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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GARY LEE BRANDEBERRY, JR., Appellant. 

No. 1 CA-CR 18-0006 

Appeal from the Superior Court in Navajo County

No. S0900CR201300509 

The Honorable Robert J. Higgins, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Terry M. Crist III.

Counsel for Appellee

Elizabeth Hale, Lakeside

Counsel for Appellant

MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which 

Presiding Judge Michael J. Brown and Judge Kenton D. Jones joined.

FILED 6-18-2019
STATE v. BRANDEBERRY

Decision of the Court

2 

T H O M P S O N, Judge:

¶1 Gary Lee Brandeberry, Jr. (defendant) appeals from his 

convictions and sentences for four counts of child molestation, class 2 

felonies, one count of sexual abuse, a class 3 felony, and one count of 

indecent exposure, a class 6 felony. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY1

¶2 Defendant lived with long-time family friends, B.B. (father) 

and J.L. (mother) at their home in Navajo County for about a month in the 

spring of 2013. Father and mother had two daughters, T.B., eleven years 

old, and H.B., nine years old (the girls). T.B. and H.B. called defendant 

“Uncle Gary,” and father and mother often left them in defendant’s care. 

While alone with the girls, defendant played a “game” with them called 

“Below the Waist” which entailed defendant making a circle with his hand 

and placing it on his body below the waist, sometimes on his penis, in order 

to get the girls to look at his penis. Defendant also “de-pantsed” the girls. 

On multiple occasions, defendant pulled down H.B.’s pants and 

underwear, exposing her vagina. On at least one occasion, he pulled down 

T.B.’s pants. 

¶3 Defendant exposed part of his buttocks to H.B. on two 

occasions. Another time, when H.B. was alone outside with defendant, 

defendant grabbed her by the hips and “dry-humped” her from behind. 

H.B.’s arm was behind her back, and she could feel his penis, which she 

described as a “lump.” Later that day, defendant told H.B. he thought she 

wanted to see his penis. H.B. said no, and because she was worried that 

defendant would expose himself to her anyway, she asked if his pants were 

up. Defendant said they were, but when H.B. looked at defendant his penis 

was hanging out of his open zipper. H.B. ran away but defendant 

demanded she come back. He sat H.B. on his lap and stated that if she told 

her father he would not believe her. On six separate occasions defendant 

touched H.B.’s vagina over her clothes. 

¶4 Defendant exposed part of his buttocks to T.B. on one 

occasion. He then looked down inside her underwear, purportedly to see 

her tan line. Defendant also pinched T.B.’s nipples through her clothing

 

1 We view the facts in the light most favorable to sustaining the verdict. 

State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013). 
STATE v. BRANDEBERRY

Decision of the Court

3 

after pretending not to know she had breasts. Defendant told T.B. that she 

would not be believed if she told her parents what had taken place. 

¶5 On or about the day before Easter 2013, T.B. told mother about 

defendant’s behavior. Father confronted defendant and ordered him to 

leave. Mother and father called the sheriff. Shortly after defendant left, he 

contacted mother and father on Facebook and told them that he had nude 

photos of mother. Father found that several cell phone memory cards were 

missing from the home. Father viewed defendant’s Facebook message as a 

threat. 

¶6 The state charged defendant with indecent exposure, a class 6 

felony, four counts of child molestation, class 2 felonies, and sexual abuse, 

a class 3 felony. After a jury trial, defendant was convicted as charged. The 

jury found two aggravating factors. First, that the victims suffered 

emotional harm and second, that defendant took advantage of his position 

of trust as the victims’ caretaker. The trial court sentenced defendant to one

year in prison for count 1, seventeen years in prison each for counts 2-5, and 

five years in prison for count 6. The court ordered defendant to serve the 

sentences for counts 1-5 concurrently but consecutive with the sentence for 

count 6. Defendant timely appealed. We have jurisdiction pursuant to

Article 6, Section 9, of the Arizona Constitution and Arizona Revised 

Statutes (A.R.S.) §§ 12-120.21(A)(1) (2019), 13-4031 (2019), and -4033(A)(1) 

(2019).2

DISCUSSION

¶7 Defendant raises one issue on appeal: whether the trial court 

violated his due process right to a fair trial by excluding evidence he wished 

to present at trial. 

