Opinion
2 CA-CR 2023-0061
08-24-2023
The State of Arizona, Appellee, v. Fabian Lomas Barragan, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Gary Kula, Maricopa County Public Defender By Damon A. Rossi, Deputy Public Defender, Phoenix Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2021102616001 The Honorable Laura M. Reckart, Judge
COUNSEL
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee
Gary Kula, Maricopa County Public Defender By Damon A. Rossi, Deputy Public Defender, Phoenix 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 Fabian Lomas Barragan appeals from his convictions and sentences for nine counts of sexual conduct with a minor, five counts of molestation of a child, and one count of sexual abuse. He asserts the trial court erred by denying his motion for judgment of acquittal for one count of sexual conduct with a minor and by not providing verdict form interrogatories to prevent nonunanimous verdicts on the sexual conduct with a minor counts. For the following reasons, we reverse Barragan's conviction and sentence for count seven (molestation of a child), but we otherwise affirm his convictions and sentences.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts. State v. Rodriguez, 251 Ariz. 90, ¶ 2 (App. 2021). Between August 2015 and January 2021, Barragan committed multiple acts of sexual misconduct against his minor step-daughter, Y.L. After Y.L. reported the abuse to a friend and family member, Barragan was arrested and made multiple incriminating statements to police.
¶3 Barragan was convicted as described above and sentenced to consecutive and concurrent terms of imprisonment totaling 268 years. 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).
Discussion
I. Double Jeopardy
¶4 Barragan first asserts the trial court erred by denying his motion for judgment of acquittal on count seven, a charge of sexual conduct with a minor. He contends this error resulted in a violation of his right to be free from double jeopardy. We review de novo whether a double jeopardy violation has occurred, State v. Ortega, 220 Ariz. 320, ¶ 8 (App. 2008), and because we conclude that Barragan's right to be free from double jeopardy was violated, we need not reach whether the court erred by denying his motion for judgment of acquittal, see State v. Wood, 180 Ariz. 53, 64 (1994) (need not reach raised issue given dispositive conclusion).
Due to the dismissal of various charges at trial, count seven was renumbered for the jury as count five. For ease of reference, we refer to the counts as initially numbered in the indictment.
¶5 Count seven of the indictment charged Barragan with intentionally or knowingly engaging in sexual intercourse or oral sexual contact with Y.L. between August 1, 2019, and March 1, 2020, "to wit[:] penile/vaginal - time in her bedroom." Count eight charged intentional or knowing molestation of Y.L. during the same time frame, "to wit[:] digital/genital - time in her bedroom." Although Barragan was acquitted of count seven, he was found guilty of the lesser-included crime of molestation of a child. For the first time on appeal, Barragan argues that because the jury also found him guilty of count eight, he was convicted twice for a single molestation of a child offense-a double jeopardy violation. The state asserts the evidence supported guilty verdicts on both counts.
¶6 "The Double Jeopardy Clauses of the United States and Arizona Constitutions protect criminal defendants from multiple convictions and punishments for the same offense." Ortega, 220 Ariz. 320, ¶ 9; see also U.S. Const. amend. V; Ariz. Const. art. II, § 10. A double jeopardy violation occurs "if multiple violations of the same statute are based on the same conduct" and result in more than one conviction for a single offense. State v. Jurden, 239 Ariz. 526, ¶ 11 (2016); see also Ortega, 220 Ariz. 320, ¶ 9 (multiplicitous charges do not violate double jeopardy but multiplicitous convictions do). Even if a defendant fails to object in the trial court, "a successful double jeopardy claim constitutes fundamental, prejudicial error." Rodriguez, 251 Ariz. 90, ¶ 6.
¶7 Molestation of a child requires proof that a person "intentionally or knowingly engag[es] in . . . sexual contact, except sexual contact with the female breast, with a child who is under fifteen years of age." A.R.S. § 13-1410(A). "Sexual contact" is any "direct or indirect touching, fondling or manipulating of any part of the genitals . . . by any part of the body." A.R.S. § 13-1401(A)(3)(a).
