Opinion
No. 2 CA-CR 2016-0370
03-13-2018
THE STATE OF ARIZONA, Appellee, v. TAUN LYNN HUGHES, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee Rosemary Gordon Pánuco, 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NOT FOR PUBLICATION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 Pinal County
No. S1100CR201502738
The Honorable Kevin D. White, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee Rosemary Gordon Pánuco, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred. BREARCLIFFE, Judge:
¶1 Appellant Taun Hughes appeals her convictions for multiple counts of sexual exploitation of a minor, luring a minor for sexual exploitation, and sexual conduct with a minor. She argues that the evidence at trial does not support the verdicts, that the trial court abused its discretion by amending the indictment to renumber the counts, and that the court erred by giving an incorrect instruction to the jury on constructive possession. We affirm.
Factual Background and Procedural History
¶2 In August 2015, Hughes was indicted on sixteen offenses: three counts of sexual exploitation of a minor, four counts of luring a minor for sexual exploitation, eight counts of sexual conduct with a minor, and one count of sexual abuse, all arising from a series of images of a minor found on her smart phone. In April 2016, the indictment was amended to add four additional charges: three new counts of sexual exploitation of a minor and one new count of sexual conduct with a minor. Hughes was tried before a jury in September 2016. Mid-trial, her indictment was further amended, this time to renumber some of the counts and to adjust dates of the crimes. After deliberation, the jury found Hughes guilty of five counts of sexual exploitation of a minor, four counts of luring a minor for sexual exploitation, and five counts of sexual conduct with a minor. The jury acquitted Hughes of three counts of sexual conduct with a minor and of one count of sexual exploitation of a minor. The jury deadlocked on one count of sexual conduct with a minor and on one count of sexual abuse, and, on the state's motion, the trial court dismissed those charges.
Neither the trial court, the state nor defense counsel could remember which counts were to be dismissed. The court stated, and counsel originally agreed, that the counts were ten and eleven, however the trial record indicates that they should have been counts ten and sixteen. The jury found Hughes not guilty of count eleven, sexual conduct with a minor. Hughes now asks this court to remand this case to correct the dismissal of count sixteen, which was intended by the state's motion. However, nothing in this decision prevents counsel from moving the trial court pursuant to Rule 24.4, Ariz. R. Crim. P. which states that "[t]he court on its own or on a party's motion may, at any time, correct clerical errors, omissions, and oversights in the record."
¶3 In October 2016, Hughes was sentenced to fourteen years' imprisonment for each count of sexual exploitation of a minor, eight years for each count of luring a minor for sexual exploitation, and seventeen years for each count of sexual conduct with a minor. Collectively, Hughes received a 187-year prison sentence with all counts to be served consecutively.
Sufficiency of Evidence
¶4 On appeal, Hughes claims the evidence was insufficient for the jury to reach guilty verdicts for the sexual exploitation of a minor and luring charges on the dates stated in the jury verdict forms. For the five sexual exploitation charges and the four luring charges, the jury verdicts each indicated the dates of the crimes to be in "October . . . 2015." However, the indictment alleged, and the evidence at trial showed, that the crimes were committed in August 2015. She argues that the state presented no evidence that she had committed these crimes in October 2015, as stated on the verdict forms, and thus that the evidence was insufficient.
¶5 At the close of the state's case, Hughes moved for a judgment of acquittal, pursuant to Rule 20, Ariz. R. Crim. P., for "insufficiency of the evidence," but did not argue how the evidence was insufficient. Ariz. R. Crim. P. 20(a)(1). The trial court denied the motion. At no time before the reading of the verdict forms, or even after the final verdicts were returned, did Hughes object to the October 2015 dates in the verdict forms. Because her claim on appeal that the evidence was "insufficient" due to the erroneous verdict forms could not have been contemplated by her Rule 20 motion at trial—given that the forms of verdict had not been settled yet—the Rule 20 motion did not preserve this claim of error. See State v. Graves, 188 Ariz. 24, 26 (App. 1996) (unless error is fundamental, parties cannot object to verdict forms for first time on appeal); see also State v. Whalen, 192 Ariz. 103, 110-11 (App. 1997) (defendant waived appellate review of claim that trial court erred in denying Rule 20 motion when defendant did not specify defect in state's evidence); see also Ariz. R. Crim. P. 21.3(b) (appellate review limited if party fails to object on the record). Indeed, at the close of the case the court settled the verdict forms and the state and the defense approved both the forms and the court's instruction to the jury that the dates in the verdict forms would control their deliberations. When a claim is not preserved at trial, and is raised for the first time on appeal, we review it for fundamental error. State v. Henderson, 210 Ariz. 561, ¶ 19 (2005). However, because Hughes does not argue that this error was fundamental, the issue is waived, and we will not review it. State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008).
¶6 Nonetheless, the "October . . . 2015" dates in the verdict forms were clearly the result of clerical, not fundamental, error. When evaluating clerical errors, judgments which are "ambiguous and uncertain may be read in connection with the entire record and construed accordingly." Benson v. State ex rel. Eyman, 108 Ariz. 513, 515 (1972). Here, the trial court properly read the indictment which specified the correct dates of the offenses into the record. When the state later amended the indictment, the state read the newly amended counts into the record and did not change the dates of the offenses when doing so. All the evidence at trial referred to the correct dates of the offenses, and, as noted, Hughes did not object to the jury verdict forms before they were given to the jury. Had Hughes objected to the forms, the trial court could have cured the error immediately. See State v. Totress, 107 Ariz. 18, 20 (1971) (it is fundamental that trial court should be given first opportunity to correct any error); see also State v. Sucharew, 205 Ariz. 16, ¶ 17 (App. 2003) (party should have raised privilege issue at trial so court could have promptly cured any error).
