                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

             MARIO RAMON CHAVEZ-TAVENA, Appellant.

                             No. 1 CA-CR 12-0750
                              FILED 06-03-2014

           Appeal from the Superior Court in Maricopa County
                        No. CR 2009-030588-001
                        No. CR 2009-141909-001
               The Honorable Sherry K. Stephens, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee

Daniel R. Raynak, Attorney at Law, Phoenix
By Daniel R. Raynak
Counsel for Appellant


                       MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge John C. Gemmill joined.
                     STATE v. CHAVEZ-TAVENA
                        Decision of the Court

H O W E, Judge:

                      Facts and Procedural History

¶1           Mario Ramon Chavez-Tavena appeals his convictions and
sentences on five counts of sexual conduct with a minor and one count of
molestation, all class 2 felonies and dangerous crimes against children,
and other charges relating to his arrest for the sex offenses. For the
reasons that follow, we affirm.

¶2            Chavez-Tavena’s wife placed a digital recorder in the master
bedroom of their home because she suspected her husband was cheating
and hoped to catch him calling his mistress while she was gone. Instead,
she discovered that Chavez-Tavena was molesting her 10-year-old
daughter. When she confronted her daughter with the fact that she had a
recording of the incident, her daughter started crying, and said, “He
makes me do it.” The mother testified that her daughter said she had not
reported the molestation because she had seen Chavez-Tavena hurt her
mother before, “and she was just scared that he would hurt [her mother]
again.” The mother testified that when she confronted Chavez-Tavena
later that day, he denied her accusations.

¶3           At trial, the jury heard the recording memorializing the
molestation. The mother identified voices on the recording as that of
Chavez-Tavena and her daughter, and a rhythmic creaking sound as the
sound the bed made when she and Chavez-Tavena had sex. On the
recording, a person can be heard breathing heavily, and the victim can be
heard twice saying “ouch” and “it hurts.” The daughter confirmed at trial
that while her mother was gone that day, Chavez-Tavena told her to pull
her pants down, made her suck his penis, and put his penis in her vagina
and moved it up and down. She testified she remembered it hurt. The
prosecutor played a DVD of a forensic interview, in which the daughter
recalled several additional incidents.

¶4           Chavez-Tavena testified at trial that he had never touched
the victim inappropriately or engaged in any of the sex acts of which he
was accused. He testified that the creaking sound on the recording was
the bed moving as he rocked one of his sons to sleep, and that the victim
might have said “it hurts” because she got tangled in some cords and
tripped.

¶5         The jury convicted Chavez-Tavena of the charged offenses,
and found that the victim was less than 12 years old at the time of the


                                    2
                        STATE v. CHAVEZ-TAVENA
                           Decision of the Court

sexual conduct. The superior court sentenced him to life in prison on the
convictions for sexual conduct with a minor and 10 years in prison on the
molestation conviction, to be served consecutively to each other, and to
2.5 years in prison on the most serious of the other charges. Chavez-
Tavena filed timely notices of appeal.

      I.     Challenge to Admission of the Recording

¶6            Chavez-Tavena argues that the superior court abused its
discretion in rejecting his challenge to the recording on the ground it was
inaudible, without first listening to the recording. We review the court’s
ruling on the admissibility of evidence for an abuse of discretion. See State
v. Tucker, 205 Ariz. 157, 165 ¶ 41, 68 P.3d 110, 118 (2003). Because Chavez-
Tavena failed to make this argument below, he bears the burden of
demonstrating that the superior court erred, that the error was
fundamental, and that he was prejudiced thereby. State v. Henderson, 210
Ariz. 561, 567 ¶ 20, 115 P.3d 601, 607 (2005).

¶7             On this record, the superior court did not err, much less
fundamentally err to Chavez-Tavena’s prejudice. The superior court
initially rejected defendant’s challenge to the recording under Arizona
Rule of Evidence 403 based solely on counsels’ arguments, without
having heard the recording. The court then listened to a CD duplicate of
the recording before the parties agreed that the jury would hear the
recording in its original form. “Whether a recording is sufficiently
audible to be admitted into evidence is within the sound discretion of the
trial court.” State v. Dante, 25 Ariz. App. 150, 154, 541 P.2d 941, 945 (1975),
overruled on other grounds by State v. Hunter, 136 Ariz. 45, 50, 664 P.2d
195, 200 (1983). The superior court could have reconsidered its prior
rejection of the Rule 403 challenge after listening to the recording, but it
did not, thereby implicitly reaffirming its previous findings. Nothing in
the record shows that the superior court abused its discretion, much less
fundamentally erred to Chavez-Tavena’s prejudice, in admitting the
recording under these circumstances.

