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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SHAUN ANDREW PETERSON, Appellant.

No. 1 CA-CR 15-0106

Appeal from the Superior Court in Maricopa County

No. CR2013-000551-001 DT

The Honorable Margaret R. Mahoney, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By William Scott Simon

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Mikel Steinfeld

Counsel for Appellant
STATE v. PETERSON

Decision of the Court

2

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which 

Presiding Judge Andrew W. Gould and Judge Randall M. Howe joined.

C A T T A N I, Judge:

¶1 Shaun Andrew Peterson appeals his convictions and 

sentences for five counts of sexual conduct with a minor and two counts of 

child molestation. For reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2007, Peterson moved in with the victim and the victim’s 

mother (“Mother”) and brother (“Brother”). The victim was in 

kindergarten at the time. Mother had drug issues and she suffered from 

mental illness; as a result, Peterson became the children’s primary 

caregiver.

¶3 On February 28, 2012, Peterson contacted the police to report 

that Mother had sexually abused the victim. That afternoon, Phoenix Police 

Detective Leske met with Peterson and the victim at the Family Advocacy 

Center. The victim reported a single act of sexual abuse, occurring in 

October 2011, from which she had sustained a vaginal injury and bled for 

three days. After meeting with Peterson and the victim, Detective Leske 

went to the victim’s residence and spoke with Mother, who denied injuring 

the victim.

¶4 Based on the reported injury, Detective Leske arranged for the 

victim to have a medical examination by a pediatrician at Phoenix 

Children’s Hospital. The doctor first spoke with Peterson, who 

accompanied the victim to the hospital and told the doctor that the victim 

had accused Mother of injuring her. Upon examining the victim, the doctor

observed a “healed complete tear in the hymen” that was indicative of 

penetrating trauma.

¶5 Soon thereafter, the victim, Brother, and Peterson moved in 

with the victim’s maternal grandmother (“Grandmother”). Over the next 

ten days, Grandmother noticed that the victim would frequently lie on 

Peterson and that they would often text each other and then immediately 
STATE v. PETERSON

Decision of the Court

3

erase the texts. Grandmother relayed her concerns regarding these 

behaviors to a police detective and asked Peterson to move out of her home.

¶6 On March 22, 2012, after interviewing Grandmother and 

Brother, Detective Leske informed Mother that he was submitting the 

evidence from his investigation to the Maricopa County Attorney’s Office 

to determine whether charges should be filed against her. At that point, 

Mother indicated that Peterson had recently acknowledged sexually 

abusing the victim. Based on this information, Detective Leske arranged 

for a “one-party consent call” in which Mother would confront Peterson 

with sexual abuse allegations.

¶7 During the confrontation call, Peterson admitted touching the 

victim’s genitals, digitally penetrating the victim’s vagina, and “almost 

daily” oral–vaginal contact with the victim. Immediately after the 

confrontation call, Detective Leske went to Mother’s house, where he found

Peterson. With Mother’s consent, the detective searched the home and 

discovered that one of the bedroom mattresses had pieces cut out of it.

¶8 Detective Leske interviewed Peterson at the police station. 

After being advised of his Miranda1 rights, Peterson told the detective that 

he was “going to take the blame for [Mother].” Detective Leske instructed 

Peterson to simply tell the truth, and Peterson said he would do so.

¶9 Peterson told Detective Leske that he first touched the 

victim’s genitals when she was seven years old. Mother was at a hospice 

facility caring for her grandmother and was unaware that Peterson had 

touched the victim’s genitalia while they were cuddling under a blanket on 

the couch. Peterson also admitted to having oral–vaginal contact and oral–

penile contact with the victim, and to having the victim manually touch his 

genitals. Although Peterson claimed Mother was present during some of 

the acts, he described himself as the perpetrator. Consistent with the 

victim’s description, Peterson also admitted to digitally penetrating the 

victim’s vagina in a manner that caused injury and bleeding. Peterson 

stated that Mother was not present at that time. Peterson further informed 

Detective Leske that several acts occurred on a bed, and he had cut out 

portions of the mattress to remove stains. He likewise destroyed a secure 

digital card that contained incriminating evidence.

