State v. Lawson

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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©; ARCAP 28©; Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) MICHAEL SAMUAL LAWSON, ) ) Appellant. ) ) __________________________________) 1 CA-CR 10-0166 DIVISION ONE FILED: 01/6/11 RUTH WILLINGHAM, ACTING CLERK BY: DN DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-030743-001 DT The Honorable Connie Contes, Judge AFFIRMED Thomas 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 Kathryn L. Petroff, Deputy Public Defender Attorney for Appellant Phoenix D O W N I E, Judge ¶1 Michael Samual Lawson ( defendant ) appeals his convictions for (1) molestation of a child; (2) three counts of sexual conduct with a minor; (3) sexual abuse; and (4) public sexual indecency to a minor. 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 requests that we review the record for fundamental error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Defendant was given the opportunity to file a supplemental brief in propria persona, but has not done so. 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 During V.L. s daughter ( victim ) birthday told her party that in August defendant, 2007, V.L. s her live-in boyfriend of five years, had been sexually inappropriate with her. V.L. ended the party and confronted defendant, demanding the house keys and ordering him to leave. She then called the police. ¶3 three Detective Lawes interviewed the victim, who disclosed separate incidents. The first happened when she was eleven or twelve and was lying under a blanket in front of the television. Defendant got under the blanket with her and began fondling her breasts and vagina over her clothes. During that same time period, defendant also began masturbating and asked the victim to play with his penis. When she resisted, he told her to move her hands up and down on it. 2 During this incident, defendant also touched the victim s breasts. occurred when the victim was thirteen. her bedroom, masturbating. The third incident Defendant walked into He digitally penetrated her vagina until he ejaculated. ¶4 medical After the interview, examination, where the she victim was disclosed taken another occurring when she was twelve or thirteen. for a incident Defendant and the victim went to the store, and on the return trip, he pulled into a church parking lot and told her to get into the back of the truck. He removed her pants and began touching her vagina with his fingers and mouth. All of the offenses took place when V.L. was at work; frequently, defendant would call V.L. at work to find out when she was coming home. ¶5 Detective Lawes interviewed defendant, who initially denied everything. Later, defendant stated, If I did this, it happened when I was drunk, and I don t remember doing it. ¶6 wearing V.L. confronted defendant about the allegations while a concealed microphone. Defendant admitted performing oral sex on the victim, digitally penetrating her, and touching and engaging in oral contact with her breasts. ¶7 Defendant was indicted for: count 1: molestation of a child; count 2: sexual conduct with a minor; count 3: public sexual indecency to a minor; count 4: sexual conduct with a minor; count 5: sexual abuse; and count 6: 3 sexual conduct with a minor. The State later amended the indictment to allege that there were multiple offenses not committed on the same occasion. ¶8 A four-day jury trial commenced in October 2009. After the State s case-in-chief, defendant moved for a judgment of acquittal pursuant to Rule Procedure; it was denied. all counts, with special 20, Arizona Rules of Criminal The jury found defendant guilty on findings that the victim was under fifteen years of age at the time of the sexual abuse and sexual conduct with follows: to be a minor count 1: served concurrent on with offenses. Defendant was sentenced as seventeen years imprisonment (flat time), completion counts 3 of and the 5; sentence count in 2: count twenty 6 and years imprisonment (flat time); count 3: 1.5 years imprisonment, to be sentence served concurrent on with completion counts 1 imprisonment (flat time), sentence count 2; in of the and to count 5; be 5: count served five in 4: on count twenty completion years 6 and years of imprisonment the on completion of the sentence in count 6 and concurrent with counts 1 and 3; count 6: 20 years imprisonment (flat time) to be served on completion of the sentence in count 4. ¶9 Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) 12-120.21(A)(1), 13-4031, and 13-4033(A)(1). 4 sections DISCUSSION ¶10 We have read and considered the brief submitted by defense counsel and reviewed the entire record. fundamental error. compliance with We find no All of the proceedings were conducted in the Arizona Rules of Criminal Procedure. Defendant was represented by counsel at all critical stages and was present for trial. deliberation process. There were no irregularities in the The sentences imposed were within the statutory range. ¶11 The trial court properly denied defendant s Rule 20 motion. A judgment of acquittal is appropriate only when there is no substantial evidence to warrant a conviction. Crim. P. 20. Substantial evidence is such Ariz. R. proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant s guilt beyond a reasonable doubt. (1990) State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (citations insufficiency of the omitted). Reversible evidence occurs only error based where there on is a complete absence of probative facts to support the conviction. State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). ¶12 including The State admissions presented substantial defendant testimony by V.L. and the victim. 5 made to evidence V.L., as of guilt, well as Although defendant testified he did not commit the offenses, [n]o rule is better established than that the credibility of the witnesses and the weight and value to be given to their testimony are questions exclusively for the jury. State v. Clemons, 110 Ariz. 555, 556-57, 521 P.2d 987, 988-89 (1974). CONCLUSION ¶13 We affirm defendant s convictions and sentences. Counsel s obligations pertaining to defendant s representation in this appeal have ended. 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 review. to the Arizona Supreme Court by petition for State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court s own motion, 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. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ PATRICIA A. OROZCO, Judge 6

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