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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               ROBERT DOUGLAS ROWLEY, IV, Appellant.

                             No. 1 CA-CR 17-0395
                               FILED 9-26-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-139487-001
                 The Honorable Jay R. Adleman, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jennifer L. Holder
Counsel for Appellee

DuMond & Doran, P.L.L.C., Phoenix
By Samantha Kelli DuMond
Counsel for Appellant
                            STATE v. ROWLEY
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Paul J. McMurdie joined.


J O N E S, Judge:

¶1           Robert Douglas Rowley, IV, appeals his convictions and
sentences for child molestation and sexual abuse. 1 For the following
reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2           When the victim was twelve years old, she frequently babysat
Rowley’s children at his home.2 In April 2008, Rowley touched the victim’s
breasts and vagina, and also had oral sex and sexual intercourse with her.
DNA evidence later confirmed the sexual contact.

¶3            A jury convicted Rowley of child molestation and sexual
abuse, and the trial court sentenced him to 13.5 years’ imprisonment and
lifetime probation. Rowley timely appealed his convictions and sentences.
We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031,
and -4033(A)(1).3




1      Seemingly citing Arizona Revised Statutes (A.R.S.) § 12-341.01,
Rowley also states an intent to claim attorneys’ fees. That claim, however,
is only valid in certain civil proceedings and does not apply to criminal
proceedings. See A.R.S. § 12-341.01.

2       We view the facts in a light most favorable to sustaining the verdicts.
State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).

3      Absent material changes from the relevant date, we cite the current
version of statutes and rules.


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                            STATE v. ROWLEY
                            Decision of the Court

                                DISCUSSION

   I.      The Admission of Nurse’s Testimony Was Not Reversible
           Error.

¶4            After the victim informed law enforcement of Rowley’s
conduct, she met with a forensic nurse for a physical examination. The
victim told the nurse that Rowley had sex with her and answered other
questions regarding the sexual contact. The nurse testified regarding the
victim’s statements. Rowley objected to this testimony as inadmissible
hearsay. The court overruled his objection, finding the statements
admissible because they were made for a medical purpose. See Ariz. R.
Evid. 803(4). Rowley again challenges their admission on appeal.

¶5             We review a trial court’s evidentiary rulings for an abuse of
discretion. State v. Fish, 222 Ariz. 109, 114, ¶ 8 (App. 2009). If we find an
abuse of discretion, we will not reverse if the error is harmless. State v.
Sosnowicz, 229 Ariz. 90, 98, ¶ 27 (App. 2012). An error is harmless “if the
[S]tate in light of all of the evidence, can establish beyond a reasonable
doubt, that the error did not contribute to or affect the verdict.” Id. (internal
quotations omitted).

¶6             Here, any potential error was harmless. After the nurse’s
testimony, the victim herself testified regarding the same statements she
made to the nurse. Rowley had and took the opportunity to cross-examine
the victim. The admission of the alleged hearsay statements, if error, was
harmless. See State v. Hoskins, 199 Ariz. 127, 144, ¶ 66 (2000) (finding the
admission of an alleged hearsay statement to be harmless when declarant
testified to the statement and was cross-examined). Moreover, the court
also instructed the jury that it could not consider the nurse’s testimony
regarding the victim’s statements for identification purposes, further
limiting any prejudicial effect. Even if the court committed error by
admitting the alleged hearsay statements, it is evident — beyond a
reasonable doubt — that they did not affect the verdicts. And on appeal,
Rowely does not argue the admissibility of the nurse’s testimony under
Arizona Rule of Evidence 803(4) was prejudicial.

   II.     The Court Did Not Abuse Its Discretion By Denying The
           Motion For Mistrial.

¶7             At the time of the trial, the victim was living out-of-state. The
State believed the victim would testify as part of its case-in-chief. On the
first day of jury selection, however, the State notified the court and Rowley
that it had a “good-faith belief” that the victim would not be available to


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                            STATE v. ROWLEY
                            Decision of the Court

testify. The State told the jury during its opening statement that the victim
would not testify. Two days later — on a Friday afternoon — the State
informed the court and Rowley that the victim would be available to testify
on the following Monday. Rowley moved for a mistrial, arguing that he
had premised his defense on the victim not being available to testify. The
court denied his motion and permitted the victim to testify.

