Full Opinion

IN THE ARIZONA COURT OF APPEALS DIVISION TWO THE STATE OF ARIZONA, Appellee, v. CHRISTOPHER ROSS, Appellant. No. 2 CA-CR 2025-0243 Filed October 23, 2026 Appeal from the Superior Court in Pima County No. CR20244183001 The Honorable Kellie Johnson, Judge AFFIRMED COUNSEL Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Casey D. Ball, Assistant Attorney General, Phoenix Counsel for Appellee Megan Page, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Appellant STATE v. ROSS Opinion of the Court OPINION Chief Judge Staring authored the opinion of the Court, in which Presiding Judge Vásquez and Vice Chief Judge Eppich concurred. S T A R I N G, Chief Judge: ¶1 Christopher Ross appeals from his convictions and sentences for sexual conduct with a minor and sexual abuse of a minor. On appeal, he contends there was insufficient evidence to support his conviction for sexual conduct with a minor, and that the trial court made evidentiary and sentencing errors warranting a new trial and resentencing. We disagree and therefore affirm. Factual and Procedural Background ¶2 In 2022, Ross was nineteen years old, and the victim, N.M., was eleven years old. Their mothers were old friends. Although not related by blood, N.M. considered Ross’s mother her “aunt” and Ross her “cousin.” Ross was living in the apartment where N.M. and her family resided, sleeping on a couch in the living room. N.M. had her own bedroom. ¶3 One night in 2022, N.M. and Ross were watching television in N.M.’s bedroom. N.M.’s mother was at work, and her stepfather was sleeping. N.M. had taken the box spring from under her mattress and placed it on the floor near the foot of her bed so that Ross could lie on it while watching television. At some point, N.M. fell asleep on her bed, lying on her stomach. Ross was the only other person in N.M.’s bedroom at the time. ¶4 N.M. awakened when she felt someone touching her vagina with a finger. Although she felt “paralyzed,” N.M. “twitched” one of her legs each time she was touched, and when she did so, the touching stopped. After each leg “twitch,” N.M. also heard Ross moving back to the box spring that had been placed adjacent to her bed. When asked at trial whether she had been touched on “the outside or the inside” of her vagina, N.M. testified: “As far as I remember, it was right on the inside.” She also stated that it was “right at the beginning of the inside.” The state also had N.M. demonstrate the touching using the cap from a marker pen; N.M. testified: “It was, like, right here, where—like, where the outside is, but it’s still where the inside is, but it was, like, right there.” At another point, N.M. 2 STATE v. ROSS Opinion of the Court testified that the touching had occurred in the place where her labia “were separated,” and that it had occurred “two or three” times that night. N.M. was too scared to report the touching to anyone at that time. ¶5 The second incident occurred when N.M. was twelve years old. She and her half-sister, who was visiting, were sleeping next to each other in N.M.’s bedroom. N.M. awakened to find Ross manipulating the zipper on her top. After this incident, N.M. told her mother what had happened, and her mother kicked Ross out of the apartment. N.M. and her family moved to California shortly thereafter. ¶6 Several months later, at N.M.’s request, her mother reported the incidents to the Tucson Police Department, which arranged a forensic interview for N.M. in California. At the interview, when describing the second incident, N.M. stated that she woke up to Ross unzipping her jacket and “touching” her “boobs.” In 2024, Ross was charged by indictment with one count of sexual conduct with a minor under fifteen and one count of sexual abuse of a minor under fifteen. After a jury trial, Ross was convicted of both counts. The jury found that, at the time of the offense, N.M. was twelve years of age or younger and Ross was eighteen years of age or older. Ross was sentenced to life imprisonment with the possibility of release after thirty-five years on count one, and to a consecutive, five-year term of probation on count two. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1). Discussion I. Sufficiency of Evidence ¶7 On appeal, Ross argues there is insufficient evidence to support his conviction on count one for sexual conduct with a minor under the age of fifteen. We review de novo the question of whether sufficient evidence exists, “viewing all the evidence at trial in the light most favorable to sustaining the jury’s verdicts and resolving all reasonable inferences against the defendant.” State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015). We will reverse “only if no substantial evidence supports the conviction.” State v. Pena, 209 Ariz. 503, ¶ 7 (App. 2005). “Sufficient evidence may be comprised of both direct and circumstantial evidence,” and it must “be substantial enough for a reasonable person to determine that it supports a verdict of guilt beyond a reasonable doubt.” Felix, 237 Ariz. 280, ¶ 30. If reasonable persons could differ as