Kristoff v. Thornell et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Kim C. Kristoff,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-24-03395-PHX-DWL (JZB)
REPORT AND RECOMMENDATION
TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT
JUDGE:
On November 28, 2024, Petitioner Kim C. Kristoff, who is confined in an Arizona
State Prison, by and through undersigned counsel, Michael P. Denea, filed a Petition for
Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. The Court recommends
that the Petition be denied and dismissed.
I. Background.
A. Facts.
The Arizona Court of Appeals found the following facts as true:1
Kristoff is the father of Mary, born in 1987, Kaci, born in 1992, as
well as two sons. In 2017, both of Kristoff’s daughters, now adults, told their
mother, who at the time was Kristoff’s wife, that Kristoff had sexual contact
with them—when Mary was about eight and Kaci about three or four years
1 The Arizona Court of Appeals’ recitation of the facts is presumed correct. See 28
U.S.C. § 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012)
(rejecting argument that statement of facts in state appellate court’s opinion should not be
afforded the presumption of correctness).
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old.2 Kristoff’s wife told him she wanted a divorce and threatened that their
children would never speak to him again unless he apologized for what he
had done.
About a week later, Kaci called Kristoff and recorded their
conversation (the “Confrontation Call”) during which Kristoff made
incriminating statements.3 Several weeks later, police coordinated a phone
call between Mary and Kristoff. During that call, Kristoff denied ever having
contact with Mary that was sexual in nature, except the conduct he
specifically confessed to in the Confrontation Call. The following month, a
detective approached Kristoff to discuss the allegations. At that time, Kristoff
denied that the voice in the Confrontation Call recording was his. However,
in emails and in a recorded call with Mary, Kristoff had admitted he
participated in the Confrontation Call. ¶4 As relevant here, the State charged
Kristoff with one count of sexual conduct with a minor (Count 1), related to
the incident with Mary. See A.R.S. § 13-1405. The State also charged
Kristoff with two counts of child molestation (Counts 3 and 6), A.R.S. § 13-
1410, one count of public sexual indecency (Count 4), A.R.S. § 13-1403, and
one count of sexual conduct with a minor (Count 5), A.R.S. § 13- 1405, all
related to the incidents with Kaci.
Both Mary and Kaci testified at trial. Kristoff, who testified on his
own behalf, denied each of the sexual acts described by Kaci and testified
the story he told her in the Confrontation Call was a lie. He explained, “I
actually believed in the moment that telling her something that perhaps she
would believe, even though I knew it did not happen, might actually be the
end of the discussion.” Kristoff claimed he made up the stories to keep his
daughter on the phone because he was afraid if he did not apologize, his
children would never talk to him again. Kristoff testified the incidents Kaci
described were never sexually motivated.
The jury convicted Kristoff of Counts 3, 4, 5, and 6, as well as the
lesser-included offense—child molestation—for Count 1. The superior court
sentenced Kristoff to 39 years in prison.
(Doc. 1-1 at 198–99.)
B. Direct Appeal.
On February 23, 2021, Petitioner filed an opening brief on direct appeal. (Doc. 12-
2 The opinion refers to victims Mary and Kaci, who are also referenced as MT and
KP in other documents.
3 Transcripts of the recordings are contained in the record here. See e.g. Transcript of
August 9, 2017 phone call from Kaci to Petitioner where Petitioner stated: “But anyway,
during that period of time—and don’t ask me exactly how it started—but during that
time—you were involved in oral sex with me and—and I never touched you in any other
way.” (Doc. 1-1 at 860.)
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1, Ex., at 1–43.) Petitioner raised two claims. Petitioner argued that “the trial court’s failure
to instruct the jury on contributing to the delinquency of a child was a lesser included
offense of child molestation was fundamental error.” (Id. at 31.) Petitioner also argued that
“the trial court’s failure to instruct the jury on the defense of lack of sexual motivation was
fundamental error.” (Id. at 38.)
On September 14, 2021, the Arizona Court of Appeals affirmed the convictions.
(Doc. 12-1, Ex. F, at 136.)
C. Post-Conviction Relief.
On September 8, 2021, Petitioner filed a timely PCR petition that raised five claims
of ineffective assistance of trial counsel: (1) failure to request a jury instruction on the
defense of lack of sexual motivation; (2) failure to request a jury instruction for
contributing to the delinquency of a minor; (3) failure to object to testimony from the
State’s expert that false allegations are uncommon; (4) failure to present exculpatory trial
witnesses; and (5) failure to present a false confession expert. (Doc. 12-1, Ex. H, at 166–
212.)
On April 10, 2023, Petitioner filed a petition for review in the Arizona Court of
Appeals. (Doc. 12-1, Ex. L, at 301.) On March 27, 2024, the court granted review and
denied relief. (Doc. 11-3, Ex. Q, at 128.) The court affirmed the trial court’s conclusions
that Petitioner’s claims were precluded because he failed to raise them on direct appeal.
(Id.)
On November 28, 2024, the Arizona Supreme Court denied review. (Doc. 12-2, Ex.
Q, at 127.)
II. Petition for Writ of Habeas Corpus.
On November 28, 2024, Petitioner timely filed a habeas petition. (Doc. 1.) On April
14, 2025, Respondent filed a Response. (Doc. 12).
III. Motion to Stay and Abey.
On September 12, 2025, Petitioner filed a motion to “stay and abey” the petition
under Rhines v. Weber, 544 U.S. 269 (2005). (Doc. 17.) Petitioner seeks a stay so that he
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may attempt to exhaust five claims in the Arizona courts. (Id.) But the claims that Petitioner
is attempting to exhaust in the Arizona courts are not raised in his habeas petition.
