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     UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                            GABRIEL MACIAS, Appellant.

                                 No. 1 CA-CR 15-0505
                                  FILED 4-25-2017


                 Appeal from the Superior Court in Yuma County
                            No. S1400CR201400522
                 The Honorable John Neff Nelson, Retired Judge

  AFFIRMED IN PART; REVERSED IN PART; AND VACATED IN PART


                                       COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee

Debus, Kazan & Westerhausen, Ltd., Phoenix
By Tracey Westerhausen
Co-Counsel for Appellant

Ballecer & Segal, LLP, Phoenix
By Natalee E. Segal
Co-Counsel for Appellant
                           STATE v. MACIAS
                          Decision of the Court



                     MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Paul J. McMurdie joined.


J O N E S, Judge:

¶1            Gabriel Macias appeals his convictions and sentences for one
count of sexual assault (Count Two); one count of sexual abuse (Count
Three); four counts of child molestation (Counts Four, Seven, Eleven, and
Seventeen); seven counts of furnishing harmful items to minors (Counts
Five, Eight, Ten, Thirteen, Fourteen, Fifteen, and Nineteen); one count of
child prostitution (Count Six); one count of sexual conduct with a minor
(Count Twelve); one count of sexual exploitation of a minor (Count
Eighteen); and one count of aggravated assault with sexual motivation
(Count Twenty).1 Macias argues the trial court erred by denying a motion
to suppress, failing to properly instruct the jury, denying motions for
judgment of acquittal, admitting improper and prejudicial evidence, and
permitting duplicitous charges. He also contends the prosecutor engaged
in impermissible vouching during closing argument.2

¶2           For the following reasons, we reverse the conviction and
sentence imposed on one count of furnishing harmful items to minors
(Count Five), and vacate the convictions and sentences for one count of
sexual assault and one count of sexual abuse. We affirm the convictions
and sentences on the fourteen remaining counts.




1      Two additional counts of child molestation were dismissed for
insufficient evidence, and the jury acquitted Macias of a second count of
sexual exploitation of a minor.

2      Despite receiving three extensions of time to do so, Macias’ counsel
failed to timely file a reply brief. We therefore decline to consider any
responsive arguments made therein.




                                    2
                             STATE v. MACIAS
                            Decision of the Court

                FACTS3 AND PROCEDURAL HISTORY

¶3           Macias taught fourth, fifth, and sixth grades and sex
education classes from 2003 to 2006. In 2013, one of Macias’ former students
reported to police that Macias had touched him inappropriately when he
was a student. During the subsequent investigation, the police located
other former students who also reported being touched inappropriately by
Macias. Several of these victims also reported Macias showed them
pornographic material at his home.

¶4             The police executed a search warrant on Macias’ home and
seized adult pornographic VHS tapes; compact discs containing both adult
pornography and a pornographic video of a child performing a sex act on
an adult; Playboy and Maxim magazines; a college paper written by Macias
that discussed sex in ancient Greek society between older men and young
men in a positive light; and a computer that contained: (1) nude videos of
Macias and E.V. as a young teenager; (2) inappropriate chat messages
between Macias and E.V.; and (3) two computer diary entries, titled “Losing
[E.V.],” detailing Macias’ emotional turmoil after E.V.’s parents
discontinued contact between them. Following his arrest, Macias granted
the police access to his iPhone, which contained videos of E.V. masturbating
and a video of Macias masturbating while whispering, “I love you [E.V.].
This is only for you.”

¶5            Macias was ultimately convicted of the seventeen counts
identified in ¶ 1, supra. The trial court sentenced Macias to a term of life
imprisonment without the possibility of release for thirty-five years for
sexual conduct with a minor and to consecutive and concurrent
presumptive prison terms totaling an additional 114.25 years for all
remaining counts. Macias timely appealed. This Court has jurisdiction
under Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1),4 13-4031,
and -4033(A).




3      “We view the facts in the light most favorable to sustaining the jury’s
verdict[s].” State v. Burbey, 240 Ariz. 496, 498, ¶ 2 (App. 2016) (citing State
v. Dann, 205 Ariz. 557, 562 n.1, ¶ 1 (2003)).

4     Absent material changes from the relevant date, we cite a statute’s
current version.



                                      3
                              STATE v. MACIAS
                             Decision of the Court

                                 DISCUSSION

I.     Motion to Suppress

¶6              Macias argues the trial court erred in denying his motion to
suppress the items seized from his home because the information within
the affidavit supporting issuance of the warrant was stale, as the described
offenses had occurred more than seven years earlier. We generally review
a trial court’s ruling on a motion to suppress for an abuse of discretion, but
review constitutional and purely legal issues de novo. State v. Moody, 208
Ariz. 424, 445, ¶ 62 (2004) (citing State v. Prion, 203 Ariz. 157, 160, ¶ 14 (2002),
and then State v. Davolt, 207 Ariz. 191, 201, ¶ 21 (2004)). In doing so, “we
consider only evidence presented at the suppression hearing and view the
facts in the light most favorable to sustaining the trial court’s ruling.” State
v. Dean, 241 Ariz. 387, 388, ¶ 2 (App. 2017) (quoting Brown v. McClennen,
239 Ariz. 521, 523, ¶ 4 (2016)).

¶7            The Fourth Amendment guarantees “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures,” and accordingly provides that “no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” U.S. Const. amend. IV. “Probable cause to
conduct a search exists when ‘a reasonably prudent person, based upon the
facts known by the officer, would be justified in concluding that the items
sought are connected with criminal activity and that they would be found
at the place to be searched.’” State v. Spears, 184 Ariz. 277, 285 (1996)
(quoting State v. Carter, 145 Ariz. 101, 110 (1985)). In short, the totality of
the circumstances must create a fair probability evidence of a crime will be
found in the place to be searched. See, e.g., Illinois v. Gates, 462 U.S. 213, 238
(1983). The exclusionary rule, recognized by the U.S. Supreme Court,
generally bars the introduction of evidence obtained in violation of these
principles. See Herring v. United States, 555 U.S. 135, 139 (2009) (citing Weeks
v. United States, 232 U.S. 383, 398 (1914)); Mapp v. Ohio, 367 U.S. 643, 655
(1961) (extending exclusionary rule to the states).

