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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      KENNETH LEE FARR, Appellant.

                             No. 1 CA-CR 15-0772
                               FILED 5-2-2017


           Appeal from the Superior Court in Maricopa County
                      No. CR2013-113940-001 DT
               The Honorable Jay Ryan Adleman, Judge

               AFFIRMED IN PART; VACATED IN PART


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Guy Brown PLLC, Phoenix
By Guy F. Brown
Counsel for Appellant
                            STATE v. FARR
                          Decision of the Court



                     MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.


W I N T H R O P, Judge:

¶1            Kenneth Lee Farr (“Appellant”) appeals his convictions and
sentences for twenty-three counts of sexual conduct with a minor. For the
following reasons, we affirm Appellant’s convictions and sentences as to
Counts 1-4, Counts 6-21, and Count 23, and vacate his convictions and
sentences as to Counts 5 and 22.

                FACTS AND PROCEDURAL HISTORY1

¶2            Appellant was the pastor of Garden Paradise Church in
Phoenix, where the victim and her family were members. The victim began
attending the church when she was eight years old and was friends with
Appellant’s step-daughter. As the victim grew up, her relationship with
her family deteriorated, and she began spending more time participating in
church activities. The victim did not have a father, and she became close
with Appellant, who was a “father figure” to her.

¶3             In May 2012, when the victim was seventeen years old,
Appellant took her to his home and engaged in sexual acts with her.
Between May 2012 and March 2013, Appellant and the victim had multiple
sexual encounters at Appellant’s house, at the church, in Appellant’s
vehicle, in a church bus, at Appellant’s mother’s house, and in a motel.

¶4           On March 23, 2013, the victim was performing a sexual act on
Appellant in the bedroom Appellant shared with his wife at his home.
When Appellant and the victim saw the headlights of his wife’s car outside,
Appellant “pushed [the victim] back and he got up really quick and he
zipped his pants . . . .” Appellant’s wife then called the victim’s mother,
who picked the victim up and took her home. The next day, the victim told



1       We state the facts in the light most favorable to upholding the
convictions. State v. Tucker, 215 Ariz. 298, 306 n.1, 160 P.3d 177, 185 n.1
(2007).


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                           Decision of the Court

her mother about her sexual relationship with Appellant, and her mother
called the police.

¶5            The police initiated an investigation and interviewed the
victim, who disclosed multiple sexual encounters with Appellant on
different dates. The victim was also examined by a forensic nurse. During
the examination, the victim stated she was “bipolar and [had] been
diagnosed with schizophrenia,”2 but was not taking the medicine that her
psychiatrist prescribed to her. Nevertheless, the victim spoke clearly and
understood and responded to the nurse’s questions.

¶6            The police also interviewed Appellant. Although Appellant
denied having any sexual contact with the victim, her DNA was found on
his genitals.

¶7              In April 2013, Appellant was indicted on twenty-three counts
of sexual conduct with a minor. Before trial, Appellant moved the trial
court to permit the introduction of evidence “bearing upon victim
credibility and victim motive.” Specifically, Appellant requested the court
permit “the use of statements [made] by the victim during her examination
and treatment by hospital staff and other statements [made] by the victim
about her virginity, her pregnancy, and her psychological condition.”3 In
its response, the State asserted that any mention of the victim’s past sexual
experiences was strictly precluded under Arizona’s rape shield law. See
Ariz. Rev. Stat. (“A.R.S.”) § 13-1421 (2010). After hearing argument on the
issue, the trial court denied Appellant’s motion, stating that “any testimony




2      The record is unclear as to the exact diagnosis of the victim’s
psychological condition. Throughout the trial record, counsel for both the
State and Appellant refer to the condition as “bipolar schizophrenia.”
However, the defense expert testified that bipolar disorder and
schizophrenia are in fact two separate conditions, although there “can be a
conjunction between the two.”

3      The record indicates the victim may have been pregnant at the time
of the forensic exam in March 2013. However, no evidence in this regard
was introduced at trial.




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                            Decision of the Court

regarding the chastity or lack of chastity of the victim is clearly prohibited
under A.R.S. 13-1421(A).”4

¶8             At trial, the State presented testimony from crime scene
specialists, forensic nurses, a forensic scientist, a DNA analyst, two
detectives, a forensic interviewer, and the victim. Appellant’s wife and
daughter testified on his behalf. Appellant also called Dr. Streed, a
behavioral scientist, to testify about the concept of “confabulation” and its
link to schizophrenia as support for his argument that the victim’s
psychological condition led her to falsely accuse Appellant by “creating
false memories.” Dr. Streed defined confabulation as “filling in a gap of
memory with something that seems reasonable and appropriate and
logical.” He also testified that “[c]onfabulatory schizophrenia has to do
with an individual that has an existing psychiatric disorder . . . in terms of
recognition of reality. The business of a confabulation has to do with filling
in those portions of their experiences or life experiences that satisfy them as
far as the explanation of what has been taking place or is taking place in a
certain environment.”

¶9            At the conclusion of trial, the jury found Appellant guilty as
charged on all twenty-three counts of sexual conduct with a minor. For
Counts 1-12, the court sentenced Appellant to concurrent terms, with the
longest being 9.25 years in the Arizona Department of Corrections. For
Counts 13-18, the court sentenced Appellant to concurrent terms of 9.25
years, to run consecutive to Counts 1-12. For Counts 19-23, the court
sentenced Appellant to concurrent terms of 9.25 years, to run consecutive
to Counts 1-12 and Counts 13-18. Appellant timely appealed, and we have
jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and
A.R.S. §§ 12-120.21(A)(1) (2016), 13-4031 (2010), and 13-4033(A) (2010).

