STATE v. MITA

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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 DIVISION ONE FILED: 07/12/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) EDVIN MITA, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 11-0337 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-119184-001 DT The Honorable Warren J. Granville, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General Phoenix By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division and Michael T. O Toole, Assistant Attorney General Attorneys for Appellee Michael J. Dew, Attorney at Law Attorney for Appellant Phoenix K E S S L E R, Judge ¶1 Defendant Edvin Mita ( Mita ) appeals his convictions and sentences for sexual assault, aggravated assault, possession of cocaine and drug paraphernalia, and other charges. He argues the court fundamentally erred in failing to sever the charges and in instructing the jury on sexual assault, and abused its discretion in discovery sanctions and evidentiary rulings. For the and reasons that follow, we affirm his convictions sentences. FACTUAL BACKGROUND ¶2 A grand jury indicted Mita on eight counts of sexual assault and related charges and possession of cocaine and drug paraphernalia. were alleged These charges arose from separate incidents that to have occurred on three November 2009 involving three women. nights in July and On each occasion, Mita allegedly sexually assaulted the women after spending time with them in a Scottsdale bar. ¶3 In September 2010, Mita filed a motion to sever the eighteen counts on which he was indicted into four separate trials, charges. one for each alleged victim and one for the drug The court held an evidentiary hearing on Mita s motion during which the court considered the following evidence: 1) the expert testimony of a sexual abuse psychologist, who testified that he believed Mita had a propensity to commit sexually aberrant acts; 2) copies of photographs showing the injuries of the third victim, K.H.; 3) transcripts of a call made by the second victim, D.D., to Mita (the confrontation call ); and 4) recorded interviews with each of the three victims. 2 The court denied Mita s motion to sever, and Mita did not renew this motion during trial as is required by Arizona Rule of Criminal Procedure 13.4(c). ¶4 Prior to trial, upon the State s motion, the court precluded Mita from introducing evidence of K.H. s alleged financial difficulties, holding that the probative value of the evidence was outweighed by danger of prejudice and potential for confusion. However, the court did not preclude Mita from questioning K.H. about specific conversations he had with her regarding her finances. told him she objection, had and after At trial, Mita testified that K.H. had financial hearing problems. Mita s Upon proffer of the State s evidence and argument from the parties, the court ruled that evidence of K.H. s finances was inadmissible under Arizona Rules of Evidence 402 and 403. ¶5 At trial, the State called ( Bertino ) as a witness who testified healing of bruises. Mita objected a about to forensic the this nurse nature and testimony on competency grounds, which the court overruled, and then he moved for a mistrial claiming the State did not disclose Bertino as an expert witness. The court ultimately 3 concluded the State violated Arizona Rule of Criminal Procedure 15.1(b)(4)1, but denied Mita s motion for mistrial and his request to strike Bertino s testimony. alternative The court offered to have Mita suggest sanctions, interview Bertino afforded Mita s and allowed have expert Bertino s cited reference. her witness Mita an re-called opportunity as additional to re- a witness, and time to review Mita declined to suggest alternative sanctions. ¶6 During a discussion of jury instructions, Mita objected to the instruction regarding the definition of consent. Mita proposed an instruction which would clarify that a victim could still consent even if impaired by drugs or alcohol. The court denied Mita s request for the additional instruction, but added language to clarify that the burden is on the State to prove the without consent element. Neither the court nor counsel discussed the mens rea requirement applicable to the without consent element. The court instructed the jurors on the elements of sexual assault as follows: The crime of sexual assault requires the State to prove any of the following: The defendant intentionally or knowingly caused another person to have oral contact with his penis without the other person s consent; or the defendant intentionally or knowingly penetrated the vulva or anus of another person with a part of his body without the other 1 The court cited to former Arizona Rule of Criminal Procedure 15.1(a)(4). The applicable subsection was amended in 2008 and is now contained in Rule 15.1(b)(4). 