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March 5, 2026 Get Citation Alerts Download PDF Add Note

State v. Hernandez

Court of Appeals of Arizona

• Citations: None known

• Docket Number: 1 CA-SA 25-0288

• Opinion

• Authorities (27)

• Cited By (0)

• Summaries (0)

• Similar Cases (2.6K)

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Syllabus

A subsection of Arizona's "Rape Shield Law," A.R.S. § 13-1421, authorizes the admission of evidence of a victim's sexual conduct under certain circumstances if the evidence establishes "the source or origin of . . . trauma." A.R.S. § 13-1421(A)(2). Does this provision include mental or emotional trauma, as well as physical trauma?

Combined Opinion

                        by Daniel J. Kiley

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Petitioner,

v.

JOSE G. HERNANDEZ, Respondent.

No. 1 CA-SA 25-0288
FILED 03-05-2026
AMENDED PER ORDER FILED 03-05-2026

Petition for Special Action from the Superior Court in Maricopa County
No. CR2023-007600-001
The Honorable Joshua D. Rogers, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Johnny Jacquez, Quinton S. Gregory
Counsel for Petitioner

Maricopa County Public Defender’s Office, Phoenix
By Meghan White
Counsel for Respondent
STATE v. HERNANDEZ
Opinion of the Court

OPINION

Judge Daniel J. Kiley delivered the opinion of the Court, in which Judge
Brian Y. Furuya joined. Presiding Judge Angela K. Paton specially
concurred.

K I L E Y, Judge:

¶1 The Arizona Rape Shield Law, A.R.S. § 13-1421, generally
prohibits the admission of evidence of the victim’s prior sexual conduct at
a trial for a sex offense. The statute contains a number of exceptions,
however, including one for “[e]vidence of specific instances of sexual
activity showing the source or origin of . . . trauma.” A.R.S. § 13-1421(A)(2).
The parties to this special action agree that this exception applies to physical
trauma exhibited by the victim, but dispute whether it applies to mental or
emotional trauma as well. Defendant Jose Hernandez argued in the
superior court that it does, and the court agreed. Because we conclude
otherwise, we accept jurisdiction and grant relief.

FACTS AND PROCEDURAL HISTORY

¶2 Hernandez is charged with multiple felonies in the
underlying case, including three allegedly committed against his niece
“Brianna” (a pseudonym): two counts of molestation of a child, class 2
felonies and Dangerous Crimes Against Children in violation of A.R.S.
§§ 13-705 and -1410, and one count of attempted molestation of a child, a
class 3 felony and Dangerous Crime Against Children in violation of A.R.S.
§§ 13-705, -1001, and -1410.

¶3 During her forensic interview, Brianna disclosed that she was
not only molested by Hernandez, but was also victimized by two other
family members on other occasions. One of these family members molested
her, she reported, while, on a different occasion, the other attempted to
show her pornographic material.

¶4 Hernandez moved under A.R.S. § 13-1421 to admit evidence
of Brianna’s allegations against the two other family members, asserting
that such evidence was relevant to the accuracy of her memory of the

2
STATE v. HERNANDEZ
Opinion of the Court

charged crimes and her identification of the perpetrator.1 Asserting that he
and the two other family members are “incredibly similar looking[,]”
Hernandez stated that he intends to argue at trial that Brianna’s
identification of him as the perpetrator of the charged crimes resulted from
“confusion” stemming from her victimization by other family members.
Although none of the subsections of Section 13-1421 list “confusion as to
the identity of the perpetrator” as an exception to the Rape Shield Law,
Hernandez insisted that Brianna’s purported “confusion” fell within the
scope of Section 13-1421(A)(2) (“Subsection (A)(2)”), which authorizes the
admission of “[e]vidence of specific instances of sexual activity showing the
source or origin of . . . trauma.” A.R.S. § 13-1421(A)(2). According to
Hernandez, Brianna’s victimization by others offers an “alternate
explanation” for her “mental sexual trauma” and constitutes the “source”
of her purported “confusion” about the perpetrator’s identity.

¶5 The State opposed Hernandez’s motion, asserting, inter alia,
that the “trauma” exception set forth in Subsection (A)(2) applies only to
“physical manifestations of specific sexual activity[,]” not the victim’s
“mental or emotional trauma[.]”

