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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                GARY LEE BRANDEBERRY, JR., Appellant.

                             No. 1 CA-CR 18-0006
                               FILED 6-18-2019


            Appeal from the Superior Court in Navajo County
                        No. S0900CR201300509
                The Honorable Robert J. Higgins, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist III.
Counsel for Appellee

Elizabeth Hale, Lakeside
Counsel for Appellant



                       MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Kenton D. Jones joined.
                        STATE v. BRANDEBERRY
                          Decision of the Court

T H O M P S O N, Judge:

¶1            Gary Lee Brandeberry, Jr. (defendant) appeals from his
convictions and sentences for four counts of child molestation, class 2
felonies, one count of sexual abuse, a class 3 felony, and one count of
indecent exposure, a class 6 felony. For the following reasons, we affirm.

              FACTUAL AND PROCEDURAL HISTORY 1

¶2             Defendant lived with long-time family friends, B.B. (father)
and J.L. (mother) at their home in Navajo County for about a month in the
spring of 2013. Father and mother had two daughters, T.B., eleven years
old, and H.B., nine years old (the girls). T.B. and H.B. called defendant
“Uncle Gary,” and father and mother often left them in defendant’s care.
While alone with the girls, defendant played a “game” with them called
“Below the Waist” which entailed defendant making a circle with his hand
and placing it on his body below the waist, sometimes on his penis, in order
to get the girls to look at his penis. Defendant also “de-pantsed” the girls.
On multiple occasions, defendant pulled down H.B.’s pants and
underwear, exposing her vagina. On at least one occasion, he pulled down
T.B.’s pants.

¶3            Defendant exposed part of his buttocks to H.B. on two
occasions. Another time, when H.B. was alone outside with defendant,
defendant grabbed her by the hips and “dry-humped” her from behind.
H.B.’s arm was behind her back, and she could feel his penis, which she
described as a “lump.” Later that day, defendant told H.B. he thought she
wanted to see his penis. H.B. said no, and because she was worried that
defendant would expose himself to her anyway, she asked if his pants were
up. Defendant said they were, but when H.B. looked at defendant his penis
was hanging out of his open zipper. H.B. ran away but defendant
demanded she come back. He sat H.B. on his lap and stated that if she told
her father he would not believe her. On six separate occasions defendant
touched H.B.’s vagina over her clothes.

¶4            Defendant exposed part of his buttocks to T.B. on one
occasion. He then looked down inside her underwear, purportedly to see
her tan line. Defendant also pinched T.B.’s nipples through her clothing




1  We view the facts in the light most favorable to sustaining the verdict.
State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


                                     2
                        STATE v. BRANDEBERRY
                          Decision of the Court

after pretending not to know she had breasts. Defendant told T.B. that she
would not be believed if she told her parents what had taken place.

¶5           On or about the day before Easter 2013, T.B. told mother about
defendant’s behavior. Father confronted defendant and ordered him to
leave. Mother and father called the sheriff. Shortly after defendant left, he
contacted mother and father on Facebook and told them that he had nude
photos of mother. Father found that several cell phone memory cards were
missing from the home. Father viewed defendant’s Facebook message as a
threat.

¶6             The state charged defendant with indecent exposure, a class 6
felony, four counts of child molestation, class 2 felonies, and sexual abuse,
a class 3 felony. After a jury trial, defendant was convicted as charged. The
jury found two aggravating factors. First, that the victims suffered
emotional harm and second, that defendant took advantage of his position
of trust as the victims’ caretaker. The trial court sentenced defendant to one
year in prison for count 1, seventeen years in prison each for counts 2-5, and
five years in prison for count 6. The court ordered defendant to serve the
sentences for counts 1-5 concurrently but consecutive with the sentence for
count 6. Defendant timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (A.R.S.) §§ 12-120.21(A)(1) (2019), 13-4031 (2019), and -4033(A)(1)
(2019). 2

                               DISCUSSION

¶7             Defendant raises one issue on appeal: whether the trial court
violated his due process right to a fair trial by excluding evidence he wished
to present at trial.

A. Evidence Precluded Under Rape Shield Law

¶8            Defendant first argues that the trial court erred when it
precluded his testimony about alleged sexual behaviors of H.B. under the
rape shield law.

¶9          Prior to defendant’s testimony, defense counsel proffered that
defendant would testify that H.B. grabbed his penis and stared at his penis

2      We cite to the current version of any statute unless the statute was
amended after the pertinent events and such amendment would affect the
result of this appeal.



                                      3
                         STATE v. BRANDEBERRY
                           Decision of the Court

on two separate occasions, and that he did not tell father and mother
because he did not want her to get in trouble. The state objected, arguing
that testimony about H.B.’s prior sexual behavior should be precluded
under the rape shield statute. Defense counsel argued that H.B.’s alleged
sexual behaviors were not prior sexual conduct but instead, “the act that
the State is trying to prove.” The court held that defendant could testify
that H.B. touched his penis of her own volition.

