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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               ROBERTO HERNANDEZ LOPEZ, Appellant.

                             No. 1 CA-CR 13-0897
                               FILED 1-15-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-103865-001
                The Honorable Dawn M. Bergin, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

The Hopkins Law Office, Tucson
By Cedric Martin Hopkins
Counsel for Appellant

Roberto Hernandez Lopez
Appellant
                             STATE v. LOPEZ
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Andrew W. Gould joined.


T H U M M A, Judge:

¶1             This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for defendant
Roberto Hernandez Lopez has advised the court that, after searching the
entire record, he has found no arguable question of law and asks this court
to conduct an Anders review of the record. Lopez was given the opportunity
to file a supplemental brief pro se, and has done so. This court has reviewed
the record and has found no reversible error. Accordingly, Lopez’s
convictions and resulting sentences are affirmed.

                 FACTS1 AND PROCEDURAL HISTORY

¶2            In January 2012, Lopez was charged by Indictment with eight
counts of sexual conduct with a minor, each a class 2 felony and dangerous
crime against children (DCAC) (Counts 1, 3, 4, 5, 7, 8, 9, and 10), one count
of public sexual indecency to a minor, a class 5 felony (Count 2) and one
count of molestation of a child, a class 2 felony and a DCAC (Count 6). As
amended, the Indictment alleges the offenses occurred between July 4, 2007
and July 3, 2009, when the victim, G.A., would have been 11 or 12 years old.

¶3            Lopez’s first trial resulted in a mistrial when the jury was
unable to reach a unanimous verdict on any charge. The evidence at the
second trial showed G.A. was approximately ten years old when her
mother brought both G.A. and her older sister, L.A., from Mexico to the
United States. G.A. testified that all of the assaults occurred in the
apartment that her family shared with Lopez when she was approximately
11 years old. The first sexual assault occurred when Lopez was home alone
and G.A. came home from school and went into the bedroom she shared
with her mother and sister. G.A. testified to subsequent sexual assaults that

1This court views the facts “in the light most favorable to sustaining the
verdict, and resolve[s] all reasonable inferences against the defendant.”
State v. Rienhardt, 190 Ariz. 579, 588–89, 951 P.2d 454, 463–64 (1997) (citation
omitted).


                                       2
                             STATE v. LOPEZ
                            Decision of the Court

took place in the bathroom and on the couch over the next six months to a
year.

¶4            After G.A. disclosed these incidents to her boyfriend and
father in January 2012, law enforcement started an investigation which
included G.A. making a confrontation call to Lopez. During the call, Lopez
did not specifically deny the sexual assault, saying instead that “evidence
must be presented” and “I have to demand evidence . . . of everything I’m
being accused of.” Later, Lopez submitted to multiple interviews with law
enforcement and, after taking a Computer Voice Stress Analyzer (CVSA)
examination, he admitted to engaging in “sexual acts” with G.A. After the
administration of the CVSA, Lopez confessed to specific sexual acts and not
others, and gave the location of where the acts occurred.

¶5             Administration of the CVSA examination consists of using a
laptop hooked up to the subject. A series of questions, which the police
officer and the subject formulate together, are then asked and the subject’s
voice is analyzed. At no time did the jury here receive the unredacted
transcript pertaining to the formulation of the questions or the actual
administration of the CVSA examination. In a pre-trial motion, however,
Lopez argued he should “be permitted to introduce the fact that the State’s
agents hooked him up to a machine, told him that he was taking a
polygraph examination, and told him that he failed the examination after
claiming he had not committed the alleged acts.” The superior court
initially precluded any mention of the CVSA during trial, given the general
proscription against the admissibility of polygraphs set forth in State v.
Hoskins, 199 Ariz. 127, 144 ¶ 69, 14 P.3d 997, 1014 (2000). Subsequently,
Lopez moved in limine to preclude evidence of the administration of the
CVSA examination, including Lopez’s confession. After noting the motion
in limine sought to preclude the confession, the superior court denied the
motion.