¶6 The superior court granted Hernandez’s motion, finding that
Brianna’s report that she was victimized by two other family members
supported Hernandez’s misidentification defense because it “goes to the
issue of who committed the alleged abuse and whether the alleged abuse is
remembered correctly[.]” Holding that the word “trauma” as used in
Subsection (A)(2) is not limited to physical trauma, the court found that
evidence of Brianna’s victimization by others supported Hernandez’s claim
that the “other two men[,]” and not Hernandez, “caused the trauma” that,
in turn, “caused [Brianna] to not remember the incidents correctly.” The
State seeks relief from this order by special action. See Ariz. R.P. Spec. Act.
11.

DISCUSSION

¶7 The State asserts that relief by special action is warranted
because the superior court erred in interpreting Subsection (A)(2) “to
include purely emotional harm[.]” “[A]ll child victims of sexual abuse”
suffer emotional harm, the State argues, and the court’s construction of
Subsection (A)(2) improperly allows Hernandez to use Brianna’s “general

1 Nonconsensual sexual acts committed against a victim are considered the

victim’s “sexual conduct” for purposes of the Rape Shield Law. See State v.
Dixon, 226 Ariz. 545, 554, ¶ 47 (2011).

3
STATE v. HERNANDEZ
Opinion of the Court

and nonspecific reports of emotional distress” to “evade” Section 13-1421’s
restrictions on the admission of evidence of “a victim’s sexual history[.]” In
response, Hernandez argues that the superior court correctly determined
that “psychological trauma” falls within Subsection (A)(2)’s “exception to
the rape shield[.]”

¶8 The exercise of special action jurisdiction, though “highly
discretionary,” Yauck v. West Town Bank & Trust, 259 Ariz. 481, 485, ¶ 12
(App. 2025) (citation omitted), may be appropriate if the aggrieved party
has no “equally plain, speedy and adequate” remedy by appeal, Ariz. R.P.
Spec. Act. 2(b)(2); State v. Lee, 226 Ariz. 234, 236, ¶ 6 (App. 2011) (accepting
special action jurisdiction because a special action was “the only means by
which relief may be obtained”). As this Court has long recognized,
“accepting special action jurisdiction is particularly appropriate where the
welfare of children is involved and the harm complained of can only be
prevented by resolution before an appeal.” Dep’t of Child Safety v. Beene, 235
Ariz. 300, 303, ¶ 6 (App. 2014). Further, a special action is a proper vehicle
to challenge a ruling compelling the disclosure of information that is
alleged to be protected. See Ariz. R.P. Spec. Act. 12(b)(2) (identifying
“whether the petition asks the court to resolve questions . . . of legal or
evidentiary privileges” as a factor supporting special action jurisdiction); cf.
Arpaio v. Figueroa, 229 Ariz. 444, 446, ¶ 5 (App. 2012) (“When the subject of
[a] discovery order is privileged or confidential material, it is particularly
appropriate to accept [special action] jurisdiction.” (citation modified)).
Finally, because the interpretation of statutes and court rules is a question
of law reviewed de novo, cases presenting such issues are “particularly
appropriate for review by special action.” Yauck, 259 Ariz. at 485, ¶ 12
(citation omitted). For these reasons, we accept special action jurisdiction
here.

¶9 The Arizona Rape Shield Law generally prohibits the
admission of evidence of the victim’s prior sexual conduct in prosecutions
for sexual offenses. A.R.S. § 13-1421.2 The statute establishes certain

2 The Arizona Rape Shield Law provides as follows:

A. Evidence relating to a victim’s reputation for chastity and
opinion evidence relating to a victim’s chastity are not admissible
in any prosecution for any offense in this chapter, § 13-3212 or
chapter 35.1 of this title. Evidence of specific instances of the
victim’s prior sexual conduct may be admitted only if a judge finds
the evidence is relevant and is material to a fact in issue in the case

4
STATE v. HERNANDEZ
Opinion of the Court

exceptions to this general rule, however, including an exception for
“[e]vidence of specific instances of [the victim’s] sexual activity showing the
source or origin of semen, pregnancy, disease or trauma.” A.R.S. § 13-
1421(A)(2). In interpreting “trauma” as used in Subsection (A)(2) to
encompass emotional trauma, the superior court stated that “the plain
language of the statute” does not “limit[]” the term to “physical injury.”
The court added that the term “trauma” “as used in connection [with]
sexual assault” has “long been . . . understood as encompassing mental and
emotional harm[,]” noting, for example, that the Arizona Supreme Court
used the label “rape trauma syndrome” to refer to “the recurring pattern of
emotional distress in rape victims.” State v. Huey, 145 Ariz. 59, 62 (1985). To

and that the inflammatory or prejudicial nature of the evidence
does not outweigh the probative value of the evidence, and if the
evidence is one of the following:

1. Evidence of the victim’s past sexual conduct with the defendant.

2. Evidence of specific instances of sexual activity showing the
   source or origin of semen, pregnancy, disease or trauma.

