Opinion
No. 2 CA-CR 2013-0327-PR
11-15-2013
THE STATE OF ARIZONA, Respondent, v. LARRY HULL, Petitioner.
Brad Carlyon, Navajo County Attorney By Galen H. Wilkes, Deputy County Attorney, Holbrook Counsel for Respondent Emery K. La Barge, Attorney at Law, Snowflake By Emery K. La Barge Counsel for Petitioner
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Supreme Court 111(c); Ariz. R. Crim. P. 31.24
Petition for Review from the Superior Court in Navajo County
No. CR20010500
The Honorable John Lamb, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Brad Carlyon, Navajo County Attorney
By Galen H. Wilkes, Deputy County Attorney, Holbrook
Counsel for Respondent
Emery K. La Barge, Attorney at Law, Snowflake
By Emery K. La Barge
Counsel for Petitioner
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred. ECKERSTROM, Judge:
¶1 Larry Hull petitions this court for review of the trial court's order summarily denying his claim of actual innocence, raised in his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Hull has not met his burden of establishing such abuse here.
¶2 Hull was convicted after a jury trial of six counts of public sexual indecency and one count of child molestation. On appeal, this court reversed two of the public sexual indecency counts and the child molestation count—all pertaining to the same victim—because of the improper admission of hearsay testimony, but we affirmed Hull's remaining convictions and sentences. State v. Hull, No. 1 CA-CR 03-0315 (memorandum decision filed Jan. 22, 2004). Hull again was convicted of those remanded counts after a new trial. Although we affirmed the new convictions on appeal, we vacated his sentences for public sexual indecency and remanded the case for resentencing on those convictions. State v. Hull, No. 1 CA-CR 06-425 (memorandum decision filed Jul. 17, 2007). Hull then was sentenced to consecutive one-year prison terms, to be served consecutively to the seventeen-year term imposed for his conviction of child molestation. We affirmed his sentences for public sexual indecency on appeal. State v. Hull, No. 1 CA-CR 08-0999 (memorandum decision filed Aug. 6, 2009).
¶3 Hull sought post-conviction relief, arguing that trial and appellate counsel had been ineffective in a variety of ways and that he was actually innocent. The trial court concluded that several of Hull's claimed instances of ineffective assistance of counsel were not colorable and that his claim of actual innocence was precluded pursuant to Rule 32.2(a)(2). The court set an evidentiary hearing to evaluate Hull's remaining claims of ineffective assistance of counsel. After Hull filed a motion for reconsideration, the court amended its ruling to state that Hull's actual innocence claim was not colorable, noting that this court had rejected on appeal his claim that there was insufficient evidence to support his child molestation conviction. After the evidentiary hearing, the court denied relief on Hull's remaining claims and dismissed the Rule 32 proceeding.
¶4 In his petition for review, Hull argues only that he was entitled to an evidentiary hearing on his claim of actual innocence. Such a claim pursuant to Rule 32.1(h) requires a defendant to "demonstrate[] by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would have found defendant guilty of the underlying offense beyond a reasonable doubt." "Clear and convincing" evidence is evidence demonstrating that the "truth of the contention is 'highly probable.'" State v. Roque, 213 Ariz. 193, ¶ 75, 141 P.3d 368, 390 (2006), quoting In re Neville, 147 Ariz. 106, 111, 708 P.2d 1297, 1302 (1985).
¶5 A trial court must summarily dispose of a claim if does not "present[] a material issue of fact or law which would entitle the defendant to relief." Ariz. R. Crim. P. 32.6(c). Hull is entitled to an evidentiary hearing pursuant to Rule 32.8 only if he presents a colorable claim; that is, whether taking his allegations as true, he would be entitled to relief. See State v. Jackson, 209 Ariz. 13, ¶ 2, 97 P.3d 113, 114 (App. 2004).
¶6 Hull's argument on review is general and merely repeats—largely without the benefit of citations to the record—his claims that the allegations against him were fabricated, that the victim's trial testimony lacked detail at times, and that some of her testimony was inconsistent with a prior statement she had made to police and with her testimony during Hull's first trial. His assertions are similar to those he made in his claim on appeal that insufficient evidence supported his conviction of child molestation—a claim we rejected. See Hull, No. 1 CA-CR 06-0425, ¶¶ 33-37. ¶7 Moreover, Hull does not assert that he was not permitted to present any of the evidence he describes during his trial, and none of the evidence he describes constitutes anything but impeachment evidence. The jury is the sole judge of a witness's credibility, and a victim's uncorroborated testimony is sufficient to support a conviction. See State v. Williams, 209 Ariz. 228, ¶ 6, 99 P.3d 43, 46 (App. 2004) ("Although the record contains some conflicting evidence, it was for the jury to weigh the evidence and determine the credibility of the witnesses."); State v. Jerousek, 121 Ariz. 420, 427, 590 P.2d 1366, 1373 (1979) ("In child molestation cases, the defendant can be convicted on the uncorroborated testimony of the victim."). Thus, Hull has not demonstrated it is highly probable that a jury would have acquitted him. See Ariz. R. Crim. P. 32.1(h). And, in any event, his failure to support his argument with citations to the record warrants its summary rejection. See Ariz. R. Crim. P. 32.9(c)(1) ("[T]he petition for review shall contain specific references to the record."); see also State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (insufficient argument waives claim on review). ¶8 For the reasons stated, although review is granted, relief is denied.
To the extent Hull attempts to incorporate by reference his petition filed below, that procedure is not permitted by our rules. Ariz. R. Crim. P. 32.9(c)(1)(iv). The only citations to the record Hull provides in his argument on review are two references to his affidavit in support of his claim that the victim testified she did not know or remember certain facts "a total of seventy (70) times" during Hull's second trial and her claim that she had no memory of discussing one of the incidents with police.