4 person s consent. Without consent includes but is not limited to any of the following: The victim is coerced by the immediate use or threatened use of force against a person or property; or the victim is incapable of consent by reasons of drugs, alcohol, sleep or any other similar impairment of cognition, and such condition is known or should have reasonably been known to the defendant. ¶7 A jury related charges charges of convicted acquitted involving sexual him of drug of the sexual first the assault the Mita two victims, involving charges the and third one assault and three victim, count of and but sexual assault and one count of aggravated assault of the third victim, K.H.2 The judge sentenced Mita to consecutive terms in prison totaling eleven years. We have jurisdiction ( A.R.S. ) sections Mita filed a timely notice of appeal. pursuant to 12-120.21(A)(1) Arizona (2003), Revised 13-4031, Statutes and - 4033(A)(1) (2010). DISCUSSION I. ¶8 Severance Mita argues the court fundamentally erred in failing to sever trial of the charges arising from separate assaults of the three women, claiming the court heard no testimony from the victims and failed to specify whether it found the victims or 2 The court also found Mita guilty of three misdemeanor charges tried to the bench: theft from the first victim, assault of the second victim, and threatening or intimidating the third victim. 5 Mita more credible. We review a severance for abuse of discretion. trial court s ruling on State v. Prince, 204 Ariz. 156, 159, ¶ 13, 61 P.3d 450, 453 (2003). We likewise review a trial court s ruling on admissibility of evidence for abuse of discretion. State v. Roscoe, 184 Ariz. 484, 491, 910 P.2d 635, 642 (1996). Because Mita failed to renew his severance motion at or before the close of evidence, as required by Rule 13.4(c), however, we review for fundamental error only. See State v. Laird, 186 Ariz. 203, 206, 920 P.2d 769, 772 (1996). Mita thus bears the burden of establishing error, that the error was fundamental, and that the error caused him prejudice. v. Henderson, 210 Ariz. 561, 567, ¶ 20, 115 P.3d State 601, 607 (2005). ¶9 When, as in this case, joinder is based solely on the offenses having the same or similar character, a defendant is entitled to severance unless evidence of the other offense or offenses would be admissible under applicable rules of evidence if the 13.4(b). offenses Denial were of tried a separately. motion to sever Ariz. R. under Rule Crim. P. 13.4(b) requires reversal if the evidence of other crimes would not have been admitted at trial for a proper evidentiary purpose. State v. Aguilar, 209 Ariz. 40, 50-51, ¶ 38, 97 P.3d 865, 875-76 (2004) (citation omitted). Because the sexual contact in this case was between adults, cross-admissibility of the other acts 6 under Arizona Rule of Evidence 404(c) hinged on the court finding that clear and convincing evidence demonstrated that the sexual contact was without consent, an issue that relies on a credibility determination. See Aguilar, 209 Ariz. at 50, ¶ 35, 97 P.3d at 875. ¶10 At the evidentiary hearing on the motion to sever, the only live witness was a sexual abuse psychologist, who opined that Mita s sexual contacts with the victims evidenced a character trait giving rise to an aberrant sexual propensity under Rule 404(c). The State submitted as exhibits recordings of police interviews with the victims, the confrontation call D.D. made to Mita, and photographs showing extensive bruising that K.H. had reported she sustained during the assault. The State argued that the evidence showed the first victim was too intoxicated to consent, and Mita violently raped the other two women. Defense counsel argued the victims allegations were not credible, contending: 1) each victim had a motive to fabricate the assault, 2) two of the victims continued to socialize with Mita after the alleged assaults, and 3) witness testimony showed that not all of alleged assault. K.H. s bruising occurred the night of the The court verified with counsel before taking the issue under advisement that the only issue is consent or lack of consent. ¶11 The court ruled that severance was not necessary or 7 appropriate because evidence of each of the alleged crimes would be cross-admissible at separate trials under Rule 404(b) and/or Rule 404(c). court With respect to the Rule 404(b) analysis, the found the State was capable of presenting clear and convincing evidence that the crimes alleged against each victim were of the same or similar character (sexual contact without consent), [were] based upon the same or similar conduct by Defendant against each victim . . . , and could be seen as a common scheme or plan . . . . With respect to the Rule 404(c) analysis, clear the demonstrated court that found 1) defendant was and the convincing person who evidence had sexual contact with each victim, 2) sexual contact without consent of each victim provides a reasonable basis to infer that Defendant had a character trait giving rise to an aberrant