“[F]ederal district court[s] may not adjudicate mixed petitions for habeas corpus,
that is, petitions containing both exhausted and unexhausted claims.” Rhines, 544 U.S. at
273. As such, a district court may stay a habeas petition when it contains unexhausted
claims. Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016). “Stay and abeyance [is] available
only in limited circumstances.” Rhines, 544 U.S. at 277. District courts must use their
discretion sparingly, because “routinely granting stays would undermine the AEDPA’s
goals of encouraging finality and streamlining federal habeas proceedings.” Blake v. Baker,
745 F.3d 977, 981–82 (9th Cir. 2014) (enumerating the required showing under Rhines as
(1) “good cause” for failing to exhaust claims earlier; (2) “the unexhausted claims are
potentially meritorious”; and (3) lack of “intentional[ ] dilatory litigation tactics”) (quoting
544 U.S. at 278).
In the Motion for a Stay, Petitioner summarized the five claims of the present habeas
petition:
(1) Ineffective assistance of trial counsel in failing to retain, consult, and
present an expert witness on false confessions and “confrontation calls.”
(2) Instructional error violative of his Fifth and Fourteenth Amendment
rights to a fair trial as the trial court failed to instruct the jury that, under
A.R.S. § 13-1407(E) (Supp. 1994), lack of sexual interest motivation is an
affirmative defense to child molestation, Counts 1, 3, 5, and 6.
(3) The failure of the state court to grant him post-conviction relief violated
his Sixth and Fourteenth Amendment rights to effective assistance of counsel
because trial counsel was deficient in failing to request a jury instruction for
Contributing to the Delinquency of a Minor, the lesser included instruction
for Molestation of a Child and, he was prejudiced as a result.
(4) The failure of the state court to grant him post-conviction relief violated
his Sixth and Fourteenth Amendment rights to effective assistance of counsel
because trial counsel elicited and failed to object to inadmissible testimony
from the state’s expert witness that false allegations were uncommon.
(5) The failure of the state court to grant him post-conviction relief violated
his Sixth and Fourteenth Amendment rights to effective assistance of counsel
because trial counsel failed to investigate and present the testimony of
defense witnesses to rebut some of the victims’ allegations.
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(Doc. 17 at 3–4.)
Petitioner summarized the five claims brought in the successive PCR petition:
(1) Kristoff’s child molestation convictions are invalid as a matter of law.
Sexual motivation is an essential element of child molestation under the
affirmative defense statute in effect at the time the offenses were alleged to
have been committed and the prosecution failed to present such evidence to
the jury.
(2) Prior appellate counsel failed to investigate and develop meritorious
claims memorialized in the appellate record. As direct appeal counsel she
failed to federalize the legal sufficiency claim she raised on direct appeal. As
PCR counsel she failed to recognize that trial counsel had not represented
Kristoff effectively as she had not consulted with a mental health behavioral
expert despite concerns that Kristoff was unable to assist in his defense.
(3) Trial counsel failed to investigate and present mental health disorder
evidence as character evidence and in mitigation. Trial counsel was aware
Kristoff did not have the ability to assist counsel in his defense yet had
Kristoff undergo both a Rule 11 examination and a psychosexual risk
assessment but failed to have Kristoff examined by a mental health
behavioral expert.
(4) Trial counsel failed to represent Kristoff effectively during trial
where she did not request a theory of the case instruction.
(5) Kristoff was denied the right to present a complete defense. Under
state law, a defendant may present character trait or observation evidence of
behavioral tendencies to establish he acted reflexively or impulsively. Trial
counsel failed to present such evidence in support of one of Kristoff’s
defenses to the charges. Kristoff’s constitutional rights were further violated
where the trial court granted the prosecution’s motions to preclude mental
health evidence and character evidence.
(Doc. 17-1 at 4.) (Emphasis in original.)
Here, Petitioner’s habeas claims have either been exhausted (Grounds One through
Four) or Petitioner is not currently raising the claim in the Arizona courts (Ground Five).
Stated differently, Petitioner’s current state claims have no relation to Grounds One
through Five. Petitioner is not entitled to a stay when the resolution of his current state
claims has no bearing upon the claims presented here. See Patterson v. Thornell, No. CV-
20-02068-PHX-JJT, 2023 WL 3060963, at *3 (D. Ariz. Apr. 24, 2023) (denying request
for a stay where petitioner presented “no authority for the proposition that the court can
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issue a stay under Rhines to allow a petitioner to exhaust a claim he has not raised”); Myers
v. Haviland, No. 3:16 CV 659, 2017 WL 4837479, at *4 (N.D. Ohio Oct. 26, 2017) (noting
“this court has denied motions for stay and abeyance when the petitioner seeks a stay in
order to exhaust a new claim that is not raised in his habeas petition” because such petitions
are not “mixed” under Rhines). The Court will recommend the motion to stay and abey be
denied.
IV. Ground One: Failure to Present False Confessions Expert.
In Ground One, Petitioner argues that his trial counsel was ineffective for failing to
“retain, consult, and present an expert witness on false confessions and ‘confrontation
calls.’” (Doc. 1 at 10–11.) Petitioner contends that although trial counsel consulted with
one expert witness regarding false confessions and confrontation calls, she failed to retain
and present an expert at trial. (Id.) Petitioner asserts, “Because the jury only found Mr.