II.        Challenge to Admission of Victim’s Out-of-Court Statement

¶8            Chavez-Tavena next argues that the superior court abused
its discretion in admitting the victim’s out-of-court statement that “he
makes me do it,” under the excited utterance exception to the rules
prohibiting hearsay, and in violation of his right to confront the witnesses
against him. When the mother showed the victim that she had recorded
the incident, the victim started crying, evidencing the stress of excitement



                                      3
                      STATE v. CHAVEZ-TAVENA
                         Decision of the Court

from learning that her mother now knew what had happened. The
superior court found this statement qualified as an excited utterance
admissible as an exception to the hearsay rule under Arizona Rule of
Evidence 803(2). This Court reviews the superior court’s ruling for abuse
of discretion. See Tucker, 205 Ariz. at 165 ¶ 41, 68 P.3d at 118.

¶9            A statement falls within the “excited utterance” exception to
the hearsay rule if it is “relating to a startling event or condition, made
while the declarant was under the stress of excitement that caused it.”
Ariz. R. Evid. 803(2). The exception requires proof of: “(1) a startling
event, (2) a statement made soon after the event to ensure the declarant
has no time to fabricate, and (3) a statement which relates to the startling
event.” See State v. Bass, 198 Ariz. 571, 577 ¶ 20, 123 P.3d 796, 802 (2000).
The declarant also must have personally observed the event about which
she spoke. Id. The “startling event” in this case was the mother’s
revelation that she had captured the sexual assault on a recording. The
victim started crying and said “he makes me do it” immediately
afterward, and the statement related to the sexual assault the victim had
just learned that the mother had recorded. Under these circumstances, the
superior court did not abuse its discretion in admitting the statement.

¶10           Nor did the admission of the statement violate Chavez-
Tavena’s confrontation rights. In Crawford v. Washington, 541 U.S. 36
(2004), the United States Supreme Court held that the Confrontation
Clause of the Sixth Amendment prohibits the admission of an out-of-
court testimonial statement made by a declarant who does not testify at
trial, unless the proponent can show that the author of the statement is
unavailable to testify, and that defendant had a prior opportunity to
cross-examine her. Id. at 59, 68. The out-of-court statement at issue here
did not implicate Chavez-Tavena’s confrontation rights because, among
other things, the declarant testified at trial, affording Chavez-Tavena all
that was required to satisfy his confrontation rights – an opportunity for
cross-examination. See id.

III.   Challenge to Preclusion of Defendant’s Out-of-Court Statement

¶11           Chavez-Tavena argues for the first time on appeal that the
superior court abused its discretion in precluding him from relaying his
out-of-court statement denying his wife’s accusations the day of the
incident, because the statement was not hearsay and should have been
admitted to complete the story under Arizona Rule of Evidence 106. We
review the court’s ruling on the admissibility of evidence for an abuse of
discretion, see Tucker, 205 Ariz. at 165 ¶ 41, 68 P.3d at 118, and claims


                                     4
                       STATE v. CHAVEZ-TAVENA
                          Decision of the Court

raised for the first time on appeal for fundamental error, Henderson, 210
Ariz. at 567 ¶ 19, 115 P.3d at 607.

