State v. Ramirez-Ramos

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) Appellee, v. FELIX UFRANO RAMIREZ-RAMOS Appellant. DIVISION ONE FILED: 12/03/09 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 08-0036 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yavapai County Cause No. CR-820070436 The Honorable Warren R. Darrow, Judge Pro Tempore AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Julie A. Done, Assistant Attorney General Attorneys for Appellee Law Office of Cynthia A. Leyh By Cynthia A. Leyh Attorney for Appellant Phoenix Tolleson G E M M I L L, Judge ¶1 Felix Ufrano Ramirez-Ramos ( Defendant ) appeals his conviction and sentence for sexual misconduct with a minor, a class two felony and dangerous crime against children. He raises two issues regarding the trial court s consideration of aggravating factors during sentencing. Defendant also raises two instructions. issues regarding the final jury After consideration of these arguments, we affirm. BACKGROUND ¶2 The facts, viewed in the light most favorable to sustaining the conviction, State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989), and drawing all reasonable inferences in support thereof, State v. Fulminante, 193 Ariz. 485, 494, ¶ 27, 975 P.2d 75, 84 (1999), are as follows. On November 7, 2000, Defendant, an adult aide on eleven-year-old M.D. s school bus, put his hand under M.D. s underwear while they were seated together on the bus and rubbed her clitoris for a couple minutes just before M.D. was dropped off after school. Based on this incident, Defendant was indicted, tried, and convicted for molestation of a child and sexual conduct with a minor under twelve years of age.1 ¶3 the The parties stipulated that the offenses arose out of same act; thus, the trial court sentenced defendant to concurrent terms of seventeen years imprisonment based on its 1 The indictment referred to M.D. as being under the age of fifteen. The State, however, amended the indictment before trial to allege M.D. s age as under twelve. 2 evaluation of mitigating and aggravating factors.2 2008, Defendant timely appealed. vacated the child molestation On January 9, The trial court subsequently conviction because, under the facts of this case, it is a lesser-included offense of sexual conduct with a minor. We have jurisdiction over this appeal pursuant to Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2001), and 13-4033(A)(1) (2001). DISCUSSION ¶4 Defendant first contends the trial court abused its discretion in considering as an aggravating factor M.D. s young age at the time of the offense. Specifically, he claims the victim s age is an element of sexual conduct with a minor under the age of fifteen.3 ¶5 Because Defendant did not raise this issue with the trial court, we review for fundamental error.4 See State v. 2 As noted by the trial court, this is the presumptive sentence for molestation of a child and a slightly mitigated sentence for sexual conduct with a minor under twelve years of age. A.R.S. § 13-604.01(B), (D), (F) (2000). 3 Defendant also raises this argument with respect to his conviction for molestation of a child. However, because Defendant s conviction and resulting sentence for the molestation offense was vacated, we need not address this argument regarding that conviction. 4 In his reply brief, Defendant maintains the proper standard of review is abuse of discretion because there are no Arizona cases that review sentencing error for fundamental error when no 3 Velazquez, 216 Ariz. 300, 309, ¶ 37, 166 P.3d 91, 100 (2007); see also State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). To obtain relief under fundamental error review, Defendant has the burden to show that error occurred, the error was fundamental and that he was prejudiced thereby. See Henderson, 210 Ariz. at 567-68, ¶¶ 20-22, 115 P.3d at 60708. ¶6 we Without deciding whether error occurred on this basis, conclude prejudice. sentence Defendant has failed establish the requisite First, Defendant received a mitigated seventeen-year although alternatively, a he faced presumptive a for resentencing possible sentence A.R.S. § 13-604.01(B) (2000).5 remand to sentence or, twenty of life years. See Further, Defendant requests we although he is not sure and it is unclear that the Court would have imposed the same sentence minus the aggravating factor of [M.D. s] young speculation is insufficient to prove prejudice. age. Such See State v. Trostle, 191 Ariz. 4, 13-14, 951 P.2d 869, 878-79 (1997) (noting objection was raised below. Defendant is incorrect. See State v. Provenzino, 221 Ariz. 364, __, ¶ 18, 212 P.3d 56, 61 (App. 2009); see also State v. Osborn, 220 Ariz. 174, 176, ¶ 4, 204 P.3d 432, 434 (App. 2009). 5 Effective January 1, 2009, the sentencing provisions for Dangerous Crimes Against Children can be found at A.R.S. § 13705. See 2008 Ariz. Sess. Laws, ch. 301, § 17 (2nd Reg. Sess.). We thus cite to the version of the statute in effect at the time of the offense. 