IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

JUSTIN ALEXANDER COPELAND,

Appellant.

No. 2 CA-CR 2019-0229

Filed April 1, 2022

Appeal from the Superior Court in Cochise County

No. CR201800252

The Honorable Wallace R. Hoggatt, Judge

The Honorable Laura Cardinal, Judge

VACATED AND REMANDED

COUNSEL

Mark Brnovich, Arizona Attorney General

Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals

By Kathryn A. Damstra, Assistant Attorney General, Tucson

Counsel for Appellee

Cochise County Office of the Legal Advocate

By Xochitl Orozco, Legal Advocate, Bisbee

Counsel for Appellant
STATE v. COPELAND

Opinion of the Court 

2

OPINION

Presiding Judge Espinosa authored the opinion of the Court, in which Vice 

Chief Judge Staring and Judge Eckerstrom concurred.

E S P I N O S A, Presiding Judge:

¶1 Justin Copeland appeals from his convictions and sentences 

for fifty counts of child molestation, challenging the trial court’s denial of 

his motion to dismiss the indictment for lack of specificity and certain of its 

evidentiary rulings. Copeland further contends there was fundamental 

error due to prosecutorial misconduct and because the court imposed

multiple assessments at sentencing. Although we conclude under the 

circumstances of this case, involving a young victim and an alleged resident

child molester,

1 that the indictment was sufficient for purposes of due 

process, because we cannot say the verdicts were not influenced by 

inadmissible hearsay evidence, we vacate the convictions and resulting 

sentences and remand to the trial court for a new trial or further 

proceedings consistent with this opinion.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to 

upholding the jury’s verdicts, resolving all reasonable inferences against 

Copeland. See State v. Gill, 248 Ariz. 274, ¶ 2 (App. 2020). When R.H. was 

four years old, her mother married Copeland. At some point, he began 

touching R.H.’s “private parts” over her clothing “once a week or more”

while her mother was busy. In June 2016, when R.H. was eleven, the family 

moved to Sierra Vista. Copeland continued to touch R.H. over and 

sometimes under her clothing—“mostly in the hallway” in an area not 

readily visible, and sometimes in Copeland’s or R.H.’s bedroom. R.H. 

recounted this had happened numerous times while they lived in Sierra 

Vista. Copeland had instructed R.H. not to tell anyone and on some 

 

1Resident child molesters have been defined as “defendants who 

have regular access to and control over children whom they sexually abuse 

in secrecy for long periods of time.” State v. Lente, 453 P.3d 416, ¶ 1 (N.M. 

2019). 
STATE v. COPELAND

Opinion of the Court 

3

occasions told her to stop him if she was uncomfortable with what he was 

doing. 

¶3 In September 2017, Copeland and R.H.’s mother separated, 

and she and R.H. moved away. In November, R.H.’s physical education 

(PE) teacher noticed she was “not her usual self.” When she broached the 

subject, R.H. started crying and then said that her stepfather “had touched 

her in the wrong way,” more than once, gesturing towards her breasts and 

genitals. R.H. was taken to the school counselor’s office where she told the 

counselor that her stepfather “had been touching her” in “[t]he way a man 

shows that he loves a woman.” The counselor reported R.H.’s statements

to police. 

¶4 Later that day, a forensic interviewer spoke with R.H., 

observed by the lead detective assigned to the case. The following day, 

Copeland sent a friend a photograph of himself with a gun to his head and 

told her “he wanted to end it all” and “didn’t want to go to jail or prison.” 

When his friend asked why he would go to prison, Copeland responded 

that he had been “f- - - ing around with” R.H. Copeland’s friend later 

elaborated that, from the context of the conversation, she understood it to 

mean Copeland had engaged in conduct of a sexual nature with R.H. The 

friend contacted R.H.’s mother who telephoned the police. When officers 

went to Copeland’s house, he was upset and intoxicated. Copeland 

repeatedly told them “he was going to go to jail” because he had been 

accused of assaulting his stepdaughter. In the course of the conversation

with one officer, Copeland kept “going back and forth,” saying that he 

“might be a sex offender” and it “might have been sexual” but also denying

that he could behave in such a way. 

¶5 Copeland was taken to the hospital, where he confided in 

another friend that when he was drinking, he would sometimes “wake up 

on top of” R.H. He also told his friend that “whenever he was drinking” he 

“touched [R.H.],” which his friend testified he understood to mean that 

Copeland had “repeatedly” touched R.H. “[i]nappropriate[ly],” “in places 

you shouldn’t touch a child.”

¶6 Copeland was charged with fifty counts of child molestation 

occurring in 2016 and 2017 and one count of continuous sexual abuse, 

charged in the alternative. On the state’s motion, the trial court dismissed 

the continuous sexual abuse count with prejudice, and the jury found 

Copeland guilty of the remaining fifty charges. The court subsequently

sentenced him to a combination of consecutive and concurrent sentences 

totaling thirty-four years’ imprisonment and imposed a Dangerous Crimes
STATE v. COPELAND

Opinion of the Court 

4

Against Children Assessment of $500 per offense, for a total of $25,000. We 

have jurisdiction over Copeland’s appeal pursuant to A.R.S. §§ 12-

120.21(A)(1), 13-4031, and 13-4033(A)(1). 

Motion to Dismiss Indictment

¶7 As noted above, the indictment charged Copeland with fifty 

counts of molestation of a child and one count of continuous sexual abuse

of a child.

2 Count one stated,

On or between June, 2016 and December, 2017 

Justin Alexander Copeland intentionally or 

knowingly engaged in sexual contact with a 

person who was under fifteen years of age, to 

wit: R.H., the first time, in violation of A.R.S. 

§§ 13-1410(A)(B), 13-1401, 13-105, 13-701, 13-

702, 13-703, 13-705(D), and 13-801, a class 2 

felony. 

The remaining forty-nine molestation counts were worded the same, except 

each specified an increasing numerical designation from “the second time” 

to “the fiftieth time.” Before trial, Copeland moved to dismiss the 

indictment, arguing it was duplicitous because each count may have 

charged more than one act based on R.H.’s statement that she had been 

abused an average of twice per week over a period of seventy-eight weeks.3

He also asserted the indictment’s “imprecision” put him “in the untenable 

position of having to defend against some unknown act on some unknown 

date” because it failed to describe the specific acts and dates of the alleged 

offenses. The trial court denied Copeland’s motion, stating, “Arizona law 

doesn’t recognize a motion for a bill of particulars.” Copeland maintains 

the court erred because the Sixth Amendment and Rule 13.1(a), Ariz. R. 

