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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAMES GODREY MORPHIS, III, Appellant.

No. 1 CA-CR 18-0177

Appeal from the Superior Court in Maricopa County

No. CR2016-126427-001

The Honorable Dean M. Fink, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Michael O’Toole

Counsel for Appellee

DM Cantor, Phoenix

By Christine Whalin, Jazmyn Taitingfong

Counsel for Appellant

FILED 8-8-2019
STATE v. MORPHIS

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in 

which Judge Jennifer M. Perkins and Judge David D. Weinzweig joined.

H O W E, Judge:

¶1 James Godrey Morphis, III, appeals his convictions and 

sentences for 14 crimes consisting of sexual abuse, child molestation, and 

sexual conduct with a minor. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

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

verdicts. State v. Payne, 233 Ariz. 484, 509 ¶ 93 (2013). Morphis lived with 

his girlfriend and her daughter, M.M. On June 1, 2016, shortly after M.M. 

turned 12 years old, Morphis picked her up from “summer camp” at a local 

school and took her to a clothing store. When they arrived home, M.M.

locked herself in her room because she was “scared” that something “was 

going to happen.” She later informed her mother that Morphis had been 

touching her inappropriately, and her mother called the police. M.M. 

underwent a forensic interview and medical examination on June 2.

¶3 During the forensic interview, M.M. stated that she was about

nine years old when Morphis started to touch her private parts. He would

put his hand up her shirt and touch her “chest.” He would also put his hand 

in M.M.’s pants and rub “on the outside[] with his hands[,]” but did not 

“put his finger inside” her vagina. She stated that he “started to do more 

things” when she turned 11 years old. For example, one night while M.M. 

was sleeping in her room, Morphis went naked into her room and pulled 

down her shorts and underwear. He then touched M.M. with his “private 

area” and then put it “inside” of M.M.’s “private area.” M.M. stated that 

Morphis “basically” had “sex with [her]” and had done so more than once.

The interviewer asked her to elaborate what she meant by “sex.” M.M. 

replied that Morphis stuck his “private area into [her] pee private” and 

“then stuff came out, and it was in [her].” She then explained that the 

“stuff” was “white” and “creamlike.” The interviewer asked M.M. to 

describe another time that Morphis had sex with her. M.M. did not describe 

an incident of penile-vaginal intercourse, but instead an incident where 

Morphis rubbed his penis on her butt. Afterwards, M.M. stated that 
STATE v. MORPHIS

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Morphis “licked” the inside of her “private area” on multiple occasions. She 

stated that the last time Morphis touched her inappropriately was on May

27, 2016.

¶4 M.M.’s mother made a “confrontation call” to Morphis, which 

the police recorded. She told Morphis that M.M. had claimed that he “stuck 

[his] thing in her thing.” Morphis admitted that he had “touched [M.M.] 

inappropriately” and that he was “very ashamed.” During the course of 

their conversation, Morphis stated that he had (1) “licked” M.M.; (2) put his 

fingers inside M.M.; (3) put his penis against M.M.’s vagina about three 

times, but did not put it in her vagina; (4) laid M.M. down on a bed after a 

shower and “licked” her; (5) put his finger in M.M.’s butt four to six times; 

(6) “licked” M.M. less than ten times; (7) put his fingers in M.M.’s butt or 

vagina eight times; (8) ejaculated one time while he put his penis against 

M.M.’s vagina, but not in it; (9) made M.M. rub his penis with her hands 

sometimes; (10) made M.M. “cum,” usually with his tongue; (11) made 

M.M. “cum” with this tongue about three weeks ago; and (12) had sexual 

activity with M.M. 18 to 20 times.

¶5 Morphis stated that he had committed these acts with M.M. 

because of his “overwhelming desires,” which he described as an addiction. 

After the confrontation call, Morphis sent M.M. a text stating, “I’m so sorry 

for everything I’ve done. I love you so much and I promise you, I will never 

touch you again. I hope some day you will be able to forgive me.” M.M.’s 

mother sent Morphis a text stating that she loved him, and Morphis 

responded, “I don’t know how you can. I hate myself.”

