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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 MIGUEL REBOLLAR ZARCO, Appellant.

                             No. 1 CA-CR 15-0470
                                 FILED 7-28-16


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-002088-001
               The Honorable Warren J. Granville, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

Law Office of Brent E. Graham, PLLC, Glendale
By Brent E. Graham
Counsel for Appellant
                            STATE v. ZARCO
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Patricia K. Norris joined.


P O R T L E Y, Judge:

¶1            Miguel Zarco (“Zarco”) appeals his conviction and sentences
for three sexual offenses. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            The victim contacted the police and reported that Zarco had
molested her fifteen years earlier. After an investigation, which included
Zarco confessing to two acts and a confrontation call, Zarco was charged
with three counts of child molestation and one count of sexual conduct with
a minor involving the victim.1

¶3            The case went to trial and a jury was empaneled. Hours
before opening statements, Zarco’s lawyer advised the State by email that
he intended to “admit evidence of [the victim’s] prior sexual history” by
seeking “to admit evidence that [Zarco’s brother Gustavo] engaged in oral
sex with [the victim] when she was a child,” “admit her conflicting
statements regarding these acts,” as well as the fact that “she later denied
remembering” that those acts happened. In response, the State filed a
motion in limine to preclude the use of the statements, arguing that Zarco
had failed to comply with the notice requirement of Arizona Revised
Statutes (“A.R.S.”) section 13-1421(B),2 the rape shield law, which describes
the procedural steps that must be followed before a party can introduce
“[e]vidence of false allegations of sexual misconduct made by the victim
against others.” A.R.S. § 13-1421(A)(5). After argument, the court granted
the motion on procedural and substantive grounds, and later denied
Zarco’s motion for reconsideration.




1 Zarco was also charged with three counts involving another victim. The
jury, however, acquitted Zarco on one charge and hung on the other two
charges involving the other victim.
2 We cite to the current version of the statute unless otherwise noted.



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                             STATE v. ZARCO
                            Decision of the Court

¶4            The trial proceeded, and the jury found Zarco guilty of sexual
conduct with a minor (“count two”) and of two counts of molestation of a
child (“counts three and four”). He was subsequently sentenced to life in
prison, with the possibility of parole after thirty-five years, for count two,
and consecutive prison terms of thirteen years each for counts three and
four.

¶5             Zarco appealed, and we have jurisdiction pursuant to Article
6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-
4031, and -4033(A)(1).

                               DISCUSSION

¶6            Zarco argues that his due-process rights to impeach the victim
were violated when the court refused to allow him to confront the victim
about her statements about his brother, Gustavo. We review a trial court’s
decision to admit or preclude evidence subject to the rape shield law for an
abuse of discretion. State v. Herrera, 232 Ariz. 536, 549, ¶ 38, 307 P.3d 103,
116 (App. 2013). We review the interpretation of statutory provisions de
novo. State ex rel. Montgomery v. Padilla, 238 Ariz. 560, 564, ¶ 12, 364 P.3d
479, 483 (App. 2015).

¶7              Arizona’s rape shield statute protects victims of sexual
offenses (including child-molest cases, State v. Oliver, 158 Ariz. 22, 27, 760
P.2d 1071, 1076 (1988)) “from being exposed at trial to harassing or
irrelevant questions concerning any past sexual behavior.”3 State v.
Gilfillan, 196 Ariz. 396, 400-01, ¶ 15, 998 P.2d 1069, 1073-74 (App. 2000). The
statute, however, has five exceptions to the general ban, including
“evidence of false allegations of sexual misconduct made by the victim
against others.” A.R.S. § 13-1421(A)(5). If the trial court finds the evidence
relevant and material to a fact in issue, and concludes that the inflammatory
or prejudicial nature of the evidence does not outweigh its probative value,
A.R.S. § 13-1421(A), the exception “allows a defendant to introduce
evidence of a victim’s previous false accusations against others.” Gilfillan,
196 Ariz. at 401, ¶ 16, 998 P.2d at 1074.




3The rape shield statute “seemingly codifies the rule enunciated in the
Arizona Supreme Court case State ex rel. Pope v. Superior Court in and For
Mohave County, 113 Ariz. 22, 545 P.2d 946 (1976), and its progeny.” State v.
Gilfillan, 196 Ariz. 396, 401 n.3, ¶ 16, 998 P.2d 1069, 1074 n.3 (App. 2000).


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                             STATE v. ZARCO
                            Decision of the Court

Preclusion of the Evidence

¶8           Zarco specifically argues the court abused its discretion “by
not permitting [the victim] to be impeached with her prior inconsistent
statements involving false allegations against [his] brother.” He concedes
the evidence he wanted to introduce was subject to A.R.S. § 13-1421, but
argues the court abused its discretion by precluding him from using the
statements on timeliness grounds.

