STATE v. MOORE

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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. ) ) CHARLES FREDERICK MOORE, ) ) Appellant. ) __________________________________) DIVISION ONE FILED: 10/30/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 11-0152 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yuma County Cause No. S1400CR200100428 The Honorable John N. Nelson, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division and Linley Wilson, Assistant Attorney General Attorneys for Appellee Michael A. Breeze, Yuma County Public Defender By Edward F. McGee, Deputy Public Defender Attorneys for Appellant Phoenix Yuma W I N T H R O P, Chief Judge ¶1 After a second trial, a jury convicted Charles Frederick Moore ( Appellant ) of sexual conduct with a minor and sexual assault for engaging in sexual intercourse with his mildly mentally challenged daughter when she was fifteen years old. Appellant appeals his convictions and sentences, arguing the trial court erred in (1) denying his motion to dismiss the indictment, (2) instructing the jury on the crime of sexual assault, (3) denying his motion for judgment of acquittal on the sexual assault charge, and (4) imposing a sentence for the sexual assault conviction greater than that imposed after his first trial. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY 1 ¶2 In 2001, a grand jury issued an indictment, charging Appellant with four counts each of sexual conduct with a minor and sexual assault arising from several alleged instances of sexual misconduct with his daughter when she was between fifteen and seventeen years of age. See Ariz. Rev. Stat. §§ 13-1405 (West 2012), 2 -1406. all eight successful charged counts petition for in ( A.R.S. ) A jury convicted Appellant of 2002. In post-conviction 2008, following relief, a Appellant obtained a new trial. ¶3 At the second trial in 2011, the jury convicted Appellant of one count of sexual conduct with a minor and one 1 We review the facts in the light most favorable to sustaining the verdict and resolve all reasonable inferences against Appellant. See State v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994). 2 We cite the current Westlaw version of the statutes unless changes material to our analysis have since occurred. 2 count of sexual assault, each a class two felony, for engaging in sexual intercourse with his daughter during the 1997-1998 school year, and acquitted him of the other six counts. The court sentenced Appellant to concurrent, aggravated terms of 6.25 years imprisonment for sexual conduct with a minor and 8.25 years imprisonment for sexual assault. The court also credited Appellant for 3,568 days of presentence incarceration, which resulted in his immediate release from confinement. ¶4 Appellant filed a timely notice of appeal. jurisdiction Section 9, over of Appellant s the Arizona appeal pursuant Constitution and to We have Article A.R.S. §§ 6, 12- 120.21(A)(1), 13-4031, and 13-4033(A). ANALYSIS I. Alleged Grand Jury Perjury ¶5 Appellant argues the trial court committed reversible error when it denied his motion to dismiss the indictment based on alleged perjured testimony to the grand jury. See United States v. Basurto, 497 F.2d 781, 785 (9th Cir. 1974) ( [T]he Due Process Clause defendant has of to the stand Fifth Amendment trial on an is violated indictment when which a the government knows is based partially on perjured testimony, when the perjured testimony is material, and when jeopardy has not attached. ). ¶6 Appellant s argument stems from the following events: 3 In May 2001, Yuma Police Detective Christian Segura testified before the grand jury in an effort to obtain the indictment by which Appellant was charged. A grand juror questioned whether the victim had undergone a physical examination, and Detective Segura responded, trauma. I did not want to see her through that The detective, however, had previously referred the victim to a nurse practitioner for a physical examination in 1999. Later, at Appellant s first trial, the nurse practitioner testified that the detective had referred the victim to her, but her examination of the victim yielded no conclusive results. 3 ¶7 In May 2009, before the second trial, Appellant filed a pro per motion to dismiss, charging inter alia that Detective Segura had lied to the grand jury in May 2001. Appellant attached as exhibits to his motion the grand jury testimony and a cover sheet for the report on the medical examination for sexual assault dated October 1999, which referenced Detective Segura s police report. Appellant argued that the detective had lied about the exam to hide the fact that the Dr[.] s report showed negative for sexual ass[a]ult, or sexual abuse[,] and to secure the indictment. conducted more activity, showed than that a Appellant further argued that the exam, year the after victim s 3 the hymen The detective also testified, but referral of the victim was not addressed. 