Opinion
No. 2 CA-CR 2014-0185
11-28-2014
THE STATE OF ARIZONA, Appellee, v. JORGE MOLINA, Appellant.
COUNSEL Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Eliza C. Ybarra, Assistant Attorney General, Phoenix Counsel for Appellee Harriette P. Levitt, 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pinal County
No. S1100CR201300259
The Honorable Craig A. Raymond, Judge Pro Tempore
AFFIRMED AS CORRECTED
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Eliza C. Ybarra, Assistant Attorney General, Phoenix
Counsel for Appellee
Harriette P. Levitt, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Miller authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Espinosa concurred.
MILLER, Presiding Judge:
¶1 After a jury trial, Jorge Molina was convicted of two counts of child molestation and two counts of sexual conduct with a minor under the age of twelve. The trial court imposed consecutive prison terms totaling fifty-four years for the first three counts, to be followed by a sentence of life imprisonment for the fourth. On appeal, Molina argues that insufficient evidence supports his child molestation convictions and that the sentencing minute entry should be corrected to reflect a life sentence without the possibility of release for thirty-five years rather than a natural life sentence. We affirm Molina's convictions and his sentences as corrected.
¶2 Viewing the evidence in the light most favorable to sustaining the verdict, see State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999), sufficient evidence supports the jury's verdicts. The evidence at trial demonstrated that Molina twice engaged in sexual contact with his daughter, H., by touching her genitals with his penis, thus committing child molestation with a minor in violation of A.R.S. § 13-1410. See also A.R.S. § 13-1401(2). The evidence also showed Molina had his younger daughter, N., "massage" his penis and, on another occasion, perform oral sex on him, thus committing sexual conduct with a minor in violation of A.R.S. § 13-1405. See also § 13-1401(1), (3).
¶3 Although Molina argues the evidence was insufficient to support the child molestation counts, he essentially asks us to reweigh the evidence, which we will not do. State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997). Specifically, Molina contends H.'s trial testimony indicated no sexual contact had occurred during the first alleged incident of child molestation, the evidence supporting that count "came entirely from the forensic interview,"
and H. stated at trial that her statements during the interview referred only to the second instance of child molestation.
¶4 But Molina has not explained why the jury could not reject H.'s trial testimony in light of her statements during the interview and thus find him guilty of child molestation. The jury was entitled to weigh the evidence and to resolve any conflicts therein, including inconsistencies in the victim's testimony. See State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 38, 312 P.3d 123, 133 (App. 2013) (jury must resolve inconsistencies in testimony). Indeed, "[i]f conflicts in evidence exist, the appellate court must resolve such conflicts in favor of sustaining the verdict and against the defendant." State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
¶5 Molina further asserts that H.'s testimony as to the second count of child molestation was too vague because she alternatively claimed Molina had touched her genitals and her "butt" and because she varied in her testimony whether he had used his penis or his hand to touch her. But, again, any inconsistencies in H.'s testimony were for the jury to resolve. Buccheri-Bianca, 233 Ariz. 324, ¶ 38, 312 P.3d at 133.
¶6 At sentencing, the trial court imposed a life sentence without the possibility of release for Molina's second sexual conduct conviction (count four). The sentencing minute entry, however, reflects a natural life sentence for that count. We agree with the parties that the court's oral pronouncement of sentence clearly indicates the court's intent and therefore controls. See State v. Ovante, 231 Ariz. 180, ¶ 38, 291 P.3d 974, 982 (2013). Indeed, the governing statute does not provide for a natural life sentence. A.R.S. § 13-705(A). We modify the sentencing minute entry to reflect a life sentence without the possibility of release for thirty-five years for count four.
¶7 For the reasons stated, we affirm Molina's convictions and his sentences as modified.