State v. Fulcher
| Decision Date | 09 September 2021 |
| Docket Number | 1 CA-CR 20-0518 |
| Parties | STATE OF ARIZONA, Appellee, v. JESSE SCOTT FULCHER, Appellant. |
| Court | Arizona Court of Appeals |
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Mohave County No. S8015CR201901010 The Honorable Douglas R. Camacho, Judge Pro Tempore
Arizona Attorney General's Office, Phoenix
By Casey D. Ball
Counsel for Appellee
By Jill L. Evans
Judge Maria Elena Cruz delivered the decision of the Court, in which Presiding Judge Cynthia J. Bailey and Judge Jennifer M. Perkins joined.
¶1 Jesse Scott Fulcher ("Fulcher") appeals his convictions and sentences for molestation of a child, sexual abuse, and offering to transfer marijuana, arguing insufficient evidence supports his convictions. For the following reasons, we affirm.
¶2 Fulcher was a close family friend of the victims, K.C., H.P., and L.D. All three victims disclosed that Fulcher touched their breasts, with K.C. disclosing he touched her genitals. K.C. and L.D. further reported that Fulcher offered to give them marijuana.
¶3 The State charged Fulcher with one count of molestation of a child, a class 2 felony and dangerous crime against children; four counts of sexual abuse of a victim under fifteen years of age, class 3 felonies and dangerous crimes against children; two counts of sexual abuse of a victim fifteen years of age or older, class 5 felonies; and two counts of offering to transfer marijuana, class 3 felonies. Fulcher waived his right to a jury trial, and the superior court held a bench trial.
¶4 At trial, the mother of K.C. and H.P. testified that she considered Fulcher a member of the family and trusted him to be alone with the victims. She allowed Fulcher, a licensed massage therapist, to massage the victims' shoulders. The family cut ties with Fulcher after K.C. disclosed that he had been touching her inappropriately. Around this time, Fulcher text messaged the family and expressed disbelief that they could "condemn" him for making a "mistake."
¶5 K.C. testified that Fulcher regularly gave her massages. On one occasion, while K.C. had her head on Fulcher's lap, he began massaging her upper thigh. Fulcher moved his hand beneath her underwear and "grazed" her genitals. On a second occasion, while in a swimming pool, Fulcher pulled up K.C.'s swimsuit and massaged her exposed breasts. In doing so, Fulcher touched the fatty tissue of the tops and bottoms of K.C.'s breasts and "grazed" her nipples. This became an almost daily occurrence, with Fulcher touching K.C.'s breasts under the guise of a massage "hundreds or maybe thousands" of times. Fulcher's conduct caused K.C. fear and confusion, and she often made excuses to get away from him.
¶6 K.C. testified that she initially enjoyed Fulcher's company and confided in him. Fulcher began divulging personal, sometimes sexual details, admitting to K.C. that he had problematic thoughts about the victims and that he would date her if he were younger. During one of these conversations, Fulcher told K.C. that if she wanted to experiment with drugs, he would provide her with "safe" marijuana not "laced" with any other substances. K.C. was between thirteen and fifteen years old when the offenses occurred.
¶7 H.P. testified that Fulcher regularly gave her massages, eventually moving under her bra to rub the fatty tissue of the tops and sides of her breasts. In doing so, he would "sometimes" touch her nipples. As with K.C., Fulcher once mentioned that he would be attracted to H.P. if he were younger. Although H.P. could not remember specific dates, she testified that the offenses occurred "almost every time he was over" before she was fourteen years old. During this period, H.P. saw Fulcher move his hand under K.C.'s shirt and massage near her breast area.
¶8 L.D. testified that, during a massage, Fulcher moved his hands under her shirt to rub the fatty tissue of the tops and sides of her breasts. L.D. did not give Fulcher permission to touch her breasts and she made an excuse to get away from him. L.D. testified that she initially trusted Fulcher and they confided in each other, with him revealing details about his romantic and sexual history. In one of these conversations, L.D. told Fulcher she struggled with substance abuse issues. Instead of offering help, Fulcher offered to buy L.D. marijuana. L.D. testified that she knew Fulcher made the other victims uncomfortable and she sensed that they were experiencing similar abuse. K.C. and H.P. eventually asked L.D. "to find a way to help them get out of it[.]" L.D. was between the ages of eighteen and nineteen years old when the offenses occurred.
