Opinion
No. 1 CA-CR 12-0231
04-23-2013
STATE OF ARIZONA, Appellee, v. DOUGLAS FRANCIS DISHON, Appellant.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix John David Napper, Attorney at Law Attorney for Appellant Prescott
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(Not for Publication -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 Yavapai County
Cause No. V1300CR820040704
The Honorable Michael R. Bluff, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix John David Napper, Attorney at Law
Attorney for Appellant
Prescott DOWNIE, Judge ¶1 Douglas Francis Dishon timely appeals his convictions for sexual conduct with a minor, molestation of a child, and continuous sexual abuse of a child in violation of Arizona Revised Statutes ("A.R.S.") sections 13-1405, -1410, and -1417. Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has searched the record, found no arguable question of law, and asked that we review the record for fundamental error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Despite being given the opportunity, Dishon did not file a supplemental brief in propria persona. On appeal, we view the evidence in the light most favorable to sustaining the convictions. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981), cert. denied, 459 U.S. 882 (1982).
FACTS AND PROCEDURAL HISTORY
¶2 The victim lived with Dishon, who was married to her mother. Her first recollection of being molested occurred when she was in kindergarten. Dishon was driving her home and she fell asleep; she awakened to Dishon touching her vagina with his mouth. Another incident occurred when the victim was seven or eight. Dishon had her touch his penis, and he rubbed it against her vagina while she was wearing no underwear. On another occasion, Dishon and the victim were camping in their backyard, and he had her touch his penis. Another incident took place when the victim was asleep on the couch and woke up to find Dishon touching her vagina with his fingers. That same night, the victim awoke to Dishon again touching her vagina. The last molestation occurred when the victim was ten years old. Dishon asked her to touch his penis, and they "rubbed against each other." ¶3 The victim disclosed the molestation to her mother when she was 13 years old. She was advised to "forgive and forget." When the victim was 15, she disclosed the molestation to a co-worker. Child Protective Services ("CPS") and the Yavapai County Sheriff's Office initiated investigations. Dishon told the victim he and her mother would "take off," and she would not see them again. The victim decided to say she had lied about the molestation. The following day, her mother called CPS to say the victim had recanted. Dishon was interviewed by law enforcement, but no charges were filed. ¶4 The victim was sent to school at Mingus Mountain Academy. While there, a detective interviewed her, and she confirmed she had lied about the molestation. After the victim graduated, she lived with her maternal grandmother. She disclosed the molestation, and her grandmother set up a meeting with the victim and her mother. However, Dishon also attended the meeting. After the grandmother confronted Dishon, he ultimately admitted to molesting the victim more than 15 times. Dishon said "it happens in all families" and to "get over it and go on with . . . life." The grandmother contacted law enforcement, but the county attorney declined to prosecute due to "inconsistency in the case." ¶5 In February 2004, the victim, now 19, contacted the Yavapai County Sheriff's Office because she feared for the safety of other children. Due to the lack of corroborating evidence and her previous recantations, she was sent home with a recorder and instructions for a confrontation call. The victim called Dishon, but he refused to speak about the molestation over the phone. The sheriff's office thereafter fitted the victim with a body wire, and she confronted Dishon in person. ¶6 Dishon was arrested in 2004 and indicted on ten counts of child molestation. He was released after posting bond. When he failed to appear for a subsequent hearing, a warrant issued for his arrest. In August 2010, Dishon was found living in Mexico under an alias. A new indictment issued in November 2011, charging him with one count of sexual conduct with a minor, a class two felony; two counts of child molestation, both class two felonies; and one count of continuous sexual abuse of a child, a class two felony. ¶7 A jury trial ensued. The State presented four witnesses: the victim, her grandmother, and two detectives. The State also introduced the recording of the in-person confrontation. At the conclusion of the State's case in chief, Dishon moved for a judgment of acquittal pursuant to Rule 20, Arizona Rules of Criminal Procedure ("Rule"). The motion was denied. Dishon presented six defense witnesses: a forensic psychologist, the victim's counselor at Mingus Mountain, Dishon's first wife, Dishon's two daughters from a previous marriage, and the victim's grandmother's sister. Testimony given by the victim's mother at Dishon's release hearing in October 2004 was read to the jury because she was now deceased. ¶8 The jury found Dishon guilty on all counts. He was sentenced to presumptive terms of 20 years for count 1, 17 years for count 2, 17 years for count 3, and 20 years for count 4. The sentences were ordered to run consecutively, with 921 days' presentence incarceration credit.
The victim's mother's decomposed body was found in Mexico, buried under a concrete floor in the basement of Dishon's residence.
The court originally awarded 685 days' credit, but the parties later stipulated Dishon was entitled to 921 days, and the court amended its sentencing order.
--------
DISCUSSION
¶9 We have read and considered the brief submitted by defense counsel and have reviewed the entire record. Leon, 104 Ariz. at 300, 451 P.2d at 881. We find no fundamental error. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentences imposed were within the statutory range. Defendant was present at all critical phases of the proceedings and was represented by counsel. The jury was properly impaneled and instructed. The jury instructions were consistent with the offenses charged. The record reflects no irregularity in the deliberation process. ¶10 The trial court properly denied the Rule 20 motion. A judgment of acquittal is appropriate only when "there is no substantial evidence to warrant a conviction." Rule 20(a). Substantial evidence is such 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) (citations omitted). "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). Viewing the evidence in the light most favorable to sustaining the verdict and resolving all reasonable inferences against the defendant, State v. Mincey, 141 Ariz. 425, 432, 687 P.2d 1180, 1187 (1984), the jury had a factual and legal basis for its guilty verdicts. See State v. Gallagher, 169 Ariz. 202, 203, 818 P.2d 187, 188 (App. 1991) ("[T]he credibility of a witness is for the trier-of-fact, not an appellate court.").
CONCLUSION
¶11 We affirm Dishon's convictions and sentences. Counsel's obligations pertaining to Dishon's representation in this appeal have ended. Counsel need do nothing more than inform Dishon 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. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court's own motion, Dishon shall have 30 days from the date of this decision to proceed, if he desires, with an in propria persona motion for reconsideration or petition for review.
_______________
MARGARET H. DOWNIE,
Presiding Judge
CONCURRING: _______________
MAURICE PORTLEY, Judge
_______________
PHILIP HALL, Judge