 

2The trial court granted the state’s motion to amend the continuous 

sexual abuse charge as an alternative to the fifty molestation charges, 

following Copeland’s first motion to dismiss. 

3Copeland has not meaningfully raised this argument on appeal, 

merely referring to the duplicity holding of Spencer v. Coconino County, 136 

Ariz. 608 (1988). Any argument as to duplicity is therefore waived. See 

State v. Vargas, 249 Ariz. 186, ¶ 22 (2020) (when appellant fails to properly 

develop argument, court may consider it abandoned and waived). 
STATE v. COPELAND

Opinion of the Court 

5

Crim. P., entitled him to “more notice and specificity” of the charges. And 

he additionally urges, for the first time on appeal, that the state was 

restricted to prosecuting him only for continuous sexual abuse of a child. 

We will not disturb a court’s ruling on a motion to dismiss an indictment 

absent an abuse of discretion. State v. Ramsey, 211 Ariz. 529, ¶ 5 (App. 2005). 

“An error of law constitutes an abuse of discretion.” State v. Maciel, 240 

Ariz. 46, ¶ 9 (2016).

Notice of Charges

¶8 The Sixth Amendment provides, in relevant part, “In all 

criminal prosecutions, the accused shall enjoy the right . . . to be informed 

of the nature and cause of the accusation.” U.S. Const. amend. VI. Rule 

13.1(a), Ariz. R. Crim. P., defines an indictment as “a plain, concise 

statement of the facts sufficiently definite to inform the defendant of a 

charged offense.” “An indictment is legally sufficient if it informs the 

defendant of the essential elements of the charge, is definite enough to 

permit the defendant to prepare a defense against the charge, and affords 

the defendant protection from subsequent prosecution for the same 

offense.” State v. Far W. Water & Sewer Inc., 224 Ariz. 173, ¶ 36 (App. 2010). 

In determining sufficiency, “the indictment ‘must be read in the light of the 

facts known by both parties.’” Id. (quoting State v. Magana, 178 Ariz. 416, 

418 (App. 1994)).

¶9 Our research has revealed no Arizona precedent specifically 

addressing the sufficiency of an indictment in which a resident child 

molester was charged with multiple counts of child molestation in the 

manner presented here. But in an unpublished decision, we reviewed a 

similar situation in which the appellant had been charged with, and 

convicted of, numerous counts of child molestation and sexual conduct 

with a minor, including counts that nonspecifically alleged the “first” and 

“last” times various types of abuse had occurred. State v. Brown, No. 2 CACR 2018-0207, ¶¶ 8, 10, 15-18 (Ariz. App. Sept. 23, 2019) (mem. decision).4 

The appellant argued, inter alia, that the indictment had not provided

sufficient notice of the allegations against him, due to the vagueness of the 

victim’s testimony and “because she did not remember with particularity 

more than one incident and could only testify that they had occurred ‘more 

 

4We cite this memorandum decision, issued after January 1, 2015, 

only for its persuasive value in the absence of specific, on-point authority 

for this issue and to aid our determination whether to publish this opinion. 

See Ariz. R. Sup. Ct. 111(c)(1)(B),(C). 
STATE v. COPELAND

Opinion of the Court 

6

than once’” during an approximate eight-month period at a particular 

residence. Id. ¶¶ 2-4, 14, 17, 20. We rejected that argument, concluding that 

the appellant’s challenge actually invoked the sufficiency of the evidence 

rather than the adequacy of the indictment, id. ¶ 14, and that the victim’s 

testimony that each type of act had occurred multiple times was sufficient 

to permit the jury to find that the challenged acts had been committed as 

charged, id. ¶ 20. 

¶10 Considering decisions from other jurisdictions for this issue 

of first impression, we note that California’s and New Mexico’s highest

courts have dealt with similar claims involving multiple counts of 

residential child molestation and resolved them with reasoning similar to 

that in our decision in Brown, though with more explication that may 

provide guidance here. In People v. Jones, a teacher was convicted of sexual 

offenses against four young children, two of whom he had adopted. 792 

P.2d 643, 645-46 (Cal. 1990). Because the victims were young and had been 

abused numerous times, much of their testimony was nonspecific as they

were unable to provide dates and precise locations of the offenses. Id. at 

646-47. The California Supreme Court held that prosecuting alleged 

resident child molesters based on nonspecific charges and “generic 

testimony” does not violate a defendant’s due process rights to notice, to 

prepare a defense, or to a unanimous jury. It so concluded because the 

elements of the offenses did not include specific acts and locations, grand 

jury and pretrial discovery procedures informed the defendant of the 

allegations, and trials on such charges generally turned on the credibility of 

victims. Id. at 657-59. The court reasoned that “even generic testimony 

(e.g., an act of intercourse ‘once a month for three years’) outlines a series 

of specific, albeit undifferentiated, incidents each of which amounts to a 

separate offense, and each of which could support a separate criminal 

sanction.” Id. at 654. 

¶11 As we did in Brown, the Jones court looked to the sufficiency 

of the evidence and concluded that an alleged victim’s nonspecific

testimony satisfied due process so long as the victim could describe the 

kind of acts committed, the number of acts committed “(e.g., ‘twice a 

month’ or ‘every time we went camping’),” and the general time frame “to 

assure the acts were committed within the applicable limitation period.” Id.

at 654-56. The court noted that “[a]dditional details regarding the time, 

place or circumstance of the various assaults may assist in assessing the 

credibility or substantiality of the victim’s testimony, but are not essential 

to sustain a conviction.” Id. at 656; cf. State v. Berry, 101 Ariz. 310, 314 (1966)

(molestation victim’s inability to recall details like date and time goes to 

credibility, an issue for the jury, and such testimony insufficient grounds 
STATE v. COPELAND

Opinion of the Court 

7

for fatal variance between information and bill of particulars and trial 

evidence), superseded by statute, 1983 Ariz. Sess. Laws, ch. 202, § 10, as 

recognized in State v. Holle, 101 Ariz. 310, ¶ 28 (2016). To hold otherwise 

“could effectively insulate the most egregious child molesters from 

prosecution.” Jones, 792 P.2d at 651 (quoting People v. Van Hoek, 246 Cal. 

