STATE v. ANDERSON

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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. IRA JOE ANDERSON, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 10/02/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 11-0396 1 CA-CR 11-0497 (Consolidated) DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-005422-001 The Honorable Karen L. O Connor, Judge AFFIRMED AS MODIFIED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section And Adriana M. Zick, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Terry J. Adams, Deputy Public Defender Attorneys for Appellant Phoenix Phoenix K E S S L E R, Judge ¶1 Ira Joe Anderson ( Anderson ) filed this appeal in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following his convictions of conspiracy to commit first degree murder, a class 1 felony, and conspiracy to commit kidnapping, a class 2 felony. ¶2 Finding counsel no requested arguable that fundamental error. issues this to Court raise, search the Appellant s record for Appellant was given the opportunity to, but did not submit a pro per supplemental brief. For the reasons that follow, we affirm Appellant s conviction but modify his sentence to reflect an increase to his presentence incarceration credit and modify the restitution order to reflect a decrease to the award. FACTUAL AND PROCEDURAL HISTORY ¶3 Anderson conduct with a was charged minor, one with count seven of counts of sexual conspiracy to commit kidnapping, and one count of conspiracy to commit first degree murder. These charges arose out of allegations made by Anderson s stepdaughter ( K.S. ) to police in September 2009. K.S. alleged that Anderson had been sexually abusing her since she was approximately twelve years old. After K.S. had reported the series abuse to police, Anderson made a of phone calls throughout a five-day period to a friend who later became a confidential informant. During these phone calls, Anderson conspired to kidnap and kill K.S., her sister ( C.S. ), and her mother ( Mother ). These phone calls were recorded by police, 2 and in October 2009, Anderson was arrested. ¶4 At trial, K.S. testified that Anderson s first sexual contact with her occurred during a stretching routine when she was twelve years old. K.S. testified that from age thirteen to age seventeen, Anderson had sexual intercourse with her at least three to four times per week. When K.S. was approximately sixteen years old, she began traveling with Anderson to perform at fairs and other events outside of Arizona. When K.S. was approximately seventeen, she moved with Anderson to Las Vegas, Nevada to take a job at an online radio station in hopes of advancing her music career. one bedroom Anderson apartment continued While in Las Vegas, K.S. shared a with to Anderson. have sexual K.S. testified intercourse with that her frequently while they lived together in Las Vegas, but because she was becoming more independent, she was able to refuse him on some occasions. ¶5 K.S. testified that at some point after moving to Las Vegas, Anderson became angry when K.S. refused his advances, and an argument ensued. K.S. testified that she attempted to leave the apartment through the front door, but Anderson blocked the door and pushed her down. She testified that she took her cell phone, went out the patio door, and escaped to the roof of the building where she called her mother and told her about the sexual abuse that had been occurring 3 for the previous four years. The next day, Mother arrived in Las Vegas, and she and K.S. reported the sexual abuse to a Las Vegas police officer. The Las Vegas police contacted Scottsdale police, and on approximately September 8, 2009, Scottsdale police took over the investigation. ¶6 Soon after K.S. and Mother had reported the abuse to police, Anderson contacted a friend ( Fully ) to ask him for help in kidnapping and killing K.S. and her family. Fully contacted K.S. and Mother to warn them, and they arranged to record the next phone call between Fully and Anderson. On September 30, 2009, Fully called Anderson while K.S. was also on the line recording the conversation. During that conversation, Anderson again asked Fully to kill K.S. and her family. Mother contacted the police to give them the recording of that phone call, and police asked Fully to assist in the investigation as a confidential informant. ¶7 As part of the investigation, Fully agreed to record a series of phone calls to Anderson, which were transcribed and entered into evidence at trial. During the first recorded phone call on September 30, 2009, Anderson told Fully to take [K.S.] out in the desert and . . . bury her . . . so they never find her. K.S. Anderson initially agreed to pay Fully $1,000 to kill During a phone call on October 1, 2009, Anderson changed his plan from murder to kidnapping, and offered to pay Fully 4 $2,000. On October 2, 2009, Anderson changed his plan again and asked Fully to kill K.S. and her family. Despite the changes in the plan, Fully testified that there was always discussion of murder. After the last phone call, Fully believed based on their conversations that the possibility of murdering [K.S.] was still on the table. Fully confirmed during his testimony that at no time did