STATE v. MADISON

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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. ) ) DYWAYNE EARL MADISON, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 08/21/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-CR 11-0157 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-006355-001DT The Honorable Samuel A. Thumma, Judge AFFIRMED IN PART, VACATED IN PART Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division Jeffrey L. Sparks, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Tennie B. Martin, Deputy Public Defender Attorneys for Appellant Phoenix D O W N I E, Judge ¶1 sentences Dywayne for Earl three Madison counts of appeals his kidnapping, convictions two counts and of aggravated assault, one count of misconduct involving weapons, one count of receiving the fourteen counts of pandering. earnings of a prostitute, and For the reasons stated, we vacate the kidnapping conviction based on Count 1 of the indictment but affirm in all other respects. DISCUSSION I. Sufficiency of the Evidence ¶2 Madison contends the evidence was insufficient to survive his motion for a judgment of acquittal pursuant to Rule 20, Arizona Rules of Criminal Procedure ( Rule ), or to support convictions for offenses involving victim A.H. because the State did not present evidence regarding the specific dates alleged in the indictment. ¶3 We review de novo the denial of a motion for judgment of acquittal and the sufficiency of the evidence to support a conviction. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011) (citation omitted). We view the facts in the light 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). We do not distinguish between direct and circumstantial evidence. State v. Stuard, 176 Ariz. 589, 603, 863 P.2d 881, 895 (1993). To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypothesis 2 whatever is there sufficient evidence to support the conclusion reached by the jury. State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). ¶4 The dates the crimes were committed is not an element of any of the charged offenses. §§ 13-1203 (assault), (kidnapping), -3209 See Ariz. Rev. Stat. ( A.R.S. ) -1204 (aggravated (pandering), -3204 assault), (receiving -1304 earnings prostitute), -3102 (misconduct involving weapons). of Therefore, absent an alibi defense not present here, the State need not prove the exact date of the crimes. 391, 392, 510 P.2d 37, 38 (1973). establishes an offense was State v. Verdugo, 109 Ariz. Evidence is sufficient if it committed charged in the indictment. on or about the date State v. Cummings, 148 Ariz. 588, 591-92, 716 P.2d 45, 48-49 (App. 1985). ¶5 The indictment alleged that on or between August 7th, 2009, and November 7th, 2009, Madison committed 13 counts of pandering -- that is, he knowingly compelled, encouraged A.H. to lead a life of prostitution. § 13-3209(A)(4) Madison with prostitute, 2009. one on or count of between The indictment receiving August 1, the 2009, See A.R.S. also charged earnings and or of a November 7, See A.R.S. § 13-3204 (receiving earnings of prostitute). ¶6 to (pandering). induced A.H. testified that Madison encouraged and forced her engage in prostitution, beginning 3 in late July 2009 and ending when she fled on November 7, 2009. During that time, A.H. testified, Madison drove her to the areas where she worked as a prostitute, imposed rules for her to follow, punished her for violating the rules, and collected all of her earnings. A.H. recalled specific incidents that could be correlated to dates in the indictment alleging pandering, and police officers testified that they observed A.H., and she admitted, engaging in prostitution on other dates alleged. This evidence was sufficient for the jury to conclude that Madison committed each of the 13 pandering offenses involving A.H. on the dates alleged in Counts 6-18 and that he received money from prostitution during those times, as alleged in Count 5. ¶7 was A.H. s testimony, considered with the other evidence, also sufficient to prove that assaulted her on the dates alleged. Madison kidnapped and A.H. testified that Madison kept her from leaving her hotel room and then forced her into his truck at gunpoint the day she was released from her first arrest, which occurred on August 26, 2009, bringing the conduct within the timeframe alleged in Counts 1-3. A.H. also testified that Madison held her at gunpoint and threatened her with a gun at a park about a month before her October 24, 2009 arrest, bringing the conduct within the range of dates alleged in Counts 21-22. Finally, police officers testified that they found a firearm in the truck that Madison, 4 a convicted felon, was driving when he was arrested on April 21, 2010, supporting the conviction for misconduct involving weapons, as alleged in Count 4. II. Double Jeopardy ¶8 Madison argues his convictions and sentences for the kidnapping against offenses double in Counts jeopardy 1 because and the continuous restraint of the victim. ¶9 2 violate evidence prohibitions established one We agree. The Double Jeopardy Clauses of the United States and Arizona Constitutions protect criminal defendants from multiple convictions and punishments for the same offense. State v. Ortega, 220 Ariz. 320, 323, ¶ 9, 206 P.3d 769, 772 (App. 2008); see also U.S. Const. amend. V; Ariz. Const. art. 2, § 10. Because an additional felony conviction constitutes punishment, a double jeopardy violation occurs even if the court imposes concurrent sentences. 