¶6            During trial, the superior court stated it had done “some
additional research on the issue of the admissibility of the voice stress test”
and “was looking at whether the Defendant had a Federal Due Process right
to have evidence that he was subjected to the voice stress test admitted”
and found that Lopez did have a right to offer such evidence. In doing so,
however, the superior court stated evidence of the actual CVSA
examination results indicating deception were still precluded. Accordingly,
the superior court reversed its decision by allowing Lopez to present such




                                      3
                            STATE v. LOPEZ
                           Decision of the Court

evidence to argue to the jury that his pretrial statements were involuntary.2
The parties then jointly reviewed the transcript of the CVSA interview and
submitted a redacted transcript that was given to the jury at Lopez’s
request. The transcript included mention of the CVSA but excluded the
time period immediately after the administration of the CVSA examination
where the police officer discussed the results with Lopez.

¶7            Lopez testified on his own behalf and asserted law
enforcement threatened him during the time period when the CVSA results
were being discussed, thereby opening the door to the admission of the
conversation regarding the CVSA examination results. After Lopez’s
testimony opened the door, the jury was given a less-heavily redacted
transcript from the police interview detailing the conversation that
occurred immediately after the administration of the CVSA examination —
including certain questions the police officer asked during the CVSA
examination and the officer stating that deception was indicated in Lopez’s
answers to those questions. This part of the transcript oftentimes lacked
details regarding specific questions and answers but, on some occasions,
contained such details. Additionally, the jury was shown the relevant
portion of the video of the interview where the police officer entered the
room and discussed the results after administering the CVSA examination.
That portion of the video was not provided to the jury during deliberations.

¶8           At the close of the evidence, the superior court granted
Lopez’s motion to dismiss Counts 9 and 10, finding there was no substantial
evidence to support a conviction on those counts. The jury was
subsequently given a limiting instruction stating the results of the CVSA
examination could only be considered to determine whether Lopez’s
confession was voluntary.

¶9             The jury found Lopez guilty of Counts 1, 2, 5, 6, 7 and 8 and
not guilty of Counts 3 and 4. In special verdict forms, the jury found G.A.
was “11 years of age or younger” at the time of the offense (for Counts 1, 5,
7, 8) and that his conduct constituted “penetration” (for Counts 1, 7, 8). The
jury also found Count 5 constituted “masturbatory” conduct.

¶10          The superior court sentenced Lopez to three consecutive life
sentences with no possibility of release until 35 years (flat time) for Counts


2Despite reliance on this argument, Lopez made no pretrial challenge to the
voluntariness of his statements and no pretrial voluntariness hearing was
held.



                                      4
                             STATE v. LOPEZ
                            Decision of the Court

1, 7 and 8. The court sentenced Lopez to 1.5 years in prison for Count 2
(concurrent with Counts 1 and 6); 20 years in prison for Count 5
(consecutive to Count 1) and 17 years in prison for Count 6 (concurrent with
Counts 1 and 2).3 Lopez was given 694 days of presentence incarceration
credit.

¶11           This court has jurisdiction over Lopez’s timely appeal
pursuant to Arizona Constitution, Article 6, Section 9, and Arizona Revised
Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1) (2015).4

                               DISCUSSION

¶12            This court has reviewed and considered counsel’s brief and
appellant’s pro se supplemental brief, and has searched the entire record
for reversible error. See State v. Clark, 196 Ariz. 530, 537 ¶ 30, 2 P.3d 89, 96
(App. 1999). Searching the record and briefs reveals no reversible error. The
record shows that Lopez was represented by counsel, and assisted by an
interpreter, at all stages of the proceedings and counsel was present at all
critical stages. The evidence admitted at trial constitutes substantial
evidence supporting Lopez’s convictions. From the record, all proceedings
were conducted in compliance with the Arizona Rules of Criminal
Procedure. The sentences imposed were within the statutory limits and
permissible ranges.

¶13           The court’s review of the record reveals three issues that merit
further discussion.

I.     Admission Of CVSA Results Into Evidence Was Not Fundamental
       Error.

¶14          In his pro se supplemental brief, Lopez argues “[t]he stress
test was inadmissible evidence.” However, Lopez offered evidence of the
CVSA at trial as part of his attempt to show that his pretrial statements to


3 Although the sentencing minute entry lists the concurrency of the
sentences somewhat differently, when a discrepancy exists between the
oral pronouncement and the minute entry, the “[o]ral pronouncement in
open court controls over the minute entry.” State v. Whitney, 159 Ariz. 476,
487, 768 P.2d 638, 649 (1989) (citation omitted). Accordingly, this court relies
upon and affirms the superior court’s oral pronouncement.

4Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


                                       5
                            STATE v. LOPEZ
                           Decision of the Court

law enforcement were involuntary. In fact, Lopez urged the superior court
to allow the fact that he was subjected to the CVSA into evidence. Although
the court originally precluded all CVSA evidence, it was persuaded during
trial by Lopez’s due process argument to allow the jury to hear evidence
that Lopez had participated in the CVSA and that he was told he failed the
test to support his contention that his confession was involuntary. Despite
allowing mention of the CVSA, the court still precluded the State from
eliciting the actual results of the test (which showed deception) by warning
that “nothing about what questions were asked or the actual results of the
test would be admitted, simply that he [Lopez] was told that he failed the
test.”

¶15           During his testimony, Lopez gave several explanations as to
why he confessed to the sexual assaults during his interviews with law
enforcement. Among other things, Lopez testified that the law enforcement
officer threatened him by sliding a blank piece of paper over and saying
that, if Lopez didn’t confess, allegations would be made up against him.
That resulted in the following exchange during cross-examination:

             Q      And so he threatened you before you
             started telling him that you did these things,
             right?

             A      Yes.

             Q       And you also testified yesterday that the
             threat came after you finished the voice stress
             test, right?

             A      Yes.

             Q      So just to make sure I’m clear, between
             the time that you finished the voice stress test
             and the time that you told him you had done
             these things, that’s when he threatened you,
             right?

             A      Yes.

The prosecutor then asked to approach the bench and, during a sidebar,
argued that Lopez “opened the door to unredacting everything that
happened between the end of the stress test and when he confessed and
also applying [sic] that video for the Jury,” which included the officer
generally going over the results of the CVSA examination with Lopez.


                                     6
                             STATE v. LOPEZ
                            Decision of the Court

Outside of the presence of the jury, the court then questioned Lopez
regarding the timing of the alleged threat. Afterwards, the court stated that
“I think that [the prosecutor] has the right to show what did happen during
that time. And I can – I’ll give a limiting instruction to the Jury about the –
that they can’t consider the results, they’re only to consider those for
purposes of determining what happened, what was said during the –
during the interrogation. But, at this point, I think [Lopez] opened the door
to that coming in.” The prosecutor affirmed “I will literally present the
redacted portions of the transcript, play the video, and ask [the police
officer], during that period, did you threaten him that you were going to
make stuff up if he didn’t confess?”

¶16             Although defense counsel offered to stipulate that no threat
was made, he did not object to this evidence being admitted. Accordingly,
the transcript from the interview describing some of the questions asked
and the results of the test, including the police officer’s comments that
certain results indicated deception, were admitted into evidence.
Additionally, through the police officer’s rebuttal testimony, the jury was
shown the relevant portion of the video of the interview, showing the police
officer entering the room and discussing the results after administering the
CVSA examination (although the video was not provided to the jury during
deliberations). The State asked no questions regarding the results or the
reliability of the results, but rather focused on whether a threat had been
made during that time frame. The court then gave the jury a limiting
instruction, stating that “the results of voice stress tests are not admissible
to prove that someone was actually lying” and that consideration of this
evidence “must be limited to the purposes of determining what happened
during the interview and whether the Defendant’s confession was
voluntary.”

¶17            Because Lopez failed to make a timely objection at trial, the
review on appeal is limited to fundamental error. See Ariz. R. Crim. P.
21.3(c); State v. Henderson, 210 Ariz. 561, 567 ¶¶ 19–20, 115 P.3d 601, 607
(2005). “Accordingly, [the defendant] ‘bears the burden to establish that “(1)
error exists, (2) the error is fundamental, and (3) the error caused him
prejudice.”’” State v. James, 231 Ariz. 490, 493 ¶ 11, 297 P.3d 182, 185 (App.
2013) (citations omitted). Lopez has not shown that the admission of this
part of the transcript constitutes error. Lopez’s trial strategy was to use
evidence of the CVSA as tending to show his confession was involuntary;
furthermore, Lopez had already introduced into evidence the fact that he
was told he failed the CVSA examination. Allowing the prosecutor to elicit
testimony regarding the police officer’s questions and behavior during the
portion of the interview when Lopez alleges he was threatened does not


                                      7
                             STATE v. LOPEZ
                            Decision of the Court

constitute error, especially because Lopez’s testimony opened the door to
this line of questioning. Moreover, the jury is presumed to have followed
the court’s instructions. Elliot v. Landon, 89 Ariz. 355, 357, 362 P.2d 733, 735
(1961). The narrow scope of the prosecutor’s questions and the limiting
instruction given to the jury further weigh against a finding of error.

