State v. Cervantes

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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. ) ) CESAR JESUS CERVANTES, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 11-0055 DIVISION ONE FILED: 11/03/2011 RUTH A. WILLINGHAM, CLERK BY: GH DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2009-113485-001 SE The Honorable Warren J. Granville, Judge AFFIRMED Thomas C. Horne, Arizona 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 Terry J. Adams, Deputy Public Defender Attorney for Appellant Phoenix Cesar Jesus Cervantes, Appellant D O W N I E, Judge ¶1 for Cesar Jesus molestation of Cervantes a child timely in appeals violation of his conviction Arizona Statutes ( A.R.S. ) sections 13-1401(2) and -1410. Revised Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has searched the record, found no arguable question of law, and asks that we review the record for fundamental error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Defendant filed a supplemental brief in propria persona. On appeal, we view the evidence in the light most favorable to sustaining the conviction. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981). FACTS AND PROCEDURAL HISTORY ¶2 On February 23, 2009, police officers arrived at the victim s home in response to a disturbance complaint. When Officer Lipford questioned the victim, she revealed information that caused Violence. that him take her to the Center Against Family There, she spoke with Detective Thomas and revealed several molested to her. years The earlier, victim her step-father, testified that Cervantes, when she was had 13 years old, Cervantes entered her room, placed his hand inside her underpants, and rubbed her vagina with his fingers. ¶3 Officer Lipford asked Cervantes if he would come to the police station for questioning, and Cervantes agreed. 2 At the station, Detective victim s allegations. Lopez questioned Cervantes about the According to Detective Lopez, Cervantes admitted undoing the victim s pants and touching her vagina when she was 12 or 13 years old. Cervantes also confessed that he knew his actions were wrong. ¶4 Cervantes was indicted on one count of molestation of a child, a class 2 felony and dangerous crime against children. A jury trial ensued. The victim and Detectives Lopez and Thomas testified. conclusion At the of the State s case-in-chief, Cervantes moved for a judgment of acquittal pursuant to Rule 20, Arizona Rules of Criminal Procedure ( Rule ). The motion was denied. The trial court The jury found him guilty as charged. sentenced Cervantes imprisonment, with to 681 a mitigated days of term of pre-sentence 12 years incarceration credit; he was also ordered to register as a sex offender. DISCUSSION ¶5 We have read and considered the briefs submitted by Cervantes and his counsel and have reviewed the entire record. Leon, 104 Ariz. at 300, 451 P.2d at 881. error. the We find no fundamental All of the proceedings were conducted in compliance with Arizona Rules of Criminal Procedure, imposed was within the statutory range. and the sentence Cervantes was present at all critical phases of the proceedings and was represented by counsel. The jury was properly impaneled and instructed. 3 The jury instructions were consistent with the offense charged. The record reflects no irregularity in the deliberation process. ¶6 In his supplemental brief, Cervantes identifies several issues, which we address below. I. Rule 20 Motion ¶7 Cervantes argues the trial court should have dismissed the charges against him because the victim s allegations were not corroborated by witnesses or physical evidence. A judgment of acquittal is appropriate only when there is no substantial evidence to warrant a conviction. 20. Ariz. R. Crim. P. ( Rule ) Substantial evidence is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant s guilt beyond a reasonable doubt. State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (citation omitted). evidence Reversible occurs only error where based there on is insufficiency a complete probative facts to support the conviction. of absence the of State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). ¶8 The State presented substantial evidence of guilt. A person is guilty of child molestation when he intentionally or knowingly touches, fondles, or manipulates any part of the genitals, in a sexual nature, of a child who is under 15 years of age. Ariz. Rev. Stat. ( A.R.S. ) § 13-1410(A), -1401. The victim testified that when she was 13 years old, Cervantes put 4 his hands inside her underwear and rubbed her vagina with his fingers. Detective Lopez testified that Cervantes admitted undoing the victim s pants and sexually touching her