Opinion
1 CA-CR 11-0093
01-26-2012
STATE OF ARIZONA, Appellee, v. SIMON LUGO BURGOS, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section And Linley Wilson, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Louise Stark, Deputy Public Defender Attorneys for Appellant
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
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR-2010-119295-001 DT
The Honorable Connie Contes, Judge
AFFIRMED AS CORRECTED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
And Linley Wilson, Assistant Attorney General
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By Louise Stark, Deputy Public Defender
Attorneys for Appellant
Phoenix GOULD, Judge
¶1 Defendant Simon Lugo Burgos appeals his convictions and sentences for five counts of molestation of a child, two counts each of attempted molestation of a child, sexual abuse, and kidnapping, and one count of sexual conduct with a minor. He requests that the sentencing minute entry be amended to reflect the correct class of felony for two of his convictions. Defendant also raises a claim of insufficiency of evidence as to one of the convictions, and he argues the court committed fundamental error in admitting the testimony of two expert witnesses. For the reasons discussed below, we order that the sentencing minute entry be corrected. Otherwise, we reject Defendant's remaining assertions of error and therefore affirm.
Background
We view the evidence in the light most favorable to sustaining the convictions and resolve all reasonable inferences against Defendant. State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3, 110 P.3d 1026, 1027 (App. 2005).
¶2 Between 1982 and 1987, and again between 2005 and 2009, Defendant engaged in multiple acts of inappropriate sexual contact with three young girls in his family. At trial, the jury convicted Defendant of twelve counts of sexual crimes. He now appeals these convictions.
The victims are not technically Defendant's family members because they are the grandchildren and a niece of the woman with whom Defendant was in a long-term relationship. Although the Defendant and the woman never married, the victims considered Defendant their grandfather or uncle.
Discussion
I. Classification of Counts 2 and 14
¶3 Defendant's convictions for Counts 2 and 14 are for the crime of attempted molestation. The sentencing minute entry refers to these convictions as class two felonies. Defendant and the State assert the sentencing minute entry should be amended to properly reflect that Counts 2 and 14 are class three felonies. We conclude that, as to Counts 2 and 14, the trial court intended to sentence Defendant for class three felonies. According to the sentencing transcript, the court sentenced Defendant to the "presumptive term" of ten years' imprisonment for Counts 2 and 14. Molestation of a child is a class two felony with a presumptive term of seventeen years' imprisonment. Arizona Revised Statutes ("A.R.S.") §§ 13-705(D), (O) (2010), -1410(B) (2010). However, attempted child molestation is a class three felony with a presumptive term of ten years' imprisonment. A.R.S. §§ 13-705(J), -1001(C)(2).
The parties agree that some of the applicable statutes have been renumbered but have remained substantively unchanged since the relevant time periods; thus, we refer to the most recent versions.
¶4 Based on the foregoing, the sentencing minute entry filed January 27, 2011 is amended, and Counts 2 and 14 are designated as class three felonies. A.R.S. § 13-4037 (2010); See State v. Vandever, 211 Ariz. 206, 210, ¶ 16, 119 P.3d 473, 477 (App. 2005) (amending minute entry to correctly identify offense as a class six, not class three, felony); State v. Contreras, 180 Ariz. 450, 453 n.2, 885 P.2d 138, 141 n.2 (App. 1994) ("When we are able to ascertain the trial court's intention by reference to the record, remand for clarification is unnecessary.").
II. Sufficiency of Evidence for Count 14
¶5 Defendant argues there is insufficient evidence to support his conviction for Count 14, attempted child molestation. Our review of the sufficiency of evidence is limited to whether substantial evidence exists to support the verdict. State v. Scott, 177 Ariz. 131, 138, 865 P.2d 792, 799 (1993). Substantial evidence is proof that "reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980)).