to whether certain evidence establishes a fact in issue, that evidence will be considered substantial. State v. Rodriguez, 186 Ariz. 240, 245 (1996). Significantly, “[i]n child molestation 3 STATE v. ROSS Opinion of the Court cases, the defendant can be convicted on the uncorroborated testimony of the victim.” State v. Jerousek, 121 Ariz. 420, 427 (1979). ¶8 A person commits sexual conduct with a minor under age fifteen by “intentionally or knowingly engaging in sexual intercourse . . . with any person” under age fifteen. A.R.S. § 13-1405(A)–(B). “Sexual intercourse,” as relevant here, is defined as “penetration into the penis, vulva or anus by any part of the body or by any object . . . .” A.R.S. § 13-1401(A)(4). Evidence of penetration, therefore, is an element of the offense as alleged here. See A.R.S. § 13-705(B). At trial, the court instructed the jury that vulva “means the external parts of the female genital organs.” ¶9 Ross asserts there was insufficient evidence of the statutorily required penetration element. We disagree. On the record before us, a reasonable person could find N.M.’s testimony sufficient to establish penetration beyond a reasonable doubt. N.M. testified that Ross had touched her vagina with his finger “right on the inside.” This testimony alone would be sufficient to support a finding of the requisite penetration under § 13-1401(A)(4). N.M. also testified that the touching had occurred “right at the beginning of the inside” of her vagina, in the place where her labia “were separated.” Further, N.M. used the cap from a marker pen to demonstrate penetration for the jury, testifying: “It was, like, right here, where—like, where the outside is, but it’s still where the inside is, but it was, like, right there.” (Emphasis added.) N.M.’s testimony was therefore sufficient.1 II. Admission of Forensic Interview Recording and Transcript ¶10 Ross next argues that the trial court abused its discretion by admitting a recording and transcript of N.M.’s forensic interview under the recorded recollection exception to the rule against hearsay. We will not “disturb the trial court’s ruling on the admissibility of hearsay evidence absent a clear abuse of discretion.” State v. Garcia, 256 Ariz. 488, ¶ 20 (App. 2023), vacated in part on other grounds, 2024 WL 3963541 (Ariz. Aug. 20, 2024). ¶11 At trial, the state sought to play a portion of the video recording of N.M.’s forensic interview to the jury and, if needed, provide 1We recognize that a reasonable person could have concluded otherwise. This, however, does not render the evidence insufficient. See Rodriguez, 186 Ariz. at 245. 4 STATE v. ROSS Opinion of the Court the jury with the associated portion of the recording’s transcript, under the recorded recollection exception to the rule against hearsay. Ross objected, arguing that the recorded recollection was not made when the matter was fresh in N.M.’s memory. He reasoned that the forensic interview took place almost a year after the second incident giving rise to the sexual abuse charge, constituting a proportionally significant amount of time for a twelve-year-old child. The state emphasized that courts apply the freshness requirement flexibly and analogized the facts of this case with those in Garcia. The trial court declined to make a ruling on Ross’s objection until the state laid its foundation at trial. ¶12 With respect to the second incident, N.M. testified that she woke up to Ross manipulating the zipper on her top, but she could not remember the touching she described in her forensic interview. She then testified that she remembered participating in the interview, but she could not remember the touching even after watching a video recording of the relevant portion of the interview. N.M. also testified that her memory of the incident was better when the interview took place than it was at the time of trial, that she had spoken truthfully when answering the advocate’s questions, and that she had answered the questions as best as she could. Outside the presence of the jury, Ross renewed his objection to the recorded recollection, and the trial court stated that more foundation was needed. Additionally, Ross objected to the use of the transcript in conjunction with the video, arguing that it would be cumulative. ¶13 N.M. then testified that the video recording of the interview she had watched accurately showed what she knew when she participated in the interview and that, at the time of the interview, she “kn[e]w and remember[ed]” the things she had been telling the advocate. The trial court permitted Ross to voir dire N.M. on the strength of her memory at the time of the interview, during which N.M. stated that she had “kn[own] then” what happened on the night of the second incident. However, N.M. also admitted that her “memory had faded somewhat” in the year between the incident and the interview, and that she “didn’t remember things as well as [she] would have remembered if [she] had given” her statement right away. Over Ross’s objection, the court admitted the video recording of the interview related to the second incident, and the state played it for the jury. After several jurors expressed difficulties hearing or understanding the video, over Ross’s objection, the court allowed the state to provide the jurors with a transcript of the video to read along with while the video replayed. Neither the video nor the transcript were provided to the jury during deliberations. 