Opinion
2 CA-CR 2023-0088
10-06-2023
The State of Arizona, Appellee, v. Jonathan David Chesley, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Jacob R. Lines, Assistant Attorney General, Tucson Counsel for Appellee Erika Arlington, Coconino County Legal Defender By Joseph A. Carver, Deputy Legal Defender, Flagstaff Counsel for Appellant
Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Coconino County No. S0300CR202100319 The Honorable Ted S. Reed, Judge.
COUNSEL
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Jacob R. Lines, Assistant Attorney General, Tucson Counsel for Appellee
Erika Arlington, Coconino County Legal Defender By Joseph A. Carver, Deputy Legal Defender, Flagstaff Counsel for Appellant
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vasquez and Judge Gard concurred.
MEMORANDUM DECISION
EPPICH, Presiding Judge:
¶1 Jonathan Chesley appeals from his convictions and sentences for sexual assault, vulnerable adult abuse, aggravated assault, and tampering with physical evidence. He asserts the trial court improperly applied certain aggravating factors during his sentencing. For the following reasons, we affirm Chesley's convictions but vacate his sentences for sexual assault, vulnerable adult abuse, and aggravated assault and remand for resentencing on those counts.
Factual and Procedural Background
¶2 In January 2021, Chesley was working as a medical technician on the memory care unit at a senior living facility. Typically, two caregivers and one medical technician worked on the unit at a time. Chesley encouraged the two caregivers to take their breaks at the same time, but they instead staggered their breaks per "regular practice."
¶3 After returning from her break, one of the caregivers decided to check on A.G.-a seventy-nine-year-old resident at the facility who had a history of dementia. When she opened the door to A.G.'s room, she saw Chesley standing near A.G.'s bed with his pants down to his ankles. A.G. was unclothed below the waist. Chesley "was in shock" when he saw the caregiver. The caregiver left the room and alerted another staff member.
¶4 The other caregiver subsequently saw Chesley grab gloves and wipes and leave and enter A.G.'s room several times. Chesley later told his supervisor that he would understand if she had to call police.
¶5 Police were contacted, and A.G. was examined by a forensic nurse examiner. The sanitary napkin A.G. had been wearing contained semen that matched Chesley's DNA.
¶6 After a jury trial, Chesley was convicted as described above. The jury found in aggravation that A.G. was at least sixty-five years old. During sentencing, the trial court found five additional aggravating factors and three mitigating factors. The court sentenced Chesley to concurrent terms of imprisonment for sexual assault, vulnerable adult abuse, and aggravated assault totaling the maximum of fourteen years, to be followed by three years of probation for tampering with physical evidence.
Although the trial court referred to Chesley's sexual assault sentence as an "aggravated term," he was sentenced to the maximum. See A.R.S. § 13-1406(B) (fourteen years is maximum sentence if no historical prior felonies, no aggravated term provided).
¶7 This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1), (4).
Discussion
¶8 On appeal, Chesley solely challenges his sentence for his sexual assault conviction. He asserts the trial court improperly found three aggravating factors: that A.G. "was unable to leave the room and/or facility," that A.G. "was unable to call for help," and that Chesley had "manipulated the circumstances to facilitate" his crimes. We review de novo whether a court may use a particular factor to aggravate a sentence. State v. Alvarez, 205 Ariz. 110, ¶ 6 (App. 2003); State v. Tschilar, 200 Ariz. 427, ¶ 32 (App. 2001).
¶9 "A trial court may impose a maximum prison term only if one or more statutory aggravating factors are found by the trier of fact ...." State v. Dunbar, 249 Ariz. 37, ¶ 41 (App. 2020). Once the trier of fact has found a statutory aggravating factor, the court may then find "additional aggravating circumstances" under the "catch-all" category. Id.; see also State v. Bonfiglio, 231 Ariz. 371, ¶¶ 8-9 (2013); A.R.S. § 13-701(C), (D)(27) (in determining sentence, court shall consider "[a]ny other factor that the state alleges is relevant to the defendant's character or background or to the nature or circumstances of the crime").
¶10 Here, the jury found A.G. was over the age of sixty-five. This is an enumerated statutory aggravating factor, § 13-701(D)(13), exposing Chesley to the maximum sentence and permitting the trial court to find additional aggravating factors under the catch-all provision, see Dunbar, 249 Ariz. 37, ¶ 41. On appeal, Chesley only challenges three of the additional aggravating factors found by the court.
