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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                SHAUN ANDREW PETERSON, Appellant.

                             No. 1 CA-CR 15-0106
                              FILED 9-8-2016


           Appeal from the Superior Court in Maricopa County
                      No. CR2013-000551-001 DT
              The Honorable Margaret R. Mahoney, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By William Scott Simon
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
                          STATE v. PETERSON
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Randall M. Howe joined.


C A T T A N I, Judge:

¶1            Shaun Andrew Peterson appeals his convictions and
sentences for five counts of sexual conduct with a minor and two counts of
child molestation. For reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           In 2007, Peterson moved in with the victim and the victim’s
mother (“Mother”) and brother (“Brother”).         The victim was in
kindergarten at the time. Mother had drug issues and she suffered from
mental illness; as a result, Peterson became the children’s primary
caregiver.

¶3            On February 28, 2012, Peterson contacted the police to report
that Mother had sexually abused the victim. That afternoon, Phoenix Police
Detective Leske met with Peterson and the victim at the Family Advocacy
Center. The victim reported a single act of sexual abuse, occurring in
October 2011, from which she had sustained a vaginal injury and bled for
three days. After meeting with Peterson and the victim, Detective Leske
went to the victim’s residence and spoke with Mother, who denied injuring
the victim.

¶4            Based on the reported injury, Detective Leske arranged for the
victim to have a medical examination by a pediatrician at Phoenix
Children’s Hospital.     The doctor first spoke with Peterson, who
accompanied the victim to the hospital and told the doctor that the victim
had accused Mother of injuring her. Upon examining the victim, the doctor
observed a “healed complete tear in the hymen” that was indicative of
penetrating trauma.

¶5            Soon thereafter, the victim, Brother, and Peterson moved in
with the victim’s maternal grandmother (“Grandmother”). Over the next
ten days, Grandmother noticed that the victim would frequently lie on
Peterson and that they would often text each other and then immediately



                                     2
                          STATE v. PETERSON
                          Decision of the Court

erase the texts. Grandmother relayed her concerns regarding these
behaviors to a police detective and asked Peterson to move out of her home.

¶6           On March 22, 2012, after interviewing Grandmother and
Brother, Detective Leske informed Mother that he was submitting the
evidence from his investigation to the Maricopa County Attorney’s Office
to determine whether charges should be filed against her. At that point,
Mother indicated that Peterson had recently acknowledged sexually
abusing the victim. Based on this information, Detective Leske arranged
for a “one-party consent call” in which Mother would confront Peterson
with sexual abuse allegations.

¶7           During the confrontation call, Peterson admitted touching the
victim’s genitals, digitally penetrating the victim’s vagina, and “almost
daily” oral–vaginal contact with the victim. Immediately after the
confrontation call, Detective Leske went to Mother’s house, where he found
Peterson. With Mother’s consent, the detective searched the home and
discovered that one of the bedroom mattresses had pieces cut out of it.

¶8            Detective Leske interviewed Peterson at the police station.
After being advised of his Miranda1 rights, Peterson told the detective that
he was “going to take the blame for [Mother].” Detective Leske instructed
Peterson to simply tell the truth, and Peterson said he would do so.

¶9             Peterson told Detective Leske that he first touched the
victim’s genitals when she was seven years old. Mother was at a hospice
facility caring for her grandmother and was unaware that Peterson had
touched the victim’s genitalia while they were cuddling under a blanket on
the couch. Peterson also admitted to having oral–vaginal contact and oral–
penile contact with the victim, and to having the victim manually touch his
genitals. Although Peterson claimed Mother was present during some of
the acts, he described himself as the perpetrator. Consistent with the
victim’s description, Peterson also admitted to digitally penetrating the
victim’s vagina in a manner that caused injury and bleeding. Peterson
stated that Mother was not present at that time. Peterson further informed
Detective Leske that several acts occurred on a bed, and he had cut out
portions of the mattress to remove stains. He likewise destroyed a secure
digital card that contained incriminating evidence.

¶10          The victim subsequently submitted to a second forensic
interview conducted by Wendy Dutton, a member of Phoenix Children’s


1     Miranda v. Arizona, 384 U.S. 436 (1966).


                                     3
                          STATE v. PETERSON
                          Decision of the Court

Hospital’s Child Protection Team. The victim told Dutton that Peterson,
not Mother, had sexually abused her.

¶11           Based on the victim’s revised statements and Peterson’s
confession, he was charged with five counts of sexual conduct with a minor
and two counts of child molestation.