Rptr. 352, 354 (Ct. App. 1988)). The court thus struck a balance to

accommodate “all legitimate due process concerns” without immunizing 

resident child molesters “merely because [they have] repeatedly molested 

[their] victim[s] over an extended period of time.” Id. at 645, 648, 654. 

¶12 In State v. Lente, the defendant was convicted of twenty-six 

sexual offenses perpetrated against a child who had lived with him, after

the child testified about nearly continuous sex abuse for years. 453 P.3d 

416, ¶¶ 5-6, 19 (N.M. 2019). The defendant’s trial strategy was to show he

had lacked access to the victim on certain occasions, emphasize 

inconsistencies in her allegations, and discredit her testimony by 

suggesting she had a motive to fabricate the accusations. Id. ¶¶ 5, 18. In a 

habeas corpus proceeding, it was successfully argued that the vague 

allegations in the indictment had failed to provide adequate notice of the 

charges and potentially subjected the defendant to double jeopardy. Id.

¶¶ 10-12. The New Mexico Supreme Court, in a comprehensive, wideranging opinion, rejected those arguments and reversed. Lente, 453 P.3d 

416. Regarding sufficiency of notice, the court stated there was “nothing to 

suggest that Lente was unsure of the charges he faced or was somehow 

precluded from defending himself.” Id. ¶ 20. And it determined that 

charging documents in resident child molester cases only required some 

form of “minimal differentiation between criminal counts.” Id. ¶ 43 

(quoting Valentine v. Konteh, 395 F.3d 626, 636-37 (6th Cir. 2005)). That 

differentiation could be satisfied “by the provision of ‘time ranges or certain 

locations or certain actions.’” Id. (quoting Valentine, 395 F.3d at 637). The 

court explained:

[C]harging documents in resident child 

molester cases have unique significance. They 

must channel the jury’s focus and require it to 

determine if specific instances of illegal conduct 

were established. A charging document 

achieves this end by specifying the exact sexabuse crimes that allegedly occurred and 

identifying the dates or date ranges when those 

crimes purportedly happened. Such charges do 

indeed ask the jury to decide if specific, illegal 

sex acts took place. This point is particularly 
STATE v. COPELAND

Opinion of the Court 

8

evident where the evidence elicited indicates 

that repeated molestations exceeding the 

number of specific acts charged were 

perpetrated, a likely occurrence in resident 

child molester cases. 

Id. ¶ 71 (citation omitted).

¶13 In similarly striking a balance between due process and 

immunizing residential child molestation, we conclude the indictment here 

was legally sufficient to provide Copeland with adequate notice of the 

charges against him. It tracked the language of the molestation statute, 

§ 13-1410, identified the victim, asserted the offenses had occurred in 

Cochise County, and provided a time frame for the offenses. See State v. 

Self, 135 Ariz. 374, 380 (App. 1983) (indictment that tracks statutory 

language generally provides sufficient notice). The state was not required 

to provide notice of the specific acts giving rise to the charges or the manner 

in which the offenses would be proven. See State v. Arnett, 158 Ariz. 15, 18 

(1988). Moreover, the date of the offense is not an element of molestation 

of a child. See § 13-1410; cf. State v. Jones, 188 Ariz. 534, 543 (App. 1996) (date 

of offense not element of sexual assault), abrogated on other grounds by State 

v. Ferrero, 229 Ariz. 239 (2012); Jones, 792 P.2d at 655, 657 (specific date, time, 

place, or circumstances not elements of molestation and prosecution 

utilizing generic testimony does not, of itself, violate due process because 

sufficient notice generally provided by pretrial disclosure, including 

preliminary hearing or grand jury transcripts). And the disclosed grand 

jury transcript in this case informed Copeland of the nature of the 

allegations, including where and approximately when the offenses were 

said to have occurred. See Far W. Water & Sewer Inc., 224 Ariz. 173, ¶ 36

(indictment read in light of facts known by both parties). 

¶14 Copeland maintains the lack of specificity in the indictment 

limited his ability to defend himself and he was subjected to “trial by 

ambush.” However, he has not shown or argued he was unaware of or 

surprised by the continuously recurring conduct alleged. Cf. State v. Sirisun,

279 N.W.2d 484, 487 (Wis. Ct. App. 1979) (reversing dismissal based on 

child’s nonspecific testimony at preliminary hearing where no claim or 

indication defendant was misled or prejudiced and charged offense within 

statute of limitations (quoting Tapp v. State, 269 N.E.2d 367, 369 (Ind. 1971))). 

And, other than the possibility that he could have presented an alibi defense 

for times he may have been out of town, Copeland does not specify what 
STATE v. COPELAND

Opinion of the Court 

9

defenses were unavailable to him.5 See State v. Hamilton, 177 Ariz. 403, 410 

n.6 (App. 1993) (assertion that defendant was unable to present alibi 

defense, “because he could not reconstruct his life for a specific year, is a 

theoretical, not an actual, prejudice that could be asserted any time an 

offense was alleged to have occurred over a period of time”); see also State 

v. Rankin, 181 N.W.2d 169, 171-73 (Iowa 1970) (no deprivation of alibi

defense although date of offense not specified or proved, defendant 

complained he could not account for all his time during month-long period 

in which incest was charged, defendant had access to child, he did not 

proffer an alibi at trial, and defense was denial it happened and child’s 

alleged animosity).

¶15 Nor has Copeland meaningfully explained how he would

have defended differently had the indictment and R.H. been more specific.

See Commonwealth v. Kirkpatrick, 668 N.E.2d 790, 794 (Mass. 1996) (rejecting 

defendant’s claim of inability to prepare defense where no showing defense 

would have been different had victim been more precise about dates and 

times of sexual assaults). Although, as noted above, he contends he was

prevented from asserting an alibi defense, he has not shown that such a 

defense was available. Furthermore, the indictment did not, as he claims, 

force him to limit his trial defenses only to “it could not have happened.” 

