantially with such
person’s liberty, by either moving such person from one place to another or
by confining such person.” A.R.S. § 13–1301(2). If the victim is a minor,
restraint without consent may be accomplished by physical force,
intimidation, deception, or any other means. A.R.S. § 13–1301(2)(a)–(b).

¶53          While describing an incident in which Ponce compelled her
to watch child pornography, E.P. testified that she told Ponce she did not
want to watch the video, but he showed it to her anyway. When she tried
to get away, Ponce “slapped” her “really hard,” forcing her to sit back
down. Although E.P. testified that she was later “free to leave,” sufficient
evidence exists from which a reasonable jury could find that Ponce
knowingly restrained E.P. to facilitate the felony of furnishing obscene or
harmful items to a minor. Therefore, the trial court did not err when it
denied Ponce’s motion for judgment of acquittal on this count.

                             CONCLUSION



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                    STATE v. PONCE
                   Decision of the Court

¶54   For the foregoing reasons, we affirm.




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




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