A. Evidence Precluded Under Rape Shield Law

¶8 Defendant first argues that the trial court erred when it 

precluded his testimony about alleged sexual behaviors of H.B. under the 

rape shield law. 

¶9 Prior to defendant’s testimony, defense counsel proffered that 

defendant would testify that H.B. grabbed his penis and stared at his penis 

 

2 We cite to the current version of any statute unless the statute was 

amended after the pertinent events and such amendment would affect the 

result of this appeal.
STATE v. BRANDEBERRY

Decision of the Court

4 

on two separate occasions, and that he did not tell father and mother 

because he did not want her to get in trouble. The state objected, arguing 

that testimony about H.B.’s prior sexual behavior should be precluded 

under the rape shield statute. Defense counsel argued that H.B.’s alleged 

sexual behaviors were not prior sexual conduct but instead, “the act that 

the State is trying to prove.” The court held that defendant could testify 

that H.B. touched his penis of her own volition. 

¶10 After taking the stand, defendant testified that H.B. saw his 

penis when he was outside urinating. During this testimony, the court 

granted defense counsel’s request for a bench conference. Defense counsel 

stated that he anticipated the state would object to his next question, which 

would result in defendant testifying that H.B. was trying to look at his penis

and would not stop looking at it. The state objected to the proposed 

testimony, arguing that it was not admissible under the rape shield law, 

and the trial court agreed. The court stated that it was permissible for 

defendant to testify that H.B. saw his penis while he was urinating “but 

nothing more.” 

¶11 At a subsequent bench conference, defense counsel told the 

court he anticipated defendant would testify that H.B. intentionally shoved 

or grabbed him in the crotch, and that is how H.B. ended up touching his 

penis. The state again objected on the basis of the rape shield law. Defense 

counsel stated that he was not going to ask defendant the question about 

crotch grabbing because “it never really is clear about when this . . . penis 

grabbing or whatever you want to call it was going on . . . I guess I’m not 

going to ask this question because I can’t get it into context.” Counsel did 

ask defendant whether he ever made H.B. touch his penis and he denied 

having done so. 

¶12 Defendant argues on appeal that he should have been 

permitted to testify that he caught H.B. staring at his penis because that is 

why he began playing the “Below the Waist” game with the girls. He 

further claims that the court’s preclusion of his testimony about H.B.’s 

alleged sexual behavior directed at him denied him his right to a fair trial.

¶13 We review a trial court’s decision to preclude evidence under 

the rape shield law for an abuse of discretion. State v. Herrera, 232 Ariz. 536, 

549, ¶ 38 (App. 2013) (citation omitted). An abuse of discretion occurs when 

“the reasons given by the court for its action are clearly untenable, legally 

incorrect, or amount to a denial of justice.” State v. Arellano, 213 Ariz. 474, 

478, ¶ 14 (2006) (citation omitted). 
STATE v. BRANDEBERRY

Decision of the Court

5 

¶14 Arizona’s rape shield statute, A.R.S. § 13-1421 (2019), 

excludes reputation and opinion evidence “relating to [a] victim’s chastity”

unless the evidence falls under five listed exceptions. A.R.S. § 13-1421(A). 

As applicable here, evidence of a victim’s past sexual conduct with a 

defendant is admissible under section 13-1421(A)(1) “only if a judge finds 

the evidence is relevant and is material to a fact in issue in the case and that 

the inflammatory or prejudicial nature of the evidence does not outweigh 

the probative value of the evidence . . . .” Id.