177 P.3d 878, 882 State v. Brown, 217 Ariz. 617, 621, ¶ 13, (App. 2008). jeopardy violations de novo. We review claims of double State v. Welch, 198 Ariz. 554, 555, ¶ 5, 12 P.3d 229, 230 (App. 2000) (citation omitted). ¶10 The proper inquiry when a defendant is convicted of multiple violations of the same statutory provision is whether the individual s offenses. acts are punishable separately as discrete State v. Jones, 185 Ariz. 403, 405, 916 P.2d 1119, 1121 (App. 1995). Because kidnapping is a continuing crime, 5 the uninterrupted restraint of the victim will not give rise to more than one count of kidnapping. Id. at 406-07, 916 P.2d at 1122-23. ¶11 to The evidence established that Madison subjected A.H. uninterrupted restraint on August 26, 2009, from her restraint in the hotel room until she was forced into the truck at gunpoint and driven around while she pleaded for her life -the bases for the kidnapping charges in Counts 1 and 2. The State does not dispute that A.H. s restraint was uninterrupted, but instead urges us to overturn Jones, arguing it was wrongly decided. ¶12 We disagree with the State s contention that Arizona Revised Statutes ( A.R.S. ) section 13-1304(A) permits multiple convictions purposes, when, using as here, different the restraint means: 1) in was Count for different 1, physical restraint with the intent to place A.H. in fear of imminent physical restraint injury using involuntary under a subsection firearm servitude under with (A)(4); the and intent subsection 2) to (A)(2). in Count 2, hold A.H. in Our supreme court has held that kidnapping is one crime, regardless of the purpose of the restraint. State v. Herrera, 176 Ariz. 9, 16, 859 P.2d 119, 126 (1993); see also State v. Eagle, 196 Ariz. 188, 190, ¶ 7, 994 P.2d 395, 397 (2000) ( Subsection (A) of the text completely defines the crime of kidnapping as it exists in 6 Arizona. Its elements are plainly set forth: a knowing restraint coupled with one or more of the specifically listed intentions. ). kidnapping We are bound by Herrera s interpretation of the statute, and we decline Madison s invitation to depart from Jones. ¶13 We typically vacate the lesser of two convictions when a double jeopardy violation occurs. State v. Scarborough, 110 Ariz. 1, 6, 514 P.2d 997, 1002 (1973). the kidnapping concurrent. offense. convictions in this case The sentences for were identical and The jury, though, found Count 2 to be a dangerous The jury was not asked to, and did not, find Count 1 to be a dangerous offense. We accordingly vacate the conviction and sentence on Count 1 as the lesser of the two convictions. III. Foreign Convictions ¶14 Madison also concluding that historical felony enhancement. Smith, 219 two argues the trial out-of-state convictions prior We review this question of law de novo. State v. 134, ¶ 10, purposes were in sentence 132, for erred of Ariz. convictions court 194 P.3d 399, 401 (2008) (citation omitted). ¶15 prior An offense committed in another state qualifies as a historical felony conviction for purposes of sentence enhancement if the offense would be punishable as a felony if committed in Arizona. A.R.S. § 13-703(M). 7 At the time of Madison s sentencing, a trial court determined whether a foreign conviction qualified by comparing the statutory elements of the foreign crime with those in the relevant Arizona statute. State v. Crawford, 214 Ariz. 129, 131, ¶ 7, 149 P.3d 753, 755 (2007). A trial court may consider charging documents only for the purpose of narrowing the foreign conviction to a particular subsection of the statute that served as a basis of the foreign conviction. A. ¶16 Id. at 132, ¶ 11, 149 P.3d at 756. Oklahoma Conviction Madison argues that the factual basis for his guilty plea to the Oklahoma offense demonstrates he was convicted of mere possession of marijuana, not possession of marijuana with intent to distribute, as the trial court found. ¶17 We disagree. The information, guilty plea, judgment, and sentencing documents establish that Madison was charged with, and convicted of, unlawful possession of marijuana with intent to distribute under Oklahoma Statutes ( Okla. Stat. ) Title 63, section 2-401(B)(2) 1, based on his possession of 493 grams of the drug. The Oklahoma crime is analogous to the Arizona offense of possession of marijuana for sale, a class four felony, based on the amount of marijuana involved. Compare A.R.S. § 13-3405(A)(2) and (B)(4) ( A person shall not knowingly . . . 