I. A.G. "unable to leave the room and/or facility" and "unable to call for help"
A. Elements of charged offenses
¶11 Chesley asserts the trial court improperly aggravated his sentence by concluding that A.G. was "unable to leave the room and/or facility" and was "unable to call for help" because those facts are elements of the crimes of sexual assault and vulnerable adult abuse. The state responds that these facts "exceed the elements" of sexual abuse and vulnerable adult abuse and could properly be used to aggravate Chesley's sentences.
¶12 "An element of an offense may be used as an aggravating factor if the legislature has specified that it may be so used." Tschilar, 200 Ariz. 427, ¶ 33. If an element is not an enumerated aggravating factor, it generally cannot be used to aggravate a sentence. See Alvarez, 205 Ariz. 110, ¶ 17 (catch-all provision does not permit "fact or circumstance that has already been reckoned into the statutory scheme," such as an element of the offense, to aggravate a sentence).
¶13 However, if the defendant's conduct "somehow exceeds the elements or aggravates the circumstances of the offense," id. ¶ 16, that conduct may be considered as an aggravating factor under the catch-all provision, see Tschilar, 200 Ariz. 427, ¶ 34 (defendant "altered the character and increased the magnitude of the offenses" by committing crimes against four people at once even though "[a] victim" was element of crimes); State v. Germain, 150 Ariz. 287, 290-91 (App. 1986) (although recklessness was element of crime, court could aggravate defendant's sentence because degree of recklessness was extreme). In other words, the trial court may, in aggravating a sentence, consider the "subjective question[]" of whether "the degree of the defendant's misconduct rises to a level beyond that which is merely necessary to establish an element of the underlying crime." Germain, 150 Ariz. at 290.
¶14 We therefore look to the elements of sexual assault. "A person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person." A.R.S. § 13-1406(A). "Without consent" includes a victim who is "incapable of consent by reason of mental disorder, mental defect . . . or any other similar impairment of cognition and such condition is known or should have reasonably been known to the defendant." A.R.S. § 13-1401(7)(b). "'[M]ental defect' means the victim is unable to comprehend the distinctively sexual nature of the conduct or is incapable of understanding or exercising the right to refuse to engage in the conduct with another." Id.
¶15 During trial, the state argued that A.G. was "incapable of consent" because she "had a mental defect." The state also contended A.G. was "locked away" and had "lost the consent to walk outside." In support, the state presented evidence that the doors in the memory care unit were locked to prevent the residents from wandering and that caregivers had a key to enter the residents' rooms. It additionally presented several witnesses who testified to the signs of A.G.'s dementia. There was testimony that A.G. had "a different narrative than what the reality was in her environment" and could not recognize longtime family or friends. Furthermore, a witness testified that when the police had asked A.G. questions about what happened, her answers were "nonsensical, meaning [the answer did not] really relate to the question."
¶16 At sentencing, the trial court found that A.G. "was not only unable to consent, as is included in the elements of this sexual assault, but she was also unable to leave the facility; in fact, she was unable to leave the very floor. So that seems to be different than her ability to consent." It additionally found that A.G. "could not escape," "was on a locked memory unit," and "was unable to call out for help or articulate to any other caregivers or her family what was going on" because she "could not articulate what was happening to her or going on in her world." In the court's minute entry, these findings were succinctly described: A.G. was "unable to leave the room and/or facility" and was "unable to call for help."
¶17 Chesley first asserts A.G.'s inability to "leave the room and/or facility" and inability "to call for help" were elements of the crime of sexual assault and consequently were inapplicable aggravators under the catch-all provision. He contends that because "without consent" means "an inability to 'exercise the right to refuse to engage' in sex," the trial court's findings that A.G. "could not escape" and could not "call out for help" were "another way of saying that [A.G.] . . . could not consent." We disagree.
¶18 Although a victim can be "incapable of consent" because she cannot "exercis[e] the right to refuse to engage," this concerns mental limitations, not physical ones. § 13-1401(7)(b) (encompassing "impairment[s] of cognition" and defining "mental defect"). Moreover, as the state asserts on appeal, "[a] person could be incapable of consent even if they were otherwise able to escape and call for help. Conversely, a person could be capable of consent even if they were unable to escape a certain place or call for help." Thus, A.G.'s inability to "leave the room and/or facility" and inability "to call for help" plainly exceeded the elements of sexual assault. See Alvarez, 205 Ariz. 110, ¶ 16; Germain, 150 Ariz. at 290.
