State v. Copeland
| Decision Date | 01 April 2022 |
| Docket Number | 2 CA-CR 2019-0229 |
| Citation | 67 Arizona Cases Digest 25,509 P.3d 412 |
| Parties | The STATE of Arizona, Appellee, v. Justin Alexander COPELAND, Appellant. |
| Court | Arizona Court of Appeals |
Mark Brnovich, Arizona Attorney General, Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals By Kathryn A. Damstra, Assistant Attorney General, Tucson, Counsel for Appellee
Cochise County Office of the Legal Advocate By Xochitl Orozco, Legal Advocate, Bisbee, Counsel for Appellant
Presiding Judge Espinosa authored the opinion of the Court, in which Vice Chief Judge Staring and Judge Eckerstrom concurred.
¶1 Justin Copeland appeals from his convictions and sentences for fifty counts of child molestation, challenging the trial court's denial of his motion to dismiss the indictment for lack of specificity and certain of its evidentiary rulings. Copeland further contends there was fundamental error due to prosecutorial misconduct and because the court imposed multiple assessments at sentencing. Although we conclude under the circumstances of this case, involving a young victim and an alleged resident child molester,1 that the indictment was sufficient for purposes of due process, because we cannot say the verdicts were not influenced by inadmissible hearsay evidence, we vacate the convictions and resulting sentences and remand to the trial court for a new trial or further proceedings consistent with this opinion.
¶2 We view the evidence in the light most favorable to upholding the jury's verdicts, resolving all reasonable inferences against Copeland. See State v. Gill , 248 Ariz. 274, ¶ 2, 459 P.3d 1209 (App. 2020). When R.H. was four years old, her mother married Copeland. At some point, he began touching R.H.’s "private parts" over her clothing "once a week or more" while her mother was busy. In June 2016, when R.H. was eleven, the family moved to Sierra Vista. Copeland continued to touch R.H. over and sometimes under her clothing—"mostly in the hallway" in an area not readily visible, and sometimes in Copeland's or R.H.’s bedroom. R.H. recounted this had happened numerous times while they lived in Sierra Vista. Copeland had instructed R.H. not to tell anyone and on some occasions told her to stop him if she was uncomfortable with what he was doing.
¶3 In September 2017, Copeland and R.H.’s mother separated, and she and R.H. moved away. In November, R.H.’s physical education (PE) teacher noticed she was "not her usual self." When she broached the subject, R.H. started crying and then said that her stepfather "had touched her in the wrong way," more than once, gesturing towards her breasts and genitals. R.H. was taken to the school counselor's office where she told the counselor that her stepfather "had been touching her" in "[t]he way a man shows that he loves a woman." The counselor reported R.H.’s statements to police.
¶4 Later that day, a forensic interviewer spoke with R.H., observed by the lead detective assigned to the case. The following day, Copeland sent a friend a photograph of himself with a gun to his head and told her "he wanted to end it all" and "didn't want to go to jail or prison." When his friend asked why he would go to prison, Copeland responded that he had been "f- - - ing around with" R.H. Copeland's friend later elaborated that, from the context of the conversation, she understood it to mean Copeland had engaged in conduct of a sexual nature with R.H. The friend contacted R.H.’s mother who telephoned the police. When officers went to Copeland's house, he was upset and intoxicated. Copeland repeatedly told them "he was going to go to jail" because he had been accused of assaulting his stepdaughter. In the course of the conversation with one officer, Copeland kept "going back and forth," saying that he "might be a sex offender" and it "might have been sexual" but also denying that he could behave in such a way.
¶5 Copeland was taken to the hospital, where he confided in another friend that when he was drinking, he would sometimes "wake up on top of" R.H. He also told his friend that "whenever he was drinking" he "touched [R.H.]," which his friend testified he understood to mean that Copeland had "repeatedly" touched R.H. "[i]nappropriate[ly]," "in places you shouldn't touch a child."