Kristoff guilty of the offenses for which he made statements that could have been
considered confessions, expert testimony clearly could have resulted in a different verdict.”
(Id.) Petitioner further alleges that trial counsel’s “expert testimony would have bolstered
Mr. Kristoff’s defense and counsel could have argue[d] that the victims had no
‘independent’ memory, as they alleged[,] but based on their allegations on Mr. Kristoff’s
admissions.” (Id.)
To succeed in a claim of ineffective assistance of counsel, Petitioner must satisfy
the two-pronged test laid out in Strickland v. Washington, 466 U.S. 668 (1984). First, he
must demonstrate that “counsel’s representation fell below an objective standard of
reasonableness,” with reasonableness being judged under professional norms at the time
assistance was rendered. Id. at 688. Second, he must demonstrate that “there is a reasonable
probability that, but for counsel’s error the result would have been different.” Id. at 687–
96. A reasonable probability is a “probability sufficient to undermine confidence in the
outcome.” Id. at 688. The petitioner has the burden of proving his claim of ineffective
assistance and must overcome a “strong presumption that the representation was
professionally reasonable.” Id. at 689.
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Petitioner raised this claim in his first PCR proceeding. The superior court ruled:
First it should be noted that trial counsel did reach out to an expert on
false confessions and was informed that the expert could not help in this case.
The fact that appellate/pcr counsel found such an expert does not render trial
counsel’s conduct ineffective. See Murtishaw v. Woodford, 255 F.3d 926,
947, 948 (9th Cir. 2001).
Second it is not clear that Defendant’s expert would have been
permitted to testify. Although the expert’s report indicates she would not
offer an ultimate opinion on the validity of the confession, her application to
Exhibits 20 and 21 raises concerns that her testimony would invade the
province of the jury. “And clearly, an expert should not be permitted to
express his opinion in a matter on which the opinion cannot aid the trier of
fact in determining the truth of the fact. If the jury is as competent to
determine the fact in issue as the expert, ordinarily the expert’s opinion will
be of no assistance and should not be admitted.” State v. Kevil, 111 Ariz. 240,
246, 247 (1974). Here the proposed expert would explain to the jury why
people might falsely admit a crime in a pretext call. Whether she would be
permitted to testify directly to the confessions here is questionable.
Defendant testified4 and trial counsel argued5 that Defendant lied in the calls
in an effort to end the conversation and move on. The jury was aware of the
argument. This Court is not clear how an expert saying that could happen and
does happen would help the jury determine if Defendant lied in the pretext
calls here.
Finally Defendant fails to show that but for the failure to present an
expert on the issue of his admissions made in Exhibits 20 and 21, the result
of the proceeding would have been different. The proposed expert’s opinion
relates to the recorded conversations and does not address any of the other
admissions the Defendant made in texts and emails. The evidence reflects
that the Defendant made admissions to his family before the recorded calls
and continued to make or allude to his admissions and actions well after it is
[sic] clear from the exhibits that Defendant’s relationship with his family was
broken.
(Doc. 12-1, Ex. K, at 297–98.)
//
4 Petitioner testified that he made false admissions under the assertion that if he did
not so his family would never forgive him nor speak to him again. (Doc. 12-3, Ex. AA at
52.)
5 Trial counsel argued that Petitioner was willing to say anything to his family to keep
them communicating with him when faced with threats of losing contact with his wife and
children for the rest of his life, even if that meant apologizing and admitting to actions he
did not do. (Doc. 12-3, Ex. CC, at 70–134.)
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A. Counsel’s Conduct Was Not Objectively Unreasonable.
The trial court6 found that counsel contacted an expert and “was informed that the
expert could not help in this case.” (Id.) The court concluded that the “fact that appellate/pcr
counsel found such an expert does not render trial counsel’s conduct ineffective.” (Id.) The
Arizona Court of Appeals affirmed the ruling.
Here, the trial court ruling was not objectively unreasonable. Trial counsel contacted
Dr. Sarah Gallimore, a clinical and forensic psychologist, to discuss the possibility of
testifying about false confessions. (Doc. 12-1, Ex, I, at 225.) According to the State’s
Response to the PCR Petition, Dr. Gallimore reviewed information and a transcript. Dr.
Gallimore responded to counsel:
I’m not sure if I can be of much help. Much of the research on false
confessions relates to police interrogation. If there is a police interrogation
or other background information from prior to this call that you’d like me to
review, let me know. Otherwise, sorry I can’t help on this one.
(Id.)
It was not unreasonable for the Arizona courts to conclude counsel’s performance
was not deficient. Counsel relied on the expert’s statement that she could not assist the
defense on the basis there was insufficient research on false confessions to family
members. See Dunn v. Reeves, 594 U.S. 731, 739 (2021) (“As to counsel, we have often
explained that strategic decisions—including whether to hire an expert—are entitled to a
strong presumption of reasonableness” and “is doubly deferential when, as here, a state
court has decided that counsel performed adequately”) (cleaned up); Harris v. Vasquez,
949 F.2d 1497, 1525 (9th Cir. 1990) (“It is certainly within the “wide range of
professionally competent assistance’ for an attorney to rely on properly selected experts.”)
(quoting Strickland, 466 U.S. at 690); Murtishaw v. Woodford, 255 F.3d 926, 946 (9th Cir.
2001) (noting “counsel’s actions are not deficient just because, through the fabled twenty-
twenty vision of hindsight, a better course of action becomes apparent”) (cleaned up); Mills
v. Singletary, 63 F.3d 999, 1024 (11th Cir.1995) (“The question is whether . . . ending an
6 The trial court ruling is the last reasoned decision of this claim.
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investigation short of exhaustion, was a reasonable tactical decision. If so, such a choice
must be given a strong presumption of correctness, and the inquiry is generally at an end.”)