Indeed, Copeland challenged R.H.’s credibility, arguing she had a motive 

to fabricate the allegations, he highlighted discrepancies between her

testimony and that of other witnesses, particularly as demonstrating his

lack of opportunity to commit the offenses, and pointed out logistical and 

arguably improbable implications of R.H.’s allegations. Accordingly, for 

all the above reasons we conclude that due process does not require that an 

indictment precisely delineate numerous molestations when those acts are 

 

5 Copeland complains that during her forensic interview, R.H. 

related an incident of molestation during a Super Bowl party, which he 

“spent time addressing” with R.H.’s mother as part of his trial preparation, 

but R.H. did not remember the particular incident at trial. He points to this 

as an example of how he was deprived of the ability to defend against the 

charges. He fails to explain, however, how he would have defended any 

differently than his denials of the other recurring incidents R.H. testified to 

and attacking her credibility. We note that by the time of trial, over two 

years had elapsed since the reported Super Bowl incident, R.H. testified 

about being molested during and after a weekend party where the adults 

were drinking alcohol, and the jury could have reasonably concluded she 

forgot that it was the Super Bowl. We are not persuaded that Copeland 

suffered any prejudice. 
STATE v. COPELAND

Opinion of the Court 

10

alleged to have been committed against a child victim and to have 

happened repeatedly over a substantial period of time with little or no basis 

for the child to make any such differentiation. 

Double Jeopardy

¶16 Copeland also asserts the indictment’s claimed deficiencies 

could subject him to double jeopardy “if the state were to charge another 

[fifty] counts in that time frame because, other than the time frame and the 

number, there is nothing to nail down when any of these events occurred.” 

Although at oral argument, the state generally conceded that double 

jeopardy would preclude it from charging Copeland with any additional 

counts for molesting R.H. during the same period of time, neither we nor a 

future court are bound by the state’s concession on a matter of law. See State 

v. Solis, 236 Ariz. 242, ¶ 23 (App. 2014). 

¶17 Considering a similar double jeopardy argument in Lente, the

New Mexico Supreme Court first observed that once it is determined an 

indictment provides sufficient notice, “double jeopardy concerns . . . have 

marginal significance in practice.” 453 P.3d 416, ¶ 35. The court went on to 

quote Federal Practice and Procedure: Criminal:

[i]t is doubtful that the second . . . function[, the 

double jeopardy protection,] add[s] anything 

not implicit in the notice requirement of the first 

function. If a defendant claims prior jeopardy 

in defense to a pending charge, the court is free 

to review the entire record of the first 

proceeding, not just the pleading, and so the 

need for the indictment to serve this role is

limited. 

Id. (alterations in Lente) (quoting 1 Charles Alan Wright & Andrew D. 

Leipold, Federal Practice and Procedure: Criminal, § 125, at 543-44 (2008).

¶18 The Lente court, applying a similar approach as in Jones, then 

looked to the sufficiency of the evidence, noting that unlike adults, children 

cannot easily link experiences to dates or other specific points in time. Id.

¶ 56; Jones, 792 P.2d at 654-56. And “when sexual abuse is repeated and 

frequent, isolating any particular instance of abuse becomes a significant 

challenge for child victims.” Lente, 453 P.3d 416, ¶ 57. Even “a mature 

victim might understandably be hard pressed to separate particular 

incidents of repetitive” abuse. Id. (quoting Jones, 792 P.2d at 648). The court 

went on to question how appellate courts could “resolve the tension 
STATE v. COPELAND

Opinion of the Court 

11

between the rights of an alleged victim and the [double jeopardy] rights of 

an alleged child molester.” See id. ¶¶ 60, 84 (quoting R.A.S. v. State, 718 So. 

2d 117, 119 (Ala. 1998)). The court answered this by noting that the “true 

issue” in repetitive molestation cases is credibility, and that if the jury 

“believe[s] the child victim’s testimony that he or she was subjected to 

multiple acts of sexual abuse over a long period of time, the prosecution 

will have necessarily ‘proven beyond a reasonable doubt that the defendant 

committed a specific act.’” Id. ¶ 65-66 (quoting Jones, 792 P.2d at 659). Thus, 

if a child has sufficiently described the type and general number of 

proscribed acts, and a general time period in which they occurred, the 

evidence is sufficient and eliminates double jeopardy concerns. Id. ¶¶ 68-

70, 84. 

¶19 This appears to be a majority view among courts that have 

considered similar due process questions, and one that we believe strikes 

an appropriate and just balance.6 Here, each count of the indictment was 

 

6See, e.g., Jones, 792 P.2d at 655-56, 659 (due process satisfied if child’s 

testimony sufficiently describes kind of acts committed, number of acts 

committed, and general time period); R.L.G., Jr. v. State, 712 So. 2d 348, 362-

64 (Ala. Crim. App. 1997) (due process a “flexible concept” accommodating 

“competing interests” allowing prosecution of resident child molesters 

based on generic testimony (quoting State v. Brown, 780 P.2d 880, 885-86 

(Wash. Ct. App. 1989)); State v. Cozza, 858 P.2d 270, 274 (Wash. Ct. App. 

1993) (due process not violated when resident molestation victim cannot 

recall specific dates); Baker v. State, 948 N.E.2d 1169, 1171-72, 1179 (Ind. 

2011) (affirming molestation convictions despite generic testimony because 

trial turned on credibility); State v. Reynolds, 193 A.3d 168, ¶ 20 (Me. 2018)

(specific evidence of particular incidents of sexual abuse not required to 

support guilty verdicts for multiple sexual crimes); State v. Swan, 753 

N.W.2d 418, ¶ 12 (S.D. 2008) (specific date not essential element of sexual 

offenses against child; courts lenient as to dates in such cases unless 

defendant shows he was deprived of defense); Rankin, 181 N.W.2d at 171-

73 (no denial of adequate defense or double jeopardy protections although 

child could not specify date of incest and state did not identify specific 

“carnal knowledge” event among several on which it relied for conviction); 

State v. Mitchell, 34 N.W.2d 661, 661-62 (Wis. 1948) (affirming convictions 

despite fourteen-year-old victim’s inability to recall the dates and exact 

locations of sex crimes; evidence sufficient for jury to conclude victim was 

credible and offenses occurred); Brodit v. Cambra, 350 F.3d 985, 988-89 (9th 

Cir. 2003) (rejecting argument in habeas petition that convictions for sex 
STATE v. COPELAND

Opinion of the Court 

12

at least minimally differentiated from the others, such that Copeland was 

indicted for the first fifty times he molested R.H. in Sierra Vista within the 

specified time period, and within the statute of limitations. See id. ¶¶ 43,

49. Additionally, Copeland’s argument is highly speculative and ignores 

that the entire record of the trial would be available to raise a double 

jeopardy challenge in the unlikely event that the state would seek to 

prosecute him later for similar offenses occurring in the same time frame. 