¶12           At trial, the victim testified that after returning home from
school one afternoon, she and Peterson were alone upstairs and Mother was
outside. Peterson removed the victim’s clothing and digitally penetrated
her vagina, which caused pain and bleeding. The victim screamed, and
Peterson covered her mouth with his other hand. The victim then bit
Peterson’s hand, ran to the bathroom, and locked the door. The victim also
testified that Peterson repeatedly had oral contact with her genitals,
including while waking her from sleep. He also repeatedly had her orally
and manually touch his genitals.

¶13           Peterson testified, claiming that the victim told him that
Mother had sexually abused her. Peterson stated that he confronted Mother
with the accusation, then reported the abuse to the police. When asked why
he confessed to numerous acts of sexual abuse in the confrontation call,
Peterson explained that he “t[ook] the blame . . . to help throw off the
detective.” Peterson further stated that he was on numerous narcotic
medications that impaired his thinking. When questioned about his explicit
descriptions of various sex acts, both in the confrontation call and during
his interview with Detective Leske, Peterson claimed he was simply
recalling sex acts with Mother, not conduct with the victim. Peterson
denied having any type of sexual contact with the victim. He maintained
that he confessed to committing sexual abuse only “to confuse Detective
Leske” and testified that he thought the allegations of sexual acts with the
victim were “so outrageous” that no one would believe them. He likewise
asserted that he cut out stains from the mattress “to throw Detective Leske
off.”

¶14           The jury convicted Peterson as charged, and the superior
court sentenced him to four consecutive lifetime sentences for four of the
counts of sexual conduct with a minor, to be followed by consecutive prison
terms totaling 37 years on the remaining counts. Peterson timely appealed,




                                     4
                           STATE v. PETERSON
                           Decision of the Court

and we have jurisdiction under Arizona Revised Statutes (“A.R.S.”) § 13-
4033.2

                              DISCUSSION

I.    Preclusion of Prior Inconsistent Statement.

¶15            Peterson contends the superior court erred by precluding
evidence that Mother had committed an act of physical abuse against
Brother. Peterson argues that the court’s ruling prevented him from fully
presenting his third-party defense and hindered his ability to refute the
State’s assertion that Mother had never physically harmed the children.

¶16            The victim testified that although she was afraid of Mother,
Mother was never violent with her. Brother also testified that he was afraid
of Mother because she yelled and threw things at him and the victim, but
he also said Mother had never physically hurt him. Like the victim, Brother
testified that he felt safer with Peterson than with Mother. The prosecutor,
during closing argument, acknowledged that Mother had a volatile
temperament, but argued that she had “never” physically harmed her
children.

¶17           On cross-examination, defense counsel attempted to
introduce into evidence a transcript of Brother’s prior police interview in
which he stated that Mother had extinguished a cigarette on his hand.
Counsel asserted that the prior interview was relevant to impeach Brother’s
testimony that Mother never hurt him. The State objected, arguing that it
related to an alleged prior bad act and was inadmissible under Arizona
Rule of Evidence (“Rule”) 404(b). The court found the evidence “to be
clearly 404(b).” Defense counsel then sought to introduce the evidence for
impeachment purposes as a prior inconsistent statement, and the State
responded that the evidence was irrelevant, unduly prejudicial, and subject
to exclusion under Rule 404(b). The State further argued that it was unclear
from the interview transcript whether the cigarette burn was accidental or
intentional, and thus the evidence was not clearly impeachment material.
The superior court, “persuaded by all of the arguments the State ha[d]
made,” precluded the evidence. The court also noted that evidence Mother
committed a single act of physical abuse did not increase the likelihood that
she had committed multiple acts of sexual abuse, and therefore was of
limited probative value.


2     Absent material revisions after the relevant date, we cite a statute’s
current version.


                                     5
                            STATE v. PETERSON
                            Decision of the Court

¶18            We review the admissibility of third-party culpability
evidence for an abuse of discretion. State v. Prion, 203 Ariz. 157, 161, ¶ 21
(2002). We will affirm the superior court’s admissibility ruling if the result
is legally correct on any basis. State v. Carlson, 237 Ariz. 381, 387, ¶ 7 (2015).
As argued by Peterson and acknowledged by the State, the admission of
third-party culpability evidence is governed by Rules 401 through 403.
State v. Machado, 226 Ariz. 281, 284, ¶ 16 (2011); Prion, 203 Ariz. at 161, ¶ 22.
Accordingly, when evaluating the admissibility of third-party culpability
evidence, the general rules of evidence apply and evidence “must simply
be relevant and then subjected to the normal 403 weighing analysis between
relevance, on the one hand, and prejudice or confusion on the other.” Prion,
203 Ariz. at 161, ¶ 22.