1 Throughout this decision, we cite the version of statutes in effect at the relevant times. 8 [p]ossess marijuana for sale, making it a class 4 felony if the weight is two pounds or less) with Oklahoma Statutes ( Okla. Stat. ) tit. possession 63, with § 2-401(A)(1) intent to and distribute a (B)(2) (prohibiting controlled dangerous substance, and providing that such conduct with respect to a Schedule II drug 2 is a felony punishable by a sentence of not less than two years). Even if the offense could be construed only as possession of marijuana, the offense would be punishable as a class six felony under Arizona law, and accordingly could constitute a prior historical felony. See A.R.S. §§ 13-3405(A)(1) and (B)(1), -703(M). ¶18 The court found that the Oklahoma conviction constituted Madison s third prior felony conviction, and thus qualified as a historical prior felony conviction on this basis. A.R.S. § 13-105(22)(d). 3 We find no error in the determination that this was Madison s third prior felony conviction, and thus that the Oklahoma conviction qualified as a historical prior felony conviction. B. See A.R.S. § 13-105(22)(d). California Conviction 2 See Okla. Stat. tit. 63, § 2-206(D)(6) (identifying tetrahydrocannibinols as a Schedule II drug). 3 The court also found that Madison had been convicted in 1998 for the California offense of possession of a firearm by a felon, which would constitute the Arizona offense of misconduct involving weapons, A.R.S. § 13-3102(A)(4) and (K), and was a historical prior felony conviction under Arizona law. Madison does not challenge this finding. 9 ¶19 Madison also argues his 1997 California conviction for residential burglary did not felony conviction because: date of the crime s qualify as a historical prior 1) the State failed to prove the commission; 2) the California statute defines a structure differently than the Arizona statutes; and 3) the offense was too old. ¶20 The abstract of judgment established committed the California offense in 1997. that Madison The court thus did not err by concluding that Madison committed the offense on or after January 1, 1997. ¶21 Nor did the court err in finding that the elements of residential burglary under California Penal Code §§ 459 and 460, as they existed at the time, matched Arizona s offense of burglary in the second degree, A.R.S. § 13-1507, a class three felony. We have previously rejected an argument identical to Madison s Arizona, and held includes that the the term prohibited structures, locales as used in in the enumerated California statute, and thus any conviction under the California statute would necessarily constitute a felony in Arizona. State v. Cotten, 228 Ariz. 105, 110-11, ¶¶ 18-22, 263 P.3d 654, 659-60 (App. 2011). was convicted burglary. an Moreover, the record here established that Madison and sentenced to two years for res[idential] See Cal. Penal Code §§ 460 (designating burglary of inhabited dwelling and certain 10 other structures as a burglary in the first degree), 461 (designating punishment for first degree burglary as a minimum of two years, and for second degree burglary as not exceeding one year). law, the offense of residential Under California burglary, or, using the statutory term, burglary of an inhabited dwelling, requires proof that the structure is a place where people ordinarily live and is currently Fleetwood, 217 being Cal. used Rptr. as a 612, dwelling. 614 (Cal. See Ct. People App. v. 1985). Arizona requires only that the structure be adapted for human residence, whether occupied or not. See A.R.S. § 13-1501(11). A residential person convicted California in 1997 of committing necessarily committed the burglary in offense of second-degree burglary in Arizona, a class three felony. A.R.S. § 13-1507(B). ¶22 Finally, the court did not err in concluding that the California conviction conviction because present offenses. it qualified was as a committed historical within ten prior years felony of the Any time spent incarcerated is excluded in calculating if the offense was committed within the preceding ten years. A.R.S. § 13-105(22)(b). The record establishes that Madison was incarcerated for more than four years on his burglary, firearm, and drug convictions between the California residential burglary in 1997 and his commission of the present offenses in 2009 and 2010. Excluding the time Madison spent in 11 prison, he committed the California offense within ten years of the instant offenses. CONCLUSION ¶23 For the reasons stated, we vacate the kidnapping conviction and sentence based on Count 1 of the indictment. affirm Madison s convictions and sentences in all respects. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ PETER B. SWANN, Presiding Judge /s/ PATRICIA A. OROZCO, Judge 12 We other

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