sexual propensity to commit the charged crimes, and 3) the evidentiary value of the proof was not substantially outweighed by the factors identified in Rule 403, taking into consideration each of the factors identified in Rule 404(c). ¶12 Mita fundamentally victims and relies erred failed on Aguilar because it to make to heard any argue no finding that testimony on whether the from it Mita s or the victims version of events more credible. Aguilar, here the court heard the first-person court the found Unlike accounts necessary to make the credibility determination when it reviewed 8 the recorded interviews of the victims and the confrontation call. See State v. Lebrun, 222 Ariz. 183, 187, ¶ 15, 213 P.3d 332, 336 (App. 2009) (holding the trial court did not err in finding charged acts were cross-admissible under Rule 404(c) when the court had the opportunity to hear the victims own statements and first-person accounts of what they observed). Although the court did not separately and explicitly state it found clear and convincing evidence that Mita s sexual contact with each victim was without consent, it implicitly did so in its finding that Mita s sexual contact without consent of each victim provided a reasonable basis to infer Mita s aberrant sexual propensity. The court did not phrase this finding in conditional language, as Mita alleges. contact was without consent, the To find that the sexual court necessarily had to believe the victims version of events, and not Mita s, to the extent it was presented on the tape of the confrontation call. We are not persuaded that the court fundamentally erred to Mita s prejudice by failing to explicitly place on the record this credibility determination. Nor are we persuaded by Mita s argument that the wording of the court s minute entry shows that the court deferred this credibility determination to the jury. ¶13 Furthermore, Mita was acquitted of the majority of charges against him, and therefore, it is unlikely the jurors were unfairly influenced by the joinder of the charges. 9 Thus, Mita has not established any prejudice. Accordingly, we find the court did not fundamentally err in denying Mita s motion to sever. II. Discovery Sanction ¶14 Mita argues that the trial court abused its discretion in failing to properly sanction the State for its failure to disclose Bertino as an expert witness. Mita argues that the court s offer of a continuance was no sanction at all, and at the very least, the court should have stricken Bertino s testimony regarding her medical opinion on the cause and aging of bruises. ¶15 We review a trial court s imposition of sanctions for discovery violations for abuse of discretion. State v. Lee, 185 Ariz. 549, 555-56, 917 P.2d 692, 698-99 (1996). Arizona Rule of Criminal Procedure 15.7 identifies several sanctions a court may impose for failing to comply with disclosure rules, including granting a continuance. sanction for nondisclosure circumstances. sanction of A court may impose any remedy or that it finds Ariz. R. Crim. P. 15.7(a). last resort, to be imposed stringent sanctions are not applicable. just under the Preclusion is a only if other less State v. Moody, 208 Ariz. 424, 454, ¶ 114, 94 P.3d 1119, 1149 (2004) (citations and internal quotation marks omitted). In selecting the appropriate sanction, the courts should seek to apply sanctions that affect 10 the evidence at trial and the merits of the case as little as possible since the Rules of Criminal Procedure are designed to implement, not to impede, the fair and speedy determination of cases. State v. Fisher, 141 Ariz. 227, 246, 686 P.2d 750, 769 (1984). court In must determining the take account into appropriate the sanction, the significance trial of the information not timely disclosed, the impact of the sanction on the party and the victim[,] and the stage of the proceedings at which the disclosure is ultimately made. Ariz. R. Crim. P. 15.7(a). ¶16 In denying Mita s motion for a mistrial, dismissal of the charges, or to strike Bertino s testimony about the nature and aging of bruises, the court found first, that the State had violated the discovery rules by failing to disclose Bertino as an expert. The court found, however, that defense counsel had interviewed this witness before trial on the aging of bruising, specifically, and, in asking for her curriculum vitae, had treated her as more than a percipient witness, acknowledging that her testimony was beyond mere observation. The court further found that the only material surprise to her testimony was her specific reference to a study on the aging of bruises. The court ordered the State to provide defense counsel a copy of the article on which Bertino relied and offered defense counsel the opportunity to interview her on the study, and to recall her 11 as a witness on this issue. The court also noted that defense counsel had previously noticed his own medical expert to opine on the aging of