¶8            Once issued, a search warrant is presumed valid, and a
defendant challenging it for lack of probable cause has the burden of
establishing its invalidity. See State v. Crowley, 202 Ariz. 80, 83, ¶ 7 (App.
2002) (citing Greehling v. State, 136 Ariz. 175, 176 (1983), and then Franks v.
Delaware, 438 U.S. 154, 171-72 (1978)). “Reasonable minds frequently may
differ on the question whether a particular affidavit establishes probable
cause.” United States v. Leon, 468 U.S. 897, 914 (1984) (citations omitted).


                                         4
                              STATE v. MACIAS
                             Decision of the Court

Therefore, deference is shown the issuing judge’s conclusion that probable
cause exists. Id. Thus, a finding of probable cause will be upheld whenever
there is a “substantial basis for concluding that a search would uncover
evidence of wrongdoing.” Gates, 462 U.S. at 236-37 (quoting Jones v. United
States, 362 U.S. 257, 271 (1960), and then United States v. Harris, 403 U.S. 573,
577-83 (1971)); see also State v. Hyde, 186 Ariz. 252, 272 (1996) (citing
Massachusetts v. Upton, 466 U.S. 727, 728 (1984)). A substantial basis for a
search exists so long as the facts, “interpreted in a common-sense and
realistic fashion,” make it “not unreasonable . . . to conclude” evidence of a
crime may be found in a given location. State v. McCall, 139 Ariz. 147, 156-
57 (1983) (citing State v. Adamson, 136 Ariz. 250, 258 (1983), and State v.
Watson, 113 Ariz. 218, 220 (1976)).

¶9             But probable cause to justify a search warrant for evidence
must exist at the time the warrant issued. State v. Hale, 131 Ariz. 444, 446
(1982) (citing State v. Kasold, 110 Ariz. 563, 566 (1974), and then United States
v. Harris, 482 F.2d 1115, 1117 (3d Cir. 1973)). “[T]here is no arbitrary time
limit on how old the factual information contained in the affidavit may be[;
t]he question of staleness depends more on the nature of the activity than
on the number of days that have elapsed since the factual information was
given.” Id. (citations omitted). “Where facts are indicated so that the
magistrate may conclude that the activity is of a continuous nature or in a
course of conduct, the passage of time becomes less significant.” State v.
Smith, 122 Ariz. 58, 60 (1979) (citing State v. Torrez, 112 Ariz. 525, 528 (1974)).
Thus, probable cause does not necessarily dissipate when “the items in
question [a]re of a kind not likely to be discarded by the defendant.” Id.
(citing Kasold, 110 Ariz. at 566).

¶10           Here, the police sought the warrant in connection with their
investigation into offenses of child molestation and furnishing harmful
items to minors. The affidavit in support of the warrant recounted the
investigation undertaken and detailed the statements of three victims
describing a pattern of behavior over a period of years from 2003 to 2006:
Macias would invite the students over to his home to swim and then engage
in mutual masturbation or the touching of their genitals. The victims
further informed the police Macias showed them pornographic movies at
his home, and, on at least one occasion, pornographic pictures on a
computer. The affidavit also stated Macias was a teacher at the school the
victims attended during the time period in question, had a home with a
pool as described by the former students, and was currently employed as a
third-grade teacher at a local school district.




                                        5
                             STATE v. MACIAS
                            Decision of the Court

¶11            Although the evidence of the offenses sought in this case —
pornographic movies on disks and VHS tapes and pictures and video files
on computers — are “not the type of evidence that rapidly dissipates or
degrades,” United States v. Seiver, 692 F.3d 774, 777 (7th Cir. 2012)
(“‘Staleness’ is highly relevant to the legality of a search for a perishable or
consumable object, like cocaine, but rarely relevant when it is a computer
file.”) (quoting United States v. Vosburgh, 602 F.3d 512, 529 (3d Cir. 2010)),
the detective who prepared the affidavit did not state specific reasons why
he believed, seven years later, evidence of the offenses would be present at
Macias’ home. Distinct from many child pornography cases, where
collectors routinely demonstrate hoarding behavior “because of the great
personal value the images have for sexual gratification, the difficulty in
obtaining the images as a result of their illegality, and their value to other
collectors such that the images may be traded for new images,” United States
v. Carroll, 750 F.3d 700, 704-05 (7th Cir. 2014) (citing cases that rejected a
staleness argument where years passed between information about child
pornography offenses and applications for search warrants), the detective
in the immediate case never identified this trait as typical of collectors of
child pornography, nor suggested Macias would demonstrate this
hoarding behavior.

¶12           Indeed, the detective never specified whether the evidence
sought was child or adult pornography, and if it were the latter, why Macias
would have hoarded otherwise readily available materials. In the absence
of this information, we cannot say the issuing magistrate had sufficient
information to establish a substantial basis for finding probable cause
existed to search Macias’ residence for otherwise unspecified pornographic
materials more than seven years after the alleged offenses occurred. The
warrant was based on stale information and therefore invalid.

¶13            However, “[a] Fourth Amendment violation does not
mandate reflexive exclusion of evidence.” State v. Booker, 212 Ariz. 502, 504,
¶ 12 (App. 2006) (citations omitted). “Rather, the exclusionary rule has been
applied only to the circumstances in which its deterrent purpose is ‘most
efficaciously served.’” Id. at 505, ¶ 13 (quoting United States v. Calandra, 414
U.S. 338, 348 (1974), and citing Arizona v. Evans, 514 U.S. 1, 11 (1995)). Under
the good faith exception, the exclusionary rule does not prohibit admission
of the evidence if an officer reasonably relies on a subsequently invalidated
search warrant. See Leon, 468 U.S. at 922.




                                       6
                             STATE v. MACIAS
                            Decision of the Court

¶14            Nonetheless, there are “some circumstances [in which] the
officer will have no reasonable grounds for believing that the warrant was
properly issued.” Id. at 922-23. For example:

       (1) when a magistrate is misled by information that the affiant
       knew was false or would have known was false but for his or
       her reckless disregard for the truth; (2) when the issuing
       magistrate “wholly abandons” his or her judicial role;
       (3) when a warrant is based on an affidavit “so lacking in
       indicia of probable cause as to render official belief in its
       existence entirely unreasonable”; and (4) when a warrant is
       “so facially deficient that the executing officers cannot
       reasonably presume it to be valid.”

Hyde, 186 Ariz. at 273 (quoting Leon, 468 U.S. at 923). Macias argues the
second and third situations apply.