5 STATE v. ROSS Opinion of the Court ¶14 Generally, an out-of-court statement is inadmissible when offered to “prove the truth of the matter asserted in the statement.” Ariz. R. Evid. 801, 802. However, this rule does not apply to a recorded recollection that (1) “is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately,” (2) “was made or adopted by the witness when the matter was fresh in the witness’s memory,” and (3) “accurately reflects the witness’s knowledge.” Ariz. R. Evid. 803(5). A recording of a victim’s forensic interview may qualify as a recorded recollection. See State v. Martin, 225 Ariz. 162, ¶¶ 11-12 (App. 2010). ¶15 On appeal, Ross again asserts the trial court erred by allowing the state to introduce portions of the video and transcript from N.M.’s forensic interview as a recorded recollection, because N.M.’s statements were not made when the matter was fresh in her memory. He relies on United States v. Patterson, 678 F.2d 774 (9th Cir. 1982), where the court, noting that it was a close call, held that the lower court properly found an adult witness’s grand jury testimony fresh, even though grand jury proceedings took place ten months after the events in question. Id. at 778-79. Ross notes that “N.M.’s recorded statement was separated from the event by approximately the same length of time” as the witness’s statement in Patterson, but he argues that a year lapse has a greater effect on the memory of a child, like N.M., than on that of an adult.2 ¶16 The state, on the other hand, relies on Garcia. There, a seven-year-old victim disclosed a year and a half of continuous abuse by the defendant and participated in a forensic interview the next day, at which time she detailed the first incident of abuse along with two other instances. Garcia, 256 Ariz. 488, ¶¶ 3-6. When the victim could not remember the details surrounding the first incident at trial, the trial court allowed the state to play for the jury portions of the victim’s forensic interview relating to that incident. Id. ¶¶ 12, 22. This court upheld the trial court’s decision, reasoning that the victim had “avowed that her memory was better at the time of the interview” and had “maintained that she told the truth about the abuse.” Id. ¶ 22. We further reasoned that the interviewer had spoken to the victim “in a way that avoided suggested responses” and had “instructed her to be truthful,” while also noting that 2At oral argument in this court, Ross acknowledged that the record does not contain any expert testimony concerning the relative memory capabilities of adults and children. 6 STATE v. ROSS Opinion of the Court the trial court “did not provide the recording to the jury for deliberations.” Id. ¶17 We find Garcia instructive. Like the victim in Garcia, N.M. maintained that her memory of the incident was better when the interview took place than it was at the time of trial, and that she had been truthful with the interviewer when answering questions. Further, while admitting her difficulties with memory, N.M., as noted, testified that at the time of the interview, she “knew” what had happened. Additionally, a detective who reviewed the interview testified that the person who conducted N.M.’s interview followed standard forensic-interview protocols, like avoiding leading questions and allowing N.M. to naturally recall what happened. Finally, like the video in Garcia, the portions of video and transcript from N.M.’s forensic interview were not provided to the jury during deliberations. Ross attempts to distinguish Garcia on the ground that the victim in that case had “disclosed consistent weekly abuse for the last eighteen months.” See id. ¶¶ 4-5. However, despite the continuous nature of the abuse in Garcia, the interview there took place “a year and a half” after the first incident of abuse, and this court nonetheless upheld the trial court’s decision to allow the state to play for the jury the portion of the victim’s forensic interview relating to that incident. Id. ¶¶ 5, 22. ¶18 Ross also claims that N.M. “admitted that her memory may not have been fresh” at the time of the interview. This, however, mischaracterizes N.M.’s testimony. Indeed, her admission that she did not remember things as well at the interview as she would have if she had given her statement on the night of the incident does not amount to an admission that her “memory may not have been fresh” at the time of the interview. Moreover, as the state points out, “admissibility [of a recorded recollection] turns not on when the memory is freshest,” but on whether the record was made by the witness “when the matter was fresh in the witness’s memory.” Ariz. R. Evid. 803(5)(B). On