bruises, and [h]e [would] be afforded the time needed to review [Bertino s] cited reference. The court recognized, however, that [t]he topic of aging bruises is not rocket science or brain surgery, but more an area within the common experience of lay jurors who are afforded the power to weigh expert opinion as they deem warranted. The court finally invited defense counsel to seek remedies for the violation of the disclosure rules other than dismissal of the charges, a mistrial, or striking of the testimony, but defense counsel offered no alternatives. ¶17 The court did not abuse its discretion. First, we cannot say that no reasonable judge would have reached the same result under the circumstances, as necessary to find an abuse of discretion in his imposition of a sanction for a disclosure violation. State v. Armstrong, 208 Ariz. 345, 354, ¶ 40, 93 P.3d 1070 1061, (2004) (citation omitted). Under similar circumstances, when the state failed to disclose the full scope of an expert witness s testimony, our supreme court found that the trial court acted properly by giving opportunity to re-interview the witness. the defendant an State v. Roque, 213 Ariz. 193, 210-11, ¶¶ 51-52, 141 P.3d 368, 385-86 (2006). ¶18 Second, Mita has failed to show how he was prejudiced 12 by the court s ruling. For error to be harmless and not prejudicial, we must be able to say beyond a reasonable doubt that the error did not affect the verdict. State v. Rienhardt, 190 Ariz. 579, 586, 951 P.2d 454, 461 (1997). Both defense witness, Dr. Keen, and the State s witness, Dr. Corey, testified consistently with Bertino that the appearance of a bruise is affected by a variety of factors and that it s difficult to evaluate the exact age of a bruise. Thus, even without Bertino s testimony, the State was able to produce evidence of the uncertainty of the ages of bruises. ¶19 On this record, we conclude the court thoroughly and thoughtfully considered the appropriate factors in determining the sanction and did not abuse its discretion in denying the requested relief and instead allowing defense counsel the opportunity to re-interview Bertino and recall her as a witness on this issue. See Roque, 213 Ariz. at 210-11, ¶¶ 51-52, 141 P.3d at 385-86; Moody, 208 Ariz. at 454, ¶ 114, 94 P.3d at 1149. III. Limitation on Cross-Examination ¶20 Mita restricted concerning next defense her argues the counsel s financial trial court impermissibly cross-examination difficulties, depriving of him K.H. of the opportunity to argue she was motivated to falsely accuse him of sexual assault because he had refused to give her money. ¶21 The court initially ruled 13 that defense counsel was allowed to cross-examine K.H. on any conversations she had with Mita regarding money but precluded defense counsel from mentioning any financial judgments and/or lawsuits against K.H. unless the information is backed up by prior conversations. At trial, Mita began to testify about conversations in which K.H. told him about her financial difficulties. Upon the State s objection and after hearing Mita s proffer of evidence and counsel s arguments outside the presence of the jury, the court found that K.H. never directly asked Mita to give her money, and Mita s conversations with K.H. regarding her finances did not imply that she did. Thus, other than evidence of K.H. actually asking Mita for money, the court precluded evidence of the victim s financial difficulties, as collateral, speculative and an undue waste of time. ¶22 A defendant has the right under the Confrontation Clause to cross-examine a witness concerning her bias, motive, and prejudice, credibility. and on issues that directly bear on her See Davis v. Alaska, 415 U.S. 308, 316-18 (1974); see also State v. Gertz, 186 Ariz. 38, 41-42, 918 P.2d 1056, 1059-60 (App. 1995). Trial judges retain wide latitude, however, to impose reasonable limits on cross-examination, based on concerns about prejudice, confusion of the issues, and marginal relevance. State v. Canez, 202 Ariz. 133, 153, ¶ 62, 42 (2002). P.3d 564, 584 We 14 evaluate cross-examination restrictions on a case-by-case basis to determine whether the defendant was denied the opportunity to present evidence relevant to issues in the case or the witness credibility. Id. Although we ordinarily review evidentiary rulings for abuse of discretion, we review evidentiary rulings that implicate the Confrontation Clause de novo. State v. Ellison, 213 Ariz. 116, 129, ¶ 42, 140 P.3d 899, 912 (2006). ¶23 The court did not commit reversible error under the circumstances. Any specific financial difficulties that K.H. might have had at the time of the alleged sexual assault had little or no relevance on this record. K.H. testified she had never asked Mita for money, a claim Mita did not later dispute. Moreover, Mita told the court that the only time he had actually told K.H. he was not going to give her any money was in February 2010, two months after