STATE v. PRASAD
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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. ARVIN PRASAD, Appellant. ) ) ) ) ) ) ) ) ) ) ) 1 CA-CR 10-0186 DIVISION ONE FILED: 07/31/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-141535-001 DT The Honorable Christopher T. Whitten, Judge AFFIRMED Thomas C. Horne, 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 Tennie B. Martin, Deputy Public Defender Attorneys for Appellant Phoenix P O R T L E Y, Judge ¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant Arvin Prasad has advised us that, after searching the entire record, she has been unable to discover any arguable questions of law, and has filed a brief requesting us to conduct an Anders review of the record. Defendant was given the opportunity to file a supplemental brief but has not filed one. FACTS 1 ¶2 Defendant owned a dry cleaning and alterations shop. He hired H., a college student, to work for him during her 2009 summer break. One week after she started, he asked her to come to work early. When she arrived, he took her to a restaurant and had after they lunch, drove her to his friend s house. There, under the guise of getting work receipts, he led her to one of the bedrooms, embraced her, and moved toward the bed. She hit him in the groin and across the face to get away because she felt like [he was] not letting go. She also told him that she was quitting. ¶3 The following month, Defendant hired L., a seventeen- year-old high school student, 2 and asked her to work on a day the shop appeared to be closed. Soon after she arrived, Defendant asked her if she drank alcohol. two shots of liquor and She said yes, and he poured her prepared 1 a mixed drink, which she We view the facts in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant. State v. Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997) (citation omitted). 2 L. s age appeared in her work application. 2 consumed. Defendant then drove her to get lunch. Afterward, he took her to the same house where he had taken H., led her to a bedroom, and sexually assaulted her. 3 ¶4 her L. testified that, after the assault, Defendant drove around asked. aimlessly While instead stopped at of a taking red her light, home she as she noticed had police officers parked at a gas station and attempted to get out of the car. Defendant, however, grabbed her hand and refused to let her out. He subsequently drove to visit his former attorney, who called a taxi for her after hearing that she wanted to go home. ¶5 Meanwhile, L. s mother had called the police because her daughter had not responded to phone calls or text messages over the course of several hours. She told officers that she had been to Defendant s shop twice that day looking for L. but it had been locked and empty even though L. s car was parked outside. When an officer called Defendant that evening to ask about L., he indicated she had left the shop with her friends, but was unable to describe any of them. The officers subsequently drove to the shop and spotted L. s purse and cell phone on the counter inside. The officer called Defendant again to ask if he would come and unlock the shop so that they could 3 Defendant placed his body on top of L. and inserted his penis into her vagina even though L. told him to stop. 3 retrieve L. s personal items, but he declined and abruptly ended the conversation when the officer attempted to ascertain what time L. left work. ¶6 The officers subsequently learned that L. had returned home after being assaulted, and arranged for her to be examined by a pediatric nurse practitioner. Her urinalysis revealed that she had likely consumed alcohol, and the officer who conducted a forensic interview noted that she may have been intoxicated. Police later found a liquor bottle label in the shop s trash and a half-empty bottle of alcohol in the house where L. had been assaulted. ¶7 Defendant was arrested the following day. Defendant contributing to was the charged delinquency with of and a convicted child, a class of: 1 misdemeanor; sexual assault, a class 2 felony; kidnapping, a class 2 felony; unlawful imprisonment, a class 6 felony; false reporting to a law enforcement agency, a class 1 misdemeanor; and assault (of H.), a class 3 misdemeanor. 4 Additionally, the jury found as aggravating circumstances that the offenses caused physical, involved emotional, an abuse of or a financial position harm of to trust. the victim and Defendant was sentenced to fourteen years in prison, followed by seven years 4 Defendant was also charged with sexual assault (to wit: digital-vaginal contact), a class 2 felony, and assault (of V.), a class 3 misdemeanor, but both charges were later dismissed. 4 of probation, and received credit for 256 days of presentence incarceration. 5 ¶8 We have jurisdiction over this appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1) (West 2012). DISCUSSION ¶9 Defendant has asked his attorney to raise the following issues on his behalf: insufficiency of the evidence, and prosecutorial misconduct and perjured testimony. We will address each issue in turn. I. Sufficiency of the Evidence ¶10 Defendant argues that the verdict was not supported by the evidence. of fact could Evidence is sufficient if . . . a rational trier have found guilt beyond a reasonable doubt. State v. Rienhardt, 190 Ariz. 579, 588, 951 P.2d 454, 463 (1997) (citation omitted). the evidence verdict, and in the resolve In reviewing its sufficiency, we examine light all most favorable reasonable 5 to sustaining inferences against the the Defendant was sentenced to six months in jail for contributing to the delinquency of a child and false reporting to a law enforcement agency; an aggravated sentence of fourteen years in prison for sexual assault; an aggravated term of two years in prison for unlawful imprisonment; thirty days in jail for assault (of H.); and seven years of probation for kidnapping. The sentences for each crime other than kidnapping were ordered to run concurrently; probation was ordered to run consecutively to all of the other counts. 5 defendant. Id. at 588-89, 951 P.2d at 463-64 (citation omitted). ¶11 To convict Defendant of contributing to the delinquency of a child, the State had to prove that Defendant caused, encouraged, or contributed person under eighteen years of age. 2012). 