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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOAO RICARDO GOMES, Appellant.

No. 1 CA-CR 21-0340

Appeal from the Superior Court in Maricopa County

No. CR2018-143519-001

The Honorable Ronee Korbin Steiner, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Brian R. Coffman

Counsel for Appellee

The Law Office of Michael Alarid III PLLC, Phoenix

By Michael Alarid, III (argued)

Co-Counsel for Appellant

The Law Office of Elizabeth Mullins, PLLC, Phoenix

By Elizabeth Mullins

Co-Counsel for Appellant

FILED 11-1-2022
STATE v. GOMES

Decision of the Court

2

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding 

Judge Brian Y. Furuya and Judge Jennifer B. Campbell joined.

M c M U R D I E, Judge:

¶1 Joao Ricardo Gomes appeals from his conviction and sentence 

for sexual conduct with a minor. He argues the superior court erred by 

denying his motion to suppress evidence, motion for a directed verdict, and 

motion for a new trial. He asserts the State’s misconduct deprived him of a 

fair trial. And he claims our supreme court’s COVID-19 administrative 

order violated his due process rights. We find no reversible error and 

affirm.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 Gomes is Nina’s2 uncle. Nina often stayed the night at 

Gomes’s home, where she spent time with her cousins and aunt. In January 

2018, when Nina was ten years old, she slept at Gomes’s house after a dance 

recital. She showered and put on her dance shorts and her aunt’s shirt 

before going to sleep. The shirt originally belonged to Gomes, but her aunt

wore it to bed almost every night. Nina slept in her cousin’s bed, and her 

cousin, Gomes’s daughter, slept on the trundle bed underneath her.

¶3 After Nina went to sleep, she woke up because her cousin was 

“crying and wanting a bottle.” Gomes entered the room and gave her 

cousin a bottle. Her cousin fell back asleep. Then, Gomes sat on Nina’s bed.

Nina believed Gomes smelled like alcohol and pretended she was asleep.

Gomes lifted her dance shorts, “put his finger where [she] pee[s],” and 

“scratch[ed].” He also “lick[ed] . . . where [she] peed” and then “put [her] 

hand where [he] peed.” Nina felt pain “[w]here [she] pee[s].” Gomes then 

left the room. After the assault, Nina used the bathroom and “[i]t burnt 

1 We view the facts in the light most favorable to sustaining the 

judgment. State v. Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).

2 We use a pseudonym to protect the victim’s identity.
STATE v. GOMES

Decision of the Court

3

when [she] peed.” She did not experience this pain before Gomes entered

the room.

¶4 The next morning, Nina texted her grandmother that she was 

sick. Her grandmother retrieved Nina, and they went to the grandmother’s 

house. Later, Nina told her grandmother what had happened the previous 

night. Nina’s mother and aunt came to the house after her grandmother 

called them. Nina told them what had happened, and Nina’s mother called 

the police.

¶5 Following police department instructions, Nina placed her 

dance shorts in a plastic bag and took them to the police. Nina’s mother

drove her to a facility so a forensic nurse could examine her. The nurse 

examined Nina and swabbed DNA samples from her body. The nurse 

documented “redness” in the tissue in front of Nina’s hymen and labeled 

the finding “indeterminate.” At trial, the nurse testified that physiological

variations, poor hygiene, tight clothing, wiping, general irritation, rubbing, 

or trauma could cause the redness.

¶6 Meanwhile, a detective interviewed Gomes, took pictures of 

his hands, and swabbed his body for DNA samples. The detective collected 

Nina’s shirt worn when she spent the night at Gomes’s home. The police 

sent Nina’s dance shorts and Nina’s and Gomes’s body samples to the crime 

laboratory for testing.

¶7 The crime laboratory did not detect male DNA on Nina’s anal 

or vaginal swabs or vaginal aspirate. The laboratory detected small 

amounts of male DNA on Nina’s right-hand swabs and external genital 

swabs. Nina’s dance shorts tested positive for alpha-amylase, an enzyme

commonly found in saliva. The Y-STR DNA profile from a sample in the 

crotch area of Nina’s shorts matched Gomes’s profile at 23 of 23 loci, 

meaning Gomes and his paternal line could not be excluded. This specific 

profile “is not expected to occur more frequently than 1 in 499 Caucasian 

males[,] 1 in 441 African-American males[,] and 1 in 329 Hispanic males.”

The laboratory did not test Gomes’s body swabs based on their policy that 

they stop testing DNA samples when they get “comparable results” and 

can source DNA from a “specific individual.”

¶8 In 2018, a grand jury indicted Gomes on two counts of sexual 

conduct with a minor and two counts of child molestation. Gomes faced 

charges for “digital/anal penetration” (“Count 1”), “digital/vulva 

penetration” (“Count 2”), “penis touch” (“Count 3”), and “oral contact with 
STATE v. GOMES

Decision of the Court

4

Victim’s genitals” (“Count 4”). Gomes stood trial in 2019. The jury reached 

an impasse on all counts, causing a mistrial.

¶9 After the first trial, the State directed the crime laboratory to 

test Nina’s shirt the night the incident occurred. The shirt tested positive for 

saliva and sperm and negative for semen. The Y-STR DNA profile from the

saliva sample matched Gomes’s profile at 3 of 23 loci. Gomes and his 

paternal lineage could not be excluded from this result, and the profile is 

“not expected to occur more frequently than 1 in 29 African-American 

males[,] 1 in 103 Caucasian males[,] and 1 in 49 Hispanic males.”

¶10 Before the retrial, Gomes moved to exclude the new lab 

results, arguing that the saliva and sperm evidence from the shirt was

irrelevant and unfairly prejudicial. The superior court denied the motion, 

finding the evidence relevant to the State’s position that Gomes performed 

sexual acts with Nina while she wore the shirt. The superior court allowed

the defense to present its explanation for the shirt’s saliva and sperm to the 

jury. But the court found the probative value of the new DNA evidence was 

not substantially outweighed by undue prejudice.