¶8            On appeal, Rowley argues the denial of his mistrial motion
was error. We review the denial of a motion for mistrial for an abuse of
discretion. State v. Welch, 236 Ariz. 308, 314, ¶ 20 (App. 2014). Mistrial,
which is “the most dramatic remedy for trial error,” should only be granted
when “justice will be thwarted unless the jury is discharged and a new trial
granted.” State v. Dann, 205 Ariz. 557, 570, ¶ 43 (2003) (internal quotations
omitted).

¶9             In this case, we find neither error nor resulting prejudice.
Although Rowley argues that “the shift in the victim’s status entirely
changed the landscape of the trial,” the State identified the victim as a
potential witness more than two years before trial. The State also indicated
that the victim would testify throughout pretrial proceedings. Two weeks
before trial, Rowley acknowledged the possibility that the victim may
testify and suggested that he was preparing his defense accordingly. He
had ample time to prepare for cross-examination and identify any
witnesses to counter the victim’s anticipated testimony. Further, the
victim’s availability was to Rowley’s advantage as it enabled him to
exercise his right to confrontation.

¶10            Even though the State told the jury that the victim would not
testify, the evidence received at trial is not confined to what was stated
during opening statements. See State v. Pedroza-Perez, 240 Ariz. 114, 116-17,
¶ 12 (2016) (“Opening statements are predictions about what the evidence
will show. At trial, things do not always go as planned. Witnesses
sometimes fail to appear, recant, change their stories, or even die before
trial.”). The State stated it had a good faith belief that the victim would not
appear for trial. We find no evidence — and Rowley cites none — to
suggest the State’s misstatement during the opening statement was
intentional or made in bad faith. Based on the record, the denial of the
mistrial motion was not an abuse of discretion.

   III.   Sufficient Evidence Supports the Convictions.

¶11         As stated before, Rowley was convicted of child molestation
and sexual abuse. At trial, a laboratory technician testified that he



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                           STATE v. ROWLEY
                           Decision of the Court

conducted a DNA analysis of swabs taken from the victim and swabs taken
from Rowley. The analysis revealed that the DNA profile from the victim’s
external genitals matched Rowley’s DNA profile. More specifically, the
external genital DNA profile matched Rowley’s YSTR profile. A YSTR
profile refers to a match with Rowley’s Y chromosome. A YSTR profile is
not specific to one male; a person’s father or brother would share the same
YSTR profile. Since the matched YSTR profile does not explicitly identify
Rowley, he argues the State presented insufficient evidence to support his
convictions.

¶12           We review the sufficiency of evidence de novo. State v. West,
226 Ariz. 559, 562, ¶ 15 (2011). When reviewing the evidence, we assess
whether any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Id. at ¶ 16.

¶13           In this case, sufficient evidence supports the child molestation
conviction. The State was required to prove the defendant “intentionally
or knowingly engag[ed] in . . . sexual contact . . . with a child who is under
fifteen years of age.” A.R.S. § 13-1410(A). The victim testified that, when
she was eleven or twelve years old, Rowley intentionally placed his finger
on her vagina in a sexual manner. Again, the DNA profile from the victim’s
external genitals matched Rowley’s YSTR profile. Although the matched
YSTR profile was not specific to Rowley, it did match a male in his
immediate family, which would include Rowley. The victim stated she did
not have sexual relations with Rowley’s brothers or his father. A rational
jury could have accepted the victim’s testimony as truthful and found the
essential elements of the crime to be proven.

¶14           The record also supports the conviction for sexual abuse.
Sexual abuse, as relevant here, requires proof that the defendant
“intentionally or knowingly engag[ed] in sexual contact” involving only the
female breast with another person who is under fifteen years of age. See
A.R.S. § 13-1404(A). The victim testified that, after the sexual contact, she
told the forensic nurse that the defendant had made oral contact with her
breasts. The DNA evidence corroborated her report; a swab of her right
breast contained Rowley’s DNA. In contrast to the YSTR profile, this DNA
profile was specific to Rowley. The technician testified that the chances of
this DNA profile matching any other person’s profile was extremely low.
We find no error.




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                   STATE v. ROWLEY
                   Decision of the Court

                      CONCLUSION

¶15   Rowley’s convictions and sentences are affirmed.




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




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