6 to the delinquency of a A.R.S. § 13-3613 (West Delinquency includes any act that tends to debase or injure the morals, health or welfare of a child. 3612(1) (West 2012). A.R.S. § 13- At trial, L. testified that she consumed alcohol provided by Defendant when she was seventeen years old. The State also offered evidence that L. was under the influence of alcohol when she spoke with the police, and her urinalysis results indicated that she had consumed alcohol. Thus, there was sufficient evidence that Defendant provided alcohol to a minor in violation of a state law, which supports the conviction for contributing to the delinquency of a child. 7 See Loveland v. State, 53 Ariz. 131, 132, 141, 86 P.2d 942, 942-43, 946 (1939) (affirming defendants convictions for contributing to the delinquency of a child based on furnishing alcohol to a minor); see also State v. Cutshaw, 7 Ariz. App. 210, 219, 437 P.2d 962, 6 Absent material revisions after the date of an alleged offense, we cite a statute s current version. 7 Defendant violated, and facilitated L. s violation of, A.R.S. § 4-244(9) (West 2012). See also A.R.S. § 4-246(B) ( A person violating § 4-244, paragraph 9, . . . is guilty of a class 1 misdemeanor. ). 6 971 (1968), superseded in part by Ariz. R. Crim. P. 15 (causing or encouraging child to violate law does not automatically violate contributing statute, but may be relevant to whether defendant s conduct impaired child s morals, health, or welfare). ¶12 To convict Defendant of sexual assault, the State was required to prove that he intentionally or knowingly engaged in sexual intercourse 13-1406(A) Defendant (West with L. 2012). inserted his without The penis her State into consent. presented L. s protest and while she was intoxicated. A.R.S. evidence vagina § that despite her The evidence, therefore, supports the jury s verdict. ¶13 To demonstrate that Defendant committed the crime of kidnapping, the State was required to prove that he knowingly restrained L. with the intent to sexually assault her or to otherwise aid in the commission 13-1304(A)(3) (West 2012). of a felony. A.R.S. § Here, the State presented evidence that Defendant restrained L. by lying on top of her and sexually assaulting her. Additionally, the jury could have inferred the requisite intent from testimony indicating that Defendant had planned to bring L. to his friend s house several days prior to the assault. Consequently, there was sufficient evidence to convict Defendant. 7 ¶14 To prove unlawful imprisonment, the State was required to show that Defendant knowingly restrain[ed] another person. A.R.S. § 13-1303(A) (West 2012). L. testified that Defendant grabbed her arm to prevent her from getting out of his car at a stop light after he refused to take her home. Thus, the jury could conclude that Defendant restrained L. against her will, in violation of § 13-1303. See Boies v. Raynor, 89 Ariz. 257, 259, 361 P.2d 1, 2 (1961) (citations and internal quotation marks omitted) ( The essential element of [unlawful] imprisonment is the direct restraint of personal liberty or the freedom of locomotion by force or fear of force.). ¶15 To convict Defendant of false reporting to a law enforcement agency, the State had to prove that he knowingly made a false statement or misrepresented a fact to the police for the purpose of interfering with the orderly operation of a law enforcement agency or misleading a peace officer. 13-2907.01(A) (West 2012). A.R.S. § On the day of the assault, while the police were looking for the young lady, Defendant told police that L. had left his shop with her friends. however, corroborated L. s testimony that Defendant until a cab brought her home. Other witnesses, she had been with The jury was in the best position to evaluate the witnesses credibility, and it apparently Defendant. resolved any conflicts in the testimony against State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 8 610, 624 (1996) (citation omitted) (jury determines witnesses credibility); State v. Williams, 209 Ariz. 228, 231, ¶ 6, 99 P.3d 43, 46 (App. 2004) (citation omitted) (resolving conflicts in evidence and assessing credibility of witnesses is purview of the jury). We find sufficient evidence in the record to sustain the jury s verdict. ¶16 Finally, to convict Defendant of assault, the State was required to prove that he knowingly touched H. with the intent to injure, insult 13-1203(A)(3) (West 2012). her and attempted to or provoke her. A.R.S. § H. testified that Defendant embraced force her toward the bed until she physically resisted his advances by hitting him in the groin and face. Accordingly, sufficient evidence existed to convict Defendant of assault. II. Prosecutorial Misconduct and Perjured Testimony ¶17 Defendant also raises, for the first time on appeal, prosecutorial testimony. the State s proceedings, misconduct and the 561, of perjured Defendant does not, however, provide any examples of misconduct and our or direct review of fundamental error or prejudice. Ariz. admission 567, ¶ 19, 115 P.3d omitted). 9 us the to any record portion does not of the reveal See State v. Henderson, 210 601, 607 (2005) (citations ¶18 We have read and considered counsel s brief, and have searched the entire record for reversible error. Ariz. at 300, 451 P.2d at 881. We find none. See Leon, 104 The record, as presented, reveals that all of the proceedings were conducted in compliance Defendant with was the Arizona represented Rules by of counsel Criminal at all Procedure. stages of the proceedings and the sentences imposed were within the statutory limits. CONCLUSION ¶19 Accordingly, sentences. obligation After to we affirm Defendant s this decision has represent Defendant in been this convictions filed, appeal and counsel s has ended. Counsel must only inform Defendant of the status of the appeal and Defendant s future options, unless counsel identifies an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 585, 684 P.2d 154, 157 (1984). for reconsideration Defendant may, if desired, file a motion or petition for review pursuant to the Arizona Rules of Criminal Procedure. /s/ _____________________________ MAURICE PORTLEY, Judge CONCURRING: /s/ ________________________________ JON W. THOMPSON, Presiding Judge 10 /s/ _____________________________ JOHN C. GEMMILL, Judge
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