State v. Haverstick

• Decision Date: 20 February 2014
• Docket Number: No. 2 CA–CR 2012–0392.,2 CA–CR 2012–0392.
• Citation: 234 Ariz. 161,318 P.3d 877
• Parties: The STATE of Arizona, Appellee, v. Stephen Vincent HAVERSTICK, Appellant.
• Court: Arizona Court of Appeals

234 Ariz. 161

318 P.3d 877

The STATE of Arizona, Appellee,

v.Stephen Vincent HAVERSTICK, Appellant.

No. 2 CA–CR 2012–0392.

Court of Appeals of Arizona,

Division 2.

Feb. 20, 2014.

Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix By Amy M. Thorson, Assistant Attorney General, Tucson, Counsel for Appellee.

Lori J. Lefferts, Pima County Public Defender By Abigail Jensen, Assistant Public Defender, Tucson, Counsel for Appellant.

Chief Judge HOWARD authored the opinion of the Court, in which Presiding Judge VÁSQUEZ and Judge MILLER concurred.

OPINION

HOWARD, Chief Judge.

¶ 1 After a jury trial, appellant Stephen Haverstick was convicted of one count of sexual conduct with a minor and one count of molestation of a child. On appeal, he argues he was denied a fair trial because the prosecutor vouched for the credibility of a witness in closing argument. He further argues that assessments he was ordered to pay violate the ex post facto clauses of the state and federal constitutions and that the court erred by entering a criminal restitution order at sentencing. For the following reasons, we affirm Haverstick's convictions, sentences, and assessments, but vacate the criminal restitution order.

Factual and Procedural Background

¶ 2 We view the facts in the light most favorable to upholding the convictions. See State v. Mangum, 214 Ariz. 165, ¶ 3, 150 P.3d 252, 253 (App.2007). In 2009, S. revealed to a church youth group leader that she had been molested when she was younger. The youth group leader informed her pastor, who contacted the police. The police officers located S. and the Children's Advocacy Center conducted a forensic interview.

¶ 3 Haverstick was charged with one count of sexual conduct with a minor under fifteen alleging that he had oral sexual contact with S., a second count of sexual conduct with a minor under fifteen alleging that Haverstick had S. make oral sexual contact with him, and one count of molestation of a child alleging Haverstick had caused S. to have sexual contact with his genitals. At trial, S. testified that Haverstick had performed oral sex on her, that he had forced her to touch his genitals with her hand, and that he had forced her to perform oral sex on him.

¶ 4 The jury found Haverstick guilty on the counts alleging Haverstick had oral sexual contact with S. and that he had caused S. to have sexual contact with his genitals, but acquitted him on the count alleging he had caused S. to perform oral sex on him. He was sentenced to life imprisonment without possibility of release for thirty-five years for sexual conduct with a minor, consecutive to a seventeen-year sentence for the molestation conviction. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12–120.21(A)(1) and 13–4033(A)(1).

Prosecutorial Misconduct

¶ 5 Haverstick first argues that the prosecutor committed misconduct that denied him a fair trial by vouching for S.'s credibility during his closing argument. Because Haverstick did not object below to the statements he challenges on appeal, we review only for fundamental, prejudicial error. State v. Martinez, 230 Ariz. 208, ¶ 31, 282 P.3d 409, 416 (2012).

¶ 6 In order to reverse a conviction based on improper comments from the prosecutor, the comments must “be so egregious as to deprive the defendant of a fair trial and render the resulting conviction a denial of due process.” State v. Hernandez, 170 Ariz. 301, 307, 823 P.2d 1309, 1315 (App.1991). Impermissible prosecutorial vouching takes two forms: “(1) when the prosecutor places the prestige of the government behind its witness, and (2) where the prosecutor suggests that information not presented to the jury supports the witness's testimony.” State v. Dumaine, 162 Ariz. 392, 401, 783 P.2d 1184, 1193 (1989), disapproved on other grounds State v. King, 225 Ariz. 87, ¶¶ 9, 12, 235 P.3d 240, 242–43 (2010). We consider arguments made in closing together with the jury instructions to determine “whether the prosecutor's statements constituted fundamental error.” State v. Hernandez, 170 Ariz. 301, 308, 823 P.2d 1309, 1316 (App.1991). “When improper vouching occurs, the trial court can cure the error by instructing the jury not to consider attorneys' arguments as evidence.” State v. Payne, 233 Ariz. 484, ¶ 109, 314 P.3d 1239, 1267 (2013). And when the prosecutor makes “clear that it was for the jury to ‘determine the credibility of’ the witnesses,” improper vouching does not occur so long as the prosecutor's “characterization of the witnesses as truthful was sufficiently linked to the evidence.” State v. Corona, 188 Ariz. 85, 91, 932 P.2d 1356, 1362 (App.1997).

