Opinion
1 CA-CR 23-0306
07-18-2024
STATE OF ARIZONA, Appellee, v. JEFFREY BRIAN LOWMAN, Appellant.
Arizona Attorney General's Office, Phoenix By Joshua C. Smith Counsel for Appellee. Zickerman Law Office, Flagstaff By Adam Zickerman Counsel for Appellant.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Yavapai County No. P1300CR202100257, P1300 CR202201527 The Honorable Krista M. Carman, Judge.
Arizona Attorney General's Office, Phoenix By Joshua C. Smith Counsel for Appellee.
Zickerman Law Office, Flagstaff By Adam Zickerman Counsel for Appellant.
Judge D. Steven Williams delivered the Court's decision, in which Presiding Judge Michael J. Brown and Judge Daniel J. Kiley joined.
MEMORANDUM DECISION
WILLIAMS, JUDGE.
¶1 Defendant Jeffrey Brian Lowman appeals his convictions and sentences for three counts of vulnerable adult abuse, one count of sexual abuse, and two counts of child molestation. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Lowman was a maintenance supervisor at an apartment complex where "Daniel" and "Katherine," two intellectually disabled adults, lived together. Lowman occasionally helped Daniel and Katherine with maintenance requests like fixing their stove or changing light bulbs.
We use pseudonyms to protect the victims' privacy. See Ariz. R. Sup.Ct. 111(i).
¶3 On one occasion while in Daniel and Katherine's apartment, Lowman exposed himself and inappropriately touched Daniel. On another occasion, Lowman told Daniel and Katherine to get into bed together so that he could record them having sex. They refused.
¶4 With the help of family, Daniel and Katherine reported Lowman's conduct to the police. Lowman was arrested and indicted on three counts of vulnerable adult abuse and three counts of sexual abuse (the "2021 case").
Yavapai County Superior Court Case No. P1300CR202100257.
¶5 When Lowman's daughter learned of the allegations against her father, she contacted police to relay concerns she had about her father and some neighborhood children he spent time with years earlier. Police investigated. One of the children, "Sally" (a pseudonym), reported that beginning when she was six years old, Lowman would often place her in his lap and move her around his lap so he could feel her against him. Sally informed that inappropriate touching continued until she was around eleven years old.
¶6 In December 2022, a grand jury indicted Lowman on three counts of child molestation (the "2022 case"). Lowman moved to remand the case to the grand jury for a redetermination of probable cause, alleging the State omitted clearly exculpatory evidence and presented inadmissible other-act evidence to the grand jury. The court granted the motion.
Yavapai County Superior Court Case No. P1300CR202201527.
¶7 In March 2023, the State presented the 2022 case a second time to a grand jury, which again resulted in a finding of probable cause. Lowman did not challenge the new indictment.
¶8 The 2021 case and the 2022 case were consolidated for trial. At the conclusion of trial, the jury convicted Lowman of six felonies-three counts of vulnerable adult abuse and one count of sexual abuse from the 2021 case, and two counts of child molestation from the 2022 case. The jury acquitted Lowman of the remaining counts in both cases. The trial court sentenced Lowman to forty-nine years' imprisonment (nine years for the vulnerable adult abuse and sexual abuse convictions-comprised of varied concurrent and consecutive terms-and forty years for the child molestation convictions-two twenty-year consecutive terms), with credit for presentence incarceration. See A.R.S. § 13-705.
¶9 Lowman timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
¶10 Lowman's sole argument on appeal is that his due process rights were violated because his indictment in the 2022 case was not supported by probable cause. We review alleged due process violations de novo. Wassef v. Ariz. State Bd. of Dental Exam'rs through Hugunin, 242 Ariz. 90, 93, ¶ 11 (App. 2017).
¶11 A defendant may challenge a grand jury proceeding only by filing a timely motion for a new finding of probable cause, otherwise, the "defendant waives his objections to the grand jury proceeding[s]." State v. Smith, 123 Ariz. 243, 247-48 (1979); see also Ariz. R. Crim. P. 12.9(b) ("A defendant must file a motion under [Rule 12.9] no later than 45 days after the certified transcript and minutes of the grand jury proceedings are filed[.]"). Following a conviction, a defendant may not directly appeal any matter relating to grand jury proceedings unless the State knew the indictment was partially based on "perjured, material testimony." State v. Murray, 184 Ariz. 9, 32 (1995).
¶12 Because Lowman does not claim the State presented perjured, material testimony to the grand jury, Lowman has waived any challenge to the second grand jury indictment in the 2022 case. See id. (waiver when no claim of perjured testimony is made).
¶13 Even if, arguendo, Lowman's challenge was not waived, the issue of whether probable cause existed for the second indictment in the 2022 case is moot. "[O]nce a trial jury has found guilt beyond a reasonable doubt following a proper presentation of both the state's and the defendant's evidence, the issue of probable cause to believe the defendant has committed an offense is no longer open to question." State v. Just, 138 Ariz. 534, 541-42 (App. 1983).
¶14 Here, a jury found Lowman guilty beyond a reasonable doubt on six of the nine charges (four charges in the 2021 case and two charges in the 2022 case) following a proper trial. After the jury's findings, the issue of probable cause became "a closed question." State v. Charo, 156 Ariz. 561, 566 (1988).
¶15 Further, because double jeopardy precludes the State from re-charging Lowman on the counts he was acquitted of, whether probable cause supports those charges is also moot. See U.S. Const. amend. V (the double jeopardy clause of the Fifth Amendment protects a criminal defendant from multiple prosecutions for the same offense); see also State v. Carter, 245 Ariz. 382, 386, ¶ 9 (App. 2018) (the double jeopardy clause prohibits a "second prosecution for the same offense after acquittal") (internal quotation and citations omitted). On this record, Lowman's due process rights were not violated.
CONCLUSION
¶16 We affirm Lowman's convictions and sentences.