¶9            Section 13-1421(B) provides that evidence falling under the
rape-shield-law exceptions “shall not be referred to in any statements to a
jury or introduced at trial without a court order after a hearing on written
motions is held to determine the admissibility of the evidence.” Because
rape shield statutes are “designed to protect victims of rape from being
exposed at trial to harassing or irrelevant questions concerning their past
sexual behavior,” the notice-and-hearing requirements represent “valid
legislative determination[s] that rape victims deserve heightened
protection against surprise, harassment, and unnecessary invasions of
privacy.” Gilfillan, 196 Ariz. at 402, ¶ 21, 998 P.2d at 1075 (quoting Michigan
v. Lucas, 500 U.S. 145, 146, 150 (1991)). Moreover, our notice-and-hearing
requirement provides “procedural safeguards to reduce inaccuracies and
prejudicial evidence.” Id. at 403, ¶ 23, 998 P.2d at 1076.

¶10            Here, without any prior notice and after trial had begun,
Zarco’s lawyer sent the prosecutor an email stating he intended to elicit
evidence of supposed false allegations made by the victim about Gustavo.
Although the email message is not in the record, Zarco’s lawyer told the
trial court that:

              [The victim] told Officer Valenzuela that
              Gustavo forced her to perform oral sex on him
              on multiple occasions, and then three weeks
              later in speaking with Detective Sanchez when
              Detective Sanchez was inquiring as to what
              Gustavo did, she sa[id], “I don’t remember
              Gustavo doing anything other than offering me
              $5 to do something.”

When the court asked the lawyer about the timing of the disclosure, he
replied:

              I did not notice the line in Officer Valenzuela’s
              report until I was reviewing it again yesterday



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                              STATE v. ZARCO
                             Decision of the Court

              in preparation . . . I have no problem
              acknowledging that I should have noticed that
              in Officer Valenzuela’s report earlier. I just
              didn’t notice it.

The court found “that there [was] a late disclosure issue” and the next day
noted that defense counsel had failed to comply with the “specific [notice]
requirements” of the statute.

¶11           Section 13-1421(B) expressly requires that evidence falling
under one of the exceptions of A.R.S. § 13-1421(A) “shall not” be used
during trial unless there is first a “hearing on written motions.” Zarco’s
lawyer did not, however, file a motion before trial. He did not recognize
any inconsistency between the time the State provided notice of disclosure
in September 2014 and the empaneling of the jury on April 6, 2015.

¶12           Although the statute gives the court discretion to excuse the
written-motion requirement for new evidence “discovered during the
course of the trial,” A.R.S. § 13-1421(B), the statute does not otherwise
excuse the written-motion requirement. Here, the State provided counsel
with discovery, but he did not timely file a motion requesting a hearing
before trial. Because Zarco did not comply with the written-motion
requirement, the court did not err by granting the State’s motion in limine
based on the untimely request. See Gilfillan, 196 Ariz. at 403, ¶ 20, 998 P.2d
at 1075 (noting that “a defendant’s right to present relevant testimony is not
limitless,” and “may, in appropriate cases, bow to accommodate other
legitimate interests in the criminal trial process”) (citations omitted); see also
Lucas, 500 U.S. at 152 (“[T]he Sixth Amendment does not confer the right to
present testimony free from the legitimate demands of the adversarial
system.”) (citation omitted).4


4 Because we find that the court did not err by precluding Zarco from
attempting to impeach the victim on statutory procedural grounds, we do
not have to address whether the court abused its discretion by finding that
none of the exceptions in § 13-1421 were met, that the information Zarco
sought to have admitted was not relevant, but if it was relevant, it is
precluded by Arizona Rule of Evidence 403. See State v. Payne, 233 Ariz.
484, 503, ¶ 52, 314 P.3d 1239, 1258 (2013) (explaining that trial courts have
discretion to exclude otherwise admissible evidence under Rule 403 “if its
probative value is substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting



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                            STATE v. ZARCO
                           Decision of the Court

                              CONCLUSION

¶13          Based on the foregoing, we affirm Zarco’s convictions and
sentences.




                                  :jt


time, or needlessly presenting cumulative evidence”) (citation omitted);
Gilfillan, 196 Ariz. at 404-05, ¶ 29, 998 P.2d at 1077-1078 (noting that “the
court has considerable discretion in determining whether the probative
value of the evidence [of a false accusation of sexual misconduct] is
substantially outweighed by its unfairly prejudicial effect.”).



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