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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                         EDGAR GARCIA, Appellant.

                             No. 1 CA-CR 18-0628
                              FILED 9-5-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-159502-001
               The Honorable Susanna C. Pineda, Judge

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michelle L. Hogan
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant
                            STATE v. GARCIA
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Chief Judge Peter B. Swann joined.


C A T T A N I, Judge:

¶1            Edgar Garcia appeals his convictions and sentences for eleven
crimes, including sexual conduct with a minor, kidnapping, sexual abuse,
and child molestation. For reasons that follow, we modify one of his
sentences to reflect 861 days’ presentence incarceration credit, but we affirm
his convictions and sentences in all other respects.

             FACTS AND PROCEDURAL BACKGROUND

¶2           Garcia and his now ex-wife lived together with their children
and Garcia’s stepdaughters, M.O. and J.O. After moving out of the home,
M.O. and J.O. each reported to law enforcement that Garcia had touched
them sexually on multiple occasions when they were minors. During a
recorded interview with law enforcement, Garcia confirmed many of the
allegations.

¶3            A jury convicted Garcia of five counts of sexual conduct with
a minor, two counts of kidnapping, two counts of sexual abuse, and two
counts of child molestation. The superior court imposed concurrent and
consecutive sentences totaling 150 years’ imprisonment.

¶4           The court permitted Garcia to file an untimely appeal. See
Ariz. R. Crim. P. 31.2(a)(3), 32.1(f). We have jurisdiction under A.R.S. § 13-
4033(A).

                               DISCUSSION

¶5            Garcia asserts five reversible errors: (1) the superior court
improperly admitted into evidence recordings of conversations between
Garcia and law enforcement officers and/or J.O., (2) the court failed to
require more than Garcia’s statements as a basis for the two sexual-abuse
convictions, (3) the evidence presented was insufficient to support one of
the child-molestation convictions, (4) the sexual-abuse and child-
molestation statutes under which he was convicted are unconstitutional,



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                             STATE v. GARCIA
                            Decision of the Court

and (5) the court failed to award sufficient credit for presentence
incarceration. We address each claim of error in turn.

I.     Admission of Recordings.

¶6             The State introduced into evidence Garcia’s recorded
interview with law enforcement officers and his phone conversation with
J.O. Although Garcia did not object at trial, he argues on appeal that these
recordings contained “other act” evidence that was inadmissible under
Arizona Rule of Evidence 404(b). Because he did not object, we review the
admission of this evidence only for fundamental, prejudicial error. State v.
Escalante, 245 Ariz. 135, 138, ¶ 1 (2018).

¶7             First, Garcia argues that his interview with the detective
improperly referred to uncharged other acts because the detective told
Garcia that M.O. had alleged that he “repeatedly engaged in sexual
intercourse with M.O. more and more until M.O. was 15.” But it is not clear
that the detective’s statements in fact alluded to uncharged other acts.
Specifically, the detective said, “She tells me ultimately that her relationship
with you became sexual. That you guys would have sex and that that
happened more than one time . . . all the way up until she was . . . 15.”
Garcia was charged with multiple counts of sexual intercourse, including
an offense involving sexual intercourse when M.O. was 15 years of age or
older. The detective’s statements did not identify any uncharged acts with
specificity, and the statements can be construed as referring only to the
charged acts. Viewing the facts in the light most favorable to sustaining the
verdicts, we reject Garcia’s new argument on appeal. See State v. Payne, 233
Ariz. 484, 509, ¶ 93 (2013).

