from the Superior Court in Pima County No. CR20153211001 The
Honorable Richard Fields, Judge.
Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief
Counsel By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee.
Harriette P. Levitt, Tucson Counsel for Appellant.
Presiding Judge Staring authored the opinion of the Court, in
which Judge Brearcliffe concurred and Chief Judge Eckerstrom
STARING, PRESIDING JUDGE.
Michael Kellywood appeals from his convictions and sentences
for three counts of sexual conduct with a minor under the age
of fifteen, and one count each of molestation of a child,
continuous sexual abuse of a child, and sexual abuse of a
minor under the age of fifteen, all dangerous crimes against
children. Kellywood argues the trial court erred by denying
his motion to compel production of the victim's medical
and counseling records for in camera review because
they possibly contained exculpatory evidence. For the reasons
that follow, we affirm Kellywood's convictions and
and Procedural History
We view the facts in the light most favorable to upholding
the jury's verdicts. State v. Buccheri-Bianca,
233 Ariz. 324, ¶ 38 (App. 2013). Beginning in 2012,
Kellywood and his wife became foster parents to five
siblings, whom they eventually adopted, including A.K. From
2012 to 2015, while A.K. was between eleven and fourteen
years old, Kellywood sexually molested and assaulted her, for
which he was eventually charged with multiple sexual offenses
According to Kellywood's theory of defense, A.K. had
recently fabricated her allegations, in part because he and
his wife had taken away her cell phone after they discovered
she had been using it to watch pornography. To support this
theory, Kellywood filed a pretrial motion to compel the state
to produce A.K.'s medical, Department of Child Safety
(DCS), school, and counseling records, as well as her social
media entries, computer searches, and text messages. Although
Kellywood cited numerous legal authorities in his motion, he
failed to develop any specific argument concerning his
entitlement to production, merely asserting that, "All
of the above records are necessary to defend Mr.
Kellywood." Kellywood later withdrew the motion, and in
a subsequent motion to compel production by the state, sought
A.K.'s medical and counseling records for the period of
time that she lived in his home. In that motion, he asserted:
"[D]efense counsel needs possible exculpatory evidence
which may be in the records of [A.K.'s] medical
professionals and counselors. Oftentimes, these professionals
directly ask questions concerning whether or not someone has
been sexually inappropriate with them." The court denied
Following trial, the jury found Kellywood guilty as described
above, and the trial court sentenced him to life
imprisonment, in addition to a combination of consecutive and
concurrent prison terms totaling sixty years. The court also
suspended imposition of his sentence for sexual abuse of a
minor under fifteen, placing him on lifetime probation. This
appeal followed. We have jurisdiction pursuant to A.R.S.
§§ 13-4031 and 13-4033(A)(1).
Kellywood argues the trial court erred by denying his motion
to compel production of A.K.'s medical and counseling
records. He asserts the presence of "sufficient
indicia" that those records might contain statements
with which he could impeach A.K. Specifically, as noted, he
maintains the medical and counseling records might show that
when directly asked, A.K. affirmatively denied experiencing
inappropriate sexual contact during the relevant period of
time. "A trial court has broad discretion over discovery
matters, and we will not disturb its rulings on those matters
absent an abuse of that discretion." State v.
Fields, 196 Ariz. 580, ¶ 4 (App. 1999). An error of
law is an abuse of discretion. State v. Burgett, 226
Ariz. 85, ¶ 1 (App. 2010).
The trial court denied Kellywood's motion to compel
"for various reasons, including [it]s concern that [the]
circumstances of this kind of case [do] not mean that any
negative responses to alleged providers [about inappropriate
sexual contact] would necessarily be exculpatory." To
the extent that this reflects a conclusion by the court that,
as a matter of law, prior statements in which A.K. had denied
experiencing inappropriate sexual contact could not possibly
be exculpatory, we disagree. See Exculpatory
Evidence, Black's Law Dictionary (10th ed. 2014)
("exculpatory evidence" is "[e]vidence tending
to establish a criminal defendant's innocence"). It
is possible that A.K., or any other similarly situated
victim, could say something exculpatory to a care provider.
However, as discussed herein, the mere possibility A.K. could
have said something exculpatory is not, as a matter of law,
sufficient by itself to require her to produce the medical
and counseling records sought by Kellywood.
Under Arizona's Victims' Bill of Rights, a crime
victim possesses a constitutional right "[t]o refuse an
interview, deposition, or other discovery request by the
defendant, the defendant's attorney, or other person
acting on behalf of the defendant." Ariz. Const. art.
II, § 2.1(A)(5); see also Ariz. R. Crim. P.
39(b)(12) (crime victim entitled "to refuse [a] . . .
discovery request by the defendant[ or] the defendant's
attorney"). Thus, "[g]enerally, the victim of a
crime has the right to refuse to hand over medical records .
. . ." State v. Sarullo, 219 Ariz. 431, ¶
20 (App. 2008); see also State ex rel. Romley v. Superior
Court (Roper), 172 Ariz. 232, 237 (App. 1992) (§
2.1(A)(5) encompasses medical records). In addition,
"pursuant to the physician-patient privilege, a
defendant may not seek to establish a victim's character
trait through the testimony of the victim's doctor, or
psychologist, or by using the victim's medical records
without the victim's consent." State v.
Connor, 215 Ariz. 553, ¶ 18 (App. 2007); A.R.S.
§ 13-4062(4) (physician-patient privilege); A.R.S.
§ 32-2085(A) (psychologist-patient privilege).
A victim's right to refuse discovery is not absolute,
however. Sarullo, 219 Ariz. 431, ¶ 20.
"Due process requires that the defendant receive 'a
meaningful opportunity to present a complete
defense.'" Connor, 215 Ariz. 553, ¶ 12
(quoting Holmes v. South Carolina, 547 U.S. 319, 324
(2006)). And, "when the defendant's constitutional
right to due process conflicts with the Victim's Bill of
Rights in a direct manner . . . then due process is the
superior right." Roper, 172 Ariz. at 236
(excluding "essential evidence, thereby precluding a
defendant from presenting a theory of defense . . . results
in a denial of . . . due process that is not harmless").
Thus, a victim may be compelled to produce treatment records
for in camera inspection if the defendant shows a
"reasonable possibility that the information sought . .
. include[s] information to which [he or] she [is] entitled
as a matter of due process." Sarullo, 219 Ariz.
431, ¶ 20 (quoting Connor, 215 Ariz. 553,
¶ 10) (alteration in Sarullo).
We therefore turn to the question of whether Kellywood
demonstrated a "reasonable possibility" that the
medical and counseling records he sought would contain
evidence to which he was entitled as a matter of due process.
Id. ¶ 20. In light of the competing
constitutional interests, as well as the ordinarily
privileged nature of patient-provider communications, we
conclude the burden of demonstrating a "reasonable
possibility" is not insubstantial, and necessarily
requires more than conclusory assertions or speculation on
the part of the requesting party. See Fields, 196
Ariz. 580, ¶ 7 (discovery request anchored in
speculation when motivated only by "conclusions,
surmise, and conjecture"); see also State v.
Hatton,116 Ariz. 142, 150 (1977) ("[M]ere