Opinion
1 CA-CR 10-0763
01-19-2012
STATE OF ARIZONA, Appellee, v. DAN KECK, Appellant.
Thomas C. Horne, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Adriana M. Zick, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender by Joel M. Glynn, Deputy Public Defender Attorneys for Appellant
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(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)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 Maricopa County
Cause No. CR2010-102913-001 DT
The Honorable Sherry K. Stephens, Judge
AFFIRMED
Thomas C. Horne, Attorney General
by Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
and Adriana M. Zick, Assistant Attorney General
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
by Joel M. Glynn, Deputy Public Defender
Attorneys for Appellant
Phoenix PORTLEY , Judge
¶1 Defendant Dan Keck challenges his convictions for child molestation and sexual conduct with a minor. He argues that the court lacked jurisdiction to try him on two of the counts because the evidence at trial did not conform to the indictment. He also argues that four out of the five counts were duplicitous. For the following reasons, we affirm the convictions.
FACTS
¶2 Defendant was indicted in January 2010 on three counts of sexual conduct with a minor, dangerous crimes against children (counts one, two and five) in violation of Arizona Revised Statutes ("A.R.S.") section 13-1405 (West 2011), and two counts of child molestation, dangerous crimes against children (counts three and four) in violation of A.R.S. § 13-1410 (West 2011), against A.M., a child under fifteen years of age.
¶3 He pled not guilty, and the State subsequently filed a notice to admit other act evidence pursuant to Arizona Rule of Evidence 404(b) and (c), and a motion in limine to admit certain uncharged sexual act evidence. After briefing and argument, the trial court granted both motions.
¶4 At trial, the jury heard that Defendant befriended the five-year-old victim and her family in 2004 when they lived in the same Phoenix apartment complex. The victim began spending a significant amount of time with the fifty-eight-year-old man even after her parents divorced and her father later remarried, including overnights at Disney World, Laughlin, and other outings.
¶5 In 2009, the victim's father learned that Defendant had been arrested in Florida, and asked his daughter if Defendant had ever inappropriately touched her. She told him yes, he called the police, and the matter was investigated. The young victim testified at trial, and Defendant testified after his motion for directed verdict was denied.
¶6 The jury convicted Defendant on all five counts. The jury also found that the victim was under twelve at the time Defendant committed the three counts of sexual conduct with a minor, and Defendant was subsequently sentenced to life without the possibility of parole for thirty-five years on counts one, two, and five, each consecutive, and seventeen years on counts three and four to be concurrent to each other, but consecutive to count five. He was also given 224 days of presentence incarceration credit on count one. Defendant appealed, and we have jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and A.R.S. §§ 12-120.21(A)(1) (West 2011), 13-4031 (West 2011), and 13-4033(A)(1) (West 2011).
DISCUSSION
¶7 Defendant first challenges his convictions on counts two and three. He essentially argues that the convictions cannot be affirmed because the evidence produced at trial demonstrated that the dates of the alleged acts were different than the dates alleged in the indictment. Stated differently, he argues there was no evidence which demonstrated that the two counts occurred between April 1, 2008, and April 30, 2009, as alleged in the indictment. As a result, he argues that the court did not have jurisdiction to try him on those two counts, and that the court abused its discretion when it admitted the "other acts" evidence because the evidence impermissibly constructively amended the indictment.
¶8 We review the admission of other act evidence and whether the indictment was amended for an abuse of discretion. State v. Villalobos, 225 Ariz. 74, 80, ¶ 18, 235 P.3d 227, 233 (2010) (citation omitted) (admission of other act evidence) cert. denied, 131 S. Ct. 901 (2011); State v. Johnson, 198 Ariz. 245, 247, ¶ 4, 8 P.3d 1159, 1161 (App. 2000) (citation omitted) (amendment of indictment).