4 last alleged was the sexual intact. subject of The his prosecutor did not dispute this characterization, but argued that the exam would not have made any difference in the grand jury deliberations because, as the nurse practitioner had explained at Appellant s first trial, [Y]ou can t tell from the condition of the hymen whether someone has had sex before. The prosecutor also told the court he had not known at the time that the grand jury testimony was in error, and he argued Detective Segura may have simply confused the facts of this case with one of several other cases he was investigating. ¶8 The court found Appellant s motion to dismiss was not a motion to remand for a new finding of probable cause, see Ariz. R. Crim. P. ( Rule ) 12.9, but if it were, it would have been untimely. Appellant s In claim further of addressing the prosecutorial substance misconduct of and vindictiveness, the court stated it was unclear why Detective Segura had testified before the grand jury that no exam had been performed, but the court was not going to speculate about the reasons. present Instead, the court found that any error in failing to this evidence to the grand jury was harmless, especially in light of the nurse practitioner s testimony at trial that the results of the exam were inconclusive. ¶9 We review for an abuse of discretion decision whether to dismiss an indictment. the State v. Pecard, 196 Ariz. 371, 376, ¶ 24, 998 P.2d 453, 458 (App. 1999). 5 court s [W]ith one exception, all challenges to a grand jury s findings of probable cause must be made by motion followed by special action before trial; they are not reviewable on appeal. State v. Moody, 208 Ariz. 424, 439-40, ¶ 31, 94 P.3d 1119, 1134-35 (2004) (citation omitted). The one exception is when a defendant has had to stand trial on an indictment which the government knew was based partially on perjured, material testimony. Id. at 440, ¶ 31, 94 P.3d at 1135 (quoting State v. Gortarez, 141 Ariz. 254, 258, whether P.2d review Appellate 686 of the testimony. 1224, such indictment 1228 claim a (1984) is was (citing limited based on to Basurto)). determining perjured, material ¶10 Id. On appeal, the State argues that we may not consider the issue pursuant because to Rule Appellant 12.9, which did not file a provides that a timely motion defendant must challenge a grand jury proceeding no later than twenty-five days after the certified transcript of the grand jury proceeding is filed or twenty-five days after arraignment, whichever is later. See Ariz. R. Crim. P. 12.9(b); see also State v. Merolle, 227 Ariz. 51, (holding 53 54, that ¶¶ Rule 9 15, 12.9 251 is P.3d the 430, only 432 33 procedural (App. 2011) method for challenging grand jury proceedings in Arizona, and the failure to file a timely proceedings). motion waives the right to challenge the Appellant argues, however, that a claim based on 6 material perjury, as identified in Basurto, need only be made before jeopardy attaches, as it was in this case, because it was made before (his second) trial began. ¶11 No case has directly addressed whether a Basurto claim must be made within the time limits of Rule 12.9. 4 resolve the issue, however, because Appellant We need not has failed to demonstrate that the detective, although he testified falsely, did so deliberately and thus committed perjury before the grand jury. As relevant here, a person commits perjury by making [a] false sworn statement in regard to a material issue, believing it to be false. A.R.S. § 13-2702(A)(1). Appellant argues it is self-evident that Detective Segura deliberately lied about the exam because the detective himself had requested the exam, and because of the evasive manner in which he responded to the grand juror s question. evident, however, and The trial court did not find it selfwe decline to conclude that the court abused its discretion in finding it unclear why the detective made the misstatement. See generally State v. Estrada, 209 Ariz. 287, 292, ¶ 22, 100 P.3d 452, 457 (App. 2004) (recognizing that the trial court is in the 4 best position to assess a The State cites State v. West, 173 Ariz. 602, 845 P.2d 1097 (App. 1992), for this proposition. In West, this court stated that such a claim was not an appealable issue, see id. at 607, 845 P.2d at 1102, but in doing so failed to recognize the material perjury exception previously adopted by our supreme court in Gortarez. See 141 Ariz. at 258, 686 P.2d at 1228. 