¶18             Even assuming error in admitting such evidence, Lopez has
not shown how such an error would be fundamental. Error is fundamental
when it affects the foundation of the case, deprives the defendant of a right
essential to his defense or is of such magnitude that the defendant could not
possibly have had a fair trial. See Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d
at 607. Lopez argued to the superior court that evidence of the CVSA was
essential to his defense. It cannot be said that it was fundamental error
when the superior court allowed the previously redacted portions of the
interview into evidence when the jury already knew Lopez had
participated in the CVSA and that law enforcement told Lopez that he had
failed the test. Accordingly, even assuming error, Lopez has not shown how
such error would be fundamental.

¶19            In reaching this conclusion, this court notes the motions in
limine in superior court assume, and this court acknowledges, that the
CVSA is akin to a polygraph test and that “all references to polygraph tests,
absent stipulation, are inadmissible for any purpose in Arizona.” Hoskins,
199 Ariz. at 144 ¶69, 14 P.3d at 1014 (citing cases). The superior court was
convinced by Lopez’s argument that evidence of the CVSA should be
admitted as part of his defense that his confession was involuntary. The
subsequent references to the results were not received for the truth of the
matter asserted, but rather to rebut Lopez’s allegation that law enforcement
threatened him at this point in the interview. Under these narrow and
specific facts, this court cannot say it was fundamental error to allow the
jury to read the transcript of the conversation that took place after the CVSA
examination.

II.    The Indictment Was Not Multiplicitous.

¶20            Lopez argues that there “is no distinction” in Counts 1, 7 and
8 showing they “were different acts,” meaning the indictment is
multiplicitous. The superior court properly rejected this same argument at
trial. An indictment is multiplicitous if it charges a single offense in multiple
counts. State v. Via, 146 Ariz. 108, 116, 704 P.2d 238, 246 (1985). Here, Count
1 refers to “victim’s first disclosure, penile/vaginal in her mother’s
bedroom.” Count 8 refers to “defendant’s admission of skin to skin
penile/vaginal” and Count 9 refers to “defendant’s admission of


                                       8
                            STATE v. LOPEZ
                           Decision of the Court

penile/vaginal with a condom.” The evidence at trial, including testimony
from both Lopez and G.A., was sufficient to show that each of these counts
correspond to separate incidents, meaning the Indictment was not
multiplicitous.

III.   The Prosecutor Did Not Engage In Prosecutorial Misconduct.

¶21             Lopez argues the prosecutor engaged in misconduct by
arguing false or inadmissible evidence and misleading the jury. A claim of
prosecutorial misconduct warrants reversal only if “‘(1) misconduct is
indeed present[,] and (2) a reasonable likelihood exists that the misconduct
could have affected the jury’s verdict, thereby denying defendant a fair
trial.’” State v. Moody, 208 Ariz. 424, 459 ¶ 145, 94 P.3d 1119, 1154 (2004)
(citation omitted). Here, Lopez argues the prosecutor misled the jury
during closing arguments because of how he characterized the evidence.
The prosecutor’s argument that G.A.’s “version of what happened has been
consistent” was not improper nor did it mislead the jury. Similarly, the
prosecutor did not argue inadmissible evidence to the jury when discussing
testimony about whether threats were made to Lopez after Lopez took the
CVSA examination. On this record, there was no prosecutorial misconduct.




                                     9
                             STATE v. LOPEZ
                            Decision of the Court

                               CONCLUSION

¶22           This court has read and considered counsel’s brief and
Lopez’s pro se supplemental brief, and has searched the record provided
for reversible error and has found none. Leon, 104 Ariz. at 300, 451 P.2d at
881; Clark, 196 Ariz. at 537 ¶ 30, 2 P.3d at 96. Accordingly, Lopez’s
convictions and resulting sentences are affirmed.

¶23            Upon filing of this decision, defense counsel is directed to
inform Lopez of the status of his appeal and of his future options. Defense
counsel has no further obligations unless, upon review, counsel identifies
an issue appropriate for submission to the Arizona Supreme Court by
petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85, 684 P.2d 154,
156–57 (1984). Lopez shall have thirty days from the date of this decision to
proceed, if he desires, with a pro per motion for reconsideration or petition
for review.




                                    :ama




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