¶6 Morphis was subsequently indicted for two counts of sexual 

abuse, seven counts of child molestation, and seven counts of sexual 

conduct with a minor. Under Arizona Rule of Criminal Procedure 15.1 and 

Arizona Rule of Evidence (“Rule”) 404, the State disclosed that “[a]ny 

written or electronically recorded statements of any witnesses” and “[a]ny 

written or electronically recorded statements of the defendant” may be 

introduced into evidence. 

¶7 Morphis was tried nearly two years later in February 2018.

M.M. testified at Morphis’s trial but stated that she could not remember 

details involving the sexual contacts on at least three different occasions

during her testimony, and she omitted explanation of multiple charged 

acts. In contrast, during the recorded interview, M.M. supplied many more 

details concerning the charged acts. M.M. testified that she remembered the 

events better when she was interviewed and that she told the truth during 

the interview. The State subsequently asked to publish her recorded 
STATE v. MORPHIS

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interview to the jury. Morphis objected, arguing that M.M.’s recorded 

interview was not a “recorded recollection” under Rule 803(5). The court 

granted the request over Morphis’s objection. Morphis objected once again,

arguing that the interview presented evidence of “other acts” that were

inadmissible under Rule 404. The trial court overruled the objection, 

however, finding that M.M.’s statements did not constitute evidence of 

other acts.

¶8 Morphis also objected to the admission of the confrontation 

call. Because he was charged with only 16 instances of sexual contact, he 

argued the other occasions discussed in the confrontation call constituted 

inadmissible other-acts evidence under Rule 404. The trial court rejected his 

argument, ruling that Rule 404 did not apply because Morphis 

approximated the number of acts as opposed to specifically identifying 

other acts.

¶9 A detective who searched Morphis’s phone after his arrest 

testified that he discovered that the text message sent to M.M. expressing 

regret over his actions was not in the phone’s memory. The detective 

testified that a possible explanation for the missing message was that it had 

been deleted. The State consequently requested a concealment jury 

instruction. Over Morphis’s objection, the court granted the State’s request. 

The court instructed the jury that

you may consider any evidence of the defendant’s . . . hiding[]

or concealing evidence, together with all the other evidence 

in the case. (You may also consider the defendant’s reasons 

for . . . hiding[] or concealing evidence.) . . .

¶10 During trial, Morphis requested that the court instruct the 

jury that sexual interest was an element of the charged offenses. The court 

denied his request. Morphis moved for a judgment of acquittal, and the 

court granted Morphis’s motion on two charges for sexual conduct with a 

minor. After trial, the jury convicted Morphis of the remaining charges. He 

was sentenced to five consecutive terms of life in prison. Morphis timely 

appealed.

DISCUSSION

¶11 Morphis argues that the trial court erred by (1) admitting in 

evidence M.M.’s recorded interview as a “recorded recollection[,]”

(2) failing to exclude M.M.’s recorded interview statements and the 

confrontation call because they contained evidence of “other acts” that were 

inadmissible under Rule 404(b)–(c), (3) denying his motions for directed 
STATE v. MORPHIS

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verdicts based on insufficient corpus delicti, (4) instructing the jury on flight 

or concealment, and (5) not instructing the jury that sexual interest was an 

element of the offenses. 

1. The Recorded Interview Was Admissible as a Recorded 

Recollection Under Rule 803(5).

¶12 We review a trial court’s evidentiary ruling for an abuse of 

discretion. State v. Sanders, 245 Ariz. 113, 128 ¶ 58 (2018). Under Rule 803(5), 

a recorded recollection may be read into evidence if the recording is (1) on 

a subject that the witness once knew about but now cannot remember well 

enough to testify fully and accurately, (2) was made by the witness when it 

was fresh in the witness’s memory, and (3) accurately reflects the witness’s 

knowledge. 

