Opinion
No. 2 CA-CR 2019-0193
02-03-2021
THE STATE OF ARIZONA, Appellee, v. RICHARD AVILA, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals By Gracynthia Claw, Assistant Attorney General, Phoenix Counsel for Appellee Erin E. Duffy, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20182463001
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals
By Gracynthia Claw, Assistant Attorney General, Phoenix
Counsel for Appellee Erin E. Duffy, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Espinosa and Vice Chief Judge Staring concurred. ECKERSTROM, Judge:
¶1 Richard Avila appeals from his conviction and the imposition of probation for kidnapping with sexual motivation. He contends the evidence was insufficient to prove multiple elements of the offense. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 In an appeal of this nature, "we view the evidence in the light most favorable to sustaining the verdict, and we resolve all inferences against the defendant." State v. Davolt, 207 Ariz. 191, ¶ 87 (2004). One night in 2018, K.M. and her two minor children were spending the night at her best friend's house, all three asleep in the same bed. At some point in the night, Avila entered the bedroom, began touching K.M.'s body over the covers, and asked her for sexual contact. K.M. refused and told him to stop, but Avila did not stop. K.M. tried to push his hands off, but Avila continued touching her buttocks and "vagina area" over the blanket. K.M. called out for and texted her friend, and Avila finally stopped and left the room.
¶3 After a while, Avila returned to the bedroom, closed and locked the door, knelt by the bed, and started touching K.M. again. This time, Avila touched K.M. "harder" on the buttocks and around her anus, and he "grip[ped]" her vagina as if he were "trying to hold onto something to stick his finger in somewhere," though he did not succeed in digitally penetrating her. Avila continued to request sexual contact, which K.M. continued to refuse. He had his arms around her and "was using one hand to touch and the other one to try to pull off the blanket."
The trial court agreed with Avila that the testimony about the door being locked was "equivocal." Nevertheless, as noted above, we are required to view the evidence in the light most favorable to the state, resolving all inferences against Avila. See Davolt, 207 Ariz. 191, ¶ 87.
¶4 K.M. tried to push Avila away, but she was unable to do so. She was frightened, and she did not believe she could remove herself from the situation, which would leave her sleeping children alone with Avila. K.M. telephoned her friend and asked her to come right away. When the friend started banging on the bedroom door, Avila finally stopped and left the room, saying "sorry" on his way out.
¶5 A grand jury charged Avila with sexual abuse and kidnapping. After the state presented its case, the trial court granted Avila's motion for a judgment of acquittal pursuant to Rule 20(a), Ariz. R. Crim. P., on the sexual abuse charge. The court explained that Avila had been charged with "engag[ing] in sexual contact by rubbing [K.M.'s] vagina without her consent," and—although the state had offered evidence that he had rubbed her "vaginal area" or "genitals"—there was "no evidence whatsoever" that he had touched her vagina itself, "an internal organ." The court also granted a judgment of acquittal on the lesser-included offense of attempted sexual abuse, for the same reasons.
¶6 At the conclusion of a four-day trial, the jury found Avila guilty of kidnapping with sexual motivation. The trial court suspended the imposition of sentence and placed Avila on a four-year term of probation. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
¶7 As he did at trial, Avila contends the evidence was insufficient to support a conviction for kidnapping. The sufficiency of the evidence is a question of law, which we review de novo. State v. West, 226 Ariz. 559, ¶ 15 (2011). Viewing the evidence in the light most favorable to sustaining the verdict, and resolving all inferences against the defendant, we must determine whether the state presented evidence that "reasonable persons could accept as sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." State v. Spears, 184 Ariz. 277, 290 (1996). We will reverse a conviction for insufficient evidence only if no probative facts support the jury's conclusion. State v. Lopez, 230 Ariz. 15, ¶ 3 (App. 2012). "[W]e do not weigh the evidence; that is the function of the jury." State v. Williams, 209 Ariz. 228, ¶ 6 (App. 2004). And, if jurors could reasonably differ as to whether the evidence establishes the necessary facts, that evidence is sufficient as a matter of law. See Davolt, 207 Ariz. 191, ¶ 87.
¶8 To uphold Avila's conviction, we must find that the state presented evidence sufficient to allow reasonable jurors to conclude he "knowingly restrained K.M., with the intent to inflict . . . a sexual offense on her." See A.R.S. § 13-1304(A)(3); see also State v. Cox, 217 Ariz. 353, ¶ 22 (2007) ("relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))).
¶9 Avila first argues there was insufficient evidence of restraint. Restrain means "to restrict a person's movements without consent, without legal authority, and in a manner which interferes substantially with such person's liberty," including by "confining such person." A.R.S. § 13-1301(2). Restraint is without consent if it is accomplished by physical force or intimidation. Id. It includes acts that compel a victim to remain in place out of fear. See State v. Scott, 243 Ariz. 183, ¶ 12 (App. 2017) ("Restraint need not be accomplished by physical control, and 'so long as the [victim feels] compelled by fear to remain, the confinement continue[s].'" (alterations in Scott) (quoting State v. Jones, 185 Ariz. 403, 407 (App. 1995))).
