State v. Culpepper

• Decision Date: 03 May 2017
• Docket Number: No. 2 CA-CR 2016-0254,No. 2 CA-CR 2016-0255 (Consolidated),2 CA-CR 2016-0254,2 CA-CR 2016-0255 (Consolidated)
• Citation: State v. Culpepper, No. 2 CA-CR 2016-0254, No. 2 CA-CR 2016-0255 (Consolidated) (Ariz. App. May 03, 2017)
• Parties: THE STATE OF ARIZONA, Appellee, v. VIRGINIA JOLENE CULPEPPER, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee, v. VIRGINIA JOLENE CULPEPPER, Appellant.

No. 2 CA-CR 2016-0254

No. 2 CA-CR 2016-0255 (Consolidated)

ARIZONA COURT OF APPEALS DIVISION TWO

May 3, 2017

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NOT FOR PUBLICATION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 Gila County

Nos. S0400CR201500132 and S0400CR201500189 (Consolidated)

The Honorable Timothy M. Wright, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Chief Counsel, Phoenix

By Jonathan Bass, Assistant Attorney General, Tucson

Counsel for Appellee

Harriette P. Levitt, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Vásquez and Judge Howard¹ concurred.

ECKERSTROM, Chief Judge:

¶1 Culpepper appeals from her convictions and sentences for four counts of child abuse and three counts of sexual conduct with a minor. For the following reasons, we vacate her four convictions for child abuse. We otherwise affirm her convictions and sentences.

Factual and Procedural Background

¶2 In 1986, Culpepper married William Culpepper (William). At that time, Culpepper already had two daughters, A. and D. The couple had a daughter together the following year, S. As the girls grew up, William committed numerous acts of physical and sexual abuse against them. Culpepper was present during many of these acts, but never attempted to intervene. In 2014, when D. was an adult, she learned that the statute of limitations had not expired and that William and Culpepper could still be prosecuted for their actions. D. reported the abuse to law enforcement.

¶3 Culpepper was charged in two separate case numbers, CR 201500132 (case 132) and CR 201500189 (case 189). The cases were consolidated for trial and have likewise been consolidated on appeal. After a jury trial, Culpepper was convicted of four counts of child abuse and three counts of sexual conduct with a minor. She was sentenced to consecutive, minimum terms of fifteen years for each of the three counts of sexual conduct with a minor and a combination of consecutive and concurrent presumptive terms totaling 6.5 years for the four counts of child abuse, to be servedconsecutively to the sentences for sexual conduct. This timely appeal followed. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4033.

Duplicity

¶4 Culpepper first asserts the four charges of child abuse were duplicitous. Because Culpepper did not object on this basis to the trial court, she has forfeited review absent fundamental, prejudicial error. See State v. Urquidez, 213 Ariz. 50, ¶ 4, 138 P.3d 1177, 1178 (App. 2006). However, a duplicitous charge constitutes fundamental error because it "raises the possibility that the defendant's right to a unanimous jury verdict . . . may be violated." State v. Klokic, 219 Ariz. 241, ¶ 32, 196 P.3d 844, 851 (App. 2008); accord State v. Delgado, 232 Ariz. 182, ¶¶ 18-19, 303 P.3d 76, 82 (App. 2013).

¶5 "A duplicitous charge exists '[w]hen the text of an indictment refers only to one criminal act, but multiple criminal acts are introduced to prove the charge.'" State v. Paredes-Solano, 223 Ariz. 284, ¶ 4, 222 P.3d 900, 903 (App. 2009), quoting Klokic, 219 Ariz. 241, ¶ 12, 196 P.3d at 847 (alteration in Paredes-Solano). The state may argue alternative legal theories of liability without creating a duplicity issue because "the defendant is not entitled to a unanimous verdict on the precise manner in which the act was committed." State v. West, 238 Ariz. 482, ¶ 13, 362 P.3d 1049, 1055 (App. 2015), quoting State v. Herrera, 176 Ariz. 9, 16, 859 P.2d 119, 126 (1993). However, when the state introduces evidence of separate incidents that may each support criminal liability, duplicity becomes an issue because "[t]he jury . . . must be unanimous 'on whether the criminal act charged has been committed.'" Id., quoting Herrera, 176 Ariz. at 16, 859 P.2d at 126.

¶6 If the evidence introduced at trial renders a charge duplicitous, the state may cure that defect by electing which act it alleges constituted the crime. See State v. Waller, 235 Ariz. 479, ¶ 33, 333 P.3d 806, 816 (App. 2014). In its answering brief, the state contends the prosecutor elected which act constituted each offensein her closing argument.² We address each of Culpepper's claims of duplicity in turn.

