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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   EFRAIN GALVEZ-GALVEZ, Appellant.

                              No. 1 CA-CR 17-0128
                                FILED 7-10-2018


            Appeal from the Superior Court in Maricopa County
                         No. CR2015-001282-001
               The Honorable Bradley H. Astrowsky, Judge

                                   AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

The Poster Law Firm PLLC, Phoenix
By Rick D. Poster
Counsel for Appellant



                        MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Randall M. Howe and Judge Jennifer M. Perkins joined.
                       STATE v. GALVEZ-GALVEZ
                          Decision of the Court

S W A N N, Judge:

¶1            Efrain Galvez-Galvez appeals his convictions for six counts of
sexual conduct with a minor, one count of attempt to commit molestation
of a child, and one count of sexual abuse. He contends that the superior
court improperly admitted other-act evidence and should have required a
separate verdict form for the jury to find that the other acts had occurred.
He also contends that there was insufficient evidence to support one of the
sexual conduct convictions. We reject Galvez-Galvez’s contentions, and
affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2           For years, Galvez-Galvez would have “sleep-overs” with his
minor stepdaughter, Victim A. During the sleep-overs, Galvez-Galvez
would have sexual intercourse with Victim A. Galvez-Galvez also had
sexual contact with his minor daughter, Victim B.

¶3            The jury found Galvez-Galvez guilty of three counts of sexual
conduct with a minor for the conduct involving Victim A. The jury also
found him guilty of one count of attempt to commit molestation of a child,
one count of sexual abuse, and three counts of sexual conduct with a minor
for the conduct involving Victim B. The superior court imposed
consecutive prison terms totaling 120 years.

¶4            Galvez-Galvez appeals.

                               DISCUSSION

I.     THE SUPERIOR COURT DID NOT ERR BY ADMITTING OTHER-
       ACT EVIDENCE.

¶5            Galvez-Galvez first challenges the superior court’s pretrial
admission, under Ariz. R. Evid. (“Rule”) 404(b) and (c), of fifteen statements
made by Victim A referring to other acts committed by Galvez-Galvez.
Galvez-Galvez contends that the superior court failed to adequately
analyze the evidence as required by the rules of evidence. We review
rulings on evidence under Rule 404 for abuse of discretion. State v. Coghill,
216 Ariz. 578, 582, ¶ 13 (App. 2007). We will not overturn a conviction




1      We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


                                      2
                        STATE v. GALVEZ-GALVEZ
                           Decision of the Court

based on an erroneous evidentiary ruling if the ruling is harmless beyond
a reasonable doubt. State v. Beasley, 205 Ariz. 334, 340, ¶ 27 (App. 2003).

¶6             Evidence of a defendant’s past acts generally may not be
admitted to prove that the defendant committed similar acts on a different
occasion. Rule 404(a). The superior court may, however, admit evidence
of other acts to show a character trait giving rise to an aberrant sexual
propensity to commit the charged offense under Rule 404(c)(1)(B), or for
other purposes, such as demonstrating a plan or knowledge, under Rule
404(b). Before admitting the evidence, the court must first find that the
evidence is supported by clear and convincing evidence. Rule 404(c)(1)(A);
State v. Escalante-Orozco, 241 Ariz. 254, 278, ¶ 77 (2017); State v. Terrazas, 189
Ariz. 580, 582 (1997). Second, the court must find that the evidence is
relevant to demonstrating a character trait prompting an aberrant sexual
propensity to commit the charged offense or is relevant for other Rule
404(b) purposes. Rule 404(c)(1)(B); Escalante-Orozco, 241 Ariz. at 278, ¶ 77.
Finally, the court must find that the danger of unfair prejudice does not
substantially outweigh the probative value of the evidence. Rule
404(c)(1)(C); Escalante-Orozco, 241 Ariz. at ¶ 77. The court must explicitly
make each of these findings to admit evidence under Rule 404(c). Rule
404(c)(1)(D).