3. Evidence that supports a claim that the victim has a motive in
   accusing the defendant of the crime.

4. Evidence offered for the purpose of impeachment when the
   prosecutor puts the victim’s prior sexual conduct in issue.

5. Evidence of false allegations of sexual misconduct made by the
   victim against others.

B. Evidence described in subsection A of this section shall not be
referred to in any statements to a jury or introduced at trial without
a court order after a hearing on written motions is held to
determine the admissibility of the evidence. If new information is
discovered during the course of the trial that may make the
evidence described in subsection A of this section admissible, the
court may hold a hearing to determine the admissibility of the
evidence under subsection A of this section. The standard for
admissibility of evidence under subsection A of this section is by
clear and convincing evidence.

A.R.S. § 13-1421 (footnote omitted).

5
STATE v. HERNANDEZ
Opinion of the Court

limit the term as used in Subsection (A)(2) to physical trauma, the court
concluded, “would be unreasonable and illogical[.]” Id.

¶10 Although the word “trauma,” by itself, could reasonably be
understood to refer to emotional as well as physical trauma, statutory terms
“should be read in context in determining their meaning.” Stambaugh v.
Killian, 242 Ariz. 508, 509, ¶ 7 (2017); see also Huber v. Ariz. Naturopathic
Physicians Med. Bd., __ Ariz. _, _, ¶ 12, 579 P.3d 1249, 1253 (App. 2025)
(“[F]ocusing on text does not mean interpreting it hyperliterally or in a
vacuum—context matters.”). As the Arizona Supreme Court has
recognized, statutory terms “draw their meaning from the context in which
they are used.” DBT Yuma, L.L.C. v. Yuma Cnty. Airport Auth., 238 Ariz. 394,
396, ¶ 10 (2015); see also Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 167, 180 (2012) (“Context is a primary
determinant of meaning[,]” and “provisions of a text should be interpreted
in a way that renders them compatible[.]”). Relatedly, the associated-words
canon known as noscitur a sociis provides that “a word’s meaning cannot be
determined in isolation, but must be drawn from the context in which it is
used[.]” City of Surprise v. Ariz. Corp. Comm’n, 246 Ariz. 206, 211, ¶ 13 (2019);
see also United States v. Williams, 553 U.S. 285, 294 (2008) (“[T]he
commonsense canon of noscitur a sociis . . . counsels that a word is given
more precise content by the neighboring words with which it is
associated.”). Adherence to noscitur a sociis “‘avoid[s] ascribing to one word
a meaning so broad that it is inconsistent with its accompanying words,’
thus avoiding giving legislative acts ‘unintended breadth.’” In re
Drummond, 257 Ariz. 15, 21, ¶ 23 (2024) (quoting Yates v. United States, 574
U.S. 528, 543 (2015)).

¶11 Subsection (A)(2) identifies four facts or circumstances whose
presence may permit inquiry into specific instances of the victim’s sexual
conduct: semen, pregnancy, disease, and trauma. The first three — semen,
pregnancy, and disease — share a significant commonality: the presence of
each constitutes physical or biological evidence of sexual conduct. To
interpret the fourth in a like manner — to interpret “trauma,” in other
words, to mean physical injury resulting from sexual conduct — is
consistent with the context in which the term is used in Subsection (A)(2)
and with the canon of noscitur a sociis. City of Surprise, 246 Ariz. at 211, ¶ 13
(applying noscitur a sociis “is appropriate when several terms are associated
in a context suggesting the terms have some quality in common”); see also
Beecham v. United States, 511 U.S. 368, 371 (1994) (“That several items in a
list share an attribute counsels in favor of interpreting the other items as
possessing that attribute as well.”).