¶13 Here, all three factors were sufficiently met. M.M. testified 

that she could not remember details involving the sexual contacts on at least

three different occasions, and she omitted explanation of multiple charged 

acts. M.M. also struggled to answer questions regarding the allegations 

against Morphis. During the recorded interview, M.M. gave many more 

details concerning the charged acts. Regarding the freshness of her 

memory, M.M. testified that she remembered the events better when she 

was interviewed. Regarding the accuracy of her recorded recollection, she 

stated that she told the truth during the interview. The testimony she 

provided also coincided with the statements she made during her recorded 

recollection, bolstering the accuracy of the recorded recollection. Thus, the 

publication of the recording was not an abuse of discretion. 

¶14 Morphis contends that the State should have tried to refresh 

M.M.’s memory with the forensic interview before seeking to admit it. But

Rule 803(5) does not require an attempt to refresh. See State v. SalazarMercado, 234 Ariz. 590, 592 ¶ 4 (2014) (“If a rule’s language is plain and 

unambiguous, we apply it as written without further analysis.”) Despite 

this, Morphis relies on State v. Ortega, 220 Ariz. 320 (App. 2008) to support 

his position. In Ortega, this Court stated that “[i]f the attempt to refresh the 

witness’s recollection [under Rule 612] is unsuccessful, the writing may 

then be read into the record [under Rule 803(5)], although it may not be 

separately admitted into evidence.” Id. at 330 ¶ 33. Rule 803(5) was not at 

issue in Ortega, and it did not hold that in addition to the requirements 

outlined in Rule 803(5), an additional, unwritten requirement to refresh also 

exists. Thus, the cited language is nothing more than nonbinding dicta. In

contrast, this Court in Goy v. Jones allowed the reading of a police officer’s 

report to a jury under Rule 803(5) even though the record did not show that 
STATE v. MORPHIS

Decision of the Court

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anyone had attempted to refresh the testifying witness’s recollection before 

reading the report. 205 Ariz. 421, 422–24 ¶¶ 4–11 (App. 2003). This 

argument is therefore unpersuasive.

¶15 Morphis next argues that the court erred when it concluded 

that Rule 803(5)’s freshness prong was satisfied because the interview 

included events that were three to five years old. The trial court had a 

sufficient basis to find that the events were fresh in M.M.’s mind when she 

was interviewed. The record shows that M.M. testified that the last time 

Morphis inappropriately touched her was on May 27, 2016, and the June 2 

interview occurred less than a week later. Additionally, Rule 803(5) does 

not contain a time limitation regarding the freshness prong, and the trial 

court has broad discretion over this matter. See United States v. Patterson, 678 

F.2d 774, 779 (9th Cir. 1982) (“Broad discretion for the trial judge is clearly 

intended under [Fed. R. Evid.] 803(5), as the advisory committee notes 

indicate: ‘No attempt is made in the exception to spell out the method of 

establishing the initial knowledge or the contemporaneity and accuracy of 

the record, leaving them to be dealt with as the circumstances of the 

particular case might indicate.’”); see also State v. Alatorre, 191 Ariz. 208, 212 

¶ 10 (App. 1998) (upholding the trial court’s ruling admitting the victim’s 

interview statements when “[t]he offenses occurred between November 1, 

1994, and March 17, 1995[,]” and the interview occurred in “early April 

1995”), abrogated on other grounds by State v. Ferrero, 229 Ariz. 239 (2012).1

2. M.M.’s Interview Statements and the Confrontation Call 

Were Admissible

¶16 Morphis argues that the trial court abused its discretion in 

admitting M.M.’s interview because various statements in the interview 

were inadmissible “other acts” under Rule 404. Morphis also contends that 

the trial court abused its discretion in admitting the confrontation call. He 

argues that because he was charged with 16 specific instances of sexual 

contact but the confrontation call discusses other occasions of sexual 

 

1 Morphis also argues that because M.M. stated that the interview 

occurred on June 1 rather than June 2, the trial court could not be sure that 

M.M. testified to the same interview. The court noted, however, that “there 

[was] absolutely no basis . . . to believe that there was a separate interview 

done on June 1st” and that neither party could “offer any information to 

indicate there was a separate interview done.” 
STATE v. MORPHIS

Decision of the Court

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contact, evidence of the other occasions constituted evidence of “other acts” 

that was inadmissible under Rule 404.2

¶17 Rule 404(b) provides that “[e]xcept as provided in Rule 404(c) 

evidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show action in conformity therewith.” Rule 