¶15            As to the second situation, “the issue is whether the evidence
of the magistrate’s conduct . . . indicates she abandoned her impartiality or
was unable to act in a neutral and detached manner.” Id. at 274 (citing
United States v. Heffington, 952 F.2d 275, 277-78 (9th Cir. 1991)). To warrant
exclusion of the evidence, the magistrate’s conduct must exhibit “systemic
or patent partiality” such that “the police knew or should have known that
the magistrate was acting as a ‘rubber stamp’ for a police investigation.” Id.
at 275 (citing Aguilar v. Texas, 378 U.S. 108, 111 (1964), and United States v.
Breckenridge, 782 F.2d 1317, 1321 (5th Cir. 1986)). Macias has proffered no
evidence, either in the trial court or on appeal, suggesting the issuing
magistrate displayed systemic partiality toward law enforcement that
would justify application of the exclusionary rule.

¶16             Regarding the third situation, Macias relies upon United States
v. Hodson, which held “it was unreasonable for the officer executing the
warrant . . . to believe that probable cause existed to search [the defendant]’s
computers for child pornography based solely on a suspicion . . . that [the
defendant] had engaged in child molestation.” 543 F.3d 286, 293 (6th Cir.
2008). This conclusion rested upon the premise that a “faceless, nameless
‘reasonably well trained officer’ in the field, upon looking at th[e] warrant,
would have realized that the search described (for evidence of the crime of
child pornography) did not match the probable cause described (that
evidence would be found of a different crime, namely, child molestation).”
Id.




                                       7
                            STATE v. MACIAS
                           Decision of the Court

¶17           Hodson is readily distinguishable because the warrant in the
present case was not limited to evidence of child molestation or abuse, but
also sought evidence that Macias had furnished harmful items to minors.
Items harmful to minors include “any material or performance which
depicts or describes sexual activity,” “[a]ppeals to the prurient interest,”
and has no “serious literary, artistic, political, or scientific value for
minors.” A.R.S. § 13-3501(1)-(2). Here, the affidavit detailed statements of
three victims who reported Macias had shown them pornography as
minors.    These accounts did not specify whether child or adult
pornography was involved, but either could have qualified as an item
harmful to minors. See Black’s Law Dictionary (10th ed. 2014) (defining
pornography as “[m]aterial (such as writings, photographs, or movies)
depicting sexual activity or erotic behavior in a way that is designed to
arouse sexual excitement”). Thus, unlike Hodson, the officer in the present
case acted reasonably in believing the search described (for pornographic
materials) matched the probable cause described (that evidence would be
found to support the crime of furnishing harmful items to minors).

¶18          Because law enforcement was entitled to rely in good faith
upon a judicially authorized search warrant that sought evidence germane
to the probable cause described, the trial court did not abuse its discretion
in denying Macias’ motion to suppress.

II.    Jury Instructions

¶19          Macias argues he is entitled to a new trial on the sexual assault
and sexual abuse counts because of an error in the jury instructions. The
State concedes error, and we agree.

¶20          Both sexual assault and sexual abuse require a person commit
a sexual act “without consent of that person.” A.R.S. §§ 13-1404(A),
-1406(A). An act is “without consent” if:

       (a) The victim is coerced by the immediate use or threatened
       use of force against a person or property[;]

       (b) The victim is incapable of consent by reason of mental
       disorder, mental defect, drugs, alcohol, sleep or any other
       similar impairment of cognition and such condition is known
       or should have reasonably been known to the defendant. For
       the purposes of this subdivision, “mental defect” means the
       victim is unable to comprehend the distinctively sexual
       nature of the conduct or is incapable of understanding or



                                      8
                             STATE v. MACIAS
                            Decision of the Court

       exercising the right to refuse to engage in the conduct with
       another[;]

       (c) The victim is intentionally deceived as to the nature of the
       act[; or]

       (d) The victim is intentionally deceived to erroneously believe
       that the person is the victim’s spouse.

A.R.S. § 13-1401(7).

¶21            The trial court, however, instructed the jury that a person acts
“without consent” of another if the victim is “[a] person under the age of
18.” This instruction is erroneous. See State v. Getz, 189 Ariz. 561, 564 (1997)
(“‘Without consent’ is not defined as occurring because one is under
eighteen.”). And because the victim was under eighteen at the time of the
offense, the jury could have errantly found, in following the instruction
given, Macias acted “without consent” with respect to the sexual assault
and sexual abuse counts based solely upon the victim’s age. The erroneous
instruction was not harmless, see Dann, 205 Ariz. at 565, ¶ 18 (“An error is
harmless if it appears ‘beyond a reasonable doubt that the error did not
contribute to the verdict obtained.’”) (quoting Chapman v. California, 386
U.S. 18, 24 (1967)), and Macias’ convictions and sentences for sexual assault
and sexual abuse are therefore vacated.

III.   Duplicitous Indictment and Charges

¶22            Macias argues his convictions on six of the seven counts of
furnishing harmful items to minors should be reversed because the State
alleged and presented evidence of multiple items being furnished to the
victims to support the convictions on each count, rendering the charges
duplicitous. “Duplicity is a question of law we review de novo.” See State v.
Ramsey, 211 Ariz. 529, 532, ¶ 5 (App. 2005) (citing State v. Carrasco, 201 Ariz.
220, 223, ¶ 10 (App. 2001), and State v. Tamplin, 195 Ariz. 246, 247, ¶ 6 (App.
1999)).

¶23            An indictment that “charges ‘two or more distinct and
separate offenses’” in the same count is duplicitous. State v. Klokic, 219 Ariz.
241, 243, ¶ 10 (App. 2008) (quoting State v. Schroeder, 167 Ariz. 47, 51 (App.
1990), and citing State v. Whitney, 159 Ariz. 476, 480 (1989), and then Ariz.
R. Crim. P. 13.3(a)). “When the text of an indictment refers only to one
criminal act, but multiple alleged criminal acts are introduced to prove the
charge,” the situation is referred to as a duplicitous charge, rather than a
duplicitous indictment. Id. at 244, ¶ 12. Both duplicitous indictments and


                                       9
                             STATE v. MACIAS
                            Decision of the Court

charges are prohibited because they may fail to give “adequate notice of the
charge to be defended,” present the “hazard of a non-unanimous jury
verdict,” or “make it impossible to precisely plead ‘prior jeopardy in the
event of a later prosecution.’” Id. (quoting State v. Davis, 206 Ariz. 377, 389,
¶ 54 (2003)).