The state does not contest that the dates on the verdict forms for the sexual exploitation and luring charges are different from the dates in the indictment.
Hughes also implies in her opening brief that the evidence was insufficient for the sexual conduct with a minor charges because "[t]he facts underlying these charges came solely from [the victim] who claimed they took place." Hughes, however, fails to develop a legal argument to support this assertion, and therefore we find she waived this claim on appeal. See Ariz. R. Crim. P. 31.10(a)(7); see also State v. Moody, 208 Ariz. 424, n.9 (2004) ("Merely mentioning an argument is not enough."). Additionally, the testimony from the victim alone, can be sufficient. See State v. Verdugo, 109 Ariz. 391, 393 (1973) (juries may reach convictions upon the testimony of the victim or prosecuting witness alone, whose truth is for the jury). --------
Due Process Claim from Amending the Indictment
¶7 Hughes claims that the trial court abused its discretion when it allowed the state to renumber the counts in the indictment because it resulted in jury confusion, thus violating her due process right to a fair trial. In her opening brief, Hughes acknowledges that she only objected to the renumbering of the indictment on Sixth Amendment, notice grounds, and concedes that she is now, for the first time, raising Fifth and Fourteenth Amendment due process claims. Because Hughes never made a due process objection below and is raising it for the first time on appeal, this court reviews for fundamental error. Henderson, 210 Ariz. 561, ¶ 19. In order to prevail under fundamental review, "a defendant must establish both that fundamental error exists and that the error . . . caused h[er] prejudice." Id. ¶ 20. Though Hughes alleges jury confusion as prejudice, she has failed to point to anything in the record that shows actual jury confusion. This is mere speculation. See State v. Gallegos, 178 Ariz. 1, 11 (1994) ("Mere speculation that the jury was confused is insufficient to establish actual jury confusion" and thus insufficient to reach prejudice.). Because Hughes has failed to show that she was prejudiced she has not established fundamental error here. See State v. Maldonado, 223 Ariz. 309, ¶ 26 (2010). There is no evidence that the jury was confused, much less that such confusion compromised Hughes's ability to present a defense.
Jury Instructions
¶8 Hughes also argues that the trial court abused its discretion by failing to give an adequate jury instruction on constructive possession. "We evaluate the trial court's denial of a proposed jury instruction for abuse of discretion, but review de novo whether a jury instruction correctly states the law." State v. Cox, 217 Ariz. 353, ¶ 15 (2007). The court gave the following instruction:
Possession Defined
The law recognizes different types of possession.
"Actual possession" means the defendant knowingly had direct physical control over an object.
"Constructive possession" means the defendant, although not actually possessing an object, knowingly exercised dominion or control over it, either acting alone or through another person. "Dominion or control" means either actual ownership of the object or
power over it. Constructive possession may be proven by direct or circumstantial evidence.(Emphasis added). The court also instructed that, "The crime of sexual exploitation of a minor requires proof that the defendant knowingly possesses any visual depiction in which a minor was engaged in exploitative exhibition."
. . . .
You may find that the element of possession, as the term is used in these instructions, is present if you find beyond a reasonable doubt that the defendant had actual or constructive possession . . . .
¶9 At trial, Hughes objected to the definition of "constructive possession," by asserting that "[t]he objection comes under the definition of what is—starts off with constructive possession. Defense's argument is that the statute itself requires the mens rea or the knowingly wording in the statute." The state countered that "the defendant can knowingly either constructively or actually possess under the law, and we would ask that you give that instruction." The trial court overruled Hughes's objection stating, "[T]he constructive possession definition does reference to knowingly exercis[ing] dominion or control over. So . . . it encompasses that mens rea."
¶10 Hughes asserts that the instruction was improper because the jury should have been instructed that, in addition to needing to prove that she knowingly possessed the phone, the state needed to prove that she knowingly possessed the sexual images on the phone. She now argues that the instruction given was "not adequate to convey the level of knowledge required by the crime charged." Hughes does not, however, show how the given instruction on constructive possession misstates the law or develop any argument supporting the claim of error. See Ariz. R. Crim. P. 31.10(a)(7); see also State v. Carver, 160 Ariz. 167, 175 (1989) ("opening briefs must present significant arguments, supported by authority"; failure to properly argue a claim constitutes abandonment and waiver).
¶11 Additionally, "in evaluating the jury instructions, we consider the instructions in context and in conjunction with the closing arguments of counsel." State v. Johnson, 205 Ariz. 413, ¶ 11 (2003). It was not the state's argument that Hughes merely possessed the phone. The state's argument was clearly premised on the fact that she possessed illegal content contained within the phone, and that she obtained that content from a knowing exchange of sexual messages and photographs between her and the victim. Viewed individually, in their entirety, and in context, the trial court's instructions adequately stated the law, and we do not find that the court abused its discretion.
¶12 For the foregoing reasons we affirm.