¶12             The superior court neither abused its discretion nor
fundamentally erred to defendant’s prejudice in sustaining the
prosecutor’s objection. Chavez-Tavena’s argument that the statement was
not hearsay fails: a defendant’s out-of-court statement is hearsay unless
the opposing party offers it in evidence, see Ariz. R. Evid. 801(d), or it is
admissible under some other exception to the hearsay rule. Chavez-
Tavena does not argue that his statement was admissible under an
exception to the hearsay rule, and no exception appears applicable. And
even if his statement was somehow admissible, any error did not
prejudice him, because the jury heard evidence of Chavez-Tavena’s
denials of his wife’s accusations. His wife testified at trial that when she
confronted Chavez-Tavena the day of the incident, he denied her
accusations. He also testified at trial that he had never touched the victim
inappropriately or engaged in any of the sex acts of which he was
accused. Furthermore, the record reflects that Chavez-Tavena ultimately
testified what he had said in response to his wife’s accusations on redirect
examination, when defense counsel informed him without objection,
“You can say what you said.” Chavez-Tavena then testified, “I said, what
are you talking about? And then she started screaming things like that
and my friend was there, Javier. I said, you know what, if I did this, I
said, let’s go to the police station right now. I said, let’s go. And she said,
whatever she said which was she said, well --.” On this record, the court
did not err, much less fundamentally err to Chavez-Tavena’s prejudice in
its initial ruling.

IV.     Claims of Prosecutorial Misconduct

¶13           Chavez-Tavena argues that the prosecutor repeatedly
engaged in misconduct during trial and in closing arguments, denying
him a fair trial. Chavez-Tavena failed to object on grounds of
prosecutorial misconduct to any of the issues he raises on appeal, and
accordingly bears the burden of establishing fundamental error resulting
in prejudice. See Henderson, 210 Ariz. at 568 ¶ 22, 115 P.3d at 608. Chavez-
Tavena has not met his burden.

¶14          “[P]rosecutorial misconduct ‘is not merely the result of legal
error, negligence, mistake, or insignificant impropriety, but, taken as a
whole, amounts to intentional conduct which the prosecutor knows to be
improper and prejudicial and which he pursues for any improper
purpose with indifference to a significant resulting danger of mistrial.’”


                                      5
                      STATE v. CHAVEZ-TAVENA
                         Decision of the Court

State v. Aguilar, 217 Ariz. 235, 238-39 ¶ 11, 172 P.3d 423, 426-27 (App.
2007) (quoting Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261,
271-72 (1984)). To determine whether a prosecutor’s remarks are
improper, we consider whether the remarks called to the jurors’ attention
matters they would not be justified in considering, and the probability,
under the circumstances, that the remarks influenced the jurors. State v.
Jones, 197 Ariz. 290, 305 ¶ 37, 4 P.3d 345, 360 (2000). “To prevail on a claim
of prosecutorial misconduct, a defendant must demonstrate that the
prosecutor’s misconduct so infected the trial with unfairness as to make
the resulting conviction a denial of due process.” State v. Morris, 215 Ariz.
324, 335 ¶ 46, 160 P.3d 203, 214 (2007) (citation and internal punctuation
omitted). “The misconduct must be so pronounced and persistent that it
permeates the entire atmosphere of the trial.” Id. (citation and internal
punctuation omitted).

      A.     Defiance of Evidentiary Rulings

¶15           The record fails to support Chavez-Tavena’s argument that
the prosecutor repeatedly defied the court’s evidentiary rulings about
what his wife heard on the recording. In fact, in each of the cited
instances, the court overruled Chavez-Tavena’s objections. The record
also fails to support Chavez-Tavena’s argument that the prosecutor
engaged in misconduct by continuing, after the court sustained his
objection, to question his wife on whether she believed Chavez-Tavena
was under the influence the day of his arrest. The court sustained the
initial objection on the ground that the prosecutor had not laid the
necessary foundation, and the prosecutor’s subsequent questions were an
appropriate and ultimately successful attempt to overcome this objection.
Chavez-Tavena’s argument that the prosecutor had engaged in
misconduct by asking leading questions on these issues is also misplaced.
It was not impermissible for the prosecutor to ask leading questions to lay
foundation for the testimony on these issues. See Ariz. R. Evid. 611(c);
State v. Hunter, 5 Ariz. App. 112, 116-17, 423 P.2d 727, 731-32 (App. 1967).