¶19            Peterson contends that Brother’s prior statement to police
should have been admitted both substantively and for impeachment
purposes. A witness’s prior inconsistent statement is not hearsay and may
be introduced as substantive evidence when the witness testifies at trial and
is subject to cross-examination. Ariz. R. Evid. 801(d)(1)(A); see also State v.
Skinner, 110 Ariz. 135, 142 (1973); State v. Mills, 196 Ariz. 269, 274, ¶ 21 (App.
1999) (explaining that a “jury may consider prior inconsistent statements as
impeachment and as substantive evidence”).

¶20            The State argues that Brother’s trial testimony was not
inconsistent with his statement during the police interview because his
statement did not specify whether Mother put the cigarette out on his hand
intentionally. But Brother was not asked at trial whether Mother had ever
intentionally hurt him, but rather whether Mother had ever physically hurt
him. Brother’s repeated denial that Mother had ever caused him physical
harm was thus inconsistent with his statement during the police interview
that she had extinguished a cigarette on his hand. Accordingly, Brother’s
statement to police qualified as non-hearsay under Rule 801(d)(1)(A).

¶21            A prior inconsistent statement nevertheless may be precluded
under Rule 403 if its relevance is outweighed by the risk that it is unduly
prejudicial or confusing, or will mislead the jury. See also State v. Allred, 134
Ariz. 274, 277 (1982). Here, the superior court balanced the Rule 403 factors,
and did not abuse its discretion by precluding the proffered evidence as
tenuous, speculative, and of only marginal relevance. See State v. Dann, 205
Ariz. 557, 569, ¶ 36 (2003) (noting that a trial court need not allow “mere
suspicion or speculation” regarding another’s guilt, and that proffered
third-party culpability evidence is irrelevant if it fails to create a reasonable
doubt regarding the defendant’s guilt or if it fails the Rule 403 test due to
its “tenuous and speculative nature”).


                                        6
                           STATE v. PETERSON
                           Decision of the Court

¶22           Moreover, any possible error from precluding the evidence of
physical harm was harmless. See Delaware v. Van Arsdall, 475 U.S. 673, 684
(1986) (“The correct inquiry is whether, assuming that the damaging
potential of the cross-examination were fully realized, a reviewing court
might nonetheless say that the error was harmless beyond a reasonable
doubt.”). To evaluate the harm caused by improper denial of an
impeachment opportunity, we consider “the importance of the witness’
testimony in the prosecution’s case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or contradicting the
testimony of the witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the
prosecution’s case.” Id.

¶23            Applying these principles here, Brother’s testimony was of
minimal importance to the State’s case, and Peterson was able to present his
third-party defense without the physical harm evidence. First, Brother did
not witness any acts of sexual abuse and was not told Peterson sexually
abused the victim until after the victim’s revised disclosures to the police.
Thus, even if defense counsel had been permitted to use the prior
inconsistent statement to undermine Brother’s credibility and the weight
accorded his testimony, it would not have called into question the strength
of the State’s case. Second, although defense counsel was unable to elicit
any other evidence that Mother had engaged in an act of physical abuse,
the record includes significant evidence that Mother was unstable and
frightened the children, including by throwing things at them. Both Brother
and the victim testified that they were fearful of Mother and felt much safer
with Peterson. Third, other than this limitation, defense counsel was
permitted considerable latitude in cross-examining Brother. Fourth, and
most importantly, the evidence of Peterson’s guilt was overwhelming. In
both the confrontation call and in Peterson’s police interview, he explicitly
acknowledged numerous acts of sexual abuse. He also confessed to
destroying physical evidence of the sexual abuse. Likewise, in her revised
police statements and at trial, the victim identified Peterson as the
perpetrator. Accordingly, any error relating to Brother’s testimony was
harmless.

¶24           Although the superior court precluded evidence of Brother’s
prior inconsistent statement, the prosecutor’s argument that Mother never
physically harmed her children was improper. The court’s preclusion
ruling was not based on a finding that the evidence was inaccurate, and the
ruling did not justify an argument that the evidence did not exist.
Nevertheless, error from the prosecutor’s argument (which was not
evidence), was similarly harmless given the overwhelming evidence of


                                     7
                           STATE v. PETERSON
                           Decision of the Court

Peterson’s guilt and the limited relevance of information that Mother may
have previously harmed Brother physically.

II.    Denial of Motion for Mistrial.

¶25            Peterson contends the superior court erred by denying his
motion for mistrial. Specifically, he asserts the court should have declared
a mistrial after a witness referred to Mother’s voice-stress test results that
had been precluded by a previous court order.