¶7            Here, the superior court made requisite findings for many of
the fifteen statements. The court expressly found clear and convincing
proof supporting all but one of the acts, for many of the acts expressly found
that the evidence was relevant to show a character trait giving rise to an
aberrant sexual propensity or a proper Rule 404(b) purpose, and for many
of the acts expressly considered many of the factors relevant to balancing
prejudice and the probative value of the evidence.

¶8              While the court did not explicitly make all of the findings
required by Rule 404(b) or 404(c) for each of the acts, consideration of the
entire trial record shows that this was harmless error. See State v. Vega, 228
Ariz. 24, 29, ¶ 18 (App. 2011) (concluding, based on entire trial record, that
the court’s admission of other-act evidence without making explicit 404(c)
findings was harmless error). There was clear and convincing proof of the
other acts. Victim A testified to all but one of the acts that the court deemed
admissible, and others’ testimony corroborated her description of the
family’s living and sleeping arrangements.2 Additionally, the court
instructed the jury that it could only consider the acts if the state proved

2     Because the victim did not testify to the remaining act, any error in
the admissibility determination was harmless.


                                        3
                       STATE v. GALVEZ-GALVEZ
                          Decision of the Court

that the defendant committed them by clear and convincing evidence, and
could only consider the other acts if it determined that they showed a
character trait giving rise to an aberrant sexual propensity to commit the
charged offenses or established one of the purposes listed in Rule 404(b).
We presume that the jury followed the instructions. State v. Newell, 212
Ariz. 389, 403, ¶ 68 (2006). Further, the court could reasonably have
concluded that unfair prejudice did not substantially outweigh the other
acts’ evidentiary value. The other acts described Galvez-Galvez’s sexual
contact with Victim A over a period of years, thereby providing relevant
evidence of his aberrant sexual propensity to commit the offenses charged
and his plan or knowledge to commit the offenses.

II.    THE SUPERIOR COURT DID NOT ERR BY FAILING TO PROVIDE
       A VERDICT FORM FOR THE OTHER-ACT EVIDENCE.

¶9            Galvez-Galvez next contends that the jury should have been
required to use a separate verdict form to determine that the state proved
the other-act evidence.        He contends that absent such separate
determinations, he can only speculate as to whether the jury was
improperly influenced by the other-act evidence. Because he failed to object
to the jury instructions at trial, we review for fundamental error. State v.
Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). To prevail, Galvez-Galvez must
establish the existence of fundamental error and resulting prejudice. Id. at
¶ 20.

¶10            Galvez-Galvez does not establish error, fundamental or
otherwise. He cites no authority requiring a separate verdict form for the
jury’s determination of proof of other acts. The court instructed the jury it
could only use the other-act evidence after determining sufficient proof and
discerning its proper purpose. Presuming the jury followed its instructions,
we conclude the jury properly evaluated the other-act evidence. See Newell,
212 Ariz. at 403, ¶ 68.

III.   SUFFICIENT EVIDENCE SUPPORTS THE JURY’S VERDICT ON
       COUNT 3.

¶11           Galvez-Galvez finally challenges the sufficiency of the
evidence supporting his conviction for Count 3, on which the jury found
Galvez-Galvez guilty of intentionally or knowingly engaging in sexual
intercourse or oral sexual contact with Victim A when she was a minor and
he was her stepfather. Galvez-Galvez contends that the state failed to prove
he was Victim A’s stepfather. We review the sufficiency of evidence de
novo. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). The question is whether



                                     4
                      STATE v. GALVEZ-GALVEZ
                         Decision of the Court

there is substantial evidence from which a rational trier of fact could have
found guilt beyond a reasonable doubt. State v. Routhier, 137 Ariz. 90, 99
(1983).

¶12          In this case, sufficient evidence exists to support the jury’s
finding that Galvez-Galvez was Victim A’s stepfather—Victim A and her
mother both testified to the same.

                               CONCLUSION

¶13           We affirm Galvez-Galvez’s convictions and sentences for the
reasons set forth above.




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




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