STATE v. TIGGS

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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. ) ) PAUL LEVON TIGGS, II, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 10/1/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-CR 12-0373 DEPARTMENT A (AUGUST) MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-114702-001 The Honorable Joseph C. Welty, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General by Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section and Myles A. Braccio, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Paul J. Prato, Deputy Public Defender Attorneys for Appellant Phoenix S W A N N, Judge ¶1 Paul Levon Tiggs, II, appeals from his convictions and probation terms for attempted voyeurism and for stalking. Tiggs contends that the state did not present sufficient evidence to support his convictions. We disagree, and therefore affirm. FACTS AND PROCEDURAL HISTORY ¶2 A grand jury indicted Tiggs for stalking V.K. between March 17 and March 24, 2011, and for voyeurism with respect to V.K. on March 17, March 18, and March 24, 2011. guilty. Tiggs pled not Before the matter proceeded to a jury trial, the state amended the indictment s voyeurism counts to allege attempted voyeurism. ¶3 At trial, following facts. the state presented evidence of the On the nights of March 17, 18, and 24, 2011, V.K., wearing her sleeping attire of sweatpants and a tank top, sat at her computer desk in the bedroom of her third-floor apartment, facing a window overlooking her building s open-air stairs. The window s vertical blinds were partially closed so that V.K. could see out at an angle. V.K. intended that the blinds prevent others from seeing in, but a person standing at the window could see in at an angle. On each of the nights in question, V.K. saw activity at the window. ¶4 On the night of March 17, V.K. saw a shadow and the top of a man s head at the window. She exited her apartment and saw Tiggs squatting at the wall. She recognized Tiggs, who lived in a different building in the same apartment complex, because she often saw him exercising in the community gym across 2 from her apartment and she had exchanged greetings with him a few times. him. Tiggs rose quickly and stated that V.K. had scared V.K. responded that Tiggs had scared her as well, and tried to hint that she wanted to know what he was doing by asking him several times if he was okay. was fine and walked down the stairs. to the complex s security Tiggs replied that he V.K. reported the incident officer that night and to the complex s manager the next morning. ¶5 On the night of March 18, V.K. saw eyes creeping up the window. V.K. called 911, but when the police arrived nobody was at the window. ¶6 On the night of March 24, the complex s security guard sat in the community gym with the lights off and watched V.K. s apartment. From the gym, the security guard saw Tiggs walk up the stairs to V.K. s apartment, get down on his hands and knees, and look minutes. after through the window for a period The guard called the police. she noticed eyes at the of about fifteen V.K. also called 911 window. Before the police arrived, she used her cell phone s camera and her front door s peephole to take a photograph that showed a person crouched by the window. V.K. recognized the person as Tiggs. police arrived, Tiggs ran from the window. When the The police chased Tiggs from V.K. s building through the streets and eventually apprehended him. 3 ¶7 At the close of the state s case-in-chief, Tiggs moved for judgments of acquittal. his defense, Tiggs The court denied the motion. testified that he had been near For V.K. s apartment on the evenings of March 17 and March 24 because he had been walking and running through the complex for exercise. He denied ever stopping at V.K. s window, and claimed that he ran from the police because he did not know who was chasing him. ¶8 After considering the evidence, the jury found Tiggs guilty of attempted voyeurism on March 17 and March 24, but not guilty of attempted voyeurism on March 18. The jury also found Tiggs guilty of stalking. The court entered judgment on the jury s the verdicts, suspended imposition of sentences, and placed Tiggs on concurrent ten-year probation terms for each conviction. Tiggs timely appeals. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1). DISCUSSION ¶9 Tiggs contends that the evidence presented at trial was insufficient to support his convictions. sufficiency of the evidence de novo. 559, 562, ¶ 15, 250 P.3d 1188, We review the State v. West, 226 Ariz. 1191 (2011). We view the evidence in the light most favorable to upholding the verdicts and resolve all conflicts in the evidence against Tiggs. State v. (1983). Girdler, We do 138 not Ariz. reweigh 482, 488, the evidence 4 675 P.2d or 1301, determine See 1307 the credibility of witnesses. State v. Williams, 209 Ariz. 228, 231, ¶ 6, 99 P.3d 43, 46 (App. 2004). ¶10 We will not reverse unless there is a complete absence of probative facts to support the conviction[s]. State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976). To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury. 486 State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, (1987). Sufficient evidence may be either direct or circumstantial, and may support differing reasonable inferences. State v. Anaya, 165 Ariz. 535, 543, 799 P.2d 876, 884 (App. 1990). Here, the evidence was sufficient to support