¶26            We review the denial of a motion for mistrial for an abuse of
discretion. State v. Jones, 197 Ariz. 290, 304, ¶ 32 (2000). In evaluating
whether a mistrial is warranted, the superior court “is in the best position
to determine whether the evidence will actually affect the outcome of the
trial.” Id. In State v. Hallman, 137 Ariz. 31, 37 (1983), the Arizona Supreme
Court noted that, in making this determination, the court should consider
“(1) whether the remarks called to the attention of the jurors matters that
they would not be justified in considering in determining their verdict, and
(2) the probability that the jurors, under the circumstances of the particular
case, were influenced by the remarks.” Because a “declaration of a mistrial
is the most dramatic remedy for trial error,” it should be granted “only
when it appears that justice will be thwarted unless the jury is discharged
and a new trial granted.” State v. Adamson, 136 Ariz. 250, 262 (1983).

¶27          In the weeks leading up to trial, the parties stipulated that the
results of Mother’s voice-stress test were inadmissible, and the court
precluded evidence of the test.         At trial, however, Grandmother
volunteered that she doubted Mother had committed sexual abuse because
“she passed a lie detector test.” Defense counsel objected and moved for a
mistrial. The court denied the mistrial, but gave a curative instruction
informing the jury that no lie-detector test had ever been administered to
Mother and struck the portion of Grandmother’s testimony referring to
such a test:

       Ladies and gentlemen, you have just heard the witness
       mention a lie detector test. The parties stipulate there was no
       lie detector test given to [Mother]. You are further instructed
       that the Court is ordering striking from the record any
       testimony about a lie detector test. The jury is instructed to
       disregard that in its entirety, not consider it for any purpose.

¶28          During closing argument, defense counsel questioned the
veracity of Grandmother’s testimony by stating: “[Grandmother] testified
that [Mother] took a lie detector [test], when everyone agrees that didn’t


                                      8
                           STATE v. PETERSON
                           Decision of the Court

happen. [Grandmother] doesn’t want to see her daughter get in trouble.”
After defense counsel finished his argument, the court again admonished
the jurors that the testimony regarding a lie-detector test had been stricken
from the record and ordered the portion of defense counsel’s argument
referring to a lie-detector test stricken as well.

¶29            Applying the first prong of the Hallman test, Grandmother
clearly testified about evidence that was inadmissible. As to the second
prong, however, the superior court’s curative instructions minimized the
possibility that the improper evidence may have influenced the jury’s
verdicts. In fact, rather than simply striking Grandmother’s testimony as
improper, the court informed the jurors that Grandmother’s testimony was
incorrect. Thus, to the extent the jurors considered the stricken testimony,
in contravention of the court’s instruction, it was with the understanding
that Grandmother was either ill-informed about the administration of a lie-
detector test or she had lied about the existence of such a test. As shown by
defense counsel’s reference to the initial curative instruction in his closing
argument, any lingering harm caused by Grandmother’s errant testimony
undermined her credibility and inured to Peterson’s benefit. Accordingly,
the superior court did not abuse its discretion by denying Peterson’s motion
for mistrial.

III.   Denial of Counseling Records and Testimony.

¶30           Peterson argues the superior court impaired his constitutional
right to confront a witness by denying his discovery request for the victim’s
counseling records and by limiting counsel’s cross-examination of the
victim regarding counseling.

¶31             We generally review discovery rulings for an abuse of
discretion. State v. Connor, 215 Ariz. 553, 557, ¶ 6 (App. 2007). But to the
extent a defendant asserts a constitutional claim that the information is
critical to his defense, we review de novo. Id. We likewise review de novo
evidentiary rulings that implicate the Confrontation Clause. State v. Ellison,
213 Ariz. 116, 129, ¶ 42 (2006).

¶32           At the close of the fourth day of trial, defense counsel learned
that the victim had been in counseling. That evening, defense counsel
moved to compel the disclosure of the victim’s counseling records. At a
hearing on the motion, defense counsel argued that access to the records
was necessary to determine whether the victim had wavered on her claim
that Peterson was the perpetrator and also to establish whether the victim
was taking any medications that might affect her memory. The court



                                      9
                            STATE v. PETERSON
                            Decision of the Court

denied the motion, finding that defense counsel had failed to provide “any
kind of specific basis to believe that there’s anything in those counseling
records that would be relevant [and] exculpatory.” The following day,
while cross-examining the victim, defense counsel questioned her about
counseling and the State objected. The court sustained the State’s objection,
noting at a bench conference that the victim received counseling only after
she had revised her statements, and that counsel had not established a
good-faith basis to believe that the line of questioning would reveal any
exculpatory evidence.

