State v. Wynn

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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. ) ) WILLIS EDWARD WYNN, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 10/28/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL No. 1 CA-CR 09-0514 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-144570-001 DT The Honorable Janet E. Barton, Judge AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James Haas, Maricopa County Public Defender By Eleanor S. Terpstra, Deputy Public Defender Attorneys for Appellant Phoenix Willis Edward Wynn Appellant Florence B R O W N, Judge ¶1 Willis Edward Wynn appeals his convictions and sentences for child molestation and sexual conduct with a minor. Counsel for Wynn filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that after searching the record on appeal, she was unable to find any arguable grounds for reversal. for review. Through counsel, Wynn has raised several issues In addition, he has filed a supplemental brief in propria persona. ¶2 Our obligation reversible error. to to review the entire record for State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). favorable is sustaining We view the facts in the light most the conviction reasonable inferences against Wynn. and resolve all State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). Finding no reversible error, we affirm. ¶3 In July 2008, Wynn was indicted on two counts of child molestation, class 2 felonies and dangerous crimes against children in violation of Arizona Revised Statutes ( A.R.S. ) section 13-1410 (2010), and seven counts of sexual conduct with a minor, class 2 felonies, non-dangerous 2 crimes against children, all in violation of A.R.S. § 13-1405 (2010). 1 The following evidence was presented at trial. ¶4 The victim testified that Wynn, her biological father, molested her and engaged in sexual conduct with her on several occasions over several years. audio recordings of Wynn s The State presented video and police interrogation. In those recordings, Wynn initially denied any contact with the victim, stating that the only thing that ever happened was when he helped the victim take a shower when she was ten or eleven years old and had a cast on her hand. Eventually, he told the police that he helped his daughter groom her pubic area and his penis touched her vagina three or four times and that it was not an accident. Later in the interview, he told detectives that he was curious as to what just shaved skin would feel like so, using his hand, he rubbed his penis on his daughter s vagina and clitoris. ¶5 Wynn testified on his own behalf. He stated that he did not think it was odd to groom his daughter s pubic hair; rather, he thought it similar to changing her diapers. adamantly denied any sexual conduct between them, He claiming instead that the interrogation recordings were fabricated. 1 Absent material revisions after the date offense, we cite the statute s current version. 3 of an alleged The jury found Wynn guilty of eight counts. 2 ¶6 He was sentenced to a combination of consecutive and concurrent terms, totaling sixty-two years. 3 He filed a timely notice of appeal. DISCUSSION ¶7 In sufficiency his of supplemental the evidence, brief, Wynn asserting that challenges the trial the court erred by denying his motion for acquittal pursuant to Arizona Rule of Criminal Procedure 20. We will reverse a conviction for insufficiency of evidence only if there is a complete absence of probative facts to support the conviction. State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976). Evidence sufficient to support a conviction may be either circumstantial or direct. 873, 875 State v. Pena, 209 Ariz. 503, 505, ¶ 7, 104 P.3d (App. 2005). The trier of fact must resolve conflicting testimony and weigh the credibility of witnesses in making such determinations. State v. Lee, 217 Ariz. 514, 516, ¶ 10, 176 P.3d 712, 714 (App. 2008). ¶8 the To convict Wynn of Count 1, molestation of a child, State was required to prove that Wynn intentionally or 2 At the conclusion of the State s case, Wynn successfully moved for a Rule 20 motion of acquittal as to Count 2 only. 3 Wynn was sentenced as follows: Count 1, 17 years with 348 days of presentence incarceration credit; Count 3, 20 years, to be served consecutively to Count 1; Count 4, 20 years, to be served consecutively to Count 3; Counts 5-9, 5 years each, to be served concurrently with each other and consecutively to Count 4. 4 knowingly engaged in direct or indirect touching of the victim s genitals by any part of his body, and that the victim was a child under the age of fifteen. A.R.S. § 13-1410(A). The victim testified that when she was approximately ten years old, Wynn placed his hands and on her vagina after he put her to bed. ¶9 To convict Wynn on Counts 3 and 4, sexual conduct with a minor, the State was required to prove that Wynn intentionally or knowingly engaged in sexual intercourse or contact with any person under the age of fifteen. 1405(B). oral sexual A.R.S. § 13- The victim testified that when she was approximately fourteen years old, she exited from the shower to find Wynn in the bathroom. Wynn instructed her to position herself so that he was able to place his mouth on her vagina and his penis in her mouth, and she did so. ¶10 To convict Wynn of sexual conduct with a minor by a parent or guardian, the State was required to prove that Wynn intentionally or knowingly engaged in sexual intercourse or oral sexual contact with any person under the age of fifteen, and that Wynn was the minor s parent or guardian. 