State v. McCuin

• Decision Date: 08 January 1991
• Docket Number: No. 1,CA-CR,1
• Citation: State v. McCuin, 808 P.2d 332, 167 Ariz. 447 (Ariz. App. 1991)
• Parties: STATE of Arizona, Appellee, v. Lawrence R. McCUIN, Appellant. 89-431.
• Court: Arizona Court of Appeals

Page 332

808 P.2d 332

167 Ariz. 447

STATE of Arizona, Appellee, v.Lawrence R. McCUIN, Appellant.

No. 1 CA-CR 89-431.

Court of Appeals of Arizona Division 1, Department D.

Jan. 8, 1991.

Review Granted as to Issue No. 3 and

Review Denied as to Issue

Nos. 1, 2 and 4 April 23, 1991.

[167 Ariz. 448] Robert K. Corbin, Atty. Gen. by Jessica G. Funkhouser, Chief Counsel, Crim. Div., and Crane McClennen, Asst. Chief Counsel, Phoenix, for appellee.

C. Kenneth Ray, II, P.C. by C. Kenneth Ray, II, Phoenix, for appellant.

OPINION

McGREGOR, Judge.

DefendantLawrence R. McCuin appeals from the sentences imposed following pleas of guilty to two counts of sexual conduct with a minor, both class 2 felonies.We affirm the convictions and sentences.

I.

Beginning in 1979 and continuing until September 1988, defendant regularly engaged in sexual conduct with his minor daughter.On October 12, 1988, the grand jury indicted defendant on one count of sexual molestation of a child and three counts of sexual conduct with a minor.Count I, the sexual molestation charge, alleged that the offense occurred in 1979.Counts II and III, both sexual conduct charges, alleged that the offenses took place between June and September 1981.An additional sexual conduct charge, count IV, alleged that the offense took place on September 3, 1988.On November 7, 1988, the state amended the indictment to allege Hannah ¹ prior or repetitive convictions.

Defendant entered an Alford ² plea to counts II and III.On count III, the trial court sentenced defendant to an aggravated term of 14 years imprisonment.On count II, the court suspended imposition of sentence and imposed a concurrent probationary term of seven years.As a term of probation, the court required the defendant to register as a sex offender pursuant to A.R.S. § 13-3821.Defendant filed a timely notice of appeal.

II.

At the change of plea hearing, the prosecutor offered the following factual basis for defendant's guilty plea:

If this case were to proceed to trial the State would present testimony from [the victim] and she would testify as follows.With respect to both Counts II and III, they occurred on or between the dates of June 1st of 1981 and September 1st of 1981.She was at that time 10 years old and she resided at [a street address] located within Maricopa County, and on the same date the Defendant both placed his finger in her vagina and placed his penis in her vagina, and this is the first occurrence of that type that happened between she and the Defendant.

On appeal, defendant argues that the factual basis for the plea as provided by the state"unequivocally indicates that there was a single, isolated act of illegal sexual intercourse between the [defendant] and the Victim" which can "only be treated as a single conviction."We disagree.

The Arizona Supreme Court rejected a similar argument in State v. Hill, 104 Ariz. 238, 450 P.2d 696(1969).There, the defendant entered the victim's home and, over the course of one and one-half hours, compelled the victim to engage in acts of cunnilingus, fellatio and four separate acts of sexual intercourse.Defendant was charged with two counts of rape and two counts of lewd and lascivious acts.Defendant argued he could be charged with only one count of rape and one count of lewd and lascivious acts since the acts were all part of a single transaction.The court rejected this argument:

When several acts of intercourse and several lewd and lascivious acts are committed on the same victim we see no reason why as many counts for each offense cannot be brought, despite the fact the defendant never left his victim's bed during the course of the commission of the acts.

104 Ariz. at 240, 450 P.2d at 698.See alsoState v. Finley, 108 Ariz. 420, 501 P.2d 4(1972)(defendant was properly convicted of raping and molesting his daughter when acts of rape and child molestation were separate, with the elements of each being accomplished without reference to elements of the other);State v. Phillips, 102 Ariz. 377, 430 P.2d 139(1967)(offense of fellatio found distinctly separate from act of child molesting, so that defendant charged with lewd and lascivious acts and also with child molestation by placing his finger into private parts of an 8-year-old girl committing fellatio upon him was not being punished twice for same act);People v. Harrison, 48 Cal.3d 321, 256 Cal.Rptr. 401, 768 P.2d 1078(1989)(each digital penetration committed in course of defendant's assault upon victim constituted separate violation of statute proscribing such penetrations, for which defendant could be separately convicted).

