State v. Gonzales
| Decision Date | 16 June 2015 |
| Docket Number | No. 1 CA-CR 13-0675,1 CA-CR 13-0675 |
| Parties | STATE OF ARIZONA, Appellee, v. DAVID LOPEZ GONZALES, Appellant. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
The Honorable Karen L. O'Connor, Judge
AFFIRMED IN PART; VACATED IN PART
Arizona Attorney General's Office, Phoenix
By Robert A. Walsh
Maricopa County Office of the Legal Advocate, Phoenix
By Consuelo M. Ohanesian
David Lopez Gonzales, Florence
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge John C. Gemmill and Judge Patricia A. Orozco joined.
¶1 Defendant David Lopez Gonzales appeals his convictions and sentences for molestation of a child and multiple counts of sexual abuse and sexual conduct with a minor.
¶2 This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Defendant's appellate counsel searched the record on appeal, found no arguable nonfrivolous question of law, and asks us to review the record for fundamental error. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530 (App. 1999). Defendant filed multiple supplemental briefs and motions in propria persona, in which he raises several issues for appeal. Under Penson v. Ohio, 488 U.S. 75, 83 (1988), we also ordered and received supplemental briefing from defense counsel and the state regarding certain of the jury's verdicts. Related to that briefing, we granted the state's motion to suspend the appeal and remand the case to the superior court for a hearing concerning the materials that the state presented to the jury during closing argument. The superior court ruled that the materials were part of the record, and the appeal was reinstated.
¶3 We have searched the record and considered the various briefs and motions filed on appeal. We hold that the superior court's entry of judgment on one of the sexual conduct counts was error because the jury returned two directly conflicting verdict forms with respect to that offense. This error was fundamental and prejudicial. We therefore vacate Defendant's conviction and sentence with respect to that count. We otherwise affirm Defendant's convictions and sentences.
¶4 In May 2012, Defendant was indicted for numerous counts of sexual abuse, molestation of a child, and sexual conduct with a minor, related to four alleged victims: T.Y., A.Y., C.S., and R.F. Defendant pled not guilty and the matter proceeded to a jury trial. Some of the charges were dismissed during thetrial. With respect to the remaining charges, the jury found Defendant guilty of multiple offenses related to T.Y. and C.S.
¶5 The evidence presented by the state at the trial showed, in relevant part, the following. Starting in 1990 or 1991, Defendant began a romantic relationship with A.A., mother to T.Y., who was then six or seven years old. Defendant began living with A.A. and her children, including T.Y., soon thereafter.
¶6 Initially, Defendant and T.Y. had a positive relationship. Their relationship changed, however, following a series of interactions that began when T.Y. was ten years old and ended when she was twelve years old. The first interaction occurred when Defendant, purportedly inspecting T.Y. for bruises after A.A. hit her, lifted T.Y.'s shirt and training bra and touched her breasts with his hands. Another time, Defendant touched T.Y.'s breasts with his hands as she lay on the family's living room couch after her mother and siblings left to purchase pizza. Later, Defendant touched T.Y.'s breasts with his hands as she sat on his lap. Another time, Defendant touched T.Y.'s breasts with his hands as he pressed up against her from behind in the family's basement. On this occasion, T.Y. could feel Defendant's erect penis against her bottom. Another time, when T.Y. was applying an analgesic muscle rub to Defendant's legs, Defendant asked her to touch his penis. He then held her hand on his penis and moved it around. On a separate occasion, in the family's bathroom, Defendant touched T.Y.'s breasts with his hands and made her touch his penis with her hands and move them. Finally, Defendant, sitting on his and A.A.'s bed, directed T.Y. to kneel on the floor and close her eyes. When T.Y. opened her eyes, she saw Defendant pulling back the skin of his penis. Defendant then forced T.Y.'s head down so that the top of her lip touched his penis.
¶7 T.Y.'s cousin C.S. lived with the family for two years, starting when she was eleven years old and T.Y. was ten years old. During this period, T.Y. observed Defendant touch C.S.'s breasts in the context of play-wrestling. C.S. testified that this happened several times. The first time, she thought that the contact was accidental, but she later came to believe that the contact was purposeful because Defendant's hand would go directly to her breasts. C.S. further testified that one day, when she was crying in a room after having argued with A.A., Defendant sucked on her breasts.