See State v. Bruce, 125 Ariz. 421, 423-24 (1980); see also Lente, 453 P.3d 416,

¶ 35. Given the nature of the charges and the generic testimony supporting 

them, a situation attributable to the victim’s young age, Copeland’s 

continuous access to her, and the alleged frequency of his repeated acts, we 

conclude the indictment was sufficient for purposes of double jeopardy. Cf. 

Berry, 101 Ariz. at 314 (rejecting claim of fatal variance between information 

and victim’s testimony, otherwise “it would . . . behoove one who chooses

to sexually assault children . . . to make sure that the child is sufficiently

young to be incapable of effectively testifying as to specific dates in the year

and minutes on the clock”); see also Lente, 453 P.3d 416, ¶ 77 (circumstance

of repeated abuse and victim’s generic recollection should not be

transformed into “a shield” from prosecution).

Continuous Sexual Abuse

¶20 Copeland lastly contends that because of the lack of 

specificity regarding the timing and location of the offenses, the trial should 

have been limited to the continuous sexual abuse charge. He did not raise 

this issue below, and our review is therefore limited to fundamental error. 

See State v. Escalante, 245 Ariz. 135, ¶ 12 (2018). Copeland, however, has 

failed to argue fundamental error or establish the first step: to demonstrate 

that error occurred. See id. ¶ 21; State v. Starks, 251 Ariz. 383, ¶ 6 (App. 2021)

(concluding appellant waived all review of issue by failing to meaningfully 

argue fundamental error). As outlined above, the trial court did not err in

denying Copeland’s motion to dismiss the molestation charges. Moreover, 

he was not entitled to a trial for the crime he preferred to be charged with 

where the evidence could support multiple other offenses. See Brown, No. 2 

CA-CR 2018-0207, ¶¶ 15-18 (state has discretion to charge sexual offenses 

individually or as continuous sexual abuse);

7 People v. Johnson, 46 Cal. Rptr.

 

crimes where charging document did not specify precise dates violated due 

process). 

7 Again, cited only for persuasive value absent other on-point 

Arizona authority. See Ariz. R. Sup. Ct. 111(c)(1)(C).
STATE v. COPELAND

Opinion of the Court 

13

2d 838, 839-40 (Ct. App. 1995) (rejecting argument state was required to 

charge continuous sexual abuse rather than numerous individual offenses, 

even when evidence was only “generic testimony”). The prosecution, not 

the court or the defendant, determines whether to file criminal charges and 

which charges to file. A.R.S. § 11-532(A); State v. Hankins, 141 Ariz. 217, 221 

(1984). Nor does the language of the statute, which enacted continuous 

sexual abuse as a crime, indicate any legislative intent to modify the 

prosecution’s traditional discretion in choosing how to structure charges 

against an individual defendant. See A.R.S. § 13-1417. Copeland has 

demonstrated no error or abuse of discretion in the court’s denial of his

motion to dismiss. See Ramsey, 211 Ariz. 529, ¶ 5. 

Admission of Evidence

¶21 Copeland next challenges the trial court’s rulings on several 

evidentiary issues. We review such rulings for an abuse of discretion. See

State v. Pina-Barajas, 244 Ariz. 106, ¶ 4 (App. 2018). This includes 

“evidentiary rulings involving hearsay and related exceptions.” State v. 

Giannotta, 248 Ariz. 82, ¶ 8 (App. 2019). 

Victim’s Statements to School Officials

¶22 Copeland first argues the trial court erred by admitting

inadmissible, highly prejudicial hearsay over his objections. Specifically, 

the court allowed both R.H.’s PE teacher and school counselor to testify in 

the state’s case-in-chief that R.H. had told them Copeland touched her 

inappropriately. 

¶23 Hearsay is an out-of-court statement offered “to prove the 

truth of the matter asserted in the statement,” Ariz. R. Evid. 801(c), and is 

inadmissible unless it falls within one or more recognized exceptions, Ariz. 

R. Evid. 802. The state initially argued the testimony at issue was not 

hearsay because it was offered to show its effect on the listeners, specifically 

why the school officials contacted law enforcement. It maintained the

testimony was offered to “explain the reasons that the employees contacted 

police despite [R.H.’s] reluctance and preference that they not do so.”8 At 

 

8Below, the state also argued that R.H.’s extrajudicial statements

were admissible as evidence of her mental state. See Ariz. R. Evid. 803(3). 

The state wisely abandoned this argument on appeal. See State v. 

Fulminante, 193 Ariz. 485, ¶ 37 (1999) (declarant’s statement about conduct 

of another person not admissible under Rule 803(3) state-of-mind hearsay 

exception).
STATE v. COPELAND

Opinion of the Court 

14

oral argument in this court, however, the state decided “not to dispute” that 

the testimony at issue was hearsay, only maintaining any error was 

harmless. Again, because the state’s apparent concession on legal issues is 

not binding, see Solis, 236 Ariz. 242, ¶ 23, and because the hearsay error is 

dispositive in our reversal and remand of Copeland’s convictions, we 

address both issues on their merits.

¶24 Extrajudicial statements presented for the purpose of 

explaining a hearer’s conduct may be “admissible where offered to show 

their effect on one whose conduct is in issue,” and if they are not being 

offered to prove the matter asserted in the statement. State v. Rivera, 139 

Ariz. 409, 413-14 (1984). In Rivera, our supreme court held that a child 

molestation victim’s extrajudicial statement to her mother, in which she had 

conveyed being touched in her pubic area, was inadmissible despite the 

theory that it “complete[d] the prosecution’s story showing what prompted 

the mother to take her daughter[] to the hospital.” Id. at 410, 414. The court 

concluded that neither the mother’s nor the victim’s conduct was at issue 

and “[t]he reason the mother took her daughter to the hospital [wa]s not 

relevant to the legal issues of the molestation charge.” Id.