¶33             Under the Victim’s Bill of Rights, a victim may refuse
“discovery request[s] by the defendant.” Ariz. Const. art. 2, § 2.1(A); see also
State ex rel. Romley v. Superior Court, 172 Ariz. 232, 239 (App. 1992). “[T]his
right is not absolute, and in some cases a victim may be required to produce
his or her medical records for in camera inspection by the trial court.” State
v. Sarullo, 219 Ariz. 431, 437, ¶ 20 (App. 2008); Connor, 215 Ariz. at 558, ¶ 11.
But a defendant must first make a showing that either the physician–patient
privilege has been waived or that the information sought is necessary to
fully present his defense or cross-examine witnesses. Connor, 215 Ariz. at
558, ¶ 11; see also Romley, 172 Ariz. at 239 (explaining that the defendant’s
due process rights to a fair trial overcome the Victim’s Bill of Rights and
mandate disclosure when the court determines the victim’s medical records
are either exculpatory or essential to the presentation of the defense).

¶34            In this case, defense counsel argued that the counseling
records “may” or “could” reveal that the victim’s memory was affected by
medication or that she was influenced to identify Peterson as the
perpetrator of the sexual abuse. But there was no evidence that the victim
had waivered after identifying Peterson as the perpetrator. And given that
the victim identified Peterson as the perpetrator before beginning
counseling, the superior court did not abuse its discretion by denying
Peterson’s request after finding that he had presented only speculation,
rather than a “sufficiently specific basis,” to believe there was information
that was exculpatory or otherwise essential to his defense. See Connor, 215
Ariz. at 558, ¶ 11.

IV.    Admission of Nonverbal Out-of-Court Response.

¶35          Peterson argues the superior court erred by admitting
evidence that Mother screamed when she saw that one of the mattresses
had portions removed. Specifically, Peterson asserts this nonverbal
conduct was “intended as an assertion” and therefore constituted
inadmissible hearsay.


                                       10
                           STATE v. PETERSON
                           Decision of the Court

¶36           At trial, Detective Leske testified that Mother accompanied
him as he searched her home. The prosecutor then asked what the detective
observed with respect to Mother when he flipped over a mattress, revealing
cut-out sections. Defense counsel objected, stating Mother’s reaction, a
scream, was a statement indicating surprise, the equivalent of saying “I
didn’t know that was there.” The court overruled the objection, finding that
“a reaction” such as a scream, laugh, or cry is not a statement, and thus
“there can’t be the truth within the statement being asserted.” Detective
Leske was then permitted to testify that Mother “screeched and began to
cry” when she saw the mattress.

¶37            We review the superior court’s evidentiary ruling for an
abuse of discretion. State v. Johnson, 212 Ariz. 425, 433, ¶ 25 (2006). We will
affirm the ruling if the result is legally correct for any reason. Carlson, 237
Ariz. at 387, ¶ 7.

¶38            An “oral assertion, written assertion, or nonverbal conduct”
is a “statement” (and may be hearsay) if intended as an assertion. Ariz. R.
Evid. 801(a). But “words or conduct not intended as assertions are not
hearsay even when offered as evidence of the declarant’s implicit belief of
a fact.” State v. Chavez, 225 Ariz. 442, 444, ¶ 8 (App. 2010). “When evidence
of conduct is offered on the theory that it is not a statement, and hence not
hearsay, a preliminary determination will be required to determine
whether an assertion is intended.” Fed. R. Evid. 801 advisory committee’s
note to 1972 proposed rules subdivision (a). “The rule is so worded as to
place the burden upon the party claiming that the intention existed;
ambiguous and doubtful cases will be resolved . . . in favor of
admissibility.” Id. And “[c]onduct can only be deemed an assertion if there
is specific evidence or circumstances indicating the actor intended the
conduct to be an assertion of the fact sought to be proved.” State v. Steinle,
239 Ariz. 415, 420, ¶ 22 (App. 2016); see also Ellison, 213 Ariz. at 132, ¶ 56
(noting that “[m]ere speculation as to [the individual’s] intent, without
independent evidence,” is insufficient to prove that nonverbal conduct was
intended as an assertion).

¶39          In this case, nothing in the record suggests Mother’s response
was intended as an assertion. Peterson did not present independent
evidence to support his claim that Mother intended to assert surprise by
shrieking and crying, and the superior court did not abuse its discretion by
allowing the detective’s testimony regarding Mother’s nonverbal response.




                                      11
                  STATE v. PETERSON
                  Decision of the Court

                      CONCLUSION

¶40   Peterson’s convictions and sentences are affirmed.




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




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