State v. Brown
| Decision Date | 23 September 2019 |
| Docket Number | No. 2 CA-CR 2018-0207,2 CA-CR 2018-0207 |
| Parties | THE STATE OF ARIZONA, Appellee, v. JAY BUCK BROWN, Appellant. |
| Court | Arizona Court of Appeals |
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NOT FOR PUBLICATION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. 31.19(e).
Appeal from the Superior Court in Pima County
The Honorable James E. Marner, Judge
AFFIRMED
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee
Joel Feinman, Pima County Public Defender
By Sarah Mayhew, Assistant Public Defender, Tucson
Counsel for Appellant
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred.
¶1 Jay Brown appeals his convictions and sentences stemming from repeated incidents of sexual abuse of his minor stepdaughter over multiple years. For the reasons that follow, we affirm.
¶2 "We view the evidence and all reasonable inferences in the light most favorable to sustaining the jury's verdicts." State v. Holle, 240 Ariz. 300, ¶ 2 (2016). In February 2009, Brown married a woman with children from a prior relationship, including a daughter under the age of twelve, C.G.1 Shortly after the marriage, Brown and his new wife rented a duplex on Blacklidge Drive in Tucson. A couple of months afterwards, Brown began touching C.G. inappropriately.
¶3 The first incident, which took place in the marital bedroom of the Blacklidge duplex, involved Brown touching C.G.'s genitals, forcing her to touch his penis, and performing oral sex on her. Although C.G. testified she did not recall the details of the last time Brown touched her inappropriately at the duplex, she also testified that all three types of inappropriate conduct occurred more than once at that address.
¶4 In November 2009, the family moved from the Blacklidge residence to a house on Euclid Avenue. When asked during trial if she remembered the first sexual interaction Brown had with her at the Euclid house, C.G. testified, "I don't remember all of it." But she did recall that, when she was in sixth grade, Brown forced her to have sexual intercourse with him for the first time. It occurred in the marital bedroom of the Euclid house, during an incident that also involved Brown touching C.G.'s genitals, performing oral sex on her, and forcing her to perform oral sex on him.
¶5 C.G. further testified that, when she was about fourteen, Brown ordered her to meet him in a shed behind the house. There, Brown again performed oral sex on her, forced her to perform oral sex on him, and engaged in sexual intercourse with her until her mother walked in on them. C.G. additionally stated that the last incidents at the Euclid house occurred a few months later, when she was almost fifteen. During that incident, Brown performed oral sex on her and forced her to perform oral sex on him in a bed next to her sleeping stepsister. He then forced C.G. to perform oral sex on him in the kitchen, which her mother witnessed.
¶6 In August 2016, the family was evicted from the Euclid house and moved into a trailer on Wetmore Road. A few months later, at age fifteen, C.G. moved out and reported her abuse to two adult relatives. Police referred C.G. to the Children's Advocacy Center, where she was forensically interviewed.
¶7 Shortly after Brown learned C.G. had reported him, he attempted to commit suicide by setting the Wetmore trailer on fire. In a suicide note, he acknowledged his abuse of C.G. After he was rescued from the fire, Brown confessed to police that he had sexually abused C.G. beginning when she was "maybe 10," that this abuse included touching her genitals, oral sex, and intercourse with C.G., and that he was uncertain how many times these acts occurred.
¶8 At the conclusion of a three-day trial, the jury found Brown guilty of: eight counts of child molestation of a victim under fifteen; five counts of sexual conduct with a minor under twelve; four counts of sexual conduct with a minor under fifteen; and one count of indecent exposure in the presence of a minor under fifteen. For the crimes of sexual conduct with a minor under twelve, the trial court sentenced Brown to five consecutive life sentences, each without the possibility of release for thirty-five years.2 We have jurisdiction over Brown's appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
¶9 For the first time on appeal, Brown argues the indictment was duplicitous and the prosecutor abused her discretion by failing to charge the case as a single count of continuous sexual abuse. Because Brown failed to object to these alleged errors before trial, we review only for fundamental, prejudicial error. State v. Hargrave, 225 Ariz. 1, ¶ 28 (2010). Under that standard, Brown bears the burden of establishing that fundamental error occurred and that it caused him prejudice. State v. Henderson, 210 Ariz. 561, ¶¶ 19-22 (2005).
