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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RICK POGUE, Appellant.

No. 1 CA-CR 20-0346 

Appeal from the Superior Court in Navajo County

No. S0900CR201800709

The Honorable Dale P. Nielson, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Michael F. Valenzuela

Counsel for Appellee

Weagant Law Offices PLC, Florence

By Megan K. Weagant

Counsel for Appellant

FILED 7-27-2021
STATE v. POGUE

Decision of the Court

2

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge David B. Gass and Judge David D. Weinzweig joined. 

B R O W N, Judge:

¶1 Rick Pogue appeals from his convictions and sentences for 

multiple counts of sexual conduct with a minor and kidnapping. Finding 

no reversible error, we affirm.

BACKGROUND

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

the verdict, resolving all inferences against Pogue. State v. Davolt, 207 Ariz. 

191, 212, ¶ 87 (2004).

¶3 In September 2017, V.P. reported that her adoptive father, 

Pogue, sexually abused her for over ten years, starting when she was 

between six and eight years old. V.P. disclosed that when Pogue was not 

away from home working as a truck driver, he would force her to engage 

in sexual intercourse, oral sexual contact, or digital-genital penetration on 

an “almost daily” basis. Pogue abused V.P. in a locked bedroom, pinned 

her with his body, and told her he would “go away for a long time” if she 

reported the abuse. V.P. described several of Pogue’s distinct physical 

characteristics and items he used while engaged in the sexual misconduct. 

¶4 When Pogue spoke with detectives, he denied abusing V.P.

but admitted he was one of V.P.’s primary caregivers, and he 

acknowledged using the items V.P. had referred to when she described the

abuse. During the police investigation, detectives learned that Pogue 

committed similar offenses involving V.P.’s mother, Stephanie. In 1997, 

Stephanie reported engaging in sexual conduct with Pogue for seven years,

starting when she was about 14 years old. At the time, Pogue was her uncle 

through marriage. In a recorded phone call, Pogue admitted he sexually 

abused Stephanie. She later claimed, however, that detectives forced her to 

assist in the investigation and made errors in the transcription of the phone 

conversation. In 1998, Stephanie married Pogue and he adopted V.P. 

Stephanie gave birth to Pogue’s son the following year.
STATE v. POGUE

Decision of the Court

3

¶5 A jury convicted Pogue of seven counts each of sexual 

conduct with a minor and kidnapping, finding that all but two of the counts 

were dangerous crimes against children. The superior court sentenced 

Pogue to various sentences, including six consecutive terms of life in prison 

with the possibility of parole after 35 years. He timely appealed.

DISCUSSION

A. Voluntariness of Statements

¶6 Pogue argues the superior court erred in failing to rule on the

voluntariness of his statements to detectives. Pogue does not, however, 

claim his statements to detectives were involuntary and should have been 

suppressed. We review the court’s ruling, or lack thereof, for an abuse of 

discretion, State v. Cota, 229 Ariz. 136, 144, ¶ 22 (2012), and will not disturb

it absent a finding of clear and manifest error, State v. Blakley, 204 Ariz. 429, 

436, ¶ 26 (2003).

¶7 Less than two weeks before trial, Pogue filed several motions,

including a motion to suppress involuntary statements. Though titled a 

motion to suppress, it did not allege any constitutional violations or argue 

detectives obtained statements through coercive methods. The motion 

merely asked the court to examine whether Pogue’s statements were 

admissible under applicable law. At a pretrial hearing on the first day of 

trial, defense counsel conceded he filed the motion as a procedural 

precaution. The court noted the untimeliness of the motion, declined to 

make a pretrial ruling, and elected to consider the voluntariness of Pogue’s 

statements through the course of trial. Pogue did not object.