¶15 We find no abuse of discretion in the trial court’s decision 

precluding defendant from testifying that H.B. stared at his penis. The 

proposed evidence was not relevant because a victim of child molestation 

cannot consent to the crime.3 See State v. Rice, 110 Ariz. 210, 212 (1973). 

Further, the court would have been well within its discretion to conclude 

that defendant’s testimony that nine-year-old H.B. was sexually interested 

in him was more prejudicial than probative.

¶16 As to the proposed testimony about the alleged crotchgrabbing, defense counsel chose not to ask the question. Accordingly, there 

was no abuse of discretion by the court.

B. Third-Party Culpability Evidence

¶17 Defendant next argues that the trial court erred when it 

denied him the right to present third-party culpability evidence. We review 

the court’s evidentiary rulings for an abuse of discretion. State v. Davolt, 

207 Ariz. 191, 208, ¶ 60 (2004). 

¶18 Prior to trial, defendant sought to introduce evidence that 1) 

father hit the girls, 2) father threatened to kill their dog, 3) father strangled 

H.B. for not doing her chores, 4) mother and father grew marijuana in H.B.’s 

bedroom, 5) defendant witnessed father entering a bathroom where the 

girls were showering wearing nothing but his underwear, and 6) defendant 

witnessed father touching H.B.’s nipples. Defendant also sought to have a 

CPS caseworker testify that CPS had received a phone call alleging that 

father was molesting the girls and that mother and father had been under 

CPS supervision for several years due to abuse and neglect allegations. 

(Id.). The trial court denied defendant’s pre-trial motion. The court first 

noted that it had previously ruled that evidence of prior sexual abuse of the 

 

3 We find defendant’s argument that the evidence was relevant to explain 

why he played a game where he encouraged the girls to look at parts of his 

body below the waist unpersuasive. 
STATE v. BRANDEBERRY

Decision of the Court

6 

girls would not be admitted because of the rape shield statute. The court 

then concluded that “whether or not the victims’ parents abused them does 

not have any tendency to make it more or less likely that [defendant] 

sexually abused them.” The court further noted that although father had 

been investigated by CPS for abuse or neglect, the allegations were 

unsubstantiated and the anonymous phone call to CPS was hearsay and 

highly untrustworthy.4 

¶19 At a bench conference prior to defendant’s testimony, defense 

counsel stated that defendant wanted to testify that he saw mother molest 

T.B. The court noted that it had already ruled that evidence of past abuse 

of the victims was precluded, and defendant argued that the state had 

opened the door by presenting expert testimony about the signs and 

symptoms of abuse victims.5 The court concluded that it had not “heard 

anything new in the testimony by the expert that would lead [the court] to 

believe that [evidence of abuse by mother or father was] more relevant than 

. . . when [the court] ruled that it shouldn’t be admitted.”

¶20 Though constitutionally protected, a defendant’s right to 

present a defense is not without limitations. United States v. Scheffer, 523 

U.S. 303, 308 (1998) (“A defendant’s right to present relevant evidence is not 

unlimited, but rather is subject to reasonable restrictions.”). Defendants are 

still beholden to the trial court’s application of ordinary evidentiary 

restrictions. State v. Hardy, 230 Ariz. 281, 291, ¶ 49 (2012) (citations omitted). 

As with all litigants, defendants must show that proffered evidence is both 

relevant under Arizona Rules of Evidence (Rule) 401 and 402, and its 

probative value is substantially outweighed by the danger of “unfair 

prejudice, confusing the issues, misleading the jury, undue delay, wasting 

time, or needlessly presenting cumulative evidence” under Rule 403. See

Ariz. R. Evid. 401 (evidence is relevant if it has “any tendency to make a fact 

more or less probable” and “the fact is of consequence in determining the 

action”), 402 (irrelevant evidence is inadmissible), 403 (balancing test). See 

also State v. Machado, 226 Ariz. 281, 283, ¶ 14 (2011) (“The admission of thirdparty culpability evidence is governed by the standards of Rules 401 

through 403 of the Arizona Rules of Evidence. . . .” ). “Evidence offered to 

establish the culpability of a third party is relevant under Rule 401 only 

 

4 Defendant later claimed in a pleading that he was the one who called 

CPS.

