State v. Hernandez
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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. ) ) ADRIAN HERNANDEZ, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 02/14/2012 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-CR 10-0586 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-005152-002 DT The Honorable Christopher T. Whitten, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Myles Braccio, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Karen M. V. Noble, Deputy Public Defender Attorneys for Appellant Phoenix O R O Z C O, Judge ¶1 Adrian Hernandez (Defendant) appeals his convictions and sentences for three counts of kidnapping a person under the age of fifteen, each classified as a dangerous crime against children, arguing that the State failed knowingly targeted a child for each count. to prove that he For the following reasons, we disagree and affirm the convictions and sentences. PROCEDURAL AND FACTUAL HISTORY ¶2 In the early morning of October 28, 2009, Defendant and an accomplice1 forcibly entered a residence, armed with semiautomatic handguns, intending to burglarize the house. Present in the house were adults Leyva, Peralta and Martinez. Also present were Leyva s three minor children, ages one, four and six. ¶3 Once inside the house, Defendant and the accomplice forced all the occupants into one room and took turns guarding the occupants at gun point. after police arrived. and identified as one restrained the victims. Defendant and the accomplice fled Defendant was arrested shortly thereafter of the men who entered the home and Defendant later admitted participating in the burglary. ¶4 On November 5, 2009, the State indicted Defendant on: (1) first-degree burglary, a class 2 dangerous felony; (2) three counts of counts of kidnapping, kidnapping, class 2 dangerous alleged as felonies; dangerous (3) crimes three against children and class 2 dangerous felonies; (4) three counts of 1 Defendant s accomplice was not tried with Defendant and is not a party to this appeal. 2 armed robbery, class 2 dangerous felonies; and (5) misconduct involving weapons, a class 4 felony.2 ¶5 After the State presented its case, Defendant moved for a judgment of acquittal on all counts pursuant to Rule 20 of the Arizona Rules of Criminal Procedure; the court denied the motion. Defendant then testified in his own defense, claiming that he was forced to participate in the burglary and that he was not aware of the children s presence in the house. ¶6 A jury found Defendant guilty on all remaining counts. The jury also found the State proved three of the kidnapping charges constituted dangerous crimes against children pursuant to Arizona Revised Statutes (A.R.S.) section (2010)3 13-705 (Dangerous Crimes Against Children Statute) because the child victims were under fifteen years of age. The trial court sentenced Defendant to mitigated terms on the burglary, adult kidnapping and concurrently. armed robbery However, because counts, the all Dangerous to be served Crimes Against Children Statute triggers mandatory enhanced sentences, the court sentenced Defendant kidnapping counts, to to enhanced be served terms for each consecutively of to the child Defendant s concurrent sentences. 2 The State later dismissed one of the armed robbery counts and the misconduct involving weapons charge. 3 We cite the current version of applicable statutes when no revisions material to this decision have since occurred. 3 ¶7 Defendant convictions and filed a sentences. timely We notice have of appeal jurisdiction from pursuant the to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21.A.1 (2003), 13-4031 (2010) and 13-4033.A.1 (2010). DISCUSSION ¶8 Defendant argues the trial court erred in denying his motion for judgment of acquittal regarding the three counts of kidnapping a child under the age of fifteen because: (1) the Dangerous Crimes Against Children Statute does not apply in this case; and (2) the State failed to produce sufficient evidence that [Defendant] knowingly restrained the three children. ¶9 for We review de novo the trial court's ruling on a motion judgment of acquittal and also independently court s constitutional and legal conclusions. review the State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011) (citing State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993)); State v. Gay, 214 Ariz. 214, 217, ¶ 4, 150 P.3d 787, 790 (App. 2007). Judgment of substantial acquittal evidence is to support beyond a reasonable doubt. Mathers, 165 Ariz. 64, appropriate each only when element there of the is no offense Ariz. R. Crim. P. 20.a; State v. 66-67, 796 P.2d 866, 868-69 (1990). Substantial evidence is such proof as a reasonable mind would employ to support the conclusion reached, and if reasonable persons could differ as to whether the evidence establishes a 4 fact in issue, then the evidence is substantial. State v. Tison, 129 Ariz. 546, 553, 633 P.2d 355, 362 (1981) (citation omitted). In determining the sufficiency of the evidence to withstand a Rule 20 motion, we view the evidence in a light most favorable to sustaining the verdict. State v. Mincey, 141 Ariz. 425, 432, 687 P.2d 1180, 1187 (1984). The Dangerous Crimes Against Children Statute ¶10 Defendant contends the Dangerous Children Statute does not apply in this case. Crimes Against Under the statute, a person commits a dangerous crime against children if he commits a crime against a victim under the age of fifteen. 705.P. However, the offense must be focused A.R.S. § 13on, directed against, aimed at, or target[ed] at the child victim, and an offense is not a dangerous crime against children when the child was only accidentally injured by generalized unfocused conduct. State v. Williams, 175 Ariz. 98, 103, 854 P.2d 131, 136 (1993).4 ¶11 Citing State v. Samano, 198 Ariz. 506, 11 P.3d 1045 (App. 2000), Defendant argues that to be sentenced under the Dangerous Crimes Against Children Statute, a defendant must target a child victim specifically because of the child's age. 4 The Dangerous Crimes Against Children Statute, formerly A.R.S. § 13-604.01, was amended several times before being renumbered as § 13-705. See 2008 Ariz. Sess. Laws, ch. 301, §§ 17, 29 (2d Reg. Sess.). For ease of reference, we cite to the version now in effect, which does not differ in any material way from the statute interpreted in earlier cases. 