Opinion
No. 2 CA-CR 2016-0193
02-13-2017
THE STATE OF ARIZONA, Appellee, v. DARRELL TEER JR. Appellant.
COUNSEL Flores & Clark, PC, Globe By Daisy Flores 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NOT FOR PUBLICATION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 Pinal County
No. S1100CR201501725
The Honorable Joseph R. Georgini, Judge
AFFIRMED
COUNSEL Flores & Clark, PC, Globe
By Daisy Flores
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Howard authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Vásquez concurred. HOWARD, Presiding Judge:
¶1 After a jury trial, Darrell Teer Jr. was convicted of child molestation, a dangerous crime against children, and sentenced to a ten-year prison term. Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999), asserting she has reviewed the record but found no arguable issue to raise on appeal. Consistent with Clark, 196 Ariz. 530, ¶ 32, 2 P.3d at 97, she has provided "a detailed factual and procedural history of the case with citations to the record" and asks this court to search the record for error. Teer has filed a supplemental brief raising various claims.
¶2 Viewing the evidence in the light most favorable to sustaining the jury's verdict, see State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999), sufficient evidence supports it here. In March 2015, after Teer had lain on the fourteen-year-old victim's bed, she pulled down his pants and touched his penis while she was on top of him and he had his hands on her waist. A.R.S §§ 13-1401(A)(3), 13-1410(A). His sentence is within the statutory range and was properly imposed. A.R.S. §§ 13-705(D), 13-1410(B).
¶3 We now turn to the arguments Teer raises in his supplemental brief. He first claims the indictment was "duplicitous" because it charged "two completely single separate incidents in . . . one count." The indictment charged Teer, in a single count, with sexual conduct with a minor based on his having had "sexual intercourse or oral sexual contact" with the victim and "in the alternative" with child molestation, based on Teer "engaging in or causing [the victim] to engage in sexual contact, except contact with the female breast." The state apparently adopted this charging approach because, although the victim asserted Teer had intercourse with her after entering her room to lay on her bed, Teer denied having had "a sexual relationship" with the victim but nonetheless told a detective in response to the victim's allegation that she had been "on top of him" and had "touched his penis on the outside of h[is] clothes after she [had] pulled his pants down."
¶4 Teer did not object to the indictment and, thus, has forfeited all but fundamental, prejudicial error. State v. Paredes-Solano, 223 Ariz. 284, ¶ 6, 222 P.3d 900, 903 (App. 2009). An indictment is duplicitous when it "charges two or more separate offenses within a single count." Id. ¶ 9; see also Ariz. R. Crim. P. 13.3(a) (requiring each charge be "stated in a separate count"). But, even assuming the indictment is technically duplicative, Teer has not shown resulting prejudice. "Duplicitous indictments may prejudice a defendant by not providing adequate notice of the charge to be defended, presenting the risk of a non-unanimous jury verdict, and making impossible the precision needed to assert double jeopardy in a later prosecution." State v. O'Laughlin, 239 Ariz. 398, ¶ 5, 372 P.3d 342, 344 (App. 2016). None of these risks are presented here—Teer does not complain he lacked adequate notice, the prosecutor clearly explained which facts supported which charge, and the jury was instructed it could find him guilty of only one of the offenses, was provided separate verdict forms for each offense, and acquitted Teer of sexual conduct with a minor. Cf. Paredes-Solano, 223 Ariz. 284, ¶ 17, 222 P.3d at 906 ("[T]he error potentially resulting from [a duplicitous] indictment may be cured when . . . the state elects for the jury which act constitutes the crime.").
We would encourage the state to insure that indictments comply with the rules. --------
¶5 Teer next asserts the trial court violated his "confrontation rights" by precluding evidence he had a sexual relationship with the victim's mother. He asserts that the accusations against him were in retaliation for him revealing that relationship. The state moved to preclude evidence regarding that alleged relationship, arguing it was irrelevant. Teer's counsel stated he had no intention of introducing such evidence, and the court thus granted the state's motion. Because Teer did not object to the state's position, he has forfeited all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). And, given that he had no intention of presenting the evidence in any event, and in light of his confession to the offense of which he was ultimately convicted, he cannot show prejudice.
¶6 Teer additionally asserts, as we understand his argument, that his conviction is improper because there was no evidence he had touched the victim's breast. He also asserts the corpus delicti rule would preclude the admission of his statements because no independent evidence of such an action was admitted. No such evidence was required for the jury to find him guilty of child molestation, which in fact excludes "contact with the female breast" from its definition of culpable conduct. See § 13-1410(A).
¶7 Pursuant to our obligation under Anders, we have searched the record for fundamental error and found none. See State v. Fuller, 143 Ariz. 571, 575, 694 P.2d 1185, 1189 (1985). And we have rejected the issues raised in Teer's supplemental brief. We therefore affirm his conviction and sentence.