¶24           Macias contends the indictment is duplicitous because the
challenged counts of furnishing harmful items to minors — Counts Five,
Eight, Ten, Thirteen, and Fifteen — describe the harmful items as
“Pornographic Movies” and Count Nineteen described the harmful items
as “Photographs and Videos of Defendant’s Genitals.” He argues it was
error for the State to allege the harmful items by category rather than by
single item. We disagree. Although the indictment does not specifically
describe the exact items furnished to each victim, it does identify the date
range and specific victim for each count. Therefore, the allegations of the
counts are sufficiently clear to allow for a “precise pleading of prior
jeopardy,” should the State attempt to re-prosecute Macias for the same
offenses charged in the six counts. See Ramsey, 211 Ariz. at 533, ¶ 9 (citations
omitted). Moreover, “a continuing scheme or course of conduct may
properly be alleged in a single count.” Id. at 534, ¶ 12 (quoting State v. Via,
146 Ariz. 108, 116 (1985)). The indictment was not duplicitous on its face.

¶25            Macias argues these same charges were duplicitous because
the State offered evidence of multiple harmful items being furnished to the
victims on multiple occasions, and, by doing so, deprived him of notice of
the charges to be defended and created the risk of a non-unanimous jury
verdict. But, because Macias presented a global defense to the charges,
denying altogether he furnished any harmful items to minors, he cannot
show the prejudice necessary for reversal. Under these circumstances, the
case turns on credibility — whether the jury believed Macias or the victims.
Where the only real defense is credibility, the jury’s verdict of guilt indicates
a unanimous belief of the victim and rejection of the only defense offered.
See Schroeder, 167 Ariz. at 53 (citing People v. Winkle, 206 Cal. Rptr. 726, 730
(Ct. App. 1990)); Whitney, 159 Ariz. at 480 (rejecting the argument that “the
defendant [was] denied an essential right to his defense” when the
indictment alleged an aggravated assault premised upon the “single act of
chasing two girls” where the defendant presented a global defense denying
the events ever took place). Accordingly, Macias has failed to prove
reversible error.




                                       10
                            STATE v. MACIAS
                           Decision of the Court

IV.   Prosecutorial Vouching

¶26            Macias argues the prosecutor engaged in improper vouching.
There are two forms of impermissible prosecutorial vouching: “(1) when
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. Bible, 175 Ariz. 549, 601 (1993)
(quotation and citation omitted). “The first type of vouching involves
personal assurances of a witness’s veracity,” and the second type involves
“remarks that bolster a witness’s credibility by reference to materials
outside the record.” State v. King, 180 Ariz. 268, 277 (1994) (quoting United
States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980)).

¶27           Macias contends the prosecutor engaged in the second form
during his closing argument. Specifically, Macias asserts the prosecutor
engaged in impermissible vouching by arguing the items seized during the
search of Macias’ home in 2013 supported the victims’ testimony that
Macias showed them pornography years before. But the prosecutor was
entitled to comment on materials admitted into evidence and argue
reasonable inferences therefrom. See, e.g., State v. Blackman, 201 Ariz. 527,
544, ¶ 71 (App. 2002) (“Although counsel may not comment on matters not
in evidence before the jury, they may argue reasonable inferences from the
evidence presented at trial.”) (citations omitted). Accordingly, the
prosecutor’s closing argument did not involve improper vouching.

V.    Admissibility of Evidence

¶28            Macias challenges several rulings regarding the admissibility
of evidence. We review evidentiary rulings for an abuse of discretion and
defer to the trial court’s determination of relevance and unfair prejudice.
State v. Smith, 215 Ariz. 221, 232, ¶ 48 (2007) (citations omitted).

      A.     Adult Pornography

¶29           Macias argues the trial court erred in admitting evidence of
the adult pornography seized from his home during execution of the search
warrant. The evidence consisted of copies of Playboy and Maxim magazines
and videos of adult pornography discovered on a computer and compact
disks found in his home. Macias contends the evidence was irrelevant and
should have been precluded or limited pursuant to Arizona Rule of
Evidence 404(b).




                                     11
                             STATE v. MACIAS
                            Decision of the Court

¶30           Generally, all relevant evidence is admissible. See Ariz. R.
Evid. 402. Relevant evidence is that which “has any tendency to make a
fact [of consequence in determining the action] more or less probable than
it would be without the evidence.” Ariz. R. Evid. 401. “This standard of
relevance is not particularly high.” State v. Oliver, 158 Ariz. 22, 28 (1988)
(citing United States v. Southland Corp., 760 F.2d 1366, 1376 (2d Cir. 1985),
and Carter v. Hewitt, 617 F.2d 961, 966 (3d Cir. 1980)).

¶31            In contrast, “[i]rrelevant evidence is not admissible,” Ariz. R.
Evid. 402, and the trial court may still exclude otherwise relevant evidence
if its probative value is substantially outweighed by the danger of unfair
prejudice, Ariz. R. Evid. 403. Rule 404(b) further precludes evidence of
“other crimes, wrongs, or acts,” offered “to prove the character of a person
in order to show action in conformity therewith.” However, “other act
evidence” may be admitted if the proponent has proven by clear and
convincing evidence the person committed the other act; it is relevant to
prove motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident; its relevance is not substantially
outweighed by the potential for unfair prejudice; and the court provides a
limiting instruction if requested. State v. Anthony, 218 Ariz. 439, 444, ¶ 33
(2008) (quoting Ariz. R. Evid. 404(b), and citing State v. Terrazas, 189 Ariz.
580, 582-83 (1997)).

¶32            Macias argues the adult pornography was irrelevant because
the State could not show the materials were the same as those shown to the
victims. Indeed, the oldest magazine was published in July 2009 and could
not have been shown to the victims between 2003 and 2006. The magazines
do not even meet the low bar for relevance, and the trial court erred in
admitting them. However, the court could reasonably conclude the adult
videos existed at the time of the offenses and were relevant to corroborate
the victims’ testimony that Macias possessed such videos and showed them
to the victims at his home. See State v. Crum, 150 Ariz. 244, 247 (App. 1986)
(“[T]he mere possession of pornographic or sexually oriented [materials]
does not show an intention or propensity to violate the law. However,
where there is evidence of the use of such [materials] in connection with the
perpetration of the crime charged . . . such [materials] become relevant and
are admissible.”) (quoting State v. Natzke, 25 Ariz. App. 520, 522 (1976)); see
also State v. Mosley, 119 Ariz. 393, 401 (1978) (“Generally, any evidence that
substantiates the credibility of a prosecuting witness on the question of guilt
is material and relevant, and may be properly admitted.”) (citations
omitted).




