Opinion
No. 2 CA-CR 2016-0283
05-23-2017
THE STATE OF ARIZONA, Appellee, v. LEE HOLMAN LACEY, Appellant.
COUNSEL Nicole Farnum, Phoenix 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NOT FOR PUBLICATION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. 31.24. Appeal from the Superior Court in Pima County
No. CR20130881001
The Honorable Casey F. McGinley, Judge Pro Tempore
AFFIRMED
COUNSEL Nicole Farnum, Phoenix
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Judge Staring and Judge Howard concurred. ECKERSRTROM, Chief Judge:
The Hon. Joseph W. Howard, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 Following a jury trial, appellant Lee Lacey was convicted of sexual abuse of a minor under the age of fifteen and aggravated assault of a minor under the age of fifteen. The trial court found he had more than two historical prior felony convictions and sentenced him, as a category three repetitive offender, to maximum, consecutive prison terms of twenty years for the sexual abuse and 4.5 years for the aggravated assault.
The jury acquitted Lacey of three counts of sexual conduct with a minor.
¶2 Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating she has reviewed the record and has found no arguable issue to raise on appeal. She asks that we search the record for fundamental error.
¶3 In a supplemental, pro se brief, Lacey lists eleven issues for our consideration. After reviewing the record, as well as Lacey's arguments on appeal, we find no issue that would arguably support reversal of Lacey's convictions or sentences. Lacey was represented by counsel, and the following evidence, viewed in the light most favorable to sustaining the verdicts, see State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999), was sufficient to support the jury's findings of guilt.
¶4 S.L. was thirteen years old when Lacey was living with her family between Halloween and Christmas 2012. On one occasion during those months, S.L. awoke to find Lacey rubbing her buttocks beneath her clothes, giving rise to the charge of aggravated assault, see A.R.S. § 13-1204(A)(6), and, sometime later between those same dates, Lacey grabbed her "boobs" under her clothing, see A.R.S. § 13-1404(A), (C). The trial court correctly found Lacey had multiple historical prior felony convictions for sentence-enhancement purposes, see A.R.S. §§ 13-105(22)(d), 13-703(C), including, as an aggravating circumstance, two convictions within the ten years immediately preceding the offense dates, see A.R.S. § 13-701(D)(11), and it properly sentenced Lacey within the statutory range. See §§ 13-701(C), 13-703(C), (J).
¶5 In his pro se brief, Lacey challenges a number of the trial court's rulings regarding discovery and the admission of evidence. With respect to discovery, he maintains the court should have compelled S.L.'s father, M.L., to submit to a defense interview, notwithstanding A.R.S. § 13-4433(G), which permits the parent of a minor victim to refuse. See Lincoln v. Holt, 215 Ariz. 21, ¶ 14, 156 P.3d 438, 443 (App. 2007). Lacey suggests S.L. was not entitled to the statute's protection because he was not S.L.'s "biological" father; because no court previously entered a finding of paternity; or, because, Lacey maintains, S.L.'s birth certificate is "void." But the court heard evidence that M.L. was married to S.L.'s mother when S.L. was born in Florida, establishing a presumption of paternity that has not been challenged in any paternity proceeding. See A.R.S. § 25-814(A)(1), (C); Fla. Stat. Ann. § 382.013(2)(a); Fla. Dep't of Revenue v. Cummings, 930 So. 2d 604, 607 (Fla. 2006) (presumption that child born during marriage is child of both husband and wife is one of strongest rebuttable presumptions). There is no arguable merit to this issue.
¶6 We also find no arguable merit to Lacey's numerous challenges to the trial court's evidentiary rulings. For example, Lacey challenges the court's alleged preclusion, pursuant to A.R.S. § 13-1421, of "text messages that might reveal" that S.L. had other sexual partners. But the court permitted inquiry into S.L.'s relationship and text messages with M.B., another man living in the household at the time, based on Lacey's theory that S.L. had accused him in order to protect M.B.—even though S.L.'s father and the police were aware of those messages before Lacey was charged. See § 13-1421(A)(3) (exception to preclusion of sexual reputation evidence for "[e]vidence that supports a claim that the victim has a motive in accusing the defendant of the crime"). And, although Lacey maintains the court erroneously precluded evidence that S.L. had falsely accused someone of sexual acts, and then recanted those accusations, while living in Ohio, both S.L. and her stepmother, C.L., testified about those events. See § 13-1421(A)(5) (exception to preclusion of sexual reputation evidence for "[e]vidence of false allegations of sexual misconduct made by the victim against others"). We see no arguable basis for the admission of any other sexual reputation evidence, if it existed, particularly in light of the presumptive bar of § 13-1421.