¶8             Second, Garcia argues the detective referred to sexual acts
committed by Garcia against children other than J.O. and M.O. Evidence
of a defendant’s other crimes, wrongs, or acts is generally not admissible to
prove the defendant’s character in order to establish action in conformity
with that character. Ariz. R. Evid. 404(b). But other-act evidence may be
admissible, as relevant here, to show that a defendant charged with a sexual
offense “had a character trait giving rise to an aberrant sexual propensity to
commit the offense charged.” Ariz. R. Evid. 404(c). Before admitting Rule
404(c) evidence, the court must find that the evidence is strong enough “to
permit the trier of fact to find that the defendant committed the other act,”
that “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 crime charged,” and that “[t]he evidentiary value
of proof of the other act is not substantially outweighed by danger of unfair


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                             STATE v. GARCIA
                            Decision of the Court

prejudice.” Ariz. R. Evid. 404(c)(1)(A)–(C). Although the superior court
did not analyze this evidence through the lens of Rule 404, we may consider
the record to determine whether the requirements of admissibility were
met. See State v. Aguilar, 209 Ariz. 40, 50, ¶ 37 (2004).

¶9            Garcia and the detective had the following exchange:

       Garcia: I feel so bad when [J.O.] told me that [I] do things with
       the kids . . .

       Detective: So [J.O.] thought you might have done this with
       the other kids?

       Garcia: Yeah . . .

Again, this exchange may simply be referring to the charged acts involving
M.O. Furthermore, to the extent this exchange might allude generally to
acts that J.O. thought might have occurred with Garcia’s other children, the
State offered no other evidence or argument establishing any such sexual
conduct with the other children, and the record does not reflect that the
State attempted to use the evidence to establish that the charged offenses
occurred, see State v. Cannon, 148 Ariz. 72, 75 (1985), or to establish that
Garcia had a propensity to commit the charged offenses. See Rule 404(c).
Thus, Garcia’s Rule 404 arguments regarding the above exchange are
unavailing.

¶10            Third, Garcia takes issue with the admissibility of the
detectives’ statement that J.O. had alleged that Garcia had engaged in anal
intercourse with her multiple times. Garcia argues that because he was only
charged with one count of sexual conduct with a minor involving anal
intercourse, this statement constituted improper evidence of other acts. He
further contends J.O.’s statement in the recorded conversation that Garcia
told M.O. to have sex with another man also constituted inadmissible other-
act evidence. But again, the State offered neither the detective’s statements
nor J.O.’s statements to prove that these other acts actually occurred. Garcia
did not admit committing either of these acts, and the State did not present
additional evidence or argument to bolster the proof supporting either of
these statements. Regarding the interview with the detective, the
presentation of the complete interview, including this statement, refuted
Garcia’s argument that the detective’s interrogation tactics caused him to
confess. The evidence was not admitted to establish that the acts in fact
occurred, and Garcia’s belated Rule 404 argument regarding these
statements fails.



                                      4
                            STATE v. GARCIA
                           Decision of the Court

¶11           Fourth, Garcia asserts that the detective’s statement that both
victims reported that Garcia touched their breasts was improper because
Garcia was only charged with sexual abuse involving M.O., not J.O. The
record demonstrates, however, that evidence regarding both victims would
have been properly admitted as propensity evidence under Rule 404(c). In
addition to the victim’s report, Garcia acknowledged that he touched J.O.’s
breasts in a sexual manner three times. See Ariz. R. Evid. 404(c)(1)(A).
These other acts involved a minor younger than 15 years of age,
demonstrating an aberrant sexual propensity to commit the charged
offense. See Ariz. R. Evid. 404(c)(1)(B). And the admission of these acts was
not unfairly prejudicial: the acts were similar in nature and time to the
charged offenses of sexual abuse involving M.O. See Ariz. R. Evid.
404(c)(1)(C). Because these acts would have been admissible under Rule
404(c), Garcia has not demonstrated fundamental error.

