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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                AVELINO GUZMAN TAMALA, Appellant.

                             No. 1 CA-CR 17-0319
                               FILED 11-8-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-005969-002
               The Honorable Warren J. Granville, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
                            STATE v. TAMALA
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which Chief
Judge Samuel A. Thumma and Judge Maria Elena Cruz joined.


H O W E, Judge:

¶1             Avelino Guzman Tamala appeals his conviction and sentence
for first-degree murder, claiming that (1) insufficient evidence supports his
conviction, (2) the State deprived him of a unanimous jury verdict by
presenting evidence of multiple acts that could have supported the
conviction, (3) the trial court erred in failing to give a “multiple acts” jury
instruction, and (4) the trial court erred in two evidentiary rulings. For the
following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against the defendant. State v.
Harm, 236 Ariz. 402, 404 n.2 ¶ 2 (App. 2015). Between 1990 and 1995, D.S.
was a detention officer with the Maricopa County Sheriff’s Office
(“MCSO”). At some point during 1990 or 1991, he supervised county jail
inmate Anna Reyes for a few months until her release. About a year after
Reyes was released, she telephoned D.S. The two met in person and
commenced a sexual relationship.

¶3            A few months later, Reyes told D.S. she was pregnant but
explained that she wanted “to go and be with her ex one more time so that
he could think that the kid was his, and it just blew [D.S.] away.” Based on
Reyes’s desire to “be with her ex,” D.S. permanently ended his relationship
with her. On November 26, 1993, Reyes gave birth in Mexico to D.S.’s
daughter, C.R.

¶4            In the early 1990’s, Tamala was a MCSO detective who “made
quite a few big [drug] cases.” According to Tamala’s supervisor, “he was
one of my best detectives at the time.” S.C. was a confidential informant
(“CI”) who assisted Tamala with narcotics investigations. S.C.’s friend
Reyes, also worked as a CI with Tamala and S.C. on undercover
investigations beginning in July 1994 when she was released from prison.




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                            STATE v. TAMALA
                            Decision of the Court

¶5            Tamala and Reyes became romantically involved, which
caused him to resign from MCSO in late January 1995. Almost six months
later, the couple rented a house in Ahwatukee. Sometime in 1995, M.G.
began working for Reyes as a live-in housekeeper and babysitter at the
Ahwatukee home. At the time, C.R. lived with Reyes’s mother in Mexico.
Sometime before September 1996, however, C.R. began living with Reyes,
Tamala, and Reyes’s three minor children from previous marriages. A.R.,
Reyes’s teenaged niece, also began living with Tamala and Reyes in 1996.

¶6              A.R. and M.G. described Tamala as a “step dad” to Reyes’s
children. After C.R. arrived at the Ahwatukee home, however, the family
became “abnormal.” Specifically, Reyes and Tamala treated C.R. differently
from the other children. C.R. was not allowed to interact with the children
or share meals with the family and was not permitted to have friends. C.R.
initially slept directly on the floor in Reyes’s and Tamala’s bedroom and
was later moved to the closet. Tamala never showed C.R. affection and was
“angry[,] . . . harsh[, and] mean” in his interactions with her. Except for a
family trip, A.R. never saw C.R. outside the bedroom.

¶7            A day or two after Christmas 1996, Tamala, Reyes, and the
children went to Colorado for vacation. C.R. was left alone in the cabin
when all the others went skiing. One day, the children were outside playing
in the snow, and although everyone else was dressed appropriately for the
cold weather, C.R. was wearing only “Levis and a little shirt.” When C.R.
eventually returned inside, she “was blue, [had] blue lips, [and] she was
shaking really bad.” During the car trip home, C.R. soiled herself and
Tamala stopped the car and got out angrily. Reyes pulled C.R. out of the
car, and when the three returned, C.R. had a fresh “little scrape on her
head.” When A.R. confronted Reyes about C.R.’s treatment, Reyes
explained she “got raped . . . in jail . . . and [Tamala and Reyes] didn’t like
her.” A.R. did not disclose Tamala’s and Reyes’s abuse of C.R. at the time
because she believed Tamala was a “cop” or “special agent undercover[.]”

¶8           M.G. also observed numerous instances of Tamala and Reyes
mistreating C.R. She described the following:

       After [Tamala and Reyes] cut [C.R.’s] hair,[1] she was locked
       up in a cage like a dog cage, they started locking her up. . . .
       The little girl . . . she was just in her undergarments, they



1      The record reflects that Tamala, with Reyes’s assistance, shaved
C.R.’s head, and thereafter she was “always bald.”


