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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  TEODORO GOMEZ-TORRES, Appellant.

                             No. 1 CA-CR 14-0761
                               FILED 10-22-2015


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201301013
            The Honorable Derek C. Carlisle, Judge Pro Tem

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
                       STATE v. GOMEZ-TORRES
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Dawn Bergin1 joined.


G O U L D, Judge:

¶1            Teodoro Gomez-Torres (Defendant) appeals his convictions
and resulting sentences for child molestation, sexual abuse, and four counts
of aggravated assault. The convictions were based on evidence Defendant
engaged in sexual misconduct with two grandchildren under the age of
fifteen on multiple occasions. Defendant argues that the trial court erred
by admitting improper other-act evidence and refusing to instruct on the
defense of lack of sexual motivation or interest. Defendant also argues that
the evidence was insufficient to support the convictions for aggravated
assault. For reasons that follow, we affirm.

                                DISCUSSION

      A.   Other-Act Evidence

¶2            At trial, the State presented evidence in regards to the child
molestation and sexual abuse counts that Defendant touched the vagina of
one victim and had the second victim rub his penis through his clothing.
With respect to the four counts of aggravated assault, the State presented
evidence that Defendant “French-kissed” and licked the inside of the ear of
one victim and sucked on the toes of the other on two separate occasions.
The State further presented “other-act” evidence in the form of testimony
from an adult grandchild that, when she was a minor, Defendant kissed her
in the same manner as he was charged with doing to one of the victims.

¶3           Defendant did not object to the admission of the other-act
evidence. During settlement of jury instructions, however, the trial court
raised the question of whether a Rule 404(c) sexual propensity instruction
was appropriate given that the other-act evidence did not show Defendant
had an aberrant sexual propensity to commit the offenses charged. In


1     Pursuant to Article VI, Section 3 of the Arizona Constitution, the
Arizona Supreme Court designated the Honorable Dawn Bergin, Judge of
the Maricopa County Superior Court, to sit in this matter.


                                     2
                        STATE v. GOMEZ-TORRES
                          Decision of the Court

response to the trial court’s comments, Defendant moved to strike the
other-act evidence as inadmissible under Rule 404(c). After argument on
the motion, the trial court denied the motion to strike, ruling that the other-
act evidence was relevant for a proper purpose under Rule 404(b) and
rejecting Defendant’s argument that the evidence should be precluded as
unfairly prejudicial under Rule 403. We review admission of other-act
evidence under Rule 404(b) for abuse of discretion. State v. Gulbrandson, 184
Ariz. 46, 63 (1995).

¶4             Rule 404(b) provides that “evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to show
action in conformity therewith.” Such other-act evidence “may, however,
be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Ariz. R. Evid. 404(b). When other-act evidence “is offered for a
non-propensity purpose, it may be admissible under Rule 404(b), subject to
Rule 402’s general relevance test, Rule 403’s balancing test, and Rule 105’s
requirement for limiting instructions in appropriate circumstances.” State
v. Ferrero, 229 Ariz. 239, 242, ¶ 12 (2012). In addition, the State must prove
by clear and convincing evidence the other act occurred and the defendant
committed the act. State v. Terrazas, 189 Ariz. 580, 584 (1997).

¶5             There was no abuse of discretion by the trial court in denying
the motion to strike the other-act evidence. Clear and convincing evidence
of the other act was presented in that the adult grandchild kissed by
Defendant testified to the act. See State v. Vega, 228 Ariz. 24, 29 n.4 (App.
2011) (noting uncorroborated testimony by victim is sufficient to establish
proof beyond a reasonable doubt that an incident occurred). Moreover, in
light of the nature of the act, the trial court could reasonably conclude that
the other-act evidence was relevant under Rule 402 for the non-character
purposes to proving Defendant’s intent and lack of mistake or accident in
the commission of the charged act of assaulting the victim by kissing her.
See Ariz. R. Evid. 401 (defining “relevant evidence”); State v. Oliver, 158
Ariz. 22, 28 (1988) (observing “standard of relevance is not particularly
high”).

