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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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



                               IN RE ISAIAH A.

                             No. 1 CA-JV 17-0241
                               FILED 10-17-2017


           Appeal from the Superior Court in Maricopa County
                             No. JV200857
           The Honorable Colleen L. French, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Gallagher & Kennedy, P.A., Phoenix
By Woodrow C. Thompson, Hannah H. Porter
Counsel for Appellant

Maricopa County Attorney’s Office, Phoenix
By Andrea L. Kever
Counsel for Appellee



                       MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Diane M. Johnsen joined.
                            IN RE ISAIAH A.
                           Decision of the Court

C R U Z, Judge:

¶1           Isaiah A. appeals his adjudication of delinquency for one
count of child molestation against the victim (“Victim”), claiming it was
unsupported by sufficient evidence. Because we find sufficient evidence to
uphold the adjudication, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2            In June 2014, Victim’s mother, a chiropractor, went to Sarah
A.’s house to perform an adjustment on Sarah’s newborn daughter.
Victim’s mother brought along her three children, including Victim, then
six years old. Sarah had been the mother’s client and friend for several
years, and Victim’s mother had met Sarah’s children, including Isaiah and
his brother Carman. Victim’s mother had adjusted both Isaiah and Carman
in the past.

¶3            Isaiah let Victim’s mother in the house, and while the mother
went upstairs to perform the adjustment, Victim and her two brothers
stayed downstairs to play. Victim’s mother was upstairs for roughly forty-
five minutes. When Victim’s mother came downstairs, she noticed Victim
sitting on Isaiah’s lap with a blanket covering them; Carman was in a
nearby area. Concerned for Victim based on what she saw, the mother
collected her children and left Sarah’s home.

¶4           After driving away, Victim’s mother pulled over, took Victim
behind the car, and asked her if Isaiah had touched her, and Victim nodded
yes. Victim’s mother asked if he had touched her in her underwear, and
Victim again nodded yes. When Victim’s mother asked if he touched her
vagina, Victim looked down and turned her head before nodding yes.
Victim’s mother then called the police, and Victim was brought to
Childhelp1 for questioning and a physical examination.

¶5            Isaiah was charged with one count of molestation of a child,
a Class 2 felony. Ariz. Rev. Stat. (“A.R.S.”) § 13-1410.

¶6            At the adjudication hearing, Victim’s mother testified that
when she came downstairs after completing the chiropractic adjustment,
she saw Victim sitting on Isaiah’s lap under a blanket, with “very big eyes,”
and that Victim looked terrified. Victim’s mother could not say whether it
was Isaiah or Carman, on whose lap Victim was sitting, but described the

1      Childhelp is a nonprofit organization dedicated to helping victims
of child abuse and neglect.


                                     2
                             IN RE ISAIAH A.
                            Decision of the Court

boy as matching Isaiah’s appearance. Victim’s mother’s first thought was
that Isaiah was touching Victim, although she could not see Isaiah’s hands.
Mother testified that as she gathered the children to leave the home, Isaiah
followed her, asking random questions and being more talkative than
usual. On cross-examination, Victim’s mother agreed that when she pulled
over after leaving the house, she asked Victim leading questions and then
told her that what Isaiah had done was wrong. She testified, however, that
she did not believe Victim was saying yes simply because she thought she,
as the Victim’s mother, wanted her to or had suggested it.

¶7            Victim, nine years old at the time of the hearing, testified that
she had been touched inappropriately by Isaiah, even though she could not
remember when it happened or identify the boy in court. Victim testified
that she sat on Isaiah’s lap with a blanket covering them both although it
was not cold, and Isaiah used his hand to touch her genitals. Victim
otherwise remembered very little of the incident.

¶8              Both Carman and Isaiah testified Victim sat on Isaiah’s lap,
not Carman’s, although Isaiah denied he touched Victim’s genitals. Isaiah
testified he played with Victim and her siblings, playfully dragged them on
the blanket he regularly slept with, and watched a movie with them. He
testified that during the movie Victim sat on his lap, and he used the blanket
to cover them because Victim was cold. Further, both Isaiah and Carman
stated Victim’s mother commented on how cute the children looked sitting
together when she came downstairs and did not appear concerned or upset
when she left.