¶ 7 Before the attorneys presented their closing arguments, the trial court instructed the jury that “[i]n their opening statements and closing arguments, the lawyers talk to you about the law and the evidence. What the lawyers say is not evidence, but it might help you to understand the law and the evidence.” In his closing argument, the prosecutor reminded the jury that “the judge, as part of the instructions, gave you the way to judge a witness's credibility.” He then went on to argue that all the other evidence presented at trial, including S.'s testimony, pointed to her credibility:

Now, [S.] is credible in every way possible. The first thing is, every witness who came in here and talked, even in defendant's own statement, even Mr. Haverstick's own statement, he says [S.] is a truthful girl. Everyone has laid that fact out.

....

The first way you judge the credibility of a witness is simply through someone's demeanor, someone's demeanor as they testify. And, ladies and gentlemen, you got a chance to sit feet away from [S.]. The first thing I want to ask you to do is take yourself back to that point yesterday. Think about the way she sat there and told you what had happened. Think about the way she sat there and told you about the feelings she still holds for her grandfather, the emotion she displayed with you guys. The simplest question is, was that faked.

Now, you are the judges of the facts, not me. But the reality there, ladies and gentlemen, is that was no act. That was not faked. That was not overdone. There was no melodrama. There was no selling it to you....

If Mr. Haverstick is not guilty, [S.] would have had to get up there and basically lie to you guys. And we have to call it by its name. Dr. Dutton, she used the term, a malicious false allegation. [S.] would come in here and sell you guys on something that wasn't true. Think back, please, to [S.] as she talked to you. Was that a girl selling you on something that wasn't true?

....

Ladies and gentlemen, for Mr. Haverstick to not be guilty, [S.] would have had to come to court and lie to you. That's not what happened. She has no motive to do that. Her memory clearly does not show that. And most importantly, her demeanor with you was not faked. She talked about what was going on with her, about her own feelings.

Then, in rebuttal closing argument, the prosecutor continued discussing S.'s credibility by stating:

And, ladies and gentlemen, just because it's not the defense's burden, and it is not the defense's burden to disprove guilt, does not mean you ignore the simple fact that every single witness in this case told you [S.] is a truthful girl.

....

... She is a real flesh-and-blood person who came and talked to you this week.... Your job is to assess her credibility as she sat here.

And when [defense counsel] says he doesn't have to prove stuff, that's right. But that doesn't mean you ignore that every factor that plays into her credibility tells you, ladies and gentlemen, that she's telling the truth.

....

Ladies and gentlemen, the defense doesn't have to give you an alternate scenario. They don't have to prove an alternate scenario. But the fact of the matter is, there is no alternate scenario. That girl has credibility in every way somebody can.

....

... And please, at the end of the day, come back to really the person this is about, [S.]. The fact of the matter is, she was telling the truth or she wasn't.

Defense counsel talked about a lot of other witnesses, but very little about [S.] The fact of the matter is, [S.] is credible in every single way somebody can be. She has no motive to make this up. She said the same thing over and over again, even at the cost to herself, to her grandfather who[m] she loves, to her own family. Why? Real simple, ladies and gentlemen. Because it happened.

Haverstick argues that the italicized statements above constituted impermissible vouching by the prosecutor that placed the prestige of the government behind S. The comments, however, must be viewed in the context of the prosecutor's entire argument, during which he repeatedly told the jury it was their duty to determine S.'s credibility, not his, and urged them to find her credible by examining the evidence presented and reaching their own conclusion. Thus, we do not read the prosecutor's comments, in context, as impermissible vouching. See Corona, 188 Ariz. at 91, 932 P.2d at 1362.

¶ 8 Moreover, Haverstick has not shown that he was prejudiced by the comments. The trial court instructed the jury that the lawyer's arguments were not evidence, and that instruction can be sufficient to “cure” improper vouching. See Payne, 233 Ariz. 484, ¶ 109, 314 P.3d at 1267. Furthermore, even assuming the prosecutor's remarks constituted improper vouching, any effect on the jury was mitigated by its receiving the requisite instruction. Additionally, in a case that hinged on the credibility and testimony of S., the jury acquitted Haverstick of one charge of sexual conduct with a minor, apparently rejecting S.'s testimony as to that charge. Thus, the record shows that the jury carefully deliberated over S.'s veracity and reached a conclusion independent of what the prosecutor argued. Consequently, we are not persuaded by his argument.

Assessments

¶ 9 Haverstick next argues the...