Anderson suggest going to the police or involving anyone else to stop his plan. ¶8 Anderson was found guilty of the conspiracy charges, but the jury could not come to agreement as to the remaining seven sexual conduct charges and the court declared a mistrial as to those counts. Anderson was sentenced to life imprisonment with the possibility of parole after 25 years for conspiracy to commit first conspiracy to degree murder and commit kidnapping a to five be year served sentence for consecutively. After a restitution hearing, Anderson was also ordered to pay restitution to the victim s family in the amount of $2,105.98. STANDARD OF REVIEW ¶9 In an Anders appeal, this Court must review the entire record for fundamental error. State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Fundamental error is error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have 5 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)). the defendant prejudice. must also demonstrate To obtain a reversal, that the error caused Id. at ¶ 20. DISCUSSION ¶10 After careful review of the record, we find no grounds for reversal of Anderson s convictions. The record reflects Anderson had a fair trial and all proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. Appellant was present and represented at all critical stages of trial, was given the opportunity to speak at sentencing, and the sentences imposed were within the range for Appellant s offenses. I. SUFFICIENCY OF THE EVIDENCE ¶11 In [w]e reviewing construe the the sufficiency evidence in the of light evidence most at trial, favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant. State v. Greene, 192 Ariz. 431, 436, ¶ 12, (1998). 967 P.2d insufficiency 106, of 111 the evidence Reversible occurs only error where based there is on a complete absence of probative facts to support the conviction. State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 6 1118-19 (1976)). A. ¶12 Conspiracy to Commit First Degree Murder There is sufficient evidence in the record to support the jury s conviction of Anderson for the crime of conspiracy to commit first degree murder. A person commits conspiracy if: [W]ith the intent to promote or aid the commission of an offense, such person agrees with one or more persons that at least one of them or another person will engage in conduct constituting the offense and . . . an overt act shall not be required if the object of the conspiracy was to commit any felony upon the person of another . . . . Ariz. Rev. Stat. ( A.R.S. ) § 13-1003(A) (2010).1 The State need not prove the conspirators actually committed the offense; one may be convicted as a conspirator on proof that he intended the act and agreed to promote or facilitate the act. Evanchyk v. Stewart, 202 Ariz. 476, 480, ¶ 15, 47 P.3d 1114, 1118 (2002). It is a defense to conspiracy that the defendant voluntarily renounced his criminal intent by making a reasonable effort to prevent the conspiracy. conduct or result which is A.R.S. § 13-1005(A) (2010). the object of the An effort to prevent the conduct or result is not considered reasonable unless it is substantial. ¶13 or A.R.S. § 13-1005(D). A person commits first degree murder if [i]ntending knowing that the person s conduct 1 will cause death, the We cite the current versions of the applicable statutes when no revisions material to this decision have since occurred. 7 person causes the death . with A.R.S. § 13-1105(A)(1) (2010). premeditation . . . . of another person . . Any agreement with another to kill a third person constitutes the premeditation element of first degree murder. Evanchyk, 202 Ariz. at 479, ¶ 10, 47 P.3d at 1117. ¶14 The recorded phone calls between Anderson and Fully reveal Anderson s intention to have K.S. killed. During the first call, Anderson stated, You need to take her out in the desert and do it out there and bury her . . . so they never find her. Then they can t call it a murder if they never find em. During that same call, he offered to pay $1,000 to each of the men Fully offered to hire to help him kill K.S. On October 2, 2009, Anderson confirmed that the plan was to murder K.S. and her family and bury their bodies. Fully s testimony confirmed Anderson s plan was to kill K.S. ¶15 record As that discussed above, there Anderson renounced his is some plan to intended only to kidnap her and her family. evidence kill in the K.S. and However, it is clear from the transcript of the October 2, 2009 phone call at 12:00 p.m. that Anderson had changed his plan back to murder: [I]f it was my way, I would kill all three of them and bury them. So they ll never be found. . . . But . . . I don t want them to say I m changing plans again. He then confirms with Fully that the plan has changed to murder: 8 [T]hey got to bury they ass though, so they ll never be found. . . . [B]ut they don t find them, they can t question nobody. . . . Like we said the first time, . . . at a desert, like way deep. During a later phone call that same day, Anderson confirmed, [W]e ain t changing no plans. It stands just like we said. At no point during the last four phone calls that followed did Anderson change the sufficient plan back evidence to for kidnapping a jury to only. find Thus, that there Anderson is had conspired to commit first degree murder. B. ¶16 Conspiracy to Commit Kidnapping There is evidence in the record to support the jury s conviction of Anderson for the crime of conspiracy to commit kidnapping. restraining A another person person commits with the kidnapping intent to: by 1) knowingly Hold the victim for ransom, as a shield or hostage; or . . . 