¶12            Finally, references by both the detective in the interview and
J.O. in the recorded conversation to uncharged acts of oral sexual contact
between Garcia and both victims was not improper. The detective
mentioned that M.O. had reported oral sexual contact occurring three or
four times. But this evidence was not presented to establish that these other
acts occurred. Garcia denied them, and no other evidence was offered to
prove the acts. As noted above, presentation of the complete interview,
including the detective’s statement and Garcia’s denial, was relevant to
addressing Garcia’s argument that the detective’s tactics caused him to
admit to the charged offenses. Moreover, J.O.’s accusation that Garcia
forced her to engage in oral sexual contact in the bathroom would have
been admissible under Rule 404(c). J.O. stated that the incident occurred,
and Garcia admitted it to the detective. See Ariz. R. Evid. 404(c)(1)(A). He
committed the other act when J.O. was a minor, indicating the aberrant
sexual propensity to commit the charged crimes. See Ariz. R. Evid.
404(c)(1)(B). And because this act was similar to and occurred in the same
timeframe as the charged offenses, it was not unfairly prejudicial. See Ariz.
R. Evid. 404(c)(1)(C). Garcia has not demonstrated fundamental error.

¶13           Garcia separately challenges the admission of these other acts
because he claims he did not have notice that the State was planning to offer
them in evidence. But Garcia does not dispute that the State disclosed the
recordings long before trial. Nor does he explain how he was prejudiced
by any alleged lack of notice. He thus has failed to establish fundamental,
prejudicial error. See Escalante, 245 Ariz. at 140, ¶ 12.




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                             STATE v. GARCIA
                            Decision of the Court

II.    Corpus Delicti and Sufficiency of the Evidence of Sexual Abuse.

¶14            During his interview with the detective, Garcia stated that he
touched M.O.’s breasts when she was trying on her mother’s bra and when
she was wearing a certain skirt. The two charges of sexual abuse stemmed
from these incidents. Apart from Garcia’s statements, the State offered no
additional evidence for these charges. Garcia now argues the convictions
for these counts should be vacated because they violate the doctrine of
corpus delicti. We review this argument de novo. State v. Flores, 202 Ariz.
221, 222, ¶ 4 (App. 2002).

¶15           The corpus delicti doctrine requires the state to present
independent evidence of a crime besides the defendant’s own incriminating
statements.1 State ex rel. McDougall v. Superior Court, 188 Ariz. 147, 149
(App. 1996). The purpose of this rule is to prevent convictions based solely
on the defendant’s uncorroborated statements. State v. Carlson, 237 Ariz.
381, 388, ¶ 8 (2015). But “[t]he standard for the corroborating evidence is
not high” and must simply be enough to support a reasonable inference
that the charged crime actually occurred. Id. at 387, ¶ 8. Further, “when a
defendant confesses to several related crimes, independent evidence that
establishes the commission of the closely related crimes may suffice to
corroborate the confession as a whole.” Id. at 388, ¶ 11.

¶16            Here, sufficient independent evidence corroborated Garcia’s
confession. He confessed to conduct underlying multiple counts of sexual
conduct with a minor and sexual abuse—all involving the same victim,
M.O.—and M.O. provided testimony supporting each of these counts.
Although M.O. did not provide testimony to support two other counts of
sexual abuse, these two counts were closely related to the other crimes that
she testified to. All of these crimes were committed against the same victim,
occurred in a similar timeframe, and involved the same or similar sexual
conduct. Thus, Garcia’s confession was corroborated as a whole, providing
sufficient evidence for his sexual abuse convictions.




1       The State argues that we should abandon the corpus delicti doctrine
as inconsistent with Arizona law. But there is controlling supreme court
authority repeatedly applying this doctrine. See, e.g., State v. Carlson, 237
Ariz. 381, 387–88, ¶ 8 (2015); State v. Chappell, 225 Ariz. 229, 234, ¶ 9 (2010);
State v. Morris, 215 Ariz. 324, 333, ¶ 34 (2007).


                                       6
                             STATE v. GARCIA
                            Decision of the Court

III.   Sufficiency of the Evidence of Child Molestation.

¶17            Garcia was convicted of child molestation for sexual contact
with J.O. that caused a blister on her vagina. J.O. testified that she found
the blister the day after Garcia raped her. The detective who interviewed
Garcia also testified that J.O. told him the blister was caused by Garcia
rubbing her vagina with his hand. On appeal, Garcia argues this evidence
was insufficient to support his conviction of child molestation.