¶8 We agree with Barragan that the evidence here only supports one conviction for molestation of a child related to the "time in [Y.L.'s] bedroom." At the time of trial in 2022, Y.L. was twelve years old and entering eighth grade. She testified there "were a couple times" in her bedroom in fifth grade when Barragan touched her, however, she only referred to one time in which he touched her "private part," where she "go[es] pee," with "his hand." She stated this occurred when Barragan entered her bedroom a second time after initially trying to wake her up. She further stated that no "other part of his body touch[ed her]" at this time.
¶9 The state asserts Y.L.'s testimony that Barragan "actually touch[ed her]" when he first entered her bedroom reasonably sustains a second molestation verdict. In support, the state points to Y.L.'s earlier testimony in which she had stated that when Barragan lived with her, he "would touch [her]" which meant that he had touched her "[w]ith his hand" on the part of the body she uses "[t]o go pee." Consequently, the state contends that Y.L.'s statement that Barragan "actually touch[ed her]" in her bedroom did not merely refer to non-sexual contact.
¶10 Y.L.'s earlier testimony, however, was specifically related to the "first time" Barragan had molested her when she was five or six years old. The jury separately found Barragan guilty of charges related to the "first time." Thus, it is not reasonable to conclude that just because Y.L. had referred to Barragan's prior sexual contact as him "touch[ing her]" that her later repeated reference to him "touch[ing her]" also necessarily referred to sexual contact. Further, Y.L. had specified that Barragan was "pulling [her] by [her] feet" and "grabb[ing] [her] by [her] legs" the first time he came into her bedroom. See § 13-1401(A)(3)(a) (requiring contact with genitals). Accordingly, Y.L.'s affirmative answer to the question, "Did he actually touch you?," does not alone support an inference that Barragan had "touch[ed], fondl[ed] or manipulat[ed] . . . any part of [her] genitals" the first time he came into her bedroom. Id.; see Ortega, 220 Ariz. 320, ¶ 27 (broad question, "[D]id he also touch you?" and "nonspecific response" of "[h]e would also touch me," could not support molestation conviction).
¶11 The additional evidence presented at trial similarly does not support two convictions for molestation of a child for the "time in [Y.L.'s] bedroom." The state also presented testimony from the investigating detective, a pediatrician who had examined Y.L., and a forensic interviewer who had no firsthand knowledge of the case. In the interviews with the detective, the only statement Barragan made in relation to Y.L.'s bedroom was that he had kissed Y.L. on her "waist" in her bedroom three years ago- repeatedly denying that he had made contact with her genitals at that time. The pediatrician was unable to draw any conclusions from her exam of Y.L. and did not relate any of her findings to a specific instance of sexual misconduct.
Nor are we persuaded by the state's additional argument that because the jury was correctly instructed that it must consider each count separately "uninfluenced by [its] decision on any other count" it must have interpreted Y.L.'s testimony as pertaining to two separate acts of molestation. "[A] properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt." State v. West, 226 Ariz. 559, ¶ 17 (2011) (alteration in West) (quoting Mathers, 165 Ariz. at 67).
¶12 Because Barragan was convicted of "multiple violations of the same statute . . . based on the same conduct," his right to be free from double jeopardy was violated. See Jurden, 239 Ariz. 526, ¶ 11; Ortega, 220 Ariz. 320, ¶¶ 9, 28. Accordingly, we reverse Barragan's conviction and sentence for molestation of a child pursuant to count seven of the indictment.
II. Duplicitous Charging
¶13 Barragan next asserts the trial court erred by failing to provide interrogatories for the jury to specifically determine whether the charges of sexual conduct were based on penetration or masturbatory contact. He contends the lack of interrogatories resulted in duplicitous charging which risked nonunanimous verdicts. We review the adequacy of a court's verdict forms and issues of juror unanimity de novo. State v. Dann, 220 Ariz. 351, ¶ 70 (2009) (verdict forms); State v. Valentini, 231 Ariz. 579, ¶ 5 (App. 2013) (unanimity).
