State v. Ellis

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-CR 25-0379
FILED 06-01-2026

Appeal from the Superior Court in Yavapai County
No. S1300CR202401339
The Honorable Krista M. Carman, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael J. Woodburn
Counsel for Appellee

Law Office of Carissa A. Jakobe PLLC, Mankato, MN
By Carissa A. Jakobe
Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge David B. Gass delivered the decision of the court, in which
Judge Cynthia J. Bailey and Judge D. Andrew Gaona joined.
STATE v. ELLIS
Decision of the Court

G A S S, Judge:

¶1 Ellis appeals his convictions and sentences for 1 count of
kidnapping, 2 counts of sexual assault, and 1 count of aggravated assault.
Ellis argues the superior court abused its discretion by excluding evidence
of the victim’s sexual history. As a result, he argues the superior court
violated his due process and Confrontation Clause rights, denying him a
fair trial. Because the superior court did not abuse its discretion, the court
affirms.

FACTS AND PROCEDURAL HISTORY

¶2 The court views the facts in the light most favorable to
upholding the superior court’s ruling. See Lehn v. Al-Thanayyan, 246 Ariz.
277, 283 ¶ 14 (App. 2019). The court will not reweigh the evidence. State v.
Lee, 189 Ariz. 590, 603 (1997).

I. In November 2024, Ellis was arrested after hiring an exotic dancer
for a one-on-one show.

¶3 In November 2024, Ellis contacted a private exotic dancing
agency to hire a dancer for a one-on-one show in his home. The agency
connected Ellis with the victim, who is an independent contractor for the
agency. When the victim arrived at Ellis’s home, the two discussed the rules
for her performance. During that discussion, Ellis asked the victim if the
agency knows she is “having sex for money.” The victim told Ellis she
would not have sex with him and said, “That’s not what you’re going to get
out of this.” After that discussion, the victim started the show.

¶4 During the show, Ellis asked if he could duct tape the victim’s
hands together. The victim agreed. She assumed he would only secure her
wrists, something the victim allowed previous clients to do. Instead, Ellis
taped around her wrists and hands completely so she could not free herself.
When the victim started feeling uncomfortable, she asked Ellis to un-tape
her. Ellis refused, taped her arms behind her head, bound her ankles and
knees together, and left her balled-up in a fetal position.

¶5 After the victim realized her efforts to reason with Ellis were
futile, she threatened to “report you for rape, for assault.” Ellis dismissed
the victim’s pleas: “I don’t care. Like nobody’s going to believe you
anyway.” Ellis then digitally penetrated the victim and forced her to have
vaginal intercourse and oral sex. Ellis then repeatedly beat the victim,
strangled her, and advised her to “shut up” and “go to sleep.” After the
victim continued pleading with Ellis, he cut some of the duct tape, allowing

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STATE v. ELLIS
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the victim to break free and escape. After leaving Ellis’s residence, the
victim called the police. The police arrested Ellis, and a grand jury indicted
him for 1 count of kidnapping, 3 counts of sexual assault, and 1 count of
aggravated assault.1

II. Before trial, the State moved to preclude evidence of victim’s prior
sexual conduct under A.R.S. § 13-1421.

¶6 The State moved in limine to preclude Ellis from introducing
6 screenshots taken from an online account the victim used to create, post,
and sell subscriptions to “spicy content.” The victim set up the account
under a pseudonym but included photos of herself. The State did not
dispute the screenshots were victim’s content, but argued the rape shield
law, A.R.S. § 13-1421, did not allow their admission.

¶7 The specific evidence consisted of:

• Screenshot 1 showed a video thumbnail of a topless blonde woman
lying down with someone’s hands around her neck with the
description: “I didn’t edit this one down. So here’s an unedited, raw
video for your viewing pleasure.”