1405(B). A.R.S. § 13- It is undisputed that Wynn is the victim s father. As to Counts 5 through 7, the victim testified that Wynn engaged in oral contact with her vagina and her anus. She further testified that Wynn placed a condom on his penis and tried to put it inside her. He was not able to penetrate her, but she 5 confirmed that his penis did touch her vagina. Regarding Counts 8 and 9, she testified that Wynn had oral sexual conduct with her and inserted an unknown object into her vagina. Further, as reflected in the audio tape of his conversation with the police, Wynn admitted his penis touched his daughter s vagina three or four times and he also admitted the contact was not accidental. Thus, we find sufficient evidence to support the jury s verdicts. ¶11 Through issues. counsel, Wynn raises several additional He asserts first that his right to a speedy trial was violated because no one asked for his permission [n]or did he give permission for his trial date to be moved from February 2, 2009, to March Procedure 19, 8.5(b), a 2009. Under judge may Arizona grant a Rule of Criminal continuance upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice. If a defendant fails to object to the delay and assert constitutional claims, his claims are waived and we will not reverse absent fundamental error. State v. Dickens, 187 Ariz. 1, 10, 926 P.2d 468, 477 (1996). ¶12 Here, requested the motion record continuance another trial. the the for reflects due to a that Wynn s scheduling counsel conflict with Notably, Wynn was present during the hearing on continuance and 6 voiced no objection to his counsel s request. The trial court acted within its discretion in granting the continuance. ¶13 Wynn also grooming were contends improperly that other admitted. bad In acts the regarding interrogation recordings, Wynn discussed the fact that he regularly grooms his daughter s pubic area, his penis has touched her vagina probably three or four times, he was curious as to what just shaved accident. behavior skin felt like, and the contact was not an At trial, Wynn testified that he engaged in such and did not consider it odd. Arizona Rule of Evidence 404(b) states evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to statements show did action not in refer conformity to other therewith. crimes, wrongs, Wynn s or acts; instead, his justification for repeatedly touching the victim s pubic area was evidence of the crimes for which he was charged. His argument is without merit. ¶14 Wynn also asserts that the interrogation recordings admitted as evidence were incomplete because they include denials he made with respect to various charges. did not Again, Wynn made no objection to the admission of the recordings and was permitted to challenge the veracity of the evidence during his testimony. of the Moreover, the State had disclosed the existence recordings and it introduced 7 testimony showing the recordings were intact and unaltered. find error on this ground. 908 P.2d 1062, admission of We therefore decline to State v. Spears, 184 Ariz. 277, 287, 1072 (1996) evidence at (finding trial a failure waives the to object challenge to absent fundamental error, which will not be found if defendant offers no evidence to support his contentions and the state introduces testimony affirming validity of evidence). ¶15 the Wynn further contends that the indictment identified victim by the wrong last name. The indictment, while technically incorrect, was sufficient to put [Wynn] on notice as to the time, place, and nature of the offense[s] charged. State v. Sowards, 147 Ariz. 185, 191, 709 P.2d 542, 548 (App. 1984). to His failure to file a Rule 16 motion renders a challenge this defect waived. Id.; Ariz. R. Crim. P. 13.5(e). Additionally, the indictment was deemed amended to conform to the evidence presented at trial. ¶16 Ariz. R. Crim. P. 13.5(b). Finally, Wynn asserts that the court did not timely rule on his motion for a replacement lawyer. To constitute a colorable claim for new counsel, a defendant must allege facts sufficient to demonstrate irreconcilable differences with currently appointed counsel that pose a clear prospect of an unfair trial. State v. Cromwell, 211 Ariz. 181, 187, ¶ 30, 119 P.3d 448, 454 (2005). The superior court has no obligation to act on a motion to change counsel until the defendant proffers 8 specific facts supporting the motion. State v. Paris-Sheldon, 214 Ariz. 500, 504, ¶ 8, 154 P.3d 1046, 1050 (App. 2007). Wynn failed to allege any facts demonstrating Here, irreconcilable differences and therefore we find no error. ¶17 We have read and considered counsel s brief and Wynn s supplemental brief, and have reviewed the entire record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We All find none. of the proceedings were conducted accordance with the Arizona Rules of Criminal Procedure. in The record shows that Wynn was present and represented by counsel at all pertinent stages of the proceedings, he was afforded the opportunity to speak before sentencing, and the sentence imposed was within statutory limits. Accordingly, convictions and sentences. 9 we affirm Wynn s CONCLUSION ¶18 Upon the filing of this decision, counsel shall inform Wynn of the status of the appeal and his options. Defense counsel has no further obligations, unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Wynn has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. /s/ _________________________________ MICHAEL J. BROWN, Presiding Judge CONCURRING: /s/ ______________________________ JON W. THOMPSON, Judge /s/ ______________________________ SHELDON H. WEISBERG, Judge 10

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