State v. Henry

• Decision Date: 20 May 2003
• Docket Number: No. 2 CA-CR 2001-0146.,2 CA-CR 2001-0146.
• Citation: 68 P.3d 455,205 Ariz. 229
• Parties: The STATE of Arizona, Appellee, v. Tyrone Vaughn HENRY, Appellant.
• Court: Arizona Court of Appeals

68 P.3d 455

205 Ariz. 229

The STATE of Arizona, Appellee, v. Tyrone Vaughn HENRY, Appellant.

No. -0146.

Court of Appeals of Arizona. Division Two, Department A.

May 20, 2003.

As Corrected June 11, 2003.

Terry Goddard, Arizona Attorney General, By Randall M. Howe and R. Wayne Ford, Phoenix, for Appellee.

Tyrone Vaughn Henry, Florence, In Propria Persona.

OPINION

HOWARD, J.

¶ 1 Appellant Tyrone Henry was convicted of fraudulent scheme and artifice and sentenced to prison. He argues the trial court erred in denying his motion for judgment of acquittal.¹ Finding no abuse of discretion or other reversible error, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining the conviction. State v. Riley, 196 Ariz. 40, ¶ 2, 992 P.2d 1135, ¶ 2 (App.1999). In June 2000, Henry approached the victims, fifteen-year-old K. and sixteen-year-old C., at a shopping mall. He claimed to be marketing a new face cream, asked the victims whether they used face creams, and showed them photographs of females with "clumpy," white cream on their faces. Henry said he was conducting a survey of the face cream, using females ages twelve to twenty-five, and appeared to write the victims' responses to questions he asked them about lotions they used. He asked the victims if they would like to further participate in the survey by having facials, offering them $10 each to do so. The victims made an appointment to have facials the next day.

¶ 3 Henry telephoned the victims the next day and gave them directions to his apartment. The victims took a male friend along to the apartment, but Henry requested that the friend remain outside during the facials, claiming Henry and the victims "had to talk about secret traits that were in the facial cream." After the friend agreed, the victims entered the living room of Henry's small apartment, and he asked K. to lie on a bed and C. to lie on a couch near the bed.

¶ 4 Wearing cotton shorts and a T-shirt, Henry placed small caps and a bandanna over K.'s eyes and told her she would go blind if any of the face cream got in her eyes. K. felt him brush a substance on her face and then heard him clicking the mouse on his computer. With her eyes still covered, K. then heard heavy breathing and heard Henry telling C., "it's coming soon," and, after that, "it spilt." K. then saw camera flashes after Henry said he was going to take photographs. K. heard Henry walking behind her where C. was lying, and then felt him place a thick, warm substance on K.'s face with his hands. Henry had told K. he would warm the treatment cream in a microwave oven, but she never heard a microwave oven activated. Shortly thereafter, Henry removed the bandanna and caps and gave K. and C. towels to wipe their faces. When K. sat up to wipe her face, she saw "white stuff" on C.'s chin that was "real thick ... [and] clumped up."

¶ 5 Henry had not covered C.'s eyes but had told her to keep them closed, claiming the applications to her face would burn her eyes. Henry had taken a "before" photograph and had applied two substances to C.'s face with his hands and had taken more photographs. He then had told C. to "hold on because the thick treatment was going to come in just a second." Without feeling Henry's hands, C. had then felt "something... warm ... just [go] all over [her] face" and shirt and had then noticed camera flashes.

¶ 6 Before the victims left the apartment, Henry asked them "how did it feel," giving them a $20 bill. He also asked if they wanted to make another appointment. The victims made another appointment and left with their friend. The victims thereafter discussed what had happened and, based on their suspicions that Henry had ejaculated on C.'s face, contacted the police.

¶ 7 Police officers interviewed the victims and collected C.'s T-shirt. After receiving crime laboratory test results showing the possible presence of semen on the shirt, which deoxyribonucleic acid (DNA) testing later confirmed as Henry's, police searched his apartment. The search did not produce any indication that Henry had been conducting legitimate face cream testing, but police found a day planner with the victims' names in it, along with the names of numerous other females, and sections marked "site" and "White Dew Facials." Officers seized a computer, a scanner, and 300 to 500 photographs, many of them depicting females involved in situations similar to that the victims had described. Officers also found one photograph of C. on an undeveloped roll of film resembling one of the earlier photographs Henry had taken during the incident. Police discovered that Henry was operating a pornographic Internet website titled, "White Dew Original Facials," on which he would charge visitors between $10 and $90 to view images of females with semen on their faces.