¶8 At trial, both parties elicited testimony related to Pogue’s

statements to detectives. In relevant part, the testimony revealed Pogue 

fully cooperated with the investigation, consented to a noncustodial

interview, and denied involvement in the offenses. Though the court noted 

it had not formally ruled on the issue of voluntariness mid-way through 

trial, Pogue did not object to proceeding without a ruling. In closing 

argument, defense counsel claimed Pogue’s cooperation with detectives

demonstrated his innocence. When Pogue raised the court’s failure to rule 

on the issue of voluntariness in a motion for new trial, the court denied the 

motion and found the evidence at trial showed his statements were 

voluntary.

¶9 The parties must raise all known issues by motion no later 

than 20 days before trial. Ariz. R. Crim. P. (“Rule”) 16.1(b). Any motion not 

timely raised may be precluded. Rule 16.1(c). Absent a timely challenge to 
STATE v. POGUE

Decision of the Court

4

the use of a defendant’s statements, the court is not required to sua sponte

make a voluntariness determination. Wainwright v. Sykes, 433 U.S. 72, 86 

(1977); State v. Bush, 244 Ariz. 575, 588–90, ¶¶ 54–62 (2018); State v. Smith, 

114 Ariz. 415, 419 (1977). Even if timely raised, we will not find statements

involuntary unless there is “both coercive police behavior and a causal 

relation between the coercive behavior and the defendant’s overborne 

will.” State v. Boggs, 218 Ariz. 325, 336, ¶ 44 (2008).

¶10 Pogue did not timely raise voluntariness or argue his 

statements to detectives should be suppressed. In essence, Pogue’s motion 

asked the court to make a sua sponte voluntariness determination. Thus, 

the court acted within its discretion in declining to rule on the untimely 

pretrial motion and reviewing the nature of the evidence as trial 

progressed. Rule 16.1(b), (c); Bush, 244 Ariz. at 588–90, ¶¶ 54–62. Though 

delayed, the court found Pogue’s statements were voluntary, and nothing 

in the record shows the delayed ruling impacted the evidence admitted at

trial. In fact, Pogue benefited from the admission of his statements because

his cooperation with detectives and denial of any misconduct supported his 

claimed innocence. Pogue cannot seek to profit from the admission of his 

statements and then argue the court’s failure to rule on his untimely,

equivocal challenge to those statements constitutes reversible error. See 

State v. Tassler, 159 Ariz. 183, 185 (App. 1988) (“One may not deliberately 

inject error in the record and then profit from it on appeal.”).

¶11 Even if properly raised, a motion that is not ruled on is 

deemed denied by operation of law. See State v. Hill, 174 Ariz. 313, 323 

(1993). Nothing in the record shows the court erred in effectively denying 

the motion to suppress Pogue’s statements. Detectives did not use coercive 

methods in obtaining Pogue’s statements. Because Pogue’s statements 

were voluntary and properly admitted, no error occurred. See Boggs, 218 

Ariz. at 335, ¶ 44.

B. Preclusion of Evidence Under Rape Shield Statute

¶12 Pogue contends the superior court erred by precluding 

evidence of V.P.’s pregnancies and her alleged sexually transmitted 

diseases. “The [superior] court has considerable discretion in determining 

the relevance and admissibility of evidence, and we will not disturb that 

ruling absent an abuse of discretion.” State v. Rose, 231 Ariz. 500, 513, ¶ 62 

(2013).

¶13 Pogue filed an untimely motion in limine to admit evidence 

pursuant to A.R.S. § 13–1421, known colloquially as the rape shield statute. 
STATE v. POGUE

Decision of the Court

5

Pogue sought to admit evidence of the following: (1) V.P. had two children

and once indicated Pogue may be the father; (2) testing excluded Pogue as 

the father of the children; (3) V.P. received treatment for unspecified 

sexually transmitted diseases; and (4) Pogue never received such treatment.

Pogue argued these instances occurred at the time of the offenses. Pogue 

did not include any supporting documents with his motion; instead, he

requested the court allow him to lay foundation through a detective in a 

brief pretrial hearing. After the hearing, the court denied the motion, 

finding Pogue failed to demonstrate that specific instances of pregnancy or 

disease could be used to undermine the State’s evidence, and the rape 

shield statute barred admission.