the record before us, we conclude the trial court did not abuse its discretion in allowing the jury to hear portions of N.M.’s recorded forensic interview and to read along with corresponding portions of the transcript. See Garcia, 256 Ariz. 488, ¶¶ 20, 22. III. Sentencing ¶19 Finally, Ross argues that he is entitled to a new sentencing hearing because the trial court committed two sentencing errors. First, he contends that the court committed fundamental and prejudicial error “by finding that it had no discretion” under § 13-705 to impose anything less than a life sentence for count one. He also asserts that the life sentence 7 STATE v. ROSS Opinion of the Court imposed by the court violates the prohibitions against cruel and unusual punishment in our state and federal constitutions. See U.S. Const. amend. VIII; Ariz. Const. art. II, § 15. “Statutory interpretation is a question of law we review de novo.” State v. Cope, 241 Ariz. 323, ¶ 5 (App. 2016). We likewise review de novo the question of whether a sentence constitutes cruel and unusual punishment. State v. Welch, 236 Ariz. 308, ¶ 32 (App. 2014). ¶20 Before trial, the state requested a special interrogatory on count one, asking the jury to find N.M.’s age at the time of the offense. And at trial, the state requested an additional interrogatory on the same count asking the jury to find Ross’s age at the time of the offense, explaining that the defendant’s age was relevant under the sentencing provisions in § 13-705. Ross did not object, and both interrogatories were submitted to the jury. N.M. testified that the incident giving rise to count one occurred when she was eleven and when Ross was nineteen, and Ross did not present any evidence to contradict this testimony. The jury subsequently found that, at the time of the offense, N.M. was twelve years of age or younger and Ross was eighteen years of age or older. ¶21 At sentencing, the parties agreed that the trial court lacked discretion to impose anything other than a life sentence for count one. Ross nonetheless requested a lesser sentence, positing that “life without parole for [thirty-five] years . . . amounts to cruel and unusual punishment” in light of Ross’s “age, his background, . . . and the relative seriousness of the conduct that was alleged at trial.” The court denied Ross’s request and sentenced him to life imprisonment with the possibility of release after thirty-five years. ¶22 Ross was sentenced pursuant to § 13-705, which provides enhanced sentences for defendants convicted of committing dangerous crimes against children. Subsection (B) of that section provides: A person who is at least eighteen years of age and who is convicted of a dangerous crime against children in the first degree involving . . . sexual conduct with a minor who is twelve years of age or younger shall be sentenced to life imprisonment and is not eligible for . . . release from confinement on any basis . . . until the person has served thirty-five years or the sentence is commuted. 8 STATE v. ROSS Opinion of the Court § 13-705(B). Similarly, subsection (C) of that section provides: Except as otherwise provided in this section, a person who is at least eighteen years of age or who has been tried as an adult and who is convicted of a dangerous crime against children in the first degree involving . . . sexual conduct with a minor who is under twelve years of age . . . may be sentenced to life imprisonment and is not eligible for . . . release from confinement on any basis . . . until the person has served thirty-five years or the sentence is commuted. § 13-705(C). Subsection (C) also authorizes the trial court to impose a sentence between thirteen and twenty-seven years “[i]f a life sentence is not imposed pursuant to this subsection.” Id. Finally, subsection (E) of that section provides: Except as otherwise provided in this section, a person who is at least eighteen years of age or who has been tried as an adult and who is convicted of a dangerous crime against children in the first degree involving . . . sexual conduct with a minor who is twelve, thirteen or fourteen years of age . . . shall be sentenced to a term of imprisonment [between thirteen and twenty- seven years]. § 13-705(E). ¶23 Ross asserts that, given the jury’s findings with respect to the age of N.M. and Ross, any one of these three sentencing provisions could have applied. Thus, the trial court erred by concluding that it lacked discretion to impose anything other than a life sentence. We disagree, as subsection (B) of the statute clearly applies. Indeed, Ross, who the jury found to be “at least eighteen years of age,” was convicted of “sexual conduct with a minor who is twelve years of age or younger.” § 13-705(B). Under its plain terms, therefore, subsection (B) mandated that Ross “be sentenced to life imprisonment.” Id. And unlike subsection (B), which is only qualified by an exception for “masturbatory contact,” subsections (C) and (E) begin with the phrase, “Except as otherwise provided in this section . . . .” § 13-705(B), (C), (E). Thus, the