7 witness s credibility and motives). Moreover, the detective explained at the subsequent trial that he normally did not want victims to submit to a physical examination because it was too intrusive. He also testified he was investigating numerous other cases at the time, and by the time he testified before the grand jury in May 2001, he likely did not remember that he had referred the victim for a physical examination more than a year before. On this record, we conclude that Appellant has failed to demonstrate the detective s inaccurate statement constituted perjury before the grand jury; accordingly, the trial court did not abuse its discretion in denying Appellant s motion to dismiss the indictment. II. ¶12 Jury Instruction Appellant argues the trial court committed fundamental error in instructing the jury on the crime of sexual assault by failing to explain the mens rea consent element of the offense. applicable to the without We review jury instructions in their entirety to determine if they accurately and adequately reflect the law. See State v. Hoskins, 199 Ariz. 127, 145, ¶ 75, 14 P.3d 997, 1015 (2000), opinion supplemented by 204 Ariz. 572, 65 P.3d 953 (2003). can reasonably find that We will not reverse unless we the instructions, whole, would mislead the jurors. when taken as State v. Sucharew, 205 Ariz. 16, 26, ¶ 33, 66 P.3d 59, 69 (App. 2003) (citation omitted). 8 a ¶13 Because Appellant concededly failed to object to the instruction at trial, he bears the burden of establishing that the court erred, the error was fundamental, and the error caused him prejudice. 5 See State v. Henderson, ¶¶ 21-26, 115 P.3d 601, 608 (2005). 210 Ariz. 561, 568, Error is fundamental when it goes to the foundation of a defendant s case, takes from him a right essential to his defense, and is error of such magnitude that he could not have received a fair trial. Id. at 567, ¶ 19, 115 prove P.3d at 607 (citations omitted). To prejudice, Appellant must show that a reasonable jury could have reached a different result absent the error. See id. at 569, ¶ 27, 115 P.3d at 609. ¶14 In a prosecution for sexual abuse, the State must prove the defendant intentionally or knowingly engaged in the defined sexual contact, and the defendant knew such contact was without the victim s consent. State v. Witwer, 175 Ariz. 305, 308, 856 P.2d 1183, 1186 (App. 1993). instructed the jury without objection In this case, the court that it could convict Appellant of sexual assault on proof that he: 1. intentionally or knowingly engaged in intercourse or oral sexual contact with person; and 5 At the suggestion of the court, both defense counsel waived the right to require to record the court s reading of the final The instructions are nonetheless preserved appearing in the record on appeal. 9 sexual another the prosecutor and the court reporter jury instructions. in the instruments 2. engaged in the act without the consent of the other person. ¶15 Appellant asserts that reversal is required because the court s instruction, like the defective instruction in State v. Kemper, 229 Ariz. 105, 271 P.3d 484 (App. 2011), omitted the mens rea from the without consent portion of the instruction. See id. at 106-07, ¶¶ 5-7, 271 P.3d at 485-86. Nevertheless, this case is distinguishable from Kemper. ¶16 In Kemper, we noted that no one requested a definition of without consent under A.R.S. § 13-1401(5); consequently, we found it unnecessary to consider whether such an instruction would have instruction. cured the deficiency in the sexual assault Id. at 107 n.2, ¶ 5, 271 P.3d at 486 n.2. In this case, however, the court advised the jury that the term without consent means the following: The victim is incapable of consent by reason of a mental defect, or any other similar impairment of cognition and such condition is known or should have reasonably been known to the defendant.[6] (Emphasis added.) Thus, the jury was instructed that without consent meant Appellant knew or should have known the victim s 6 At the time of the sexual assault, A.R.S. § 13-1401(5)(b) provided that a victim could be considered incapable of consent by reason of mental disorder . . . or any other similar impairment of cognition, but the statute did not define mental disorder. 10 mental deficiencies rendered her incapable of consent. 7 ¶17 Coupled with the additional without consent instruction provided the jury in this case, the sexual assault instruction was not erroneous. Appellant fails to persuade us that the sexual assault instruction, when read with the without consent instruction, could have misled the jury on the mens rea for a sexual assault offense committed against a victim who was incapable of consent by virtue of a mental defect. See A.R.S. § 13-1401(5)(b); cf. Kemper, 229 Ariz. at 107 n.2, ¶ 5, 271 P.3d at 486 n.2. Accordingly, Appellant has not demonstrated that the trial court erred in instructing the jury, much less that he was deprived of a fair trial by the claimed error. III. Denial of Judgment of Acquittal ¶18 At following the the close defense s of the State s presentation of case-in-chief evidence, and Appellant 7 The court also provided the jury with the following definitions for the terms mental defect and knowingly : Mental defect means the victim is unable to comprehend the distinctively sexual nature of the conduct or is incapable of understanding or exercising the right to refuse to engage in the conduct with another. . . . . Knowingly