¶11 Before the trial, Gomes objected to the COVID-19 policies in 

the Arizona Supreme Court Administrative Order 2020-197. The superior 

court found no constitutional violations. It rejected Gomes’s argument that 

the policy allowing automatic juror exclusion for any COVID-19 reason 

inhibited the jury from representing a fair cross-section of the community.

¶12 At the retrial, Gomes testified and conceded he went into the 

bedroom where Nina and his daughter slept that night but claimed he was 

only helping his daughter fall asleep. Gomes testified he sat near Nina to

lean over and soothe his daughter. He claimed he went into the room again

to comfort his daughter again. He explained that parts of the bed structure 

were loose, so when he stood up, he needed to shift Nina back on the bed 

to prevent her from falling. Additionally, Gomes confirmed he consumed 

three beers that afternoon and had three or four more alcoholic drinks 

during the evening and night.

¶13 Gomes moved for a Rule 20 judgment of acquittal on all four 

counts. The superior court granted the motion for Count 1 but denied the 

motion for Counts 2, 3, and 4. The jury returned a guilty verdict on Count 

2 and found Nina was under 12 and Gomes was over 18.

¶14 Gomes moved for a new trial, arguing the verdict 

contradicted the weight of the evidence, the prosecutor committed

misconduct, and a juror committed misconduct. Acknowledging the 
STATE v. GOMES

Decision of the Court

5

credibility of Nina’s testimony and that the defense never challenged the 

veracity of her statements, the court found the verdict was not contrary to 

the weight of the evidence. For each of the defense’s allegations of 

prosecutorial error, the superior court either found that the State’s actions 

did not rise to the level of error or, if an error occurred, it did not prejudice 

Gomes. The court likewise rejected the juror misconduct claim and

explained that even if juror misconduct occurred, the defense failed to show 

it prejudiced Gomes. Thus, the superior court denied the motion.

¶15 The superior court sentenced Gomes to life in prison with the 

possibility of release after 35 years. See A.R.S. § 13-705(B). Gomes appealed 

his conviction and sentence. We have jurisdiction under 

A.R.S. § 12-120.21(A)(1), § 13-4031, and § 13-4033(A).

DISCUSSION

A. The Trial Court Did Not Err by Denying Gomes’s Motion to 

Suppress the DNA Evidence.

¶16 On appeal, Gomes argues the court abused its discretion by 

allowing the State’s witness to testify that the crime laboratory found male 

DNA and sperm on the shirt Nina wore.

¶17 Evidence is relevant if “it has any tendency to make a fact 

more or less probable than it would be without the evidence” and “the fact 

is of consequence in determining the action.” Ariz. R. Evid. 401. A “court 

may exclude relevant evidence if its probative value is substantially 

outweighed by a danger of . . . unfair prejudice.” Ariz. R. Evid. 403. 

Evidence is unfairly prejudicial if it has “an undue tendency to suggest 

decision on an improper basis such as emotion, sympathy or horror.” State 

v. Schurz, 176 Ariz. 46, 52 (1993) (citation omitted). The trial court is in the 

best position to weigh the evidence and has broad discretion under Rule 

403. State v. Harrison, 195 Ariz. 28, 33, ¶ 21 (App. 1998).

¶18 At a pretrial hearing, the State’s expert confirmed the

laboratory found a few sperm on the shirt and a low male DNA level 

matching Gomes’s profile at 3 of 23 loci. Other locations were either 

inconclusive or lacked sufficient DNA to analyze the profile. The DNA 

findings tracked the analysis performed on Nina’s shorts.

¶19 Considering the low amount of sperm and male DNA, the 

State’s expert stated the lab results generally conflict with fresh ejaculate.

But the expert explained sperm could present on an item without coming 

from fresh ejaculate because sperm is sturdier than semen. Sperm can 
STATE v. GOMES

Decision of the Court

6

survive the washing machine and transfer among clothing articles. The 

expert testified it is not uncommon to have low levels of DNA in test results, 

and findings with low levels of DNA do not make the results unreliable.

Similarly, in a specimen with a low sperm rating, the fact that one of two 

samples did not detect male DNA does not invalidate the serology result. 

The laboratory assessed the sample for Y-STR rather than a full DNA profile 

because this sampling is more sensitive and more likely to obtain 

information from low DNA levels.

¶20 Gomes’s wife also testified at the evidentiary hearing. She 

confirmed she gave Nina the shirt to wear that night. She also verified that 

she did not wash the shirt after Nina wore it. Gomes’s wife testified the shirt 

was her favorite nightshirt, and she wore it almost every night, including 

during sexual encounters with her husband. Because the couple used the 

“pull-out method to prevent pregnancy,” the shirt was often exposed to 

Gomes’s ejaculate. She washed the shirt regularly, and it was clean before

she loaned it to Nina. Gomes’s wife also testified that she and Gomes had 

not had sex for a month before the incident.

¶21 Gomes did not present contradictory expert testimony. Nor 

was any evidence presented that another male besides Gomes could have 

left sperm on the shirt.

¶22 The superior court found the evidence relevant because 

although the laboratory detected few sperm and low levels of DNA, the 

testimony could still “support the state’s position that [Gomes] engaged in 

sexual acts with the child while she was in the bed and wearing the t-shirt 

in question.” The court acknowledged that the wife’s explanation for the 

presence of sperm on the shirt could “discount the state’s case and theory 

behind the allegations.” But the court found this was a factual dispute to be 

determined by the jury and that any prejudice did not substantially 

outweigh the probative value of the evidence.

¶23 On appeal, Gomes argues that the DNA profile results were 

irrelevant and unfairly prejudicial because they were “inconclusive.”

Although on 20 of 23 loci the laboratory findings were either inconclusive 

or insufficient material to analyze, the laboratory obtained findings at three 

loci. These findings were not inconclusive; they matched Gomes’s Y-STR

DNA profile. Because Nina wore the shirt that night, the DNA results made

it more probable that Gomes committed the sexual acts than if the Y-STR 

results excluded him. See Ariz. R. Evid. 401; State v. Escalante-Orozco, 241 

Ariz. 254, 275, ¶¶ 57–58 (2017), abrogated on other grounds by State v. Escalante, 

245 Ariz. 135 (2018).
STATE v. GOMES

Decision of the Court

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¶24 We cannot say that the DNA evidence unfairly prejudiced 

Gomes. The jury could consider that the profile matched only 3 of 23 loci. 