¶25 Similarly, in this case, the school employees’ duty to report 

evidence of a student’s molestation was never in question, nor was their 

testimony used by the state to explain R.H.’s motivation. Thus, the hearsay

in the context of this case had “no relevant use other than to prove the truth 

of the matter asserted.” Id. at 414. Indeed, the manner in which the state 

presented the testimony, not only as the leading evidence for its case-inchief but in its opening statement and closing arguments, demonstrates that 

it relied on the hearsay to prove the substance of the allegations. In her 

opening statement, the prosecutor informed the jury that the PE teacher 

would testify R.H. “broke down into inconsolable sobbing” and said 

Copeland had “been touching her private parts.” The prosecutor continued 

that R.H. was then taken to the school counselor, who would testify that a 

“sobbing” R.H. said Copeland had touched her “in the way a man who 

loves a woman touches her.” Similarly, during closing argument, the 

prosecutor exhorted the jury that:

[R.H.] is your witness. She told you that 

[Copeland] loves her like a girlfriend or the way 

a man loves a woman. And she said loves her 

like a girlfriend. Well, remember [the] school 

counselor . . . remembered [R.H.] describing it 

as the way a man loves a woman? Kind of 
STATE v. COPELAND

Opinion of the Court 

15

corroborating that [R.H.] consistently reports it 

in that manner. 

See Rivera, 139 Ariz. at 410, 414 (statement in question was “a simple 

assertion of appellant’s conduct,” with “no relevant use other than to prove 

the truth of the matter asserted and is therefore hearsay”). 

¶26 Because Copeland moved to preclude the testimony at issue,

we review its erroneous admission for harmless error. See State v. Briggs, 

112 Ariz. 379, 382 (1975) (motion to preclude preserves issue for appeal); 

State v. Wood, 180 Ariz. 53, 63 (1994) (erroneously admitted testimony 

reviewed for harmless error). Under harmless error review, the state has 

the burden of demonstrating beyond a reasonable doubt that the error had 

no influence on the jury’s judgment. Wood, 180 Ariz. at 63; State v. Bible, 175 

Ariz. 549, 588 (1993). Whether an error is harmless is a fact-specific inquiry 

which must be evaluated in light of the totality of properly admitted 

evidence. State v. Fulminante, 193 Ariz. 485, ¶ 50 (1999); State v. Poyson, 198 

Ariz. 70, ¶ 21 (2000). In order for error to be harmless, we must be firmly 

convinced that “the guilty verdict actually rendered in this trial was surely 

unattributable to the error.” See Bible, 175 Ariz. at 588 (quoting Sullivan v. 

Louisiana, 508 U.S. 275, 279 (1993)). 

¶27 A trial court’s erroneous admission of evidence, including 

hearsay, can be harmless under some circumstances, including when it is 

“entirely cumulative,” State v. Williams, 133 Ariz. 220, 226 (1982), or when 

there is “overwhelming” properly admitted evidence of a defendant’s guilt,

State v. Davolt, 207 Ariz. 191, ¶ 64 (2004) (erroneous admission of 

photographs and videotape harmless when other evidence of guilt 

“overwhelming”); see also State v. Romero, 240 Ariz. 503, ¶ 8 (App. 2016)

(listing variety of factors “frequently considered by courts” in determining 

harmless error). Erroneously admitted evidence is cumulative not simply 

when “other evidence exists to support a conviction,” but when it “supports 

a fact otherwise established by existing evidence,” meaning that it was 

“superfluous and could not have affected the verdict.” State v. Bass, 198 

Ariz. 571, ¶ 40 (2000). Stated differently, errors are harmless when the 

untainted evidence “present[s] . . . a body of proof, firmly convincing on the 

essential facts, that the jury would have convicted even without the error.” 

Id. ¶ 45. 

¶28 But erroneously admitted evidence is less likely to be 

harmless if it is admitted without a limiting instruction, see Fulminante, 193 

Ariz. 485, ¶ 50, if it is presented repeatedly, see Williams, 133 Ariz. at 227, if 

it is argued in closing, see State v. Charo, 156 Ariz. 561, 563 (1988), if it 
STATE v. COPELAND

Opinion of the Court 

16

identifies the defendant as the perpetrator, cf. State v. Wilson, 113 Ariz. 363, 

366 (1976) (reasoning erroneously admitted hearsay was harmless, in part 

because it did not identify the defendant as the perpetrator), and when it 

goes directly to a critical issue, see Bass, 198 Ariz. 571, ¶ 46. Each of those 

factors is applicable here. 

¶29 When credibility is “the central issue” because of scant 

physical evidence or a dearth of corroborating eyewitnesses, the repeated 

admission of inadmissible hearsay can be highly prejudicial. State v. 

Thompson, 167 Ariz. 230, 235 (App. 1990); State v. Thompson, 169 Ariz. 471, 

476 (App. 1991); see also State v. Taylor, 196 Ariz. 584, ¶ 15 (App. 1999); State 

v. Martin, 135 Ariz. 552, 555 (1983) (a “parade of corroborating witnesses” 

repeating inadmissible hearsay bolstering a victim’s credibility may be 

prejudicial). The initial hearsay was reinforced by repetition here, and

Copeland argues the “error cannot be viewed as harmless” because the

state used it to bolster R.H.’s credibility at the outset, previewing the 

hearsay in its opening statement, and emphasizing it in closing arguments. 

See Charo, 156 Ariz. at 563 (state’s use of inadmissible hearsay in closing 

argument weighs in favor of finding reversible error); Fulminante, 193 Ariz. 

485, ¶ 50 (use of evidence in closing argument belies the assertion that it 

was relatively unimportant). 

¶30 The state responds that any error was harmless because the 

testimony at issue was cumulative of other evidence, including testimony 

from R.H., a former police detective, and the forensic interviewer.

9 The 

state also points out that Copeland had the opportunity to “extensively and 

effectively cross-examine, confront, and impeach” R.H. The state thus 

maintains that its use of the hearsay to bolster the victim’s credibility “is of 

no moment given that the same information was admitted through two 

other witnesses, . . . [a]nd numerous witnesses testified that R[.H.] was 

truthful and did not lie.” 