                                      3
                           STATE v. TAMALA
                           Decision of the Court

       would tell her to get in and she would get in and they would
       close the little door behind her. . . . She would just cry.

M.G. further explained that C.R. had to “bend[] down” to fit in the kennel,
and Reyes would take C.R. out of the kennel when she had urinated or
defecated on herself “and bring her outside and bathe her with the hose[.]”

¶9            M.G. further described an incident when Tamala let C.R. out
of the cage before binding her feet and hands, laying her down on the floor,
tying her arm to a door, and stepping on her. C.R. was left “tied up . . . [a]
whole night and a day.” While C.R. was bound, Tamala did not provide her
with food or water, and after finally untying her, Reyes and Tamala
returned C.R. to the kennel.

¶10             A day later, Tamala again removed C.R. from the kennel and
took her to the bathroom where M.G. “could hear . . . the water was on
really strong. You could hear the little girl yelling, screaming and he told
her that she was going to do what he wanted.” After Tamala returned C.R.
to the kennel, M.G. never observed her out of the kennel again. M.G.
described C.R.’s appearance as “sad, very, very, very thin. She was skin and
bones, . . . her skin was right up against her bone.” M.G. explained that C.R.
“would just whine . . . in the kennel[.] She didn’t even have enough breath
to keep crying. She would just whine, and really slowly[,] . . . [and] that’s
all you could hear.” While in the kennel, C.R. was not fed, and when M.G.
attempted to feed C.R., Reyes commanded her to stop. At some point, C.R.
stopped defecating. C.R. was confined in the kennel for two to three weeks.

¶11         In April 1997, around the time C.R. was kept in the kennel,
M.G. and her boyfriend were victims of a drive-by shooting as they
returned home from a nightclub. M.G. was seriously wounded and her
boyfriend was killed.

¶12           After recuperating, M.G. returned to work for Reyes in May.
C.R. was no longer at the house, and M.G. never saw C.R. again.
Approximately one month later, M.G. quit. Shortly thereafter, Tamala told
M.G., “[W]atch out for [Reyes], because the accident [you] had hadn’t been
quite an accident[.]” Out of fear that Tamala was a police officer, M.G. did
not report C.R.’s abuse.

¶13              Tamala and Reyes moved out of the Ahwatukee house in June
1998. Tamala later married I.G. and admitted to her that he “helped bury a
little girl in the desert” after keeping her in a kennel and “barely [feeding]
her[.]” Tamala also admitted to S.C. that he and Reyes put C.R. in a “cage”



                                      4
                          STATE v. TAMALA
                          Decision of the Court

before the girl was killed and that her body was “somewhere in the desert.”
Smirking, Tamala then said, “[I]f there’s no body, there’s no crime.”

¶14          In November 1998, S.C. told Detective Brent Coombs that C.R.
had possibly died and that Reyes was her mother. Detective Mike Meislish
began investigating and obtained a sample of Reyes’s blood. An agent with
the Bureau of Alcohol, Tobacco, Firearms, and Explosives interviewed
Reyes in August 1999 about C.R.’s disappearance. Referring to C.R. as “it,”
Reyes explained the last time she saw C.R. was in Mexico where she
claimed that C.R. was staying with Reyes’s mother.

¶15           In late November 1999, a hunter found a partial human skull
in a desert south of Phoenix and contacted police. Deputy Keith Moore
responded, located the skull along with other bone fragments, and
delivered the items to the medical examiner’s office.

¶16          DNA testing of Reyes’s blood sample and the skull fragments
in 2000 indicated that Reyes could not be excluded as the mother of the
person whose remains were found in the desert. No other leads developed,
however, and the investigation went cold.

¶17           After initially denying that she had observed C.R.’s abuse
when detectives visited her in 2013, M.G. contacted police a year later and
reported the abuse that she had witnessed. Tests conducted at the Arizona
Department of Public Safety crime lab in 2014 developed a DNA profile of
the bone fragments. Based on DNA samples collected from Reyes and D.S.,
the skull fragments were determined to belong to C.R.