The expert explained anyone in Gomes’s paternal lineage would have this 

profile, including his son, who spent time with Nina. And the jury learned

the statistical analysis for the expectancy of this profile in other males in the 

population.3 Thus, the superior court did not abuse its discretion by finding 

that this information was not unfairly prejudicial and that the test results’ 

limits went to the weight of the evidence. See Escalante-Orozco, 241 Ariz. at 

274, ¶ 48 (A Y-STR DNA profile match at five loci was not unfairly 

prejudicial because “the jury could readily understand” the evidence’s 

limitations and “give the evidence whatever weight it deserved.”).

¶25 Gomes also asserts the superior court abused its discretion by 

allowing evidence that the laboratory detected sperm on the shirt. He 

rejects its relevance by emphasizing there was no semen on the shirt and 

only a few sperm, so it is more likely that the sperm presented from a prior 

sexual encounter with his wife. But the parties do not dispute that Nina 

wore the shirt that night. That the shirt contained sperm could make it more 

probable Gomes committed sexual acts with Nina than it would be without 

this evidence. See Ariz. R. Evid. 401. The jury also heard evidence and 

argument about the samples’ low levels of male DNA and the alternative 

explanations for why the sperm might have been on the shirt. See State v. 

Burns, 237 Ariz. 1, 17, ¶ 47 (2015) (Source uncertainty goes to the weight of 

the evidence, not its admissibility.).

¶26 Gomes also argues the mention of sperm on the shirt was 

“extraordinarily prejudicial and confusing to the jury.” “But not all harmful 

evidence is unfairly prejudicial.” Schurz, 176 Ariz. at 52. The jury learned of

the evidence’s limitations, such as the number of sperm found were few, 

the sperm could have been present from past sexual encounters with 

Gomes’s wife, and the sperm could survive the washing machine. The

evidence was not so prejudicial to drive the jury to decide guilt based on 

3 In his opening brief, Gomes claims the laboratory issued an 

amended report about the Y-STR statistics several months after the trial. He 

asserts the amended statistics make the match “even less significant than 

testified to at this hearing and ultimately at trial.” But the appellate record 

does not include the amended report. We thus cannot consider the issue. 

See State v. Rivera, 168 Ariz. 102, 103 (App. 1990). If Gomes believes the 

amended statistics would have changed his judgment, he can file for 

post-conviction relief. See Ariz. R. Crim. P. 32.1(e).
STATE v. GOMES

Decision of the Court

8

“emotion, sympathy or horror.” Id. The superior court did not abuse its 

discretion by finding this evidence relevant and not unfairly prejudicial.

¶27 Finally, Gomes argues he was prejudiced by the superior 

court’s denial of the motion to suppress. He points to the hung jury in his 

first trial, coupled with the conviction in the second trial, to claim the newly 

admitted evidence from the shirt unduly influenced the jury’s judgment in 

the second trial.

¶28 We do not know what evidence the jury used in either trial to 

support its findings. We cannot know whether the jury considered the 

laboratory’s findings from the shirt to convict Gomes on Count 2. See State 

v. Kolmann, 239 Ariz. 157, 161, ¶ 15 (2016) (“As a general rule, no one . . . has 

a ‘right to know’ . . . how a decision was reached by a jury or juror. The 

secrecy of deliberations is the cornerstone of [the] jury system.”) (quoting 

United States v. Thomas, 116 F.3d 606, 618 (2d Cir. 1997)). But the jury

convicted Gomes on only one count, which suggests the evidence did not 

unduly influence the jury. See State v. Herrera, 232 Ariz. 536, 548, ¶ 32 (App. 

2013). And, as explained above, the superior court did not abuse its 

discretion by admitting the evidence.

¶29 We find no reversible error.

B. The Trial Court Did Not Err by Denying Gomes’s Motion for a 

Rule 20 Judgment of Acquittal.

¶30 Gomes argues the record lacks sufficient evidence to warrant 

a conviction. In denying Gomes’s Rule 20 motion, the superior court found 

Nina’s and the forensic nurse’s testimonies contained substantial evidence 

to allow the jury to decide the case. We agree.

¶31 We review a sufficiency-of-the-evidence claim de novo. State v. 

West, 226 Ariz. 559, 562, ¶ 15 (2011). A court must enter a judgment of 

acquittal if there is “no substantial evidence to support a conviction.” Ariz. 

R. Crim. P. 20(a)(1). “Substantial evidence” is proof that “reasonable 

persons could accept as adequate and sufficient to support a conclusion of 

defendant’s guilt beyond a reasonable doubt.” State v. Jones, 125 Ariz. 417, 

419 (1980). “When reasonable minds may differ on inferences drawn from 

the facts, the case must be submitted to the jury, and the trial judge has no 

discretion to enter a judgment of acquittal.” State v. Lee, 189 Ariz. 590, 603 

(1997). The court cannot “re-weigh the facts or disregard inferences that 

might reasonably be drawn from the evidence.” West, 226 Ariz. at 563, ¶ 18.
STATE v. GOMES

Decision of the Court

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¶32 Gomes argues the record lacks sufficient evidence to convict 

him because Nina never specifically alleged penetration in her testimony.

To convict Gomes on Count 2, the jury had to find beyond a reasonable 

doubt that he “intentionally or knowingly engag[ed] in sexual intercourse 

or oral sexual contact with any person who is under eighteen years of age.” 

A.R.S. § 13-1405(A). “‘Sexual intercourse’ means penetration into the penis, 

vulva or anus by any part of the body.” A.R.S. § 13-1401(A)(4). Proof of 

vaginal penetration is not required to convict a defendant of sexual conduct 

with a minor. See State v. Marshall, 197 Ariz. 496, 506, ¶ 39 (App. 2000).