means that a defendant acted with awareness of [or belief in] the existence of conduct or circumstances constituting an offense. It does not mean that a defendant must have known the conduct is forbidden by law. 11 moved for judgment of acquittal 8 on the sexual assault charges, arguing the State had presented insufficient evidence to establish the victim was incapable of consent because of her mental deficiencies. Relying on our supreme court s opinion in State v. Johnson, 155 Ariz. 23, 745 P.2d 81 (1987), Appellant argued that the evidence of the victim s mental disorder in this case was remarkably similar to that found insufficient by the court in Johnson understand[] the consequences. argued that to demonstrate act of the necessary intercourse and Id. at 26, 745 P.2d at 84. the victim had demonstrated inability its to possible Appellant further she was capable of exercising her right to refuse to engage in sex with her father by saying stop. The trial court denied Appellant s motion for judgment of acquittal, finding that the victim s conduct on the witness stand, as well as the expert s testimony regarding the victim s limitations with respect to judgment and common sense, raised a fact issue with respect to her capability of consenting to sex. ¶19 in Appellant argues on appeal that the trial court erred denying his Rule 20 motion because insufficient evidence established the victim was incapable of consent due to her mild mental retardation and cerebral palsy. evidence 8 at trial was similar See Ariz. R. Crim. P. 20. 12 to Appellant maintains the that held insufficient in Johnson because it demonstrated that the victim took a modicum of mainstream including classes health and classes did where moderately she had well sex in them, education, and obtained a driver s license and had maintained employment, off and on. ¶20 We review de novo the denial of a motion for judgment of acquittal and the sufficiency of the evidence to support a conviction. See State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). facts in the light Also, as we have noted, we view the most favorable to upholding the jury s verdict and resolve all conflicts in the evidence against the defendant. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983). Further, we do not distinguish between direct and circumstantial evidence. State v. Stuard, 176 Ariz. 589, 603, 863 P.2d 881, 895 (1993). ¶21 Viewed in the light most favorable to upholding Appellant s conviction, the evidence in this case was sufficient to support consent to the conclusion sexual that intercourse mental deficiencies. the with victim was Appellant incapable because of of her The evidence demonstrated that during the victim s freshman year of high school, when the sexual assault occurred, she was enrolled in four special education classes and only two mainstream courses - physical education and culinary arts - during the first semester. 13 In the second semester, she was enrolled in three special education classes, health, and culinary arts, and she assisted as a teacher s aide for another special education class. By the time she was a senior in high school, the victim was reading at only the level of a second or third grader, and to the extent she was enrolled in mainstream classes, her work was much easier than that for the regular students, and she was failing the regular ed[ucation] classes. Also, although the victim took a driver s education class in high school and ultimately obtained her driver s license, she engaged in very limited driving. In fact, the victim s mother testified that the victim did not begin driving until she was twenty-eight years old. ¶22 The victim s mother also testified she had never explained sex to the victim before or during high school, and the victim testified she never had any sex education in health class. The victim further testified that she did not know anything about sex, or what sex was, at the time of the sexual assault. because An expert testified that the records indicated that, of her mental handicap, the victim had impaired judgment, and accordingly, she might not have understood the consequences of sexual activity. testified that included sex extensiveness the health education, of the class no education, 14 Although a high school teacher the victim evidence much less took would have demonstrated the that the victim understood the introduced. subject or was present when the subject was Furthermore, in denying the motion for judgment of acquittal, the court also relied on the victim s conduct on the witness stand. sufficient to Under survive these a Rule circumstances, 20 motion the and evidence to was support the conviction. IV. ¶23 Increased Sentence After Re-Trial Appellant also argues that the trial court violated Rule 26.14, Ariz. R. Crim. P., and his due process rights as recognized under North Carolina v. Pearce, 395 U.S. 711 (1969), when the court imposed a sentence for the sexual assault