                                 ANALYSIS

¶10          Appellant contends the trial court erred in excluding certain
evidence relating to the victim’s sexual history, pregnancy, and
psychological condition. According to Appellant, the trial court precluded
the evidence in violation of Appellant’s constitutional rights because the
evidence was relevant to his defense that the victim fabricated the


4     The court noted, however, that if the victim or another witness
“opened the door regarding the issue of the victim’s chastity, then [the
evidence] might at that point in time, related to credibility, come in in terms
of some cross-examination.”



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                            Decision of the Court

allegations against him “in order to get back at Appellant and his wife for
discontinuing financial support.” We review the trial court’s rulings on the
exclusion of evidence for an abuse of discretion. State v. Vega, 228 Ariz. 24,
26, ¶ 6, 262 P.3d 628, 630 (App. 2011). But, we review a trial court’s ruling
implicating a defendant’s constitutional rights de novo. See State v. Ellison,
213 Ariz. 116, 129, ¶ 42, 140 P.3d 899, 912 (2006).

       I.     Preclusion of Evidence under the Rape Shield Law

¶11              Arizona’s rape shield law precludes the introduction of
“[e]vidence relating to a victim’s reputation for chastity . . . .” A.R.S. § 13-
1421(A). However, evidence of specific instances of the victim’s prior
sexual conduct may be admitted if the evidence supports a claim that the
victim has a motive in accusing the defendant of the crime or if it is evidence
of specific instances of sexual activity showing the source or origin of
pregnancy. A.R.S. § 13-1421(A)(2), (3). Even in those circumstances,
however, the evidence will only be admissible “if a judge finds the evidence
is relevant and is material to a fact in issue in the case and that the
inflammatory or prejudicial nature of the evidence does not outweigh the
probative value of the evidence.” A.R.S. § 13-1421(A). “[T]he [trial] court
has considerable discretion in determining whether the probative value of
the evidence is substantially outweighed by its unfairly prejudicial effect.”
State v. Gilfillan, 196 Ariz. 396, 405, 998 P.2d 1069, 1078 (App. 2000).

¶12           Here, the trial court did not abuse its discretion in precluding
evidence pertaining to the victim’s sexual history and pregnancy.
Appellant argues that the victim’s sexual history and pregnancy were
issues that “overlap[ped] with the credibility challenge inherent to bipolar
schizophrenic confabulation, all of which reasonably might have arisen
from the victim’s motive to . . . get back at Appellant and his wife for
discontinuing financial support.” In his opening brief, Appellant does not
expressly state what evidence he sought to admit. However, our review of
the record reveals that he intended to introduce evidence that the victim
“may have been a prostitute” and that “her boyfriend at the time was
incarcerated.” But Appellant offered no evidence at the pretrial hearing to
show how the victim’s alleged sexual history was relevant to his claim that
she had a motive to “get back at him.” Additionally, because the State did
not present any evidence at trial pertaining to the victim’s pregnancy, the
evidence Appellant sought to admit pertaining to the alleged source of the
pregnancy was not relevant to any material fact at issue. See A.R.S. § 13-
1421(A).




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                            Decision of the Court

¶13            Further, the trial court permitted Appellant to admit evidence
pertaining to the victim’s psychological condition, and allowed Dr. Streed,
who had never evaluated or treated the victim, to testify about the concept
of confabulation and its link to schizophrenia. To the extent Appellant
contends his expert should have been permitted to testify as to the victim’s
credibility, the trial court did not abuse its discretion in precluding such
testimony. See State v. Lindsey, 149 Ariz. 472, 475, 720 P.2d 73, 76 (1986)
(“[E]ven where expert testimony on behavioral characteristics that affect
credibility or accuracy of observation is allowed, experts should not be
allowed to give their opinion of the accuracy, reliability or credibility of a
particular witness in the case being tried.”).

       II.    Constitutional Considerations

¶14           Contrary to Appellant’s assertion, the trial court did not
violate Appellant’s constitutional right to “confront his accuser” and
“present a complete defense” by precluding the evidence of the victim’s
sexual history and pregnancy. Although the rape shield law “clearly
implicates” a defendant’s constitutional rights, this court has declared the
statute constitutional on its face in light of the “legitimate state interest in
protecting against the harassment of a victim.” Gilfillan, 196 Ariz. at 402-03,
998 P.2d at 1075-76. However, this court has also stated that certain
circumstances “may arise in the future in which the statute may be
unconstitutional as applied,” such as situations in which the evidence “has
substantial probative value and when alternative evidence tending to prove
the issue is not reasonably available.” State ex rel. Montgomery v. Duncan,
228 Ariz. 514, 516, ¶ 5, 269 P.3d 690, 692 (App. 2011) (internal citations and
quotations omitted).

¶15          In this case, because Appellant failed to show that the
evidence pertaining to the victim’s sexual history and pregnancy had any
bearing on the victim’s alleged motive, the evidence did not have
“substantial probative value.” See id. Accordingly, the trial court’s
exclusion of the evidence under the rape shield law did not violate
Appellant’s constitutional rights.

       III.   Counts 5 and 22

¶16          In its answering brief, the State requests we vacate
Appellant’s convictions and sentences for Counts 5 and 22 because the State
presented insufficient evidence at trial to support the jury’s verdicts on
those counts. Because the record supports the State’s assertion, we vacate
Appellant’s convictions and sentences for Counts 5 and 22.



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                            STATE v. FARR
                          Decision of the Court

                            CONCLUSION

¶17           Appellant’s convictions and sentences as to Counts 1-4,
Counts 6-21, and Count 23 are affirmed, and his convictions and sentences
as to Counts 5 and 22 are vacated.




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




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