¶10 Viewed in the light most favorable to the prosecution, the evidence in this case was sufficient for a reasonable jury to conclude that Avila knowingly restricted K.M.'s movements without her consent in a manner that substantially interfered with her liberty. He closed and locked the bedroom door, blocked the exit with his body, and then used his arms to restrict K.M.'s movements as he tried to force unwanted sexual contact on her. In so doing, he placed her in a frightening situation she felt she could not escape, in part because her sleeping children were in the room. As the state points out, "Avila was bigger in stature . . . and was increasingly aggressive and bold with his unwanted sexual advances."
¶11 Avila contends that K.M. "never attempted to remove herself or her children from the room" and was "free to leave and to call [her friend] or the police if she had so desired." But a victim is not obligated to attempt to escape in order for the crime of kidnapping to be complete. See § 13-1304(A) (attempted escape not an element of kidnapping); see also State v. Dunbar, 249 Ariz. 37, ¶ 21 (App. 2020).
¶12 Avila stresses, in particular, that it was disputed whether he locked the bedroom door and that, regardless, the door locked from within such that K.M. could easily have unlocked it had she so desired. But K.M. testified that she did not feel free to leave and became even more afraid once it appeared to her that Avila had locked the door. Even if "the record contains some conflicting evidence, it was for the jury to weigh the evidence and determine the credibility of the witnesses." Williams, 209 Ariz. 228, ¶ 6.
¶13 Avila argues that he knelt in the only available location in the room and that he did not verbally threaten K.M. or her children, brandish a weapon, tell her she could not leave, or prevent her from yelling out or using her phone. But the force or compulsion necessary to effect a kidnapping "need not consist of using actual physical force or express threats." State v. Belkin, 26 Ariz. App. 513, 517 (1976). It is sufficient that the victim feels compelled to remain out of fear and that such "apprehension is not unreasonable under the circumstances." Id. K.M. testified she was afraid, and that she remained in the bedroom in part because she did not believe she could abandon her sleeping young children. A reasonable jury could have concluded that her fear was reasonable under the circumstances, particularly given Avila's increasingly aggressive sexual advances despite her repeated verbal refusals and attempts to push him away.
¶14 Avila also contends there was insufficient evidence of an intent to commit a sexual offense. He bases this argument entirely on the trial court's decision to grant a judgment of acquittal on the sexual abuse charge and the lesser-included offense of attempted sexual abuse. But, as explained above, that decision was grounded in the narrowly written language of the indictment, which charged that Avila had rubbed K.M.'s "vagina." The court expressly found that if the indictment had been worded more generally—for instance, alleging contact with K.M.'s "vaginal area" or "genitals"—then the motion for judgment of acquittal would have been denied because "the State would have met its burden."
Avila did not raise this argument at trial. We nonetheless address it here because "a conviction based on insufficient evidence is fundamental, prejudicial error." State v. Clark, 249 Ariz. 528, ¶ 16 (App. 2020); see also State v. Escalante, 245 Ariz. 135, ¶¶ 1, 12 (2018). --------
¶15 There was clearly sufficient evidence presented for the jury to conclude that Avila actually committed some "sexual offense." See, e.g., A.R.S. § 13-1404(A) ("sexual abuse" includes intentionally or knowingly engaging in sexual contact without consent); A.R.S. § 13-1401(A)(3)(a) ("sexual contact" means "any direct or indirect touching, fondling or manipulating of any part of the genitals[ or] anus"). That this was Avila's intent when he restrained K.M. is inferable from his acts, particularly that he returned to the bedroom and touched K.M. more aggressively during the second incident, despite her consistent verbal and physical refusals. See State v. Bearup, 221 Ariz. 163, ¶ 16 (2009) ("Criminal intent, being a state of mind, is shown by circumstantial evidence." (quoting State v. Routhier, 137 Ariz. 90, 99 (1983))). Moreover, upon leaving the bedroom the second time, Avila said "sorry," and he admitted to police that he knew he should not have returned to the bedroom, "should have just stopped the first time," and that he had instead ignored K.M.'s requests that he leave her alone. These statements, together with Avila's actions, "are sufficient circumstances . . . to infer intent." State v. Garcia, 105 Ariz. 469, 471 (1970).
¶16 Viewed in the light most favorable to the prosecution, the evidence was sufficient for a reasonable jury to conclude that Avila committed the crime of kidnapping with sexual motivation. The trial court correctly denied Avila's Rule 20 motion for a judgment of acquittal on this charge.
Disposition
¶17 We affirm Avila's conviction and the imposition of probation.