State v. Gallegos

Annotate this Case

Download PDF

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) FRANCISCO JAVIER GALLEGOS, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 11-0002 DEPARTMENT C DIVISION ONE FILED: 01/31/2012 RUTH A. WILLINGHAM, CLERK BY: DLL MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yuma County Cause No. S1400CR200901536 The Honorable Lawrence C. Kenworthy, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Barbara A. Bailey, Assistant Attorney General Attorneys for Appellee Phoenix Michael Breeze, Yuma County Public Defender By Edward F. McGee, Deputy Public Defender Attorney for Appellant Yuma D O W N I E, Judge ¶1 Francisco Javier Gallegos appeals his conviction for sexual conduct with a minor. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY 1 ¶2 In Avenetti November that intercourse the she 2009, and 15-year-old 24-year-old preceding month. I.T. told Gallegos Gallegos Detective had admitted sexual having intercourse with I.T., but claimed he did not know [she] was 15. ¶3 Gallegos was charged with one count of sexual conduct with a minor at least 15 years old, a class 6 felony. commits sexual conduct with a minor by A person intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age. Stat. ( A.R.S. ) § 13-1405(A). Ariz. Rev. Section 13-1407(B) establishes an affirmative defense when the victim is at least 15 years old and the defendant, at the time of the sexual conduct, did not know and could not reasonably have known the age of the victim. ¶4 Gallegos admitted having sexual intercourse with I.T., but argued he did not know and could not reasonably have known she was not at least 18 years old. 1 I.T. testified she was We view the evidence in the light most favorable to sustaining the conviction[]. State v. Real, 214 Ariz. 232, 233, ¶ 2, 150 P.3d 805, 806 (App. 2007). 2 friends with Gallegos s 14-year-old sister and that before having intercourse with Gallegos, I.T. told him she was 15 years old and in the tenth grade (the age conversation ). ¶5 During cross-examination, defense counsel did not question I.T. about her claim that she told Gallegos her age before engaging in sexual conduct. impeach I.T. with inconsistent However, counsel sought to statements she purportedly made to Detective Avenetti regarding other topics. 2 I.T. could not recall what she had said regarding these topics, and defense counsel offered to refresh her recollection with a transcript of her first forensic interview. 3 When that proved unsuccessful in one instance, defense counsel asked I.T. to read aloud from the transcript. Counsel also moved to introduce the interview recordings into evidence to demonstrate how [I.T.] answered to the detective sustained the with State s inconsistent objections. statements. The The recordings court were not admitted, and I.T. was not permitted to read aloud from the transcript. ¶6 During Gallegos s case-in-chief, defense counsel re-called Detective Avenetti to the stand and questioned him 2 For example, defense counsel inquired about a pregnancy test, I.T. s perceived reluctance to make a confrontation call to Gallegos, and whether Gallegos used a condom. 3 I.T. s two forensic interviews were videotaped, but only the first was transcribed. 3 about inconsistencies in I.T. s statements. Detective Avenetti testified he could not recall whether I.T. told him about the age conversation during the recorded interviews, and admitted she interview. may have done so during a later unrecorded Defense counsel offered the recordings to refresh his recollection and for proof that I.T. never mentioned the age conversation during the recorded interviews. Later, defense counsel offered the recordings to show this is a last-minute story that didn t exist any time in this case until maybe a few days before we went to trial. Once again, the court sustained the State s objections, and the recordings were not admitted. Gallegos introduced into evidence the recording of his own police interview, during which he stated that I.T. told him she was 18 years old. ¶7 Gallegos was convicted and sentenced to 1.75 years in prison. He timely appealed. Arizona Revised Statutes We have jurisdiction pursuant to ( A.R.S. ) sections 12-120.21(A)(1), 13-4031 and -4033. DISCUSSION ¶8 Gallegos constitutional contends right to the confront trial court witnesses violated against his him by refusing to admit the recordings of I.T. s forensic interviews. We review alleged Confrontation Clause violations Real, 214 Ariz. at 234, ¶ 4, 150 P.3d at 807. 4 de novo. We review rulings on the admissibility of evidence for an abuse of discretion. State v. Slover, 220 Ariz. 239, 244, ¶ 15, 204 P.3d 1088, 1093 (App. 2009) (citation omitted). I. Alleged Inconsistent Statements ¶9 Gallegos admissible to first argues contradict the I.T. s interview trial recordings testimony. He were cites Arizona Rule of Evidence ( Rule ) 801(d)(1), which provides that a statement is not hearsay if the declarant testifies at trial, is subject to cross-examination about the statement, and the statement is inconsistent with the declarant s testimony. ¶10 Gallegos, though, did not lay the foundation for the allegedly inconsistent conversation 801(d)(1). that statements would trigger by the I.T. about the of application age Rule Although I.T. testified that she told Gallegos her age before they engaged in sexual intercourse, defense counsel never asked her when (or if) she relayed this information to law enforcement. statements Nor by did the defense I.T. in the recorded her trial identify any interviews testimony specific that were the age inconsistent with about conversation. To the extent Gallegos claims that I.T. s failure to mention the age conversation during the recorded interviews constitutes a prior inconsistent statement, he has not provided any foundation interviews about to demonstrate such a that conversation I.T. 5 or was asked in the that she had any affirmative duty to offer such information. See, e.g., State v. Hines, 130 Ariz. 68, 70, 633 P.2d 1384, 1386 (1981) ( Whether an omission to state a fact constitutes an inconsistency sufficient to discredit a witness depends at least in part upon circumstances under which the prior statement was made. the A prior omission will constitute an inconsistency only where it was made under circumstances rendering it incumbent upon the witness to, or be likely to, state such a fact. ). 