statute unambiguously provides that Ross should be sentenced under subsection (B) and that 9 STATE v. ROSS Opinion of the Court subsections (C) and (E) do not apply. We therefore find no error in the court’s application of § 13-705. ¶24 Ross also argues that the imposition of a life sentence on count one constitutes cruel and unusual punishment. Specifically, he contends that the facts and circumstances of his case give rise to an inference that the sentence is grossly disproportionate to the crime committed. He likens his case to State v. Davis, 206 Ariz. 377 (2003), where our supreme court found an Eighth Amendment violation when a defendant received a fifty-two-year sentence for four counts of sexual misconduct with a minor arising out of his non-coerced sex with two teenage girls aged thirteen and fourteen when the defendant was twenty. Id. ¶¶ 2-3, 7, 36, 49. There, the court relied on the following factors in determining that the defendant’s sentences were grossly disproportionate to his crimes: (1) the defendant’s sexual relations with the girls were nonviolent and voluntary; (2) the defendant lacked a criminal record; (3) the defendant’s intelligence and maturity level fell far below that of a normal young adult; (4) the defendant’s conduct fell under a broadly sweeping statute that does not differentiate between “rape-incest by a step-parent who forces sex on a trusting ward” and “the more benign boyfriend-girlfriend situation in which one party is older than eighteen and the other younger than fifteen.” Id. ¶ 36. ¶25 As noted previously, both the United States and Arizona Constitutions prohibit cruel and unusual punishment. U.S. Const. amend. VIII; Ariz. Const. art. II, § 15. And although these prohibitions are applicable to lengthy sentences of incarceration, Davis, 206 Ariz. 377, ¶ 13, “noncapital sentences are subject only to a ‘narrow proportionality principle’ that prohibits sentences that are ‘grossly disproportionate’ to the crime.” State v. Berger, 212 Ariz. 473, ¶ 10 (2006) (quoting Ewing v. California, 538 U.S. 11, 20, 23 (2003) (plurality opinion)). ¶26 When reviewing a prison sentence under the Eighth Amendment, a court must first determine whether “there is a threshold showing of gross disproportionality by comparing ‘the gravity of the offense [and] the harshness of the penalty.’” Id. ¶ 12 (quoting Ewing, 538 U.S. at 28) (alteration in Berger). “In comparing the gravity of the offense to the harshness of the penalty, courts must accord substantial deference to the legislature and its policy judgments as reflected in statutorily mandated sentences.” Id. ¶ 13. “A prison sentence is not grossly disproportionate, and a court need not proceed beyond the threshold inquiry, if it arguably furthers the State’s penological goals and thus reflects 10 STATE v. ROSS Opinion of the Court ‘a rational legislative judgment, entitled to deference.’” Id. ¶ 17 (quoting Ewing, 538 U.S. at 30). However, in extremely rare cases such as Davis, “the specific application of [a sentencing] scheme to the facts of a defendant’s case may result in an unconstitutionally disproportionate sentence” even if that scheme “does not violate the Eighth Amendment generally.” State v. Florez, 241 Ariz. 121, ¶ 23 (App. 2016); Berger, 212 Ariz. 473, ¶¶ 38-39. ¶27 In this case, Ross received a life sentence for his conviction for sexual conduct with a minor. The legislature has designated sexual conduct with a minor as a “[d]angerous crime against children” subject to an enhanced sentence. § 13-705(T)(1)(a)(v); see Florez, 241 Ariz. 121, ¶ 25. The legislature enacted this statute to “punish and deter” those “who pose a direct and continuing threat to . . . children,” State v. Williams, 175 Ariz. 98, 102-03 (1993), and the provisions addressing sexual conduct with a minor “advance the state’s goal of combatting the sexual abuse.” Florez, 241 Ariz. 121, ¶ 25. The sentencing scheme therefore does not give rise to an inference of gross disproportionality. Id. ¶28 Moreover, contrary to Ross’s assertion, the facts and circumstances of his case are distinguishable from those in Davis and do not give rise to an inference of gross disproportionality. First, Ross’s sexual contact with N.M. was not voluntary; it occurred while N.M. was sleeping. Second, there is no evidence in the record that Ross’s intelligence and maturity level falls far below that of a normal adult. Third, this was not one of the “more benign” boyfriend-girlfriend situations described in Davis; N.M. considered Ross to be her cousin. Further, we cannot ignore the fact that, at the time of the incident, N.M. was only eleven years old—two years younger than the youngest victim in Davis.3 Accordingly, under the circumstances of this case, Ross’s life sentence for count one does not amount to cruel and unusual punishment. Disposition ¶29 For the foregoing reasons, we affirm Ross’s convictions and sentences. 3We disagree with Ross’s assertion at oral argument that this case involves acts that are, at most, at the “periphery” of sexual conduct with a minor. 11