¶9             The pediatric nurse at Childhelp testified about her
examination of Victim. The nurse testified there were no injuries to Victim
but swabs were taken from Victim’s genitals. The State’s DNA analyst
testified the swabs contained small amounts of male DNA, although the
analyst testified that it was not such a “low level” to signify transfer of DNA
through secondary contact.2 Instead, the DNA analyst testified the transfer
was primary, in that DNA was transferred from its source directly to

2      A secondary transfer could have occurred if Isaiah touched the
blanket, and the blanket touched Victim’s genitals. Isaiah contended the
evidence showed a tertiary transfer, as for example, where Isaiah touched
the blanket, the blanket touched Victim’s hand, and Victim then touched
her genitals with her hand, or where Victim was playfully dragged on the
blanket which contained Isaiah’s DNA, Victim’s underwear touched the
blanket, and Isaiah’s DNA was transferred to the blanket, to Victim’s
underwear, to her genitals.


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                            IN RE ISAIAH A.
                           Decision of the Court

Victim’s genitals. The DNA profile belonged to males paternally related to
Isaiah, which would include Isaiah as well as Carman. Some of the DNA
results were inconclusive, but others matched Isaiah’s pattern at eleven
locations, an instance that randomly would not occur more frequently than
one in 1,300 Caucasian males.

¶10            Isaiah’s DNA witness did not dispute the methodology the
State’s expert used or the results showing a link to Isaiah’s family lineage,
but disagreed with how the DNA came to be present on Victim’s genitals.
Isaiah’s expert testified that in her opinion, the amount of DNA available
did not indicate the level of transfer, as the relation of DNA from a primary
transfer to secondary transfer is unknowable. 3 In the expert’s opinion, the
transfer could have occurred primarily, but also secondarily or tertiarily
through contact with the blanket that Isaiah regularly slept with or through
other innocuous contact.

¶11          At the conclusion of the hearing, the court found the State had
proved beyond a reasonable doubt that Isaiah committed the charged
offense and adjudicated Isaiah delinquent. Isaiah timely appealed.

¶12           We have jurisdiction pursuant to A.R.S. §§ 8-235(A) and 12-
120.21(A)(1).

                               DISCUSSION

¶13           Whether sufficient evidence exists to support an adjudication
is a question of law, subject to de novo review on appeal. State v. West, 226
Ariz. 559, 562, ¶ 15 (2011). The relevant question is whether there is such
proof that reasonable persons could accept as adequate and sufficient to
support a finding of the essential elements of the offense beyond a
reasonable doubt. Id. at ¶ 16. We will not re-weigh the evidence, and we
will reverse only if there is a complete absence of probative facts to support
the judgment or if the judgment is contrary to any substantial evidence. In
re John M., 201 Ariz. 424, 426, ¶ 7 (App. 2001).



3       Isaiah’s expert testified, “You cannot use the amount of DNA
detected to make a determination as to whether something was [a] primary
or secondary transfer, because we don’t know how much DNA was
transferred to begin with in a primary transfer.” She explained that if a
primary transfer involved a large amount of DNA, resulting secondary and
tertiary transfers may contain higher levels of DNA than some primary
transfers.


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                             IN RE ISAIAH A.
                            Decision of the Court

¶14           A person commits molestation of a child by intentionally or
knowingly engaging in sexual contact with a child who is under fifteen
years of age. A.R.S. § 13-1410. “Sexual contact” is defined as “any direct or
indirect touching, fondling or manipulating of any part of the genitals, anus
or female breast by any part of the body . . . .” A.R.S. § 13-1401(A)(3).

¶15             Isaiah was adjudicated of intentionally or knowingly
touching Victim’s genitals by use of his hands. At the hearing, the court
heard Victim testify that Isaiah touched her genitals, and DNA evidence
tended to support that testimony. Moreover, the State’s DNA expert
testified the amount of DNA present indicated a direct contact between
Isaiah and Victim’s genitals; Isaiah’s expert witness testified the amount of
DNA was inconclusive as to the type of transfer. Although Isaiah argues
vigorously on appeal that Victim could not identify him at trial and that
Victim’s mother was not certain at first whether it was Isaiah or Carman
who had molested her daughter, it was undisputed at trial that when the
mother came downstairs, Victim was sitting on Isaiah’s lap, not Carman’s.
Further, although Isaiah’s counsel cross-examined Victim’s mother about
the manner of her questioning of Victim after they left the house, the court
was in the best position to weigh the credibility of witnesses. See State v.
Olquin, 216 Ariz. 250, 252, ¶ 10 (App. 2007) (“[W]e do not impose our own
determination as to the credibility of witnesses . . . [but] will defer to the
trial court’s assessment of witness credibility because the trial court is in the
best position to make that determination.”).

                               CONCLUSION

¶16           This Court finds there was sufficient evidence on record to
support Isaiah’s adjudication, and we will not reverse the superior court’s
finding that Isaiah intentionally or knowingly engaged in sexual contact
with Victim by touching her genitals. We affirm.




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




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