404(c) provides that other acts may be admitted in cases alleging sexual 

offenses “to show that the defendant had a character trait giving rise to an 

aberrant sexual propensity to commit the offense charged.” To admit 

evidence of another act in sexual misconduct cases, the court must find that 

(1) the evidence is sufficient to allow the jury to find that the defendant 

committed the other act, (2) the other act provides a reasonable basis to infer 

that the defendant has a character trait showing a sexual propensity to 

commit the charged crime, and (3) the evidentiary value of the other act is 

not substantially outweighed by unfair prejudice. Ariz. R. Evid. 

404(c)(1)(A)–(C). The evidence supporting a finding that a defendant 

committed the other act must be clear and convincing. State v. Aguilar, 209 

Ariz. 40, 49 ¶ 30 (2004).

¶18 M.M.’s interview statements were admissible under Rule 

404(c). She made statements that Morphis had committed sexual offenses 

against her, and those statements alone were sufficient to provide clear and 

convincing evidence that the acts occurred. See State v. Vega, 228 Ariz. 24, 

29 ¶ 19 n.4 (App. 2011) (“The testimony of the victim is a sufficient basis on 

which to conclude by clear and convincing evidence that the incident 

occurred.”). M.M.’s statements also provided a reasonable basis to infer that 

Morphis had a character trait giving rise to an aberrant sexual propensity 

to commit the charged sexual offenses because evidence of a prior similar 

sex offense committed against the same victim may show a defendant’s 

sexual propensity toward the particular victim. See State v. Herrera, 232 Ariz. 

536, 547 ¶ 28 (App. 2013). Further, the probative value of M.M.’s statements 

was not outweighed by the danger of unfair prejudice because they helped 

 

2 Morphis claims that M.M.’s interview statements and confrontation 

call were undisclosed Rule 404 character evidence. The record, however, 

shows that the State’s disclosure under Arizona Rule of Criminal Procedure 

15.1 disclosed both forms of evidence. The State’s disclosure specifically 

stated that under Arizona Rule of Criminal Procedure 15.1 and Rule 404, 

the State gave notice that it “may introduce into evidence . . . any written or 

electronically recorded statements of any witnesses” and “any written or 

electronically recorded statements of the defendant.” M.M.’s interview 

statements fell under “statements of any witnesses” and the confrontation 

call fell under “statements of the defendant.”
STATE v. MORPHIS

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establish Morphis’s propensity to engage in sexual contact with M.M.,

supported M.M.’s limited ability to testify at trial, and supported her 

credibility. As such, the court did not err in admitting M.M.’s interview 

statements.

¶19 Regarding the confrontation call, the record demonstrates 

that the requirements under Rule 404(c) were met. Concerning the proof 

supporting the acts, Morphis himself provided the evidence. M.M. also 

corroborated Morphis’s statements. These sexual acts involved a 

prepubescent minor, indicating Morphis had a character trait giving rise to 

an aberrant sexual propensity. While Morphis argues that the admission of 

his statements caused unfair prejudice, we disagree. These other acts were 

similar to the charged offenses, frequent, and not remote in time. See Ariz. 

R. Evid. 404(c)(1)(C). The admission of these alleged other acts—albeit 

prejudicial—was not unfair. Thus, the court did not err in admitting the 

confrontation call.

3. Sufficient Corpus Delicti Existed to Use Morphis’s 

Statements as a Basis for His Convictions

¶20 Morphis argues that the court erred by not granting his 

request for directed verdicts for three counts that alleged oral-vaginal 

contact with M.M. after a shower, digital penetration of M.M.’s anus, and 

causing M.M. to touch his penis. He contends that his conviction for these 

counts were based on insufficient corroborating evidence. We review 

whether a court abused its discretion when ruling on the evidentiary 

sufficiency of corpus delicti. State v. Carlson, 237 Ariz. 381, 387 ¶ 7 (2015). 