¶33 At trial, Nina testified Gomes “put his finger where [she] 

pee[s]” and “started scratching where [she] peed.” Nina said when Gomes 

touched her, she felt pain “[w]here [she] pee[s]” and that when she used the 

bathroom afterward, “[i]t burnt when [she] peed.” When examining Nina, 

the forensic nurse noted an “area of redness” in the “vestibule tissue,” 

which is a space “in front of the hymen, past the labia majora.” Based on 

the redness’s location, urine would pass over it, so the nurse stated Nina’s 

painful urination could relate to the redness.

¶34 The nurse confirmed that “vulva” means “all of the external 

genital parts of the girl,” including the urethra, the hymen, and the labia 

minora and majora. The nurse pointed to a diagram showing the labia, the 

urethra, the vestibule tissue between the labia minora and the hymen, the 

hymen and the vaginal opening. Because the labia surround the hymen and 

the urethra, and the labia are part of the vulva, someone must penetrate the 

vulva to reach the urethra. Gomes never disputed or contradicted the 

nurse’s expert testimony.

¶35 Although Nina did not specifically use the word “penetrate,” 

the jury could reasonably find that Gomes penetrated Nina based on her 

testimony combined with the nurse’s explanation. Even the “slightest 

penetration of the vulva” is still penetration. See State v. Scott, 105 Ariz. 109, 

110 (1969). Given Nina’s and the nurse’s testimony outlined above, the jury 

could reasonably infer that Gomes’s touching caused Nina’s pain and 

irritation. For this to happen, Gomes would have to pass through the labia 

to reach the vestibule area in front of the hymen. Because the labia are part 

of the vulva, and the jury could find Gomes passed through the labia, the 

evidence supports a finding of vulvar penetration.

¶36 Gomes argues it is unreasonable to infer that touching 

someone “where [they] pee” implies urethral penetration. But the 

penetration of the urethra is not required under the statute. See A.R.S.

§ 13-1401(A)(4). Penetration of the vulva is all that is necessary, and as 
STATE v. GOMES

Decision of the Court

10

explained, the jury could reasonably find that Gomes penetrated Nina’s 

vulva.

¶37 Gomes highlights that the nurse’s redness finding was 

indeterminate, and there were several possible explanations for the redness. 

But that the nurse’s finding was indeterminate does not mean she 

concluded no penetration occurred. The nurse could not say sexual assault 

caused the redness, but she also could not rule out sexual assault, as the 

redness could have been from trauma. It is not this court’s role to re-weigh 

the evidence or re-assess inferences drawn from it. Lee, 189 Ariz. at 603; 

West, 226 Ariz. at 563, ¶ 18. Considering Nina’s and the nurse’s testimonies,

substantial evidence established that a reasonable person could find Gomes 

guilty on Count 2. Thus, the superior court did not err by denying Gomes’s 

Rule 20 motion.

C. The State Did Not Commit Prosecutorial Error. 

¶38 Gomes contends that the State engaged in misconduct that 

deprived him of a fair trial. Prosecutorial error occurs where the 

prosecutor’s conduct “so infected the trial with unfairness as to make the 

resulting conviction a denial of due process.” State v. Morris, 215 Ariz. 324, 

335, ¶ 46 (2007) (quoting State v. Hughes, 193 Ariz. 72, 79, ¶ 26 (1998)). We 

will reverse a conviction if the appellant shows that 1) an error occurred 

and 2) there is a reasonable likelihood that the error could have affected the 

jury’s verdict. Id.

¶39 Gomes alleges several instances of error on appeal. We review 

each allegation individually and conclude that each time, either the State 

did not err or any alleged error did not prejudice Gomes. Moreover, the

cumulative effect of the State’s actions did not deprive Gomes of a fair trial.

1. The State Followed the Superior Court’s Evidentiary 

Ruling.

¶40 Before the trial, the superior court ruled that neither party 

could “elicit testimony regarding [Gomes] proposing sex to his wife and/or 

her rejection of his offer when he went to bed.” But the court allowed the 

parties to ask witnesses about the timeline and “context of [Gomes] getting 

into bed, waking up his wife, and what happened thereafter.” Gomes 

asserts the State’s cross-examination of Gomes’s wife “skirt[ed]” the 

superior court’s evidentiary ruling.

¶41 At trial, the State asked Gomes’s wife, “[Y]ou made it sound 

kind of like when he comes in to wake you up that he is just getting in bed, 
STATE v. GOMES

Decision of the Court

11

but he . . . actually is coming in to wake you up; is that fair to say?” The 

defense objected, citing the court’s ruling. The State clarified it sought to 

show that Gomes was intoxicated that night, and the defense responded,

“[T]hat’s okay to say.” Later, the State asked Gomes’s wife, “And is it fair 

to say . . . that he probably might have been a little drunk to have maybe 

not thought twice before trying to wake you up at 1:30?” Gomes did not 

object.

¶42 The jury later asked about Gomes’s motive for waking up his 

wife. Jurors requested that the court ask Gomes’s wife whether he was 

trying to do anything sexually. The defense objected to these questions.

Although the superior court disagreed with Gomes’s objection and thought 

“it’s a natural question by a juror to wonder . . . why [Gomes] woke her up,” 

the court did not ask the witness any of the jury’s questions.

¶43 Gomes asserts that the State deliberately implied that Gomes 

“proposed or attempted to initiate sex with his wife” and that “he was 

rebuffed.” Gomes argues the jurors’ questions show the State’s questioning 

successfully implied he had a sexual motive for waking up his wife.

¶44 The State’s cross-examination did not violate the superior 

court’s ruling on the motion in limine. The superior court ruled that the 

parties could ask witnesses about Gomes going to bed and waking up his 

wife. The State asked just that. The State clarified it sought to show Gomes 

was intoxicated, and the defense approved. The jury’s curiosity about 

Gomes’s intentions does not mean the State suggested he had a sexual 

motive. The State’s questioning was not improper.

¶45 Even if the State erred, there is no “reasonable likelihood” that 

the error could have affected the jury’s verdict. Morris, 215 Ariz. at 335, ¶ 46. 

