State v. Cummings
| Decision Date | 21 November 1985 |
| Docket Number | Nos. 2,CA-CR,s. 2 |
| Citation | 148 Ariz. 588,716 P.2d 45 |
| Parties | The STATE of Arizona, Appellee/Respondent, v. William Sterling CUMMINGS, Appellant/Petitioner. 3602, 2 3726-2PR. |
| Court | Arizona Court of Appeals |
This appeal is consolidated with a petition to review the denial of post-conviction relief, Rule 32, Rules of Criminal Procedure, 17 A.R.S.
Appellant was convicted by a jury of five counts of sexual conduct with a minor under the age of 15 and five counts of molestation of a child under the age of 15. 1 The indictment also charged each of the counts as a prior conviction under A.R.S. § 13-604(H). 2 Appellant was sentenced to concurrent prison terms ranging from 7 to 15.75 years' imprisonment.
Briefly, appellant, a former scout master, met the three victims involved in this case through the Boys Scouts or other neighborhood activities in which appellant was involved. The victims, all male, ranged in age from 12 to 13 years at the times of the crimes, most of which took place at appellant's home. Appellant testified at trial, denying that any of the crimes took place, and contended that he was impotent.
Appellant contends the trial court erred in failing to grant his motion for judgment of acquittal as to Counts XVI, XVIII, XIX and XX. Each of these counts involved the victim G.B. The state concedes, and we agree, that there is no evidence to support a conviction on Count XVIII.
Count XVI alleges that on or about the month of June 1982, appellant committed sexual conduct with G.B. by engaging in sexual intercourse or oral sex. At the grand jury proceeding, there was evidence that Cummings performed oral sex on G.B. and that thereafter appellant had G.B. promise not to tell about this activity. In contrast, at trial, the only testimony regarding a sexual act between the victim and appellant in June 1982 involved an act of fellatio performed by the victim upon appellant.
Count XIX alleges that on or about November 1982, appellant molested G.B. The grand jury testimony indicated that appellant pinned down and masturbated the victim while the victim was reading some magazines. At trial the victim testified that in November 1982 he masturbated appellant.
Count XX alleges that on or about the month of June 1983, appellant engaged in sexual conduct with G.B. At the grand jury proceeding the evidence was that appellant performed anal sex on the victim. A review of the entire testimony of G.B. reveals no mention of anal sex.
Appellant contended in his motion for acquittal and contends here that he cannot be convicted for crimes which were not presented to the grand jury and which did not form the basis for the grand jury's indictment. We agree. In State v. Mikels, 119 Ariz. 561, 563, 582 P.2d 651, 653 (App.1978), we noted:
During direct examination of G.B. by the prosecutor the following took place:
"Q I need to ask you a question, [victim's name]. When you were in Palo Verde Hospital, how come you ended up there in the hospital?
A Because I couldn't handle what was going on.
Go ahead.
BY MR. LANG:
Q Could you explain what you mean by that?
Q Had you even had thoughts up to that time about, you know, committing suicide?
A Yes.
Q And had you tried it and that's why you were in the hospital?
A Yes."
Appellant contends that there were two reasons why the foregoing testimony was inadmissible. He first contends that its admission violated his constitutional right of cross-examination. He points out that prior to trial he made a motion to see the medical records of G.B. and that the motion was denied. He contends that he was not able to cross-examine G.B. on the issue of any psychological problems stemming from the incidents. We find that this objection has been waived by failure to assert it at trial. As can be seen, the only objections made by counsel were general objections. Having failed to make the objection at trial, appellant cannot raise the issue on appeal.
Appellant also contends that the trial court erred in admitting the testimony because it was immaterial. We do not agree. Appellant denied having any sexual contact with G.B. G.B.'s testimony concerning his mental condition tended to support his testimony that the alleged incidents did, in fact, take place.
