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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 ESTEBAN OROZCO VARGAS, Appellant.

                             No. 1 CA-CR 17-0196
                               FILED 7-3-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-124989-001
                  The Honorable Gregory Como, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Elizabeth B. N. Garcia
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
                           STATE v. VARGAS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.


C A T T A N I, Judge:

¶1            Esteban Orozco Vargas appeals his convictions and sentences
for two counts of sexual conduct with a minor, two counts of molestation
of a child, and two counts of sexual abuse. For reasons that follow, we
affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            On May 24, 2014, Vargas admitted to the victim’s mother
(“Mother”) that he had sexually touched the victim. The following day, the
victim disclosed to Mother incidents of Vargas engaging in sexual conduct
with her. Mother contacted the police, and Detective Bromund interviewed
the victim in English. During the interview, the victim provided detailed
descriptions of, as relevant here, four incidents during which Vargas
touched her sexually. Immediately after the interview, Mother initiated a
recorded confrontation telephone call with Vargas. Mother and Vargas
spoke Spanish during the entire call, and Vargas admitted to sexually
touching the victim on four occasions.

¶3            The State charged Vargas with the offenses listed above,
alleged to have occurred between July 1, 2012 and May 27, 2014.1 At the
initial appearance, the court directed that Vargas be provided with a
Spanish language interpreter during court proceedings.

¶4           At trial, after the victim and Mother finished testifying, the
State sought permission to play a video recording of Detective Bromund’s
English-language interview with the victim for the jury during the
detective’s testimony.      The court overruled Vargas’s hearsay and
Confrontation Clause objections and, pursuant to Arizona Rule of
                       2

Evidence 803(5), permitted the State to play the video for the jury. The State

1     The State also charged Vargas with one count of attempted sexual
conduct with a minor, but the court later dismissed that count with
prejudice at the State’s request.

2      U.S. Const. amend. VI.
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                            STATE v. VARGAS
                            Decision of the Court

provided defense counsel a copy of the video, newly redacted to omit
material either precluded by a pretrial ruling or irrelevant to the charged
offenses.

¶5             The State played the redacted video of the victim’s interview
for the jury during Detective Bromund’s testimony the next day. The court
interpreter did not translate the video into Spanish (Vargas’s predominant
language) as it was played, explaining that court interpreters require a
transcript of recorded dialogue (which had not been prepared) to translate.

¶6            The jury found Vargas guilty as charged, and the superior
court sentenced Vargas to four concurrent, mitigated prison terms, the
longest of which is 10 years, to be followed by two consecutive life
sentences. The court granted Vargas’s request to file a delayed notice of
appeal, and he did so. We have jurisdiction under Arizona Revised Statutes
(“A.R.S.”) § 13-4033(A).

                                DISCUSSION

¶7              Vargas argues that the court erred by allowing the State to
play the video recording of the victim’s interview for the jury because it was
inadmissible hearsay and its admission violated his confrontation rights.
We generally review rulings on admissibility of evidence for an abuse of
discretion, but we review challenges to admissibility based on the
Confrontation Clause de novo. State v. King, 213 Ariz. 632, 636, ¶ 15 (App.
2006); see also State v. Alatorre, 191 Ariz. 208, 211, ¶ 7 (App. 1998), abrogated
in part on other grounds by State v. Ferrero, 229 Ariz. 239, 241–42, ¶¶ 8–13
(2012).

¶8            Rule 803(5) of the Arizona Rules of Evidence provides a
hearsay exception for recorded recollections. To qualify, the recorded
recollection must be:

       A record that: (A) is on a matter the witness once knew about
       but now cannot recall well enough to testify fully and
       accurately; (B) was made or adopted by the witness when the
       matter was fresh in the witness’s memory; and (C) accurately
       reflects the witness’s knowledge.

Ariz. R. Evid. 803(5); see also Alatorre, 191 Ariz. 211–12, ¶¶ 9–10. A video
recording may qualify as a “record” for purposes of Rule 803(5). See State
v. Martin, 225 Ariz. 162, 165, ¶ 11 (App. 2010). The record may only be read
into evidence, not received as an exhibit for the jury’s consideration during
deliberations, unless offered by an adverse party. Ariz. R. Evid. 803(5); see
also Martin, 225 Ariz. at 165–66, ¶ 13.