¶10 The victim subsequently submitted to a second forensic 

interview conducted by Wendy Dutton, a member of Phoenix Children’s 

 

1 Miranda v. Arizona, 384 U.S. 436 (1966).
STATE v. PETERSON

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Hospital’s Child Protection Team. The victim told Dutton that Peterson, 

not Mother, had sexually abused her.

¶11 Based on the victim’s revised statements and Peterson’s 

confession, he was charged with five counts of sexual conduct with a minor 

and two counts of child molestation.

¶12 At trial, the victim testified that after returning home from

school one afternoon, she and Peterson were alone upstairs and Mother was 

outside. Peterson removed the victim’s clothing and digitally penetrated 

her vagina, which caused pain and bleeding. The victim screamed, and 

Peterson covered her mouth with his other hand. The victim then bit 

Peterson’s hand, ran to the bathroom, and locked the door. The victim also 

testified that Peterson repeatedly had oral contact with her genitals, 

including while waking her from sleep. He also repeatedly had her orally 

and manually touch his genitals.

¶13 Peterson testified, claiming that the victim told him that 

Mother had sexually abused her. Peterson stated that he confronted Mother

with the accusation, then reported the abuse to the police. When asked why 

he confessed to numerous acts of sexual abuse in the confrontation call, 

Peterson explained that he “t[ook] the blame . . . to help throw off the 

detective.” Peterson further stated that he was on numerous narcotic 

medications that impaired his thinking. When questioned about his explicit 

descriptions of various sex acts, both in the confrontation call and during 

his interview with Detective Leske, Peterson claimed he was simply

recalling sex acts with Mother, not conduct with the victim. Peterson 

denied having any type of sexual contact with the victim. He maintained

that he confessed to committing sexual abuse only “to confuse Detective

Leske” and testified that he thought the allegations of sexual acts with the 

victim were “so outrageous” that no one would believe them. He likewise

asserted that he cut out stains from the mattress “to throw Detective Leske 

off.”

¶14 The jury convicted Peterson as charged, and the superior 

court sentenced him to four consecutive lifetime sentences for four of the

counts of sexual conduct with a minor, to be followed by consecutive prison 

terms totaling 37 years on the remaining counts. Peterson timely appealed, 
STATE v. PETERSON

Decision of the Court

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and we have jurisdiction under Arizona Revised Statutes (“A.R.S.”) § 13-

4033.2

DISCUSSION

I. Preclusion of Prior Inconsistent Statement.

¶15 Peterson contends the superior court erred by precluding 

evidence that Mother had committed an act of physical abuse against 

Brother. Peterson argues that the court’s ruling prevented him from fully 

presenting his third-party defense and hindered his ability to refute the 

State’s assertion that Mother had never physically harmed the children.

¶16 The victim testified that although she was afraid of Mother, 

Mother was never violent with her. Brother also testified that he was afraid 

of Mother because she yelled and threw things at him and the victim, but 

he also said Mother had never physically hurt him. Like the victim, Brother

testified that he felt safer with Peterson than with Mother. The prosecutor, 

during closing argument, acknowledged that Mother had a volatile 

temperament, but argued that she had “never” physically harmed her 

children.

¶17 On cross-examination, defense counsel attempted to 

introduce into evidence a transcript of Brother’s prior police interview in 

which he stated that Mother had extinguished a cigarette on his hand.

Counsel asserted that the prior interview was relevant to impeach Brother’s 

testimony that Mother never hurt him. The State objected, arguing that it 

related to an alleged prior bad act and was inadmissible under Arizona 

Rule of Evidence (“Rule”) 404(b). The court found the evidence “to be 

clearly 404(b).” Defense counsel then sought to introduce the evidence for 

impeachment purposes as a prior inconsistent statement, and the State 

responded that the evidence was irrelevant, unduly prejudicial, and subject 

to exclusion under Rule 404(b). The State further argued that it was unclear 

from the interview transcript whether the cigarette burn was accidental or 

intentional, and thus the evidence was not clearly impeachment material. 