¶6            Further, the trial court found that the evidence was not subject
to preclusion under Rule 403. “Because the trial court is in the best position
to balance the probative value of challenged evidence against its potential
for unfair prejudice, the trial court has broad discretion in this decision.”
State v. Connor, 215 Ariz. 553, 564, ¶ 39 (App. 2007) (citation and internal
quotation marks omitted). “Evidence is unfairly prejudicial only if it has an
undue tendency to suggest a decision on an improper basis such as


                                      3
                        STATE v. GOMEZ-TORRES
                          Decision of the Court

emotion, sympathy, or horror.” Gulbrandson, 184 Ariz. at 61. The trial court
acted well within its discretion in this decision given that the other act
involved only a kiss and therefore “did not pose a substantial danger of
unfair prejudice or confusion of the issues.” Vega, 228 Ariz. at 30, ¶¶ 22-24.

¶7           Finally, the trial court gave a limiting instruction pursuant to
Rule 105 on proper use of the other-act evidence by the jury. Because the
other-act evidence satisfied all the requirements for admission as non-
propensity evidence under Rule 404(b), the trial court did not err in denying
Defendant’s motion to strike the evidence.

       B.   Sexual Motivation Instruction: Sex Abuse and Child Molestation

¶8            As to his convictions for child molestation and sex abuse,
Defendant argues the trial court erred by refusing to give an instruction on
his defense of lack of sexual motivation or interest. It is a defense to a
prosecution for child molestation or sexual abuse that the defendant was
not motivated by a sexual interest. Ariz. Rev. Stat. (“A.R.S.”) § 13–1407(E)
(West 2015).2

¶9            A party is entitled to a jury instruction on any theory of the
case reasonably supported by the evidence. State v. Bolton, 182 Ariz. 290,
309 (1995). When making this assessment, the question is whether the
evidence, viewed in the light most favorable to the proponent, supports
giving the instruction. State v. King, 225 Ariz. 87, 90, ¶ 13 (2010). The
“slightest evidence” is sufficient. Id. at ¶ 14. However, the instruction
should not be given “unless it is reasonably and clearly supported by the
evidence.” State v. Ruggiero, 211 Ariz. 262, 264-65, ¶ 10 (App. 2005) (quoting
State v. Walters, 155 Ariz. 548, 553 (App. 1987)); see also State v. Strayhand,
184 Ariz. 571, 587–88 (App. 1995) (holding instruction required if there is
“evidence upon which the jury could rationally sustain the defense”). The
slightest evidence—not merely an inference making an argument
possible—is required because speculation cannot substitute for evidence.
In re Harber’s Estate, 102 Ariz. 285, 294 (1967); State v. Almaguer, 232 Ariz.
190, 197, ¶ 19 (App. 2013).

¶10           Defendant’s defense at trial on the child molestation and sex
abuse counts was that the victims were lying. Defendant never suggested
or implied in his trial testimony that it was possible he touched the victims
in the manner that they testified or that such touching was accidental or


2       We cite the current version of a statute when no revisions material
to this decision have occurred since the relevant date.


                                      4
                         STATE v. GOMEZ-TORRES
                           Decision of the Court

otherwise innocent. To the contrary, Defendant was adamant that he never
did the alleged acts on which the charges of child molestation or sexual
abuse were based. Because there was no evidence that would reasonably
support a defense of lack of sexual motivation or interest, there was no error
by the trial court in refusing to instruct on the defense. State v. Simpson, 217
Ariz. 326, 330, ¶ 23 (App. 2007).

¶11           Defendant raises for the first time in his reply brief the issue
of whether the State or the defendant bears the burden of proof on the
defense of lack of sexual motivation or interest set forth in A.R.S. § 13-
1407(E). There have been conflicting decisions issued by different
departments of this court regarding this question. Compare State v. Holle,
721 Ariz. Adv. Rep. 15, ¶ 26 (App. Sep. 26, 2015) (once defendant satisfies
burden of production to raise defense, State has burden of proving beyond
a reasonable doubt that defendant’s conduct was motivated by a sexual
interest) with Simpson, 217 Ariz. at 329, ¶ 19 (defendant has burden of
proving defense by preponderance of evidence). Given our conclusion that
there was no evidence presented to support a defense of lack of sexual
motivation or interest, it is unnecessary to address the issue of who bears
the ultimate burden of proof in regards to the defense.

       C.   Sufficiency of Evidence

¶12          Defendant argues there was insufficient evidence to support
the convictions for aggravated assault. We review claims of insufficient
evidence de novo, viewing the evidence in the light most favorable to
upholding the verdict. State v. Bible, 175 Ariz. 549, 595 (1993).