3) Inflict death, physical injury or a sexual offense on the victim . . . . A.R.S. § 13-1304(A) (2010). Both Fully s testimony and the transcript of the recorded calls establish Anderson planned to kidnap K.S. and C.S. with the intent to obtain money from Mother and with the intent to murder. The transcripts reveal that initially, Anderson intended to kidnap K.S. and C.S. for the purpose of extorting Mother for money, and ultimately that he intended to kidnap K.S., C.S. and Mother for the purpose of killing them. Thus, there is sufficient evidence in the record 9 to support Anderson s conviction of conspiracy to commit kidnapping. II. PRESENTENCE INCARCERATION CREDIT ¶17 Presentence spent in custody incarceration beginning on the credit day is of given for booking, time State v. Carnegie, 174 Ariz. 452, 454, 850 P.2d 690, 692 (App. 1993), and ending on the day before sentencing, Ariz. 244, 246, 735 P.2d 854, 856 State v. Hamilton, 153 (App. 1987). Anderson received 597 days of presentence incarceration credit. Anderson was in custody from his arrest on October 4, 2009 until his sentencing on May 25, 2011. The record indicates Anderson was in custody 598 days, excluding the date he was sentenced. While Anderson s total time incarcerated prior to sentencing was 598 days, he only received a credit of 597 days. We, therefore, modify the sentence to reflect this correction. III. RESTITUTION ORDER ¶18 A restitution Mother requested K.S., and $2,005.64 expenses: C.S. for hearing Anderson pay suffered. K.S. s was held $4,665.67 Mother losses, which in for June the 2011, losses specifically included the and she, requested following 1) physicians exams, 2) psychological counseling, and 3) cost of traveling to and from counseling sessions and doctors appointments. Mother requested additional amounts related to losses she and C.S. suffered including the cost of 10 $100.34 to change the locks to her home. Anderson pay restitution in the amount The court ordered of $2,105.98, which included the $2,005.64 requested for all of K.S. s losses and $100.34 requested for the cost of changing the locks. ¶19 A trial court may impose restitution only on charges for which a defendant has been found guilty, to which he has admitted, or for which he has agreed to pay. State v. Lewis, 222 Ariz. 321, 324, ¶ 7, 214 P.3d 409, 412 (App. 2009) (quoting State v. Garcia, 176 Ariz. 231, 236, 860 P.2d 498, 503 (App. 1993)). A loss is recoverable as restitution if it meets three requirements: (1) the loss must be economic, (2) the loss must be one that the victim would not have incurred but for the criminal conduct, and (3) the criminal conduct must directly cause the economic loss. State v. Madrid, 207 Ariz. 296, 298, ¶ 5, 85 P.3d 1054, 1056 (App. 2004). found guilty committing of sexual the sexual abuse, abuse and did Because Anderson was not crimes, not did not admit to agree to pay the restitution, he is only responsible for the economic loss K.S. suffered as a direct result of the conspiracy crimes. ¶20 During the restitution hearing, Mother testified that the counseling K.S. received was intended to treat both the trauma caused by the sexual abuse and the trauma caused by the conspiracy against her. However, two of the sessions and the related travel expenses for which Mother was reimbursed occurred 11 on September 22, 2009 and September 29, 2009, before the first recorded conversation documenting the conspiracy. There is no evidence in the record that K.S. knew of the conspiracy against her when she received counseling on those two days. Furthermore, Mother was reimbursed for two doctors appointments and related travel expenses that, based on Mother s testimony, related only to the sexual abuse charges. The parties were ordered to file briefs pursuant to Penson v. Ohio, 488 U.S. 75 (1988) to address the issue of whether Mother is entitled to reimbursement for those costs. ¶21 The State argues that Mother is entitled to restitution related to the sexual abuse charges because, using a preponderance of the evidence standard, sufficient evidence established Anderson committed sexual abuse and was, therefore, responsible for the losses caused by those acts. The State incorrectly cites State v. Lindsley, 191 Ariz. 195, 197, 953 P.2d 1248, 1250 (App. 1997) to argue that a court may impose restitution related to an offense on which the jury was hung. In Lindsley, although the defendant was not charged with theft of the wallet, the court imposed restitution for the damage to the wallet because the defendant admitted under oath to stealing it. Lindsley, 191 Ariz. at 197, 953 P.2d at 1250. Arizona law is clear that a defendant can be ordered to pay restitution for crimes to which he admits. Garcia, 176 Ariz. at 236, 860 P.2d 12 at 503. Contrary to the State s argument, in Lindsley, the court did not hold a defendant can be ordered to pay restitution for a crime to which he did not