(quotation and citation omitted).
B. Scope of Expert Testimony.
The Court finds it necessary to add context to the trial court’s statement that it “is
not clear how an expert saying that could happen and does happen would help the jury
determine if Defendant lied in the pretext calls here.” (Doc. 12-1, Ex. K, at 297–98.) In
Tekoh v. Cnty. of Los Angeles, 75 F.4th 1264, 1266 (9th Cir. 2023), the Ninth Circuit
reversed a trial court ruling precluding similar testimony. The court concluded “the expert’s
proposed testimony was not simply about false confessions, but the coercive questioning
tactics that lead to them. Dr. Blandón-Gitlin’s testimony would help the jury better
understand coerced confessions, including why just asking questions can be coercive,
issues that are beyond a layperson’s understanding and not necessarily obvious, even in
these circumstances.” Id. The dissent in Tekoh argued this conclusion created a split with
United States v. Benally, 541 F.3d 990, 1011 (10th Cir. 2008) (affirming the preclusion of
expert testimony in a child sex abuse case “concerning the frequency of false confessions
and the interrogation techniques that cause them”). Because there is no clearly established
law from the United States Supreme Court on this issue,7 this Court will assume the expert
could have testified to the nature of false confessions but could not give an opinion as to
whether Defendant’s statements were untrue.
C. Failure to Establish Prejudice.
To meet his burden of showing “prejudice” required by Strickland, a petitioner must
“show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694. This standard is doubly deferential on habeas review.
7 See 28 U.S.C. § 2254(d)(1) (affording habeas as relief for a claim that “involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States.”).
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Establishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The standards created by Strickland
and § 2254(d) are both “highly deferential,” and when the two apply in
tandem, review is “doubly” so. The Strickland standard is a general one, so
the range of reasonable applications is substantial. Federal habeas courts
must guard against the danger of equating unreasonableness under Strickland
with unreasonableness under § 2254(d). When § 2254(d) applies, the
question is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.
Harrington v. Richter, 562 U.S. 86, 105 (2011).
The trial court found that Petitioner was not prejudiced by trial counsel’s failure to
call an expert witness because he could not affirmatively show that it would have changed
the verdicts. (Doc. 12-1, Ex. K, at 297–98.) As noted above, the superior court ruled:
Here the proposed expert would explain to the jury why people might
falsely admit a crime in a pretext call. Whether she would be permitted to
testify directly to the confessions here is questionable. Defendant testified
and trial counsel argued that Defendant lied in the calls in an effort to end the
conversation and move on. The jury was aware of the argument. This Court
is not clear how an expert saying that could happen and does happen would
help the jury determine if Defendant lied in the pretext calls here. . . .
The evidence reflects that the Defendant made admissions to his
family before the recorded calls and continued to make or allude to his
admissions and actions well after it is [sic] clear from the exhibits that
Defendant’s relationship with his family was broken.
Id.
Petitioner presents, as he did in PCR proceedings, the expert report of Dr. Deborah
Davis. (Doc. 1-1 at 205.) Petitioner argues that counsel should have found an expert like
Dr. Davis to testify as to “the opinions she could have offered in support of Mr. Kristoff’s
defense.” (Doc. 1 at 11.) Petitioner argues Dr. Davis could have testified to the nature of
false confessions and bolstered Petitioner’s defense that the victims “based their allegations
on [Petitioner’s] admissions.” (Id.) The expert report submits conclusions that a “number
of facts of [Petitioner’s] case are consistent with what is known about causes of false
confessions generally, and during pretext calls.” (Doc. 1-1 at 215.) She opines that “the
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content of KK’s admissions can be explained in ways consistent with processes known to
facilitate the construction of confessions later proven to be false.” (Id.)
Under the deferential standard of 28 U.S.C. § 2254, the decision of the Arizona
courts was not unreasonable. The State presented compelling evidence distinct from
statements made by Petitioner during the confrontation calls. Both Mary and Kaci testified
at trial that Petitioner abused them.8 Petitioner also sent email messages before and after
the confrontation calls at issue.9 Petitioner denied any unlawful physical contact with the
victims and testified that he would have said anything to reconnect with his family.10
Petitioner’s counsel argued his defense to the jury. As such, it was not unreasonable for the
court to conclude the jury sufficiently understood the evidence so that any limited expert
testimony on the subject would not have changed the outcome when compared to the
testimony of the victims and substantial evidence presented to the jury.
Accordingly, Petitioner’s Ground One claim fails on the merits.
V. Ground Two: Failure of Trial Court to Instruct on Lack of Sexual Intent.
A. Failure to Instruct on Affirmative Defense of Lack of Sexual Intent.
Petitioner claims that “the trial court violated his Fifth/Fourteenth Amendment
rights to a fair trial by failing to instruct the jury that, under A.R.S. § 13-1407(E) (Supp.
1994), lack of sexual interest motivation is an affirmative defense to child molestation,
Counts 1, 3, 5, and 6.” (Doc. 1 at 12.)
8 The trial court summarized the facts in its PCR order. “Victim MT testified at trial
that the defendant performed oral sex on her when she was a child. She testified that it
occurred more than one time and it seemed like a nightly routine. She described where the
sex acts occurred.” (Doc. 1-1 at 116.) “Victim KP testified at trial that Defendant had her
perform oral sex on him two times. She described where and how the acts occurred.” (Doc.
