State v. Clarke

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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. DONTE DION CLARKE, Appellant. DIVISION ONE FILED: 11/18/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL 1 CA-CR 09-0698 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-171210-002 SE The Honorable Teresa A. Sanders, Judge AFFIRMED Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Law Offices of Robert Gaffney by Robert Gaffney Attorneys for Appellant Phoenix Scottsdale P O R T L E Y, Judge ¶1 Defendant Donte Dion Clark challenges his convictions and sentences for child prostitution and related offenses. His counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) (1969). and State v. Leon, 104 Ariz. 297, 451 P.2d 878 He advised us that he searched the entire record but was unable to discover any arguable questions of law. As a result, he requests that we conduct an Anders review of the record. Defendant did not file a supplemental brief. FACTS 1 ¶2 During an undercover prostitution sting in north Phoenix on November 15, 2008, police arrested Whitney Sharp and W.P., a minor. After further investigation, Defendant was arrested on November 18, 2008, and a direct complaint was filed alleging that he had caused a minor to engage in prostitution, a class 2 felony. for sex He was subsequently indicted by a grand jury trafficking, multiple counts of child prostitution, attempted child prostitution, transporting persons for purposes of prostitution, and aggravated assault. ¶3 and Defendant pled not guilty. a Counts settlement 1-6, 2 and conference, 14-17, the which In spite of a plea offer case were proceeded presented to to trial the on jury sequentially as Counts 1-10. 1 We review the facts in the light most favorable to sustaining the verdict. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 Count 7 was dismissed without prejudice just before jury selection. Counts 8-13 were tried separately because they involved Ms. Sharp. 2 ¶4 jury In addition to the police officers and Ms. Sharp, the heard testimony from W.P. She testified that she was fifteen years old when the Defendant paid for her to travel from California to Phoenix during late October 2008. Although she thought she was going to spend time with her boyfriend, Tracy Jones, three days after her arrival, Defendant encouraged Tracy to hit W.P. to force her into prostitution. ¶5 Once W.P. was compliant, Defendant told Ms. Sharp to help W.P., and Ms. Sharp provided W.P. with clothes and did W.P. s hair and makeup. Defendant then took both women out on a double date and demanded that W.P. earn $500. while she was eating pizza, Defendant Afterwards, and urinated on W.P. for talking back to Tracy, grabbed her by her hair, pulled her into the kitchen, and tased her. She was also tased on a different occasion while she was in the bathroom/shower. In fact, W.P. was threatened with death and beatings if she tried to run away. ¶6 W.P. testified about her role in prostitution. Generally, she and Ms. Sharp would walk a track or Ms. Sharp would make the dates, and W.P. would accompany her. earned $500 from a date. $200 for sex prostitution She once On another occasion, W.P. received acts. W.P. used purposes, and she Craig s List ads. 3 the was name listed of as Diamond Diamond for on ¶7 After the presentation of evidence and before closing arguments, the instruction for jury was accomplice duly instructed, liability. The including jury then the had to weigh the evidence, including the credibility of the witnesses, to determine the facts before applying the law to those facts. Subsequently, Count 1, the sex jury found trafficking; that Counts Defendant 2, 3, 4, was guilty and 5, of: child prostitution; Count 6, attempted child prostitution; and Counts 8 and 9, aggravated assault. 3 He was acquitted of Count 7, aggravated assault. ¶8 years Defendant was sentenced to prison as follows: for sex trafficking, with 306 days of four presentence incarceration credit; seven years for each of the four child prostitution count convictions, consecutive to each other; three and one-half years for aggravated assault; and one year each for the last two aggravated assault convictions. The sex trafficking sentence was concurrent with the aggravated assault sentences, which also had 306 days of presentence incarceration credit, but consecutive to the child prostitution sentences. ¶9 We have jurisdiction over this appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona 3 After Count 5 of the indictment was dismissed during trial, the remaining counts were renumbered sequentially when presented to the jury. 4 Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 134031, and -4033(A)(1) (2010). DISCUSSION ¶10 We have read and considered counsel s brief, as well as searching the entire record for reversible error. 104 Ariz. at 300, 451 P.2d at 881. ¶11 The record on appeal See Leon, We find none. demonstrates that all of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Defendant was indicted, and represented by counsel at each proceeding thereafter. He was given full opportunity to cross-examine all of the State s witnesses, as well as the defense. sentence opportunity The jury imposed to was was present properly within any evidence instructed. the statutory in his Finally, limits own each for his conviction. CONCLUSION ¶12 Once we file this decision, counsel s obligation to represent Defendant in this appeal has ended. Counsel need do no more than inform Defendant of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission petition for review. to the Arizona Supreme Court by See State v. Shattuck, 140 Ariz. 582, 585, 684 P.2d 154, 157 (1984). Defendant can, if desired, file a 5 motion for reconsideration or petition for review pursuant to the Arizona Rules of Criminal Procedure. ¶13 Accordingly, we affirm Defendant s convictions sentences. /s/ ___________________________ MAURICE PORTLEY, Judge CONCURRING: /s/ ________________________________ JOHN G. GEMMILL, Presiding Judge /s/ ________________________________ PATRICIA K. NORRIS, Judge 6 and

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