¶13            In considering claims of insufficient evidence, this court’s
review is limited to whether substantial evidence supports the verdicts.
State v. Scott, 177 Ariz. 131, 138 (1993); see also Ariz. R. Crim. P. 20(a)
(requiring trial court to enter judgment of acquittal “if there is no
substantial evidence to warrant a conviction”). “Substantial evidence is
proof that reasonable persons could accept as sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.” State v.
Spears, 184 Ariz. 277, 290 (1996). “Evidence may be direct or circumstantial,
but if reasonable minds can differ on inferences to be drawn therefrom, the
case must be submitted to the jury.” State v. Landrigan, 176 Ariz. 1, 4 (1993).
This court will reverse a conviction for insufficient evidence only if “there
is a complete absence of probative facts to support [the jury’s] conclusion.”
State v. Mauro, 159 Ariz. 186, 206 (1988).




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                        STATE v. GOMEZ-TORRES
                          Decision of the Court

¶14           Defendant was charged with aggravated assault in violation
of A.R.S. §§ 13-1203(A)(3) and 13-1204(A)(6). As charged in this case, to
convict Defendant of aggravated assault, the State was required to prove
that he knowingly touched the victims “with the intent to . . . provoke.”
A.R.S. § 13-1203(A)(3). Defendant contends the evidence was insufficient
to sustain the State’s burden because there was no evidence that he had the
requisite intent to “provoke” when he “French-kissed” and licked the ear
of one victim and sucked on the toes of the other. We disagree.

¶15            The term “provoke” is not defined by statute. “In the absence
of statutory definitions, we give words their ordinary meaning.” State v.
Cox, 217 Ariz. 353, 356, ¶ 20 (2007); see also A.R.S. § 1-213 (undefined words
must “be construed according to the common and approved use of the
language”). “Provoke” is commonly defined to include “to excite to some
action or feeling” and “to anger, irritate, or annoy.” Webster’s New World
College Dictionary 1155-56 (4th ed. 2000).

¶16            During his trial testimony, Defendant acknowledged that the
non-consensual act of touching another person with one’s mouth or tongue
would elicit a negative reaction or feelings from the other person. In
responding to testimony that he kissed one of the victims, Defendant
denied doing so and claimed that the victim was the one who had kissed
him. Defendant further testified that he considered the victim’s conduct
“inappropriate and repulsive because I felt offended.” In addition,
evidence was presented that when interviewed by the police about the
victims’ allegations, defendant stated that he “knew he had crossed a line.”
Given this evidence, the jury could reasonably find that Defendant knew
that his actions of kissing, licking, and sucking on the victims would “excite
some action or feeling” or otherwise “anger, irritate or annoy” the victims
and that he therefore acted with the “intent to provoke” when he engaged
in such conduct.       See State v. Bearup, 221 Ariz. 163, 167, ¶ 16 (2009)
(“Criminal intent, being a state of mind, is shown by circumstantial
evidence. Defendant’s conduct and comments are evidence of his state of
mind.”) (citation omitted).

¶17           We disagree with Defendant’s contention that because the
State asserted his conduct was a form of sexual grooming that it cannot be
intended to provoke. “Grooming” in molestation cases is a process that
seeks to foster continued acquiescence in an offender’s sexual crimes. State
v. Grainge, 186 Ariz. 55, 58 (App. 1996). It takes many forms and includes
behavior that blurs the normal boundaries that children have about their
bodies so that a victim becomes more comfortable with physical contact by
the perpetrator in order to have the victim accept more intimate sexual


                                      6
                       STATE v. GOMEZ-TORRES
                         Decision of the Court

conduct. In short, grooming of this type is designed to make a victim more
accepting of conduct to which the victim would initially find
uncomfortable. The fact that Defendant’s conduct of engaging in the non-
consensual touching of the victims with his mouth may have been directed
at making the victims comfortable with more intimate conduct does not
negate the natural effect the unwanted touching has in causing the normal
negative feelings expected from such touching. Indeed, the causing of such
feelings and getting the victim to be accepting of them is part and parcel to
building up a victim’s tolerance to the inappropriate touching. On this
record, there was substantial evidence to support the convictions for
aggravated assault.

                              CONCLUSION

¶18          For the foregoing reasons, we affirm Defendant’s convictions
and sentences.




                                  :ama




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