¶10           After taking the stand, defendant testified that H.B. saw his
penis when he was outside urinating. During this testimony, the court
granted defense counsel’s request for a bench conference. Defense counsel
stated that he anticipated the state would object to his next question, which
would result in defendant testifying that H.B. was trying to look at his penis
and would not stop looking at it. The state objected to the proposed
testimony, arguing that it was not admissible under the rape shield law,
and the trial court agreed. The court stated that it was permissible for
defendant to testify that H.B. saw his penis while he was urinating “but
nothing more.”

¶11           At a subsequent bench conference, defense counsel told the
court he anticipated defendant would testify that H.B. intentionally shoved
or grabbed him in the crotch, and that is how H.B. ended up touching his
penis. The state again objected on the basis of the rape shield law. Defense
counsel stated that he was not going to ask defendant the question about
crotch grabbing because “it never really is clear about when this . . . penis
grabbing or whatever you want to call it was going on . . . I guess I’m not
going to ask this question because I can’t get it into context.” Counsel did
ask defendant whether he ever made H.B. touch his penis and he denied
having done so.

¶12          Defendant argues on appeal that he should have been
permitted to testify that he caught H.B. staring at his penis because that is
why he began playing the “Below the Waist” game with the girls. He
further claims that the court’s preclusion of his testimony about H.B.’s
alleged sexual behavior directed at him denied him his right to a fair trial.

¶13            We review a trial court’s decision to preclude evidence under
the rape shield law for an abuse of discretion. State v. Herrera, 232 Ariz. 536,
549, ¶ 38 (App. 2013) (citation omitted). An abuse of discretion occurs when
“the reasons given by the court for its action are clearly untenable, legally
incorrect, or amount to a denial of justice.” State v. Arellano, 213 Ariz. 474,
478, ¶ 14 (2006) (citation omitted).




                                       4
                         STATE v. BRANDEBERRY
                           Decision of the Court

¶14           Arizona’s rape shield statute, A.R.S. § 13-1421 (2019),
excludes reputation and opinion evidence “relating to [a] victim’s chastity”
unless the evidence falls under five listed exceptions. A.R.S. § 13-1421(A).
As applicable here, evidence of a victim’s past sexual conduct with a
defendant is admissible under section 13-1421(A)(1) “only 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 . . . .” Id.

¶15           We find no abuse of discretion in the trial court’s decision
precluding defendant from testifying that H.B. stared at his penis. The
proposed evidence was not relevant because a victim of child molestation
cannot consent to the crime. 3 See State v. Rice, 110 Ariz. 210, 212 (1973).
Further, the court would have been well within its discretion to conclude
that defendant’s testimony that nine-year-old H.B. was sexually interested
in him was more prejudicial than probative.

¶16          As to the proposed testimony about the alleged crotch-
grabbing, defense counsel chose not to ask the question. Accordingly, there
was no abuse of discretion by the court.

B. Third-Party Culpability Evidence

¶17           Defendant next argues that the trial court erred when it
denied him the right to present third-party culpability evidence. We review
the court’s evidentiary rulings for an abuse of discretion. State v. Davolt,
207 Ariz. 191, 208, ¶ 60 (2004).

¶18             Prior to trial, defendant sought to introduce evidence that 1)
father hit the girls, 2) father threatened to kill their dog, 3) father strangled
H.B. for not doing her chores, 4) mother and father grew marijuana in H.B.’s
bedroom, 5) defendant witnessed father entering a bathroom where the
girls were showering wearing nothing but his underwear, and 6) defendant
witnessed father touching H.B.’s nipples. Defendant also sought to have a
CPS caseworker testify that CPS had received a phone call alleging that
father was molesting the girls and that mother and father had been under
CPS supervision for several years due to abuse and neglect allegations.
(Id.). The trial court denied defendant’s pre-trial motion. The court first
noted that it had previously ruled that evidence of prior sexual abuse of the


3 We find defendant’s argument that the evidence was relevant to explain
why he played a game where he encouraged the girls to look at parts of his
body below the waist unpersuasive.


                                       5
                          STATE v. BRANDEBERRY
                            Decision of the Court

girls would not be admitted because of the rape shield statute. The court
then concluded that “whether or not the victims’ parents abused them does
not have any tendency to make it more or less likely that [defendant]
sexually abused them.” The court further noted that although father had
been investigated by CPS for abuse or neglect, the allegations were
unsubstantiated and the anonymous phone call to CPS was hearsay and
highly untrustworthy. 4

¶19            At a bench conference prior to defendant’s testimony, defense
counsel stated that defendant wanted to testify that he saw mother molest
T.B. The court noted that it had already ruled that evidence of past abuse
of the victims was precluded, and defendant argued that the state had
opened the door by presenting expert testimony about the signs and
symptoms of abuse victims. 5 The court concluded that it had not “heard
anything new in the testimony by the expert that would lead [the court] to
believe that [evidence of abuse by mother or father was] more relevant than
. . . when [the court] ruled that it shouldn’t be admitted.”

