173 P.3d 1027 (Ariz.App. Div. 1 2007), 1 CA-CR 06-0748, State v. Simpson

Docket Nº:1 CA-CR 06-0748.
Citation:173 P.3d 1027, 217 Ariz. 326
Opinion Judge:OPINION OROZCO, Judge.
Party Name:STATE of Arizona, Appellee, v. Kelvin Thomas SIMPSON, Appellant.
Attorney:Terry Goddard, Attorney General By Randall M. Howe, Chief Counsel, Criminal Appeals Section and Michael O'Toole, Assistant Attorney General, Phoenix, Attorneys for Appellee., Law Office of Treasure VanDreumel PLC By Treasure L. VanDreumel, Phoenix, Attorneys for Appellant.
Case Date:December 18, 2007
Court:Court of Appeals of Arizona
 
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Page 1027

173 P.3d 1027 (Ariz.App. Div. 1 2007)

217 Ariz. 326

STATE of Arizona, Appellee,

v.

Kelvin Thomas SIMPSON, Appellant.

No. 1 CA-CR 06-0748.

Court of Appeals of Arizona, First Division, Department B

December 18, 2007

Appeal from the Superior Court in Maricopa County Cause No. CR2005-116851-001 DT The Honorable Richard J. Trujillo, Judge

Terry Goddard, Attorney General By Randall M. Howe, Chief Counsel, Criminal Appeals Section and Michael O'Toole, Assistant Attorney General , Phoenix, Attorneys for Appellee.

Law Office of Treasure VanDreumel PLC By Treasure L. VanDreumel , Phoenix, Attorneys for Appellant.

OPINION

PATRICIA A. OROZCO, Judge.

¶ 1 Kelvin Thomas Simpson (Defendant) appeals from two counts of child molestation and two counts of attempted child molestation following a jury trial and from the sentences imposed. For the reasons set forth below, we affirm.s

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FACTS AND PROCEDURAL HISTORY

¶ 2 "We view the facts in the light most favorable to sustaining the convictions." State v. Robles, 213 Ariz. 268, 270, 2, 141 P.3d 748, 750 (App. 2006). On June 2, 2005, A.A., her twin sister, N.A., and their niece, F.A., were swimming in a pool at an apartment complex where the sisters lived. A young boy was also in the pool and the boy's mother was watching the children swim.

¶ 3 At the time of trial, all three girls were nine years old. A.A. testified that while swimming, a man, later identified as Defendant, grabbed her with his left hand while his right hand touched her twice on her vagina over her clothes. A.A. stated she was uncomfortable and tried to get away from him. She asked the boy to tell his mother about the incident. However, the boy was too young to understand what she was relating and the boy's mother did not speak English. Later, A.A. told her own mother what occurred.

¶ 4 F.A. testified at trial that while swimming in the pool, Defendant touched her on her thigh near her vagina. She also tried to tell the boy and his mother about it, but neither could understand her. However, when some friends came over to the pool, F.A. told them to tell her grandmother about the incident.

¶ 5 N.A. testified that when she was swimming with her sister and her niece, Defendant touched her "upper leg." She said that because she was bothered by the touch, she told her sister and her niece.

¶ 6 The twins' mother, F.F., and F.A.'s grandmother, testified at trial. She stated that when she returned home from the grocery store and walked by the pool, she saw Defendant in the pool with the girls. She indicated she was concerned about the situation because she had seen Defendant staring at "little girls" and "wom[e]n" for "long periods of time."

¶ 7 F.F. testified that as she was putting her groceries away, a neighbor girl came by her apartment and said the boy's mother wanted to talk to her. After they spoke, F.F. took the children out of the pool and called the police. F.F. testified that she had previously instructed the girls that if anyone touched their private areas, they should tell someone.

¶ 8 A Phoenix Police Officer responded to the call at the victims' apartment complex. He testified the victims appeared upset. He indicated he spoke to the boy's mother who reported that Defendant "had looked at the children in a bad way." Defendant was arrested that day.

¶ 9 A few days after the incident, a Phoenix Police Detective interviewed the three children individually. The detective used a stuffed bear to assist the girls in identifying the body parts where Defendant had touched them. A.A. indicated Defendant had touched her on the vagina over her clothes. N.A. and F.A. indicated that Defendant had touched each of them on the crevice of the upper thigh near the vagina. The detective also interviewed the boy's mother who reported she did not see Defendant touch the children. 1

¶ 10 Defendant was indicted on two counts of child molestation (A.A.) and two counts of attempted child molestation (F.A. and N.A.), all class 3 dangerous crimes against children. The jury found him guilty on all counts. The court sentenced Defendant to the presumptive term of imprisonment of seventeen years on Count One and a mitigated term of imprisonment of ten years on Count Two, 2 the

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sentences to run consecutively. The court imposed lifetime probation on Counts Three and Four to begin after Defendant served the sentences on Counts One and Two. Defendant timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4031, and -4033(A)(1) (2001).

DISCUSSION

¶ 11 On appeal...

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