4 we will not presume prejudice where none appears affirmatively in the record); see also State v. Munninger, 213 Ariz. 393, 397, ¶ 14, 142 P.3d 701, 705 (App. 2006) (holding appellant s speculation that trial court would impose specific sentence when improper aggravating prejudice). factor not considered does not show Absent prejudice, we find no reversible fundamental error in the trial court s purported consideration of M.D. s age in determining Defendant s sentence. Accordingly, we will not remand on this basis. ¶7 Similarly unavailing is Defendant s next argument that the court abused it discretion in determining M.D. s pain that resulted from the offense was an aggravating factor. We again review for fundamental error because Defendant did not object to the court s consideration of this aggravating factor. Supra ¶ 5. ¶8 At sentencing, M.D. addressed the court describing how the incident on the bus had negatively affected her. Based on M.D. s statements, the court found harm to M.D. was shown by a preponderance of evidence and determined this impact on M.D. was an aggravating resentencing factor. absent Defendant consideration argues of he this is entitled aggravating to factor because M.D. s statements at sentencing were not supported by trial evidence testimony. and were, Defendant in offers fact, no 5 contrary authority to to her support trial this argument, thus we need not address it. Ariz. 290, 298, 896 P.2d 830, See State v. Bolton, 182 838 (1995) (failure to sufficiently argue a claim on appeal constitutes abandonment of that claim); State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989) (noting opening briefs must present significant arguments, supported by authority, setting forth an appellant s position authority claim); on the issues usually Ariz. raised; R. Crim. to abandonment constitutes failure and P. cite to waiver 31.13(c)(1)(vi). of legal that Moreover, Defendant s speculative claim that he was prejudiced because it is uncertain and unclear whether the [c]ourt would have imposed the same sentence absent this aggravating factor . . . does not satisfy his burden under fundamental error review. ¶9 Finally, Defendant argues that, because the charged offenses were based on one act, the trial court committed fundamental error when it gave a separate counts instruction and when it failed to give a lesser-included instruction regarding the molestation charge. Based on these purported errors, he requests we vacate his conviction for sexual conduct with a minor. We do not address these arguments for two reasons. ¶10 First, when the parties and the trial court discussed the final instructions, defense counsel stated she wanted the separate counts instruction to be presented to the jury. Further, when addressing whether a lesser-included instruction 6 should be given, defense counsel stated: [A]lthough we are in agreement that the child molestation is a lesser included under these facts of the sexual conduct with a minor under 15, we also agree that the child molestation - there could be a conviction on that that wouldn t inherently be a lesser included offense of the sexual conduct with a minor. So I think the way we ve discussed resolving that problem is to say [sic] to have separate verdict forms. Let the jury determine which they want to convict on with the agreement that if my client was convicted on both counts it would be prohibited for The Court to impose consecutive sentencing. We conclude Defendant invited any possible error regarding the separate counts instruction and the failure to include a lesserincluded instruction. State v. Logan, 200 Ariz. 564, 565-66, ¶ 9, 30 P.3d 631, 632-33 (2001) ( If an error is invited, we do not consider whether the alleged error is fundamental, for doing so would doctrine. run counter to the purposes of the invited error Instead, as we repeatedly have held, we will not find reversible error when the party complaining of it invited the error. ); State v. Islas, 132 Ariz. 590, 592, 647 P.2d 1188, 1190 (App. 1982) ( Generally, a party who participates in or contributes to an error cannot complain of it. ); State v. Mead, 120 Ariz. 108, 111, 584 P.2d 572, 575 (App. 1978) ( A party may not invite error at the trial and then assign it as error on appeal. United States v. White, 377 F.2d 908 (4th Cir. 1967); 7 State v. Vidalez, 89 Ariz. 215, 360 P.2d 224 (1961) nor will he be permitted to take advantage of an error which was a natural consequence of his own actions. State v. Crocker, 275 S.W.2d 293 (Mo. 1955). ). ¶11 Second, even if we were to agree that the court committed reversible fundamental error on either of these bases, the remedy would be to vacate Defendant s conviction for molestation of a child, something the trial court has already done. See State v. Jones, 185 Ariz. 403, 407, 916 P.2d 1119, 1123 (App. 1995) (noting that where a defendant has been convicted and sentenced based on a single act, the remedy is to remove the lesser sentence ) (quoting State v. Ballez, 102 Ariz. 174, 175, 427 P.2d 125, 126 (1967)); see also State v. Ortega, 220 Ariz. 320, 328, ¶¶ 24-25, 206 P.3d 769, 777 (App. 2008) (holding molestation of a child under fifteen years of age is a lesser included offense of sexual conduct with a minor); In re Jerry C., 214 Ariz. 270, 274, ¶ 13, 151 P.3d 553, 557 (App. 2007) (same). These arguments are therefore moot. Henderson, 210 Ariz. at 565, ¶ 10, n.2, 115 P.3d at 605 (noting appellate courts generally do not examine moot issues). 8 CONCLUSION ¶12 For these reasons, Defendant s conviction and sentence are affirmed. _____/s/__________________________ JOHN C. GEMMILL, Judge CONCURRING: ___/s/______________________________ PETER B. SWANN, Presiding Judge ___/s/______________________________ MARGARET H. DOWNIE, Judge 9

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