conviction greater than that imposed after his first trial. We disagree. ¶24 At sentencing following the first trial, the court found that the aggravating factors substantially outweigh the mitigating factors, and sentenced Appellant to what the court designated an aggravated sentence of 6.25 years imprisonment for the sexual assault conviction. Before sentencing after the second trial in front of a different judge, Appellant argued that Rule 26.14 and Pearce precluded the court from imposing a sentence greater than 6.25 years. The court noted, however, that under the applicable statute in effect at the time the conduct occurred, A.R.S. § 13-1406 (Supp. 1997), [t]he sentencing range [wa]s between 5.25 years minimum, presumptive 15 7, and maximum 14. The court concluded that, although the first sentencing judge had indicated he intended to impose an aggravated sentence, Appellant s original he had failed sentence for to do so, thus assault sexual and was incorrectly imposed, rendering it null and void. The court subsequently found that the aggravating factors again outweighed the mitigating factors, and sentenced Appellant to an aggravated term of 8.25 years imprisonment for sexual assault. ¶25 As an initial matter, the case of State v. Dawson, 164 Ariz. 278, 792 P.2d 741 (1990), on which Appellant relies, has no applicability to the sentencing in this case. Dawson held only that [i]n the absence of a timely appeal or cross-appeal by the state seeking to correct an illegally lenient sentence, an appellate court consider that issue. has no subject matter jurisdiction Id. at 286, 792 P.2d at 749. to The holding in Dawson does not prevent a different judge from exercising his or her discretion in imposing a greater sentence after re-trial, or this court from considering whether the sentence after retrial comports with the dictates of Rule 26.14 and due process. See id. ¶26 Further, on this record, the court did not err in imposing the 8.25-year term of imprisonment for sexual assault. Due process of law [] requires that vindictiveness against a defendant for having successfully attacked his first conviction 16 must play trial. no part in the sentence he Pearce, 395 U.S. at 725. receives after a new Additionally, Rule 26.14 provides that where a judgment or sentence has been set aside, the court may not impose a more severe sentence than originally imposed. Rule 26.14 contains a caveat, however, indicating that the court may impose a more severe sentence if: (1) it concludes, on the basis of evidence concerning conduct by the defendant occurring after the original sentencing proceeding, that the prior sentence is inappropriate, or (2) the original sentence was unlawful and on remand it is corrected and a lawful sentence imposed, or (3) other circumstances exist under which there is no reasonable likelihood that the increase in the sentence is the product of actual vindictiveness by the sentencing judge. Moreover, the United States Supreme Court has clarified since Pearce that due process does not in any sense forbid enhanced sentences or charges, but only enhancement motivated by actual vindictiveness toward guaranteed rights. the defendant for having exercised Wasman v. United States, 468 U.S. 559, 568 (1984); see also Alabama v. Smith, 490 U.S. 794, 799 (1989) (explaining that when is there a a presumption reasonable of vindictiveness likelihood that the sentence is the product of actual vindictiveness). [i]f the trial court details the arises only increase in Accordingly, non-vindictive rationale underlying the increased sentence and that rationale supports the increase, no due process violation has occurred. State v. Thomas, 142 Ariz. 201, 203, 688 P.2d 1093, 1095 (App. 1984). 17 ¶27 In sentencing Appellant to a greater sentence than imposed initially, the court in this case articulated a nonvindictive reason for doing so - that the original sentence had been incorrectly imposed. The court also noted that it was not influenced by the fact that there was an earlier conviction as to the other counts in this case, and specifically found that an aggravated sentence was appropriate. The increased sentence thus did not violate Appellant s due process rights. Moreover, because on this record there is no See id. reasonable likelihood that the increase in the sentence was the product of actual vindictiveness on the part of the sentencing judge, the increased sentence fell within the exception outlined in Rule 26.14(3). Consequently, the trial court did not err in imposing a sentence for the sexual assault conviction greater than that imposed after Appellant s first trial. CONCLUSION ¶28 For the foregoing reasons, we affirm Appellant s convictions and sentences. ______________/S/____________________ LAWRENCE F. WINTHROP, Chief Judge CONCURRING: _____________/S/______________ PHILIP HALL, Presiding Judge ___________/S/______________ PETER B. SWANN, Judge 18

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