STATE v. JOHNSON

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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. ) ) KENNETH SCOTT JOHNSON, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 7/30/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-CR 12-0228 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-007271-001 The Honorable Dawn M. Bergin, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix DeBrigida Law Offices, PLC By Ronald M. DeBrigida, Jr. Attorneys for Appellant Glendale Kenneth Scott Johnson Appellant Florence D O W N I E, Judge ¶1 Kenneth Scott Johnson timely appeals his conviction for child molestation in violation of Arizona Revised Statutes ( A.R.S. ) section 13-1410. Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has searched the record, found no arguable question of law, and asked that we review the record for fundamental error. See State v. Richardson, 175 Ariz. 336, 339, 391 857 P.2d 388, (App. 1993). supplemental brief in propria persona. evidence in conviction. the light most Defendant filed a On appeal, we view the favorable to sustaining the State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981), cert. denied, 459 U.S. 882 (1982). FACTS AND PROCEDURAL HISTORY ¶2 In November 1995, a 12-year-old girl ( the victim ) spent the night with a friend. Johnson was staying in the home while the friend s mother was out of town. During the night, the victim awakened to someone touching the top of her vaginal area over her sleepwear with his hand and fingers. She saw the silhouette of a man standing over her, smoking a cigarette, and she recognized the man as Johnson. He ran from the room when the victim rolled over. ¶3 The victim went to the living room to call her father. She told Johnson she had a headache, and he offered to massage 2 her head. Johnson sat on the couch with the victim between his legs and massaged her head. The victim then called her father, and her parents called the police. ¶4 Johnson was charged with molestation regarding the victim. 1 evidence of two separate one count of child The State moved to admit uncharged events ( Apache Junction allegations and Seattle allegations ) to prove motive, intent, identity or absence of mistake, and to demonstrate that Johnson had a character trait giving rise to an propensity to commit the charged offense. 404(b), (c). the motion, aberrant sexual See Ariz. R. Evid. After an evidentiary hearing, the court granted subject to certain trial limitations ensued. set forth in its minute entry ruling. ¶5 A jury The court denied Johnson s motions for judgment of acquittal pursuant to Rule 20, Arizona Rules of Criminal Procedure ( Rule ), made at the close of the State s case-in-chief and after the State s rebuttal evidence. The jury found Johnson guilty. He was sentenced to a slightly mitigated flat term of 15 years in prison and given 331 days pre-sentence incarceration credit. 1 A second count was filed regarding a different victim, but it is not at issue on appeal, so we do not address it. 3 DISCUSSION ¶6 We have read and considered the briefs submitted and have reviewed the entire record. P.2d at 881. We find no Leon, 104 Ariz. at 300, 451 fundamental error. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentence imposed was within the statutory range. Johnson was present at all critical phases of the proceedings and was represented by counsel. properly impaneled and instructed. consistent with the offense The jury was The jury instructions were charged. The record reflects no irregularity in the deliberation process. ¶7 Johnson has submitted a letter listing 28 items, many of which are extremely general (e.g., All testimony was hearsay; and Never any evidence presented ). Although we do not individually address each item, we have reviewed the topics enumerated by Johnson and have found no fundamental error. ¶8 Molestation intentionally or of a knowingly child engages occurs in sexual when a conduct, person except sexual contact with the female breast, with a child under 15 years of age. A.R.S. § 13-1410(A). The State presented substantial evidence that Johnson molested the victim, who was under 15 years of age. Rule 20 motions. appropriate only The trial court thus properly denied the See when Rule there 20 is 4 (judgment no of substantial acquittal is evidence to warrant a conviction ); see also State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (substantial evidence is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant s guilt beyond a reasonable doubt ) (internal quotation marks omitted), State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) ( Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction. ). ¶9 the The jury heard videotaped testimony by C.T. regarding Seattle allegations. C.T. stated that Johnson and her mother were romantically involved, and the three of them lived together. Beginning when C.T. was six or seven, Johnson would go into her room at night and touch her inappropriately. C.T. said Johnson touched her breasts and vagina, touched his penis to her vagina, used his finger to penetrate her vagina, put his mouth on her breasts and vagina, and on one occasion, tried to penetrate her with his penis while she was sleeping. ¶10 V.B. testified about the Apache Junction allegations, which occurred when Johnson lived with her mother. She stated that Johnson put his hand in her pants and rubbed her vagina when she was nine or ten. ¶11 The victim testified that Johnson used his hands and fingers to touch her over her clothing at the top of [her] 5 vagina where [her] clitoris is. An expert witness testified about children s reactions to sexual abuse, and a pediatrician specializing in child abuse explained female genitalia to the jury and stated that certain physical sensations the victim had described could be caused by pressure over the bladder or rubbing the urethra, which is a very sensitive structure in little girls. ¶12 Johnson testified in his own defense, stating that he went to check on the girls, but the bedroom was dark so he could not tell whether they were in bed; he thus felt around on the bed for them. He reportedly tried to cover the girls with a blanket, but they were lying on it. With a cigarette hanging out of his mouth, Johnson used his hands to reach over the top of the girls and kind of jockey the blanket back and forth. When the Johnson victim denied began trying to to wake touch up, the Johnson victim place or touching her in a sexual way. in left any the room. particular He admitted rubbing her neck when she complained of a headache, but denied having her sit between his legs. ¶13 No rule is better established than that the credibility of the witnesses and the weight and value to be given jury. to their testimony are questions exclusively for the State v. Clemons, 110 Ariz. 555, 556-57, 521 P.2d 987, 988-89 (1974); see also State v. Lehr, 201 Ariz. 509, 517, ¶ 24, 6 38 P.3d 1172, 1180 (2002). The jury obviously found the State s evidence credible and disbelieved Johnson s version of events. We do not reweigh the evidence on appeal to determine whether we would reach the same conclusion as the jury. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). We consider whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential reasonable doubt. elements of the crime beyond a State v. Montano, 204 Ariz. 413, 423, ¶ 43, 65 P.3d 61, 71 (2003); State v. Sullivan, 187 Ariz. 599, 603, 931 P.2d 1109, 1113 (App. 1996). record, we conclude that Based on our review of the reasonable jurors could have found Johnson guilty of the charged offense. CONCLUSION ¶14 We affirm Johnson s conviction and sentence. Counsel s obligations pertaining to Johnson s representation in this appeal inform have Johnson of ended. the Counsel status of need the do nothing appeal and more his than future options, unless counsel s review reveals an issue appropriate for submission review. to the Arizona Supreme Court by petition for State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court s own motion, Johnson shall have 30 days from the date of this decision to proceed, if he desires, 7 with an in propria persona motion for reconsideration petition for review. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ ANDREW W. GOULD, Presiding Judge /s/ PATRICIA A. OROZCO, Judge 8 or

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