Opinion
No. 1 CA-CR 10-0670
12-27-2011
STATE OF ARIZONA, Appellee, v. DONALD CELAYA STEEN, Appellant.
Thomas C. Horne, Arizona Attorney General Phoenix by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee James J. Haas, Maricopa County Public Defender Phoenix by Eleanor Terpstra, 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(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)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. CR-2010-005833-001
The Honorable Christopher T. Whitten, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General Phoenix by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee
James J. Haas, Maricopa County Public Defender Phoenix by Eleanor Terpstra, Deputy Public Defender Attorneys for Appellant HALL , Judge
¶1 Donald Celaya Steen (defendant) appeals from his convictions and the sentences imposed. For the reasons set forth below, we affirm.
¶2 Defendant's appellate counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that, after a diligent search of the record, she was unable to find any arguable grounds for reversal. This court granted defendant an opportunity to file a supplemental brief, which he has not done. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). Defendant has raised through counsel, however, three issues: (1) the trial court's failure to grant a mistrial following a witness's testimony relating to a severed count, (2) sufficiency of the evidence, and (3) ineffective assistance of counsel.
¶3 We review for fundamental error, error that goes to the foundation of a case or takes from the defendant a right essential to his defense. See State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988). We view the evidence presented at trial in a light most favorable to sustaining the verdict. State v. Cropper, 205 Ariz. 181, 182, ¶ 2, 68 P.3d 407, 408 (2003).
¶4 On March 10, 2010, defendant was charged by indictment with: five counts of molestation of a child, class two felonies and dangerous crimes against children; one count of sexual abuse, a class three felony and dangerous crime against children; seven counts of sexual conduct with a minor, class two felonies and dangerous crimes against children; and two counts of furnishing obscene or harmful items to minors, class four felonies. The State also alleged that defendant had two historical prior felony convictions. Before trial, the court granted the State's motion to sever count 10, furnishing obscene or harmful items to minor J.B.
¶5 The following evidence was presented at trial. When S.B., the victim, was approximately nine years old, she, her mother, and brothers moved into an apartment with defendant. When S.B. was eleven years old, defendant lost his job and was home with the children before and after school while their mother was at work. It was at this time that defendant began approaching S.B. in a sexual manner. The victim testified that the first time defendant "did something . . . that [she] didn't like" was one early morning when he came into her bedroom. Defendant ordered S.B. to pull down her pajama pants and underwear and he then touched her breasts and vagina.
¶6 On another occasion, defendant ordered S.B. to come to his bedroom to "massage his feet." Defendant closed the door and ordered S.B. to take off her clothes. She did not comply and defendant removed her clothing. He then moved her to the bed and attempted both vaginal and anal penetration. S.B. attempted to move away and defendant hit her and told her to "shut the fuck up and [] take it." Eventually, defendant "gave up" because S.B. continued to struggle to get away from him. Defendant told S.B. to not tell anyone what happened or defendant would be sent "back to prison." He also offered to give her presents and money if she would conceal what he had done.
¶7 Sometime later, defendant made S.B. watch a pornographic video with him. S.B. testified that defendant grabbed her face when she attempted to look away from the video. After watching the video, defendant then forced S.B. to perform oral sex on him as demonstrated in the video.
¶8 On another occasion, while S.B. was taking a shower, defendant entered the bathroom, undressed, and started washing her body and he ordered her to wash his body. S.B. testified that defendant again touched her breasts and vagina and moved her hands to his penis.
¶9 During one of S.B.'s breaks from school, defendant cornered her in his bedroom and penetrated her anally. On another day during the school-break, defendant took S.B. to an abandoned house, removed her clothing, penetrated her vaginally, and attempted anal penetration.
¶10 S.B. also testified about an occasion in which defendant drove her to a parking lot located behind a large building, parked, removed her clothing, touched her vagina, digitally penetrated her vagina, and took pictures of her vagina.
¶11 After a six-day trial, the jury found defendant guilty of one count of molestation of a child; one count of sexual abuse; and seven counts of sexual conduct with a child under the age of twelve years old or younger. The trial court sentenced defendant to a presumptive term of seventeen years imprisonment on the count of molestation of a child. Consecutive to that count and consecutive to each other, the trial court ordered defendant life without the possibility of parole for at least thirty-five years on the seven counts of sexual conduct with a child twelve years old or younger. Finally, the trial court placed defendant on lifetime probation for the count of sexual abuse.