1-1 at 116.) The court’s PCR order contains seven pages of facts relevant to Petitioner’s
claim.
9 On August 5, 2017, Petitioner texted MT: “I am profoundly sad about the hurt and
pain that I have caused you, my loving wife and my entire family. Nothing and perhaps no
amount of time will ever erase the wrong that I have done, but ask for your forgiveness and
your prayers as I enter the St. Francis Renewal Center for self-reflection and repair with
professional and spiritual guidance over the next year.” (Doc. 1-1 at 116.) On August 8,
2017, Petitioner emailed KP: “I am asking you now to go deep inside yourself and find
compassion and forgiveness for me. . . . Yes I fully understand my fault and I readily agree
that mine is only fault here.” (Doc. 1-1 at 117.) On October 20, 2017, Petitioner emailed
KP: “I am very ashamed of the actions that you refer to of 22 years ago.” (Id. at 118.) The
court’s PCR order contains additional emails from the Petitioner to the victims.
10 See Doc. 12-3 at 1533–610; 1688–998.
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The last reasoned decision of the state courts regarding this claim is the Arizona
Court of Appeals’ Memorandum Decision rejecting this argument in his direct appeal:
¶10 Kristoff next argues the superior court erred by failing to instruct the jury
that, under A.R.S. § 13-1407(E) (Supp. 1994), lack of sexual interest
motivation is an affirmative defense to child molestation, Counts 1, 3, 5, and
6. Almost a year before trial, Kristoff notified the State he intended to prove
this defense and requested this instruction in his initial proposed jury
instructions. But defense counsel did not raise the defense in her opening
statement or closing argument, nor did she object when the court failed to
include the instruction in the final instructions, as required under Arizona
Rule of Criminal Procedure 21.3(b).
¶11 The State argues Kristoff’s failure to address the lack of sexual- interest-
motivation defense during opening statement or closing argument and to
object to the omission of the instruction demonstrate a strategic abandonment
of the defense at trial. We agree.
¶12 Kristoff’s opening statement and closing argument, in conjunction with
his testimony, which emphatically denied all sexual contact with his children,
demonstrate a strategic choice to abandon the defense. To be successful in
presenting this affirmative defense, Kristoff would have to admit the sexual
contact, but negate the motive for the conduct. He could not deny all sexual
contact and then press a defense that necessarily required the physical
touching of the minors.
¶13 “[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.” State v. Speers,
238 Ariz. 423, 428, ¶ 16 (App. 2015) (citing Strickland v. Washington, 466
U.S. 668, 690 (1984)). The court was not obligated to instruct the jury on a
defense Kristoff abandoned and because Kristoff failed to object before the
jury retired, we affirm. Ariz. R. Crim. P. 21.3(b); see State v. Henderson, 210
Ariz. 561, 567, ¶ 19 (2005) (explaining that courts “discourage a defendant
from tak[ing] his chances on a favorable verdict, reserving the ‘hole card’ of
a later appeal on [a] matter that was curable at trial, and then seek[ing]
appellate reversal’”) (quotation omitted). Here, Kristoff abandoned the
affirmative defense of lack of sexual motivation when he adopted the defense
of actual innocence.
(Doc. 12-1, Ex. F at 4–5; 1 CA-CR 20-0290 – 2021 WL 4164036 at ¶¶ 10–13.)
//
///
//
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Here, the trial court’s failure to instruct on the affirmative defense of lack of sexual
intent was not error because that defense was abandoned. At trial, Petitioner testified and
denied all sexual contact with his children.11 Petitioner’s trial counsel likewise argued the
defense of actual innocence, and asserted that Petitioner never had any sexual or physical
contact with the victims.12 Because the defense of actual innocence was maintained by both
trial counsel and Petitioner throughout the course of the trial, it was reasonable for the trial
court to not instruct the jury on the defense of lack of sexual intent. See Blythe v. Shinn,
2022 WL 17984466, at *1 (9th Cir. 2022) (lack of jury instruction on sexual intent was not
erroneous where the affirmative defense was not raised and defendant’s “primary defense
was that he did not engage in sexual contact with the victim altogether”). Thus, the decision
of the Arizona Court of Appeals was not clearly erroneous.
B. Failure to Instruct on Lesser-Included Offense to Child Molestation Counts.
Petitioner also argues that “[a]lthough Mr. Kristoff’s trial counsel did not request an
instruction on contributing to the delinquency of a minor as a lesser-included offense to the
child molestation counts, jurors are to be instructed on any legal theory supported by the
evidence and the evidence supported the instruction.” (Doc. 1 at 12.)
Here, as above, federal law does not require a court to sua sponte instruct on a theory
of a case not supported by the evidence. See Hopper v. Evans, 456 U.S. 605, 611 (1982)
(“[D]ue process requires that a lesser included offense instruction be given only when the
evidence warrants such an instruction”); Windham v. Merkle, 163 F.3d 1092, 1105-06 (9th
Cir. 1998) (citing Turner v. Marshall, 63 F.3d 807, 819 (9th Cir. 1995)) (“Under the law
of this circuit, the failure of a state trial court to instruct on lesser included offenses in a
non-capital case does not present a federal constitutional question”). Moreover, contrary to
Petitioner’s claim, contributing to the delinquency of a minor is not a lesser included
offense to child molestation. See State v. Agueda, 513 P.3d 1112, 1115 (Ariz. 2022)
11 Doc. 12-3, Ex. AA, at 1836 (“Absolutely nothing has happened”), 1976 (“No. Not
ever.”); Y, at 1590 (“I can’t even imagine it”).