¶9 The victim testified that Defendant started abusing her when she was five years old and that the abuse lasted five years. Although he would put his penis in her mouth on occasion, he would generally engage in "the same routine over and over"; namely, Defendant would rub Vaseline on her vagina and attempt to insert his penis into her vagina without success, but would then rub Vaseline on her bottom and penetrate her anally.
A.M. was born in July 1999.
¶10 The indictment alleged the acts in counts two and three occurred between April 1, 2008, and April 30, 2009. With respect to count two, the victim testified that Defendant put his penis in her mouth at the Adasheo apartments and when he was living in Munds Park. Although the evidence demonstrated that she lived in the Adesheo apartments before April 1, 2008, other trial evidence demonstrated that the victim shared a room with Defendant in a different apartment complex and, after he moved out, she went to his cabin in Munds Park after March 2009. The jury, as a result, heard evidence that Defendant had access to the victim between April 2008 and April 2009 in Maricopa County, and had to determine whether the State had proven its case beyond a reasonable doubt. Consequently, because there was evidence that demonstrated directly or by inference that Defendant put his penis in the victim's mouth between April 1, 2008, and April 30, 2009, in Maricopa County, the range of dates of the sexual conduct in the indictment did not have to be amended to conform to the evidence.
¶11 The child molestation charges occurred between the same dates. The victim testified that Defendant used Vaseline to attempt to penetrate her vaginally and then would penetrate her anally when she was eight or nine years old. Because she was between eight and nine years old between the dates in the indictment for count three, there was no testimonial amendment to count three.
¶12 We also consider Defendant's argument that the evidence which supported count two occurred earlier than alleged in the indictment. Even if the jury convicted Defendant based on the evidence which occurred before April 2008, we would not reverse the conviction because the alleged date of the event is not an element of sexual misconduct with a minor. A.R.S. § 13-1405; State v. Jones, 188 Ariz. 534, 543, 937 P.2d 1182, 1191 (App. 1996) (citation omitted). In Jones, the victim had difficulty remembering the dates of the offenses. 188 Ariz. at 543, 937 P.2d at 1191. We found that any difference between the dates in the indictment and the dates provided by the victim's testimony did not require a reversal of the convictions. Id. We stated that:
A technical or formal defect in an indictment may be remedied by amendment. A defect is technical or formal if it does not change the nature of the offense charged or prejudice the defendant in any way. An error as to the date of the offense alleged in the indictment does not change the nature of the offense, and therefore may be remedied by amendment. When the amendment results in no change in the underlying offense or actual prejudice to the defendant, the indictment is automatically deemed amended to conform to the evidence adduced at trial.Id. at 544, 937 P.2d at 1192 (emphasis added) (citations omitted).
¶13 Based on Jones, the dates are inconsequential where there is testimony about the facts of the crime and a defendant has a full and fair opportunity to cross-examine a victim or other witnesses about the facts, including the dates. And, as a result, even if the State did not formally request that the charges be amended to reflect the dates provided by the testimony, the amendments would be automatic. Id.; State v. Sanders, 205 Ariz. 208, 217, ¶ 35, 68 P.3d 434, 443 (App. 2003) (citation omitted) (interpreting Arizona Rule of Criminal Procedure 13.5(b) to mean that in "situations in which there has been some minor factual or technical variance between the charge and the proof[,] . . . the charging document upon which the case was tried will be deemed amended to conform to the judgment of conviction that incorporates and rests on the variance."). Accordingly, to the extent that the sexual conduct with a minor occurred before the April 2008 to April 2009 time frame, or at an apartment complex other than the Adasheo, the dates and location in the indictment were modified by the testimony, especially since there is no evidence in the record that Defendant suffered any prejudice by the amendment. See Jones, 188 Ariz. at 544, 937 P.2d at 1192 (noting defendant bears the burden of demonstrating he suffered actual prejudice).