¶18           In 2016, a forensic anthropologist identified injuries to the
skull fragment that indicated blunt force trauma occurred while C.R. was
alive or shortly after her death. Although a forensic pathologist could not
determine C.R.’s precise cause of death, he could not exclude skull
fractures, severe brain swelling, malnutrition, or other kinds of abuse.

¶19           Alleging both accomplice and direct liability, the State
charged Tamala with one count of first-degree murder.2 The State based the
charge on alternative theories of premeditation or felony murder with child
abuse being the predicate offense. Before trial, Tamala moved to dismiss
the first-degree murder charge as duplicitous; alternatively, he requested
that the State elect which act constituted the predicate offense of child


2     At the time of Tamala’s trial, Reyes had not been located.



                                    5
                           STATE v. TAMALA
                           Decision of the Court

abuse. The trial court denied Tamala’s requests. Tamala’s main defense at
trial was that Reyes alone murdered C.R.

¶20            Tamala moved to cross-examine M.G. about her citizenship
status and her “U-Visa” application.3 M.G., a Mexican national, arrived in
the United States with a tourist visa in 1997. M.G.’s 2012 application for a
U-Visa was based on her status as a victim in the drive-by shooting
incident—not her status as a witness for the State in this case. Tamala
agreed at trial that the materials M.G. prepared in connection with her
U-Visa application contained no reference to this case. Further, M.G.
specifically informed the court that she was not promised “anything for
information in order to get the [U-Visa.]” She also explained she did not
believe she would be more likely to obtain the visa based on her testimony
in this case. The court concluded that M.G.’s attempt to obtain a U-Visa did
not affect her testimony and denied the motion.

¶21           After a prolonged discussion between the parties and the
court about Reyes’s comments to law enforcement officers in 1999 and
their admissibility under Arizona Rule of Evidence 801(d)(2)(E), the
co-conspirator exception to the rule against hearsay, the parties ultimately
agreed the State could introduce Reyes’s explanation that she did not know
C.R.’s whereabouts because C.R. was with Reyes’s mother.

¶22           After the State rested its case in chief, Tamala requested a
multiple-acts instruction, listing the distinct acts of child abuse and
requiring the jurors to unanimously agree which act—starvation,
blunt-force trauma, or dehydration—caused C.R.’s death. The court
declined the instruction.




3     In its answering brief, the State describes a U-Visa as follows:

      A “U Visa” is a nonimmigrant visa that may be given to an
      alien who has “suffered substantial physical or mental abuse
      as a result of having been a victim of [qualifying] criminal
      activity” that occurred in the United States; who possesses
      information about that criminal activity; and who “has been
      helpful, is being helpful, or is likely to be helpful” to law
      enforcement or the prosecuting government agency, in
      connection with investigating or prosecuting the criminal
      activity. 8 U.S.C. § 1101(a)(15)(U).



                                     6
                            STATE v. TAMALA
                            Decision of the Court

¶23          The jury returned a guilty verdict with five jurors finding
felony murder only and seven jurors finding both premeditation and felony
murder. The court imposed a prison term of natural life. With the court’s
permission, Tamala filed a delayed notice of appeal.

                                DISCUSSION

              1. Sufficiency of Evidence

¶24          Tamala challenges the sufficiency of the evidence supporting
his felony-murder conviction, arguing no evidence establishes that he
caused C.R.’s death by abusing her. We review claims of insufficient
evidence de novo. State v. West, 226 Ariz. 559, 562 ¶ 15 (2011).

¶25            Sufficient evidence may be direct or circumstantial and “‘is
such proof that reasonable persons could accept as adequate’” to “‘support
a conclusion of defendant’s guilt beyond a reasonable doubt.’” State v.
Borquez, 232 Ariz. 484, 487 ¶¶ 9, 11 (App. 2013) (quoting State v. Mathers,
165 Ariz. 64, 67 (1990)). “To set aside a jury verdict for insufficient evidence
it must clearly appear that upon no hypothesis whatever is there sufficient
evidence to support the conclusion reached by the jury.” State v. Arredondo,
155 Ariz. 314, 316 (1987). In evaluating the sufficiency of the evidence, we
test the evidence “against the statutorily required elements of the offense,”
State v. Pena, 209 Ariz. 503, 505 ¶ 8 (App. 2005), and “‘do not reweigh the
evidence to decide if we would reach the same conclusions as the trier of
fact,’” Borquez, 232 Ariz. at 487 ¶ 9 (quoting State v. Barger, 167 Ariz. 563,
568 (App. 1990)). Witness credibility is an issue for the jury at trial, not this
Court on appeal. State v. Soto-Fong, 187 Ariz. 186, 200 (1996).

