State v. Middlemas

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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. ) ) DAVID EDGAR MIDDLEMAS, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 10-12-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CR 10-0060 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-142811-001 DT The Honorable Lisa Daniel Flores, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Stephen R. Collins Attorneys for Appellant Phoenix O R O Z C O, Judge ¶1 David Edgar Middlemas, (Defendant) appeals his convictions and sentences on two counts of sexual conduct with a minor, both class two felonies and dangerous crimes against children. ¶2 Defendant s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this court that after a search of the entire appellate record, he found no arguable question of law that was not frivolous. Defendant was afforded the opportunity to file a supplemental brief in propria persona, but he did not do so. Through his attorney, however, Defendant challenges the sufficiency of the evidence and his convictions. ¶3 Our obligation in this appeal is to review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona (2003), Revised 13-4031 Statutes (2010), sections -4033.A.1 and (A.R.S.) (2010).1 12-120.21.A.1 Finding no reversible error, we affirm. 1 We cite to the current version of the applicable statutes when no revisions material to this decision have since occurred. 2 FACTS AND PROCEDURAL HISTORY ¶4 Defendant s daughter (C.E.) was born in the Philippine Islands in March 2004. married. Defendant and C.E. s mother were never Defendant and C.E. traveled extensively throughout the world, visiting and living in nine countries before C.E. reached the age of three. They visited Defendant s mother who lived in Mexico and his sister (C.F.), who resided in Arizona, a few times every year. ¶5 While in Mexico, C.E. was taken to the doctor by a nanny who suspected C.E. had been abused. The medical exam by a pediatrician indicated signs of possible abuse and C.E. told the doctor Defendant had sexually abused her. C.F. learned of the allegations of sexual abuse against Defendant. C.F. traveled to Mexico and brought C.E. back to her home in Arizona and made reports of the alleged sexual conduct to Child Services (CPS) and the Buckeye Police Department. Protective CPS placed C.E. in the custody of C.F. ¶6 different Officer Defendant During this time, Defendant began traveling to several countries D. of when throughout the he Buckeye landed at Central Police Sky America Department Harbor airport. and Mexico. interviewed Defendant admitted to sexual conduct with C.E. daily while bathing her, from the time C.E. was seven or eight months until she was removed from Defendant s custody at three and a half years of 3 age. Officer D. arrested Defendant and he was charged with two counts of sexual conduct with a minor, class two felonies and dangerous crimes against children. ¶7 Defendant chose to have a bench trial and the court questioned the voluntariness of Defendant s waiver of his right to a jury trial and his right to confront witnesses by allowing Officer D. s police report to be admitted as evidence. The trial court determined that Defendant voluntarily waived his rights and found Defendant guilty of two counts of sexual conduct with a minor and sentenced him to two consecutive life sentences pursuant to A.R.S. § 13-604.01.A (2004).2 timely appealed his convictions and sentences. Defendant Ariz. R. Crim. P. 31.3. DISCUSSION Sufficiency of Evidence ¶8 When reviewing the record, we view the evidence in the light most favorable to supporting the verdict. State v. Torres-Soto, 187 Ariz. 144, 145, 927 P.2d 804, 805 (App. 1996). ¶9 On appeal, Defendant requests that his attorney challenge the sufficiency of the evidenced used to convict him. The finder-of-fact, not the 2 appellate court, weighs the This statute was subsequently renumbered as A.R.S. § 13-705.A. See 2008 Ariz. Sess. Laws, ch. 301, §§ 17, 29 (2d Reg. Sess.). In this decision, we refer to the version of this statute as worded and numbered at the time Defendant committed the offenses. 