                                      12
                             STATE v. MACIAS
                            Decision of the Court

¶33            Macias also argues that even if otherwise admissible, the
adult pornography should have been excluded as unfairly prejudicial.
Relevant and material evidence will generally be harmful to a defendant,
but it is only when evidence is unfairly prejudicial that it needs be excluded.
See State v. Schurz, 176 Ariz. 46, 52 (1993). Unfair prejudice “has an undue
tendency to suggest a decision on an improper basis, such as emotion,
sympathy, or horror.” Id. (quoting Fed. R. Evid. 403 comm. note). Because
the trial court is in the best position to balance probative value against
unfair prejudice, it is accorded “broad discretion in deciding the
admissibility.” See State v. Harrison, 195 Ariz. 28, 33, ¶ 21 (App. 1998) (citing
Via, 146 Ariz. at 122). Therefore, on review, this Court “views the evidence
in the ‘light most favorable to its proponent, maximizing its probative value
and minimizing its prejudicial effect.’” Id. (quoting State v. Castro, 163 Ariz.
465, 473 (App. 1989)).

¶34           Although none of the victims testified the adult pornography
admitted was the actual pornography shown to them, we are satisfied
beyond a reasonable doubt the evidence did not impact the verdict and
therefore, any error was harmless. See Dann, 205 Ariz. at 565, ¶ 18. The key
issue in harmless error analysis is “whether there is overwhelming
additional evidence sufficient to establish the prosecution’s case.” State v.
Fulminante, 161 Ariz. 237, 245 (1988) (citing State v. Castaneda, 150 Ariz. 382,
387 (1986), and State v. Hensley, 137 Ariz. 80, 88-89 (1983)). Additionally, we
consider whether the erroneously admitted evidence was used as primary
or material evidence, whether erroneously admitted evidence is merely
cumulative of similar evidence received, and whether the jury argument
was based upon tainted evidence. State v. Romero, 240 Ariz. 503, 508, ¶ 8
(App. 2016) (citing Bible, 175 Ariz. at 588, and 1 Jack B. Weinstein &
Margaret A. Berger, Weinstein’s Federal Evidence § 103.41[5] (2d ed. 2016)).

¶35           Here, five victims consistently testified Macias showed them
pornography to groom them for sexual conduct. The State introduced the
adult pornography to corroborate the testimony of those five witnesses, but
it was the testimony itself that served as the State’s primary evidence of
many of the charged offenses. The adult pornography was therefore
cumulative to the victims’ testimony. Moreover, neither the juror questions
nor the State’s closing argument focused on the adult videos; in fact, the
State addressed the marginal nature of the adult pornography in its closing,
imploring the jury to instead focus upon the victims’ testimony. We
therefore find the erroneous admission of the adult pornography harmless.




                                       13
                              STATE v. MACIAS
                             Decision of the Court

       B.      Pornography Titles

¶36             Macias argues he was unfairly prejudiced by the detective’s
reading of the titles of the adult pornography video files, and the trial court
erred by not sua sponte instructing the detective to merely indicate the
exhibit contained a certain number of adult pornographic videos. Macias
did not object to this testimony at trial, and we review only for fundamental
error. See, e.g., State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (citing Bible,
175 Ariz. at 572). On fundamental error review, a defendant has the burden
of proving an error occurred, the error was fundamental in nature, and the
defendant was prejudiced thereby. Id. at ¶ 20 (citations omitted). However,
an alleged error is not fundamental or reversible if it is invited by the
objecting party. State v. Logan, 200 Ariz. 564, 565-66, ¶ 9 (2001) (citations
omitted).

¶37            Here, defense counsel initiated the discussion regarding the
titles of the videos when he asked the detective during cross-examination
to agree that, while the titles suggested the videos contained child
pornography, the videos actually consisted of adult pornography. Thus,
the defense opened the door for the State to inquire as to the names of the
remainder of the video files on redirect. Accordingly, as the initial
introduction of these titles to the jury was by the defendant, thereby
constituting invited error, it will not support reversal. See id. at 566, ¶ 11
(“The purpose of the [invited error] doctrine is to prevent a party from
‘injecting error in the record and then profiting from it on appeal.’”)
(quoting State v. Tassler, 159 Ariz. 183, 185 (App. 1988)).

¶38           Moreover, any suggestion that the reading of the additional
titles resulted in more prejudice than that arising from the initial
introduction of the titles by defense counsel is speculation. Under
fundamental error review, a defendant must affirmatively prove prejudice
and may not rely upon speculation to carry this burden. State v. Dickinson,
233 Ariz. 527, 531, ¶ 13 (App. 2013) (quoting State v. Munninger, 213 Ariz.
393, 397, ¶ 14 (App. 2006)). We find no error, prejudicial or otherwise.

       C.      Other-Act Evidence

¶39           Macias also fails to carry his burden of proving that admission
of the adult pornography violated the prohibition against other-act
evidence under Rule 404(b). Macias objected to this evidence only on the
grounds of relevance and unfair prejudice. An objection on one ground will
not preserve issues on other grounds. State v. Lopez, 217 Ariz. 433, 434-35,
¶ 4 (App. 2008) (citing State v. Hamilton, 177 Ariz. 403, 408 (App. 1993)).



                                        14
                             STATE v. MACIAS
                            Decision of the Court

Because Macias failed to object to the adult pornography based upon Rule
404(b), we review only for fundamental error. Id. (citing Henderson, 210
Ariz. at 567, ¶ 19, and State v. Walker, 181 Ariz. 475, 481 (App. 1995)).

¶40            In arguing the adult pornography was prejudicial other-acts
evidence under Rule 404(b), Macias relies on State v. Coghill, 216 Ariz. 578
(App. 2007), and State v. Grannis, 183 Ariz. 52 (1995), disapproved of on other
grounds by State v. King, 225 Ariz. 87 (2010). This reliance is misplaced. In
Coghill, the defendant was charged with sexual exploitation of children
based upon his possession of child pornography. 216 Ariz. at 582, ¶ 11.
Under those circumstances, this Court held the defendant’s possession of
legal adult pornography downloaded from the internet was irrelevant to
show knowledge, opportunity, or intent to download child pornography
and inadmissible for the proffered purpose of showing the defendant had
a propensity to download child pornography. Id. at 585, ¶ 27 (citing Ariz.
R. Evid. 404(b)). In Grannis, our Supreme Court held pornographic images,
offered to prove that the defendant “had ongoing homosexual tendencies
and was therefore unlikely to resist [the victim]’s sexual advances,” were of
such marginal relevance in a murder prosecution, given the defendant’s
admission he had a past homosexual experience and initially consented to
the victim’s advances, that the trial court erred in not finding their probative
value to be substantially outweighed by the danger of unfair prejudice. 183
Ariz. at 55, 57.