6
STATE v. HERNANDEZ
Opinion of the Court

¶12 If ambiguity remains after considering the terms of a statute
in context, a court turns to secondary interpretation methods, which
include looking to the statute’s “spirit and purpose[.]” Drummond, 257 Ariz.
at 18, ¶ 5. The purpose of the Rape Shield Law is “to protect victims of rape
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). When faced with two possible constructions of the Rape Shield Law,
therefore, the one that provides greater protection to victims is preferred.
That, too, counsels in favor of interpreting the term narrowly to mean only
trauma of a physical nature, rather than encompassing non-physical
trauma as well.

¶13 A court may also look to an ambiguous statute’s “historical
background,” Drummond, 257 Ariz. at 18, ¶ 5, and, here, the history of the
Rape Shield Law is illuminating.

¶14 At common law, evidence of a sexual assault victim’s sexual
conduct was generally admissible at trial to attack the victim’s credibility
and to bolster a consent defense. According to the often-quoted reasoning
of the New York Court of Appeals in People v. Abbot, 19 Wend. 192 (N.Y.
1838), the victim’s “chastity” was relevant because “assent” may be “more
readily infer[red]” on the part of “the practised [sic] Messalina, in loose
attire, than in the reserved and virtuous Lucretia[.]” Id. at 194-95; accord
People v. Johnson, 39 P. 622, 623 (Cal. 1895) (“[U]pon the authority of many
text-writers and cases, we have no doubt but that the general reputation of
a prosecutrix for unchastity is proper and legal evidence.”). For a long time,
Arizona courts shared this view. See State v. Wood, 59 Ariz. 48, 52 (1942)
(“[C]ommon experience teaches us that the woman who has once departed
from the paths of virtue is far more apt to consent to another lapse than is
the one who has never stepped aside from that path.”).

¶15 Over time, however, judges and commentators came to
question the “logical underpinnings” of the common law rule,
Commonwealth v. Strube, 418 A.2d 365, 369 (Pa. Super. 1979), and to decry
the “character assassination” of the victim that so often resulted,
Commonwealth v. Manning, 328 N.E.2d 496, 501 (Mass. 1975) (Braucher, J.,
dissenting); see also Harriet R. Galvin, Shielding Rape Victims in the State and
Federal Courts: A Proposal for the Second Decade, 70 Minn. L. Rev. 763, 764
(1986) (quoting Congresswoman Elizabeth Holtzman’s statement on the
House floor that “rape trials” often “become inquisitions into the victim’s
morality, not trials of the defendant’s innocence or guilt.”). In urging that
the common law rule be jettisoned, some commentators went so far as to

7
STATE v. HERNANDEZ
Opinion of the Court

propose a complete ban on the admission of “evidence of unchastity [in]
rape trials[.]” Camille E. LeGrand, Comment, Rape and Rape Laws: Sexism in
Society and Law, 61 Cal. L. Rev. 919, 939 (1973).

¶16 The Michigan legislature enacted the nation’s first “rape
shield” statute in 1974. Galvin, Shielding Rape Victims, 70 Minn. L. Rev. at
765 n.3; see Act of Aug. 12, 1974, 1974 Mich. Pub. Acts 1025 (codified as
amended as Mich. Comp. Laws Ann. § 750.520j). Four years later, the
United States Congress amended the federal evidence rules to establish a
rape shield in Federal Rule of Evidence 412, see Privacy Protection for Rape
Victims Act of 1978, 92 Stat. 2046 (1978), and within two decades, nearly all
jurisdictions adopted rape shield protections by statute, court rule, or
caselaw. Galvin, Shielding Rape Victims, 70 Minn. L. Rev. at 765 n.3.

¶17 No jurisdiction, however, adopted a blanket rule barring
admission of evidence of a victim’s sexual conduct in all cases. On the
contrary, a widespread recognition that a defendant’s constitutional rights
to present a defense and to confront witnesses may overcome a victim’s
interest in shielding personal matters from public view led to the
establishment of exceptions to even the most restrictive rape shield laws.
Galvin, Shielding Rape Victims, 70 Minn. L. Rev. at 773, 813-14; see also
California v. Trombetta, 467 U.S. 479, 485 (1984) (noting that due process
“require[s] that criminal defendants be afforded a meaningful opportunity
to present a complete defense”).