4 evidence and determines the credibility of witnesses. State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995). This Court will not disturb the fact finder s decision if there is substantial evidence to support its verdict. ¶10 Id. Pursuant to A.R.S. § 13-1405.A (2010), [a] person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse . . . with any person who is under eighteen years of age. As defined, sexual intercourse is penetration into the vulva by any part of the body. A.R.S. § 13-1401.3 (2010). ¶11 Defendant waived his right to cross examine the State s witnesses and allowed the police reports to be admitted as evidence. At trial, the State established Defendant and C.E. visited Surprise, Arizona a few times each year. Police reports stated Defendant admitted he digitally penetrated C.E. s vagina daily, while bathing her from the time she was seven or eight months old, until she was removed from Defendant s custody at the age of three and a half years. sufficient evidence to convict We find the State presented Defendant of the requested charges an of sexual conduct with a minor. Mental Competency and Voluntariness ¶12 Before pursuant to Procedure. Rule trial, 11.2 Defendant of the Arizona Rules evaluation of Criminal The court appointed two doctors to perform mental 5 evaluations of Defendant. At the competency hearing doctors findings of Defendant s competency were divided. the The court appointed a third expert to evaluate Defendant who found him competent to stand trial and to assist in his defense. ¶13 of At trial, the court found that Defendant was capable understanding competent the pursuant to proceedings A.R.S. § and assisting 13-4510.B his (2010); counsel; that his current medication regimen was necessary to ensure his ongoing competency; and medications. that Defendant should continue taking his Prior to trial the court questioned Defendant to determine if he was under the influence of any drugs or alcohol. Defendant responded that he had not taken any drugs, alcohol or medications within the past twenty-four hours, other than those administered by the prison staff. ¶14 When the superior court s authority to determine competency is not challenged at trial, the issue is examined for fundamental error on appeal. State v. Silva, 222 Ariz. 457, 459, ¶ 11, 216 P.3d 1203, 1205 (App. 2009). Defendant prejudice. must prove both fundamental To obtain relief, error and actual State v. Henderson, 210 Ariz. 561, 567, ¶ 20, 115 P.3d 601, 607 (2005). We must find error occurred, before reviewing for fundamental error. State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342 (1991). Here, we find no error. 6 ¶15 During Defendant s testimony, he claimed some of the statements he made to police were made as a result of being under stress and intimidated. intimidated, statement he to may be say Defendant testified that when things admissible, it he does must be not mean. voluntary obtained by coercion or improper inducement. For and a not State v. Ellison, 213 Ariz. 116, 127, ¶ 30, 140 P.3d 899, 910 (2006) (citing Haynes v. Washington, 373 U.S. 503, 513-14 (1963)). A suspect s statements are presumed involuntary in Arizona. Id. (citing State v. Amaya-Ruiz, 166 Ariz. 152, 164, 800 P.2d 1260, 1272 (1990)). Yet, confession is [a] made prima when facie the case officer for admission testifies of that a the confession was obtained without threat, coercion or promises of immunity or a lesser penalty. State v. Jerousek, 121 Ariz. 420, 424, 590 P.2d 1366, 1370 (1979). Here, Defendant testified that during his interviews, officers treated him professionally and with respect. introduced any Defendant evidence that has his not made confession any was claims or coerced or improper. ¶16 We find no error in the trial court s proceedings to determine competency or voluntariness and thus affirm the trial court s verdicts and sentences. 7 CONCLUSION ¶17 We have read and considered counsel s brief, carefully searched the entire record for reversible error and found none. Clark, 196 Ariz. at 541, ¶ 49, 2 P.3d at 100. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure and substantial evidence supported the trial court s findings of guilt. Defendant was present and represented critical by proceedings. counsel At at all sentencing, Defendant and stages his of the counsel were given an opportunity to address the court and the trial court imposed a legal sentence. ¶18 Counsel s representation in obligations this appeal pertaining have ended. to Defendant s Counsel need do nothing 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 State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant shall have thirty days from the date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review.3 3 Pursuant to Rule 31.18.b, Defendant or his counsel have fifteen days to file a motion for reconsideration. On the Court s own motion, we extend the time to file such a motion to thirty days from the date of this decision. 8 ¶19 For the foregoing reasons, Defendant s convictions and sentences are affirmed. /S/ ____________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: /S/ _________________________________ DANIEL A. BARKER, Judge /S/ _________________________________ LAWRENCE F. WINTHROP, Judge 9

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