¶26            As applicable here, a person commits felony murder if,
“[a]cting either alone or with one or more other persons the person commits
or attempts to commit . . . child abuse under § 13–3623, subsection A,
paragraph 1 . . . and, in the course of and in furtherance of the offense . . . ,
the person or another person causes the death of any person.” A.R.S.
§ 13–1105(A)(2). Child abuse occurs when:

       Under circumstances likely to produce death or serious
       physical injury, any person . . . [intentionally or knowingly]
       causes a child . . . to suffer physical injury or, having the care
       or custody of a child . . . , who causes or permits the person or
       health of the child . . . to be injured or who causes or permits
       a child . . . to be placed in a situation where the person or
       health of the child . . . is endangered[.]



                                       7
                            STATE v. TAMALA
                            Decision of the Court

A.R.S. § 13–3623(A).

¶27            Despite Tamala’s argument to the contrary, sufficient direct
and circumstantial evidence establishes that he personally abused C.R.—
and allowed Reyes to abuse C.R.—in such a manner that C.R. died from the
abuse. As noted, Tamala was considered a father figure in the Ahwatukee
household. The evidence establishes that Tamala, both alone and with
Reyes, physically abused C.R. and confined her in a small dog kennel for
two to three weeks without food or water. As a result of this abuse, C.R.
became weak and emaciated to such an extent that her bodily functions
were severely compromised. Although the precise cause of C.R.’s death is
unknown, the evidence at trial was more than adequate to allow the jury to
conclude that she died from abuse. Additionally, Tamala’s admission that
he buried C.R.’s body to conceal evidence of her death and his threatening
statement to M.G. after she was shot—and after her boyfriend was shot and
killed—strongly implicate him as being either personally responsible for
killing C.R., or at very least involved with Reyes’s killing of C.R.

¶28            The two cases Tamala relies upon to support his sufficiency
of the evidence argument are distinguishable. In both cases, although the
court concluded on appeal that evidence was insufficient to support felony-
murder convictions, neither defendant made incriminating statements like
Tamala did that were consistent with testimony by other witnesses. See State
v. Bennett, 213 Ariz. 562, 567 ¶ 24 (2006) (noting only evidence presented to
show defendant failed to promptly seek medical treatment for her son was
the treating physician who speculated that the victim “may or may not have
benefited from earlier medical treatment”); see also State v. Johnson, 215 Ariz.
28, 33 ¶¶ 20–22 (App. 2007) (noting the only witness who could contradict
defendant’s exculpatory trial testimony instead supported her testimony).
Because the trial evidence was sufficient to show that Tamala caused C.R.’s
death by abusing her, his sufficiency of the evidence argument fails.

              2. Duplicitous Charge and Multiple-Acts Jury Instruction

¶29            Tamala argues that the trial court erred in allowing the State
to present evidence of numerous acts of child abuse, and because the court
did not require the jurors to unanimously decide which act constituted the
offense, the verdict could have been non-unanimous. Reviewing for an
abuse of discretion, we conclude the court did not err. See State v. Bolton,
182 Ariz. 290, 309 (1995) (within trial court’s discretion to refuse jury
instruction); see also State v. West, 238 Ariz. 482, 488 ¶ 12 (App. 2015) (denial
of motion for new trial based on purported duplicitous charge generally
reviewed for abuse of discretion).


                                       8
                            STATE v. TAMALA
                            Decision of the Court

¶30            A duplicitous charge exists “[w]hen the text of an indictment
refers only to one criminal act, but multiple alleged criminal acts are
introduced to prove the charge[.]” State v. Klokic, 219 Ariz. 241, 244 ¶ 12
(App. 2008). If a defendant is convicted of a duplicitous charge, the jury
may not have unanimously decided which act constituted the offense. State
v. Davis, 206 Ariz. 377, 390 ¶ 59 (2003). Such a verdict violates Article 2,
Section 23, of the Arizona Constitution. Id. at ¶ 64.