vagina. Cervantes also acknowledged that he knew his actions were wrong. Because the State introduced evidence sufficient to support the conviction, the court did not err in denying Cervantes s Rule 20 motion. II. Jury Panel ¶9 Next, Cervantes assigns error to the jury s composition because only nine of the ten jurors were present on the final day of trial. However, because Cervantes faced less than 30 years imprisonment, see A.R.S. § 13-705(D) (providing maximum sentence of 24 years for child molestation), only eight jurors were required, see A.R.S. § 21-102(B). Although the lone Hispanic juror was designated the alternate because he failed to appear for the final day of trial, 1 the jury was nevertheless legally proper. Because the record does not affirmatively show[] that [Cervantes] was not tried by a fair and impartial jury, the court did not err in proceeding without that juror. State v. Thomas, 133 Ariz. 533, 537, 652 P.2d 1380, 1384 (1982) ( The defendant is not entitled to a particular jury, but only a fair one . . . . ) (citations omitted). 1 The juror called just as trial was resuming and reported that a work-related emergency had arisen. 5 III. Alleged Judicial and Prosecutorial Misconduct ¶10 the Cervantes next contends reversible error occurred when State interview introduced with agreement. evidence Detective Thomas about in the violation victim s of a second pre-trial Absent a clear abuse of discretion, an appellate court will not second-guess the trial court s ruling on the admissibility or relevance of evidence. State v. Spreitz, 190 Ariz. 129, 146, 945 P.2d 1260, 1277 (1997) (citation omitted). [W]here evidence is erroneously admitted, reversal is required only when it is reasonably probable that, absent the tainted evidence, the jury would have reached a different conclusion. State v. Brown, 125 Ariz. 160, 162, 608 P.2d 299, 301 (1980) (citation omitted). ¶11 At the beginning of trial, the parties agreed that evidence about the victim s second Thomas would not be presented. interview with Detective Although Cervantes claims the State breached this agreement, he provides no record citation. Our independent review of the record suggests a potential issue arising on the last day of trial. When the State introduced exhibit 2 into evidence, it did not realize the exhibit referred to the second interview. Defense counsel quickly advised the court and the prosecutor of the reference, and the State did not 6 elicit further testimony regarding the exhibit. At the end of the trial, before the exhibit was given to the jury, the parties redacted the second interview reference. not use the exhibit to elicit Because the State did testimony contrary to the agreement, and the court redacted the exhibit before giving it to the jury, no prejudicial error exists. IV. Ineffective Assistance of Counsel ¶12 Cervantes Because that claim also claims is decline to address it. his inappropriate counsel for was ineffective. direct appeal, we Rule 32; State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002) (any claims of ineffective assistance improvidently raised in a direct appeal . . . will not be addressed by appellate courts regardless of their merit ). V. Other Matters ¶13 Cervantes s supplemental brief asserts other errors, but provides no context or argument for those claims. For example, Cervantes states that on the second day of trial, the jury was reduced from 12 to 10 jurors. 2 sentence was unduly harsh. 3 or applicable law and does He also claims his Cervantes fails to cite the record not provide an argument beyond 2 The jury consisted of 10 jurors throughout trial, with 2 serving as alternates. 3 Cervantes was sentenced to 12 years imprisonment, which is within the statutory range. See A.R.S. §§ 13-702(A), -705(D). 7 stating these claims. We have considered all issues identified with some measure of clarity and have independently reviewed the record for fundamental error, including the sentencing phase and the jury s composition. CONCLUSION ¶14 We affirm Cervantes s conviction and sentence. Counsel s obligations pertaining to Cervantes s representation in this appeal have ended. Counsel need do nothing more than inform Cervantes of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission review. days the Arizona Supreme Court by petition for State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). 30 to from On the court s own motion, Cervantes shall have the date of this decision to proceed, if he desires, with an in propria persona motion for reconsideration or petition for review. /s/ MARGARET H. DOWNIE, Presiding Judge CONCURRING: /s/ PETER B. SWANN, Judge /s/ DONN KESSLER, Judge 8

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