Because the superior court did not ask the jury questions, the witness never 

spoke about Gomes’s motive for waking her up. And the superior court 

instructed the jury they “should not guess about any fact.” We presume the 

jury followed these instructions. Id. at 337, ¶ 55. Thus, Gomes fails to show 

the State committed prosecutorial error warranting reversal.

2. Gomes Fails to Show the State’s Comments and Gestures

During Trial Were Improper. 

¶46 Gomes asserts the State made “repeated argumentative 

comments” during cross-examination of the defense witnesses. Gomes says 

the State often commented on the witness’s answers before asking 

additional questions. For example, the State followed Gomes’s testimony

about how he saw Nina eating a waffle by saying, “Interesting way to hold 
STATE v. GOMES

Decision of the Court

12

a waffle, right.” He cites other instances when the prosecutor commented

during cross-examination. He also argues the State made “numerous facial 

expressions and hand gestures during testimony of the defense expert, the 

defendant, and the defense’s closing argument.”

¶47 The defense never objected to these comments, gestures, or 

facial expressions before the superior court, so we review them for 

fundamental error. Morris, 215 Ariz. at 335, ¶ 47. First, we determine 

whether the State erred. State v. Murray, 250 Ariz. 543, 548, ¶ 14 (2021). If a 

trial error occurred, we then decide whether the error is fundamental. Id. 

The defendant must also prove prejudice by showing that a reasonable jury 

could have reached a different result without the error. Escalante, 245 Ariz. 

at 144, ¶ 29.

¶48 Gomes identifies no record evidence of the prosecutor’s facial 

expressions or hand gestures. Thus, we cannot assess whether the State 

erred. See State v. Zuck, 134 Ariz. 509, 513 (1982) (If there is no record to 

consider, we cannot review the claim’s merits.). Gomes also fails to show 

how the State’s alleged expressions and hand gestures prejudiced the jury. 

See State v. Martin, 225 Ariz. 162, 166, ¶ 15 (App. 2010) (“Speculative 

prejudice is insufficient under fundamental error review.”).

¶49 As for the prosecutor’s comments, Gomes fails to explain how 

they affected the outcome of his trial. And the superior court cured any 

potential error by instructing the jury that “[w]hat the lawyers said or say 

is not evidence.” See Morris, 215 Ariz. at 337, ¶ 55 (“Even if the prosecutor’s 

comments were improper, the judge’s instructions negated their effect.”).

As a result, Gomes fails to prove error occurred, much less fundamental, 

prejudicial error.

3. The State Did Not Elicit False Testimony.

¶50 Gomes argues the State improperly elicited testimony from 

Nina’s grandmother that the State knew was “provably false.”

¶51 During rebuttal, the State asked Nina’s grandmother if 

Gomes was acting unusual on the day of the incident when she arrived at 

the house to pick up Nina. The State also asked Nina’s grandmother what 

time she called Gomes’s wife, and she responded that she called around 

noon. The State then asked if she had received a phone call from Gomes 

about their library plans that week, and Nina’s grandmother confirmed he 

called her around 1:30 p.m.
STATE v. GOMES

Decision of the Court

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¶52 When cross-examining Nina’s grandmother, the defense 

asked about Gomes’s 1:30 p.m. phone call. The defense asked Nina’s 

grandmother whether a phone call from Gomes to his wife was “made after 

the calls to [her].” The superior court sustained objections to the defense’s 

questions because it was suggested that the witness read directly from

phone records not admitted into evidence.

¶53 Gomes claims Nina’s grandmother testified that Gomes 

called her after learning about the allegations against him, and the State 

knew this was false. When answering the State’s questions, Nina’s 

grandmother never testified that Gomes called her after learning about the 

allegations. The State asked Nina’s grandmother what time Gomes called 

her, not when he knew about the allegations. Only the defense asked about 

the timing of Gomes’s phone conversation with his wife, and this prompted 

the grandmother to suggest that Gomes called her after talking to his wife

and learning about the allegations. If it was error, the defense invited it. See 

State v. Logan, 200 Ariz. 564, 565–66, ¶ 9 (2001) (“[W]e will not find 

reversible error when the party complaining of it invited the error.”). The

State did not err when it questioned Nina’s grandmother.

4. The State’s Closing Arguments Were Not Improper.

¶54 Gomes asserts that during closing arguments, the State made 

improper arguments that 1) “impugned the integrity of the defense,”

2) vouched for the victim and intentionally evoked an emotional response, 

3) implied facts not in evidence, 4) shifted the burden of proof to the 

defense, and 5) implied the jury had a duty to convict Gomes. We conclude 

the State did not err.

¶55 Prosecutors have “wide latitude” when presenting closing 

arguments to the jury. State v. Comer, 165 Ariz. 413, 426 (1990). In closing

arguments, attorneys can summarize the evidence, ask the jury to draw 

reasonable inferences from the evidence, and suggest conclusions. State v. 

Goudeau, 239 Ariz. 421, 466, ¶ 196 (2016). Courts “look[] at the context in 

which the statements were made as well as ‘the entire record and to the 

totality of the circumstances.’” State v. Nelson, 229 Ariz. 180, 189, ¶ 39 (2012)

(quoting State v. Rutledge, 205 Ariz. 7, 13, ¶ 33 (2003)).

i. The State Did Not Impugn the Defense Counsel’s 

Integrity.

¶56 During rebuttal closing arguments, the State said the defense 

did not fulfill its opening statements’ promises, had a “shotguneverything” approach, and called the defense’s theories “nonsense” and 
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“distractions.” Gomes argues these statements and many others impugned 

his counsel’s integrity.