¶41         Here, however, the adult pornography was not admitted to
show Macias had any propensity or tendency to commit the crimes
charged. Rather, the adult pornography tended to prove Macias had the
means and opportunity to commit the crimes charged, i.e. show
pornographic videos to minors. Thus, unlike Coghill and Grannis, the
evidence was directly relevant to the crimes charged.

¶42            Furthermore, the Rule 404(b) concern identified in Coghill was
the possibility “the jury might have improperly concluded that a person
who downloads adult pornography would have a character trait
predisposing that person to also download child pornography.” 216 Ariz.
at 585-86, ¶ 31. Because the jury acquitted Macias on the one count of sexual
exploitation premised upon downloading child pornography, we are
convinced, beyond a reasonable doubt, any possible error in the admission
of adult pornography was harmless. See Henderson, 210 Ariz. at 607, ¶ 18
(noting error is harmless if it is proved “beyond a reasonable doubt that the
error did not contribute to or affect the verdict or sentence”) (citing Bible,
175 Ariz. at 588). Macias has not proved fundamental error.



                                      15
                             STATE v. MACIAS
                            Decision of the Court

       D.     College Paper

¶43           Macias argues the trial court erred in admitting a paper he
wrote for a college class as other-acts evidence of an “aberrant sexual
propensity” pursuant to Arizona Rule of Evidence 404(c). Although Macias
purports, within the paper, to critique the policy of the Boy Scouts’
discrimination against gay scout leaders, he also discusses, with approval,
same-sex relationships between older and younger men. He also discusses
certain historical periods where older men mentored younger men —
which “would involve sexual interaction between them” — and then
directs the reader to “[i]magine i[f] this sort of living was still in effect
today.”

¶44             Rule 404(c) allows the admission of other-act evidence, in
criminal cases involving sexual offenses, “if relevant to show that the
defendant had a character trait giving rise to an aberrant sexual propensity
to commit the offense charged.” Before admitting evidence under Rule
404(c), the trial court must find: (1) “clear and convincing evidence supports
a finding that the defendant committed the other act;” (2) “commission of
the other act provides a reasonable basis to infer that the defendant had a
character trait giving rise to an aberrant sexual propensity to commit the
charged sexual offense,” and (3) “the evidentiary value of proof of the other
act is not substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or other factors mentioned in Rule 403.” State v.
Aguilar, 209 Ariz. 40, 49, ¶ 30 (2004) (citing Ariz. R. Evid. 404(c)(1)(A)-(C),
and Terrazas, 189 Ariz. at 582). In addition, the trial court must instruct the
jury “as to the proper use of such evidence.” Ariz. R. Evid. 404(c)(2).

¶45            In allowing admission of the college paper under Rule 404(c),
the trial court made all the findings required for admission under that rule.
In challenging the admission of the paper, Macias argues only that the
prejudicial nature of the evidence outweighs its relevancy for showing
sexual propensity. The paper does not specifically approve of sexual
relationships between adult men and minors and appears instead to
describe sexual relationships between older and younger adult men. These
circumstances do not provide a reasonable basis upon which to infer Macias
has an aberrant sexual propensity. Because the paper has little if any
probative value, we find its admission was error.

¶46          However, we also believe admission of the college paper was
harmless error. Other evidence of the charged crimes — primarily in the
form of the victims’ consistent testimony and the pictures, videos, and
communications found on Macias’ phone — was overwhelming to prove


                                      16
                              STATE v. MACIAS
                             Decision of the Court

Macias’ guilt. And although the State mentioned the college paper during
closing argument, the paper was not a primary piece of evidence for the
State, and no juror questions were directed at the paper. Furthermore, the
trial court appropriately instructed the jury as to the limited use of other-
acts evidence. See supra ¶ 34. We cannot say, beyond a reasonable doubt,
Macias’ college paper was a material piece of evidence on which the jury
based its verdicts.

¶47            Macias also challenges the admission of his college paper on
the basis that handwritten comments on it from the instructor constitute
inadmissible hearsay. Because Macias did not object on this basis below,
our review of this claim is limited to fundamental error. Henderson, 210
Ariz. at 567, ¶ 19.

¶48            Hearsay is a statement “the declarant does not make while
testifying at the current trial or hearing; and . . . a party offers in evidence
to prove the truth of the matter asserted in the statement.” Ariz. R. Evid.
801(c). Macias does not assert the State offered the instructor’s comments
to prove the truth of any matter asserted therein. He has therefore not
shown error in their admission.

       E.      Uncharged Offenses

¶49            Macias argues the trial court erred in allowing testimony from
the victims regarding other uncharged acts of sexual misconduct by him.
Although the court failed to make the specific findings of admissibility of
this evidence as required by Rule 404(c)(1)(D), see supra ¶ 44, “we may
consider the entire trial record in determining whether it was harmless
error for the court to admit [other-acts evidence] without first screening the
evidence and making the findings Rule 404(c) requires,” State v. Vega, 228
Ariz. 24, 29, ¶ 18 (App. 2011); see also Aguilar, 209 Ariz. at 50, ¶ 37 (“The trial
court’s failure to make a sufficient finding as to the first factor of Rule 404(c)
might be harmless error if the record contained substantial evidence that
the requirements of admissibility were met.”) (citing State v. Marshall, 197
Ariz. 496, 499, ¶ 7 (App. 2000)). On review of the record, we conclude the
victims’ testimony that Macias engaged in the same types of sexual
misconduct on more than one occasion was properly admissible under Rule
404(c).

¶50           First, as to the requirement of Rule 404(c)(1)(A) that there be
clear and convincing evidence Macias committed the other acts, evidence
of the acts consisted of the in-person testimony of the victims. A victim’s
uncorroborated testimony is sufficient to prove an act occurred beyond a



                                        17
                             STATE v. MACIAS
                            Decision of the Court

reasonable doubt. See Vega, 228 Ariz. at 28 n.4, ¶ 19 (citing State v. Williams,
111 Ariz. 175, 177-78 (1974)). Macias’ argument that the evidence cannot be
considered clear and convincing because the victims were not specific as to
dates and details is unavailing. A victim’s inability to recall details of
uncharged events does not automatically preclude a finding of clear and
convincing evidence the event occurred. See State v. Herrera, 232 Ariz. 536,
546, ¶ 26 (App. 2013); see also State v. Bowie, 119 Ariz. 336, 342 (1978)
(“Contradictions or a hazy recollection of events goes to the weight of the
evidence, not its admissibility.”) (citing State v. Parker, 106 Ariz. 54, 56
(1970)). On this record, we find the victims’ testimony was sufficient to
provide clear and convincing evidence Macias committed the uncharged
acts.