¶31 We cannot conclude that the hearsay testimony of the teacher 

and the counselor, particularly given its primacy in the state’s presentation 

of the evidence, was harmless here. At trial, the state acknowledged to the 

 

9The state’s suggestion that substantially similar hearsay testimony 

was subsequently introduced “without objection” by Copeland is not 

supported by the record. Copeland repeatedly objected, and made a 

“continuing objection,” when the state elicited hearsay testimony from the 

forensic interviewer that R.H. had told her Copeland touched R.H.’s 

“private places,” and touched her in Georgia and Sierra Vista. 
STATE v. COPELAND

Opinion of the Court 

17

jury that “this case is very much about credibility.” And the inadmissible 

hearsay was repeatedly used to both bolster the substance of R.H.’s 

allegations and identify Copeland as the perpetrator.

10 See Thompson, 169 

Ariz. at 476 (defendant prejudiced where “credibility was the central issue” 

and court could not say “corroborating witnesses had no influence on the 

jury’s deliberations.” (quoting Martin, 135 Ariz. at 555)). R.H.’s credibility 

was crucial because the evidence against Copeland was not 

“overwhelming.” See Davolt, 207 Ariz. 191, ¶ 64 (error may be harmless by 

virtue of overwhelming properly admitted evidence of guilt). There was 

no physical evidence, there was no eyewitness testimony corroborating 

R.H.’s allegations, and all of Copeland’s recorded admissions were 

equivocal. While such evidence is not required for the state to meet its 

burden of proof, see State v. Jerousek, 121 Ariz. 420, 427 (1979) (“In child 

molestation cases, the defendant can be convicted on the uncorroborated 

testimony of the victim.”), its absence here is a factor in our determination 

that the error was not harmless in light of the properly admitted evidence, 

see Romero, 240 Ariz. 503, ¶ 9. 

¶32 Further, the trial court did not provide a limiting instruction 

to the jury, despite the hearsay being referenced by the state in its opening 

statement and closing arguments. See Fulminante, 193 Ariz. 485, ¶ 50

(“Because the testimony was admitted without a limiting instruction, we 

must assume the jury could have considered the statements as asserting the 

truth of the matter testified to . . . .”). And finally, although not dispositive,

and indicative of the view of only one participant in the proceeding, we find

notable the court’s statement about this testimony at sentencing: 

Of the days of testimony that were the most 

compelling, it was the testimony of the school 

officials who first received the report from the 

child of the events that had taken place in her 

home perpetrated on her by her father. The 

testimony of the teacher and the school 

counselor, together with the testimony of the 

child herself, were the most compelling 

testimony that was heard in this trial. It brought 

home to everyone, the jury and everyone sitting 

 

10Both the PE teacher and school counselor testified that R.H. had 

identified her “stepdad” as the person who touched her inappropriately, 

and the school counselor identified R.H.’s stepdad as “Mr. Copeland.” 
STATE v. COPELAND

Opinion of the Court 

18

in the courtroom, the profound effect that these 

acts have had on this child. 

This statement of the court’s perception of the testimony, particularly in 

conjunction with the other factors considered above, makes it difficult to 

conclude the improper admission of the hearsay evidence was harmless. 

¶33 We note our supreme court’s comment in Rivera, that 

“[p]roblems inherent in cases such as this tempt courts, including this one, 

to stretch the rules of evidence to their utmost.” 139 Ariz. at 413 n.1. 

However, as in Rivera, it is not our province to do so. Because the evidence 

of Copeland’s guilt was not overwhelming, and because we cannot say 

beyond a reasonable doubt that the testimony was immaterial to the jury’s 

evaluation of R.H.’s credibility—the central issue in this case—we vacate 

Copeland’s convictions and remand for a new trial or other proceedings 

consistent with this opinion. See Thompson, 169 Ariz. at 476; Taylor, 196 Ariz. 

584, ¶ 16; Martin, 135 Ariz. at 555. 

Redacted Audio of Copeland’s Brother’s Police Interview

¶34 Although we vacate Copeland’s convictions as outlined 

above, we nevertheless address some of his remaining assignments of error 

that are likely to recur if he is retried. See Fulminante, 193 Ariz. 485, ¶ 10

(appellate court may address issues likely to recur upon retrial to promote 

judicial economy). Copeland contends the trial court erred by admitting a

redacted audio recording of his brother J.C.’s interview with law 

enforcement, which revealed what Copeland had said to him about the 

allegations. Copeland objected to its admission on the grounds that it was 

hearsay, irrelevant, and cumulative.

11 

¶35 On appeal, Copeland maintains the recording was 

inadmissible hearsay because it contained out-of-court statements made by

J.C. And he argues it was “not impeachment” evidence because J.C. “was 

not given the opportunity to describe what he meant.”

¶36 A witness’s prior extrajudicial statement is not hearsay if: the 

witness testifies; the out-of-court statement is inconsistent with the 

 

11Copeland has abandoned his arguments that the evidence was 

cumulative and irrelevant. See Vargas, 249 Ariz. 186, ¶ 22 (failure to 

properly develop argument constitutes abandonment and waiver). Thus, 

we address only his contention that the recording contained inadmissible 

hearsay. 
STATE v. COPELAND

Opinion of the Court 

19

witness’s testimony; and the witness is subject to cross-examination about 

the prior statement. Ariz. R. Evid. 801(d)(1)(A). “Extrinsic evidence of a

witness’s prior inconsistent statement is admissible only if the witness is 

given an opportunity to explain or deny the statement and an adverse party 

is given an opportunity to examine the witness about it . . . .” Ariz. R. Evid. 

613(b). 

¶37 At trial, J.C. testified on redirect examination by the state that 

Copeland had “simply told [him] that he believed he didn’t do it.” After 

the prosecutor refreshed his recollection with a transcript, J.C.

acknowledged that Copeland had said: “[I]f I did do it, then, yeah, I deserve 

to go away.” The audio recording of the interview, which was admitted 

days after J.C. testified and to which Copeland objects, reflects J.C. telling a 

detective that Copeland had said: “Did I really do something? If I did, 

boom, then you know what? I deserve to go away.” The recording thus 

contained a prior inconsistent statement used to impeach J.C., and 

Copeland had the opportunity to cross-examine him about it because the 

substance of the statement had been elicited by the state during J.C.’s 

testimony. It therefore met the criteria of Rules 801(d)(1)(A) and 613(b), 

Ariz. R. Evid. 