¶14 At trial, V.P. testified she gave birth to her son during the time 

of the offenses and told detectives she did not know if Pogue was the father.

She said that testing later excluded Pogue as the father. V.P. also explained

that Pogue removed his penis before ejaculating and helped her obtain 

contraceptives around the age of 16. In Pogue’s case-in-chief, Stephanie 

testified that when V.P.’s “kids were born, [V.P.] told [them] there were ten 

different people that could have been the fathers” and V.P. “never told the 

truth about anything.” Stephanie said V.P. saw an obstetrician at the age of 

13 or 14 and there were no signs of sexual activity at that time. V.P.’s 

brother testified that V.P. had a reputation for untruthfulness. In denying

Pogue’s motion for new trial, the court repeated its finding that the 

precluded instances fell within the protections of the rape shield statute.

¶15 Evidence of “specific instances of the victim’s prior sexual 

conduct may be admitted only if” a court finds (1) the evidence is relevant 

and “material to a fact in issue,” and (2) “the inflammatory or prejudicial 

nature of the evidence does not outweigh the probative value of the 

evidence.” A.R.S. § 13-1421(A). Such evidence may be admitted for limited 

purposes, including to show “the source or origin of semen, pregnancy, 

disease or trauma.” A.R.S. § 13-1421(A)(2). And before their admission, the 

alleged instances must be proven by clear and convincing evidence. A.R.S. 

§ 13-1421(B). The purpose of A.R.S. § 13-1421 is to protect victims “from 

being exposed at trial to harassing or irrelevant questions concerning any 

past sexual behavior.” State v. Gilfillan, 196 Ariz. 396, 400–01, ¶ 15 (App.

2000), abrogated on other grounds by State v. Carson, 243 Ariz. 463, 465–66, 

¶ 10 (2018).

¶16 Pogue has not shown the evidence was material to the facts at 

issue here. In proving the offenses, the State did not present evidence that 

Pogue was the source of physical or biological signs of sexual activity. The

evidence indicated Pogue used tactics to avoid pregnancy and V.P. showed 
STATE v. POGUE

Decision of the Court

6

no overt signs of sexual activity years into the abuse. Moreover, Pogue has 

not established that evidence of V.P.’s alleged treatment for diseases could 

be used to prove that his lack of treatment undermined the State’s

allegations.

¶17 Despite the court’s ruling, Pogue elicited testimony from 

Stephanie and V.P.’s brother that V.P. had a reputation for untruthfulness,

and she had admitted her “kids” could be fathered by “ten different” sexual 

partners. See supra ¶ 15. V.P. also conceded that testing excluded Pogue as 

the father of a child conceived during the time of the offenses. Thus, any

error in the court’s ruling was harmless. An error is harmless if the State 

proves beyond a reasonable doubt the error in precluding evidence did not 

impact the jury’s verdict. State v. Henderson, 210 Ariz. 561, 567, ¶ 18 (2005). 

To the extent Pogue sought to undermine V.P.’s credibility, that purpose 

was accomplished. We find no reversible error.

C. Violation of Rule Excluding Witnesses from Trial

¶18 Pogue argues the superior court erred by allowing a rebuttal 

witness to testify in violation of Rule 9.3(a)(1), (3), which states in part that

on a party’s request, a court must “exclude prospective witnesses from the 

courtroom during opening statements and other witnesses’ testimony” and 

direct them “not to communicate with each other about the case until all of 

them have testified.” This rule extends to witnesses that may be recalled in 

rebuttal. Rule 9.3(a)(4).

