State v. Sayed
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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.
)
)
FAWAD AHMAD SAYED,
)
)
Appellant. )
)
__________________________________)
1 CA-CR 10-0697
DIVISION ONE
FILED: 09/29/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
Department D
MEMORANDUM DECISION
(Not for Publication Rule 111, Rules of
Arizona Supreme Court)
Appeal from the Superior Court of Mohave County
Cause No. CR2009-00420
The Honorable Judge Rick Williams
AFFIRMED
John A. Pecchia, Mohave County Public Defender
by
Jill L. Evans, Deputy Public Defender
Attorneys for Appellant
Kingman
Thomas C. Horne, Attorney General
Phoenix
by
Kent E. Cattani, Chief Counsel
Criminal Appeals Section
and
Joseph T. Maziarz, Assistant Attorney General
Attorneys for Appellee
T H O M P S O N, Judge
¶1
Fawad
Ahmad
Sayed
(defendant)
appeals
his
conviction and sentence for public sexual indecency as to a
minor
under
the
age
of
fifteen,
a
class
5
felony.
Defendant asserts that the conviction should be reversed as
there was insufficient evidence that he acted recklessly as
to whether a minor was present under the statutory language
of Arizona Revised Statutes (A.R.S.) § 13-1403(B) (2006).
Finding no error, we affirm.
¶2
the
Defendant visited a garage sale where he spoke to
adult
woman
holding
the
sale
and
referenced
daughter, then age six, who was present.
her
Defendant made
small talk with the adult, asking her questions such as
whether she was single.
While trying to engage her in
conversation, defendant first rubbed his penis through his
sweatpants
then
exposed
himself
to
the
charged
with
adult
woman
and
masturbated.
¶3
Defendant
was
count
1,
indecent
exposure, a class 1 misdemeanor; count 2, public sexual
indecency,
a
class
1
misdemeanor;
count
3,
indecent
exposure, a class 6 felony; and count 4,
public sexual
indecency to a minor, a class 5 felony.
Defendant was
convicted by a jury on counts 1, 2 and 4.
Defendant was
sentenced to concurrent jail terms: six months for each of
the
misdemeanor
prison term on
presentence
charges
and
to
a
mitigated
1.25
the felony conviction, with 259
incarceration
credit.
2
Defendant
years
days of
timely
appealed.
Defendant challenges only the felony conviction
and asserts there was insufficient evidence that he was
reckless pursuant to A.R.S. § 13-1403(B) as to whether a
minor under the age of fifteen was “present.”
¶4
On appeal we view the evidence in the light most
favorable
to
sustaining
the
verdict
and
resolve
all
inferences against defendant.
State v. Atwood, 171 Ariz.
576,
(1992).
596,
832
P.2d
593,
613
For
there
to
be
reversible error on the sufficiency of the evidence there
must be a "complete absence of probative facts to support
the conviction."
Id. at 597, 832 P.2d at 614 (citation
omitted).
¶5
Section
public
sexual
13-1403(B)
indecency
states
to
a
“A
minor
person
if
commits
the
person
intentionally or knowingly engages in any of the [listed
acts]. . . and such person is reckless about whether a
minor under the age of fifteen years is present.”
For the
purposes of this statute, victims are “present” when they
are
within
viewing
range
of
the
defendant.
State
v.
Jannamon, 169 Ariz. 435, 438, 819 P.2d 1021, 1024 (App.
1991).
The evidence at trial was not only that the minor
was within viewing range of defendant, but that minor in
fact viewed defendant’s exposed penis.
the minor was “present.”
We find, therefore,
As to defendant’s claim that he
3
was not reckless, the evidence supports the jury’s verdict.
A person is “reckless” if that person “is aware of and
consciously
disregards
a
substantial
and
unjustifiable
risk” that a minor might be present or in viewing range.
See Jannamon, 169 Ariz. at 438, 819 P.2d at 1024; A.R.S. §
13-105(10)(c).
because
he
Defendant
referenced
her
knew
the
minor
when
talking
to
was
present
her
mother.
Further, other elementary-aged children were present in the
yard and garage area, including defendant’s own daughter.
¶6
Finding
no
error,
defendant’s
convictions
and
sentences are affirmed.
/s/
_____________________________
JON W. THOMPSON, Presiding Judge
CONCURRING:
/s/
______________________________
DANIEL A. BARKER, Judge
/s/
_____________________________
ANN A. SCOTT TIMMER, Judge
4
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