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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JESUS ALFREDO MORALES, Appellant.

No. 1 CA-CR 19-0115 

Appeal from the Superior Court in Yuma County

No. S1400CR201800309

The Honorable Brandon S. Kinsey, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joshua C. Smith

Counsel for Appellee

Torok Law Office PLLC, Yuma

By Gregory T. Torok

Counsel for Appellant

FILED 10-29-2019
STATE v. MORALES

Decision of the Court

2

MEMORANDUM DECISION

Judge Maurice Portley1 delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge David D. Weinzweig joined.

P O R T L E Y, Judge:

¶1 Jesus Morales appeals his conviction and sentence for sexual 

assault. For the reasons below, we affirm. 

FACTUAL2 AND PROCEDURAL BACKGROUND

¶2 In early 2011, Morales sexually assaulted his then-wife while 

she was sleeping. After the assault, she kicked him out of their home. She 

contacted the police about the assault in 2013. Although she was willing to 

record a confrontation call with Morales, she did not know his phone 

number, but had only the family number and did not believe his family 

would allow her to talk to him.

¶3 Unexpectedly, Morales called the victim in 2014, and she

recorded part of the conversation on her cell phone. She testified she 

recognized his voice on the phone and was certain the call was with 

Morales. During the call, she repeatedly asked him why he sexually 

assaulted her and, at one point, Morales responded “I shouldn’t have done 

it; I did it.” At other times during the call, when asked, he responded that 

he “did it to get closer to” her, “to take revenge,” or out of “jealousy.”

¶4 Morales was indicted for sexual assault involving domestic 

violence on March 22, 2018. Before trial, Morales moved in limine to prevent 

the State from using the recorded phone call. The trial court held an 

evidentiary hearing, heard from the victim and found that the recording 

 

1 The Honorable Maurice Portley, Retired Judge of the Court of 

Appeals, Division One, has been authorized to sit in this matter pursuant 

to Article VI, Section 3 of the Arizona Constitution.

2 We review the facts and all reasonable inferences therefrom in the 

light most favorable to sustaining the verdict. State v. Stroud, 209 Ariz. 410, 

412, ¶ 6 (2005).
STATE v. MORALES

Decision of the Court

3

had sufficient foundation and was otherwise admissible. The court denied 

the motion in limine.

¶5 At trial, the jury heard the victim identify the marked exhibit, 

the State’s copy of the recording, which was identical to the original she had 

recorded in 2014. She identified her voice and Morales’ voice on the 

recording. She also testified that she initially gave a copy of the recording 

to the police in 2014 and a second copy in 2017. The second copy, which 

was marked as an exhibit, was admitted.

¶6 The jury, after hearing testimony, instructions and argument, 

convicted Morales as charged. He was subsequently sentenced to prison 

for five and one quarter years. He then filed this appeal.

DISCUSSION

¶7 On appeal, Morales challenges the trial court’s decision to 

admit the victim’s recording of her phone call with Morales. We review the 

admission of evidence for abuse of discretion. State v. Burns, 237 Ariz. 1, 18, 

¶ 54 (2015). 

¶8 First, Morales argues the recording should have been 

excluded based on Arizona Rule of Evidence 106. Rule 106, in relevant part, 

requires that “[i]f a party introduces all or part of a . . . 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.” Ariz. R. Evid. 106. 

¶9 Rule 106 is a rule “of inclusion not exclusion” that allows the 

adverse party to concurrently introduce other parts of the statement or 

related statements, and to give full context to the statement. State v. 

Champagne, 247 Ariz. 116, 134, ¶ 44 (2019). Although Morales characterizes 

the admitted recording as a “partial recording,” the recording had no other 

parts, contemporaneously made, to be admitted. The admitted exhibit was 

the entire recording of a part of the phone conversation between the former 

spouses, though counsel agreed to certain redactions. Moreover, the victim 

testified that Morales called her unexpectedly and she began the recording 

during the conversation. No one else witnessed the call or recording, and 

Morales did not try to introduce any additional part of the recording. Thus, 

the trial court did not abuse its discretion by admitting the recording under 

Rule 106. See Burns, 237 Ariz. at 18, ¶ 54.