¶8 When T.Y. was in middle school, she wrote or helped to write a letter to her mother stating that Defendant had inappropriately touched her and her sister, A.Y. A.A. questioned T.Y. and A.Y. about the letter and told them that the accusations could put Defendant in jail. She also told them that she was going to confront Defendant, but when the children returned from school thatday, Defendant was home and their mother did not say anything to them. T.Y. felt betrayed by A.A. and did not again raise the matter with her. Nor did she contact law enforcement, both because she was afraid of retaliation by Defendant's family members and because she did not want those individuals to view her differently. Similarly, C.S. did not disclose Defendant's conduct. According to C.S., she did not trust anybody and wanted to put the incidents behind her.
¶9 In 2002, when T.Y. was seventeen years old, she witnessed a violent altercation between Defendant and one of her uncles. When questioned at the scene, T.Y. told a detective that she had been victimized by Defendant. But when later questioned at her high school by a different detective, T.Y. recanted because she felt overwhelmed and afraid. T.Y. did not again disclose Defendant's conduct to law enforcement until 2011, after her mother asked her to come forward. When T.Y. mentioned in a forensic interview that C.S. had also been a victim, C.S. was interviewed and she too disclosed her victimization. Defendant was interviewed and denied any abuse.
¶10 For his case, Defendant testified on his own behalf and presented the testimony of multiple relatives. Defendant denied ever having touched T.Y. or C.S. in any inappropriate manner, and his witnesses denied ever having seen any such behavior. Defendant and his witnesses also disputed the timeline established by the state. According to the defense evidence, Defendant did not begin dating and living with A.A. until 1995, and even thereafter was rarely around A.A.'s children because of his work obligations. Defendant also presented evidence that A.A.'s house was constantly full of visitors, some of whom were adult males. Defendant further presented evidence that no child had ever disclosed to his relatives any inappropriate conduct by Defendant, that T.Y. had worked for Defendant as a young adult, and that T.Y. had corresponded with Defendant in a civil manner as recently as 2011. Defendant testified that he had first heard of the accusations against him in connection with the 2002 altercation, and that the accusations resurfaced in 2011 at a time when he was engaged in a divorce and custody dispute with A.A. and had started dating another woman.
¶11 After considering the evidence and the parties' closing arguments, the jury returned verdicts finding Defendant guilty of two counts of sexual abuse as to C.S., five counts of sexual abuse as to T.Y., one count of molestation of a child as to T.Y., and two counts of sexual conduct with a minor as to T.Y., but found him not guilty of one count of sexual conduct with a minor as to T.Y. The jury further found Defendant not guilty of several counts related to A.Y.¶12 The court entered judgment on the jury's verdicts and sentenced Defendant to consecutive presumptive prison terms totaling 92 years, with credit for 490 days of presentence incarceration. Defendant timely appeals.
¶13 Defendant raises multiple issues in his pro per briefs and motions. We address each of his contentions in turn. We find reversible error only with respect to his conviction and sentence for the offense described in Count 13.1
¶14 Defendant contends that he was indicted based on the state's presentation of false and perjured testimony to the grand jury. Though generally we may not review grand jury findings on appeal, we may review whether an indictment was based on perjured material testimony. State v. Moody, 208 Ariz. 424, 439-40, ¶ 31 (2004). A witness commits perjury by making "[a] false sworn statement in regard to a material issue, believing it to be false." A.R.S. § 13-2702(A)(1). Defendant contends that during the grand jury proceedings, a detective falsely testified that T.Y. and C.S. lived with Defendant at all relevant times. But nothing in Defendant's description of the allegedly perjured statements conflicts with T.Y. and C.S.'s trial testimony, and Defendant's claim that "school records and other records" would demonstrate falsity is unsupported by the record. There is no indication that the detective gave false testimony before the grand jury, much less that he knowingly gave false testimony.
¶15 Defendant was present and represented by counsel at all...
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