12 Doc. 12-3, Ex. CC at 2170 (“[I]t didn’t happen, ladies and gentlemen. It just did not
happen.”), 2215 (“So we’re circling around and I go back to why would an innocent person
confess to a crime?”), 2216 (“I would submit to you, ladies and gentlemen, that he felt his
statements were, in fact, coerced, they were made up”).
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(overruling State v. Sutton, 104 Ariz. 317 (1969) (finding contributing to the delinquency
of a minor is not a lesser offense of sexual conduct with a minor “[b]ecause Sutton’s
statutory interpretation was conclusory, clearly wrong, and would make contributing to the
delinquency of a minor a lessor-included offense of virtually every crime in which a child
was the victim”); Speers v. Shinn, CV–22–00172–PHX–JAT–DMF, 2022 WL 18956603,
at *9 (D. Ariz. Sept. 16, 2022), report and recommendation adopted, CV 22–00172–PHX–
JAT, 2023 WL 1814291 (D. Ariz. Feb. 8, 2023) (denying habeas relief because
“contributing to the delinquency of a minor is not a lesser-included offense of molestation
under Arizona law” and petitioner therefore could not establish Strickland prejudice).
For these reasons, the Court of Appeals decision was not clearly unreasonable.
VI. Ground Three: PCR Court Failure to grant Relief on IAC Claim for Failure
to Request Jury Instruction on Lesser Included.
Petitioner claims that the PCR court violated his Sixth/Fourteenth Amendment
rights to effective assistance of counsel by failing to grant him postconviction relief. (Doc.
1 at 13.) He argues trial counsel was deficient in failing to request a jury instruction for
Contributing to the Delinquency of a Minor, which he alleges is the lesser included
instruction for Molestation of a Child, and that he was prejudiced as a result.
The superior court ruled:
Defendant argues that trial counsel was ineffective for failing to
request a lesser included instruction on contributing to the delinquency of a
minor. In light of Defendant’s repeated and adamant denial of ever touching
his children inappropriately, this court cannot find that trial counsel’s failure
to request an instruction for contributing to the delinquency of a minor is
ineffective assistance of counsel. This finding is not impacted by post-trial
conversations between trial counsel and appellate/pcr counsel wherein trial
counsel indicated she had not considered requesting the lesser included
instruction or was not aware she could have requested the instruction.
Nor has the Defendant shown that there is a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. At 694. First, it is not clear that a request for
the instruction would have been granted. The evidence presented to the jury
was either that Defendant never touched his children inappropriately or that
he committed the offenses of sexual conduct with a minor and/or molestation
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of a child. MT testified that Defendant performed oral sex on her. KP testified
that Defendant had her perform oral sex on him. In the recorded call
Defendant admitting to massaging her vulva for 15 to 20 minutes and
allowing KP to touch his penis and perform oral sex on him. Many emails
were admitted where the Defendant made admissions regarding sexual abuse
of his daughters.
The jury was instructed to consider the lesser offense only if they were
unable to unanimously agree on the higher offense. The jury clearly
understood their duty as they found the defendant not guilty as to Count 1 for
the charged offense, but guilty as to the lesser included offense of molestation
of a child. The jury found Defendant not guilty of both the charged offense
and the lesser included offense in Count 2. The jury found the Defendant
guilty of the charged offense and therefore did not address the lesser included
offense in Court [sic] 5. The jury found the Defendant not guilty on Count 7
of the charged offense and the lesser included offense. Defendant was
acquitted on counts where contributing to the delinquency of a minor could
have been lesser included offenses.
The verdicts suggest that the jury found that the State had proved the
charges beyond a reasonable doubt only when the victim’s testimony and the
evidence of Defendant’s admissions aligned. The jury did not find the
Defendant guilty of any of the offenses he strenuously denied in the recorded
conversations and email.
(Doc. 12-1 at 8.)
For the reasons set forth in Ground Two, PCR court did not abuse its discretion
when it denied Petitioner post-conviction relief for trial counsel’s failure to request a jury
instruction for Contributing to the Delinquency of a Minor. Trial counsel’s assistance was
not ineffective for failure to request a jury instruction on Contributing to the Delinquency
of a Minor where the defense reasonably relied on the theory of actual innocence. See
Blythe at 1. As noted above, in overturning State v. Sutton, 452 P.2d 110 (Ariz. 1969), the
Arizona Supreme Court ruled that “contributing to the delinquency of a minor is not a
lesser included offense to Child Molestation.” See Agueda, 513 P.3d at 1115.
VII. Ground Four: Failure to Grant Relief on IAC Claim That Trial Counsel Failed
to Object to Inadmissible Testimony.
Petitioner claims the PCR court violated his Sixth/Fourteenth Amendment rights to
effective assistance of counsel by failing to grant him post-conviction relief, “because his
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trial counsel elicited and failed to object to inadmissible testimony from the state’s expert
witness that false allegations were uncommon.” (Doc. 1 at 14.)
During trial, the state called forensic interviewer Jennifer Ingalls as an expert
witness regarding false allegations. (Doc. 12-3 at 8.) The testimony was intended to support
the State’s claims that the victims presented truthful testimony even though the “allegations
were based on events that occurred when the [victims] were young children.” (Doc. 1 at
14.) Petitioner argues his counsel “asked Ms. Ingalls about the types of reporting in sexual
abuse cases.” (Id. at 15.) He argues his counsel should have objected when Ms. Ingalls
testified that “malicious disclosures” (false allegations) were “uncommon” and “typically
occurred in high conflict custody disputes or teenagers trying to make a change in their
living situation.” (Doc. 1 at 14.)