¶51             Second, the other acts testified to by the victims consisted of
similar, if not identical, acts to those of the charged offenses, and these acts
were committed around the same time as the charged offenses. The
testimony, therefore, further satisfied the requirement of Rule 404(c)(1)(B)
that the “other act provides a reasonable basis to infer that the defendant
had a character trait giving rise to an aberrant sexual propensity to commit
the crime charged.” See Herrera, 232 Ariz. at 547, ¶ 28 (holding “‘evidence
of a prior similar sex offense committed against the same child’ may show
‘the defendant’s lewd disposition or unnatural attitude toward the
particular victim.’”) (quoting State v. Garner, 116 Ariz. 443, 447 (1977))
(citation omitted); State v. Garcia, 200 Ariz. 471, 476, ¶ 28 (App. 2001) (“[A]
defendant’s aberrant sexual propensity might be proved by admitting
evidence of similar acts committed near in time to the offense charged.”)
(citing State v. McFarlin, 110 Ariz. 225, 228 (1973)).

¶52           Finally, the record reflects the evidentiary value of the
testimony of the other acts of sexual misconduct by Macias “is not
substantially outweighed by danger of unfair prejudice, confusion of the
issues, or other factors mentioned in Rule 403.” Ariz. R. Evid. 404(c)(1)(C).
Consideration of the other factors listed in Rule 404(c)(1)(C) 5 supports
admission of the other-acts evidence in this case. None of the other acts
were remote; all took place within the same general time frame of the
charged offenses; the other acts were similar to the charged offenses; and

5       The trial court is directed to consider: “(i) [the] remoteness of the
other act; (ii) [the] similarity or dissimilarity of the other act; (iii) the
strength of the evidence that defendant committed the other act; (iv) [the]
frequency of the other acts; (v) [any] surrounding circumstances; (vi) [any]
relevant intervening events; (vii) other similarities or differences; [and]
(viii) other relevant factors.” Ariz. R. Evid. 404(c)(1)(C).


                                      18
                              STATE v. MACIAS
                             Decision of the Court

the evidence of the other acts was substantial and consistent, albeit
imprecise, first-person testimony from multiple victims. As for the
surrounding circumstances and frequency of the other acts, the evidence
showed a general course of conduct by Macias in regard to how he
interacted with the victims during the period the charged offenses were
committed. Accordingly, the balancing of the probative value against the
potential unfair prejudice of the other-act evidence weighs in favor of
admission of the evidence.

¶53            We further note the trial court gave a proper limiting
instruction concerning the use of the other-act evidence. See Ariz. R. Evid.
404(c)(2). The instruction informed the jurors they “may” consider the
other-act evidence to determine that Macias had a predisposition “to
commit abnormal or unnatural sex acts,” but only if they found “clear and
convincing evidence” he committed the acts, and further instructed the
jurors they could not find Macias guilty merely because he had committed
the other acts or had a predisposition to commit the crimes charged. See
Ariz. R. Evid. 404 cmt. to 1997 amend. (“At a minimum, the court should
instruct the jury that the admission of other acts does not lessen the
prosecution’s burden to prove the defendant’s guilt beyond a reasonable
doubt, and that the jury may not convict the defendant simply because it
finds that he committed the other act or had a character trait that
predisposed him to commit the crime charged.”). Any prejudice from the
admission of the other-act evidence was appropriately mitigated by this
instruction. See State v. Leteve, 237 Ariz. 516, 523, ¶ 17 (2015) (citing State v.
Villalobos, 225 Ariz. 74, 80, ¶ 20 (2010)). Accordingly, the trial court did not
commit reversible error by admitting the victims’ testimony of the other
uncharged acts of sexual misconduct by Macias without making the
findings required by Rule 404(c)(1).

VI.    Sufficiency of Evidence

¶54           Macias contends the trial court erred in denying his motion
for judgment of acquittal on six of the seven counts of furnishing harmful
items to minors and one count of aggravated assault with sexual
motivation, arguing the evidence was insufficient to support convictions on
those counts. We review claims of insufficient evidence de novo. State v.
West, 226 Ariz. 559, 562, ¶ 15 (2011) (citing Bible, 175 Ariz. at 595). In doing
so, this Court’s review is limited to whether substantial evidence supports
the verdicts. See State v. Scott, 177 Ariz. 131, 138 (1993) (citing State v. Guerra,
161 Ariz. 289, 293 (1989)); see also Ariz. R. Crim. P. 20(a) (requiring a trial
court to enter judgment of acquittal “if there is no substantial evidence to
warrant a conviction”). Substantial evidence is evidence, viewed in the


                                        19
                             STATE v. MACIAS
                            Decision of the Court

light most favorable to sustaining the verdict, “that reasonable persons
could accept as adequate and sufficient to support a conclusion of
defendant’s guilt beyond a reasonable doubt.” Id. (quoting State v. Mathers,
165 Ariz. 64, 67 (1990), and State v. Arredondo, 155 Ariz. 314, 316 (1987)).

       A.     Counts Five, Eight, Ten, Thirteen, and Fifteen: Furnishing
              Harmful Items to Minors

¶55            Counts Five, Eight, Ten, Thirteen, and Fifteen charged Macias
with furnishing harmful items to five minor victims in violation of A.R.S.
§ 13-3506(A). Under this section, “[i]t is unlawful for any person, with
knowledge of the character of the item involved, to recklessly furnish,
present, provide, make available, give, lend, show, advertise or distribute
to minors any item that is harmful to minors.” A.R.S. § 13-3506(A). An item
is harmful to minors if it appeals to the “prurient interest.” A.R.S. § 13-
3501(1)(a)(i).

¶56           At trial, the victims for each of these five counts testified
Macias showed them pornography at his home. Macias argues this
evidence is insufficient to support convictions on these counts because there
was no proof the pornography the victims were shown was “prurient.”