5 The expert witness was a “cold” expert, meaning that she knew nothing 

about the victims or the facts of this case before testifying. 
STATE v. BRANDEBERRY

Decision of the Court

7 

when it ‘tends[s] to create a reasonable doubt as to the defendant’s guilt.’” 

Id. at 284 n. 2, ¶ 16 (quoting State v. Gibson, 202 Ariz. 321, 324, ¶ 16 (2002)). 

¶21 Defendant argues that evidence of father’s alleged sexual 

abuse was relevant because it “tended to negate the guilt of [defendant].” 

We disagree. None of the evidence defendant sought to introduce, 

including evidence about alleged physical, emotional, or sexual abuse by 

mother or father, CPS involvement with the family, or marijuana growing 

was relevant to the question of whether defendant committed the crimes he 

was charged with. And the evidence of alleged sexual abuse by father 

and/or mother was further properly excluded under A.R.S. § 13-1421(A). 

We find no abuse of discretion.

C. Evidence Relating to Defendant’s Fabrication Defense

¶22 Finally, defendant argues that the trial court erred when it 

denied his motion to present evidence related to a fabrication defense. Prior 

to trial, defendant filed a motion to admit other acts evidence pursuant to 

Rule 404(b). Defendant sought to admit evidence of mother and father’s 

case with CPS, father’s alleged physical and verbal abuse of the girls, 

mother’s prison sentence, and mother and father’s drug abuse. Defendant 

argued that the evidence was relevant to show that the parents and the girls

“had the motive and plan” to make sex crimes allegations against him.

¶23 In response, the state noted that Rule 404(b) did not apply and 

that the court should analyze defendant’s proposed other acts evidence 

under Rules 401-403.6 See Machado, 226 Ariz. at 283, ¶ 14 (Rule 404(b)’s 

“central purpose is to protect criminal defendants from unfair use of 

propensity evidence.”). The trial court denied the motion, finding that 

whether or not mother and/or father abused the girls physically or sexually 

was not relevant to whether defendant committed his alleged crimes, and 

that it was “unclear what the causal connection between the parents’ drug 

abuse and their motive to fabricate allegations against [defendant] would 

be.”

¶24 Defendant filed a motion for reconsideration describing the 

evidence he wished to present as follows:

1. A statement in the CPS records from a 

February 2011 report that “[b]oth children have 

 

6 In a motion for reconsideration, defendant agreed that Rules 401-403 

were applicable rather than Rule 404(b). 
STATE v. BRANDEBERRY

Decision of the Court

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fears about being taken away by CPS, as CPS 

has been involved in the past.” 

2. Defendant’s testimony that three days before 

he left the family home he told father he was 

going to call CPS and report that mother and 

father were abusing the children and growing 

marijuana in the children’s closet.

3. The fact that CPS had frequent interactions 

with the family.

4. Defendant witnessed father physically 

abusing the children.

5. Defendant observed the parents growing 

marijuana in the children’s closet.

After oral argument, the court denied the motion for reconsideration.

¶25 We find no abuse of discretion. Although a defendant has a 

constitutional right to present a theory of defense, he does not have the right 

to present that theory with whatever evidence he chooses. State v. Carlson, 

237 Ariz. 381, 393, ¶ 36 (2015) (citation omitted). The link between 

defendant’s proffered evidence and his fabrication defense was highly 

speculative and the court properly excluded it.

CONCLUSION

¶26 For the foregoing reasons, defendant’s convictions and 
STATE v. BRANDEBERRY

Decision of the Court

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sentences are affirmed.