State v. Shipman
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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. JAMES LAWRENCE SHIPMAN, Appellant. DIVISION ONE FILED: 06-22-010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 08-0724 DEPARTMENT B MEMORANDUM DECISION (Not for Publication - Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. CR-2007-0192 The Honorable Steven F. Conn, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Phoenix Law Office of Cynthia A. Leyh By Cynthia A. Leyh Attorneys for Appellant Tolleson N O R R I S, Judge ¶1 James L. Shipman timely appeals from his convictions and sentences. ¶2 As explained below, we affirm. Shipman s charges stem from events that occurred between 2002 and 2006 while the victims, A.P. and her younger sister, 1 lived with their mother and her boyfriend, Shipman, in his home. 2 ¶3 A grand jury indicted Shipman on one count of sexual abuse of a minor under the age of fifteen (the younger sister), a class three felony and dangerous crime against children; sexual conduct with a minor under the age of fifteen (occurring in January 2002, against A.P.), a class two felony and dangerous crime against November 2006 children; against and A.P.), sexual a class assault two (occurring felony. A in jury convicted Shipman of all three offenses. I. Insufficient Evidence of Sexual Assault Against A.P. ¶4 Shipman evidence the argues sexual the intercourse State with presented A.P. in insufficient November 2006 occurred without consent because it failed to show he beat, used physical force against, or threatened to use physical force against A.P. to have sexual intercourse with her. 3 We disagree. 1 Two other siblings of the victims also lived in the home during that period. 2 We view the facts in the light most favorable to sustaining the jury s verdicts and resolve all reasonable inferences against Shipman. State v. Vendever, 211 Ariz. 206, 207 n.2, 119 P.3d 473, 474 n.2 (App. 2005). 3 Shipman first had sexual intercourse with A.P. in 2002, shortly after her family moved in with him, when she was 13 years old and her mother was in jail. This event is the 2 ¶5 First, as an initial matter, Arizona Revised Statutes ( A.R.S. ) section 13-1401(5) (2010) includes several ways in which [w]ithout consent may be established, but does not explicitly limit the proof of that element to only those ways. ( Without consent includes whether a victim is coerced by the immediate use or threatened use of force against a person or property ; whether a victim is incapable of consent by reason of mental disorder, mental defect, drugs, alcohol, sleep or any other similar impairment of cognition ; whether a victim is intentionally deceived as to the nature of the act ; or whether a victim is intentionally deceived to erroneously believe that a person is the victim s spouse. ). court here properly instructed the Therefore, as the superior jury, [w]ithout consent includes but is not limited to the victim being coerced by the immediate use or threatened use of force against the victim. 4 (Emphasis added.) ___________________ basis for the sexual conduct with a minor under 15 years of age charge involving A.P. Thereafter, Shipman repeatedly raped A.P. over the course of the next five to six years, even over a hundred [times]. A.P. turned 18 on August 29, 2006. The last time Shipman had sexual intercourse with A.P., and the basis of the sexual assault charge involving A.P., was in November 2006, while her mother was out of town. Shipman conceded he had sex with A.P. in 2006, but maintained it was after she had turned 18 and it was consensual. 4 Shipman did not object to the superior court s instruction, nor does he claim that it was error on appeal. 3 ¶6 not Second, the State presented ample evidence A.P. had consented to sexual November 2006 assault. intercourse with Shipman during the A.P. testified that during that assault, around midnight, Shipman came to get her in her room as he normally did and told her to go to his room. She testified, once there, she told him no and also stated, I don t want this anymore. I don t want to do this. At that point Shipman got all like antsy . . . like aggravated and told her she could lose everything [she] ha[d]. When asked why she had not tried to push Shipman away or attempted to get out of the room, A.P. replied she knew you never argued with [Shipman] . . . he would not allow that . . . [he] just didn t want you to ever argue with him. Despite telling Shipman she did not want to have sex with him that night, he just [s]tarted kissing [her] and [p]utting his hands on [her], so she just stopped. Because of her previous years of sexual abuse by Shipman, she did not argue or fight but simply submitted because [she] knew it wasn t going to do any good. ¶7 Based on this evidence, the jurors could have found A.P. had not consented to sexual intercourse with Shipman even if he had not beat, used physical force against, or threatened her with physical injury. See supra note 2. 4 II. Prosecutorial Misconduct ¶8 Shipman next contends the prosecutor committed prosecutorial misconduct by (1) vouching for the State s case, and (2) drawing attention to Shipman s exercise of his Fifth Amendment right not to testify at trial. ¶9 the We disagree. Shipman concedes he did not raise these claims before superior relief court absent a and he showing has of therefore fundamental forfeited appellate error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). In order to prevail, Shipman must establish fundamental error occurred and this error caused him prejudice. 5 P.3d at 607. A. ¶10 Id. at ¶ 20, 115 The record demonstrates no error occurred. Vouching Shipman argues vouching occurred when the prosecutor argued he was the real lawyer, a good guy who did not misdirect the jury and presented trustworthy, believable witnesses. support of this vouching argument, Shipman cites In the prosecutor s comments about not having money to buy tie clips, and about defense counsel allegedly yelling at the victims when cross-examining 5 them. According to Shipman, these comments Fundamental error is error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607 (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). 