¶9 An officer, who conducted the initial interviews, testified that the victims did not appear coached and seemed genuinely relieved to tell their stories. The officer testified that Fulcher neither denied nor admitted the allegations. A detective, who conducted the follow-up interviews, testified that Fulcher denied any inappropriate conduct but admitted to massaging the victims and rubbing their "pec area." Fulcher further admitted to speaking to K.C. about his romantic and sexual history. A blind expert[1] on sexual abuse testified that offenders will break down a victim's barriers by building trust and incorporating "innocent" touching into their relationship. In some instances, the offender may introduce a victim to drugs or alcohol.
¶10 After the State's case-in-chief, Fulcher moved for a judgment of acquittal under Arizona Rule of Criminal Procedure 20. The superior court denied the motion, finding the State presented sufficient evidence to proceed. The superior court specifically rejected Fulcher's assertion that the evidence did not establish touching of the breasts under the statute governing disciplinary actions for massage therapists, Arizona Revised Statutes ("A.R.S.") § 32-4253(B)(1), which defines the term "breast" as "any portion of the female breast below a point immediately above the top of the areola." The superior court reasoned that the criminal code had not defined the term and it was therefore a "factual determination as to whether the evidence that has been presented so far shows that the breast has been touched."
¶11 Fulcher testified on his own behalf and denied the allegations. Fulcher, however, admitted to massaging the victims, rubbing K.C.'s upper thigh and pectoral area, and moving the victims' clothing during massages. He further admitted to telling the victims he would want his children to use marijuana in a safe environment. A character witness testified that Fulcher spent time with his young children and he never had concerns about Fulcher's conduct. The witness did not know the victims or K.C.'s and H.P.'s mother.
¶12 The superior court found Fulcher guilty as charged. In reaching its verdict, the superior court found the victims had no motive to lie and provided credible testimony. The superior court found the date ranges and victims' ages proven through dates of birth, residential history, and the location of the offenses. Again, the superior court rejected Fulcher's argument that the State failed to prove touching of the breasts as defined by A.R.S. § 32-4253(B)(1) but noted the contact would amount to sexual abuse even if that definition controlled.
¶13 The superior court sentenced Fulcher to an aggregate term of 42.5 years' imprisonment. He timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
I. Sufficiency of the Evidence
¶14 Fulcher argues insufficient evidence supports his convictions. We review the sufficiency of the evidence de novo, viewing the facts in the light most favorable to sustaining the verdict. State v. Bible, 175 Ariz 549, 595 (1993). We will reverse only if a complete absence of probative facts supports the convictions. State v. Scott, 113 Ariz. 423, 424-25 (1976).
¶15 We will uphold a superior court's "finding of guilt if it is supported by substantial evidence, which may be either circumstantial or direct." State v. Garza, 196 Ariz. 210, 211, ¶ 3 (App. 1999) (citations omitted). Substantial evidence is "such proof that 'reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.'" State v. Mathers, 165 Ariz. 64, 67 (1990) (quoting State v. Jones, 125 Ariz. 417, 419 (1980)). In reviewing sufficiency of the evidence, we compare the evidence "against the statutorily required elements of the offense," State v. Pena, 209 Ariz. 503, 505, ¶ 8 (App. 2005), but will neither reweigh conflicting evidence nor assess the credibility of witnesses, State v. Buccheri-Bianca, 233 Ariz. 324, 334, ¶ 38 (App. 2013). Even if uncorroborated, a victim's testimony is sufficient to support a conviction "unless the story is physically impossible or so incredible that no reasonable person could believe it." State v. Williams, 111 Ariz. 175, 177-78 (1974).
¶16 A person commits molestation of a child if he intentionally or knowingly engages in sexual contact with a minor under fifteen years of age. A.R.S. § 13-1410(A). As relevant here, sexual contact includes "any direct or indirect touching, fondling or manipulating of any part of the genitals." A.R.S. § 13-1401(A)(3)(a). This does not include contact "that an objective, reasonable person would recognize as normal and reasonable under the circumstances." A.R.S. § 13-1401(A)(3)(b). The State, however, is not required to prove sexual motivation as an element of the offense. See State v. Holle, 240 Ariz. 300, 301, ¶ 1 (2016)....
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