The superior court, “persuaded by all of the arguments the State ha[d] 

made,” precluded the evidence. The court also noted that evidence Mother 

committed a single act of physical abuse did not increase the likelihood that 

she had committed multiple acts of sexual abuse, and therefore was of 

limited probative value.

 

2 Absent material revisions after the relevant date, we cite a statute’s 

current version.
STATE v. PETERSON

Decision of the Court

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¶18 We review the admissibility of third-party culpability 

evidence for an abuse of discretion. State v. Prion, 203 Ariz. 157, 161, ¶ 21

(2002). We will affirm the superior court’s admissibility ruling if the result 

is legally correct on any basis. State v. Carlson, 237 Ariz. 381, 387, ¶ 7 (2015). 

As argued by Peterson and acknowledged by the State, the admission of 

third-party culpability evidence is governed by Rules 401 through 403.

State v. Machado, 226 Ariz. 281, 284, ¶ 16 (2011); Prion, 203 Ariz. at 161, ¶ 22. 

Accordingly, when evaluating the admissibility of third-party culpability 

evidence, the general rules of evidence apply and evidence “must simply 

be relevant and then subjected to the normal 403 weighing analysis between 

relevance, on the one hand, and prejudice or confusion on the other.” Prion, 

203 Ariz. at 161, ¶ 22.

¶19 Peterson contends that Brother’s prior statement to police

should have been admitted both substantively and for impeachment 

purposes. A witness’s prior inconsistent statement is not hearsay and may 

be introduced as substantive evidence when the witness testifies at trial and 

is subject to cross-examination. Ariz. R. Evid. 801(d)(1)(A); see also State v. 

Skinner, 110 Ariz. 135, 142 (1973); State v. Mills, 196 Ariz. 269, 274, ¶ 21 (App. 

1999) (explaining that a “jury may consider prior inconsistent statements as 

impeachment and as substantive evidence”).

¶20 The State argues that Brother’s trial testimony was not 

inconsistent with his statement during the police interview because his 

statement did not specify whether Mother put the cigarette out on his hand

intentionally. But Brother was not asked at trial whether Mother had ever 

intentionally hurt him, but rather whether Mother had ever physically hurt 

him. Brother’s repeated denial that Mother had ever caused him physical 

harm was thus inconsistent with his statement during the police interview 

that she had extinguished a cigarette on his hand. Accordingly, Brother’s 

statement to police qualified as non-hearsay under Rule 801(d)(1)(A).

¶21 A prior inconsistent statement nevertheless may be precluded 

under Rule 403 if its relevance is outweighed by the risk that it is unduly 

prejudicial or confusing, or will mislead the jury. See also State v. Allred, 134

Ariz. 274, 277 (1982). Here, the superior court balanced the Rule 403 factors, 

and did not abuse its discretion by precluding the proffered evidence as 

tenuous, speculative, and of only marginal relevance. See State v. Dann, 205 

Ariz. 557, 569, ¶ 36 (2003) (noting that a trial court need not allow “mere 

suspicion or speculation” regarding another’s guilt, and that proffered 

third-party culpability evidence is irrelevant if it fails to create a reasonable 

doubt regarding the defendant’s guilt or if it fails the Rule 403 test due to

its “tenuous and speculative nature”).
STATE v. PETERSON

Decision of the Court

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¶22 Moreover, any possible error from precluding the evidence of 

physical harm was harmless. See Delaware v. Van Arsdall, 475 U.S. 673, 684 

(1986) (“The correct inquiry is whether, assuming that the damaging 

potential of the cross-examination were fully realized, a reviewing court 

might nonetheless say that the error was harmless beyond a reasonable 

doubt.”). To evaluate the harm caused by improper denial of an 

impeachment opportunity, we consider “the importance of the witness’ 

testimony in the prosecution’s case, whether the testimony was cumulative, 

the presence or absence of evidence corroborating or contradicting the 

testimony of the witness on material points, the extent of cross-examination 

otherwise permitted, and, of course, the overall strength of the 

prosecution’s case.” Id.

