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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  JOSE VALDEZ ZAMORANO, Appellant.

                             No. 1 CA-CR 17-0406
                               FILED 5-24-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-137124-001
               The Honorable David O. Cunanan, Judge

                                  AFFIRMED


                                   COUNSEL

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

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
                         STATE v. ZAMORANO
                          Decision of the Court



                     MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Jennifer B. Campbell joined.


B E E N E, Judge:

¶1           Jose Valdez Zamorano (“Zamorano”) appeals his convictions
and sentences. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Zamorano and the victim, B.H., married in February 2014 and
had three children together. After experiencing marital problems in early
2016, Zamorano moved out of the family home. On July 5, 2016, Zamorano
picked up the two oldest children from daycare and dropped them off with
B.H. at her residence. Zamorano then asked B.H. if he could come inside
the house to talk. Initially B.H. refused, but ultimately relented, telling
Zamorano, “Fine, we’ll talk. But we are going to sit away from each other,
and we have to maintain calmness.” During his visit, Zamorano tried to
engage in physical contact with B.H. despite her repeated objections. After
ending the conversation with Zamorano, B.H. went into the bathroom with
the children to give them a bath. While in the bathroom, Zamorano yelled
out that he was leaving and told B.H. to come lock the door.

¶3             When B.H. went to lock the door, Zamorano grabbed her by
the legs, picked her up and carried her into the kitchen, where he sat her
down on the countertop. B.H. repeatedly told him to leave her alone, and
the two began to struggle. After Zamorano unfastened her bra, B.H. was
able to get off the counter, but Zamorano forced her to the floor where he
continued his attempt to take off her clothes. As the two continued to
struggle, Zamorano removed B.H.’s underwear. Zamorano then digitally
penetrated B.H.’s vagina and attempted penile penetration. Zamorano
only stopped his attack when one of the couple’s children came into the
kitchen. Zamorano left the house when B.H. told him she was going to call
the police.

¶4          Zamorano was charged with two counts of sexual assault
(counts 1 and 2) and one count of kidnapping (count 3). At trial,
Zamorano’s counsel presented a “mistake of fact” defense, arguing that



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                          STATE v. ZAMORANO
                           Decision of the Court

Zamorano believed B.H. consented because the couple had sex a few weeks
prior to the incident. To further this defense strategy, Zamorano requested
a “mistake of fact” jury instruction. The superior court denied the
instruction, finding that Zamorano’s counsel could advocate for mistake of
fact during his closing arguments, and the standard jury instructions on
sexual assault were sufficient.

¶5            Zamorano was convicted of one count of sexual assault (count
2) and one count of kidnapping (count 3). We have jurisdiction over his
timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution
and Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031,
and -4033(A).

                               DISCUSSION

¶6             Zamorano argues that the superior court erred by failing to
give the jury a mistake of fact instruction. We review the decision of
whether to give a jury instruction for an abuse of discretion. State v. Forde,
233 Ariz. 543, 566, ¶ 90 (2014). We review the adequacy of jury instructions
in their entirety to determine if they accurately reflect the law. State v.
Hoskins, 199 Ariz. 127, 145, ¶ 75 (2000). Although a defendant is entitled to
jury instructions reasonably supported by evidence at trial, State v. Trostle,
191 Ariz. 4, 15 (1997), the court is not required to give an instruction which
is adequately covered by other instructions, Hoskins, 199 Ariz. at 145, ¶ 75.
Closing arguments of counsel may also be considered when assessing the
adequacy of jury instructions. State v. Bruggeman, 161 Ariz. 508, 510 (1989).

¶7           Zamorano asked the superior court to give the following jury
instruction:

       A mistaken belief as to matter of fact does not relieve a person
       of criminal liability unless it negates the culpable mental state
       required for commission of the offense.

¶8             The court declined to give the mistake of fact instruction,
finding it not appropriate, and reasoning that Zamorano could argue
mistake of fact to the jury. The superior court provided the following
instruction to the jurors as to the elements of kidnapping and sexual assault:

       The crime of kidnapping requires proof that the defendant
       knowingly restrained another person with the intent to inflict
       a sexual offense on the person. The crime of sexual assault
       requires proof that the defendant:



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                           STATE v. ZAMORANO
                            Decision of the Court

       1. Intentionally or knowingly engaged in sexual intercourse
          or oral sexual contact with another person; and

       2. Engaged in the act without the consent of the other person;
          and

       3. The defendant knew the act was without consent of the other
          person. (Emphasis added).

The jurors were also given the statutory definitions of “intentionally,”
“knowingly,” “voluntary act,” and “without consent.”

¶9            In his closing argument, Zamorano’s counsel told the jurors,
“Mr. Zamorano’s defense was one of mistake of fact,” and made specific
reference to the jury instruction that required that the State prove beyond a
reasonable doubt that Zamorano “knew the act was without the consent of
the other person.” Additionally, in its closing argument, the State
acknowledged, on multiple occasions, that it had to prove that Zamorano
“knew” that the act of sexual intercourse with B.H. was not consensual.

¶10             The jury instructions given, combined with Zamorano’s
arguments regarding mistake of fact, sufficiently instructed jurors that, to
prove sexual assault, the State had to prove that Zamorano intentionally or
knowingly engaged in sexual intercourse with B.H. without her consent.
Thus, the superior court did not abuse its discretion when it denied
Zamorano’s requested mistake of fact instruction because the substance of
his defense was adequately covered by the instructions given at trial. See
State v. Tarr, 235 Ariz. 288, 293, ¶ 14 (App. 2014) (stating that “a trial court
is not required to give a proposed instruction when its substance is
adequately covered by other instructions.”). The instructions given by the
court did not mislead the jurors; instead, they accurately stated the law of
consent. See State v. Doerr, 193 Ariz. 56, 65, ¶ 35 (1998) (“Where the law is
adequately covered by instructions as a whole, no reversible error has
occurred.”). The closing arguments of both defense counsel and the State
also made it clear that if Zamorano mistakenly believed the victim had
consented, then the jurors were required to find him not guilty of sexual
assault and kidnapping. See Bruggeman, 161 Ariz. at 510; see also State v.
Morales, 198 Ariz. 372, 374, ¶ 5 (App. 2000) (noting that any alleged
ambiguity in jury instructions are alleviated when closing arguments make
clear the requisite elements of the charged offense).




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                        STATE v. ZAMORANO
                         Decision of the Court

                            CONCLUSION

¶11          For the foregoing reasons, we affirm Zamorano’s convictions
and sentences.




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




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