Child Abuse Against S.

¶7 Culpepper was charged in "count three"³ of case 189 with child abuse as to S. committed "[o]n or about 1995 to on or about 2000" and specifically that she "intentionally or knowingly permitted [S.] . . . to be placed in a situation where her person or health was endangered." At trial, S. testified to multiple incidents that could have formed the basis for this count. She detailed how William had spanked her with a "[p]addle or belt" and stated that he had beaten her badly enough to have "broken two paddles over [her] before." She also testified that William had threatened her with a gun because she told him she was a lesbian. S. testified that, during both of these incidents, Culpepper had been present, but had done nothing.

¶8 In addition to these allegations of physical violence, S. also testified to a number of instances of sexual misconduct by William: he had forced her and her sisters to participate in"[s]hutdown time," during which the girls performed household chores and other evening activities while nude, he had taken nude pictures of her, and he had done "checkups while [she] was in the shower to see how [she] was developing," all while Culpepper was present. Culpepper never attempted to stop any of these acts.

¶9 In her closing argument, the prosecutor, discussing the charge of child abuse "involving [S.] from '95 to 2000," stated, "And what did the defendant do? She allowed her daughter to have a gun pointed at her head, and told she would be killed, if she mentioned that she was gay again." However, a bit later in her argument, the prosecutor was discussing the standard of child abuse "[u]nder circumstances, other than those likely to produce death or serious physical injury," and she then noted, as an example of "what was going on," that "[S.] was paddled so hard, she broke the paddle." The prosecutor, in this statement, strongly implied that the paddling was the basis for the child abuse charge involving S. Given this ambiguity as to which act the state had elected, we cannot conclude that the prosecutor cured the duplicity problem. Culpepper has met her burden of establishing fundamental error as to this charge.⁴

¶10 Having determined that fundamental error occurred, we now must determine if the error was prejudicial. In a case where there is no "reasonable basis to distinguish between the acts," andthe jury is simply presented with a question of whether to believe the victim or the defendant, there is no prejudice. Klokic, 219 Ariz. 241, ¶¶ 32-36, 196 P.3d at 851-52; see State v. Schroeder, 167 Ariz. 47, 53, 804 P.2d 776, 782 (App. 1990). The state asserts that such is the case here.

¶11 Culpepper testified at trial that she did not know that her husband had done anything inappropriate. She did not recall him forcing her daughters to be nude around the house, did not know about most of the nude photographs, and claimed she had not been present during the incident with the gun. However, she did acknowledge that she recalled "when he spanked [her]." Although she never specified which of her daughters this statement referred to, she did say that she thought it was wrong and she told William that she disagreed with it. From this testimony, the jury could have concluded that she did not intentionally permit S.'s health or person to be endangered when William had spanked her. See A.R.S. § 13-3623(B)(1). Culpepper presented different defenses as to these acts and has therefore shown fundamental, prejudicial error. See Klokic, 219 Ariz. 241, ¶ 37, 196 P.3d at 852. We vacate her conviction on this count.

Child Abuse Against D.

¶12 The charge of child abuse involving D., count three of the indictment in case 132, specified that it occurred from January 2000 to May 2003. D. testified that William had "masturbate[d]" her on the sofa on multiple occasions. On those occasions, Culpepper was present, but did not say anything or take any action to prevent it. Like S., D. testified about "shutdown time" and having nude photos taken. D. stated that William "ha[d] [her] touch his penis," and "penetrate[d] [her] with his fingers," but for these acts, she testified that Culpepper had not been present. When D. was sixteen, William "would spray [her] with silver water," supposedly as a treatment for ringworm. D. was naked during this procedure, and William took pictures of it. D. stated that William also "masturbate[d]" her under the pretense of applying medicine to ringworms on her vaginal area. As to that specific incident, D. testified that Culpepper had not been present.

¶13 During closing argument, in reference to the charge of child abuse involving D., the prosecutor stated, "This is the situation where [D.] was masturbated by her stepfather. Was required to masturbate[] him. Was required to perform other sexual acts for him." This statement, rather than electing a specific act that constituted the basis of the charge, referred to at least three different acts and was plainly insufficient to cure the duplicity issue.

¶14 On this charge, we must also conclude there was prejudice because there was a "reasonable basis to distinguish between the acts." Klokic, 219 Ariz. 241, ¶ 33, 196 P.3d at 851. D. specifically testified that her mother had not been present when William made her touch his penis and penetrated her with his fingers. D. also stated that her mother had not been present for the ringworm treatment. The jury, therefore, could have believed that Culpepper was innocent as to these acts but...