• Screenshots 2, 3, 4, and 5 had a blurred or blocked image, and read
as follows:

o “Just a minute and a half of me getting my ass slapped with
paddles [] enjoy”

o “I’m down to meet up if you are [devil emoji]”

o “I want to be fucked like I’m a doll. I know my place.”

o “A little POV never hurt anybody [yum emoji] I think I want
to be strapped down, blindfolded, and played with per YOUR
requests. Let me know! [pink hearts emoji]”

• Screenshot 6 contained a description of victim: “I’m 24, Russian, a
gymnast, fetish friendly, and a spicy content creator! I like to engage

1 At trial, the superior court amended 1 of the counts of sexual assault to

attempted sexual assault at the State’s request.

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STATE v. ELLIS
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with my audience and hear what you’d like to see. I upload
dai . . . .”2

¶8 The superior court held an evidentiary hearing on the motion
in limine. The superior court granted the State’s motion in part, precluding
Ellis from using the screenshots unless the victim’s testimony at trial
opened the door.

¶9 At trial, the victim testified consistently with the above
description of events and said the agency she worked for did not advertise
prostitution. During this testimony, the victim mentioned she tried to
loosen the duct tape off her mouth by trying to get it wet. On cross-
examination, Ellis’s counsel argued this testimony opened the door to
questioning her past sexual experiences. The superior court disagreed.

¶10 The jury convicted Ellis on 1 count of kidnapping, 2 counts of
sexual assault, and 1 count of aggravated assault. The superior court
sentenced Ellis to consecutive, greater-than-presumptive 8-year flat terms
for the sexual assault counts with presentence incarceration credit of 293
days. It also imposed 7 years of supervised probation for the kidnapping
count and 3-years supervised probation for the aggravated assault count,
with those terms to run concurrently.

¶11 The court has jurisdiction over Ellis’s timely appeal under
Article VI, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21.A.1, 13-4031, and -4033.A.

DISCUSSION

¶12 Ellis argues the superior court violated his due process, fair
trial, and Confrontation Clause rights when it precluded the screenshots
and testimony about victim’s sexual history. The court reviews for abuse of
discretion of the superior court’s evidentiary rulings. State v. Inzunza, 234
Ariz. 78, 83 ¶ 18 (App. 2014). The superior court abuses its discretion if “no
reasonable judge would have reached the same result under the
circumstances.” State v. Armstrong, 208 Ariz. 345, 354 ¶ 40 (2004) (citation
omitted). The court need not reach Ellis’s constitutional claims if the
superior court properly excluded the evidence at trial. State v. Davis, 205
Ariz. 174, 179 ¶ 33 (App. 2002).

2 The screenshot itself ends as it appears in the text here.

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STATE v. ELLIS
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I. Though Ellis frames his argument as 2 issues, the threshold issue
for both is whether the superior court abused its discretion in
excluding the screenshots under A.R.S. § 13-1421.

¶13 The legislature enacted A.R.S. § 13-1421 as a protective
measure to limit a defendant’s ability to introduce evidence about a victim’s
past sexual history in sexual offense prosecutions under Title 13, Chapters
14 and 35.1, and under section 13-3212. See State v. Gilfillan, 196 Ariz. 396,
401–02 ¶¶ 15, 20 (App. 2000). Section 13-1421 “implicates the Fifth, Sixth
and Fourteenth Amendments to the United States Constitution and article
2, sections 4 and 24 of the Arizona Constitution to the extent that it operates
to prevent a criminal defendant from presenting relevant evidence,
confronting adverse witnesses and presenting a defense.” Id. at 402 ¶ 20.
But section 13-1421 ensures other legitimate interests in a criminal trial
process are accommodated, and balances competing interests by
“provid[ing] procedural safeguards to admit evidence of the victim’s prior
sexual activity.” Id. at 402–03 ¶¶ 21–22.

¶14 Ellis bore the burden of proving by clear and convincing
evidence the screenshots’ admissibility under subsection 13-1421.B. Clear
and convincing evidence ensures “the existence of the issue [is]
propounded ‘highly probable.’” State v. King, 158 Ariz. 419, 424 (1988)
(quoting In re Neville, 147 Ariz. 106, 111 (1985)); see also State v. Vega, 228
Ariz. 24, 29 ¶ 19 n.4 (App. 2011) (establishing “a high probability that a
proposition is true” is needed to meet the clear and convincing evidence
standard).