¶10 Each of the eighteen counts of the indictment in this case refers to a separate act: the first or last time Brown violated C.G. in a specific way at each address (sixteen counts), as well as the incidents of forced oral sex and indecent exposure witnessed by C.G.'s mother (two counts). Brown contends the indictment was duplicitous because the charges were "susceptible to a non-unanimous jury" and did not give Brown "notice of the allegations against him." We disagree.
¶11 An indictment is duplicitous if it charges more than one crime in a single count. State v. Anderson, 210 Ariz. 327, ¶ 13 (2005). "Duplicitous indictments are prohibited because they fail to give adequate notice of the charge to be defended, present the potential of a non-unanimous jury verdict, and make a precise pleading of prior jeopardy impossible in the event of a later prosecution." Id.
¶12 In State v. Davis, on which Brown relies, our supreme court found that one count of an indictment "impermissibly charged two crimes" when the prosecutor argued in summation that the defendant had sex with the victim on two separate occasions, either of which could support a finding of guilt on the one count in question. 206 Ariz. 377, ¶¶ 51-53, 59-60 (2003). No such argument was made here.
¶13 Beginning with its opening statement, the state stressed for the jury that the eighteen counts of the indictment "are broken down by location, acts and incidents." For this reason, the state asked the jury to: "take note of which act . . . [or] incident we are talking about and where we are talking about it so by the time you get to deliberations at the end of trial, you will be able to see how the State has met each point of the indictment." The state then outlined specific acts and where they had occurred. When eliciting testimony from C.G., the state asked questions to ensure that shereferenced the particular act described in each count of the indictment.3 Then, in summation, the state expressly "r[a]n through the testimony and how it relates to the charges in the indictment so that [the jury could] remember which one relates to which counts." Thus, the record does not support any suggestion that the jury was confused about which single incident of conduct was alleged in each count. In other words, this is not a case in which the defendant "was convicted of one count, based on proof of two [or more] acts." Id. ¶ 60.
¶14 Brown argues only that the indictment failed to give him notice of the charges against him as to the "last" incidents at the Blacklidge duplex. Specifically, he emphasizes the vagueness of C.G.'s testimony that, although she could not recall the details of the last instances of each type of abuse at that location, she nevertheless recalled that they had each occurred there "more than once." This is not a challenge to the vagueness of the indictment, but rather to the sufficiency of the evidence presented by the state as to those counts—an issue we address below.
¶15 Brown also argues it was an abuse of prosecutorial discretion for the state to charge him with eighteen separate counts based on specific instances of sexually abusive conduct, rather than a single count of continuous sexual abuse under A.R.S. § 13-1417. But, as the state points out, § 13-1417 requires the state to prove that three or more qualifying acts were committed against a child under fourteen "over a period of three months or more." It is well within a prosecutor's broad discretion to determine thatsingle acts should be charged instead.4 See State v. Gagnon, 236 Ariz. 334, ¶ 10 (App. 2014) . This is particularly true when, as in this case, it may be difficult for the state to prove that the acts in question all occurred within a qualifying time frame or when the victim was under fourteen, as required for a continuous sexual abuse conviction. "There is no constitutional bar to the full prosecution of all criminal law violators as long as that prosecution is not tainted with invidious discrimination," State v. Rodriguez, 158 Ariz. 69, 70 (App. 1988), and Brown has not alleged—much less shown—any such discrimination here.
¶16 Brown explains that § 13-1417 was enacted by the legislature to permit the state to "seek a conviction in otherwise hard-to-prove cases where the evidence is insufficient" due to the poor recall of a child victim. In exchange for lowering the state's burden of proof in such cases, however, the legislature limited the number of counts permitted (one per victim) and the penalty permissible, taking "the possibility of a life sentence and multiple consecutive sentences that...
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