¶ 8 The state charged Henry with two counts of kidnapping and one count of fraudulent scheme and artifice. At trial, in addition to the victims, M., whose name had been found in Henry's day planner and photographs of whom had been recovered from Henry's apartment, testified that, about two years earlier, she had responded to an advertisement in which Henry had offered money for females to participate in a face cream experiment. She testified that she had made an appointment with Henry and had gone to his apartment. She said Henry had covered her eyes, telling her that the cream would burn her eyes, had surreptitiously ejaculated on her face, and had taken photographs. Tests conducted on a stain from a sweater M. had worn during the incident produced results consistent with Henry's semen.

¶ 9 In his defense, Henry called several females, who testified they had gone to Henry's apartment and had willingly posed for photographs with Henry's semen on their faces, which they had understood would be used on Henry's website. They testified that Henry had paid them as much as $100 per hour for posing for the photographs. During closing argument, Henry suggested that he, in fact, had been engaged in legitimate skin cream testing, that the semen found on C.'s shirt could have been transferred there from the towel she had used to clean her face at Henry's apartment, and that M. had shown up for a face treatment, had flirted with Henry, and had wanted to "play around with some other things."

¶ 10 The trial court granted Henry's motion for judgment of acquittal on the kidnapping charges but denied it on the fraudulent scheme count. The jury found Henry guilty, and the court imposed a presumptive, five-year prison sentence, which the court enhanced by two years after Henry admitted having committed the offense while on release for an unrelated offense.

DISCUSSION

¶ 11 Henry argues the trial court erred in denying his motion for judgment of acquittal, submitted pursuant to Rule 20, Ariz. R.Crim. P., 17 A.R.S., after the conclusion of the state's evidence. We review a trial court's denial of a Rule 20 motion for an abuse of discretion and will reverse only if no substantial evidence supports the conviction. State v. Carlos, 199 Ariz. 273, ¶ 7, 17 P.3d 118, ¶ 7 (App.2001). Substantial evidence, which may be either circumstantial or direct, is evidence that a reasonable jury can accept as sufficient to infer guilt beyond a reasonable doubt. State v. Fulminante, 193 Ariz. 485, ¶ 24, 975 P.2d 75, ¶ 24 (1999); State v. Garza, 196 Ariz. 210, ¶ 3, 994 P.2d 1025, ¶ 3 (App.1999); State v. Sabalos, 178 Ariz. 420, 422, 874 P.2d 977, 979 (App.1994). Ultimately, a trial court must submit a case to the jury if reasonable minds can differ on the inferences to be drawn from the evidence. State v. Landrigan, 176 Ariz. 1, 4, 859 P.2d 111, 114 (App.1993).

¶ 12 The jury found Henry guilty of fraudulent scheme and artifice, in violation of A.R.S. § 13-2310(A), which prohibits a person from, "pursuant to a scheme or artifice to defraud, knowingly obtain[ing] any benefit by means of false or fraudulent pretenses, representations, promises or material omissions." For purposes of § 13-2310(A), "a `scheme or artifice' is some `plan, device, or trick' to perpetrate a fraud." State v. Haas, 138 Ariz. 413, 423, 675 P.2d 673, 683 (1983), quoting State v. Stewart, 118 Ariz. 281, 283, 576 P.2d 140, 142 (App.1978). "The scheme need not be fraudulent on its face but `must involve some sort of fraudulent misrepresentations or omissions reasonably calculated to deceive persons of ordinary prudence and comprehension.'" Haas, 138 Ariz. at 418, 675 P.2d at 678, quoting United States v. Pearlstein, 576 F.2d 531, 535 (3d Cir.1978) (emphasis omitted). The term "defraud" as used in the statute is not measured by any technical standard but, rather, by a "broad view." Haas, 138 Ariz. at 424, 675 P.2d at 684. A "benefit" under the statute is "anything of value or advantage, present or prospective." A.R.S. §§ 13-105(2), 13-2301.

¶ 13 Henry argues no substantial evidence supports the conviction because sexual gratification does not qualify as a requisite "benefit" under § 13-2310, contrary to the state's argument to the jury.² Henry urges that "benefit" as found in § 13-2310 applies only to property and pecuniary gains, not to anything as intangible as sexual gratification. Although we normally review a Rule 20 ruling for an abuse of discretion, see Carlos, we review this statutory interpretation issue de novo. Gray v. Irwin, 195 Ariz. 273, ¶ 7, 987 P.2d 759, ¶ 7 (App.1999). We agree with the state that, in this case, sexual gratification does qualify as a benefit under § 13-2310.

¶ 14 In construing a statute, effectuating legislative intent is our principal aim. State v. Huskie, 202 Ariz. 283, ¶ 5, 44 P.3d 161, ¶ 5 (App.2002). In ascertaining legislative intent, we consider "`the statute's context, subject matter, historical background, effects, consequences, spirit, and purpose."' Id., quoting Hobson v. Mid-Century Ins. Co., 199 Ariz. 525, ¶ 8, 19 P.3d...