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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       ALEXANDER PAUL CELAYA,
                              Appellant.

                             No. 1 CA-CR 14-0849
                              FILED 3-1-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-415890-001
             The Honorable Pamela Hearn Svoboda, Judge

                                  AFFIRMED


                                   COUNSEL

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

DeBrigida Law Offices, PLLC, Glendale
By Ronald M. DeBrigida, Jr.
Counsel for Appellant
                            STATE v. CELAYA
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the court, in which
Judge Lawrence F. Winthrop and Judge Donn Kessler joined.


S W A N N, Judge:

¶1            Alexander Paul Celaya (“Defendant”) appeals his convictions
for five counts of molestation of a child. Defendant contends the court erred
by denying his motion to sever Counts 1 and 2 from Counts 3 through 13.
He also contends that the court erred by denying his motions for judgments
of acquittal. Because Defendant waived severance at trial and the state
presented substantial evidence of all elements of the molestation charges,
we affirm the convictions.

                FACTS AND PROCEDURAL HISTORY

¶2            In July 2012, K.C., Defendant’s daughter, spent several weeks
with him in Arizona before returning to her mother in New Mexico.
Defendant and the mother had been divorced since 2010 and shared time
with K.C. In November 2012, K.C.’s mother found her in her play tent
without her pants or undergarments with a stuffed animal between her
legs. Her mother asked what she was doing, and K.C. began to cry and said
that it was what her “Daddy” does. Her mother contacted the police in
New Mexico. An investigator in New Mexico interviewed K.C., and a
specially trained nurse conducted a physical exam. K.C. stated that
Defendant had taken her to his room and touched his hand and penis to her
vaginal area. The physical exam revealed nothing abnormal.

¶3            When Defendant’s uncle and aunt who lived in Arizona
learned about K.C.’s statements, they asked their daughter, J.H., if
Defendant had ever touched her inappropriately. She told her mother that
Defendant had done so when she was around six years old, on more than
one occasion. J.H.’s father called the police. An investigator interviewed
J.H. but did not request a physical examination because of the length of time
since the incidents. J.H. stated that Defendant took her upstairs into
another room, removed their pants, and made her touch her vaginal area
and his penis.

¶4            Several family members confronted Defendant to try to get a
confession.   According to J.H.’s father, Defendant initially denied the

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                             STATE v. CELAYA
                            Decision of the Court
accusations, but then said that he “[didn’t] recall” the incidents, “[didn’t]
think that could have happened,” and “didn’t remember [molesting the
girls].”

¶5             For victim K.C., Defendant was indicted on one count of
molestation of a child, a class 2 felony and a dangerous crime against
children, and one count of public sexual indecency to a minor, a class 5
felony. For victim J.H., he was indicted on seven counts of kidnapping,
class 2 felonies, and four counts of molestation of a child, class 2 felonies
and dangerous crimes against children. Defendant moved to have Counts
1 and 2 for K.C. severed from Counts 3 through 13 for J.H., contending
severance was necessary for a fair trial. The court denied the motion. The
parties later stipulated to the dismissal of five kidnapping counts.

¶6             At trial, both victims testified, and the state played a portion
of J.H.’s interview with the investigator. At the close of the state’s evidence,
the state agreed that it did not provide evidence to support Count 2 (public
sexual indecency), and the court granted a judgment of acquittal on that
count. Defendant argued that the court should grant judgments of acquittal
for the remaining counts. He asserted that K.C. did not identify him as the
perpetrator, only referring to the perpetrator as “Dad,” which could have
been Defendant or her stepfather, and J.H. did not remember the
molestation by the time the case went to trial. The court denied the motion
on the remaining counts.

¶7           The jury found Defendant not guilty of both kidnapping
charges but found him guilty of the five molestation charges. The court
entered judgment on the verdicts and sentenced Defendant accordingly.

¶8            Defendant appeals.