¶57            Material is “prurient” if it “appeal[s] to a morbid, shameful,
disgusting, unhealthy, unwholesome, degrading interest in sex.” State v.
Bartanen, 121 Ariz. 454, 460 (1979). Moreover, “[f]inding an item to be
harmful to minors calls for a particular[ized] examination applying the
standard of an ‘average adult’ regarding what is appropriate for minors.”
State v. Grainge, 186 Ariz. 55, 59 (App. 1996). Victim testimony establishing
that videos furnished by the defendant “contained graphic sex scenes” is
sufficient evidence for a jury to determine the videos were harmful to
minors, even when the videos are unavailable. Id. Furthermore, it is within
the province of the jury to determine that materials were harmful to minors
“when taken as a whole based on the evidence presented.” Id. (citing State
v. Hummer, 184 Ariz. 603, 607 (App. 1995)); see also Smith v. United States, 431
U.S. 291, 301 (1977) (holding “appeal to the prurient interest is one such
question of fact for the jury to resolve”).

¶58           Macias contends the movies shown to the victims do not meet
the definition of prurient because what the victims testified to was “run-of-
the-mill adult pornography.” He does not cite any authority to support his
position that “run-of-the-mill adult pornography” is, as a general rule,
“suitable for minors.” A.R.S. § 13-3501(1)(a). Each of the victims testified
they were shown “pornographic movies,” and four of the five victims



                                      20
                             STATE v. MACIAS
                            Decision of the Court

testified the pornography involved sexual intercourse. The jury could
reasonably conclude from this testimony the movies were “harmful to
minors.”

¶59           The fifth victim, A.V., only indicated Macias showed him
pornography without providing any more specific description. Such
testimony, lacking in specific detail as to what the particular victim
considered “pornographic” fails to establish sufficient evidence of the crime
of furnishing harmful items to minors. Therefore, the conviction and
sentence related to Count Five is reversed.

       B.     Count Nineteen: Furnishing Harmful Items to Minors

¶60            Count Nineteen charged Macias with furnishing harmful
items to minors in violation of A.R.S. § 13-3506(A) based upon the pictures
and videos of Macias’ genitals that he sent to E.V.’s iPod and iPhone.
Macias argues the evidence was insufficient to support the conviction on
this count because A.R.S. § 13-3506, by its terms, “does not apply to the
transmission or sending of items over the internet.” A.R.S. § 13-3506(B).
Because the non-internet provision in A.R.S. § 13-3506(B) creates an
exception to the statute defining the criminal offense of furnishing harmful
items to minors, Macias had the burden of establishing that the furnishing
of the images at issue involved transmission over the internet. See Maricopa
Cty. Juv. Action No. JT9065297, 181 Ariz. 69, 82 (App. 1994) (“A defendant
who relies upon an exception to a criminal statute made by a proviso or
distinct clause has the burden of establishing and showing that she comes
within the exception.”) (citing United States v. Henry, 615 F.2d 1223, 1235
(9th Cir. 1980)); see also State v. Kelly, 210 Ariz. 460, 463, ¶ 11 (App. 2005)
(“Because the . . . provision [at issue] functions as an exception, it is not an
element of the offense that the state must prove.”); State v. Jung, 19 Ariz.
App. 257, 262 (1973) (holding the prosecution is “not required to negative
statutory exceptions — such exception is a matter of defense where it is not
an ingredient of the offense”) (citing State v. Quandt, 17 Ariz. App. 33, 34
(1972)).

¶61          As used in A.R.S. § 13-3506, the term “internet” means “the
combination of computer facilities and electronic transmission media, and
related equipment and software, comprising the interconnected worldwide
network of computer networks that employ the transmission control
protocol or internet protocol or any successor protocol to transmit
information.” A.R.S. § 13-3506.01(F)(1). In arguing he was improperly
convicted under the wrong statute, Macias relies upon testimony elicited
from a detective that the images in question “were transmitted over the


                                      21
                             STATE v. MACIAS
                            Decision of the Court

internet.” When testifying about the images being transmitted over the
internet, however, the detective was referring to images recovered from the
victim’s iPod. An iPod requires use of the internet to transmit or receive
information because, unlike an iPhone, it lacks cellular telephone
capability. But both the detective and victim testified Macias sent the victim
inappropriate videos of his genitals on both the victim’s iPhone and iPod.
Limiting the issue to those videos sent from Macias’ iPhone to the victim’s
iPhone, Macias presented no evidence that the images that are the subject
of Count Nineteen were transmitted via the iPhone’s internet capability,
rather than the non-internet cellular telephone network. Macias, therefore,
failed to meet his burden of proving his conduct fell outside the purview of
A.R.S. § 13-3506.

       C.     Count Twenty: Aggravated Assault

¶62           Count Twenty charged Macias with aggravated assault with
sexual motivation of E.V. in violation of A.R.S. §§ 13-118 and -1204(A)(6).
As relevant here, the State was required to prove he knowingly touched
E.V. “with intent to . . . provoke.” A.R.S. §§ 13-1203(A)(3), -1204(A). While
acknowledging E.V. felt uncomfortable about being kissed on the lips by
Macias, Macias asserts a complete absence of evidence regarding his intent
to provoke. We disagree.

¶63             The term “provoke” is not defined by statute. “In the absence
of statutory definitions, we give words their ordinary meaning.” State v.
Cox, 217 Ariz. 353, 356, ¶ 20 (2007) (citing State v. Riggs, 189 Ariz. 327, 333
(1997)); see also A.R.S. § 1-213 (stating undefined words “shall be construed
according to the common and approved use of the language”). “Provoke”
generally means “[t]o stir to action or feeling” or “[t]o give rise to; bring
about.” Am. Heritage Dictionary 1419 (5th ed. 2011). Moreover, criminal
intent, being a state of mind, is generally established by circumstantial
evidence. State v. Bearup, 221 Ariz. 163, 167, ¶ 16 (2009) (quoting State v.
Routhier, 137 Ariz. 90, 99 (1983)).

¶64           The evidence at trial established Macias had a strong sexual
attraction to E.V. and “wanted to make love” to him. Based upon this
evidence, the jurors could reasonably conclude Macias deliberately kissed
E.V. with the intent to bring about an emotional response or feelings of
attraction. On this record, there was substantial evidence to support the
conviction for aggravated assault with sexual motivation. We find no error.




                                      22
                          STATE v. MACIAS
                         Decision of the Court

                             CONCLUSION

¶65          For the foregoing reasons, we reverse the conviction and
sentence imposed for Count Five and vacate the convictions and sentences
imposed for Counts Two and Three. The convictions and sentences on the
fourteen remaining counts are affirmed.




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




                                      23