¶12 First, defendant contends that the trial court erred by denying his motion for mistrial. We review the denial of a motion for mistrial for a clear abuse of discretion. State v. Murray, 184 Ariz. 9, 35, 906 P.2d 542, 568 (1995). "In deciding whether a mistrial is required due to witness comments, the trial court must consider whether the comment caused jurors to consider improper matters and the probability that the jurors were influenced by such comments." Id. "A declaration of mistrial is the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted." Id. (quoting State v. Adamson, 136 Ariz. 250, 262, 665 P.2d 972, 984 (1983)).
¶13 On the third day of trial, S.B.'s brother, J.B., testified about his recollections of living with defendant. First, J.B. testified that he and his brother were forced to stay in their bedroom at almost all times defendant was home with the children or face punishment, and that during this time S.B. was purportedly "massaging [defendant's] feet."
¶14 Thereafter, J.B. testified regarding an occasion in
which defendant took him to defendant's friend's house. The
following exchange then took place:
Q. What did you do when you went over to George's house?At that point, the trial court excused the jury and recessed for the day. Defendant requested a mistrial because the testimony related to the severed count of furnishing obscene material to a minor and the trial court ordered a transcript of J.B.'s testimony. At the next day of trial, defense counsel withdrew the request for mistrial, but defendant addressed the court directly and stated his belief that J.B.'s testimony was so prejudicial as to warrant a mistrial.
A. We went to his - I guess his hotel he was at, and [defendant] was searching through his drawers and then found porno magazines - porno movies and asked to play them.
Q. And so [defendant] was looking for the porno movies or magazines?
A. I think he found them -
Defense Counsel: Objection. May we approach?
¶15 J.B.'s comments did not require a mistrial. J.B. did not testify that defendant invited him to watch the pornography. Rather, he simply alluded to defendant possessing pornography on one occasion. We do not conclude that this brief, isolated reference influenced the jury's verdicts, particularly in light of the other evidence presented.
¶16 Defendant next contends that insufficient evidence was presented at trial to support his convictions. "We review the sufficiency of the evidence by determining whether substantial evidence supports the jury's finding, viewing the facts in the light most favorable to sustaining the jury verdict." State v. Kuhs, 223 Ariz. 376, 382, ¶ 24, 224 P.3d 192, 198 (2010) (internal quotation omitted). "Substantial evidence is proof that reasonable persons could accept as adequate . . . to support a conclusion of defendant's guilty beyond a reasonable doubt." Id. (internal quotation omitted). We set aside a jury verdict for insufficiency of the evidence only when it is clear "that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury." State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). To obtain a conviction for molestation of a child, the State was required to prove that defendant intentionally or knowingly engaged in sexual contact with S.B. when she was under fifteen years of age. Ariz. Rev. Stat. § 13-1410 (2010). To obtain a conviction for sexual abuse, the State was required to prove that defendant intentionally or knowingly engaged in sexual contact with S.B.'s breasts when she was under fifteen years of age. Ariz. Rev. Stat. § 13-1404 (2010). To obtain convictions for sexual conduct with a minor, the State was required to prove that defendant intentionally or knowingly engaged in sexual intercourse or oral sexual contact with S.B. when she was under eighteen years of age. Ariz. Rev. Stat. § 13-1405 (2010).
¶17 Based on our review of the record, there was substantial evidence supporting each of defendant's convictions. As to the count of sexual molestation, there was sufficient evidence that defendant touched S.B.'s genitals one morning in her bedroom, as charged in the indictment. As to the count of sexual abuse, there was sufficient evidence that during the early morning incident, defendant also touched S.B.'s breasts. Finally, as to the seven counts of sexual conduct with a minor, there was sufficient evidence that during at least seven discrete instances, defendant penetrated S.B. either vaginally, anally, or orally, as charged in the indictment.
¶18 Finally, defendant argues ineffective assistance of counsel. We will not consider claims of ineffective assistance of counsel on direct appeal regardless of merit. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). We therefore decline to address this argument. If defendant wishes to pursue a claim for ineffective assistance of counsel, he may file a claim for post-conviction relief pursuant to Arizona Rule of Criminal Procedure 32.
¶19 We have read and considered counsel's brief and have searched the entire record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Defendant was given an opportunity to speak before sentencing, and the sentences imposed were within statutory limits. Furthermore, based on our review of the record, there was sufficient evidence for the jury to find that defendant committed the offenses for which he was convicted.
¶20 After the filing of this decision, counsel's obligations pertaining to defendant's representation in this appeal have ended. Counsel need do no more than inform defendant of the status of the appeal and his future options, unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. Accordingly, defendant's convictions and sentences are affirmed.
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PHILIP HALL, Judge
CONCURRING:
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MICHAEL J. BROWN, Presiding Judge
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PATRICIA K. NORRIS, Judge