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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

             SIGIFREDO QUINTERO MURRIETA, Appellant.

                             No. 1 CA-CR 14-0280
                              FILED 7-16-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-146598-001
                The Honorable John R. Ditsworth, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Andrew Reilly
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
                            STATE v. MURRIETA
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Maurice Portley joined.


N O R R I S, Judge:

¶1            Sigifredo Murrieta appeals from his convictions and
sentences for four counts of sexual conduct with a minor, see Ariz. Rev. Stat.
(“A.R.S.”) § 13-1405 (Supp. 2014),1 one count of kidnapping, see A.R.S. § 13-
1304 (2010), one count of sexual abuse, see A.R.S. § 13-1404 (2010), and one
count of aggravated assault. See A.R.S. § 13-1204 (Supp. 2014).

¶2              On appeal, Murrieta argues the superior court improperly
relied on Arizona Rule of Evidence 404(b) to preclude evidence the victim,
Murrieta’s daughter, had twice removed an ankle monitoring device she
had worn in connection with a juvenile adjudication. More specifically,
relying on State v. Machado, 226 Ariz. 281, 284, ¶ 16, 246 P.3d 632, 635 (2011)
affirming 224 Ariz. 343, 355–56, ¶¶ 29–32, 230 P.3d 1158, 1170–71 (App.
2010), Murrieta argues Rule 404(b) “was designed to protect defendants,”
not “witnesses such as the victim,” and thus this evidence should have been
admitted. Murrieta further argues preclusion of this evidence violated his
right to meaningfully cross-examine the victim regarding her motive to
fabricate the allegations against him. See generally Davis v. Alaska, 415 U.S.
308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Dunlap, 125 Ariz. 104, 608
P.2d 41 (1980).

¶3           Because the superior court precluded the evidence over
Murrieta’s general objection,2 we review for harmless error. See State v.

              1Although   the Arizona Legislature has amended certain
statutes cited in this decision after the date of Murrieta’s offenses, these
revisions are immaterial to our resolution of this appeal. Thus, we cite to
the current version of these statutes.

              2In objecting, Murrieta did not raise Machado nor did he argue,

as he does on appeal, that the admissibility of the evidence was solely
governed by Arizona Rules of Evidence 401 through 403 and not 404.
Murrieta also failed to argue the preclusion of this evidence violated his
right to a meaningful cross-examination. Under these circumstances, we



                                       2
                            STATE v. MURRIETA
                            Decision of the Court
Henderson, 210 Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005) (“Reviewing
courts consider alleged trial error under the harmless error standard when
a defendant objects at trial and thereby preserves an issue for appeal.”).
Assuming, without deciding, the superior court should have admitted the
evidence, the error was harmless, and thus, we affirm Murrieta’s
convictions and sentences.

¶4              “An error is harmless if a reviewing court can determine,
beyond a reasonable doubt, that it neither affected nor contributed to the
verdict.” State v. Yonkman, 233 Ariz. 369, 376, ¶ 24, 312 P.3d 1135, 1142 (App.
2013). “The inquiry is not whether, in a trial that occurred without the error,
a guilty verdict would surely have been rendered, but whether the guilty
verdict actually rendered in this trial was surely unattributable to the error.”
State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993) (quoting Sullivan
v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 2081, 124 L. Ed. 2d 182 (1993)).
Here, preclusion of the evidence the victim had twice removed her ankle
monitoring device most assuredly did not affect nor contribute to
Murrieta’s convictions.

¶5            At trial, defense counsel asserted this evidence demonstrated
the victim’s “motive and bias to lie.” According to Murrieta’s defense
theory of the case, this evidence established the victim wanted to “get out
of the house” and, thus, had motive to fabricate the allegations against him.

¶6             Other evidence, however, established, corroborated, and
confirmed the victim wanted to escape from home. As the superior court
recognized in explaining its ruling, “It’s very clear [the victim] was a
runaway and that’s what we are going to hear.” And, indeed, that is
precisely what the jury heard. At trial, the victim made no secret about her
efforts to run away from home. The detective who investigated the case
and two of the victim’s brothers also testified the victim frequently ran
away from home. Further, Murrieta discussed the victim’s habit of running
away in a video recording of his interview with police the State introduced
into evidence and played for the jury. Cf. State v. Bocharski, 218 Ariz. 476,
486, ¶¶ 40–41, 189 P.3d 403, 413 (2008) (erroneous admission of evidence
was harmless error when other, non-tainted proof clearly supported same
facts). If, as Murrieta argues on appeal, his “goal was to corroborate his
claim that [the victim] was motivated to fabricate her allegations to escape
her living situation,” the victim, the detective, and the victim’s brothers

could easily find Murrieta has waived these arguments on appeal. We
have, however, elected to address the propriety of the superior court’s
preclusion of the evidence based on the reason it gave. See infra ¶ 6.



                                        3
                          STATE v. MURRIETA
                          Decision of the Court
provided more than ample testimony allowing him to do just that.3 Thus,
in closing, Murrieta’s counsel argued the victim “ran away” and “continued
to run away” and then pointed out “[o]ne of the most common examples
[of fabricated allegations of sexual abuse] include teenage girls who are
trying to change their living conditions.”

                             CONCLUSION

¶7           For the foregoing reasons, we affirm Murrieta’s convictions
and sentences.




                                   :ama




             3Furthermore,   Murrieta corroborated much of the victim’s
testimony concerning his sexual contacts with her during his interview with
police. Cf. Yonkman, 233 Ariz. at 376, ¶ 24, 312 P.3d at 1142 (preclusion of
evidence defendant had been acquitted of similar prior offenses harmless
error because defendant admitted to police he had touched victim, thereby
corroborating victim’s testimony).




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