State v. Swan

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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 WALTER SWAN, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1 CA-CR 10-0423 DEPARTMENT B DIVISION ONE FILED: 05/26/2011 RUTH A. WILLINGHAM, CLERK BY: DLL MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-007518-001 DT The Honorable Joseph C. Welty, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Angela Kebric, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Spencer D. Heffel, Deputy Public Defender Attorneys for Appellant Phoenix B A R K E R, Judge ¶1 David Swan appeals conduct with a minor. Swan s motion for from his conviction for sexual Prior to his conviction, the court denied a judgment of acquittal, substantial evidence supported a conviction. finding that For the reasons set forth below, we affirm. Facts and Procedural Background ¶2 In October 2009, a jury convicted Swan criminal counts involving sexual acts with minors. on eight Swan appeals his conviction under Count 13 of the indictment, which charged that in violation of Arizona Revised Statute ( A.R.S. ) § 131405 Swan committed sexual conduct with a minor. Specifically, Count 13 alleged that between May 1 and September 1, 2006, Swan engaged in sexual intercourse (or masturbatory contact ) with a female victim under the age of fifteen. ¶3 At trial, the support of the allegation. 1 following facts were presented in In November 2004, Swan s friend and two of her children moved in with Swan because the friend was having financial daughters, the difficulties. victim in this Another case (born of in the friend s October 1994), ordinarily lived with her father in California but lived with her mother and Swan during the summers of 2005 and 2006. 1 One We review the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against Swan. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 day during the summer of 2006, when the victim was eleven, Swan asked the victim to come into his bedroom and offered to pay her money if she did something for him. After the victim entered the room, Swan locked the door and pushed her on the bed so that she was lying face up. Swan took both the victim s and his clothes off and climbed on top of her until all of his body was touching hers. The victim tried to push Swan off of her but was unsuccessful. The victim testified that while Swan was on top of her, he was trying to hump [her]. . . . [l]ike going back and forth, moving his body on [hers], back and forth, and he was touching her vaginal area with continued for approximately ten minutes. his penis. This The victim testified that Swan s penis was not inside of [her]. ¶4 After the presentation of evidence, Swan moved for a judgment of acquittal on Count 13 pursuant to Rule 20 of the Arizona Rules of Criminal Procedure. Swan argued that the victim s general descriptions of the body parts involved in the act were too vague to support a conviction. and denied Swan s motion. The court disagreed The jury later found Swan guilty on Count 13 and other counts involving sexual acts with minors. On Count 13, Swan was sentenced to twenty years imprisonment, to run consecutive to his other sentences. Swan timely appealed the court s denial of his motion for a judgment of acquittal, 3 and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031, and 13-4033(A)(1) (2010). Discussion ¶5 motion Swan argues that the court erred in not granting his for required acquittal judgment to if conviction. grant of a there acquittal defendant s is no on Count motion substantial Ariz. R. Crim. P. 20(a). 13. for a evidence A court is judgment of to warrant a Substantial evidence has been described as evidence that reasonable persons could find sufficient to support the conclusion that the defendant committed the charged offense beyond a reasonable doubt. State v. Stevens, 184 Ariz. 411, 412, 909 P.2d 478, 479 (App. 1995) (citing State v. Mathers, 165 Ariz. 64, 796 P.2d 866 (1990)). Specifically, Swan argues the court erred because A.R.S. §§ 131405 and 1401, under which Swan was convicted, require sexual intercourse or oral sexual contact and there was no evidence that Swan either sexually penetrated the victim or had oral sex with her in 2006. Because Swan raises this particular argument for the first time on appeal, we review for fundamental error. See State v. Hamblin, 217 Ariz. 481, 484 n.2, ¶ 7, 176 P.3d 49, 51 n.2 (App. 2008) (stating that argument made for first time on appeal is forfeited absent fundamental error). Fundamental error is error going to the foundation of the case, error that takes from the defendant a right essential to [the] defense, and 4 error of such magnitude that the defendant could not possibly have received a fair trial. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). ¶6 the Swan s argument reveals a basic misunderstanding of statutes underlying his conviction. Swan was convicted under A.R.S. § 13-1405, which states: A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age. This section is to be read in conjunction with A.R.S. § 13-1401, which defines sexual intercourse in the disjunctive as either penetration into the penis, vulva or anus by any part of the body or by any object or masturbatory contact with the penis or vulva. Here, the State sought a conviction for sexual conduct with a minor on the basis of masturbatory contact, not sexual penetration. Indeed, the jury forms clarified that the alleged conduct at issue in Count 13 was masturbatory contact with penis and vulva. Thus, the question is not whether there was evidence of sexual penetration or oral sex but whether there was substantial evidence of masturbatory contact. court did not err in ruling that substantial masturbatory contact had been presented at trial. 5 Here, the evidence of ¶7 In State v. Crane, the defendant was convicted of two counts of sexual conduct with a minor. 1380, 1382 (App. 1990). In one 166 Ariz. 3, 5, 799 P.2d incident, the defendant positioned himself on top of the victim while she was in bed and went up and down. Id. at 6, 799 P.2d at 1383. The victim testified that the defendant s ding dong was between her legs. Id. In another incident, the defendant lay on top of the victim while both were naked and touched his penis to the victim s private parts and between her legs. Id. The defendant went up and down and ejaculated onto the victim s stomach. Id. The defendant argued that the trial court erred in not granting his motion for judgment by acquittal intercourse was presented. as no evidence of sexual Id. at 7, 799 P.2d at 1384. The trial court disagreed and this court affirmed, stating: We conclude that A.R.S. § 13-1401(3) does not mandate penetration in every case. Manual masturbatory contact with another is sufficient. We see no difference between a case where a defendant has a child manually masturbate him and where defendant positions the child s body, and his own, in such a way that contact with her body accomplishes the same purpose. From our interpretation of the legislative intent the activity prohibited by the statute is masturbative contact with the body of another. Id. at 9, 799 P.2d at 1386 (internal citations omitted). ¶8 We agree with the analysis in Crane and apply it here. As in Crane, there was substantial evidence that Swan used the 6 victim s body to masturbate his penis. This alone would have been contact enough to § 13-1401. constitute masturbatory under A.R.S. The evidence also showed, however, that Swan used his penis to masturbate the victim s vulva at the same time. The victim testified that while both were naked, Swan got on top of her, touched his penis to her vaginal area and tried to hump her by going back and forth, moving his body on [hers]. The court could have found substantial evidence of sexual conduct with a minor, as defined, based on testimony that Swan had masturbatory contact with his penis or the victim s vulva. Here, the victim testified that both occurred. Like the court in Crane, we see no difference between a defendant having a child manually masturbate him and a defendant positioning himself on a child s body such that the contact between the two accomplishes the same purpose. 1386. See 166 Ariz. at 9, 799 P.2d at Thus, the court did not err in ruling that substantial evidence was presented at trial that Swan engaged in sexual intercourse, defined as masturbatory contact with the penis or vulva, with a child under fifteen. See A.R.S. §§ 14-1401, - 1405. evidence Thus, there was sufficient conviction for sexual conduct with a minor. 7 to support the Conclusion ¶9 For the foregoing reasons, we affirm. /s/ __________________________________ DANIEL A. BARKER, Presiding Judge CONCURRING: /s/ ____________________________________ PETER B. SWANN, Presiding Judge /s/ ____________________________________ PATRICIA K. NORRIS, Judge 8

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