STATE v. BEGAYE

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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 DIVISION ONE FILED: 09/18/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) MICHAEL JAMES BEGAYE, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 11-0847 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-166526-001 The Honorable Lisa Daniel Flores, Judge Affirmed Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Bruce F. Peterson, Maricopa County Legal Advocate By Thomas J. Dennis, Deputy Legal Advocate Attorneys for Appellant Phoenix G O U L D, Judge ¶1 Michael James Begaye ( Defendant ) appeals from his convictions and resulting sentences for two counts of molestation of a child. Both counts are class two felonies, dangerous crimes against children. ¶2 Defendant s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this court that after a search of the entire appellate record, arguable question of law that was not frivolous. he found no Defendant was afforded the opportunity to file a supplemental brief in propria persona, but he has not done so. ¶3 Our obligation in this appeal is to review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 and -4033.A.1 (2010).1 Finding no reversible error, we affirm. Facts and Procedural History2 ¶4 In the fall of 2010, victims J.B. and E.B., who at that time were nine and eleven years old respectively, reported 1 Unless otherwise specified, we cite to the current version of the applicable statutes because no revisions material to this decision have occurred. 2 We view the evidence in the light most favorable to sustaining the convictions and resulting sentences. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 to the police their 33 year-old brother, the Defendant, them inappropriately. touched The State subsequently charged Defendant with two counts of molestation of a child. ¶5 At trial, E.B. testified that Defendant came into the bedroom where he and J.B. had been sleeping, reached under their clothing and touched their penises. E.B. testified he later told a detective that he saw Defendant put his [penis] against [J.B. s] butt. J.B. also testified at trial. In describing the subject incident, J.B. testified that he woke up and saw Defendant touching E.B. s penis; Defendant then began to touch J.B. J.B. further testified that when Defendant was touching him, Defendant s hand was moving. J.B. told Defendant to quit it, but Defendant responded you ain t the boss of me. ¶6 In response to Defendant s actions, E.B. and J.B. went to sleep with their sister, B.B., who was twelve years old at that time. A short while later, Defendant entered B.B. s bedroom and told E.B. and J.B. they shouldn t be in her bedroom. E.B. and J.B. then left B.B. s bedroom. B.B. testified after the victims left she got a feeling and got up to check on them. When B.B. went to the victims bedroom, she saw Defendant lying in bed with E.B. and J.B. ¶7 B.B. s B.B. then went back to bed. Later, around 3:30 a.m., E.B. and J.B. returned to bedroom. B.B. observed that E.B. was crying. The victims then told B.B. about how Defendant had touched them 3 earlier that night. bedroom bedroom. and told Defendant subsequently returned to B.B. s the victims they should not be in B.B. s At that time, the boys asked B.B. if she would lie down with them; B.B. agreed, grabbed her blankets and pillows, and lay down with E.B. and J.B in their bedroom.3 ¶8 At trial, B.B. denied that E.B. or J.B. had told her Defendant had touched them. told a detective touched them. the B.B. conceded, however, that she victims did advise her Defendant had B.B. explained this inconsistency by claiming that she reported the incident to the detective because she was mad at Defendant. ¶9 The evidence at trial also established that E.B., J.B. and B.B. reported the incident to their sister, C.S. C.S. testified at trial that at the time of the incident, C.S. did not live at the victim s residence. incident to the police. C.S eventually reported the After a six-day trial, Defendant was convicted on two counts of child molestation and was sentenced to presumptive count.4 The prison court terms ordered of the seventeen two years counts to as be 3 to each served B.B. told her sister, a detective and CPS Workers that Defendant left the boys room when she went in to sleep with them. However, at trial B.B. denied she saw Defendant return to his room. 4 The jury further found the state had proven the aggravating factors of emotional harm to the victims and betrayal of trust. 4 consecutively, and further ordered Defendant receive 332 days credit as to count one. Defendant timely appealed. Conclusion ¶10 We have read and considered counsel s brief, carefully searched the entire record for reversible error and found none. Clark, 196 Ariz. at 541, ¶ 49, 2 P.3d at 100. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure and substantial evidence supported the finding of guilt. There is sufficient evidence to support the jury s verdicts finding Defendant guilty on both counts of child molestation. at all Defendant was present and represented by counsel critical stages of the proceedings. At sentencing, Defendant and his counsel were given an opportunity to speak and the court imposed a legal sentence. ¶11 Counsel s representation in obligations this appeal pertaining have ended. to Defendant s Counsel need do nothing more than inform Defendant of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission petition for review. to the Arizona Supreme Court by State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant shall have thirty days from the date of this decision to proceed, if he so desires, 5 with an in propria persona motion for reconsideration or petition for review.5 /S/________________________________ ANDREW W. GOULD, Judge CONCURRING: /S/_________________________________ JOHN C. GEMMILL, Presiding Judge /S/_________________________________ PETER B. SWANN, Judge 5 Pursuant to Arizona Rule of Criminal Procedure 31.18(b), Defendant or his counsel has fifteen days to file a motion for reconsideration. On the court s own motion, we extend the time to file such a motion to thirty days from the date of this decision. 6

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