State v. Gonzalez-Salvador
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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. ) ) NOE GONZALEZ-SALVADOR, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 04-06-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 08-1081 Department D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of Arizona Supreme Court) Appeal from the Superior Court of Maricopa County Cause No. CR2008-133958-001 SE The Honorable Helene F. Abrams, Judge AFFIRMED James J. Haas, Maricopa County Public Defender by Joel M. Glynn, Deputy Public Defender Attorneys for Appellant Phoenix Terry Goddard, Attorney General Phoenix by Kent E. Cattani, Chief Counsel Criminal Appeals Section and Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee T H O M P S O N, Judge ¶1 Noe Gonzalez-Salvador (defendant) appeals his conviction and sentence of one count of sexual indecency involving a minor under age fifteen, a class five felony. Defendant asserts that the conviction should be reversed as there was no evidence that he saw the minor or that the minor was present under the statutory language of Arizona Revised Statutes (A.R.S.) § 13-1403(B) (2006). Finding no error, we affirm. ¶2 Defendant was convicted by a jury of one count of public sexual indecency, a class one misdemeanor, as to M.R. (Mother) and one count sexual indecency to the minor H.R. after a jury trial. The evidence was that defendant pulled his smaller sedan along side Mother s SUV while he was masturbating and that he was seen by the minor victim, age three, who was in a child s car seat in the back seat of the driver s side of the vehicle. Mother testified that she first became aware of defendant s actions when H.R. laughed and said Look, Mommy. ¶3 On appeal, defendant challenges only the felony conviction and asserts there was insufficient evidence that he was reckless pursuant to A.R.S. § 13-1403(B) as to whether a minor under the age of fifteen was present. Defendant testified that he did not masturbate, and although he walked up to Mother s car to confront her for chasing him, he never saw any children in Mother s car. 2 ¶4 On appeal we view the evidence in the light most favorable to sustaining the verdict and resolve all inferences against defendant. State v. Atwood, 171 Ariz. 576, (1992). 596, 832 P.2d 593, 613 For there to be reversible error on the sufficiency of the evidence there must be a "complete absence of probative facts to support the conviction." Id., at 597, 832 P.2d 614 (citation omitted). ¶5 Section public sexual 13-1403(B) indecency states to a A person minor if commits the person intentionally or knowingly engages in any of the [listed acts]. . . and such person is reckless about whether a minor under the age of fifteen years is present. For the purposes of this statute, victims are present when they are within viewing range of the defendant. State v. Jannamon, 169 Ariz. 435, 438, 819 P.2d 1021, 1024 (App. 1991). was The evidence at trial was not only that the minor within viewing masturbated, but range that of minor defendant was while actually witness it, therefore he was present. the defendant first to As to defendant s claim that he was not reckless, the evidence supports the jury s verdict. aware of justifiable and A person is reckless if that person is consciously risk that a disregards minor 3 might a be substantial present or and in viewing range. 1024; ¶6 See Jannamon, 169 Ariz. at 438, 819 P.2d at A.R.S. § 13-105(10)(c). For the foregoing reasons, defendant s convictions and sentences are affirmed. /s/ __________________________ JON W. THOMPSON, Judge CONCURRING: /s/ _____________________________________ PATRICIA A. OROZCO, Presiding Judge /s/ _____________________________________ DIANE M. JOHNSEN, Judge 4
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