¶10 Second, Morales argues that Rule 403 barred the recording 

because its probative value is substantially outweighed by unfair prejudice.
STATE v. MORALES

Decision of the Court

4

But the recording was relevant to the State’s case and not so unfairly 

prejudicial as to outweigh its substantial probative value. See State v. 

Guarino, 238 Ariz. 437, 440, ¶ 9 (2015) (“[W]hile evidence that makes a 

defendant look bad may be prejudicial in the eyes of jurors, it is not 

necessarily unfairly so.”).

¶11 The recording directly addressed the sole issue in the case: 

whether Morales sexually assaulted the victim. Nor do we find that the 

recording confused the issues or misled the jury. The recording contained 

his statements about his behavior, which strongly suggested he sexually 

assaulted the victim, including multiple statements that are tantamount to 

an admission. Accordingly, the trial court did not abuse its discretion by 

finding the probative value of the recording was not outweighed by the risk 

of unfair prejudice. See State v. Ortiz, 238 Ariz. 329, 334–35, ¶¶ 12–13 (App. 

2015).

¶12 Additionally, to the extent that Morales argues he was 

prejudiced by the fact the recording only contained a part of the 

conversation, nothing in Rule 403 prohibits the admission of the recording,

or supports his assertion that he may have made unrecorded exculpatory 

statements to the victim. Thus, we find no abuse of discretion in admitting 

the recording.

¶13 Morales next argues that the recording should have been

barred by Rule 1002. The rule requires “[a]n original . . . recording . . . unless 

these rules or an applicable statute provide otherwise.” Ariz. R. Evid. 1002. 

His argument ignores Rule 1003, which provides “[a] duplicate is 

admissible to the same extent as the original unless a genuine question is 

raised about the original’s authenticity or the circumstances make it unfair 

to admit the duplicate.” Ariz. R. Evid. 1003. Because Morales does not cite

to any case, statute, or rule that original recordings are required to prove 

the truth of the matter asserted, and Rule 1003 permits the use of a duplicate 

recording, the court did not abuse its discretion in admitting the recording.

¶14 Finally, Morales also raises several arguments for the first 

time in his reply brief. He contends he did not have a fair opportunity to 

inspect the recording before trial and his right to due process was denied 

because of the passage of time in this case. He did not raise these arguments 

in the superior court, and we do not consider arguments raised for the first 

time in a reply brief. State v. Johnson, 247 Ariz. 166, 205, ¶ 160 n. 3 (2019).

Moreover, Morales’ inspection argument also fails because he concedes that 

the recording was disclosed before trial.
STATE v. MORALES

Decision of the Court

5

¶15 Even if Morales had preserved his argument that the length 

of time between his conduct and the prosecution violated his due process 

rights, we are not required to vacate his conviction or remand the case for 

dismissal. “The primary guarantee against a stale prosecution”—taking too 

long to prosecute a defendant—“is the statute of limitations.” State v. 

Broughton, 156 Ariz. 394, 397 (1988). Morales does not argue that the statute 

of limitations barred his prosecution, or show that the State intentionally 

delayed his prosecution. See id. (a defendant must show intentional delay 

of proceedings by the prosecution to gain a “tactical advantage” or to harass 

the defendant to establish a due process violation arising from preindictment delay).

¶16 Instead, he argues only that the combination of the admission 

of the recording and length of time between the assault and the recording

constituted cumulative error. This argument fails because, as we have 

determined, the recording was properly admitted in evidence, and Morales 

himself was responsible for the gap between the assault and the recording

because he voluntarily called the victim some three years after the assault. 

We do not find any cumulative error because none occurred, and Arizona 

courts do not subscribe to the concept of the cumulative error in the 

admission of evidence. See State v. Ellison, 213 Ariz. 116, 133, ¶ 59 (2006). 

CONCLUSION

¶17 Based on the foregoing, we affirm the verdict and sentence.