Chesley asserts the prosecutor "explicitly argued that the jury could find lack of consent based on the fact that [A.G.] lived in a secure facility." Even assuming this is a correct characterization of the prosecutor's argument, we look to the necessary elements of the offense, not the prosecutor's argument, in resolving the issue Chesley raises on appeal. See Tschilar, 200 Ariz. 427, ¶¶ 33-34; Germain, 150 Ariz. at 290-91.
¶19 Chesley similarly argues that A.G.'s inability to "leave the room and/or facility" and inability "to call for help" were elements of vulnerable adult abuse. He asserts that because the vulnerable adult abuse and sexual assault charges were "premised on the same act," the trial court could not use an element of vulnerable adult abuse to aggravate his sentence for sexual assault. However, we need not reach the issue of whether the "catch-all allows the [court] to consider the element of one charge as an aggravating factor in a sentence for a second charge" because the aggravating factors found here exceeded the elements of vulnerable adult abuse.
¶20 Vulnerable adult abuse requires, in relevant part, proof that the defendant caused a "vulnerable adult to suffer physical injury or abuse." A.R.S. § 13-3623(B). A "[v]ulnerable adult" is "an individual who is eighteen years of age or older and who is unable to protect [herself] from abuse, neglect or exploitation by others because of a mental or physical impairment." § 13-3623(F)(6). "Abuse" in this context can mean "[s]exual abuse or sexual assault." § 13-3623(F)(1)(d).
¶21 Chesley contends that A.G.'s inability to "leave the room and/or facility" and inability "to call for help" are merely different ways of proving that A.G. was "unable to protect [herself] from abuse." § 13-3623(F)(6). That A.G. was unable to leave the scene of the crime and unable to seek help during or after the crime may have helped establish that she was a vulnerable adult, but those facts nevertheless exceeded the necessary proof of her defenselessness against Chesley's assault. See id.; Germain, 150 Ariz. at 290 (even where a fact is an element of crime, court can find aggravator if degree exceeds the element). Accordingly, the trial court did not err because the challenged aggravating facts exceeded the degree necessary to establish the crimes. See Germain, 150 Ariz. at 290; Alvarez, 205 Ariz. 110, ¶ 16.
B. Role in the commission of the offenses
¶22 Chesley additionally contends the fact that A.G. was "unable to leave the room and/or facility" played "no role in the commission of [his sexual assault] offense" and could not be used as an aggravating factor. As explained above, the catch-all provision requires a trial court to consider in sentencing "[a]ny other [aggravating] factor that the state alleges is relevant to the . . . nature or circumstances of the crime." § 13-701(D)(27).
¶23 Chesley asserts there was no evidence A.G. had "tried to escape or would have tried to escape" and the evidence instead showed she "would not have even been aware that the doors were locked." He argues that A.G.'s awareness is significant because this court has previously concluded that for the trial court to utilize the "presence of a child" aggravator, § 13-701(D)(18), there must be evidence that the child perceived the crime and mere presence is insufficient. See State v. Hancock, 240 Ariz. 393, ¶ 22 (App. 2016); State v. Torres, 233 Ariz. 479, ¶ 16 (App. 2013).
¶24 In Torres, we observed that the legislative purpose of the "presence of a child" aggravator was "to inflict a harsher punishment on those who harm children by exposing them to violence." 233 Ariz. 479, ¶ 16 ("To hold that a child who was entirely unaware of the offense was 'present' would be inconsistent with that purpose."); see also Hancock, 240 Ariz. 393, ¶ 20. Here, however, the aggravating factor falls under the catch-all provision, which only requires relevance to the "nature or circumstances of the crime." § 13-701(D)(27).
¶25 A.G.'s unawareness of her inability "to leave the room and/or facility" or her inability to "escape" did not render the aggravating circumstance irrelevant. The evidence showed that the doors in the memory care unit were locked and that the staff had a key to enter the residents' rooms. This provided a sufficient basis for the trial court to conclude that Chesley knew A.G. was unable to escape, making A.G.'s inability "to leave the room and/or facility" relevant to the nature or circumstances of his crime. See § 13-701(D)(27).
II. Chesley "manipulated the circumstances to facilitate" his crime
¶26 Chesley lastly asserts there was insufficient evidence that he had "manipulated [the] circumstances in order to be alone on the unit" and, thus, the trial court could not find that fact as an aggravating factor. We will affirm an aggravating circumstance finding if substantial evidence supports it, and we view the facts in the light most favorable to affirming. State v. Coulter, 236 Ariz. 270, ¶ 12 (App. 2014). Substantial evidence is proof that reasonable persons could accept as adequate and sufficient to support the conclusion. Id. Aggravating factors found under the catch-all provision must be proven by a preponderance of the evidence. Dunbar, 249 Ariz. 37, ¶ 41.