      B.     Undisclosed Other Acts

¶16          The cited record does not support Chavez-Tavena’s
argument that the prosecutor engaged in misconduct by eliciting
undisclosed other acts that Chavez-Tavena had committed, specifically
his prior assaults of his wife, and his threats after the charged
molestation. Defense counsel opened the door to admission of prior
assaults by noting in his opening statement that in an earlier attempt to
get Chavez-Tavena out of the house, his wife had filed a domestic


                                     6
                      STATE v. CHAVEZ-TAVENA
                         Decision of the Court

violence complaint with police and told them that he had hit her. When
the prosecutor objected that defense counsel was improperly referring to
this and other undisclosed other acts, including the mother’s supposed
extramarital affairs, defense counsel noted, “all of this is going to come
out. It’s in the police report.” Under these circumstances, the prosecutor’s
questioning about prior assaults was not improper. Nor was it
fundamental, prejudicial error for the prosecutor to ask the wife about
her contact with Chavez-Tavena after the incident and before he was
arrested a month later, which prompted her to volunteer in part that
during the time that Chavez-Tavena eluded police, he “would call me
and continued to call me and threaten.” See State v. Rockwell, 161 Ariz. 5,
11, 775 P.2d 1069, 1075 (1989) (holding unsolicited remark that defendant
“started being rough with me” did not constitute fundamental error).

      C.     Undisclosed Expert Opinion

¶17           The prosecutor did not engage in misconduct by asking one
of his expert witnesses, a child-abuse pediatrician, why a perpetrator
would not want to harm a child, without first disclosing the substance of
the expert’s testimony on this issue, or the studies upon which she relied
for that testimony. At the time, defense counsel agreed that the question
was appropriate as long as the prosecutor was able to lay sufficient
foundation, and the court suggested the prosecutor “rephrase to ask her
opinion based on her experience.” The prosecutor rephrased the question,
asking based on “your training and experience or even studies that exist,”
and the expert responded, “Well, causing pain and injury in the course of
sexual abuse can lead to detection of a perpetrator and can lead to limited
access or lack of further access to a child.” Under these circumstances, the
prosecutor did not engage in any misconduct.

      D.     Attack on DNA Expert

¶18         The prosecutor’s cross-examination of Chavez-Tavena’s
DNA expert did not rise to the level of intentional misconduct denying
him a fair trial. The DNA expert had testified that the evidence was
inconclusive as to the presence of sperm on the victim’s underwear, but
the small number of sperm heads reported would be consistent with the
low number that arises during secondary transfer.

¶19        The question at issue on appeal followed the expert’s
admission that Chromosomal Labs, his employer, operates a website
called CaughtHerCheating.com, to which customers would send
underwear for testing to determine if a partner was having a sexual affair.



                                     7
                      STATE v. CHAVEZ-TAVENA
                         Decision of the Court

The prosecutor then asked:

      So on one hand, you’re willing to allow people to submit
      underwear to your company, destroy their lives, destroy
      their families, destroy their livelihood, and you don’t even
      take the time to say, hold up, caution, it could be secondary
      transfer, do you?

Chavez-Tavena did not object.

¶20          Impeachment of an expert witness by professional conduct
inconsistent with trial testimony is appropriate. In this case, although the
phrasing of the prosecutor’s question could have arguably been viewed
as disparagement of a witness, the expert’s response minimized any
prejudice from the phrasing of the question. The expert detailed the legal
and factual distinctions between this case and the type of cases submitted
to ascertain whether a partner was cheating. On this record, the
prosecutor’s question did not rise to the level of deliberate misconduct
that denied Chavez-Tavena a fair trial.

      E.     Referring to Defense Counsel’s Opening Statement

¶21          The prosecutor did not intentionally engage in improper
conduct by asking the police officer who had impounded a belt from
Chavez-Tavena the day of his arrest whether defense counsel was wrong
when he purportedly said in his opening statement that Chavez-Tavena
did not even own a belt. Defense counsel actually said in his opening
statement that the State was going to claim a metal jangling sound on the
recording was the sound of Chavez-Tavena taking off his belt, but that
the evidence would show that he was not wearing a belt the day of the
incident.

¶22          Statements by counsel in openings are not appropriate
matters for cross-examination. State v. Woods, 141 Ariz. 446, 453-54, 687
P.2d 1021, 1028-29 (1984). In this case, however, just as in Woods, we
conclude that the improper reference did not prejudice Chavez-Tavena.
See id. When Chavez-Tavena objected on the ground that the prosecutor
had misstated defense counsel’s opening statement, the superior court
instructed the jury “to recall that for themselves.” The prosecutor’s
follow-up questions focused on the fact that Chavez-Tavena was wearing
a belt when he was arrested, rather than defense counsel’s opening
statement. The court subsequently instructed the jury that what the
lawyers said in opening statements and closing arguments was not



                                     8
                      STATE v. CHAVEZ-TAVENA
                         Decision of the Court

evidence, but might help them to understand the evidence. On this
record, the prosecutor’s reference to defense counsel’s opening statement
in his questioning of this officer did not constitute misconduct, much less
deny Chavez-Tavena a fair trial.

