STATE v. HARDIN

Annotate this Case

Download PDF

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. ) ) GREGORY MICHAEL HARDIN, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 4/23/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-CR 12-0079 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-131263-001 The Honorable Dawn M. Bergin, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General by Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant Phoenix S W A N N, Judge ¶1 Defendant Gregory Michael Hardin appeals from his convictions of three counts of indecent exposure to a minor under fifteen years of age. This case comes to us as an appeal under 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 was given the opportunity to file a supplemental brief in propria persona but did not do so. He did, however, ask his counsel to raise several issues for consideration on appeal. ¶2 We have searched the record for fundamental error and considered the issues fundamental error. identified by Defendant. We find no pursuant to Accordingly, we affirm. FACTS AND PROCEDURAL HISTORY ¶3 In June 2011, Defendant was indicted A.R.S. § 13-1402 for three counts of indecent exposure to three minors under the age of fifteen. At trial, the state presented evidence of the following facts. ¶4 Three young girls were visiting a family member s home in Chandler, Arizona. They decided to walk to the community lake nearby where the girls often played. Walking to the lake, the girls saw Defendant lying on a neighbor s driveway.1 1 The Defendant testified that he was injured and decided to rest on the driveway at the neighbor s home. After the incident with 2 girls described Defendant as being bald, not wearing a shirt, and wearing dark blue basketball shorts. Defendant then proceeded to stand up, pull down his pants and expose his penis. The girls watched for a few seconds and then ran back to the relative s home, where they reported the incident. Relatives called the police. ¶5 park The police issued an Attempt to Locate ( ATL ), and a ranger Defendant. responded, The stating police then that he was generated in a contact with black-and-white photographic lineup, with Defendant s picture included. Because the neighbor picked Defendant from the photographic lineup, the police, who had located Defendant after the park ranger s response to the ATL, proceeded to arrest him. ¶6 At the conclusion of the defense counsel filed a Rule 20 motion.2 state s case-in-chief, The court denied the motion, but noted that the testimony from the witnesses has been scattered and inconsistent and [the court] found i[t] not the girls, Defendant and the neighbor briefly interacted, and the neighbor then entered his home, leaving Defendant alone outside. 2 Defense counsel argued that there was insufficient evidence to convict Defendant because two of the girls did not actually see Defendant expose his penis, there was inconsistent testimony regarding whether the shorts had a flap or a drawstring and whether Defendant was standing or lying down when he exposed his penis, and there was inconsistent evidence regarding the color of the shorts Defendant was wearing. 3 to be particularly credible. After hearing closing arguments and considering the evidence, the jury found Defendant guilty of all three counts. The jury further found that the victim in each count was under the age of fifteen. ¶7 Before the sentencing hearing, the state waived the aggravation phase of the case. felonies, the court found Although Defendant had two prior that those two felonies were not aggravators for sentencing in this case, and one felony was not a historical numbered several prior A.R.S. § mitigating felony conviction 13-703(B)(2).3 factors.4 under the statute Further, the court First, the court found now found that Defendant s mental health was a mitigating factor because it 3 The state proved to the court that Defendant had two prior felony convictions that both occurred on February 24, 2004: unlawful flight from a law enforcement vehicle, a class 5 felony, and aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs ( Aggravated DUI ), a class 4 felony. The court determined that for the purposes of sentencing, the Aggravated DUI conviction was a historical prior felony conviction, but the unlawful flight from a law enforcement officer was not. However, although the state s recommendation in the presentence report was that the court impose[] greater than the presumptive term with concurrent terms for each count, the court found that it could not do so because it did not have any aggravators in this case. 4 Defendant contends that the court erred in denying his Rule 20 motion. We disagree. The judge did find that there had been inconsistencies in the state s evidence, but concluded that she was not here to usurp the role of the jury in determining facts, and that reasonable minds could differ on the conclusions that the evidence could support. The judge factored her concerns into Defendant s mitigated sentence. 4 believe[d] that that s contributed to his homelessness, and if he hadn t been homeless he wouldn t have had the need to walk around the neighborhood, and he would have a place to stay and would be probably able to maintain stable employment. Second, the court found a mitigating circumstance because two of the victims did not see the exposure; the court also found this as a basis to impose sentences. concurrent sentences rather than consecutive Finally, the court found a mitigating circumstance due to the fact that there was quite a distance from where [the youngest victim] saw [Defendant]. ¶8 in Because the court found that there were no aggravators the case sentenced and there Defendant to a were mitigating mitigated circumstances, sentence of one prison for each count, to be served concurrently. year it in The court also imposed community supervision equal to one day for every seven days of the sentence to be served consecutively to the actual period of imprisonment. failure to abide by the The court warned Defendant that conditions of community supervision could result in Defendant being required to spend the remaining term of his community supervision in prison. The court credited Defendant with 206 days of presentence incarceration, and found that Defendant would not have to register as a sex offender. ¶9 Defendant timely appeals. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1). 5 DISCUSSION ¶10 Defendant requests that we address several issues on appeal. I. We consider each in turn. DEFENDANT AS AN ALLEGED VICTIM OF A HATE CRIME ¶11 Defendant contends that he was the victim of a hate crime perpetrated by the girls. The contention lacks merit. A hate crime occurs when there is [e]vidence that the defendant committed the crime out of malice toward the victim, which manifests evidence of prejudice based on the victim s race, color, religion, national origin, sexual orientation, gender or disability. A.R.S. §§ 13-701(D)(15), 41-1750(A)(3). Defendant turns this definition on its head by suggesting that the girls -- who were charged with no crime, but rather were the victims in this case -- could legally have committed a hate crime. II. INEFFECTIVE ASSISTANCE OF COUNSEL ¶12 Defendant essentially makes ineffective assistance of counsel. that his opposed. trial counsel presented three claims of First, Defendant contends a trial strategy which he Second, Defendant contends that his counsel on appeal has a conflict of interest because both she and trial counsel work for the Office of the Public Defender[.] Third, Defendant contends that defense counsel failed to strike a juror who was a 6 police officer s assistance of daughter.5 counsel We claims do on not direct consider ineffective appeal. State Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). v. Such claims must be raised in a petition for postconviction relief under Ariz. R. Crim. P. 32. Id. III. PROSECUTORIAL MISCONDUCT ¶13 Defendant contends that he was prosecutorial misconduct throughout the case. prejudiced by To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor s misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998) (citation omitted). Here, Defendant does not suggest how he was prejudiced by prosecutorial misconduct, and does not demonstrate that the trial was unfair. We perceive no prosecutorial misconduct in this case. IV. ¶14 ALLEGED IMPROPER TREATMENT IN JAIL AND DURING TRIAL Defendant also contends that he was not given proper medical care in jail and was not treated humanely during trial. This proceeding is not the proper forum for such a claim, and 5 We have reviewed the transcript of jury selection proceedings and find no indication that one of the jurors was a police officer s daughter. _ One juror had a stepdaughter-in-law who is a Chandler police officer. We see nothing in the record that suggests that juror should have been stricken for cause. 7 the argument has no relation to any fundamental error that might warrant relief on direct appeal from a criminal conviction. V. REMAINING ISSUES ¶15 The record reveals no fundamental error. Defendant was represented by counsel at all critical proceedings, except when he voluntarily waived his appearance. The record of voir dire does not demonstrate the empanelment of any biased jurors, and the jury alternates. was properly composed of eight jurors and two See Ariz. R. Crim. P. 18.1(a); A.R.S. § 21-102(B). ¶16 The evidence that the state presented at trial was properly admissible. The state presented evidence that Defendant pulled down his shorts and exposed his penis in the presence of three minors under the age of fifteen in the driveway of a neighbor s home. ¶17 After the jury returned its verdict, the court, in its discretion, imposed a legal sentence of one year in prison for each count, to be served concurrently. See State v. Garza, 192 Ariz. 171, 176, ¶ 17, 962 P.2d 898, 903 (1998) (finding that judge has discretion concurrent arguments sentences). were presentence proper. report to choose The The before between state s court closing ordered sentencing, consecutive and gave and and rebuttal considered Defendant a the opportunity to speak at the sentencing hearing, and stated on the record the evidence and materials it considered and the 8 factors it found in imposing the sentence. The court correctly calculated Defendant s presentence incarceration of 206 days. ¶18 The sentences imposed were lawful. Pursuant to A.R.S. § 13-703(B)(2) [a] person shall be sentenced as a category two repetitive offender if the person . . . stands convicted of a felony and has one historical prior conviction. The court found that Defendant had one prior felony with a historical prior conviction. The court found A.R.S. §§ 13-701(E)(2) and (6). mitigating factors under Therefore, Defendant properly received a mitigated sentence under A.R.S. § 13-703(I). CONCLUSION ¶19 We have reviewed the record for fundamental error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We therefore affirm. ¶20 Defense counsel s appeal have come to an end. obligations pertaining to this See State v. Shattuck, 140 Ariz. 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 31.19(a). for review in propria persona. Ariz. R. Crim. P. Upon the court s own motion, he has 30 days from the 9 date of this decision in which to file a motion for reconsideration. /s/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ PATRICIA A. OROZCO, Presiding Judge /s/ ____________________________________ LAWRENCE F. WINTHROP, Chief Judge 10

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.