Opinion
No. 1 CA-CR 12-0269
03-06-2014
STATE OF ARIZONA, Appellee, v. CHAD MICHAEL GOULDING, Appellant.
Arizona Attorney General's Office, Phoenix By Alice Jones Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Kathryn L. Petroff Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 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. CR2010-008040-001
The Honorable Joseph C. Kreamer, Judge
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Alice Jones
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Kathryn L. Petroff
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in which Judge Samuel A. Thumma and Judge Patricia A. Orozco joined. HOWE, Judge:
¶1 Goulding appeals from his sentences and convictions that arose from a string of bank robberies in 2006. For the following reasons, we affirm as modified.
FACTS AND PROCEDURAL HISTORY
¶2 A jury convicted Goulding on sixteen counts of armed robbery, sixty-one counts of kidnapping, five counts of aggravated assault, and five counts of robbery. The trial court sentenced Goulding to concurrent and consecutive prison terms totaling 45.75 years with credit for 491 days of presentence incarceration. Goulding timely appealed.
DISCUSSION
¶3 On appeal, Goulding argues that (A) the trial court erred by refusing to allow contemporaneous recordation of bench conferences; (B) the evidence was insufficient to support the convictions on three counts of kidnapping as dangerous crimes against children; and (C) the trial court imposed a sentence on one of the aggravated assault offenses that was longer than it intended. For the reasons that follow, we affirm Goulding's convictions and sentences, but modify the sentence imposed on an aggravated assault offense—Count 76—to make the length consistent with the trial court's expressed intent to impose a minimum term of imprisonment.
A. Unrecorded Bench Conferences
¶4 Goulding first argues that the trial court erroneously refused his request to make a contemporaneous record of bench conferences. In denying the request, the trial court stated that having the court reporter record every bench conference would hurt trial continuity and was not necessary.
¶5 Arizona appellate courts have long disapproved of the practice of not recording bench conferences. See State v. Paxton, 186 Ariz. 580, 589, 925 P.2d 721, 730 (1996) (and cases cited therein). Nevertheless, as noted in Paxton, none of the decisions disapproving of this practice have concluded that it constitutes error, let alone reversible error. Id. Indeed, the Arizona Supreme Court recently reiterated that it has "never required 'the verbatim reporting of all bench conferences.'" State v. Hargrave, 225 Ariz. 1, 16 ¶ 61, 234 P.3d 569, 584 (2010) (quoting State v. Berndt, 138 Ariz. 41, 46, 672 P.2d 1311, 1316 (1983)). The only requirement is that "the court record must be sufficiently complete to allow 'adequate consideration of the errors assigned.'" Id. (quoting State v. Moore, 108 Ariz. 532, 534, 502 P.2d 1351, 1353 (1972)).
¶6 As in Paxton and Hargrave, the parties were not prevented from making contemporaneous objections in open court and were allowed to make a record of their arguments at breaks outside the presence of the jury. Moreover, Goulding does not show how the lack of recorded bench conferences prejudiced him with respect to the issues raised on appeal. Although trial courts should record bench conferences, the trial court's failure to do so here does not constitute reversible error. Paxton, 186 Ariz. at 589, 925 P.2d at 584.
B. Sufficiency of Evidence
¶7 Goulding next argues that the evidence was insufficient to support the convictions on Counts 43, 44, and 45 for kidnapping, each a dangerous crime against children. These three convictions were based on the presence of three children under the age of fifteen in the bank during the second of the five bank robberies. He argues that these convictions should not have been designated dangerous crimes against children because the State did not present sufficient evidence that his conduct focused on the children in committing the offenses. He also argues the evidence only established the presence of two children in the bank. We review claims of insufficient evidence de novo. State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993).
¶8 In considering claims of insufficient evidence, this Court's review is limited to whether substantial evidence supports the verdicts. State v. Scott, 177 Ariz. 131, 138, 865 P.2d 792, 799 (1993); see also Ariz. R. Crim. P. 20(a) (requiring trial court to enter judgment of acquittal "if there is no substantial evidence to warrant a conviction"). "Substantial evidence is proof 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, 908 P.2d 1062, 1075 (1996). This Court will reverse a conviction for insufficient evidence only if "there is a complete absence of probative facts to support [the jury's] conclusion." State v. Mauro, 159 Ariz. 186, 206, 766 P.2d 59, 79 (1988).