the jury s verdicts. I. THE STATE PRESENTED SUFFICIENT EVIDENCE TO SUPPORT TIGGS S CONVICTIONS FOR ATTEMPTED VOYEURISM. ¶11 A person commits the crime of attempted voyeurism when he intentionally takes any action that is a step in a course of conduct planned to culminate in the knowing invasion of another person s privacy, without the other person s knowledge, for the purpose of 1424(A). sexual stimulation. A.R.S. §§ 13-1001(A)(2), 13- An invasion of privacy occurs when the victim has a reasonable expectation of not being viewed and is viewed while undressed or partially dressed, 5 while engaging in sexual intercourse or sexual contact, while urinating or defecating, or [i]n a manner that directly or indirectly captures or allows the viewing breast, of whether the [victim] s clothed visible to the public. ¶12 or genitalia, unclothed, that buttock is or not female otherwise A.R.S. § 13-1424(C). Tiggs first contends that the state did not present sufficient evidence to prove that purpose of sexual stimulation. his actions were for the Tiggs points to several out-of- state voyeurism cases in which evidence such as masturbation or pornography made the defendants sexual motivation overt, and he contends that because the state did not produce similar evidence in his case, the jury could only speculate that he acted for the purpose of sexual stimulation. We disagree. Though additional evidence would presumably have been helpful to the jury, the evidence provided was sufficient to allow the jury reasonably to infer sexual motivation. The state presented evidence that Tiggs repeatedly endeavored surreptitiously to look into V.K. s bedroom window late at night as she sat inside in her sleeping attire, and fled when the police arrived on March 24. say that no reasonable jury considering these We cannot facts could conclude that Tiggs acted for the purpose of sexual stimulation. ¶13 Tiggs insufficient next evidence contends to prove expectation against being viewed. 6 that the that V.K. state had a presented reasonable Again, we cannot say that no reasonable jury could expectation of conclude privacy. The that state V.K. had presented a reasonable evidence that V.K. s bedroom window blinds were partially closed at an angle, allowing limited visibility apartment during in late-night and out hours. A of her reasonable third-story jury could conclude from these facts that V.K. had reasonable grounds to believe that she would not be viewed. ¶14 Tiggs clothed and finally not contends engaged in that sexual because activity, V.K. was fully urination, or defecation at the times in question, she was never at any risk of voyeurism. convicted of Tiggs is incorrect. attempted As an initial matter, he was voyeurism. He could not know V.K. s state of dress or her activities until he viewed her. Moreover, voyeurism includes the viewing of clothed genitalia, buttocks, or female breasts not otherwise visible to the public, without regard to the victim s activity. A.R.S. § 13-1424(C)(2)(d). Tiggs s convictions for attempted voyeurism were supported by the evidence. II. THE STATE PRESENTED SUFFICIENT EVIDENCE TO SUPPORT TIGGS S CONVICTION FOR STALKING. ¶15 A intentionally directed person or toward commits knowingly another the crime engages person, in of the a stalking course conduct of would when he conduct cause a reasonable person to fear for her safety, and the victim does in 7 fact fear for her safety. of this visual offense, or a A.R.S. § 13-2923(A)(1). course physical of proximity to conduct the For purposes includes victim on maintaining two or more occasions over a period of time, unless the defendant s activity is constitutionally protected or otherwise authorized. A.R.S. § 13-2923(C). ¶16 Tiggs contends that the state did not present sufficient evidence to prove that he stalked V.K. because he never attempted to bring her attention to his presence and she did not testify that she feared for her safety. As an initial matter, nothing in A.R.S. § 13-2923 requires that the defendant purposefully Further, ample draw contrary evidence his to that victim s Tiggs s V.K. attention contention, actually to the became his conduct. state presented aware conduct and feared for her safety as a result. of Tiggs s V.K. testified that she was afraid when she encountered Tiggs outside of her window on March 17, and was also afraid on March 18. further testified that she contacted the complex s She security guard and manager following the March 17 incident, called 911 on March 18 and 24, and was afraid to get close to Tiggs when the police asked her to identify him after he was detained on March 24. ¶17 Tiggs also contends that his actions were authorized because he was a resident of the complex and had the right to 8 use its public apartment. areas, including the area outside of V.K. s But A.R.S. § 13-2923 does not limit stalking to acts committed on private property, and there is no evidence that Tiggs s actions authorized by were law. constitutionally The evidence was protected or sufficient otherwise to support Tiggs s conviction for stalking. CONCLUSION ¶18 Sufficient evidence supported Tiggs s convictions. We therefore affirm the convictions and probation terms. /s/ ___________________________________ PETER B. SWANN, Presiding Judge CONCURRING: /s/ ____________________________________ KENT E. CATTANI, Judge /s/ ____________________________________ JOHN C. GEMMILL, Judge 9

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