                                       3
                            STATE v. VARGAS
                            Decision of the Court

¶9             Here, the victim had difficulty remembering the
circumstances and details of the incidents underlying the charged offenses
when testifying at trial. She testified, however, that her memory of the
incidents was better at the time of her interview with Detective Bromund—
over two years before trial—and she testified that she had responded
truthfully to the detective’s questions. And the superior court did not admit
the recording as an exhibit, but only allowed it to be played for the jury.

¶10           Vargas argues that the video did not satisfy the requirements
of Rule 803(5) because the interview was not conducted
“contemporaneous[ly]” with the sexual incidents, the victim did not adopt
the recording before it was played for the jury, and the victim did not testify
that the incidents were fresh in her memory at the time of the interview.
But Rule 803(5) contains no requirement that the recorded statement be
made contemporaneously with the matter it concerns. Instead, the
recorded statement must simply be made or adopted “when the matter was
fresh in the witness’s memory.” Ariz. R. Evid. 803(5)(B). The victim’s
testimony that her memory was better at the time of the interview than at
trial supports the superior court’s conclusion that this requirement was
satisfied. And because the victim made the statement when the matter was
fresh in her memory, the rule does not require that she separately adopt the
recording. See id. Moreover, the details the victim provided during the
interview but was unable to remember while testifying at trial allowed the
jury to determine whether the interview statements properly reflected the
victim’s memory. Vargas’s arguments to the contrary go to the video’s
evidentiary weight, not its admissibility under Rule 803(5).

¶11            Nor did playing the video for the jury violate Vargas’s
confrontation rights. The Confrontation Clause guarantees that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” U.S. Const. amend. VI. The Confrontation
Clause thus bars admission of testimonial hearsay statements “unless the
defense has had an opportunity to cross-examine the declarant.” State v.
Parker, 231 Ariz. 391, 402, ¶ 38 (2013). And here, Vargas in fact cross-
examined the victim and Detective Bromund, and he could have asked to
recall the victim to testify further after the video was played, but did not do
so. See Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004) (“[W]hen the
declarant appears for cross-examination at trial, the Confrontation Clause
places no constraints at all on the use of his prior testimonial statements.”);
Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (“[T]he Confrontation Clause
guarantees an opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever extent, the
defense might wish.”).


                                      4
                            STATE v. VARGAS
                            Decision of the Court

¶12           Vargas further argues that using the video without a Spanish
translation undermined his confrontation and due process rights. But
Vargas does not contend that the State failed to timely disclose the video,
nor does he suggest that he requested a Spanish translation of the video
before trial. (Notably, the court promptly granted defense counsel’s
request—made more than 16 months before trial—for English translations
of the four Spanish-language interviews and the confrontation call.)
Moreover, even on appeal, more than a year after his conviction, Vargas
offers no indication of how a Spanish translation of the interview would
have allowed him to challenge the veracity of the victim’s interview
statements, particularly given that his counsel did not ask the victim any
questions about the charged acts when cross-examining her. See Calderon-
Palomino v. Nichols, 201 Ariz. 419, 422, ¶ 6 (App. 2001).

¶13           Finally, Vargas’s reliance on State v. Rios, 112 Ariz. 143 (1975),
and State v. Natividad, 111 Ariz. 191 (1974), is misplaced. Those cases
support the general proposition that due process may require that an
indigent criminal defendant with limited English proficiency be provided
an interpreter at trial. Rios, 112 Ariz. at 144–45; Natividad, 191 Ariz. at 194.
They do not address circumstances in which a pretrial interview was
properly disclosed to the non-English-speaking defendant, who did not
timely request a translation into the defendant’s native language despite
having ample opportunity to do so. See Calderon-Palomino, 201 Ariz. at 422,
¶ 7.

                               CONCLUSION

¶14           Vargas’s convictions and sentences are affirmed.




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




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