admit and of which he was not convicted after adjudication. In fact, the court specifically found the defendant not responsible for restitution related to missing jewelry because the defendant neither admitted theft of the jewelry nor was convicted of that offense, and did not agree to pay restitution for this loss. Lindsley, 191 Ariz. at 197, 953 P.2d at 1250. ¶22 The State also cites In re Stephanie B., 204 Ariz. 466, 470, ¶15, 65 P.3d 114, 118 (App. 2003) to argue the burden of proof applicable to a restitution claim is proof by a preponderance of the evidence, and using that standard, evidence established Anderson committed the sexual abuse. In Stephanie B., the court used the preponderance of the evidence standard to find that the criminal conduct for which the defendant already convicted directly caused the victim s losses. 16. was Id. at ¶ The court did not use a preponderance of the evidence standard to find that the defendant committed acts for which she was not convicted. for restitution, The court held that to be held responsible a defendant must be found guilty of criminal conduct which causes the victim economic loss: [D]ue to the differing burdens of proof, a restitution award is not barred because the juvenile has been found not delinquent on a charged offense so long as 13 some the juvenile is found delinquent of another criminal offense that properly supports the award. Stephanie s acquittal on the [first assault] charge was accordingly not a bar in light of the [second assault charge] adjudication. Id. at ¶ 17; see also Lewis, 222 Ariz. at 325, ¶ 11, 214 P.3d at 413 ( [T]he government must prove that a particular loss would not have occurred but for the conduct underlying the offense of conviction, and that the causal nexus between the conduct and the loss is not too attenuated . . . . (citation and internal punctuation omitted) (emphasis added)). ¶23 of In the case before us, Anderson was not found guilty any criminal conduct that caused K.S. to seek medical examinations, which Mother testified were only related to the alleged sexual abuse. Furthermore, Anderson was not found guilty of any criminal conduct that would have caused K.S. to seek counseling against to her There her. prior is learning no evidence about K.S. the knew conspiracy about the conspiracy prior to the September 22, 2009 and the September 29, 2009 counseling sessions, and as such, the State has not met its burden to show those sessions were directly related to the criminal conduct for which Anderson was convicted. ¶24 Finally, conviction sexual alone abuse was conspiracy crime. the State supports the argues the that restitution underlying criminal the order conspiracy because conduct of the the The State cites its own theory that Anderson 14 conspired to kill K.S. to ensure she would not reveal the sexual abuse. However, Anderson testified that his goal was not to silence K.S., but to force her to confess that she lied about the sexual abuse. Given the jury s failure to convict Anderson on the sexual assault charges, it cannot be inferred that the jury believed conspiracy. the sexual abuse was the motive for the Thus, losses caused by the alleged sexual abuse cannot support a restitution claim. ¶25 by Requiring a defendant to make payments not authorized law constitutes an illegal sentence. See State v. Lewandowski, 220 Ariz. 531, 535, ¶ 11, 207 P.3d 784, 788 (App. 2009). An illegal sentence constitutes fundamental error. State v. Zinsmeyer, 222 Ariz. 612, 623, ¶ 26, 218 P.3d 1069, 1080 (App. 2009). Accordingly, we affirm in part and vacate in part the restitution order consistent with this decision. CONCLUSION ¶26 For the foregoing reasons, we affirm Anderson s conviction but modify his sentence to grant him 598 days of presentence restitution related to incarceration order K.S. s in the credit. amount counseling We of affirm $1,606.95 treatment beginning 2009 and for the expense of replacing the locks. order of restitution in the amount of $499.03 Anderson s for expenses November 3, We vacate the for expenses related to K.S. s physician s exams on September 15, 2009 and 15 October 22, 2009 and K.S. s counseling sessions on September 22, 2009 and September 29, 2009.2 defense counsel shall Upon the filing of this decision, inform Anderson of appeal and his future appellate options. the status of his Defense counsel has no further obligations, unless, upon review, counsel finds an issue appropriate for submission petition for review. to the Arizona Supreme Court by See State v. Shattuck, 140 Ariz. 582, 584- 85, 684 P.2d 154, 156-57 (1984). Upon the Court s own motion, Appellant shall have thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review. /S/ DONN KESSLER, Judge CONCURRING: /S/ DIANE M. JOHNSEN, Presiding Judge /S/ LAWRENCE F. WINTHROP, Judge 2 This amount includes the following expenses: $85.36 for the September 15, 2009 physician s exam, $125.38 for the October 22, 2009 physician s exam, $6.35 for travel costs to and from those doctor s appointments, $150.00 for the September 22, 2009 counseling session, $115.00 for the September 29, 2009 counseling session, and $16.94 for travel costs to and from those two counseling sessions. 16

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