¶23 Applying these principles here, Brother’s testimony was of 

minimal importance to the State’s case, and Peterson was able to present his 

third-party defense without the physical harm evidence. First, Brother did 

not witness any acts of sexual abuse and was not told Peterson sexually

abused the victim until after the victim’s revised disclosures to the police. 

Thus, even if defense counsel had been permitted to use the prior 

inconsistent statement to undermine Brother’s credibility and the weight 

accorded his testimony, it would not have called into question the strength 

of the State’s case. Second, although defense counsel was unable to elicit 

any other evidence that Mother had engaged in an act of physical abuse, 

the record includes significant evidence that Mother was unstable and 

frightened the children, including by throwing things at them. Both Brother

and the victim testified that they were fearful of Mother and felt much safer 

with Peterson. Third, other than this limitation, defense counsel was 

permitted considerable latitude in cross-examining Brother. Fourth, and 

most importantly, the evidence of Peterson’s guilt was overwhelming. In 

both the confrontation call and in Peterson’s police interview, he explicitly 

acknowledged numerous acts of sexual abuse. He also confessed to 

destroying physical evidence of the sexual abuse. Likewise, in her revised

police statements and at trial, the victim identified Peterson as the 

perpetrator. Accordingly, any error relating to Brother’s testimony was 

harmless.

¶24 Although the superior court precluded evidence of Brother’s 

prior inconsistent statement, the prosecutor’s argument that Mother never 

physically harmed her children was improper. The court’s preclusion 

ruling was not based on a finding that the evidence was inaccurate, and the 

ruling did not justify an argument that the evidence did not exist. 

Nevertheless, error from the prosecutor’s argument (which was not 

evidence), was similarly harmless given the overwhelming evidence of 
STATE v. PETERSON

Decision of the Court

8

Peterson’s guilt and the limited relevance of information that Mother may 

have previously harmed Brother physically.

II. Denial of Motion for Mistrial.

¶25 Peterson contends the superior court erred by denying his 

motion for mistrial. Specifically, he asserts the court should have declared 

a mistrial after a witness referred to Mother’s voice-stress test results that 

had been precluded by a previous court order.

¶26 We review the denial of a motion for mistrial for an abuse of 

discretion. State v. Jones, 197 Ariz. 290, 304, ¶ 32 (2000). In evaluating

whether a mistrial is warranted, the superior court “is in the best position 

to determine whether the evidence will actually affect the outcome of the 

trial.” Id. In State v. Hallman, 137 Ariz. 31, 37 (1983), the Arizona Supreme 

Court noted that, in making this determination, the court should consider 

“(1) whether the remarks called to the attention of the jurors matters that 

they would not be justified in considering in determining their verdict, and 

(2) the probability that the jurors, under the circumstances of the particular 

case, were influenced by the remarks.” Because a “declaration of a mistrial 

is the most dramatic remedy for trial error,” it should be granted “only 

when it appears that justice will be thwarted unless the jury is discharged 

and a new trial granted.” State v. Adamson, 136 Ariz. 250, 262 (1983).

¶27 In the weeks leading up to trial, the parties stipulated that the 

results of Mother’s voice-stress test were inadmissible, and the court 

precluded evidence of the test. At trial, however, Grandmother

volunteered that she doubted Mother had committed sexual abuse because 

“she passed a lie detector test.” Defense counsel objected and moved for a 

mistrial. The court denied the mistrial, but gave a curative instruction 

informing the jury that no lie-detector test had ever been administered to 

Mother and struck the portion of Grandmother’s testimony referring to 

such a test:

Ladies and gentlemen, you have just heard the witness 

mention a lie detector test. The parties stipulate there was no 

lie detector test given to [Mother]. You are further instructed 

that the Court is ordering striking from the record any 

testimony about a lie detector test. The jury is instructed to 

disregard that in its entirety, not consider it for any purpose.