¶18 As the United States Supreme Court made clear in Chambers
v. Mississippi, 410 U.S. 284 (1973), evidentiary rules that prevent a defendant
from showing that someone else committed the crime may violate the
defendant’s constitutional right to present a defense. See id. at 302 (reversing
conviction of defendant who was convicted of murder after the trial court,
applying state evidentiary rules, barred him from presenting evidence that
another person confessed to the crime; “[W]here constitutional rights
directly affecting the ascertainment of guilt are implicated, the hearsay rule
may not be applied mechanistically to defeat the ends of justice.”).
Consistent with the rule established in Chambers, courts and commentators
generally agreed that a defendant must be permitted to introduce evidence
of the victim’s sexual conduct when the evidence would tend to exonerate
the defendant by showing that physical evidence of the alleged assault was
attributable to the victim’s sexual activity with someone else. As the
Michigan Court of Appeals recognized,

It is well settled that where the prosecution substantiates its
case by demonstrating a physical condition of the

8
STATE v. HERNANDEZ
Opinion of the Court

complainant from which the jury might infer the occurrence
of a sexual act, the defendant must be permitted to meet that
evidence with proof of the complainant’s prior sexual activity
tending to show that another person might have been
responsible for her condition.

People v. Mikula, 269 N.W.2d 195, 198 (Mich. App. 1978); see also People v.
Martinez, 634 P.2d 26, 30-31 (Colo. 1981) (reversing defendant’s conviction
for sexual assault and holding that trial court erred in precluding
defendant, who denied sexual contact with the victim, from presenting
evidence that victim had consensual sexual intercourse “with someone
other than the defendant” on the day of the alleged assault; “Evidence of a
prior sexual act with another man which could explain the presence of
semen in the prosecutrix’s vaginal tract is relevant in that it tends to render
more probable the inference that defendant did not have sexual intercourse
with the prosecutrix.”); State v. LaClair, 433 A.2d 1326, 1329-30 (N.H. 1981)
(reversing defendant’s conviction for sexual assault and holding that trial
court erred in precluding defendant, who denied sexual contact with the
victim, from cross-examining her about sexual activities with others “on the
day preceding the alleged rape” because the evidence could have
“accounted for the presence of sperm in her vagina”); see also J. Alexander
Tanford & Anthony J. Bocchino, Rape Victim Shield Laws and the Sixth
Amendment, 128 U. Pa. L. Rev. 544, 584 (1980) (“A rape complainant’s
testimony is usually corroborated by physical evidence—the presence of
semen, resulting disease, or pregnancy. Often forcible rape cases also
include testimony about the infliction and extent of physical injury to the
victim. Proof that another man engaged in sexual intercourse with the
complainant at or near the time of the alleged rape provides an alternative
source of the physical evidence and is therefore obviously relevant. For this
reason, many states permit the defendant to introduce evidence that
someone other than himself was responsible” and citing cases).

¶19 Citing the trend in other jurisdictions as well as a review of
empirical data, the Arizona Supreme Court in State ex rel. Pope v. Superior
Court, 113 Ariz. 22 (1976), abandoned the common law rule and held that
evidence of a victim’s prior sexual conduct was inadmissible to prove
consent or impeach a victim’s credibility in a sexual assault case. Id. at 29.
The Pope court recognized certain exceptions to this general rule of
inadmissibility, however, including an exception for evidence of the
victim’s sexual conduct that “directly refutes physical or scientific evidence,
such as the victim[’s] alleged loss of virginity” or “the origin of semen,
disease or pregnancy.” Id. The Pope court recognized, in other words, an
exception to the rape shield for evidence that allows the defendant to

9
STATE v. HERNANDEZ
Opinion of the Court

exonerate himself by showing that physical evidence of sexual conduct was
caused by the victim’s sexual activity with someone else. See id. Our
supreme court later expanded on Pope by extending its holding “to child
molestation cases.” State v. Oliver, 158 Ariz. 22, 27 (1988).

¶20 In State v. Castro, 163 Ariz. 465 (App. 1989), this Court applied
the “directly refutes” exception to the rape shield recognized in Pope. In
Castro, the defendant was charged with sexual conduct with a minor after
17-year-old “S.,” who became pregnant and had an abortion, identified him
as the father. Id. at 467. Denying any sexual contact with S., the defendant
sought to cross-examine her at trial about sexual contact she had with
others at the time she became pregnant. Id. The trial court precluded the
defendant from inquiring into her sexual contact with others, and the jury
convicted him. Id. On appeal, this Court reversed, holding that evidence
that “the prosecuting witness . . . had been sexually involved with others at
the time she conceived . . . would have directly refuted the implication that
the defendant was the only possible source of S.’s pregnancy.” Id. at 471.
Evidence that S. became pregnant as a result of sexual activity with
someone other than the defendant, the Castro court held, falls outside the
scope of the rape shield recognized in Pope. Id.