¶9 A person commits kidnapping by knowingly restraining a person with the intent to "aid in the commission of a felony." A.R.S. § 13-1304(A)(3). Under the dangerous crimes against children statute then in effect, A.R.S. § 13-604.01 (2006), specified offenses, including kidnapping, are considered dangerous crimes against children when committed against a minor under fifteen years of age. A dangerous crime against children is subject to enhanced penalties with the sentence having to be served consecutively to any other sentence. A.R.S. § 13-604.01(K); State v. Williams, 175 Ariz. 98, 99-100, 854 P.3d 131, 132-33 (1993).
Renumbered in 2009 to A.R.S. § 13-705. See 2008 Ariz. Sess. Laws, ch. 301, §§ 17, 29 (2nd Reg. Sess.), eff. Jan. 1, 2009. The relevant provisions are substantively unchanged.
Since renumbered A.R.S. § 13-705(M).
--------
¶10 In challenging the convictions for kidnapping on Counts 43, 44, and 45 as dangerous crimes against children, Goulding does not contest the sufficiency of the evidence regarding the elements of the offense of kidnapping or the ages of the victims. Instead, he claims only that the offenses should not be considered dangerous crimes against children because he did not "focus" on the children in committing the bank robbery and the jury made no specific finding that the offenses were dangerous crimes against children. Neither argument has merit.
¶11 An offense constitutes a dangerous crime against children only if "the defendant's conduct must be focused on, directed against, aimed at, or target a victim under the age of fifteen." Williams, 175 Ariz. at 103, 854 P.2d at 136. The evidence showed that Goulding targeted everyone in the bank in committing the kidnappings during the robbery at which the children were present. Witnesses testified that after he entered the bank wearing a black ski mask and holding a handgun, he ordered "everybody to get down on the floor." Everyone in the bank complied with the command, including the children who were the victims in Counts 43, 44, and 45. Whether Goulding was aware that some of the victims he kidnapped in the bank were young children is immaterial. Knowledge of a victim's age is unnecessary: "When an individual targets a person, he or she generally assumes the risk that the victim will turn out to be within a protected age group." Id.
¶12 We further reject Goulding's argument that the enhanced sentences imposed for the convictions on Counts 43, 44, and 45 should be vacated because the jury did not make a specific finding that these three kidnapping offenses were dangerous crimes against children. The jury found that Goulding committed the offense of kidnapping as charged in these counts and that each victim was under the age of fifteen. These findings are all that is necessary for the offenses to be deemed dangerous crimes against children. See A.R.S. § 13-1304(B) (2006) ("If the victim is under fifteen years of age kidnapping is a class 2 felony and punishable pursuant to section 13-604.01."); Williams, 175 Ariz. at 104, 854 P.2d at 137 ("It is impossible to imagine how . . . kidnapping . . . could be committed without targeting persons.").
¶13 Goulding also argues that the evidence showed only two, rather than three, children in the bank when he robbed it. Although several of the witnesses testified that they saw only two children in the bank, other witnesses testified that three children under the age of fifteen were present. Any inconsistency in the evidence about the number of children present was a matter for the jury to resolve. See State v. Money, 110 Ariz. 18, 25, 514 P.2d 1014, 1021 (1973) ("[I]t is the jury's function to weigh the evidence as a whole, to resolve any inconsistencies therein, and then to determine whether or not a reasonable doubt exists."). Furthermore, contrary to Goulding's contention, the fact that neither the children nor their parents appeared at trial does not violate Goulding's right of confrontation or preclude a finding that three child victims were present. State v. Valdez, 160 Ariz. 9, 12, 770 P.2d 313, 316 (1989), overruled on other grounds by Krone v. Hotham, 181 Ariz. 364, 890 P.2d 1149 (1995); see also United States v. Porter, 764 F.2d 1, 9 (1st Cir. 1985) ("The confrontation clause does not come into play where a potential witness neither testifies nor provides evidence at trial."). Thus, we hold the evidence presented was sufficient to support the jury's finding that Goulding committed three counts of kidnapping involving victims under the age of fifteen.
