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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   ADOLFO MARTIN VEGA, Appellant.

                             No. 1 CA-CR 17-0810
                               FILED 10-17-2019



           Appeal from the Superior Court in Maricopa County
                        No. CR2014-001369-001
               The Honorable Warren J. Granville, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza C. Ybarra
Counsel for Appellee

The Ferragut Law Firm, P.C., Phoenix
By Ulises A. Ferragut, Jr.
Counsel for Appellant
                              STATE v. VEGA
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Jennifer M. Perkins joined.


M c M U R D I E, Judge:

¶1            Adolfo Martin Vega appeals his convictions and sentences for
five counts of sexual conduct with a minor, four counts of sexual abuse,
three counts of sexual exploitation of a minor, and one count each of
molestation of a child and luring a minor for sexual exploitation. Vega
challenges the superior court’s admission of sexually-themed text messages
exchanged between Vega and the minor victim. For the following reasons,
we affirm.

             FACTS AND PROCEDURAL BACKGROUND 1

¶2            In a 14-count indictment, the State charged Vega with the
offenses specified above, alleging they were committed between January
2007 and October 2012. Before trial, the parties litigated the admissibility of
records obtained from Vega’s cell phone carrier that reflected more than
1,000 text conversations between Vega and the victim. Some of the
conversations were sexual, and all occurred during the eight days
beginning October 14, 2012, and ending October 22. A third party reported
the abuse to police on October 22, 2012. Three of the charged offenses also
occurred during this time frame. Vega argued the records constituted
inadmissible hearsay, and their admission would additionally violate his
confrontation rights under the Sixth Amendment. Agreeing with the State,
the court determined that the text messages from Vega were non-hearsay
because they were made by, and offered against, an opposing party. See
Ariz. R. Evid. 801(d)(2). In response to Vega’s asserted confrontation rights,
the State avowed to the court that the victim would testify about the text
messages at trial.




1      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against Vega. State v. Harm,
236 Ariz. 402, 404, ¶ 2, n.2 (App. 2015).



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                              STATE v. VEGA
                            Decision of the Court

¶3             After narrowing the number of text-message exchanges it
intended to introduce at trial, the State moved in limine for the court’s
permission to admit the sexually-themed messages. Vega agreed that the
evidence was admissible under Arizona Rule of Evidence (“Rule”) 404(b)
or (c), and the court granted the State’s motion. The court also permitted
the State to introduce evidence of the high number of messages (although
not the substance of all the messages) exchanged between Vega and the
victim during the same time frame that Vega and his wife exchanged only
57 messages.

¶4           The jury found Vega guilty as charged, and the superior court
sentenced Vega to presumptive terms of imprisonment totaling 148 years,
with 942 days’ presentence incarceration credit. Vega timely appealed, and
this court has jurisdiction under Arizona Revised Statutes sections
12-120.21(A)(1), 13-4031, and -4033(A)(1).

                                DISCUSSION

¶5            Vega argues the superior court erred by denying his motion
in limine seeking to preclude the text messages he exchanged with the
victim. Specifically, Vega asserts the text messages are not admissible as
statements made by a party opponent because, according to Vega’s trial
testimony, he lost his cell phone on October 24, 2012, and therefore, he
could not have been the individual who exchanged the text messages with
the victim. Thus, Vega argues, without citation to authority, the court was
required to conduct “a preliminary attribution examination.” We review
the superior court’s admission of such evidence for an abuse of discretion.
State v. Chavez, 225 Ariz. 442, 443, ¶ 5 (App. 2010); State v. Beasley, 205 Ariz.
334, 337, ¶ 14 (App. 2003).

¶6              A proponent of evidence supplies a proper foundation by
offering enough evidence to establish that the evidence is what the
proponent claims it to be. Ariz. R. Evid. 901(a). When determining
authentication, the superior court “does not determine whether the
evidence is authentic, but only whether evidence exists from which the jury
could reasonably conclude that it is authentic.” State v. Lavers, 168 Ariz. 376,
386 (1991). Thus, a foundation exists when a witness testifies “that an item
is what it is claimed to be.” Ariz. R. Evid. 901(b)(1).

¶7             Vega’s argument is without merit. As noted, the record
reflects the text messages at issue were exchanged between October 14,
2012, and October 22, 2012, two days before Vega claimed he lost his phone.
Further, the victim identified at trial a printed copy of the text messages as



                                       3
                               STATE v. VEGA
                             Decision of the Court

those between herself and Vega, and she explicitly confirmed that the
phone numbers belonged to her cell phone and Vega’s cell phone,
respectively. She also identified sexually explicit nicknames the two used
for each other in the messages. Sufficient evidence, therefore, exists for a
jury to conclude the victim and Vega exchanged the text messages.
Moreover, Vega identifies no evidence that someone else used his cell
phone during the relevant dates. See State v. Damper, 223 Ariz. 572, 577, ¶ 19
(App. 2010). Accordingly, the superior court did not abuse its discretion by
denying Vega’s motion to preclude the messages.

¶8             Vega next argues the superior court erred by not instructing
the jury to limit its use of the text-message evidence for purposes of Rule
404(b) or (c). Vega, however, did not request such an instruction, and the
law is well-settled that “a trial court is not required, sua sponte, to give a
limiting instruction on such evidence.” State v. Miles, 211 Ariz. 475, 483, ¶ 31
(App. 2005) (citing cases). No error occurred.

¶9              Finally, Vega argues the superior court erroneously
concluded the text messages were admissible under Rule 404(c) based on
clear and convincing evidence that Vega participated in the text exchanges
with the victim. According to Vega, the court was required to apply the
“beyond a reasonable doubt” evidentiary standard, not “clear and
convincing.” Vega did not present this issue to the superior court—indeed,
he agreed during the proceedings that the evidence was admissible under
Rule 404(b) or (c)—thus, he is not entitled to relief absent fundamental
error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005).

¶10             The superior court did not err, fundamentally or otherwise.
See State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018) (first step in fundamental
error review is determining whether error occurred). Although beyond a
reasonable doubt is the proper standard for determining guilt, clear and
convincing evidence is the appropriate standard in Arizona for determining
the admissibility of evidence under Rule 404(b) or (c). State v. Goudeau, 239
Ariz. 421, 444, ¶ 59 (2016); see also Bourjaily v. United States, 483 U.S. 171, 175
(1987) (noting “the evidentiary standard [to determine admissibility] is
unrelated to the burden of proof on the substantive issues, . . . [and] [t]he
preponderance standard ensures that before admitting evidence, the court
will have found it more likely than not that the technical issues and policy
concerns addressed by the Federal Rules of Evidence have been afforded
due consideration” (internal citations omitted)). Vega provides no
authority to the contrary.




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                            STATE v. VEGA
                          Decision of the Court

                             CONCLUSION

¶11           For the foregoing reasons, Vega’s convictions and sentences
are affirmed.




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




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