¶14 While discussing the final jury instructions, Barragan argued that with respect to the sexual conduct charges, the jury would need to determine whether penetration occurred because, if so, there is different sentencing. Compare A.R.S. § 13-705(B) (mandatory life imprisonment for adult convicted of sexual conduct with minor under twelve, excluding masturbatory contact), with § 13-705(C) (trial court's discretion to sentence to life imprisonment for adult convicted of sexual conduct with minor under twelve except as otherwise provided by § 13-705). He subsequently argued that the interrogatories were also necessary for "unanimous decision[s]."
¶15 The state responded that the requested interrogatories were only necessary for sentencing purposes and that if the jury were to convict without the interrogatories, the state would not argue that Barragan must receive mandatory life sentences. Rather, any life sentences would be in the trial court's discretion. It asserted there was no concern as to nonunanimous verdicts because the penetration and masturbatory contact were "so closely intertwined" and not "different incident[s]." The state further contended there was "no distinction to be made" because "in the course of masturbatory contact . . . the defendant [could] penetrate[] the vulva or the anus" and there was evidence of both in Y.L.'s testimony related to the sexual conduct charges. The trial court denied the request for interrogatories.
¶16 A duplicitous charge occurs when "the text of an indictment refers only to one criminal act, but multiple alleged criminal acts are introduced to prove the charge." State v. Klokic, 219 Ariz. 241, ¶ 12 (App. 2008). If this occurs, the trial court generally must take measures to eliminate the risk of a nonunanimous verdict. Id. ¶ 14; see also Ariz. Const. art. II, § 23; State v. Waller, 235 Ariz. 479, ¶ 34 (App. 2014) (violation of defendant's right to unanimous jury verdict "constitutes fundamental error" (quoting State v. Davis, 206 Ariz. 377, ¶ 64 (2003)). The court can either require the state to choose which act establishes the crime or instruct the jury that it must unanimously agree on which act establishes the crime. Klokic, 219 Ariz. 241, ¶ 14. A court's failure to take action to eliminate the risk of a nonunanimous verdict is error. Waller, 235 Ariz. 479, ¶ 33.
¶17 The trial court need not take curative measures, however, if the separate acts are "part of a single criminal transaction." Klokic, 219 Ariz. 241, ¶ 15. To determine whether the acts are part of the same transaction, we consider whether "the defendant offer[ed] different defenses to each act or [whether] there is otherwise a reasonable basis for distinguishing between them." Id. ¶ 32; see also State v. Schroeder, 167 Ariz. 47, 53 (App. 1990) (defendant not prejudiced by charge of one count of sexual abuse even though multiple acts alleged because sole defense was credibility and verdict indicated unanimous rejection of defense); Davis, 206 Ariz. 377, ¶ 58 (distinguished from Schroeder because acts occurred eleven days apart and more than one defense offered).
¶18 Only one criminal act was offered in support of each sexual conduct charge and Barragan has not pointed to any evidence to the contrary. Therefore, the charges were not duplicitous. See Klokic, 219 Ariz. 241, ¶ 12; cf. State v. Whitney, 159 Ariz. 476, 480 (1989) (no duplicitous indictment where "the count in question is predicated on a single act"). Moreover, Barragan presented the same defense to all of the sexual conduct charges-that the state had not proven his guilt beyond a reasonable doubt and that he had been coerced into a false confession. On that basis, even if there were multiple acts underlying any given sexual conduct charge, those acts would have been part of a single transaction because "the jury's verdict[s] here impl[y] that it did not believe the only defense offered." Schroeder, 167 Ariz. at 53; see also Klokic, 219 Ariz. 241, ¶ 37 (different defenses to different acts creates possibility jury could disagree as to which act gave rise to criminal liability).
Even though the state asserts it "alleged a dual penetrative/masturbatory theory of culpability" with respect to four of the charges, the evidence did not consist of more than one act for each charge.
¶19 Barragan maintains, however, that another "reasonable basis" existed to distinguish each sexual conduct with a minor charge. He argues that the jury could have been split on whether the act offered in support of each charge constituted penetration or masturbatory contact and that the manner in which the crime was committed constituted an "element" requiring a unanimous jury verdict.
