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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  JESUS ALFREDO MORALES, Appellant.

                             No. 1 CA-CR 19-0115
                              FILED 10-29-2019

             Appeal from the Superior Court in Yuma County
                        No. S1400CR201800309
                The Honorable Brandon S. Kinsey, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Torok Law Office PLLC, Yuma
By Gregory T. Torok
Counsel for Appellant
                            STATE v. MORALES
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley1 delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge David D. Weinzweig joined.


P O R T L E Y, Judge:

¶1            Jesus Morales appeals his conviction and sentence for sexual
assault. For the reasons below, we affirm.

           FACTUAL2 AND PROCEDURAL BACKGROUND

¶2           In early 2011, Morales sexually assaulted his then-wife while
she was sleeping. After the assault, she kicked him out of their home. She
contacted the police about the assault in 2013. Although she was willing to
record a confrontation call with Morales, she did not know his phone
number, but had only the family number and did not believe his family
would allow her to talk to him.

¶3              Unexpectedly, Morales called the victim in 2014, and she
recorded part of the conversation on her cell phone. She testified she
recognized his voice on the phone and was certain the call was with
Morales. During the call, she repeatedly asked him why he sexually
assaulted her and, at one point, Morales responded “I shouldn’t have done
it; I did it.” At other times during the call, when asked, he responded that
he “did it to get closer to” her, “to take revenge,” or out of “jealousy.”

¶4           Morales was indicted for sexual assault involving domestic
violence on March 22, 2018. Before trial, Morales moved in limine to prevent
the State from using the recorded phone call. The trial court held an
evidentiary hearing, heard from the victim and found that the recording



1      The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.

2      We review the facts and all reasonable inferences therefrom in the
light most favorable to sustaining the verdict. State v. Stroud, 209 Ariz. 410,
412, ¶ 6 (2005).


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                            STATE v. MORALES
                            Decision of the Court

had sufficient foundation and was otherwise admissible. The court denied
the motion in limine.

¶5             At trial, the jury heard the victim identify the marked exhibit,
the State’s copy of the recording, which was identical to the original she had
recorded in 2014. She identified her voice and Morales’ voice on the
recording. She also testified that she initially gave a copy of the recording
to the police in 2014 and a second copy in 2017. The second copy, which
was marked as an exhibit, was admitted.

¶6            The jury, after hearing testimony, instructions and argument,
convicted Morales as charged. He was subsequently sentenced to prison
for five and one quarter years. He then filed this appeal.

                                DISCUSSION

¶7            On appeal, Morales challenges the trial court’s decision to
admit the victim’s recording of her phone call with Morales. We review the
admission of evidence for abuse of discretion. State v. Burns, 237 Ariz. 1, 18,
¶ 54 (2015).

¶8            First, Morales argues the recording should have been
excluded based on Arizona Rule of Evidence 106. Rule 106, in relevant part,
requires that “[i]f a party introduces all or part of a . . . recorded statement,
an adverse party may require the introduction, at that time, of any other
part—or any other writing or recorded statement—that in fairness ought to
be considered at the same time.” Ariz. R. Evid. 106.

¶9             Rule 106 is a rule “of inclusion not exclusion” that allows the
adverse party to concurrently introduce other parts of the statement or
related statements, and to give full context to the statement. State v.
Champagne, 247 Ariz. 116, 134, ¶ 44 (2019). Although Morales characterizes
the admitted recording as a “partial recording,” the recording had no other
parts, contemporaneously made, to be admitted. The admitted exhibit was
the entire recording of a part of the phone conversation between the former
spouses, though counsel agreed to certain redactions. Moreover, the victim
testified that Morales called her unexpectedly and she began the recording
during the conversation. No one else witnessed the call or recording, and
Morales did not try to introduce any additional part of the recording. Thus,
the trial court did not abuse its discretion by admitting the recording under
Rule 106. See Burns, 237 Ariz. at 18, ¶ 54.

¶10           Second, Morales argues that Rule 403 barred the recording
because its probative value is substantially outweighed by unfair prejudice.


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                             STATE v. MORALES
                             Decision of the Court

But the recording was relevant to the State’s case and not so unfairly
prejudicial as to outweigh its substantial probative value. See State v.
Guarino, 238 Ariz. 437, 440, ¶ 9 (2015) (“[W]hile evidence that makes a
defendant look bad may be prejudicial in the eyes of jurors, it is not
necessarily unfairly so.”).

¶11           The recording directly addressed the sole issue in the case:
whether Morales sexually assaulted the victim. Nor do we find that the
recording confused the issues or misled the jury. The recording contained
his statements about his behavior, which strongly suggested he sexually
assaulted the victim, including multiple statements that are tantamount to
an admission. Accordingly, the trial court did not abuse its discretion by
finding the probative value of the recording was not outweighed by the risk
of unfair prejudice. See State v. Ortiz, 238 Ariz. 329, 334–35, ¶¶ 12–13 (App.
2015).

¶12           Additionally, to the extent that Morales argues he was
prejudiced by the fact the recording only contained a part of the
conversation, nothing in Rule 403 prohibits the admission of the recording,
or supports his assertion that he may have made unrecorded exculpatory
statements to the victim. Thus, we find no abuse of discretion in admitting
the recording.

¶13            Morales next argues that the recording should have been
barred by Rule 1002. The rule requires “[a]n original . . . recording . . . unless
these rules or an applicable statute provide otherwise.” Ariz. R. Evid. 1002.
His argument ignores Rule 1003, which provides “[a] duplicate is
admissible to the same extent as the original unless a genuine question is
raised about the original’s authenticity or the circumstances make it unfair
to admit the duplicate.” Ariz. R. Evid. 1003. Because Morales does not cite
to any case, statute, or rule that original recordings are required to prove
the truth of the matter asserted, and Rule 1003 permits the use of a duplicate
recording, the court did not abuse its discretion in admitting the recording.

¶14           Finally, Morales also raises several arguments for the first
time in his reply brief. He contends he did not have a fair opportunity to
inspect the recording before trial and his right to due process was denied
because of the passage of time in this case. He did not raise these arguments
in the superior court, and we do not consider arguments raised for the first
time in a reply brief. State v. Johnson, 247 Ariz. 166, 205, ¶ 160 n. 3 (2019).
Moreover, Morales’ inspection argument also fails because he concedes that
the recording was disclosed before trial.




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                           STATE v. MORALES
                           Decision of the Court

¶15           Even if Morales had preserved his argument that the length
of time between his conduct and the prosecution violated his due process
rights, we are not required to vacate his conviction or remand the case for
dismissal. “The primary guarantee against a stale prosecution”—taking too
long to prosecute a defendant—“is the statute of limitations.” State v.
Broughton, 156 Ariz. 394, 397 (1988). Morales does not argue that the statute
of limitations barred his prosecution, or show that the State intentionally
delayed his prosecution. See id. (a defendant must show intentional delay
of proceedings by the prosecution to gain a “tactical advantage” or to harass
the defendant to establish a due process violation arising from pre-
indictment delay).

¶16           Instead, he argues only that the combination of the admission
of the recording and length of time between the assault and the recording
constituted cumulative error. This argument fails because, as we have
determined, the recording was properly admitted in evidence, and Morales
himself was responsible for the gap between the assault and the recording
because he voluntarily called the victim some three years after the assault.
We do not find any cumulative error because none occurred, and Arizona
courts do not subscribe to the concept of the cumulative error in the
admission of evidence. See State v. Ellison, 213 Ariz. 116, 133, ¶ 59 (2006).

                              CONCLUSION

¶17          Based on the foregoing, we affirm the verdict and sentence.




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

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