¶6 Copeland was charged with fifty counts of child molestation occurring in 2016 and 2017 and one count of continuous sexual abuse, charged in the alternative. On the state's motion, the trial court dismissed the continuous sexual abuse count with prejudice, and the jury found Copeland guilty of the remaining fifty charges. The court subsequently sentenced him to a combination of consecutive and concurrent sentences totaling thirty-four years’ imprisonment and imposed a Dangerous Crimes Against Children Assessment of $500 per offense, for a total of $25,000. We have jurisdiction over Copeland's appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
The remaining forty-nine molestation counts were worded the same, except each specified an increasing numerical designation from "the second time" to "the fiftieth time." Before trial, Copeland moved to dismiss the indictment, arguing it was duplicitous because each count may have charged more than one act based on R.H.’s statement that she had been abused an average of twice per week over a period of seventy-eight weeks.3 He also asserted the indictment's "imprecision" put him "in the untenable position of having to defend against some unknown act on some unknown date" because it failed to describe the specific acts and dates of the alleged offenses. The trial court denied Copeland's motion, stating, "Arizona law doesn't recognize a motion for a bill of particulars." Copeland maintains the court erred because the Sixth Amendment and Rule 13.1(a), Ariz. R. Crim. P., entitled him to "more notice and specificity" of the charges. And he additionally urges, for the first time on appeal, that the state was restricted to prosecuting him only for continuous sexual abuse of a child. We will not disturb a court's ruling on a motion to dismiss an indictment absent an abuse of discretion. State v. Ramsey , 211 Ariz. 529, ¶ 5, 124 P.3d 756 (App. 2005). "An error of law constitutes an abuse of discretion." State v. Maciel , 240 Ariz. 46, ¶ 9, 375 P.3d 938 (2016).
¶8 The Sixth Amendment provides, in relevant part, "In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation." U.S. Const. amend. VI. Rule 13.1(a), Ariz. R. Crim. P., defines an indictment as "a plain, concise statement of the facts sufficiently definite to inform the defendant of a charged offense." "An indictment is legally sufficient if it informs the defendant of the essential elements of the charge, is definite enough to permit the defendant to prepare a defense against the charge, and affords the defendant protection from subsequent prosecution for the same offense." State v. Far W. Water & Sewer Inc. , 224 Ariz. 173, ¶ 36, 228 P.3d 909 (App. 2010). In determining sufficiency, "the indictment ‘must be read in the light of the facts known by both parties.’ " Id. (quoting State v. Magana , 178 Ariz. 416, 418, 874 P.2d 973, 975 (App. 1994) ).
¶9 Our research has revealed no Arizona precedent specifically addressing the sufficiency of an indictment in which a resident child molester was charged with multiple counts of child molestation in the manner presented here. But in an unpublished decision, we reviewed a similar situation in which the appellant had been charged with, and convicted of, numerous counts of child molestation and sexual conduct with a minor, including counts that nonspecifically alleged the "first" and "last" times various types of abuse had occurred. State v. Brown , No. 2 CA-CR 2018-0207, ¶¶ 8, 10, 15-18, 2019 WL 4620025 (Ariz. App. Sept. 23, 2019) (mem. decision).4 The appellant argued, inter alia , that the indictment had not provided sufficient notice of the allegations against him, due to the vagueness of the victim's testimony and "because she did not remember with particularity more than one incident and could only testify that they had occurred ‘more than once’ " during an approximate eight-month period at a particular residence. Id. ¶¶ 2-4, 14, 17, 20. We rejected that argument, concluding that the appellant's challenge actually invoked the sufficiency of the evidence rather than the adequacy of the indictment, id. ¶ 14, and that the victim's testimony that each type of act had occurred multiple times was sufficient to permit the jury to find that the challenged acts had been committed as charged, id. ¶ 20.
¶10 Considering decisions from other jurisdictions for this issue of first impression, we note that California's and New Mexico's highest courts have dealt with similar claims involving multiple counts of residential child molestation and resolved them with reasoning similar to that in our decision in Brown , though with more explication that may provide guidance here. In People v. Jones , a teacher was convicted of sexual offenses against four young children, two of whom he had adopted. 51 Cal.3d 294, 270 Cal.Rptr. 611, 792 P.2d 643, 645-46 (1990). Because the victims were young and had been abused numerous times, much of their testimony was nonspecific as they were unable to provide dates and precise locations...
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