                               DISCUSSION

I.     DEFENDANT WAIVED SEVERANCE BY FAILING TO RENEW
       HIS MOTION TO SEVER.

¶9           Defendant contends the court erred by denying his motions
to sever Counts 1 and 2 for victim K.C. from Counts 3 through 13 for victim
J.H. A defendant is entitled to severance as of right when the offenses are
“joined only by virtue of Rule 13.3(a)(1),[1] unless evidence of the other


1      According to Ariz. R. Crim. P. 13.3(a)(1), two or more offenses may
be joined if they “[a]re of the same or similar character.” The counts were
joined in this case because of the same or similar character.
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                            Decision of the Court
offense or offenses would be admissible under applicable rules of evidence
if the offenses were tried separately.” Ariz. R. Crim. P. 13.4(b). The
defendant must make the motion to sever at least 20 days before trial or at
the omnibus hearing, and if the court denies the motion, the defendant must
renew it during trial or before the close of evidence. Ariz. R. Crim. P.
13.4(c). The defendant waives severance if the motion is not timely and
renewed at trial. Id.

¶10          Defendant did timely make his initial motion for severance.
He did not, however, renew the motion “during trial or at the close of
evidence.” He therefore waived the issue, and we have no grounds upon
which to review the court’s decision.

II.    THE COURT PROPERLY DENIED THE                         MOTION FOR
       JUDGMENTS OF ACQUITTAL ON THE                         MOLESTATION
       COUNTS.

¶11            Defendant also contends that the court erred by denying his
Rule 20 motion for judgments of acquittal on the remaining counts at trial
as the state presented no physical evidence of molestation and the victims’
testimony was uncorroborated.

¶12            Ariz. R. Crim. P. 20(a) requires the court to enter a judgment
of acquittal “if there is no substantial evidence to warrant a conviction.”
Substantial evidence is “such proof that reasonable persons could accept as
adequate and sufficient to support a conclusion of defendant’s guilt beyond
a reasonable doubt.” State v. Harm, 236 Ariz. 402, 406, ¶ 11 (App. 2015)
(citation omitted). We examine 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.” State
v. Buccheri-Bianca, 233 Ariz. 324, 330-31, ¶ 24 (App. 2013) (citation omitted).
We review a denial of a motion for judgment of acquittal de novo. State v.
Bon, 236 Ariz. 249, 251, ¶ 5 (App. 2014).

¶13           Because the court granted the Rule 20 motion for Count 2 on
public sexual indecency to a minor and the jury acquitted Defendant of
kidnapping, we must only consider the molestation charges. The state was
required to prove that Defendant “intentionally or knowingly engag[ed] in
or caus[ed] a person to engage in sexual contact . . . with a child who is
under fifteen years of age” for each of the charges of molestation. A.R.S. §
13-1410(A). The statutory definition of “sexual contact” is “any direct or
indirect touching, fondling or manipulating of any part of the genitals . . .
by any part of the body . . . or causing a person to engage in such contact.”
A.R.S. § 13-1401(A)(3).

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                             STATE v. CELAYA
                            Decision of the Court
¶14            The testimony at trial provided substantial evidence for each
element of the molestation counts. K.C. testified that when she was four
years old Defendant had touched her vaginal area with both his hand and
his penis, which qualifies as sexual contact. She identified the person who
touched her inappropriately as “Daddy,” a name she used only for her
biological father. While there was some confusion about the exact date of
the act, the court concluded it occurred within the time frame in the
indictment. J.H. also testified that, when she was around six years old,
Defendant on more than one occasion touched her vaginal area and made
her touch his penis, and she identified Defendant in court. Defendant
asserts that no physical evidence supports the convictions, only testimony
from the victims, but “[p]hysical evidence is not required to sustain a
conviction where the totality of the circumstances demonstrates guilt
beyond a reasonable doubt.” State v. Canez, 202 Ariz. 133, 149, ¶ 42 (2002).
Neither is it required to defeat a Rule 20 motion.

¶15             Defendant also argues that because the victims’ testimony
was uncorroborated, he was entitled to judgments of acquittal. The
argument is both legally and factually unfounded. See State v. Jerousek, 121
Ariz. 420, 427 (1979) (“In child molestation cases, the defendant can be
convicted on the uncorroborated testimony of the victim.”). In addition to
the victims’ testimony, the court also heard testimony from K.C.’s mother,
J.H.’s father, the investigating officer, J.H.’s forensic interviewer and K.C.’s
examining nurse, which supported the victims’ testimony.

                               CONCLUSION

¶16           For the foregoing reasons, we affirm Defendant’s convictions.




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