¶15 Section 13-1421 allows courts to admit “[e]vidence of specific
instances of the victim’s prior sexual conduct” when the evidence falls into
1 of 5 categories. A.R.S. § 13-1421.A. Ellis argues the superior court erred by
not admitting the evidence under paragraph A.3, which allows the superior
court to admit “[e]vidence that supports a claim that the victim has a motive
in accusing the defendant of the crime.” He also relies on paragraph A.4,
which allows the superior court to admit “[e]vidence offered for the
purpose of impeachment when the prosecutor puts the victim’s prior sexual
conduct in issue.”

¶16 The superior court may admit evidence under paragraph A.3
and A.4 only if it “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.” A.R.S.
§ 13-1421.A; see State v. Herrera, 232 Ariz. 536, 549 ¶ 38 (App. 2013) (quoting
A.R.S. § 13-1421). Evidence is relevant if it tends to prove or disprove a

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STATE v. ELLIS
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material fact. Ariz. R. Evid. 401; Ariz. R. Evid. 402; cf. Ariz. R. Evid. 403
(allowing courts to exclude relevant evidence if the evidence’s “probative
value is substantially outweighed by a danger of . . . unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence”). Though similar to Rule 403,
Arizona Rules of Evidence, subsection A of section 13-1421’s required
assessment differs from Rule 403’s standard.

¶17 Under section 13-1421, the record must show the superior
court weighed “whether the inflammatory or prejudicial nature of the
evidence did not outweigh its probative value” was assessed when
deciding admissibility. State ex rel. Montgomery v. Padilla, 238 Ariz. 560, 564
¶ 14 (App. 2015). Under Rule 403, the superior court may exclude relevant
evidence if its “probative value is substantially outweighed by a danger of
. . . unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” (emphasis
added). So though similar, section 13-1421 and Rule 403’s prejudice are not
the same. The superior court thus may exclude the evidence under section
13-1421 without conducting the more stringent Rule 403 “substantially
outweighed” test.

II. Ellis waived his A.R.S. § 13-1421.A.3 argument—evidence shows
“the victim has a motive in accusing the defendant of the crime”—
because he did not reassert it at trial or in his opening brief on
appeal.

¶18 During the evidentiary hearing, Ellis argued the screenshots
were admissible under A.R.S. § 13–1421.A.3. Ellis argued the superior court
should allow him to introduce the evidence in his case-in-chief. See State v.
Castro, 163 Ariz. 465, 471–72 (App. 1989). Under Castro, a defendant may
introduce evidence of a victim’s sexual history to show the victim’s motive
to fabricate an allegation. Id.

¶19 The superior court rejected his argument at the pre-trial
hearing:

THE COURT: How does the screenshots, though—how do
those come in under number three?

MR. CATES: Well, it probably doesn’t come in under number
three.

THE COURT: Okay. Then we’re in agreement there.

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STATE v. ELLIS
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MR. CATES: Right.

THE COURT: Okay.

¶20 Ellis did not attempt to introduce the screenshots under
paragraph A.3 at trial. Even assuming Ellis’s pre-trial argument is sufficient
for Ellis to preserve the A.3 issue for appeal (see State v. Rendel, 18 Ariz. App.
201, 206 (1972)), Ellis waived the issue by waiting until his reply brief to
raise it (State v. Watson, 198 Ariz. 48, 51 ¶ 4 (App. 2000)).

¶21 Under Rule 31, Arizona Rules of Criminal Procedure, the
opening brief must cite any legal authority and make any substantive
argument. See Ariz. R. Crim. P. 31.10(a)(7)(A) (“appellant’s contentions
with supporting reasons for each contention, and with citations of legal
authorities and appropriate references to the portions of the record on
which the appellant relies.”). And a party who fails “to develop and
support [the party’s] conclusory arguments” waives those claims. Boswell v.
Fintelmann, 242 Ariz. 52, 54 ¶ 7 n.3 (App. 2017). Longstanding precedent
also establishes conclusory arguments, without more, are insufficient. See
Modular Sys., Inc. v. Naisbitt, 114 Ariz. 582, 587 (App. 1977); Merrill v.
Wheeler, 17 Ariz. 348, 350 (1915). As Modular System explained, “issues are
deemed abandoned” when an opening brief “fail[s] to state with any
particularity why or how the trial court erred” and “simply concludes that
error was committed.” 114 Ariz. at 587.