¶19 When trial began, at the State’s request the court explained

that “[t]he rule excluding witnesses has been invoked.” V.P.’s 

grandmother, Vicki, testified on the first day of trial, providing details of 

the family dynamic, V.P.’s disclosure, and the investigation involving her 

daughter, Stephanie. The day after Vicki testified, the court released her

from subpoena upon the State’s request. The rest of that day and the 

following day, the State presented testimony from V.P., detectives, and an 

expert in child sexual abuse. Pogue called defense witnesses, Stephanie and 

V.P.’s brother, who disputed V.P.’s version of events. On the fourth day of 

trial, the State called Vicki to testify in rebuttal to claims made by defense 

witnesses. Pogue objected, arguing Vicki’s testimony violated Rule 9.3(a)

because she attended portions of trial after her release from subpoena.

Acknowledging that Vicki remained present for some of the State’s 

witnesses, the court accepted the State’s avowal that Vicki did not hear 

testimony from defense witnesses and allowed her to testify only to rebut

their claims. Vicki’s testimony complied with this ruling, and she admitted 

in the jury’s presence that she was present for some of the trial.
STATE v. POGUE

Decision of the Court

7

¶20 In his motion for new trial, Pogue argued Vicki heard V.P.’s 

testimony in violation of Rule 9.3(a), and at a post-trial hearing he asserted 

she may have changed her testimony. At the hearing, Vicki testified she 

was present when one of the detectives testified and for some portions of 

V.P.’s testimony. Vicki avowed she did not speak with any witnesses about 

their testimony and did not modify her testimony in any way based on 

testimony she heard. In denying the motion for new trial, the trial judge 

stated he did “not find that [Vicki] bolstered or . . . manipulated her 

testimony.” The judge then explained the rebuttal testimony did not violate

the purpose of the rule and allowing it did not prejudice Pogue. The judge 

added that he “did not observe anything that would have caused me 

concern that she was intentionally changing testimony based upon what 

she may have heard.”

¶21 The purpose of Rule 9.3 is “to prevent witnesses from 

‘tailoring’ their testimony to that of earlier witnesses and to aid in detecting 

testimony that is less than candid.” Spring v. Bradford, 243 Ariz. 167, 170, 

¶ 14 (2017) (explaining the purpose of Arizona Rule of Evidence 615—

Excluding Witnesses) (quotations and citations omitted). When a party 

violates Rule 9.3, it is within the court’s discretion to admit the witness’s

testimony. Id. at 583–84, ¶¶ 18–20; State v. Gulbrandson, 184 Ariz. 46, 63 

(1995). We will reverse only if “the defendant shows that the trial court 

abused its discretion and that the defendant suffered prejudice.” State v.

Jones, 185 Ariz. 471, 483 (1996).

¶22 Our review of the record reveals no abuse of discretion by the 

court and no resulting prejudice to Pogue. Although Vicki’s presence in the 

courtroom upon her release from subpoena violated Rule 9.3(a), there is no 

indication she testified falsely or altered her rebuttal testimony to conform 

to the State’s theory of the case. It appears undisputed that Vicki was not 

present for Pogue’s case-in-chief, and the court properly limited her to 

rebutting defense witness testimony. The court acted within its discretion 

in accepting as reliable Vicki’s avowals that she did not modify her 

testimony and did not share information with other witnesses. See State v. 

Presley, 110 Ariz. 46, 48 (1973) (finding the trial court did not err in excusing 

a violation of the witness exclusion rule based in part on attorney’s avowal 

that he did not attempt to coach the witnesses); see also Wainwright v. Witt, 

469 U.S. 412, 428 (1985) (noting that “determinations of demeanor and 

credibility . . . are peculiarly within a trial judge’s province . . . [and] entitled 

deference on direct review”). Finally, Pogue’s cross-examination of Vicki 

as to the Rule 9.3(a) violation mitigated the threat of resulting prejudice. See

Spring, 243 Ariz. at 173–74, ¶¶ 28–29. 
STATE v. POGUE

Decision of the Court

8

CONCLUSION

¶23 We affirm Pogue’s convictions and sentences.