¶38 Copeland, however, cites State v. Joe and argues the admission 

of the recording was improper because J.C. was no longer present to 

elaborate upon any discrepancies between his testimony and his prior 

statements. 234 Ariz. 26, ¶ 12 (App. 2014). Copeland’s reliance on Joe is 

unpersuasive. First, the sole issue in Joe was whether a declarant-witness’s 

prior statements were in fact inconsistent with her testimony at trial, an 

argument Copeland has not made. See id. ¶ 13. Moreover, the language 

Copeland quotes from Joe only generally describes the rationale underlying 

Rule 801(d)(1)(A) and does not prohibit the introduction of a prior 

inconsistent statement after a declarant-witness has testified, when that 

witness has had the opportunity to explain the inconsistency as required by 

Rules 801(d)(1)(A) and 613(b). See Joe, 234 Ariz. 26, ¶ 12. Finally, Copeland

was not precluded from recalling J.C. to “describe what he meant.” We 

thus cannot say the trial court abused its discretion in admitting the 

recording of the interview.12

 

12Copeland also contends, for the first time on appeal, the manner in 

which the audio recording was redacted “clearly misled the jury” and 

prejudiced him, citing Rule 403, Ariz. R. Evid. Because Copeland did not

raise this issue below, it is subject to review only for fundamental error. See 

Escalante, 245 Ariz. 135, ¶ 12. However, because if retried he can raise this 
STATE v. COPELAND

Opinion of the Court 

20

Body Camera Videos

¶39 Copeland next contends the trial court abused its discretion 

by admitting, over his objections, clips of body camera video taken by 

police when they responded to his home after he made a suicide threat. The 

state explained it had edited the hours of bodycam footage into shorter clips 

“to decrease the playing time in front of the jury, [and] decrease the 

potential claims of prejudice for the defendant,” but noted it was amenable 

to offering longer video clips “if [Copeland] want[ed] more context.” 

¶40 Copeland responded that his 

immediate concern with the . . . clips, as . . .

edited, is that they present an incomplete 

version of the comments that Mr. Copeland 

may have made when the police came to his 

residence that evening. And my concern is that 

that incompleteness will result in . . . a 

misperception on the jury’s part of what Mr. 

Copeland said, in the sense that if all they hear 

is silence and something along the lines of I did 

it, and silence, then they’re left to speculate as to 

what came before. . . . His mouth is moving.

Words are coming out, but we’re not—the jury’s 

not hearing those words. . . . If the state is going 

to put on evidence of Mr. Copeland’s statement, 

then I believe that those statements or that 

evidence has to be complete so that the jury has 

an accurate understanding of what Mr. 

Copeland said under the circumstances. 

The trial court permitted the state to introduce the edited footage over 

Copeland’s objections, stating that Copeland could provide any necessary 

context through cross examination. 

¶41 Copeland acknowledges on appeal that “[t]here was no 

dispute amongst the parties” that some edits were required to eliminate 

references to precluded evidence. But he maintains that the footage was 

edited in a manner that omitted necessary context and that the trial court 

 

objection and allow the trial court to rule on it in the first instance, as we 

note for his additional claims of unobjected-to fundamental error, see infra 

n.15, we do not address this issue further. 
STATE v. COPELAND

Opinion of the Court 

21

abused its discretion by admitting it. He asserts that because there is a 

portion of the videos in which Copeland is speaking but there is no sound,

“the jury could only speculate about what he was saying” and that the state 

edited out Copeland’s “vehement denials that he committed these crimes.” 

He thus contends the footage lacked necessary context and was admitted in 

violation of Rule 106, Ariz. R. Evid. 

¶42 We first note that the jury was instructed not to speculate and 

to determine the facts only from the evidence produced in court, and we 

presume the jury followed the trial court’s instructions. See State v. Newell, 

212 Ariz. 389, ¶ 68 (2006). Furthermore, Rule 106 provides, “If a party 

introduces all or part of a writing or recorded statement, an adverse party 

may require the introduction, at that time, of any other part—or any other 

writing or recorded statement—that in fairness ought to be considered at 

the same time.” The rule is one of “inclusion rather than exclusion,” and it 

does not “direct the exclusion of evidence in any circumstance.” State v. 

Steinle, 239 Ariz. 415, ¶ 10 (2016). Thus, a court does not abuse its discretion 

under Rule 106 by admitting evidence, only by excluding specific evidence 

offered by a party that is necessary to provide context. See id. Notably, 

Copeland could have identified and sought to admit additional portions of 

body camera footage to provide the context he contends was necessary

under Rule 106, but he never made such an offer, even after the court 

directly asked him whether there were “some other clips that [he] would 

prefer to have in.” We conclude the trial court did not err. 

Prosecutorial Error13

¶43 We lastly address Copeland’s contention that he suffered

fundamental error and prejudice arising from several instances of 

prosecutorial error to which he did not object below. Specifically, he claims 

the state failed to correct misleading testimony, mischaracterized evidence, 

referred to expressly precluded evidence,14 and deceptively edited audio 

 

13 Although Copeland alleges “prosecutorial misconduct,” we 

“differentiate between ‘error,’ which may not necessarily imply a 

concurrent ethical rules violation, and ‘misconduct,’ which may suggest an 

ethical violation.” In re Martinez, 248 Ariz. 458, ¶ 47 (2020). 

14Copeland points out that the state repeatedly alluded to an order 

of protection specifically precluded by the trial court. While we do not 

condone the prosecutor’s apparent violations of the court’s order, we do 

not address this issue as one that is unlikely to recur at any retrial. 
STATE v. COPELAND

Opinion of the Court 

22

and video exhibits. We need not resolve these issues here, however, 

because if retried, Copeland will have the opportunity to enter his 

objections should these issues arise again, permitting the trial court to 

address them in context and in the first instance. See Wood, 180 Ariz. at 72.

15

Disposition

¶44 Based on the foregoing, we uphold the trial court’s denial of 

Copeland’s motion to dismiss the indictment, but the admission of 

prejudicial hearsay and its use by the state requires that his convictions and 

resulting sentences be vacated, and we remand for a new trial or other 

proceedings consistent with this opinion.

 

15Copeland also challenges as fundamental error the trial court’s 

imposition of fifty assessments pursuant to A.R.S. § 12-116.07, one for each 

of his convictions. Because we vacate his convictions and resulting 

sentences, and as noted above, because he can raise this objection to the trial 

court if he is so sentenced again, we do not address the issue for the first 

time here. See State v. Prince, 206 Ariz. 24, ¶ 4 (2003) (sentencing issues may 

become moot when sentence is vacated).