¶21 In 1998, the Arizona legislature largely codified the holding
of Pope and its progeny by enacting Section 13-1421. See Gilfillan, 196 Ariz.
at 401, ¶ 16 & n.3. Section 13-1421’s history indicates that the exception
created in Subsection (A)(2) was intended to enable a defendant to
exonerate himself by presenting evidence to show that someone else was
responsible for the physical evidence of sexual conduct by the victim. If, for
example, the complaining witness alleges that she became pregnant as a
result of a sexual assault by the defendant, Subsection (A)(2) may
(assuming the defendant satisfies the notice and other requirements of
Section 13-1421) permit the defendant to refute the allegation with evidence
that she became pregnant as a result of sexual activity with someone else.
Castro, 163 Ariz. at 471. Similarly, if the complaining witness alleges that the
defendant inflicted bruises or other physical trauma during the course of a
sexual assault, Subsection (A)(2) may (if the other statutory requirements
are satisfied) permit the defendant to refute the accusation, thereby
exonerating himself, by presenting evidence that she sustained the physical
trauma as a result of sexual activity with someone else. Cf. State v. Pogue, 1
CA-CR 20-0346, 2021 WL 3160856 at *3, ¶ 16 (Ariz. App. July 27, 2021)
(mem. decision) (affirming preclusion of evidence of victim’s sexual history
under the Rape Shield Law in part because the State did not contend that
the defendant “was the source of physical or biological signs of sexual
activity”).

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STATE v. HERNANDEZ
Opinion of the Court

¶22 Unlike semen, pregnancy, disease, or physical trauma,
however, mental or emotional trauma is not traceable to a single cause or a
particular event. On the contrary, multiple events and circumstances may,
and often do, contribute to mental or emotional trauma, and the occurrence
of one traumatizing event in a person’s life does not make the occurrence
of another any more or less likely. Here, for example, evidence that Brianna
suffered mental or emotional trauma as a result of being victimized by other
family members does not tend to exclude other potential sources of trauma,
and so would not exonerate Hernandez of the charged offense. Because
evidence that Brianna was victimized by other family members and
suffered emotional trauma as a result does not “directly refute” evidence
that she was victimized by Hernandez, evidence that she was victimized by
other family members is not admissible. See Pope, 113 Ariz. at 29.

¶23 In support of his position, Hernandez cites State v. Lujan, 192
Ariz. 448 (1998), in which the Arizona Supreme Court reversed Lujan’s
conviction for molesting a nine-year-old girl based on the trial court’s
preclusion of evidence that she had previously “been molested by at least
two other men.” 192 Ariz. at 450, 454, ¶¶ 2-3, 20. Noting that Lujan claimed
that he and the child had merely been playfully roughhousing, the Lujan
court held that the evidence of the prior molestations, along with Lujan’s
proffered expert testimony, was admissible to support the defense that the
child’s sexual victimization by other men led her to “misperceive” Lujan’s
“innocent, non-sexual touch.” Id. at 450, 454, ¶¶ 4, 20. Hernandez maintains
that Lujan supports his position that the admissibility of evidence of a
victim’s “other past sexual abuse” does not depend on the existence of
“physical evidence” of abuse.

¶24 Because Lujan was decided before Section 13-1421 went into
effect, “Lujan is instructive only to the extent it is consistent with the plain
wording of the rape shield statute.” State v. Gollihar, 1 CA-CR 14-0757, 2015
WL 4760535 at *2, ¶ 12 (Ariz. App. Aug. 13, 2015) (mem. decision). But Lujan
is inapposite in any event, since the defendant in that case did not, as
Hernandez does here, contend that the child’s prior molestations were
relevant to establishing the source of trauma.

¶25 We hold that the term “trauma” as used in Section 13-
1421(A)(2) means only physical injury, not emotional or psychological
harm. Evidence that a victim has suffered emotional or psychological
trauma does not, therefore, trigger Subsection (A)(2)’s exception to the Rape
Shield Law, or otherwise permit inquiry into the victim’s prior sexual
conduct.