4 On this record, we find no abuse of discretion in excluding the recorded interviews. ¶11 Other allegedly inconsistent statements by I.T. related to collateral matters, not the age conversation. See State v. Hill, 174 Ariz. 313, 325, 848 P.2d 1375, 1387 (1993) ( Evidence is collateral if it could not properly be offered for any purpose disputed independent issue at of trial the was contradiction. ). whether reasonably have known I.T. s age. Gallegos The knew only or could When witnesses are impeached about an inconsistent fact collateral to the trial issues, the impeaching produce party extrinsic is bound evidence by the to witness contradict 4 answer the and witness. cannot Id. Furthermore, Detective Avenetti testified that I.T. may have provided information about the age conversation during a subsequent unrecorded interview, and he also explained that he had reviewed the recorded interviews and did not recall the age conversation being mentioned in those interviews. To the extent Gallegos wanted to show that I.T. did not mention the age conversation in the two recorded interviews, he succeeded in establishing essentially that point through the detective. 6 Defense counsel cross-examined I.T. and explored perceived inconsistencies in her testimony about such collateral matters as pregnancy Gallegos tests, was bound condom by use, I.T. s and calls. 5 confrontation responses regarding these collateral issues and could not use extrinsic evidence such as the recordings to contradict her testimony. II. Alleged Recent Fabrication ¶12 Twelve days before trial, Detective Avenetti submitted a supplemental report detailing a June or July 2010 unrecorded meeting during conversation. during his reiterated which I.T. reportedly discussed the age When Gallegos called the detective as a witness case-in-chief, the same Avenetti story he testified had that originally the report understood, specifically that the age conversation occurred just before the sexual conduct. The detective further testified there was no reason why he waited so long to submit the report. was admitted as a defense exhibit. The report Defense counsel sought to admit the interview recordings to show that I.T. s testimony about telling Gallegos her age was a recent fabrication, but the court denied the request. ¶13 Contrary to Gallegos s suggestion, Rule 801(d)(1)(B) has no application to these facts. 5 That rule provides that a We also agree with the State that Gallegos failed to make an adequate offer of proof as to such matters. 7 prior statement made by a witness who testifies at trial is not hearsay if the statement is consistent with the declarant s testimony and is offered to rebut an express or implied charge that the declarant 801(d)(1)(B). I.T. s that fabricated it. Ariz. R. Evid. Gallegos, though, was not attempting to introduce interview charge recently recordings she had to rebut recently an fabricated express her or implied claim. The supplemental report, which did include a statement consistent with I.T. s trial testimony, was admitted as a defense exhibit, and the detective was fully cross-examined about the report. The State later recalled I.T., and defense counsel cross- examined her, but again never asked about the age conversation. The trial court did not err in refusing to admit the recordings under Rule 801(d)(1)(B). III. Cross-Examination ¶14 that Finally, the record does not support Gallegos s claim his cross-examination was unreasonabl[y] curtailed. Defense counsel examined both Detective Avenetti and I.T. The record reflects that defense counsel often could not figure out how to lay foundation, respond to objections. rephrase questions, or otherwise During sidebar conferences, the court and opposing counsel often offered suggestions to help defense counsel frame appropriate questions. The court also granted defense counsel s request for three separate recesses to allow 8 her to prepare for the next stage of trial and allowed her to cross-examine I.T. with anywhere between two to five minutes between questions. ¶15 The Confrontation Clause guarantees an opportunity for effective cross-examination, but not cross-examination that is effective in whatever way, and to whatever extent, the defense may wish. Delaware v. Fensterer, 474 U.S. 15, 20 (1985). An effort to impeach on a collateral matter differs significantly from an effort to affirmatively prove motive or bias. Rule 608(b) restricts the former; the sixth amendment protects the latter. (App. State v. Gertz, 186 Ariz. 38, 42, 918 P.2d 1056, 1060 1995). We find no improper curtailment of Gallegos s cross-examination. CONCLUSION ¶16 For the reasons stated, we affirm Gallegos s conviction and sentence. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ PATRICIA K. NORRIS, Presiding Judge /s/ JOHN C. GEMMILL, Judge 9

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.