5 portrayed defense counsel as a rich jerk who was completely unlike the good people of Mohave County, and impugned his professionalism and integrity, thereby depriving Shipman of a fair trial. We disagree with Shipman s interpretation of these arguments. ¶11 Prosecutorial misconduct occurs in two forms: when the prosecutor evidence; places and the when prestige the of prosecutor the government presented to the jury supports the evidence. its information suggests behind not State v. Newell, 212 Ariz. 389, 402, ¶ 62, 132 P.3d 833, 846 (2006). ¶12 First, we note the comments to which Shipman objects occurred during the prosecutor s rebuttal closing argument. They were made in direct response to defense counsel s closing arguments the prosecutor represented the State of Arizona and not the people of Mohave County, as defense counsel and the jury did. counter Thus the tie clip comment was made essentially to defense counsel s implication the prosecutor was not also an average citizen of Mohave County also representing its people. Similarly, the misdirection comments were made in response to defense counsel s suggestion the prosecutor was contriving with the victims to elicit testimony favorable to the State s case -- i.e., only whatever it was [the prosecutor] wanted to hear -- every time defense counsel pointed out a 6 possible contradiction. vouching victims, or but The prosecutor s placing the prestige simply responding of to comments the State defense were not behind the counsel s own arguments. ¶13 A prosecutor has wide latitude in presenting closing arguments to the jury. State v. Comer, 165 Ariz. 413, 426, 799 P.2d 333, 346 (1990). When one party raises an argument that may be improper or irrelevant, the other side may have a right to respond with comments on the subject. Pool Court, 139 Ariz. 98, 103, 677 P.2d 261, 266 (1984). v. Superior Even if one party opens the door, this does not entitle the opposing party to engage Id. In in this abusive, case, argumentative the and prosecutor s improper vouching nor improper conduct. harassing comments conduct. were neither They therefore do not constitute error, let alone fundamental error. ¶14 Whether defense counsel yelled at the victims when he cross-examined them is not discernible from the transcripts. Shipman did not object to this characterization at trial and does not claim it was inaccurate on appeal. merely commented on behavior that would These statements have been readily apparent to the jurors, and were in direct response to defense counsel s closing argument attacking A.P. s credibility, stating, [f]or the first five minutes [she] never looked up 7 when [he] asked her questions during cross-examination. these circumstances, these statements also do not Under constitute error, and would hardly be prejudicial. B. Comment on Failure to Testify ¶15 Shipman further argues the State, in its rebuttal closing, commented on his exercise of his Fifth Amendment right, thus depriving him of a fair trial. ¶16 We disagree. A prosecutor s comments may be improper if they are calculated to direct the juror s attention exercise of his Fifth Amendment right. to a defendant s State v. Hughes, 193 Ariz. 72, 87, 969 P.2d 1184, 1199 (1998). ¶17 the During his opening statement, defense counsel claimed evidence would show Shipman lived in Mohave County for twelve years, fought in Vietnam, spent twenty-three years in the Air Force, has discipline in his life and is disciplined in all things he did, has never been in trouble with the law, and instilled discipline in these children. At trial, defense counsel attempted to establish through his questions the victims objected to the discipline and rules Shipman imposed and this is why they Shipman alleged had ever abuse. However, punished her the for younger breaking sister denied rules about boyfriends; and A.P. only agreed Shipman had a background in the Air Force, he liked to have things Air Force tight, and 8 the regular regiment [sic] at the Shipman house had to do with discipline. ¶18 In his closing argument, when defense counsel stated Shipman had lived in Mohave County for 12 years and had no criminal record, the prosecutor objected. The superior court sustained the objection, explaining there had been no evidence presented regarding Shipman s prior record or lack thereof. ¶19 In his rebuttal closing, the prosecutor noted defense counsel presented a lot of things during his opening statement that were not subsequently proven at trial. Shipman objected, asserting the burden, superior court prosecutor prosecutor to was overruled proceed shifting the with the objection caution. but The and the advised the prosecutor then stated defense counsel had talked about . . . [w]hat kind of man Shipman was, how he was in Vietnam and a great guy, but had presented no such evidence at trial. ¶20 Viewed in context, the prosecutor s statements simply responded to defense counsel s characterizations of Shipman made during opening evidence. statement to which he had not produced any The prosecutor s comments did not direct the jury s attention to the fact Shipman chose not to testify. As the State logical points out, while Shipman might have been one witness who could have testified about those matters, he was not 9 the sole calculated witness risk who of could have mentioning done these so. By taking matters in his the opening statement and then not presenting evidence about them at trial, defense counsel left the door open to the prosecutor s comments because an opening statement may be subject to attack. State v. Rosas-Hernandez, 202 Ariz. 212, 219, ¶ 24, 42 P.3d 1177, 1184 (App. 2002). ¶21 The prosecutor s statements were not an improper comment on Shipman exercising his right not to testify. The record does not reflect error, let alone fundamental error. C. ¶22 Cumulative Error Finally, Shipman argues the cumulative effect of the State s improper arguments involving vouching and commenting on his failure to testify so infected his trial with unfairness that his resulting convictions violate due process. Because the record demonstrates no error, see supra Part II.A and B, we reject this argument. 10 CONCLUSION ¶23 For the foregoing reasons, we affirm Shipman s convictions and sentences. /s/ __________________________________ PATRICIA K. NORRIS, Judge CONCURRING: /s/ ________________________________ JOHN C. GEMMILL, Presiding Judge /s/ ________________________________ MAURICE PORTLEY, Judge 11
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