5 As we have previously noted, however, our supreme court has rejected that argument. See State v. Miranda-Cabrera, 209 Ariz. 220, 224, ¶ 19, 99 P.3d 35, 39 (App. 2004) (noting that State v. Sepahi, 206 Ariz. 321, 78 P.3d 732 (2003) substantially rejected the rationale on which Samano was based). ¶12 Under Sepahi, it is not necessary that victimize a child because of the child s age. 209 Ariz. at 224, ¶¶ 17-19, 99 P.3d at a defendant Miranda-Cabrera, 39. Instead, the Dangerous Crimes Against Children Statute applies when a targeted victim is younger than fifteen years old, even if the defendant reasonably adults. intended to direct his criminal conduct only at Id. at 224, ¶ 18, 99 P.3d at 39 ( [F]or the statute to apply, the victim must only be the person against whom the crime is directed, and no requirement exists that the accused must know the person is under fifteen. ) (citation and internal quotation marks omitted); Sepahi, 206 Ariz. at 324, ¶ 17, 78 P.3d at 735 ( [A] defendant who intends to direct his criminal conduct only at adults can nonetheless be subjected to the special sentencing provisions of [the Dangerous Crimes Against Children Statute] when his victim turns out to be a child, even if the defendant quite reasonably believed to the contrary . . . . ); Williams, 175 Ariz. at 103, 854 P.2d at 136 (holding that knowledge of the victim s age is not required under the Dangerous Crimes Against 6 Children Statute because a defendant assumes the risk that the victim will turn out to be within a protected age group ). ¶13 Here, substantial evidence supported the jury's finding that Defendant s kidnapping offenses involved conduct directed or targeted at children. As Defendant concedes, the State proved that the children were under the age of fifteen and present when Defendant entering the restrained home and them. using a Furthermore, gun by forcibly to the victims, restrain Defendant necessarily targeted the entire group of victims, including the children. Even if he did not know that children lived in the home and did not plan to kidnap them prior to the invasion, he nonetheless did restrain them during This evidence is all that is required under Sepahi. the event. 206 Ariz. at 324, ¶ 19, 78 P.3d at 735 (reaffirming the holding in Williams that the State must prove the victim was under the age of fifteen and the victim was the person against whom the crime was directed); see also State v. Coghill, 216 Ariz. 578, 590, ¶ 49, 169 P.3d 942, 954 (App. 2007) (holding that under Williams and Sepahi, the State must only prove that the defendant knowingly targeted the victim and that his victim was under the age of fifteen). ¶14 Accordingly, we reject Defendant's argument that the Dangerous Crimes Against Children Statute does not apply in this case. 7 Sufficiency of the Evidence ¶15 Defendant also argues that the State failed to present sufficient evidence that he knew the children were present in the bedroom during the robbery. He contends that because the event occurred during the early morning hours and the house was dark, he was completely unaware of their presence. He further argues that no evidence was presented that the children made themselves known, and because the adult witnesses were unable to differentiate between the intruders in their testimony, the jury should have accepted Defendant s testimony that he never entered the bedroom where the children were located. In addition, he claims that because he was intoxicated during the crime, his sensory faculties were diminished and he was therefore unable to detect the children s presence. Accordingly, he asserts that the State failed to prove that he knowingly restrained and targeted the children at all, regardless of their ages. ¶16 Although Defendant testified that he was unaware of the children s presence and denied entering the room where the children were located, it is the duty of the jury to weigh the evidence and determine the credibility of witnesses. Brown, 125 Ariz. 160, 162, 608 P.2d 299, 301 State v. (1980). Accordingly, the jury was free to reject Defendant s testimony and draw its own conclusions based on other evidence, including the testimony of other witnesses. 8 On appeal, we will not re- weigh the evidence and will review only to determine whether substantial evidence supports the jury s findings. Tison, 129 Ariz. at 552, 633 P.2d at 361. ¶17 Viewed in the light most favorable to sustaining the verdict, we find the evidence presented at trial was sufficient to support the jury s findings. 687 P.2d at 1187. Leyva See Mincey, 141 Ariz. at 432, and Peralta each testified that Defendant and the accomplice forced all the occupants of the house, including the children, into a single room and that both intruders took turns guarding the victims at gunpoint. Peralta also testified that while being guarded, he repeatedly told both Defendant and the accomplice that the children were there and that they were getting frightened. In addition, Leyva testified that while attempting to make a 911 call, she shielded herself behind the children. She testified that either Defendant or the accomplice saw her behind the children and that both intruders discovered that she was attempting to contact police. Finally, a responding officer testified that upon entering the house, he noticed that children were present. This evidence is sufficient to sustain the finding that Defendant knew the children were present during the crime and he knowingly restrained and targeted them. 9 CONCLUSION ¶18 For the foregoing reasons, we affirm Defendant s convictions and sentences. /S/ ___________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: /S/ ____________________________________ PHILIP HALL, Judge /S/ ____________________________________ JOHN C. GEMMILL, Judge 10
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