¶28 During closing argument, defense counsel questioned the 

veracity of Grandmother’s testimony by stating: “[Grandmother] testified 

that [Mother] took a lie detector [test], when everyone agrees that didn’t 
STATE v. PETERSON

Decision of the Court

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happen. [Grandmother] doesn’t want to see her daughter get in trouble.” 

After defense counsel finished his argument, the court again admonished 

the jurors that the testimony regarding a lie-detector test had been stricken 

from the record and ordered the portion of defense counsel’s argument

referring to a lie-detector test stricken as well.

¶29 Applying the first prong of the Hallman test, Grandmother

clearly testified about evidence that was inadmissible. As to the second 

prong, however, the superior court’s curative instructions minimized the 

possibility that the improper evidence may have influenced the jury’s 

verdicts. In fact, rather than simply striking Grandmother’s testimony as 

improper, the court informed the jurors that Grandmother’s testimony was 

incorrect. Thus, to the extent the jurors considered the stricken testimony, 

in contravention of the court’s instruction, it was with the understanding 

that Grandmother was either ill-informed about the administration of a liedetector test or she had lied about the existence of such a test. As shown by 

defense counsel’s reference to the initial curative instruction in his closing 

argument, any lingering harm caused by Grandmother’s errant testimony 

undermined her credibility and inured to Peterson’s benefit. Accordingly, 

the superior court did not abuse its discretion by denying Peterson’s motion 

for mistrial.

III. Denial of Counseling Records and Testimony.

¶30 Peterson argues the superior court impaired his constitutional 

right to confront a witness by denying his discovery request for the victim’s 

counseling records and by limiting counsel’s cross-examination of the 

victim regarding counseling.

¶31 We generally review discovery rulings for an abuse of 

discretion. State v. Connor, 215 Ariz. 553, 557, ¶ 6 (App. 2007). But to the 

extent a defendant asserts a constitutional claim that the information is 

critical to his defense, we review de novo. Id. We likewise review de novo 

evidentiary rulings that implicate the Confrontation Clause. State v. Ellison, 

213 Ariz. 116, 129, ¶ 42 (2006).

¶32 At the close of the fourth day of trial, defense counsel learned 

that the victim had been in counseling. That evening, defense counsel 

moved to compel the disclosure of the victim’s counseling records. At a

hearing on the motion, defense counsel argued that access to the records 

was necessary to determine whether the victim had wavered on her claim 

that Peterson was the perpetrator and also to establish whether the victim 

was taking any medications that might affect her memory. The court 
STATE v. PETERSON

Decision of the Court

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denied the motion, finding that defense counsel had failed to provide “any 

kind of specific basis to believe that there’s anything in those counseling 

records that would be relevant [and] exculpatory.” The following day, 

while cross-examining the victim, defense counsel questioned her about

counseling and the State objected. The court sustained the State’s objection,

noting at a bench conference that the victim received counseling only after

she had revised her statements, and that counsel had not established a

good-faith basis to believe that the line of questioning would reveal any 

exculpatory evidence.

¶33 Under the Victim’s Bill of Rights, a victim may refuse 

“discovery request[s] by the defendant.” Ariz. Const. art. 2, § 2.1(A); see also 

State ex rel. Romley v. Superior Court, 172 Ariz. 232, 239 (App. 1992). “[T]his 

right is not absolute, and in some cases a victim may be required to produce 

his or her medical records for in camera inspection by the trial court.” State 

v. Sarullo, 219 Ariz. 431, 437, ¶ 20 (App. 2008); Connor, 215 Ariz. at 558, ¶ 11. 