she filed the assault report with police and a month after she agreed to prosecute. Mita s theory that K.H. had fabricated the allegations because he refused to give her money was pure conjecture, not supported even by his own proffer under oath. The court s ruling that defense counsel could ask K.H. about any conversations in which she asked Mita for money, but could not cross-examine her about her specific financial difficulties, was a reasonable limitation for the reasons cited by the court: the precluded inquiry involved a collateral issue, its relevance was based on speculation, and it 15 would cause an undue waste of time. See State v. Zuck, 134 Ariz. 509, 513, 658 P.2d 162, 166 (1982) ( The court may prevent cross-examination into collateral matters of a personal nature having minor probative value. ); State v. Riley, 141 Ariz. 15, 20, 684 P.2d 896, 901 (App. 1984) ( [T]he right of cross- examination . . . does not confer a license to run at large into irrelevant matters. ). IV. Jury Instruction ¶24 erred Mita in finally failing to argues the instruct on trial the court mens rea fundamentally of defendant concerning the without consent element of the crime of sexual assault. We review the adequacy of jury instructions in their entirety to determine if they accurately and adequately reflect the law. State v. Hoskins, 199 Ariz. 127, 145, ¶ 75, 14 P.3d 997, 1015 (2000). We will not reverse unless we can reasonably find that the instructions, when taken as a whole, would mislead the jurors. State v. Sucharew, 205 Ariz. 16, 26, ¶ 33, 66 P.3d 59, 69 (App. 2003) (citation omitted). ¶25 Because Mita failed to object to the sexual assault instruction on the ground he now raises on appeal, we review this claim of error for fundamental error only. 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. See Henderson, Accordingly, Mita has the burden to show error, that the error was fundamental, and that he was prejudiced thereby. 16 See id. at 567, ¶ 20, 568, ¶ 22, 115 P.3d at 607, 608. ¶26 The court instructed the jury pursuant to A.R.S. § 13- 1406(A) (2010), that to convict Mita of the offense of sexual assault, it must be convinced beyond a reasonable doubt that: The defendant intentionally or knowingly caused another person to have oral contact with his penis without the other person s consent; or the defendant intentionally or knowingly penetrated the vulva or anus of another person with a part of his body without the other person s consent. The court further defined without consent pursuant to A.R.S. § 13-1401(5)(a) (2010) as including, but not limited to, when [t]he victim is coerced by the immediate use or threatened use of force against a person or property, and pursuant to A.R.S. § 13-1401(5)(b) as when the victim is incapable of consent because of drugs, alcohol, sleep, or similar impairment, and such condition is known or should have reasonably been known to the defendant. ¶27 Mita relies on State v. Kemper,3 229 Ariz. 105, 271 P.3d 484 (App. 2011), to argue the court fundamentally erred in 3 In Kemper, the trial court instructed the jury as follows: The crime of sexual assault requires proof that the defendant: 1. Intentionally or knowingly engaged in sexual intercourse or oral sexual contact with another person; and 2. Engaged in the act without the consent of the other person. 17 failing to instruct the jury that a defendant must actually know the sex is unwanted. Mita argues the language intentionally or knowingly in the instruction modifies only engaging in, not without consent. Although the without consent instruction given to the jury pursuant to A.R.S. § 131401(5)(b) included the appropriate mens rea element, Mita claims that definition was inapplicable to K.H., the only victim as to whom he was convicted, because there was no evidence of a mental disorder, defect, intoxication, or sleep. He argues that the additional without consent definition given to the jury that was coercion directly or threat applicable of force to Kimberly lacked the H., dealing necessary mens with rea element required by Kemper.4 ¶28 The instructions in this case are distinguishable from those given in Kemper, which we found required reversal. See Kemper, 229 Ariz. at 106-07, ¶¶ 5-7, 271 P.3d at 485-86. In Kemper, the instruction entirely omitted the mens rea from a separately identified lack of consent requirement offense. See id. at 106, ¶ 3, 271 P.3d at 485. of the The Kemper instruction was artificially divided into two subsections with 229 Ariz. at 106, ¶ 3, 271 P.3d at 485. 