¶18           We review the sufficiency of evidence de novo. State v. West,
226 Ariz. 559, 562, ¶ 15 (2011). When reviewing the evidence, we assess
whether any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Id. at ¶ 16. To obtain a conviction
for child molestation, the State is required to prove the defendant
“intentionally or knowingly engag[ed] in . . . sexual contact . . . with a child
who is under fifteen years of age.” See A.R.S. § 13-1410(A). For these
purposes, sexual contact includes “any direct or indirect touching . . . of any
part of the genitals . . . by any part of the body.” A.R.S. § 13-1401(A)(3)(a).

¶19            Here, sufficient evidence supported the conviction. J.O.
testified that—when she was between six and eight years old—Garcia
raped her, and she noticed a blister on her vagina the next day. Garcia
confirmed that he rubbed his penis on J.O.’s vagina. The jury heard
testimony from J.O. that Garcia raped her and she noticed a blister on her
vagina the next day. The jury also heard testimony from M.O. that J.O.
talked to her about the sexual contact after noticing her blister. While J.O.’s
testimony did not match what she told the detective about how Garcia had
caused the blister, any such inconsistency goes to witness credibility and
the weight of the evidence, which are issues to be resolved by the jury. State
v. Rivera, 210 Ariz. 188, 192, ¶ 20 (2005). Based on the evidence presented,
a rational jury could have found Garcia guilty of child molestation.

IV.    Constitutionality     of   Sexual-Abuse      and    Child-Molestation
       Statutes.

¶20            Garcia contends the sexual-abuse and child-molestation
statutes under which he was charged unconstitutionally shift the burden of
proof, are void for vagueness, and are overbroad. We review the
constitutionality of statutes de novo. State ex rel. Thomas v. Klein, 214 Ariz.
205, 207, ¶ 5 (App. 2007).

¶21           Garcia’s arguments do not warrant relief.             Regarding
vagueness and the burden-shifting arguments, our supreme court has
rejected these challenges. State v. Holle, 240 Ariz. 300, 308–10, ¶¶ 38–40, 45–


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                             STATE v. GARCIA
                            Decision of the Court

46 (2016). Additionally, in any event, Garcia lacks standing to raise
vagueness and overbreadth claims. “A defendant whose conduct is clearly
proscribed by the core of the statute has no standing to attack the statute.”
State v. Baldenegro, 188 Ariz. 10, 14 (App. 1996); see State v. George, 233 Ariz.
400, 402, ¶ 8 (2013) (noting that a defendant whose conduct fit “squarely
within the statute’s ambit” could not challenge the statute as vague). Here,
Garcia admitted that he touched M.O.’s breasts with sexual intent on
multiple occasions. And the jury heard evidence that Garcia had sexual
intercourse with J.O. multiple times. This conduct falls squarely within the
ambit of the sexual-abuse and sexual conduct with a minor statutes,
respectively.

V.     Presentence Incarceration Credit.

¶22            Garcia argues that the superior court failed to give him credit
for time he spent in custody before sentencing. See A.R.S. § 13-712(B)
(establishing entitlement to credit for “[a]ll time actually spent in custody
pursuant to an offense” before sentencing). The State agrees, and the record
reflects that Garcia is entitled to receive 861 days of presentence
incarceration credit, rather than the 854 days calculated by the superior
court. Because failure to award deserved presentence incarceration credit
is fundamental error, see State v. Cofield, 210 Ariz. 84, 86, ¶ 10 (App. 2005),
we modify Garcia’s sentence for Count 1 (sexual conduct with a minor) to
reflect the correct calculation.

                               CONCLUSION

¶23           Garcia’s convictions are affirmed. We modify his sentence for
Count 1 to reflect 861 days of presentence incarceration credit and affirm
his sentences in all other respects.




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




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