We also find no arguable merit to Lacey's argument that he was entitled to further discovery or admission of any file maintained by Ohio's department of child protective services.
¶7 Similarly, we find no arguable merit in Lacey's claim that the trial court admitted other-act evidence S.L. had revealed after her initial interview "without conducting a [Rule] 404(c)[, Ariz. R. Evid.] pretrial hearing." Our review shows the court did conduct such a hearing and noted the alleged acts were reported by the same victim as occurring within the same time frame. Lacey, through counsel, acknowledged that "the case law favor[ed]" the state's Rule 404 motion and did not object to the admission of this evidence.
¶8 Lacey also maintains the trial court should have admitted evidence that M.B. had been arrested for possession of dangerous drugs in January 2013, as well as cellular telephone records that allegedly would have shown M.B. was involved in drug transactions with M.L.'s customers, and evidence, if it existed, that methamphetamine had been stolen from M.L.'s shop a few days before M.B.'s arrest. As an initial matter, evidence of M.B.'s arrest and conviction for possession of dangerous drugs was admitted through his testimony. The court spent significant time reviewing the evidence, or lack of evidence, regarding the remaining allegations before determining the issues were potentially prejudicial, had little relevance, would confuse the issues before the jury, and would waste time. There is no arguable merit to this issue on appeal. Nor is there any arguable merit to Lacey's claim that the court erred in precluding some, but not all, of M.B.'s and M.L.'s prior convictions for the purpose of impeachment. The record shows the court was well within its discretion and properly applied Rule 609, Ariz. R. Evid.
¶9 Lacey also asserts the trial court erred when it instructed the jury that it could find Lacey guilty of aggravated assault based either on his having "intentionally, knowingly, or recklessly caused a physical injury to another person" or his having "knowingly touched another person with the intent to injure, insult, or provoke that person." He maintains this instruction may have led to a non-unanimous verdict. But the jury's verdict form on the aggravated assault charge was limited to count one of the indictment, which identified the single act of "touching the victim's buttocks." "Whether the charge implicated more than one subsection of the assault statute . . . depends on the evidence and theories presented at trial." State v. Waller, 235 Ariz. 479, ¶ 32, 333 P.3d 806, 816 (App. 2014). And, as Lacey points out in his challenge to the sufficiency of the evidence, there had been no evidence at trial that his conduct caused any physical injury to S.L.; thus, any danger of a non-unanimous verdict was eliminated.
¶10 Accordingly, although the trial court's instruction may have included more information than necessary, there is no arguable merit to Lacey's argument that the court committed reversible error by submitting the case to the jury with "two separate and distinct legal bases" for finding him guilty of aggravated assault. Only one basis was supported by the evidence, and the jury's guilty verdict necessarily reflected its finding that he "knowingly touched" S.L. "with the intent to injure, insult, or provoke" her. Lacey was not prejudiced by any error in the instructions. See id.
We further find no arguable merit to Lacey's suggestion that there was no evidence of the intent required to prove assault because, "[i]f he did rub [S.L.'s] back and buttocks at all," it was because he "hoped to interest her in his advances" and "not to hurt, insult or provoke her." Substantial evidence supported the jury's implicit finding of Lacey's criminal intent in touching S.L.'s back and buttocks while she slept—and then telling her, after she awoke and objected, "not to tell anybody." See State v. Bearup, 221 Ariz. 163, ¶ 16, 211 P.3d 684, 688 (2009) (criminal intent, "being a state of mind," established by circumstantial evidence and may be inferred from defendant's conduct and comments), quoting State v. Routhier, 137 Ariz. 90, 99, 669 P.2d 68, 77 (1983). --------
¶11 Finally, we find no arguable merit to Lacey's claim that his sentences exceeded those authorized by A.R.S. § 13-705 for Dangerous Crimes Against Children. The transcript of Lacey's sentencing clearly shows the trial court sentenced him as a category three repetitive offender pursuant to § 13-703, and not pursuant to the sentencing provisions in § 13-705. See State v. Diaz, 224 Ariz. 322, ¶ 16, 230 P.3d 705, 707-08 (2010) ("absent an express exclusion" in other applicable sentencing statute, state "may pursue enhanced penalties against a repetitive offender" under § 13-703).
¶12 In our examination of the record, we have found no reversible error and no arguable issue warranting further appellate review. See Anders, 386 U.S. at 744. Accordingly, we affirm Lacey's convictions and sentences.