If the state can prove the necessary criminal elements of each act, the time span within which the acts were committed is immaterial.State v. Hill, 11 Ariz.App. 230, 463 P.2d 125(1970).Here, the evidence offered by the state sufficiently established the separate acts of defendant's placing his finger in the victim's vagina and placing his penis in the victim's vagina.Each act constituted intercourse as defined by A.R.S. § 13-1401 and each was established without reference to the elements of the other.When several sexual acts result from the same sexual attack, the defendant may be charged with more than one crime.State v. Finley, 108 Ariz. 420, 501 P.2d 4(1972).

Defendant's reliance on A.R.S. § 13-604.H is misplaced.That statute treats convictions for two or more offenses committed on the same occasion as one conviction only for the purpose of alleging prior convictions.Id.In this case, the state dropped its allegation of Hannah priors and two counts of the indictment as part of its plea bargain with defendant.A.R.S. § 13-604.H is not applicable here.The trial court properly convicted and sentenced defendant on two counts of sexual conduct with a minor.

III.

The defendant also argues that the trial court erred in sentencing him to an aggravated term of imprisonment on one count of sexual conduct with a minor while simultaneously imposing a mitigated sentence of probation for the other conviction for the same offense.Defendant contends that the court, having found "substantial mitigating factors," should have imposed probation on both counts.Because the trial court has wide discretion in passing sentence, we will uphold the sentence if it falls within the statutory limits, unless the court clearly abused its discretion.E.g., State v. Sanders, 110 Ariz. 503, 520 P.2d 1127(1974).

The presumptive term for conviction of a class 2 felony is seven years imprisonment.A.R.S. § 13-701.Pursuant to A.R.S. § 13-702.B, the court may increase the sentence up to 100 percent if it finds sufficient aggravating circumstances.Here, the trial court considered three aggravating factors in sentencing the defendant on count III: (1) the particularly heinous nature of the crimes in that they were accomplished "in violation of the trust that a child would have for a parent," were two of a series of crimes committed over a period of years and involved abnormal sex acts, (2) the significant emotional trauma suffered by the victim and (3) the need to protect other potential victims.

The trial court properly considered each of those factors.A.R.S. § 13-702.D directs the court to consider, as aggravating circumstances, the especially heinous, cruel or depraved manner in which the act was committed, emotional harm caused to the victim, and other factors the court may deem appropriate to the ends of justice.Moreover, the court's use of prior incidents of incestuous relations in sentencing, even though they did not result in convictions, is proper.State v. Cawley, 133 Ariz. 27, 648 P.2d 142(App.1982).The need to protect potential victims also is an appropriate factor to consider in deciding the length of sentence to impose.State v. Williams, 134 Ariz. 411, 656 P.2d 1272(App.1982).

The sole mitigating factor considered by the trial court was the defendant's need for rehabilitative counselling, which would not be available to him while incarcerated.The trial court, however, may impose an aggravated term after balancing the aggravating and mitigating circumstances, notwithstanding the existence of mitigating circumstances.State v. Henderson, 133 Ariz. 259, 650 P.2d 1241(App.1982), overruled on other grounds, 140 Ariz. 544, 683 P.2d 743(1984).In sentencing defendant on count III, the trial court did not abuse its discretion by finding that aggravating factors outweighed this mitigating circumstance.

The trial court also set forth adequate reasons to justify imposing probation on count II.SeeA.R.S. § 13-901.H;State v. Mathews, 130 Ariz. 46, 633 P.2d 1039(App.1981)(the trial court must set forth on the record the factual and legal reasons supporting its imposition of probation because it is a deviation from the presumptive sentence).³Before imposing sentence, the court observed that the law requires that defendant be punished for his crimes but also seeks to assure that defendant will not again commit crimes of the same nature.The court believed these goals would best be accomplished by incarcerating defendant for a substantial time as punishment and placing him on probation with counselling to prevent a recurrence.We find no abuse of discretion in the sentences imposed, which clearly fall within the statutory limits.

IV.

As a condition of defendant's term of probation on count II, the trial court required him to register as a sex offender pursuant to A.R.S. § 13-3821.At sentencing, the trial judge noted that although the effective date of section 13-3821 post-dated the offenses charged, she did not believe the registration requirement offended the constitutional prohibitions against ex post facto laws.We agree.In reaching that conclusion, we depart from the recent holding of another panel of this court in State v. Noble, 167 Ariz. 440, 808 P.2d 325(App.1990), for the reasons explained below.

In 1978, Arizona repealed its ...