¶14 Moreover, this case is unlike State v. Mikels, 119 Ariz. 561, 582 P.2d 651 (App. 1978). There, the defendant was indicted for sodomizing another inmate in a shower stall. Id. at 562, 582 P.2d at 652. Another act of sodomy was admitted, and during closing argument "the prosecutor asked the jury to find [the defendant] guilty of the sodomy which occurred in the bunk and the defense attorney based his final argument to the jury on the same act." Id. As a result, the appellate court found that "[i]t appear[ed] that the jury found [the defendant] guilty of the act of sodomy which occurred in the bunk and not the one which took place in the shower." Id. Consequently, his conviction was reversed because he was convicted for a crime for which he was not indicted. Id. at 563, 582 P.2d at 653.
¶15 Here, the jury heard all of the evidence. The State argued that it had demonstrated beyond a reasonable doubt that Defendant had sexually abused the victim as alleged in the indictment. The defense unsuccessfully refuted the evidence. Consequently, Mikels has no applicability here.
¶16 Defendant also challenges his convictions for counts two through five as duplicitous. He argues that the State failed to prove independent specific acts which resulted in duplicitous charges, and created the possibility that the verdicts were not unanimous on those counts. He also complains that he will not be able to present a double jeopardy defense if he is prosecuted in a related case. And, he argues that he was prejudiced because his sentences on counts two, three, and five were ordered to run consecutively.
¶17 The State correctly notes that Defendant failed to make the arguments below. As a result, we only review for fundamental error, or "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984) (citation omitted). To prevail under fundamental error review, a defendant must establish the existence of fundamental error and he must demonstrate the resulting prejudice. State v. Henderson, 210 Ariz. 561, 567, ¶ 20, 115 P.3d 601, 607 (2005) (citations omitted).
¶18 "A duplicitous charge exists '[w]hen the text of an indictment refers only to one criminal act, but multiple alleged criminal acts are introduced to prove the charge.'" State v. Paredes-Solano, 223 Ariz. 284, 287, ¶ 4, 222 P.3d 900, 903 (App. 2009) (quoting State v. Klokic, 219 Ariz. 241, 244, ¶ 12, 196 P.3d 844, 847 (App. 2008)). By contrast, a duplicitous indictment contains charges for two or more separate criminal acts in a single count. Id. (citation omitted). The record reveals that each of the challenged counts alleged a specific and distinct offense. The counts were, therefore, not duplicitous. Moreover, and contrary to his argument, Defendant would be free to pursue any future double jeopardy defense because proof of double jeopardy is not restricted to the "four corners of the charging document" but to the full trial record. See State v. Bruce, 125 Ariz. 421, 423-24, 610 P.2d 55, 57-58 (1980) (citations omitted).
Count two, oral/penile contact; count three, rubbing Vaseline on victim's vagina; count four, penile/vaginal contact; and count five, penile/anal penetration.
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¶19 Finally, Defendant argues prejudice because his sentences for counts two, three and five were consecutive. He omits, however, that A.R.S. § 13-711(A) (West 2011) provides:
Except as otherwise provided by law, if multiple sentences of imprisonment are imposed on a person at the same time, the sentence or sentences imposed by the court shall run consecutively unless the court expressly directs otherwise, in which case the court shall set forth on the record the reason for its sentence.We have held that this statute "neither creates a presumption for consecutive or concurrent sentences, nor imposes any restrictions on a trial court's discretion in choosing between consecutive or concurrent sentences." State v. Ward, 200 Ariz. 387, 388, ¶ 4, 26 P.3d 1158, 1159 (App. 2001) (citation omitted). The prejudice that our supreme court outlined in Henderson cannot be based on a trial court following the legislative sentencing scheme. See Henderson, 210 Ariz. at 568-69, ¶¶ 26-28, 115 P.3d at 608-09. Because there has been no error, much less fundamental error, we need not scour the record for prejudice.
CONCLUSION
¶20 For the foregoing reasons, we affirm Defendant's convictions and sentences.
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MAURICE PORTLEY, Judge
CONCURRING:
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JON W. THOMPSON, Presiding Judge
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JOHN C. GEMMILL, Judge