¶57 Impugning opposing counsel’s honesty or integrity is 

improper. Hughes, 193 Ariz. at 86, ¶ 59. But the State did not attack the 

defense counsel’s honesty or integrity. Rather, the State criticized the 

defense’s strategy, a “proper subject of closing argument.” State v. Ramos, 

235 Ariz. 230, 238, ¶ 25 (App. 2014) (“Although some of the prosecutor’s 

comments suggested that defense counsel was attempting to mislead the 

jury, we cannot say that those statements did more than criticize defense 

tactics.”). The superior court also instructed the jury that what the attorneys 

“said or say is not evidence” and that sympathy or prejudice could not 

influence their verdict. Because we assume the jurors followed these 

instructions, no error occurred. Morris, 215 Ariz. at 337, ¶ 55.

ii. The State Did Not Vouch for the Victim or Improperly 

Appeal to the Jury’s Emotions.

¶58 Gomes contends the State “engaged in improper argument by 

vouching for the victim and making comments solely intending to evoke 

an emotional response.” Gomes points to three passages in the State’s

closing arguments. First, the State said Nina “was on the stand for a while 

and was attacked for a while,” and “the only things that defense could bring 

up” were questioning her about the cracked bedroom door and Nina’s

identification of Gomes. Second, the State argued, “[The defense is] not 

saying [Nina] lied because, perhaps, her testimony [was] so credible . . . but 

he is saying that she was lying, because [Nina] said this was not a dream.”

The State said, “either [Nina] got up there and told you all the truth,” or the 

defense’s “shotgun-everything approach” is true. Third, when discussing 

that the laboratory did not test Gomes’s body swab samples, the State told 

the jury they should not hold the lab’s procedure against Nina and that 

“anyone could have tested those samples.” Because Gomes did not object 

at trial, we review these statements for fundamental error. Morris, 215 Ariz. 

at 335, ¶ 47.

¶59 Counsel impermissibly vouches for a witness when they 

personally assure a “witness’s veracity” or “bolster a witness’s credibility 

by reference to matters outside the record.” State v. King, 180 Ariz. 268, 277 

(1994) (quoting United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980)). 

Although the State did say Nina’s “testimony was so credible” in their 

closing arguments, the prosecutor did not personally vouch for Nina’s 

credibility. The State used the phrase to highlight that the defense never 

challenged the truth of Nina’s statements and instead said she dreamt of 
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the incident. Rather than assuring the jury that Nina told the truth, the State

said the jury had to decide whether Nina “told [them] the truth.”

¶60 Nor did the State vouch for Nina’s credibility by saying the 

jury should not hold the lack of testing on Gomes’s body samples against 

her. Instead, it refuted the defense’s argument that the “State never tested” 

the samples. See State v. Alvarez, 145 Ariz. 370, 373 (1985) (“Prosecutorial 

comments which are a fair rebuttal to areas opened by the defense are 

proper.”). Nor did the State refer to matters outside the record. Because the 

State did not impermissibly vouch for Nina, the State did not err.

¶61 Counsel improperly appeals to the jury’s emotions when their 

statements “urge the jury ‘to convict [the] defendant for reasons wholly 

irrelevant to his own guilt or innocence.’” State v. Acuna Valenzuela, 245 

Ariz. 197, 222, ¶ 109 (2018) (quoting State v. Herrera, 174 Ariz. 387, 397

(1993)). “We encourage jurors not to decide cases based on emotion or 

sympathy.” State v. Moody, 208 Ariz. 424, 461, ¶ 156 (2004). None of the 

passages cited by Gomes urge or even imply that the jury should convict 

Gomes for reasons other than his guilt. Thus, we find no error.

iii. The State Did Not Imply Facts Not in Evidence.

¶62 Gomes argues the State “implied facts not in evidence” by 

showing the jurors a PowerPoint slide that contained the word 

“[c]onfession.” He asserts the slide unduly prejudiced the jury by 

suggesting Gomes confessed, even though he did not. When the State 

presented this slide, Gomes objected. The court sustained the objection and 

instructed the State to clarify that Gomes did not confess. The State 

continued its closing argument and said a signed confession “doesn’t exist 

here, but that cannot be the standard that someone could get away with 

this.” Because the State clarified that Gomes did not confess, there is no 

“reasonable likelihood” that the slide affected the jury’s verdict. Morris, 215 

Ariz. at 335, ¶ 46.

iv. The State Did Not Shift the Burden of Proof to Gomes.

¶63 Gomes claims the State “improperly place[d] the burden of 

proof on the defendant” when the State questioned a witness about why 

the crime laboratory did not test Gomes’s body samples and argued in 

closing that “anyone could have tested those samples.” The prosecution 

cannot shift its burden of persuasion to the defense. See Sandstrom v. 

Montana, 442 U.S. 510, 524 (1979). That said, the prosecution can ask 

questions about a party’s ability to test or examine the evidence, even if this

supports an inference that the evidence would be unfavorable to him. See 
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State v. Vargas, 251 Ariz. 157, 177, ¶ 72 (App. 2021); State v. Lehr, 201 Ariz. 

509, 522, ¶¶ 55–57 (2002).

¶64 Also, the State can “comment on the defendant’s failure to 

present exculpatory evidence.” State ex. rel. McDougall v. Corcoran, 153 Ariz. 

157, 160 (1987) (The prosecution’s remarks in closing arguments that the 

defendant chose not to test a breath sample were “simply comments 

designed to draw reasonable inferences based on [the defendant’s] failure 

to present [potentially exculpatory] evidence.”). The State’s actions were 

not improper. And because the superior court instructed the jury to 

disregard this comment, there is no “reasonable likelihood” that the 

comment affected the jury’s verdict. Morris, 215 Ariz. at 335, ¶ 46. We find 

no error.

v. The State Did Not Say the Jury Had a Duty to Convict 

Gomes.

¶65 Gomes asserts the State “improperly argued the jury had a

duty to convict.” In closing, the State told the jury, “[I]t is your duty as 

jurors . . . to apply the law to the evidence” and, “[J]ustice requires that you 

return a verdict of guilty.” Because Gomes did not object at trial, we review 

these statements for fundamental error. Morris, 215 Ariz. at 335, ¶ 47.