¶6 When addressing the sufficiency of evidence, "[w]e construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant." State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). We "draw all reasonable inferences that support the verdict," State v. Fulminante, 193 Ariz. 485, 494, ¶ 27, 975 P.2d 75, 84 (1999), and we resolve any conflict in the evidence in favor of sustaining the verdict. We will not weigh the evidence as that is the function of the jury. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). Finally, credibility determinations are for the jury, not the trial judge or this court. State v. Dickens, 187 Ariz. 1, 21, 926 P.2d 468, 488 (1996); State v. Pieck, 111 Ariz. 318, 320, 529 P.2d 217, 219 (1974) ("The credibility of a witness and the weight and value to be given to a witness' testimony are questions exclusively for the jury.").
¶7 To convict Defendant of attempted molestation, the State was required to prove beyond a reasonable doubt that Defendant intentionally or knowingly took "any step in a course of conduct planned to culminate in" a direct or indirect touching of S.R.'s genitals or anus. See A.R.S. §§ 13-1001(A)(2), -1401(2), -1410(A). Based on the evidence presented at trial, there is sufficient evidence to support Defendant's conviction for attempted child molestation. S.R. testified that when she was seven years old Defendant touched her vagina while she was sitting on his lap on a couch in the living room. On the same day, after going outside to play, S.R. returned to the living room and laid face-up on a small couch or chair. Defendant then "straddled" S.R. with her legs between his; Defendant was not touching any part of S.R.'s body except his "legs were kind of touching [S.R.'s] legs." When someone entered the room, Defendant was on top of S.R. and he "jumped off" and stood next to the chair. S.R. described Defendant's behavior, "Like the parents came in and you were doing something bad and you like pretended you were doing nothing." The foregoing evidence is sufficient for a reasonable juror to conclude beyond a reasonable doubt that defendant's straddling of S.R. constituted an intentional step in a course of conduct planned to culminate in his touching her vagina.
Defendant does not dispute that S.R. was under the age of fifteen at the time the alleged incident occurred.
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III. Experts' Testimony
¶8 Defendant contends the court committed fundamental error in allowing two expert witnesses to testify at trial. To obtain relief under fundamental error review, Defendant has the burden to show that error occurred, that the error was fundamental, and that he was prejudiced thereby. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 20-22, 115 P.3d 601, 607-08 (2005). Fundamental error is error that "goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial." Id. at 568, ¶ 24, 115 P.3d at 608. The showing required to establish prejudice "differs from case to case." Id. at ¶ 26. A defendant "must show that a reasonable jury, applying the appropriate standard of proof, could have reached a different result." Id. at 569, ¶ 27, 115 P.3d at 609. Here, Defendant fails to satisfy any one of his three burdens necessary for relief.
A. Wendy Dutton
¶9 Wendy Dutton testified for the state as a "blind expert." That is, she knew nothing of the facts concerning this case, but testified about research in the field of child sexual abuse and her professional experience in order to help the jury "make a decision about the facts of the case." Specifically, Dutton explained the different ways victims react to and disclose abuse, and she described why some victims may have unclear memories of specific instances of sexual abuse. Dutton further testified regarding the stages of victimization and the role of secrecy in cases involving the sexual abuse of children. Finally, she testified about county protocol in conducting forensic interviews of child sexual abuse victims.
¶10 Defendant argues Dutton's testimony was irrelevant based on the responses of certain jurors during jury selection. Some of the jurors indicated that expert testimony similar to Dutton's (e.g., testimony explaining why sexually abused children may delay in reporting the crimes) would not assist them in reaching a verdict.
