STATE v. WIGGINS

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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. ) ) MARCUS EARL WIGGINS, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 11/01/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-CR 11-0677 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-008116-001 The Honorable Roger E. Brodman, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Thomas K. Baird, Deputy Public Defender Attorneys for Appellant Phoenix S W A N N, Judge ¶1 Defendant Marcus Wiggins appeals from his conviction for sexual conduct with a minor. appeal under This case comes to us as an Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Defendant s appellate counsel has searched the record on appeal, found no arguable nonfrivolous question of law, and asks us to review the record for fundamental error. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Defendant has submitted a brief in propria persona in which he raises issues on appeal. ¶2 We have searched the record for fundamental error and find none. Accordingly, we affirm. FACTS AND PROCEDURAL HISTORY ¶3 In December intentionally oral sexual or 2010, knowingly contact with Defendant engaging his in was sexual stepdaughter, indicted for intercourse who was a or minor (Count 1), and three counts of sexual abuse: sexual contact, breast (Count 2); sexual contact, penis/thigh (Count 3); and sexual contact, vagina (Count 4). ¶4 At following trial, facts. the On state the presented evening of evidence February of 2, the 2010, Defendant s stepdaughter, J., was on the phone speaking to her friend and boyfriend in her brother I. s room. I. eventually left been to take a heavily, came into sexual innuendos shower. to the Defendant, room, her. who had yanked J. s hair, Defendant then forced and uttered to the ground, got on top of her and put his hand up her shirt. He 2 J. drinking then attempted to pull down both his and J. s pants. Although he was unable to pull down her pants, he proceeded to mimic sexual intercourse and kiss her neck. Defendant away but was unsuccessful. returned to the room and J. tried to push J. screamed for I., who attempted to push Defendant Defendant ultimately separated himself from J. away. When she heard the scream, L., Defendant s wife and J. s mother, went upstairs to investigate. After Defendant and L. argued downstairs, L. returned upstairs and told J. and I. that they needed to call the police. She left with her youngest daughter, E. -- she did not want to face the police because she was on probation and had been impermissibly drinking. ¶5 Approximately ten minutes later, the police arrived at the house. The police separated J. and I. from Defendant, and took Defendant to question him. After speaking with Defendant, the police placed him under arrest and put him in the back of the police vehicle. Officer Tiona testified that on the way to the 4th Avenue Jail, Defendant said I don t see what the big deal was. I only rubbed on her leg, and I [had] been drinking a little bit tonight and I was getting a little touchy-feely. Defendant was released subject to the supervision and restrictions of the electronic monitoring program. ¶6 After considering the evidence, Defendant guilty of Counts 1 and 3. 3 the jury found Defendant filed a motion for new trial, which the court denied. Defendant was sentenced to 3.5 years in prison for Count 1 and 1.25 years in prison for Count 3, to be served concurrently. Defendant was given 174 days of presentence incarceration credit. ¶7 Defendant moved to vacate the conviction on Count 3, arguing that his dual convictions as to Counts 1 and 3 violated double jeopardy. The court granted the motion, and vacated the conviction on Count 3. and sentence supplemental Section 9 on Count brief. of Defendant timely appealed his conviction the 1. We On have Arizona August 8, 2012, jurisdiction Constitution under and he filed Article A.R.S. a 6, §§ 12- 120.21(A)(1), 13-4031, and 13-4033(A)(1). DISCUSSION I. REWEIGHING OF EVIDENCE ¶8 Defendant because [t]he witnesses contends statements were that the witnesses state [i]nconclusive lied rec[ei]ved and under from all contradicted oath its the statements . . . given to the detectives who investigated the allegations. Defendant also requests that this court review the [t]rial transc[r]ipts and rule in favor [of] the defendant. ¶9 the Defendant s argument is unavailing. case away from the jury by reviewing We must not take the record for evidence supporting a conclusion or inference different from the resulting decision. Flanders v. Maricopa Cnty., 203 Ariz. 368, 4 371, ¶ 5, 54 P.3d 837, 840 (App. 2002). reweigh the evidence because the jury and could Courts are not free to set aside the jury have drawn different verdict merely inferences or conclusions or because judges feel that other results are more reasonable. Id. (citation omitted). The jury, as the finder of fact, found against Defendant on legally sufficient evidence. We do not reweigh the evidence presented to the trial court to reach the opposite conclusion. II. REMAINING ISSUES ¶10 The record reveals no fundamental error. The record reflects that Defendant received a fair trial. The proceedings complied Procedure, with the Arizona Rules of Criminal and Defendant was present and represented by counsel at all stages. The record of voir dire does not demonstrate the empanelment of any biased jurors, and the jury was properly composed of eight jurors and three alternates. A.R.S. § 21-102(B). See Ariz. R. Crim. P. 18.1(a); The evidence that the state presented at trial was properly admissible, and the jury instructions were proper. CONCLUSION ¶11 find none. ¶12 We have reviewed the record for fundamental error and See Leon, 104 Ariz. at 300, 451 P.2d at 881. Defense counsel s appeal have come to an end. obligations pertaining to this See State v. Shattuck, 140 Ariz. 5 582, 584-85, 684 P.2d 154, 156-57 (1984). Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme Court, counsel must only inform Defendant of the status of this appeal and his future options. Id. Defendant has 30 days from the date of this decision to file a petition for review in propria persona. Ariz. R. Crim. P. 31.19(a). Upon the court s own motion, he has 30 days from the date this of decision in which to file a motion for reconsideration. /s/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ JOHN C. GEMMILL, Presiding Judge /s/ ____________________________________ ANDREW W. GOULD, Judge 6

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