But a defendant must first make a showing that either the physician–patient 

privilege has been waived or that the information sought is necessary to 

fully present his defense or cross-examine witnesses. Connor, 215 Ariz. at 

558, ¶ 11; see also Romley, 172 Ariz. at 239 (explaining that the defendant’s 

due process rights to a fair trial overcome the Victim’s Bill of Rights and 

mandate disclosure when the court determines the victim’s medical records 

are either exculpatory or essential to the presentation of the defense).

¶34 In this case, defense counsel argued that the counseling 

records “may” or “could” reveal that the victim’s memory was affected by 

medication or that she was influenced to identify Peterson as the 

perpetrator of the sexual abuse. But there was no evidence that the victim 

had waivered after identifying Peterson as the perpetrator. And given that 

the victim identified Peterson as the perpetrator before beginning 

counseling, the superior court did not abuse its discretion by denying 

Peterson’s request after finding that he had presented only speculation, 

rather than a “sufficiently specific basis,” to believe there was information 

that was exculpatory or otherwise essential to his defense. See Connor, 215 

Ariz. at 558, ¶ 11.

IV. Admission of Nonverbal Out-of-Court Response.

¶35 Peterson argues the superior court erred by admitting

evidence that Mother screamed when she saw that one of the mattresses 

had portions removed. Specifically, Peterson asserts this nonverbal 

conduct was “intended as an assertion” and therefore constituted

inadmissible hearsay.
STATE v. PETERSON

Decision of the Court

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¶36 At trial, Detective Leske testified that Mother accompanied 

him as he searched her home. The prosecutor then asked what the detective 

observed with respect to Mother when he flipped over a mattress, revealing 

cut-out sections. Defense counsel objected, stating Mother’s reaction, a 

scream, was a statement indicating surprise, the equivalent of saying “I 

didn’t know that was there.” The court overruled the objection, finding that 

“a reaction” such as a scream, laugh, or cry is not a statement, and thus 

“there can’t be the truth within the statement being asserted.” Detective 

Leske was then permitted to testify that Mother “screeched and began to 

cry” when she saw the mattress.

¶37 We review the superior court’s evidentiary ruling for an 

abuse of discretion. State v. Johnson, 212 Ariz. 425, 433, ¶ 25 (2006). We will 

affirm the ruling if the result is legally correct for any reason. Carlson, 237 

Ariz. at 387, ¶ 7.

¶38 An “oral assertion, written assertion, or nonverbal conduct”

is a “statement” (and may be hearsay) if intended as an assertion. Ariz. R. 

Evid. 801(a). But “words or conduct not intended as assertions are not 

hearsay even when offered as evidence of the declarant’s implicit belief of 

a fact.” State v. Chavez, 225 Ariz. 442, 444, ¶ 8 (App. 2010). “When evidence 

of conduct is offered on the theory that it is not a statement, and hence not 

hearsay, a preliminary determination will be required to determine 

whether an assertion is intended.” Fed. R. Evid. 801 advisory committee’s

note to 1972 proposed rules subdivision (a). “The rule is so worded as to 

place the burden upon the party claiming that the intention existed; 

ambiguous and doubtful cases will be resolved . . . in favor of 

admissibility.” Id. And “[c]onduct can only be deemed an assertion if there 

is specific evidence or circumstances indicating the actor intended the 

conduct to be an assertion of the fact sought to be proved.” State v. Steinle, 

239 Ariz. 415, 420, ¶ 22 (App. 2016); see also Ellison, 213 Ariz. at 132, ¶ 56 

(noting that “[m]ere speculation as to [the individual’s] intent, without 

independent evidence,” is insufficient to prove that nonverbal conduct was 

intended as an assertion).

¶39 In this case, nothing in the record suggests Mother’s response

was intended as an assertion. Peterson did not present independent 

evidence to support his claim that Mother intended to assert surprise by 

shrieking and crying, and the superior court did not abuse its discretion by 

allowing the detective’s testimony regarding Mother’s nonverbal response.
STATE v. PETERSON

Decision of the Court

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CONCLUSION

¶40 Peterson’s convictions and sentences are affirmed.