¶14 In connection with his claim of insufficient evidence with respect to the number of child kidnapping victims, Goulding argues that the prosecutor engaged in misconduct by misstating the number of witnesses who testified to seeing three children in the bank. Because Goulding did not object at trial, he has forfeited appellate review of this claim absent fundamental error. State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005). For Goulding to prevail under the fundamental error standard, he must establish both that fundamental error exists and that the error caused him prejudice. Id. at ¶ 20.
¶15 A conviction will be reversed for prosecutorial misconduct only if misconduct has occurred and a reasonable likelihood exists that the misconduct denied the defendant a fair trial. State v. Morris, 215 Ariz. 324, 335 ¶ 46, 160 P.3d 203, 214 (2007). Prosecutorial misconduct "is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal." Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984). Nothing in the record indicates that any misstatements by the prosecutor during closing argument about the number of children present at one of the five bank robberies were the result of anything other than a mere mistake on the prosecutor's part.
¶16 In any event, given the trial court's instructions that opening statements and closing arguments are not evidence, Goulding is unable to meet his burden of establishing prejudice. See State v. Bowie, 119 Ariz. 336, 340, 580 P.2d 1190, 1194 (1978) ("Any possible prejudice from the opening statement was overcome by the court's cautionary instructions that evidence did not come from the attorneys and that the verdict must be determined only by reference to the evidence . . . ."). We presume that jurors follow the trial court's instructions. State v. Newell, 212 Ariz. 389, 403 ¶ 68, 132 P.3d 833, 847 (2006). Accordingly, we find no fundamental error in the prosecutor's closing argument.
C. Sentencing Error
¶17 Goulding also argues that the trial court erred in ordering a sentence of 15.75 years' imprisonment on Count 76. The State confesses error, and we agree.
¶18 At sentencing, the trial court stated that the appropriate aggregate term of imprisonment Goulding should serve on his eighty-seven convictions was 45.75 years. In ordering the sentences on each count, the trial court grouped like counts together and imposed a sentence applicable to each of the counts in the group. In all cases -- with the sole exception of Count 76 -- the sentences imposed were the minimum sentence for each count. In imposing the sentences, the trial court included Count 76 in a group with 15 other counts involving convictions for kidnapping and armed robbery, all class 2 dangerous felonies, and imposed concurrent minimum 15.75-year terms of imprisonment for each count in the group. Unlike the other counts in this group, however, Count 76 was a conviction for aggravated assault, a class 3 dangerous felony.
¶19 The record shows that the trial court intended to impose a minimum 11.25-year prison term for Count 76 pursuant to A.R.S. § 13-702.02(B)(2) (2006) and misspoke in grouping this count with Class 2 felonies. The 11.25-year sentence for Count 76 correlates with the overall sentencing scheme of imposing minimum sentences on all counts including the 11.25-year sentences imposed on the three other aggravated assault counts subject to sentencing under A.R.S. § 13-702.02(B)(2). Further, the minimum term of 11.25 years is the maximum sentence that could be lawfully imposed on the conviction in Count 76 for the aggravated assault charged given that the State proved no aggravating factors. A.R.S. § 13-702(B) (2006). Consequently, the 15.75-year term of imprisonment imposed on Count 76 was an illegal sentence. An illegal sentence constitutes fundamental error and will be reversed on appeal even without an objection. State v. Cox, 201 Ariz. 464, 468 ¶ 13, 37 P.3d 437, 441 (App. 2002).
¶20 When the record demonstrates the trial court's intention, remand for resentencing is unnecessary. State v. Bowles, 173 Ariz. 214, 216, 841 P.2d 209, 211 (App. 1992). Pursuant to A.R.S. § 13-4037, we modify the sentence imposed on Count 76 (and, accordingly, the trial court's April 12, 2012 sentencing minute entry) by reducing the sentence to the minimum term of 11.25 years imprisonment. We affirm Goulding's sentences in all other respects.
D. Additional Suggested Issues
¶21 Goulding includes a list of seven additional issues in his opening brief, which he suggests "have merit" and that this Court "may wish to consider." No arguments are developed with respect to these issues as required by Arizona Rule of Criminal Procedure 31.13(c)(1)(vi). As a result, these issues are procedurally defaulted pursuant to Rule 31.13(c). State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995).
CONCLUSION
¶22 For the foregoing reasons, the convictions and sentences are affirmed subject to the sentence imposed on Count 76 being modified to the minimum term of 11.25 years imprisonment.