¶31            The statute proscribing child abuse, A.R.S. § 13–3623(A), is an
alternative-means statute. West, 238 Ariz. at 489 ¶ 19. The statute identifies
a single crime and provides more than one means of committing the crime.
Id. Furthermore, as the trial court correctly found, Tamala’s defense to the
various means of abuse—that Reyes alone was responsible—would not
change had C.R. died from starvation, blunt-force trauma, or dehydration.
Additionally, no reasonable basis existed to distinguish between the
abusive acts because any combination of starvation, blunt-force trauma, or
dehydration could have resulted in C.R.’s death. As a result, the numerous
acts of child abuse constituted a continuous course of criminal conduct. Cf.
Klokic, 219 Ariz. at 248 ¶ 32 (“[W]hen both events occur as part of a larger
criminal episode, acts may not be considered part of the same criminal
transaction if the defendant offers different defenses to each act or there is
otherwise a reasonable basis for distinguishing between them.”).

¶32             For these reasons, Tamala’s argument on appeal fails.
Although Tamala was entitled to a unanimous verdict on whether he
committed child abuse, he was not entitled to unanimity regarding the
precise manner in which the crime was committed. See West, 238 Ariz. at
492 ¶ 30. Accordingly, the State was not required to choose between
starvation, blunt-force trauma, or dehydration as its theory of child abuse,
and an unanimity instruction was not required. Id. at 496 ¶ 46. The trial
court, therefore, properly denied both Tamala’s motion to dismiss and his
request for a multiple-acts jury instruction. See Klokic, 219 Ariz. at 244 ¶ 15
(“[I]t is not error for the trial court to fail to require such curative measures
in those instances in which all the separate acts that the State intends to
introduce into evidence are part of a single criminal transaction.”).

              3. M.G.’s Immigration Status

¶33           Tamala contends that he was denied his rights to present a
defense and to confront M.G. with evidence of her motive to provide false
testimony. We generally review a trial court’s ruling on the admissibility of
evidence for a clear abuse of discretion. State v. King, 213 Ariz. 632, 636 ¶ 15




                                       9
                            STATE v. TAMALA
                            Decision of the Court

(App. 2006). However, we review de novo challenges to admissibility based
on the Confrontation Clause. Id.

¶34            The Confrontation Clause of the Sixth Amendment protects a
defendant’s ability to prove a witness’s motive or bias. U.S. Const. amend.
VI; Davis v. Alaska, 415 U.S. 308, 316–17 (1974). The Confrontation Clause,
however, does not prevent a trial judge from imposing limits on defense
counsel’s inquiry into the potential bias of a prosecution witness; courts
retain wide latitude to impose reasonable limits on cross-examination
based on, among other things, prejudice, confusion of the issues, and
interrogation that is only marginally relevant. Delaware v. Van Arsdall, 475
U.S. 673, 679 (1986).

¶35           On this record, the trial court properly could conclude that
the probative value of cross-examination about the unrelated circumstances
of M.G.’s visa application and her citizenship status would be substantially
outweighed by a danger of confusing the issues and misleading the jury.
See Ariz. R. Evid. 403. Accordingly, the court did not abuse its discretion in
precluding Tamala from inquiring into such matters, and his confrontation
rights were not violated. See State v. Dickens, 187 Ariz. 1, 14 (1996)
(“Although a defendant has a fundamental constitutional right to confront
witnesses and present a defense, the right is limited to the presentation of
matters admissible under ordinary evidentiary rules . . . .”), abrogated on
other grounds by State v. Ferrero, 229 Ariz. 239, 243 ¶ 20 (2012).4

              4. Reyes’s Statements

¶36            Tamala challenges the admissibility of Reyes’s statements to
law enforcement. Tamala expressly informed the trial court that he did not
object to the statements, however. Tamala therefore invited whatever error
occurred, if any, and this Court need not address the issue. See State v.
Pandeli, 215 Ariz. 514, 528 ¶ 50 (2007) (holding defendant invited error
regarding admission of other act evidence when the trial court asked
defense counsel if he objected to the evidence and counsel responded he
did not); see also State v. Logan, 200 Ariz. 564, 565–66 ¶ 9 (2001) (declining to
address an issue raised as a result of invited error).



4      In his brief, Tamala refers to inconsistencies in M.G.’s testimony and
her “newly formed memories of this case.” The trial court, however,
specifically informed Tamala that M.G.’s prior inconsistent statements were
not precluded.



                                       10
                   STATE v. TAMALA
                   Decision of the Court

                      CONCLUSION

¶37   For the foregoing reasons, we affirm.




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




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