¶20            Though constitutionally protected, a defendant’s right to
present a defense is not without limitations. United States v. Scheffer, 523
U.S. 303, 308 (1998) (“A defendant’s right to present relevant evidence is not
unlimited, but rather is subject to reasonable restrictions.”). Defendants are
still beholden to the trial court’s application of ordinary evidentiary
restrictions. State v. Hardy, 230 Ariz. 281, 291, ¶ 49 (2012) (citations omitted).
As with all litigants, defendants must show that proffered evidence is both
relevant under Arizona Rules of Evidence (Rule) 401 and 402, and its
probative value is substantially outweighed by the danger of “unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence” under Rule 403. See
Ariz. R. Evid. 401 (evidence is relevant if it has “any tendency to make a fact
more or less probable” and “the fact is of consequence in determining the
action”), 402 (irrelevant evidence is inadmissible), 403 (balancing test). See
also State v. Machado, 226 Ariz. 281, 283, ¶ 14 (2011) (“The admission of third-
party culpability evidence is governed by the standards of Rules 401
through 403 of the Arizona Rules of Evidence. . . .” ). “Evidence offered to
establish the culpability of a third party is relevant under Rule 401 only


4 Defendant later claimed in a pleading that he was the one who called
CPS.

5 The expert witness was a “cold” expert, meaning that she knew nothing
about the victims or the facts of this case before testifying.


                                        6
                         STATE v. BRANDEBERRY
                           Decision of the Court

when it ‘tends[s] to create a reasonable doubt as to the defendant’s guilt.’”
Id. at 284 n. 2, ¶ 16 (quoting State v. Gibson, 202 Ariz. 321, 324, ¶ 16 (2002)).

¶21           Defendant argues that evidence of father’s alleged sexual
abuse was relevant because it “tended to negate the guilt of [defendant].”
We disagree. None of the evidence defendant sought to introduce,
including evidence about alleged physical, emotional, or sexual abuse by
mother or father, CPS involvement with the family, or marijuana growing
was relevant to the question of whether defendant committed the crimes he
was charged with. And the evidence of alleged sexual abuse by father
and/or mother was further properly excluded under A.R.S. § 13-1421(A).
We find no abuse of discretion.

C. Evidence Relating to Defendant’s Fabrication Defense

¶22            Finally, defendant argues that the trial court erred when it
denied his motion to present evidence related to a fabrication defense. Prior
to trial, defendant filed a motion to admit other acts evidence pursuant to
Rule 404(b). Defendant sought to admit evidence of mother and father’s
case with CPS, father’s alleged physical and verbal abuse of the girls,
mother’s prison sentence, and mother and father’s drug abuse. Defendant
argued that the evidence was relevant to show that the parents and the girls
“had the motive and plan” to make sex crimes allegations against him.

¶23           In response, the state noted that Rule 404(b) did not apply and
that the court should analyze defendant’s proposed other acts evidence
under Rules 401-403. 6 See Machado, 226 Ariz. at 283, ¶ 14 (Rule 404(b)’s
“central purpose is to protect criminal defendants from unfair use of
propensity evidence.”). The trial court denied the motion, finding that
whether or not mother and/or father abused the girls physically or sexually
was not relevant to whether defendant committed his alleged crimes, and
that it was “unclear what the causal connection between the parents’ drug
abuse and their motive to fabricate allegations against [defendant] would
be.”

¶24          Defendant filed a motion for reconsideration describing the
evidence he wished to present as follows:

              1. A statement in the CPS records from a
              February 2011 report that “[b]oth children have


6 In a motion for reconsideration, defendant agreed that Rules 401-403
were applicable rather than Rule 404(b).


                                       7
                         STATE v. BRANDEBERRY
                           Decision of the Court

              fears about being taken away by CPS, as CPS
              has been involved in the past.”

              2. Defendant’s testimony that three days before
              he left the family home he told father he was
              going to call CPS and report that mother and
              father were abusing the children and growing
              marijuana in the children’s closet.

              3. The fact that CPS had frequent interactions
              with the family.

              4. Defendant witnessed father          physically
              abusing the children.

              5. Defendant observed the parents growing
              marijuana in the children’s closet.

After oral argument, the court denied the motion for reconsideration.

¶25           We find no abuse of discretion. Although a defendant has a
constitutional right to present a theory of defense, he does not have the right
to present that theory with whatever evidence he chooses. State v. Carlson,
237 Ariz. 381, 393, ¶ 36 (2015) (citation omitted). The link between
defendant’s proffered evidence and his fabrication defense was highly
speculative and the court properly excluded it.

                              CONCLUSION

¶26           For the foregoing reasons, defendant’s convictions and




                                      8
                          STATE v. BRANDEBERRY
                            Decision of the Court

sentences are affirmed.




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




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