¶27 At trial, the two caregivers testified that on the day of the assault, Chesley had repeatedly asked them to take their breaks at the same time, with one testifying that he brought it up "[c]onstantly." Despite Chesley's insistence, the caregivers staggered their breaks per their usual practice. At sentencing, the trial court found in aggravation that Chesley had "engaged in conduct that manipulated the circumstances to facilitate [the] crime in order to not be caught; to have other caregivers on the floor take their breaks when they were not supposed to in order for [him] to be alone with [A.G.]."
¶28 Chesley argues there was no factual basis for the trial court's finding that he had "manipulated the circumstances" to be alone with A.G. The state counters that there was no error because the court's conclusion "was about Chesley's actions, not whether they worked out as he hoped." We agree with Chesley.
¶29 The evidence only shows that Chesley had attempted to "manipulate[] the circumstances to facilitate [the] crime in order to not be caught." Because the caregivers staggered their breaks as was typical, there is no evidence to support the trial court's finding that Chesley actually "manipulated the circumstances . . . to have other caregivers on the floor take their breaks when they were not supposed to in order for [him] to be alone with [A.G.]."
¶30 As the state concedes, "[w]hen a trial court relies on both proper and improper factors in aggravating a sentence, this court will uphold its decision 'only where the record clearly shows the trial court would have reached the same result even without consideration of the improper factors.'" State v. Hardwick, 183 Ariz. 649, 656-57 (App. 1995) (quoting State v. Ojeda, 159 Ariz. 560, 562 (1989)); see also State v. Johnson, 229 Ariz. 475, ¶ 20 (App. 2012); Hancock, 240 Ariz. 393, ¶ 24. Chesley's imposed sentence for sexual assault is within the statutory range available to the court. See Dunbar, 249 Ariz. 37, ¶ 41 (court may only impose maximum if at least one statutory aggravating factor found by jury). But because the court did not indicate the weight given to the aggravating factors and because we cannot determine whether it would have imposed the same sentence had it considered Chesley's attempts to manipulate the circumstances as opposed to actual manipulation of the circumstances, see Hancock, 240 Ariz. 393, ¶ 24, we vacate Chesley's sentence for sexual assault and remand for resentencing on that count.
III. Vulnerable Adult Abuse and Aggravated Assault Sentences
¶31 Although Chesley does not challenge his vulnerable adult abuse and aggravated assault sentences on appeal, we have found fundamental error with regard to those sentences. We will not ignore fundamental error when we find it. State v. Fernandez, 216 Ariz. 545, ¶ 32 (App. 2007).
¶32 As explained above, a trial court "may impose a maximum prison term only if one or more statutory aggravating factors are found by a jury or admitted by the defendant." State v. Allen, 248 Ariz. 352, ¶ 62 (2020). The court may not, however, impose an aggravated sentence unless "two or more statutory aggravated factors are found by the jury or admitted by the defendant." Id.; A.R.S. § 13-702(C). A sentence outside of the available statutory range is illegal. State v. Cox, 201 Ariz. 464, ¶ 13 (App. 2002). An illegal sentence is fundamental, prejudicial error that will be reversed on appeal. Id.; State v. McPherson, 228 Ariz. 557, ¶ 4 (App. 2012).
¶33 The trial court sentenced Chesley to aggravated terms for vulnerable adult abuse and aggravated assault. These are illegal sentences because the jury only found one statutorily enumerated aggravating factor, and Chesley did not admit to any. See Allen, 248 Ariz. 352, ¶ 62. Because the court also found that Chesley did not have any prior convictions, a prior felony conviction "within the ten years immediately preceding the date of the offense," § 13-701(D)(11), could not serve to expose him to aggravated sentences. See § 13-701(C); Bonfiglio, 231 Ariz. 371, ¶¶ 10-11 (prior conviction found by court can statutorily aggravate sentence). Therefore, the sentencing range available to the court on those counts only extended to the maximum. See §§ 13-701(C); 13-702(C), (D). Accordingly, we vacate Chesley's sentences for vulnerable adult abuse and aggravated assault. We remand for resentencing on those counts.
Disposition
¶34 For the foregoing reasons, we affirm Chesley's convictions and term of probation for tampering with physical evidence. However, we vacate his sentences for sexual assault, vulnerable adult abuse, and aggravated assault and remand for resentencing on those counts.