      F.     Inquiry into Possession of Pornography

¶23           Nor did the prosecutor engage in misconduct by impeaching
the credibility of Chavez-Tavena with regard to his denial that he enjoyed
penile-anal sex (conduct that the victim accused him of forcing on her) by
asking him if he had pornography in his bedroom that depicted penile-
anal sex. Chavez-Tavena acknowledged that he did have such
pornography in his bedroom. Arizona Rule of Evidence 608(b) permits
impeachment of a witness through inquiry into specific instances. The
question was not improper.

      G.     Vouching in Closing Argument

¶24         The record fails to support Chavez-Tavena’s argument that
the prosecutor engaged in vouching in closing argument by the repeated
use of “we” or “I” or by ostensible references to his personal beliefs.

¶25           There are “two forms of impermissible prosecutorial
vouching: 1) where the prosecutor places the prestige of the government
behind its witness; [and] 2) where the prosecutor suggests that
information not presented to the jury supports the witness’s testimony.”
State v. King, 180 Ariz. 268, 276-77, 883 P.2d 1024, 1032-33 (1994) (citation
omitted). This Court has reviewed the complained-of remarks, and
concludes that, in context, the prosecutor’s remarks did not constitute
vouching. See id.

¶26          On this record, we conclude that the prosecutor did not
engage in misconduct, much less misconduct that permeated the entire
atmosphere of the trial or “so infected the trial with unfairness as to make
the resulting conviction a denial of due process.” See Morris, 215 Ariz. at
335 ¶ 46, 160 P.3d at 214.

V.     Challenge to DCAC Enhancement

¶27          Chavez-Tavena argues that the superior court violated
Apprendi v. New Jersey, 530 U.S. 466 (2000) by enhancing his sentences for
sexual conduct with a minor and molestation as Dangerous Crimes
against Children (DCAC) pursuant to A.R.S. § 13-705 (A), (D), and (P)(1),
based on a jury’s finding that the victim was under the specified age,


                                     9
                      STATE v. CHAVEZ-TAVENA
                         Decision of the Court

without requiring the jury to find that he had targeted the victim. The
superior court did not err.

¶28          For the DCAC enhancement to apply, “the defendant’s
conduct must be focused on, directed against, aimed at, or target a victim
under the age of fifteen.” State v. Williams, 175 Ariz. 98, 103-04, 854 P.2d
131, 136-37 (1993); see also A.R.S. § 13-705 (A) (providing for life
imprisonment for sexual conduct with a minor who is 12 or younger);
A.R.S. § 13-705(P)(1) (defining dangerous crime against children as
including molestation of a child and sexual conduct with a minor
committed “against a minor who is under fifteen years of age”). The jury
is not required to make an express finding that the conduct targeted a
child to apply the DCAC enhancement, however, when targeting is
inherent in the elements of the offense. See Williams, 175 Ariz. at 103-04,
854 P.2d at 136-37; see also Blakely v. Washington, 542 U.S. 296, 303 (2004)
(interpreting Apprendi to allow a judge to impose a sentence greater than
the statutory maximum only based on facts reflected in jury verdict,
admitted by defendant, or submitted to jury).

¶29           As our supreme court has noted, as a practical matter, “[i]t is
impossible to imagine how . . . molestation [and] sexual conduct . . . could
be committed without targeting persons.” Williams, 175 Ariz. at 104, 854
P.2d 137. The jury’s verdict that Chavez-Tavena was guilty of molestation
of a child under the age of 15 and five counts of sexual conduct with a
minor under the age of 15, coupled with its finding that the victim of the
sexual conduct counts was under 12 years of age, was sufficient to apply
the DCAC enhancements. See Williams, 175 Ariz. at 103-04, 854 P.2d at
136-37; Blakely, 542 U.S. at 303.

VI.    Conclusion

¶30          Chavez-Tavena’s convictions and sentences are affirmed.




                                    :gsh




                                     10