The superior court rejected this claim as follows:
Defendant asserts that trial counsel was ineffective for eliciting and
failing to object to testimony from the State’s expert. Defendant here is
challenging a tactical decision made by his trial counsel. Disagreements as
to trial strategy or errors do not support a claim of ineffective assistance of
counsel if there is a reasonable basis for the conduct. State v. Meeker, 143
Ariz. 256, 262 (1984). It is clear from the record here that trial counsel was
attempting to [e]licit some evidence to support that sometimes victims are
motivated to lie for some other benefit, and that this case was an example of
such malicious disclosures. While this trial strategy might not have been
particularly successful, this Court does not find it raises to the level of
ineffective assistance of counsel. To the contrary, it must be noted that the
jury did not find the Defendant guilty of any charge for which there was not
a corresponding admission, so perhaps the line of questioning of the State’s
witness did provide some benefit to the Defendant.
In any event, in light of the overwhelming evidence of guilt in this
case, as well as the fact that Defendant was not convicted for any offense not
corroborated by other evidence. Defendant has failed to establish a
“reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694.
(Doc. 12-1, Ex. K, at 296.)
This Court does not review questions of state evidence law. Instead, on habeas
review, the Court must decide whether “the admission of the evidence so fatally infected
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the proceedings as to render them fundamentally unfair.” Jammal v. Van de Kamp, 926
F.2d 918, 919 (9th Cir. 1991).
Here, the record shows that trial counsel made a deliberate tactical decision to elicit
testimony that some victims may fabricate allegations for personal gain, and that this case
might involve such false disclosures. Petitioner’s counsel asked the following of Ms.
Ingalls:
Q. Moving on to an -- and maybe really going back in time. We talked a little
about the false allegations and the malicious reporting or disclosure. Is that -
- did you say that that was common in situations of high -- highly disputed
custody cases?
A. What I said was that it was not -- malicious, false allegations are not
common, but when we see them, we tend to see them in high conflict custody
disputes.
Q. And it can also be done for secondary gain, correct?
A. Correct.
(Doc. 12-3 at 77.)
During closing counsel argued there was “motive in this case” for the victims to
“fix” their testimony. (Doc. 12-3 at 2173, 2178.) Counsel argued Petitioner’s wife wanted
the “criminal case to go first before the family law case because she believed that there
would be a circumstance that she would be entitled to all of the assets” if Petitioner was
convicted. (Id. at 2174.)
The Arizona Court of Appeals decision was not contrary to clearly established
federal law. The testimony by Ms. Ingalls did not rise to the level of the expert giving an
opinion on a particular victim’s truthfulness. To the contrary, Ms. Ingalls testified that was
not her role.13 The Court also does not find that the term “uncommon” is particularly
13 The trial judge read a juror question to Ms. Ingalls regarding accuser truthfulness:
THE COURT: What would lead you to believe an accuser may be lying or
exaggerating the truth during a series of forensic questioning?
THE WITNESS: Again, I would have to caution anyone to -- and make sure that
everyone knows that is not my role inside of a forensic interview or any other
forensic interviewer.
We conduct forensic interviews using research based on methods to ask
children questions . . . .
And again, it is up for other people to make the decision whether someone is
telling me inside an interview if they’re being truthful or not.
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informative or persuasive such that it would render the trial fundamentally unfair.14 Also,
counsel was able to extract testimony that false allegations can be made for “secondary
gain.” (Doc. 12-3 at 77.) The Court of Appeals conclusion that “it must be noted that the
jury did not find the Defendant guilty of any charge for which there was not a
corresponding admission, so perhaps the line of questioning of the State’s witness did
provide some benefit to the Defendant,” (doc. 12-1 at 296), was not clearly unreasonable.
Whether counsel’s tactic ultimately succeeded is unknown, but tactical decisions of this
nature are afforded substantial deference under Strickland.15
Furthermore, assuming arguendo that counsel erred in failing to object to the
expert’s testimony regarding the purported infrequency of false allegations, Petitioner
failed to demonstrate resulting prejudice. The superior court observed that Petitioner was
only convicted on counts that contained corroborating evidence, and that the evidence of
guilt was overwhelming. As such, Petitioner failed to show that the outcome of the trial
would have been different but for trial counsel’s alleged errors. See Snowden v. Singletary,
135 F.3d 732, 738-39 (11th Cir. 1998) (improperly admitted evidence is “not crucial,
critical and highly significant when other evidence of guilt is overwhelming”) (internal
quotes and citation omitted).
Accordingly, the superior court’s denial of post-conviction relief on this ground was
neither contrary to nor an unreasonable application of clearly established federal law.
Further, the superior court’s holding was not an unreasonable determination of the facts in
(Doc. 12-3 at 116.)
14 Testimony quantifying the percentage of false accusations is generally disfavored.
See United States v. Magnan, 756 F. App’x 807, 814 (10th Cir. 2018) (“holding that
testifying as to a “mathematical estimate on the rate of false accusations by victims” is a
form of “impermissible credibility bolstering testimony.”); State v. Lindsey, 149 Ariz. 472,
474–75 (1986) (court erred in permitting expert to testify “most people in the field feel that
it’s a very small proportion (of incest victims) that lie” because such testimony “usurps the
jury’s traditional functions and roles and because, when given insight into the behavioral
sciences, the jury needs nothing further from the expert.”).