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STATE v. HERNANDEZ
Opinion of the Court

¶26 In the alternative, Hernandez argues that evidence that
Brianna sustained mental trauma as a result of her victimization by other
family members is admissible “on due process grounds.” Because Brianna’s
testimony “is the only evidence” against him, he asserts, his fate at trial
hinges on her “identification of her abuser and her memory of the abuse[.]”
Under the circumstances, he concludes, his constitutional right “to present
a complete defense and cross examine his accuser” requires that he be
“allowed to inquire into factors[,]” including other “instances of sexual
abuse,” that “can impact the accuracy of [Brianna’s] memory[.]”

¶27 As noted above, the exclusion of relevant evidence may run
afoul of a defendant’s constitutional right to present a complete defense. See
State ex rel. Romley v. Superior Court (Roper), 172 Ariz. 232, 236 (App. 1992)
(noting that “exclu[sion]” of “essential evidence” that “preclud[es] a
defendant from presenting a theory of defense” violates “the defendant’s
right to due process”); Castro, 163 Ariz. at 470 (noting that a court
endeavoring to “reduce the trauma and humiliation of the criminal process
for the victims of sexual crimes . . . must also meet its constitutional
obligation to preserve the defendant’s rights to cross-examine and
defend”). But the superior court has not addressed this alternative
argument, and nothing in the limited record before us enables us to address
it in the first instance.3 We therefore decline to consider Hernandez’s
alternative argument, and offer no opinion on whether the proffered
evidence is admissible on constitutional grounds despite the bar of the Rape
Shield Law.

CONCLUSION

¶28 We accept jurisdiction and grant relief.

3 Although Hernandez asserts that the State’s expert witness is expected “to

testify to how trauma impacts memory[,]” the State disputes Hernandez’s
“predictions” about “what the State’s expert will say[.]” The present record
gives us no way of knowing who is right.

12
STATE v. HERNANDEZ
Paton, J., Specially Concurring

P A T O N, Judge, specially concurring:

¶29 I join paragraphs 1-11 and 22-28 of the majority’s decision and
concur in its outcome. It is not necessary to reach the secondary statutory
interpretation methods the majority employs when, as here, the statute’s
text is unambiguous, and the majority does not expressly say the statute is
ambiguous. See Pima Cnty. v. State, 258 Ariz. 11, 15-16, ¶ 23 (2024) (“Unless
there is ambiguity in a provision’s meaning, or a provision’s plain meaning
would produce absurd results, this Court’s inquiry ‘begins and ends with
the plain meaning of the legislature’s chosen words, read within the
“overall statutory context.”’” (quoting Welch v. Cochise Cnty. Bd. of
Supervisors, 251 Ariz. 519, 523, ¶ 11 (2021)); see also State v. Serrato, 259 Ariz.
493, 496, ¶ 9 (2025) (“If a statute’s text is clear and unambiguous, it controls
unless it results in an absurdity or a constitutional violation.”). A statute is
not ambiguous because parties or courts disagree about its meaning; rather,
a statute is ambiguous when, in context, “it can be reasonably read in two
ways.” See Planned Parenthood Ariz., Inc. v. Mayes, 257 Ariz. 137, 142-43, ¶
17 (2024) (quoting State v. Salazar-Mercado, 234 Ariz. 590, 592, ¶ 5 (2014)).

¶30 The term “trauma” in Section 13-1421(A)(2) is unambiguous
for the reasons the majority provides in paragraphs 10, 11, and 22: under
the noscitur a sociis canon, “a word’s meaning cannot be determined in
isolation [] but must be drawn from the context in which it is used.” City of
Surprise v. Ariz. Corp. Comm’n, 246 Ariz. 206, 211, ¶ 13 (2019). This canon
“is appropriate when several terms are associated in a context suggesting
the terms have some quality in common.” Id. The term “trauma”
sequentially follows other terms describing physical evidence that sexual
contact occurred. Psychological trauma is distinct from the other terms in
the statute because psychological trauma is “not traceable to a single cause
or a particular event.” Op. ¶ 22. Therefore, “trauma” under Section 13-
1421(A)(2) unambiguously means physical trauma resulting from sexual
contact. We therefore need not wade into the history of the rape shield law
to resolve this issue.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JT

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