Appellant argues that his enhanced sentence pursuant to A.R.S. § 13-604(H) violates Article III of the Constitution of the State of Arizona which provides for the separation of powers between the executive, legislative and judicial branches of the state government. We believe this argument is misconceived. The enhanced penalty provisions of A.R.S. § 13-604(H) are analogous to mandatory sentences, and it is well established that mandatory sentences do not violate Article III because defining crimes and appropriate sanctions for those who commit them is a legislative function. State v. Faunt, 139 Ariz. 111, 677 P.2d 274 (1984); State v. Marquez, 127 Ariz. 98, 618 P.2d 592 (1980). Appellant does not argue that the statute violates the separation of powers provision because it unlawfully delegates legislative authority to the prosecuting attorney, who has discretion in alleging prior convictions. But if he did make such an argument, it would also have doubtful merit. See State v. Olson, 274 N.W.2d 190 (N.D.1978) and State v. Ternes, 259 N.W.2d 296 (N.D.1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1524, 55 L.Ed.2d 540 (1978).
During its deliberations, the jury sent a written request stating that it needed "access to information that would identify specific incidents with specific counts." In the presence of appellant and his counsel, the trial court, in answer to the jury's request, told the jury:
After this further instruction was given, appellant objected to it on the grounds that it emphasized one instruction over the others. Appellant did not, however, then request the court to let the jury hear all of the instructions, in their entirety.
Appellant contends on appeal that the trial court's instruction unduly emphasized one instruction and, in addition, he asserts that the instruction was improper because it did not make it clear to the jury that it must find, beyond a reasonable doubt, that the crime occurred on or about the date alleged in the indictment.
As to appellant's first contention, if he were really serious about undue emphasis, he should have requested the trial court to have the instructions played back or given to the jury in their entirety. He did not do so. In any event, the trial court did not unduly emphasize an instruction by giving the jury an additional instruction when it asked for further clarification on a particular facet of the law.
Appellant's second objection was never asserted at trial. Regardless of the failure to assert the objection, the instructions, considered as a whole, show that the trial court adequately instructed the jury. The instruction given to the jury prior to its initial deliberations told the jurors that if the evidence showed beyond a reasonable doubt that the crime was committed by the defendant on or about the date charged in the indictment, that was sufficient. We believe that the jury was adequately apprised that it not only had to find beyond a reasonable doubt that the crime was committed but also that it was committed beyond a reasonable doubt on or about the date charged in the indictment.
Pursuant to A.R.S. § 13-4231 and Rule 32 of the Rules of Criminal Procedure, 17 A.R.S., appellant filed a petition for post-conviction relief alleging four instances of jury misconduct. First, prior to the time the jury began to deliberate, one of the jurors drew on the blackboard in the jury room a picture of somebody hanging. This was done after another juror indicated that he thought appellant was guilty and the jury should hang him. At least seven or eight other jurors agreed with this assessment of appellant's guilt and made statements to that effect during the course of the trial and prior to deliberations. Second, two jurors...
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State v. Bartlett
...appropriately applied in situations involving repeated and cruel sexual offenses against small children. See, e.g., State v. Cummings, 148 Ariz. 588, 716 P.2d 45 (App.1985) (defendant, a scoutmaster, performed multiple acts of oral and anal sex on 12- to 13-year-old male victims; was senten......
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State v. Alcantar
... ... jury," a constitutional claim we review de novo. See ... Moody, ... 208 Ariz. 424, ¶ 62. Defendants cannot be convicted of ... crimes not presented to the grand jury as part of the ... indictment process. State v. Cummings, 148 Ariz ... 588, 590 (App. 1985); see U.S. Const. amends. V, ... XIV, § 1; Ariz. Const. art. II, §§ 4, 30 ... Pursuant to Rule 13.5(b), Ariz. R. Crim. P., a "grand ... jury indictment limits the trial to the specific charge or ... charges stated in the ... ...
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May v. Shinn
...it apparently could have convicted May on those counts even if it was deadlocked on other counts. See, e.g., State v. Cummings , 148 Ariz. 588, 716 P.2d 45, 46 & n.1 (Ct. App. 1985).14 The dissent mentions an empirical study of juries that ultimately hang, which found that the final straw p......
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State v. Bartlett
...appropriately applied in situations involving repeated and cruel sexual offenses against small children. See, e.g., State v. Cummings, 148 Ariz. 588, 716 P.2d 45 (App.1985) (defendant, a scoutmaster, performed multiple acts of oral and anal sex on 12- to 13-year-old male victims; was senten......