15 Petitioner’s argument that trial counsel should have objected to the expert’s
testimony is not consistent with well-established law. See Hardamon v. United States, 319
F.3d 943, 949 (2003) (citing United States v. Payne, 741 F.2d 887, 891 (7th Cir. 1984) (“A
competent trial attorney might well eschew objecting … in order to minimize jury attention
to the damaging material”)).
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light of the evidence presented at trial. For these reasons, Ground Four fails on its merits.
VIII. Ground 5: IAC Claim Regarding Trial Counsel Failure to Investigate and
Present Defense Witnesses Martha “Marty” Oyler and Chelsea Stires is
Procedurally Defaulted.
Petitioner claims trial counsel failed to investigate and present defense witnesses
Martha “Marty” Oyler and Chelsea Stires. (Doc. 1 at 16–17.) Petitioner contends that this
claim was raised at the Arizona Court of Appeals. (Id.) Although Petitioner raised this
claim in the superior court in his petition for post-conviction relief (doc. 1-1 at 83–93), he
failed to do so with the Arizona Court of Appeals.16
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust
available state remedies, thereby giving the State the opportunity to pass upon and correct
alleged violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004)
(cleaned up); see 28 U.S.C. § 2254(b)(1). “To provide the State with the necessary
‘opportunity,’ the prisoner must ‘fairly present’ his claim in each appropriate state court.”
Baldwin, 541 U.S. at 29 (citations omitted); see also Peterson v. Lampert, 319 F.3d 1153,
1155–56, 1159 (9th Cir. 2003) (en banc). Fair presentation requires a prisoner to “clearly
state the federal basis and federal nature of the claim, along with relevant facts.” Cooper v.
Neven, 641 F.3d 322, 326 (9th Cir. 2011).
The AEDPA requires a petitioner to “exhaust[ ] the remedies available in the courts
of the State” prior to obtaining federal habeas relief. 28 U.S.C. § 2254(b)(1)(A). “To
exhaust one’s state court remedies in Arizona, a petitioner must first raise the claim in a
direct appeal or collaterally attack his conviction in a petition for post-conviction relief.”
Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). For the purposes of federal review,
the Ninth Circuit has held that a prisoner does not exhaust a claim unless it has been
presented to the Arizona Court of Appeals. See, e.g., Castillo v. McFadden, 399 F.3d 993,
998, 1003 (9th Cir. 2004) (“To exhaust his Arizona remedies, Castillo had to give the
16 Petitioner raised four claims in the Court of Appeals: lack of sexual motivation,
failure to request a lesser included offense, expert testimony, and failure to present an
expert witness. (Doc. 12-1, Ex. L, at 301.)
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Arizona courts a ‘fair opportunity’ to act on his federal due process claim before presenting
it to the federal courts. . . . Castillo did not fairly present his federal due process claim to
the Arizona Court of Appeals. Thus, he failed to exhaust that claim.”). However, claims
are not fairly presented if raised for the first time to a state court on discretionary review.
Casey v. Moore, 386 F.3d 896, 918 (9th Cir. 2004).
Here, Petitioner’s failure to exhaust Ground Five in the Arizona Court of Appeals
bars him from presenting the claim in a federal court. See Copeland, 33 F.3d at 37 (“A
petitioner has not satisfied the exhaustion requirement unless he has fairly presented his
claim to the highest state court”). For this reason, Petitioner’s claim cannot be reviewed on
its merits.
Moreover, Petitioner failed to present an excuse for his procedural default. Federal
courts are prohibited from subsequent review unless the petitioner can show cause and
actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure
to raise claims in state appellate proceeding barred federal habeas review unless petitioner
demonstrated cause and prejudice). Petitioner fails to show cause as to the procedural
default given that Petitioner presented this claim in the trial court. Petitioner’s failure to
show cause prevents meritorious review of Ground 5. See Murray v. Carrier, 477 U.S. 478,
488 (ignorance of the prevailing law or inadvertent omission/mistake in failing to raise
certain claims on appeal does not constitute cause).
Additionally, Petitioner does not argue actual innocence or offer new evidence to
support such a claim. Id. A prisoner may excuse a procedural default by proving actual
innocence. See Bousely v. United States, 523 U.S. 614, 622 (1998) (“Actual innocence
means factual innocence and not mere legal insufficiency.”). Petitioner does not present
any new evidence to support a claim of actual innocence. Thus, Ground Five is
procedurally defaulted and cannot be reviewed on its merits.
IX. Conclusion.
Based on the above analysis, the Court recommends the Petition be denied and
dismissed.
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IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 (doc. 1) be DENIED and DISMISSED WITH
PREJUDICE.
IT IS FURTHER RECOMMENDED that the Motion to Stay (doc. 17) be
DENIED.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave
to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition
is justified by a plain procedural bar and reasonable jurists would not find the ruling
debatable, and because Petitioner has not made a substantial showing of the denial of a
constitutional right.
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of
Appellate Procedure, should not be filed until entry of the district court’s judgment. The
parties shall have 14 days from the date of service of a copy of this Report and
Recommendation within which to file specific written objections with the Court. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days
within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge’s Report and
Recommendation may result in the acceptance of the Report and Recommendation by the
district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the
Magistrate Judge will be considered a waiver of a party’s right to appellate review of the
findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s Report
and Recommendation. See Fed. R. Civ. P. 72.
Dated this 6th day of February, 2026.
Honorable John Z. Boyle
United States Magistrate Judge
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