¶66 Here, the State did not say that the jury had a duty to convict 

but that 1) the jury had a duty to apply the law to the evidence and 2) justice 

requires a guilty verdict. Prosecutors have “wide latitude in presenting 

their closing arguments.” Herrera, 174 Ariz. at 396. We cannot say that the 

State’s comments were so improper that they unduly prejudiced Gomes, 

especially considering the jury instruction that what attorneys “said or say 

is not evidence.” Even if the statements were inappropriate, Gomes fails to 

demonstrate the prejudice necessary to show the State committed 

fundamental error.

5. The Effect of the State’s Actions Did Not Deprive Gomes of 

a Fair Trial.

¶67 Gomes contends the State’s actions taken “as a whole” 

warrant a new trial. Even if prosecutorial error by itself does not warrant 

reversal, it may “contribute to a finding of persistent and pervasive 

misconduct if the cumulative effect of the incidents shows that the 

prosecutor intentionally engaged in improper conduct . . . ‘to prejudice the 

defendant.’” Morris, 215 Ariz. at 335, ¶ 47 (quoting State v. Roque, 213 Ariz. 

193, 228, ¶ 155 (2006), abrogated on other grounds by Escalante-Orozco, 241 

Ariz. at 267).
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¶68 “Absent any finding of misconduct, there can be no 

cumulative effect of misconduct sufficient to permeate the entire 

atmosphere of the trial with unfairness.” State v. Bocharski, 218 Ariz. 476, 

492, ¶ 75 (2008). Because the State did not commit prosecutorial error, and 

Gomes failed to show how the State’s actions cumulatively affected his trial, 

Gomes’s trial was not so infected with unfairness that he was denied due 

process. See Morris, 215 Ariz. at 335, ¶ 46.

D. The Trial Court Did Not Err by Denying Gomes’s Motion for a 

New Trial.

¶69 Gomes argues the superior court abused its discretion by 

denying his motion for a new trial because the guilty verdict conflicted with

the weight of the evidence, a juror committed misconduct, and the State 

committed misconduct. We will not disturb a trial court’s ruling on a 

motion for a new trial absent an abuse of discretion. State v. Gulbrandson, 

184 Ariz. 46, 60 (1995). The trial court can grant a new trial if the verdict 

contradicts the weight of the evidence, the State is guilty of misconduct, or 

a juror committed misconduct. Ariz. R. Crim. P. 24.1(c).

1. The Superior Court Did Not Abuse Its Discretion by 

Finding the Verdict Was Not Contrary to the Weight of the 

Evidence. 

¶70 Gomes argues “the evidence presented at this trial was 

insufficient to support a guilty verdict.” Gomes asserts that because Nina 

never specifically alleged penetration and the forensic nurse’s findings 

were indeterminate, his guilty verdict conflicts with the weight of the 

evidence.

¶71 Appellate courts will “defer to the factual findings of the jury 

and generally will not set aside the verdict unless no evidence supports it.” 

State v. Fischer, 242 Ariz. 44, 49, ¶ 15 (2017). On a motion for a new trial, the 

“trial court may weigh the evidence and make its own determination of the 

credibility of the witnesses.” Id. at 49, ¶ 17. “To set aside a jury verdict for 

insufficient evidence, it must clearly appear that upon no hypothesis 

whatever is there sufficient evidence to support the conclusion reached by 

the jury.” State v. Arredondo, 155 Ariz. 314, 316 (1987).

¶72 The superior court ruled the record supported the verdict and 

was not contrary to the weight of the evidence. The superior court found 

Nina’s testimony credible, emphasizing that the defense never challenged 

the truth of her statements. Rather, the defense’s theory was Nina genuinely 

believed Gomes sexually assaulted her but that she dreamt the incident. The 
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superior court found Nina’s testimony sufficient to support the jury’s 

finding that a crime occurred.

¶73 We defer to the superior court’s findings on witness 

credibility. See Fischer, 242 Ariz. at 50, ¶ 21. And as discussed, Nina’s 

testimony and the forensic nurse’s findings supported the jury’s verdict.

¶74 Gomes points to the hung jury in his first trial to show that

the verdict in the second trial deviated from the weight of the evidence. But 

the superior court explained, “there are many reasons why the outcome of 

one trial is different than another.” The superior court did not abuse its 

discretion by denying Gomes’s motion for a new trial.

2. The Superior Court Did Not Abuse Its Discretion by 

Denying Gomes’s Motion Based on Juror Misconduct. 

¶75 Gomes argues the superior court erred by denying his motion 

for a new trial because a juror’s misconduct prejudiced his defense. He 

asserts a jury member willfully failed to reveal he was an attorney and 

worked at a law firm that practiced child sexual abuse litigation. Gomes 

also claims he would have exercised a peremptory strike if the juror had 

revealed he was a personal injury attorney.

¶76 A juror commits misconduct by “willfully failing to respond 

fully to a direct question posed during the voir dire examination.” Ariz. R. 

Crim. P. 24.1(c)(3)(C). “Juror misconduct warrants a new trial only if ‘the 

defense shows actual prejudice or if prejudice may be fairly presumed from 

the facts.’” State v. Davolt, 207 Ariz. 191, 208, ¶ 58 (2004) (emphasis omitted) 

(quoting State v. Miller, 178 Ariz. 555, 558 (1994)).

¶77 During voir dire, when asked about his background, the juror 

said, “I’m self-employed. I own several businesses. . . . The type of work I 

do is, one, a law firm, and the other is residential real estate.” The State 

asked about “the nature of the law firm” and what kind of cases it handled. 

The juror responded, “So like personal injury, wrongful death, some 

bankruptcy and contract law.” Neither party followed up with the juror 

about his employment.

¶78 The superior court found that “the juror did not fail to inform 

the lawyers or the court of his areas of employment.” The court reasoned 

the juror “could have shared more information” but that he did disclose his 

occupation, and neither party took the opportunity to follow up with him.

The court found the defense’s position that they would have exercised a 

peremptory strike “dubious” because the juror did inform them that the 
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firm practiced personal injury law. The superior court found no prejudice 

to Gomes. It reasoned that even if the law firm practiced sexual abuse 

litigation, Gomes failed to provide evidence that the juror performed that 

work or that he could not be fair and impartial if he did.