¶20 "A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age." A.R.S. § 13-1405(A). "'Sexual intercourse' means penetration into the penis, vulva or anus by any part of the body or . . . masturbatory contact with the penis or vulva." § 13-1401(A)(4).
¶21 On its face, the statutory definition of "sexual intercourse" appears to merely describe alternative means of committing the single, unified offense of sexual conduct with a minor. See id. (penetration or masturbatory contact); § 13-1405. Thus, there would be no need for juror unanimity as to precisely which means were employed to commit the offense. See State v. Encinas, 132 Ariz. 493, 496 (1982) ("Although a defendant is entitled to a unanimous jury verdict on whether the criminal act charged has been committed, the defendant is not entitled to a unanimous verdict on the precise manner in which the act was committed." (citation omitted)); State v. Luviano, Ariz., ¶¶ 14-15, 530 P.3d 388, 392-93 (2023) (unanimity not required on alternate means of committing unified offense).
¶22 But, because § 13-705 distinguishes between the two means with respect to sentencing, "'under [Apprendi v. New Jersey, 530 U.S. 466 (2000)] they must be elements,' not alternative means of committing a single offense." Luviano, Ariz., ¶¶ 15-18, 530 P.3d at 393 (quoting Mathis v. United States, 579 U.S. 500, 518 (2016)). And because the mandatory sentence for sexual conduct with a minor under twelve if committed by penetration is more severe than if committed by masturbatory contact, a jury must unanimously find that penetration occurred in order for a defendant to be subjected to § 13-705(B). See Alleyne v. United States, 570 U.S. 99, 103 (2013) ("Any fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt."); State v. Ramsey, 211 Ariz. 529, ¶ 18 (App. 2005) (elements must be found unanimously); Romero-Millan v. Barr, 253 Ariz. 24, ¶¶ 12, 15-17 (2022) (citing Alleyne and concluding unanimity necessary on "identity of a specific drug" for conviction under narcotic possession statute due to "drug-specific penalties"). Thus, the trial court should have granted Barragan's request for the interrogatories.
We note that Alleyne did not consider jury unanimity, but rather whether a judge, as opposed to a jury, can make a factual finding that increases the statutory minimum sentence. 570 U.S. at 103, 117.
¶23 But we will not reverse unless Barragan was prejudiced, and he was not prejudiced here. See Waller, 235 Ariz. 479, ¶¶ 30, 34 (special verdict form requested at trial but no reversal absent prejudice). Even if some of the jurors had based their determination on masturbatory contact and others on penetration, the latter would have necessarily found masturbatory contact because penetration cannot occur without it. See State v. Blanco, No. 2 CA-CR 2017-0362, ¶ 34 (Ariz. App. Dec. 28, 2018) (mem. decision) ("[T]here was no danger of a non-unanimous jury verdict; the jury must have found that masturbatory contact occurred even if it determined there was penetration."); cf. State v. Marshall, 197 Ariz. 496, ¶ 39 (App. 2000) ("Of course, one cannot penetrate the vagina without also contacting . . . the vulva."); Waller, 235 Ariz. 479, ¶ 36 (any juror who found assault by touching logically would have found assault by apprehension). And Barragan was not subject to mandatory life sentencing under § 13-705(B), rather, he received presumptive twenty-year terms of imprisonment under § 13-705(C). If a trial court is "uncertain as to whether a statute provides alternative means of committing the same offense or is a multiple offense statute" it should "include an interrogatory with the verdict forms where the jury could specify which offense was committed." Luviano, Ariz., ¶ 21, 530 P.3d at 394. However, in the absence of prejudice, we will not reverse. See Waller, 235 Ariz. 479, ¶¶ 30, 34, 36.
We consider Blanco solely for persuasive value because it was issued after January 1, 2015 and we have discovered no opinion adequately addressing the issue. See Ariz. R. Sup. Ct. 111(c)(1)(C).
Because we conclude Barragan was not prejudiced, we need not address whether it is appropriate for a trial court to deny an interrogatory request based on the state's indication that it will not seek a harsher penalty.
Disposition
¶24 For the foregoing reasons, we reverse Barragan's conviction and sentence for count seven of the indictment, but otherwise affirm his convictions and sentences.