¶21 To prevent convictions based solely on uncorroborated 

statements, the State—if it introduces a defendant’s confession—must 

present evidence corroborating the confession. Id. at ¶ 8. “The standard for 

the corroborating evidence is not high.” Id. The corroborating evidence 

must enable jurors to reasonably infer that the charged crime actually 

occurred. Id. Further, “. . . when a defendant confesses to several related 

crimes, independent evidence that establishes the commission of the closely 

related crimes may suffice to corroborate the confession as a whole . . . .”Id.

at 388 ¶ 11.

¶22 Here, Morphis confessed to committing—on multiple 

occasions—sexual abuse, child molestation, and sexual conduct with a 

minor. M.M. provided independent evidence that Morphis had committed 

all three types of crimes. Morphis, however, contends that these crimes are 

not sufficiently related because the crimes occurred over a number of years. 
STATE v. MORPHIS

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He cites two cases: State v. Carlson, 237 Ariz. 381 (2015) and State v. Morgan, 

204 Ariz. 166 (App. 2002). Both opinions analyze whether crimes supported 

by independent evidence were closely related to the crimes the defendants 

had confessed to committing. Carlson, 237 Ariz. at 388–89 ¶¶ 11–14; Morgan, 

204 Ariz. at 172–73 ¶ 23. These cases, however, do not support his 

argument. While the Carlson decision considered the crimes’ temporal 

proximity, neither of the opinions held that crimes are not closely related 

unless committed in close temporal proximity to one another. 237 Ariz. at 

388–89 ¶ 14; see Morgan, 204 Ariz. at 172–73 ¶ 23. In Morphis’s case, the 14 

crimes involved similar acts of sexual activity committed by the same 

person against the same victim, establishing that the crimes were closely 

related. Although the victim did not specifically mention the oral-vaginal 

contact after the shower and two other acts Morphis confessed to 

committing, her statements and testimony established the commission of 

closely related crimes. Therefore, his confession is corroborated as a whole.

4. The Court Did Not Abuse Its Discretion By Instructing 

the Jury on Concealment 

¶23 Morphis argues that insufficient evidence supported the 

concealment instruction because the detective testified on 

cross-examination that Morphis’s text to M.M. might have disappeared 

from the phone’s memory for innocent reasons. We review the provision of 

a jury instruction for abuse of discretion. State v. Solis, 236 Ariz. 285, 286 ¶ 

6 (App. 2014).

¶24 The court may provide a concealment instruction if the 

defendant’s actions could be read as revealing a consciousness of guilt. State 

v. Weible, 142 Ariz. 113, 116 (1984). Here, the detective’s testimony 

established that one explanation for the missing text message was that the 

message had been deleted. This evidence alone could be read to indicate a 

consciousness of guilt. Although Morphis argues that other nonincriminating reasons might have been present, an alternative explanation 

does not preclude the court from providing a concealment instruction. See 

State v. Parker, 231 Ariz. 391, 404 ¶ 50 (2013). The alternative explanation 

created a factual question for the jury to decide. Id. Thus, we find no error.

5. The Court Did Not Unconstitutionally Shift the Burden 

of Proof 

¶25 Morphis argues that the trial court’s decision to not instruct 

the jurors that sexual interest was an element of the charged offenses was 

unconstitutional. We review questions of statutory interpretation and 
STATE v. MORPHIS

Decision of the Court

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constitutional issues de novo. State v. Holle, 240 Ariz. 300, 302 ¶ 8 (2016). 

Our supreme court has held that sexual interest is not an element of child 

molestation or sexual abuse. Id. at 304 ¶ 19. We are bound by that decision. 

State v. Smyers, 207 Ariz. 314, 318 ¶ 15 (2004). As for the other charges, 

sexual interest is not an element of sexual conduct with a minor. A.R.S. 

§ 13–1405(A).

¶26 Even if sexual interest were an element of the charged 

offenses, no reasonable juror could have concluded that the offenses were 

not committed with sexual interest. Morphis admitted he sexually touched 

M.M. numerous times, and he explained that the sexual contact was due to 

an overwhelming desire that resembled an addiction. Any possible error 

would have been harmless. 

CONCLUSION

¶27 For the foregoing reasons, we affirm.