¶11 No error, fundamental or otherwise, occurred in admitting Dutton's testimony. In considering the admissibility of Dutton's testimony, little weight, if any, should be placed on the juror's comments made during jury selection. At the time of jury selection, the relevance of Dutton's testimony would be difficult for the jurors to assess, because none of the jurors had had an opportunity to listen to the testimony of the victim or consider the actual evidence in the case. In contrast, based on the victims' trial testimony, we find that Dutton's testimony was highly relevant and helpful to the jury in understanding the victims' inconsistent recollections of the abuse, their delay in reporting, and the reliability of the disclosures they made in their respective forensic interviews. See Ariz. R. Evid. 702 (stating that expert opinion testimony is admissible where expert possesses specialized knowledge that will assist the jury in understanding the evidence or determining a fact in issue); State v. Lindsey, 149 Ariz. 472, 475, 720 P.2d 73, 76 (1986) (citing Arizona Rule of Evidence 702 and noting "the expert's function is to provide testimony on subjects that are beyond the common sense, experiences and education of the average juror. Certainly, the behavioral patterns of young victims of incest or child molestation fall into that category." (citation omitted)); see also State v. Herrera, 226 Ariz. 59, __, ¶ 38, 243 P.3d 1041, 1052 (App. 2010) (finding no fundamental error where Dutton's testimony viewed in its entirety did not tell the jury who is correct or incorrect, lying or telling the truth). Defendant's challenge to the expert testimony on grounds of Arizona Rule of Evidence 403 also fails. See Ariz. R. Evid. 403; State v. Curry, 187 Ariz. 623, 629, 931 P.2d 1133, 1139 (App. 1996).
¶12 Even if the court erred in allowing Dutton's testimony, Defendant does not explain how the error deprived him of a fair trial. Defendant has not satisfied his burden of establishing prejudice because, even absent Dutton's testimony, overwhelming evidence of Defendant's guilt was established by the testimony of the victims, family members, the case agent, and the forensic interviewer. See State v. Moody, 208 Ariz. 424, 455, ¶ 121, 94 P.3d 1119, 1150 (2004) (holding no fundamental error where challenged evidence is cumulative to other evidence); Pieck, 111 Ariz. at 320, 529 P.2d at 219 (noting credibility of witnesses and the weight and value to be given to their testimony "are questions exclusively for the jury").
B. Dr. Quinn
¶13 Doctor Quinn performed a physical examination of S.S. on April 19, 2010, approximately two weeks after S.S. reported to her mother that Defendant raped her in 2005 when she was eight years old. Quinn testified at trial about the examination's results, which included discovering a traumatic tear to S.S.'s hymen that had "long since healed," and her opinion that based on S.S.'s medical history the injury was not caused accidentally. Quinn also testified that young women who suffer a physical injury similar to the one suffered by S.S. would cry from the pain and report the incident immediately.
¶14 The court did not commit fundamental error in admitting Quinn's testimony. Relying primarily on Lindsey, 149 Ariz. 472, 720 P.2d 73, Defendant contends Quinn's testimony impermissibly commented on S.S.'s credibility regarding the alleged incidents of sexual contact with Defendant. Lindsey, however, is inapposite. In that case, our supreme court held that allowing an expert to opine on the veracity of a particular victim-witness or class of victims is impermissible. Lindsey, 149 Ariz. at 475, 720 P.2d at 76. Here, Quinn did not testify that S.S.'s testimony regarding defendant's abuse was truthful, nor did she opine that child abuse victims as a group generally tell the truth regarding their incidents of abuse. Quinn did not "advise [the jury] with regard to the ultimate disposition of the case." Id.
¶15 Accordingly, no error similar to what occurred in Lindsey was present here. Further, even if Quinn's testimony was admitted in error, Defendant does not explain how it rises to the level of fundamental error, nor, for the reasons stated previously, supra ¶ 17, can he establish prejudice. The court, therefore, did not commit fundamental error in admitting Quinn's testimony.
Conclusion
¶16 Defendant's convictions and sentences are affirmed. Defendant's sentencing orders are amended to reflect that the convictions for attempted molestation of a child in Counts 2 and 14 are class three, not class two, felonies.
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ANDREW W. GOULD, Judge
CONCURRING:
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MAURICE PORTLEY, Presiding Judge
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ANN A. SCOTT TIMMER, Judge