¶79 The superior court did not abuse its discretion by finding the 

juror’s actions did not rise to the level of misconduct. The juror did tell the 

parties he owned businesses and “[t]he type of work [he did] is . . . a law 

firm.” When asked, he disclosed the firm handled personal injury cases.

That said, Gomes did not follow up with the juror to clarify the juror’s role 

with the law firm.

¶80 Gomes offered no evidence that the juror practiced sexual 

abuse litigation and failed to explain why the juror would not have been 

fair or impartial. Knowing the juror worked in some capacity with a law 

firm that handled personal injury cases, the defense could have asked 

follow-up questions but chose not to do so. As a result, the superior court 

did not abuse its discretion by rejecting Gomes’s jury misconduct claim.

3. The Superior Court Did Not Abuse Its Discretion by

Finding the State Did Not Commit a Brady Violation.

¶81 Gomes argues that “a new trial should have been ordered” 

because “a serious Brady violation occurred.” After the trial, the State 

disclosed a report containing three allegations of misconduct “sustained” 

against a crime scene technician who participated in Gomes’s investigation. 

This employee impounded evidence and took photographs throughout 

Gomes’s home while the police executed a search warrant. The attorneys 

used the pictures at trial to establish the layout of Gomes’s home, the 

appearance of Gomes’s hands, and what Gomes and Nina wore that day.

The employee did not testify at trial, as other witnesses laid the foundation 

for the photographs.

¶82 In his motion for a new trial, Gomes argued the State violated 

Brady v. Maryland, 373 U.S. 83 (1963) when it disclosed information about 

the crime lab employee only after the verdict. The superior court found the 

State did not err because Gomes “failed to establish that potential 

cross-examination of [the specialist] would have changed the outcome in 

this matter,” and the information “would have played no role in the guilty 

verdict.”

¶83 On appeal, Gomes argues a new trial was warranted because 

if he had known about the internal affairs report, the defense would have 

called the employee as a witness. “Under Brady, the State violates a 
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defendant’s right to due process if it withholds evidence that is favorable to 

the defense and material to the defendant’s guilt or punishment.” Smith v. 

Cain, 565 U.S. 73, 75 (2012). Evidence is material if there is a reasonable 

probability that the outcome would have been different had the evidence 

been disclosed. Id. A reasonable probability exists where “the likelihood of 

a different result is great enough to ‘undermine[] confidence in the outcome 

of the trial.’” Id. at 75–76 (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). 

“The test for a Brady violation is whether the undisclosed material would 

have created a reasonable doubt had it been presented to the jury.” State v. 

Montano, 204 Ariz. 413, 424, ¶ 52 (2003) (quoting State v. Dumaine, 162 Ariz.

392, 405 (1989)). 

¶84 Gomes fails to show the internal affairs report was material or 

exculpatory. At trial, neither party disputed what clothes the parties wore, 

the home layout, or the accuracy of the photographs. Other witnesses 

established these facts through their testimony. Having the employee 

testify and raising her past misconduct would not have impacted the 

verdict. Thus, there is no reasonable probability that impeaching the 

employee’s credibility would have created reasonable doubt or 

undermined the trial’s outcome. See Smith, 565 U.S. at 75; Montano, 204 Ariz. 

at 424, ¶ 52. Because the evidence is not material or exculpatory, the 

superior court did not abuse its discretion by denying Gomes’s motion.

¶85 Finally, as discussed, the State did not commit prosecutorial 

error. We, therefore, hold the superior court did not abuse its discretion by 

denying Gomes’s motion for a new trial.

E. The Superior Court Did Not Err by Denying Gomes’s Objection to 

Administrative Order 2020-197.

¶86 Before trial, Gomes challenged COVID-19 restrictions in

Administrative Order 2020-197. He objected to three provisions that 

1) suspended the right to a change of judge, 2) limited parties to two 

peremptory strikes, and 3) gave the trial court discretion to require masks. 

The superior court overruled his objections. On appeal, Gomes argues that 

the provisions mentioned above from the administrative order violated his 

due process rights and his right to a fair trial. He also contends that because 

of the COVID-19 pandemic, the jury did not represent a fair cross-section 

of the community. This court reviews constitutional issues de novo. State v. 

Carlson, 237 Ariz. 381, 398, ¶ 64 (2015). 

¶87 Gomes argues the administrative order arbitrarily modified 

rules suspending the right to change judges and limiting parties to two 
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peremptory strikes. But defendants do not have constitutional rights to 

peremptory challenges or to be heard by a particular judge. Ross v. 

Oklahoma, 487 U.S. 81, 88–89 (1988); State v. Reid, 114 Ariz. 16, 21 (1976). 

Gomes’s claim that the jurors “did not represent a fair cross-section of the 

community” also fails because he offered no evidence that any group was 

excluded or underrepresented “due to systematic exclusion.” See State v. 

Murray, 184 Ariz. 9, 23 (1995).

¶88 Gomes also argues that the court’s mask requirement 

deprived him of a fair trial because the jury could not assess the witnesses’

credibility, and his counsel could not effectively advocate for him while 

masked. Gomes fails to point to any portion of the record that shows the 

court’s masking and social-distancing policies affected his trial. See Zuck, 

134 Ariz. at 513 (“Where matters are not included in the record on appeal, 

the missing portions of the record will be presumed to support the action 

of the trial court.”). Many courts during the COVID-19 pandemic agreed 

that mask requirements and other related social-distancing policies did not 

deprive defendants of fair trials. See, e.g., United States v. James, No. CR-19-

08019-001-PCT-DLR, 2020 WL 6081501, at *2 (D. Ariz. Oct. 5, 2020) (“[T]he 

mask requirement does not significantly obstruct the ability to observe 

demeanor.”). The superior court acted within its discretion when enforcing 

masking and social-distancing measures to prevent the spread of COVID19. See also Gamboa v. Metzler, 223 Ariz. 399, 402, ¶ 13 (App. 2010) (Trial 

courts have “broad discretion over the management of a trial.”).

¶89 The administrative order did not violate Gomes’s

constitutional rights.

CONCLUSION

¶90 We affirm.