4 The State s theory was that Mita coerced K.H. into engaging in sex with him by the immediate use or threatened use of force, under the definition of without consent found in A.R.S. § 131401(5)(a), and by ignoring her pleas for him to stop. 18 only the first subsection including a mens rea. Id. This division suggested the State only had to prove the defendant knowingly engaged in sexual contact, leaving no room for the defendant to argue without consent. he did not know the sexual contact was See State v. Cagle, 228 Ariz. 374, 377-78, 266 P.3d 1070, 1073-74 (App. 2011) (for the proposition that when a statute distinguishes among the elements of an offense using subsections, and only one of the subsections contains a prescribed mental state, that mental state does not apply to the separately identified elements in the other subsections). ¶29 In contrast, the first instruction here, which tracked A.R.S. § 13-1406(A), identified the mens rea applicable to the entire offense, including without consent. Unlike in Kemper, the instruction was not arbitrarily divided into two parts; rather it was constructed so that the requisite mental state, knowingly, applied to all elements of the offense. See A.R.S. § 13-202(A) (2010) ( If a statute defining an offense prescribes a culpable mental state . . . without distinguishing among the elements of such offense, the prescribed mental state shall apply to each such element . . . . ). The instruction was taken directly from the applicable statute and allowed Mita to argue his contact. theory that the victims consented to the sexual See State v. Witwer, 175 Ariz. 305, 309, 856 P.2d 1183, 1187 (App. 1993). 19 ¶30 Moreover, enlightened the unlike jury on in the Kemper, the appropriate court legal further standard by defining without consent pursuant to A.R.S. § 13-1401(5)(a) and (b). n.2. See Kemper, 229 Ariz. at 107 n.2, ¶ 5, 271 P.3d at 486 In doing so, the court used the statutory language of A.R.S. § 13-1401(5) so not to exclude other types of lack of consent: Without consent includes but is not limited to any of the following . . . . The definitions of without consent given to the jury were examples and not the only ways the State could prove lack of consent. during the State s closing This was made clear for the jury argument in which the prosecutor stated, there s many different ways in which you can find that someone did not give their consent . . . some of which are listed in your instructions. Thus, each example provided to the jury did not need to contain its own separate mens rea. The applicable mens rea for the entire offense was included in the instruction. ¶31 Even if the jury found the instruction ambiguous or confusing with respect to whether knowingly applied to the without of the definition of knowingly made the State s burden clear. The court consent defined awareness of circumstances element, the court s knowingly to mean or in the an offense. belief constituting 20 the inclusion defendant existence of acted conduct [Knowingly] does with or not mean the defendant forbidden by law. must have known that the conduct was This definition correctly instructed the jury as to the State s burden and allowed Mita to argue that he believed the victims consented. See Witwer, 175 Ariz. at 309, 856 P.2d at 1187. ¶32 Finally, counsels closing additional guidance to the jury. arguments provided See State v. Milke, 177 Ariz. 118, 123, 865 P.2d 779, 784 (1993) (holding a jury was not misled by a deficient jury instruction when counsels closing arguments adequately covered the defense s theory); see also State v. Bruggeman, 161 Ariz. 508, 510, 779 P.2d 823, 825 (App. 1989) ( Appellate courts do not evaluate jury instructions out of context. Closing arguments of counsel may be taken into account assessing when (citation omitted)). the adequacy of jury instructions. During closing arguments, Mita s counsel adequately covered his defense theory that the State had failed to prove Mita knew the victims had not consented: He doesn t think he raped her and rough sex does not equal rape. Mita s counsel further argued that in light of the fact that the State was unsure of its own theory as to what acts were consensual, Mita could not have known the sexual contact with the victims was without consent. Mita s closing arguments clarified for the jury that the State was required to show Mita knew the acts were not consensual. 21 ¶33 The State s State s burden. closing argument also clarified the In his closing, the prosecutor instructed the jury that a victim need not say the word no to communicate lack of consent. He argued that a lack of consent can be communicated in her words, her body language, anything. This argument implies that a lack of consent must have been somehow communicated to Mita for him to be convicted. ¶34 Thus, any ambiguity in the jury instruction was cured by counsels closing arguments. Under these circumstances, we are not persuaded that the court committed any error, let alone fundamental error. CONCLUSION ¶35 For the foregoing reasons, we affirm Mita s convictions and sentences. __/S/_____________________________ DONN KESSLER, Judge CONCURRING: _/S/ ________________________ ______ ANN A. SCOTT TIMMER, Presiding Judge _/S/ ________________________ PATRICIA K. NORRIS, Judge ______ 22

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