¶22 Ellis thus waived the argument.

III. The superior court did not abuse its discretion when it precluded
the screenshots under A.R.S. § 13-1421.A.4—evidence offered for
the purpose of impeachment when the prosecutor puts the victim’s
prior sexual conduct in issue.

¶23 Ellis contends the superior court abused its discretion under
paragraph A.4 when it ruled the State and the victim did not open the door
to allow Ellis to introduce evidence of the victim’s prior sexual conduct.
When ruling on the State’s motion in limine, the superior court expressly
held open whether Ellis could rely on paragraph A.4 to admit evidence of
the victim’s prior sexual acts, saying it is “really really going to depend on
what was asked” and the victim’s answer.

¶24 At the evidentiary hearing, the superior court outlined
safeguards on how it would proceed at trial. The superior court said it
would allow Ellis to introduce the screenshots under paragraph A.4 at trial
if the State opened the door by putting the victim’s sexual conduct at issue.

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STATE v. ELLIS
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To avoid opening the door, the superior court emphasized counsel must
“get creative and be careful” when questioning the victim. And the superior
court instructed Ellis to raise the issue if he believed, based on the State’s
questions and the victim’s answers, the State opened the door.

¶25 At trial, the victim testified about how she removed the duct
tape from her mouth: “if you open your mouth with duct tape, it eventually
will come off or loosen.” Ellis neither objected nor asked to approach the
bench at the time. Instead, the following happened during Ellis’s cross-
examination of the victim:

Q: Now, you seem to have quite a bit of knowledge about duct
tape, like that if it gets wet, it gets loose. You know how to
loosen it and stuff. Have you had previous experience with
duct tape?

The State: Judge, I’m going to object. We’ve already gone over
this.

The Court: Sustained.

Only after this interaction did Ellis’s counsel ask to approach the bench for
a sidebar.

¶26 In the sidebar, Ellis argued the victim’s testimony about her
“knowledge about duct tape” implied she had experience with being bound
during prior sexual acts and thus opened the door to introduce the
screenshots. First, at no point did Ellis move to introduce the screenshots.
Indeed, he did not even mention them. He instead argued he wanted to
explore why she “knows how duct tape works.” The superior court denied
Ellis’s motion and noted the victim did not say she “knows how duct tape
works.” Rather, the superior court said victim’s testimony about how she
loosened the duct tape was “frankly in the realm of common knowledge.”
Ellis argued the victim answered yes to his question about her experience
with duct tape. Not true. The transcript shows the victim did not answer
Ellis’s question because the State objected and the superior court sustained
the objection. And even if the victim had answered, the question itself was
from Ellis’s counsel. The State was not opening the door.

¶27 In his briefing, Ellis also argues the superior court wrongly
“precluded Ellis’s evidence of consent when counsel questioned [victim] if
she had ever engaged in acts of prostitution.” Not true. Rather, Ellis asked
the victim: “And so it’s your testimony here today that there was no
intention of prostitution whatsoever?” The victim answered “No.” Ellis did

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STATE v. ELLIS
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not re-urge his section 13-1421 arguments to the superior court, thus
waiving the argument.

¶28 At bottom, Ellis asks the court to reweigh the evidence, which
the court will not do. Lee, 189 Ariz. at 603. Based on the court’s review of
the record and viewing the facts in the light most favorable to affirming the
superior court’s ruling, the superior court did not err by finding Ellis failed
to carry his burden under subsection 13-1421.B. The court thus need not
reach Ellis’s constitutional claims. Davis, 205 Ariz. at 179 ¶ 33.

CONCLUSION

¶29 The court affirms.

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

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