Opinion
No. 1 CA-CR 13-0711
07-29-2014
STATE OF ARIZONA, Appellee, v. LONNIE DAVIS NELSON, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Paul J. Prato Counsel for Appellant
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Maricopa County
No. CR 2012-007405-001
The Honorable Roger E. Brodman, Judge
AFFIRMED AS CORRECTED
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Paul J. Prato Counsel for Appellant
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge John C. Gemmill and Judge Peter B. Swann joined. OROZCO, Judge:
¶1 Appellant Lonnie Davis Nelson (Defendant) appeals his convictions and the sentences imposed for two counts of molestation of a child, each designated as a class two felony and a dangerous crime against children; and two counts of sexual abuse, each a class five felony.
¶2 Defendant's appellate counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this court that after a diligent search of the record, he was unable to find any arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259, 284-85 (2000); Anders, 386 U.S. at 738; State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). This court granted Defendant the opportunity to file an in propria persona supplemental brief, but he has not done so. See Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. Counsel now asks this court to search the record for fundamental error.
¶3 Our obligation in this appeal is to review "the entire record for reversible error." Clark, 196 Ariz. at 537, ¶ 30, 2 P.2d at 96 (App. 1999). We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, Arizona Revised Statutes (A.R.S.) sections 12 -120.21.A.1 (2003), 13-4031, and -4033.A.1 (2010). Finding no reversible error, we affirm Defendant's convictions but modify Defendant's sentence to omit the requirement that he pay for the cost of his DNA testing.
FACTS AND PROCEDURAL HISTORY
Upon review, we view the facts in the light most favorable to sustaining the jury's verdicts and resolve all inferences against Defendant. See State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998).
¶4 In June 2012, the State filed an indictment alleging Defendant molested his step-daughter (Child) on two separate occasions and sexually abused his niece (Niece) on three separate occasions.
¶5 During trial, Child testified Defendant molested her twice - each time Child was ten years old. On both occasions, Child testified Defendant came into her room, pulled down his shorts, and rubbed her foot against his penis. While Child testified that she did not see Defendant in her room because she pretended to be asleep both times, she stated Defendant was the only male in the house.
¶6 Niece also testified Defendant sexually abused her on three separate occasions while she was staying at his home. Each time, Niece testified Defendant placed her foot against his penis over his clothes. The first two times occurred while Niece was approximately fifteen or sixteen years old; the third time occurred when she was approximately seventeen years old. Niece's friend (Friend) also testified that she concluded "inappropriate conduct" was taking place based on the content of Niece's text messages to her.
¶7 The jury also heard testimony from Child's mother (Mother). Mother testified Father had difficulty maintaining an erection if he wasn't "playing with . . . feet." Immediately after the first time Father touched Child, Child notified Mother. Mother stated Defendant initially denied the allegation but eventually admitted touching Child. Mother stated she asked Defendant to leave but eventually allowed him to return to the home. When Child approached Mother the second time Defendant molested her, Mother did not believe her. In 2008, Niece came to Mother and told her about the first two times Defendant had touched her and further notified Mother she has been in contact with the police. At that time, Mother asked Father to leave their home and later filed for divorce.
¶8 A jury found Defendant guilty of counts one and two, for his molestation of Child, and guilty of counts three and four for his sexual abuse of Niece. The jury found Defendant not guilty of count five, the third charge of sexual abuse alleged by Niece.
¶9 The trial court sentenced Defendant to seventeen years' incarceration as to count one and seventeen years' incarceration as to count two, to be served concurrently. Defendant received 318 days of presentence incarceration credit. The trial court further sentenced Defendant to lifetime probation as to counts three and four, to commence upon his release from prison. Defendant's sentence required him to register as a sex offender and to pay for the costs of his DNA testing.
DISCUSSION
I. Sufficiency of the Evidence
¶10 We review the sufficiency of the evidence "in the light most favorable to sustaining the conviction . . . ." State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981). Any reasonable inferences are resolved against the defendant. Id. A reversal of a conviction based on insufficiency of the evidence requires a clear showing that there is not sufficient evidence to support the jury's conclusions, under any hypothesis whatsoever. State v. Williams, 209 Ariz. 228, 231, ¶ 6, 99 P.3d 43, 46 (App. 2004) (stating that we will not substitute our judgment for that of the jury).
¶11 To find Defendant guilty of molestation of a child, the jury was required to find Defendant intentionally or knowingly engaged in sexual contact with a child under the age of fifteen. A.R.S. §13-1410 (2010). Pursuant to A.R.S. § 13-1404, to find Defendant guilty of sexual abuse, the jury was required to find he "intentionally or knowingly engaged in sexual contact with any person who if fifteen or more years of age without consent of that person." For the purposes of both crimes, sexual contact is defined as engaging in "any direct or indirect touching, fondling, or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object or causing a person to engage in such contact." Id. § 13-1401 (2010).
¶12 In this case, the jury heard testimony from Child that, when she was ten years old, Defendant pulled his pants down and rubbed her foot against his penis on two separate occasions. While Child did not actually see Defendant, she testified Defendant was the only male in the home on both occasions.
¶13 Niece testified to three instances where Defendant placed her foot on his penis while he was clothed - Niece was over fifteen years of age on each of the occasions. The jury found Defendant guilty of two of the three charges alleged by Niece.
¶14 Furthermore, Mother testified both Child and Niece told her that Defendant touched them. She also stated Defendant admitted molesting Child the first time. Moreover, Mother testified to her personal knowledge about Father's proclivity to "play with . . . feet."
¶15 Thus, we find sufficient evidence supports the jury's verdict finding Defendant guilty of two counts of sexual molestation of a child and two counts of sexual abuse. II. Sentence Correction: Order Requiring DNA Testing
¶16 The court ordered Defendant to submit to DNA testing and pay the cost of the testing pursuant to A.R.S. § 13-610 (Supp. 2013). While § 13-610.A authorizes the department of corrections to "secure a sufficient sample of blood or other bodily substances for [DNA] testing," the statute does not identify who should incur the costs of testing. See, e.g., State v. Reyes, 232 Ariz. 468, 471, ¶ 9, 307 P.3d 35, 38 (App. 2013).
¶17 Although Defendant could be fined as part of his sentence, the trial court's order that Defendant pay the DNA testing fee was not a fine under § 13-801.A for the commission of felonies. See id. at 472, ¶ 13, 307 P.3d at 39. Because § 13-610 does not require Defendant to incur the cost of the DNA testing, there is no basis for the cost to be imposed. See id. at ¶ 14. Accordingly, we vacate that portion of the sentencing order requiring Defendant to pay for DNA testing.
CONCLUSION
¶18 We have read and considered counsel's brief and have searched the entire record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Defendant was represented by counsel at all critical stages of the proceedings and was given an opportunity to speak before sentencing. The sentences imposed were within the statutory limits. Furthermore, based on our review of the record before us, substantial evidence supports the jury's verdicts.
¶19 Counsel's obligations pertaining to Defendant's representation in this appeal have ended. Counsel need do no more than inform Defendant of the status of the appeal and his future options, unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. Accordingly, Defendant's convictions and sentences are affirmed as corrected.