State v. Morgan

• Decision Date: 19 November 2002
• Docket Number: No. 2 CA-CR 2001-0300-PR., No. 2 CA-CR 2000-0216
• Citation: 204 Ariz. 166,61 P.3d 460
• Parties: The STATE of Arizona, Appellee/Respondent, v. Carl Washington MORGAN, Jr., Appellant/Petitioner.
• Court: Arizona Court of Appeals

61 P.3d 460

204 Ariz. 166

The STATE of Arizona, Appellee/Respondent, v. Carl Washington MORGAN, Jr., Appellant/Petitioner.

Nos. -0216, -0300-PR.

Court of Appeals of Arizona, Division 2, Department A.

November 19, 2002.

Review Denied March 18, 2003.

Janet Napolitano, Arizona Attorney General, By Randall M. Howe and John L. Saccoman, Phoenix, for Appellee.

Isabel G. Garcia, Pima County Legal Defender, By Alex D. Heveri, Tucson, for Appellant/Petitioner.

OPINION

HOWARD, J.

¶ 1 After a jury trial, appellant Carl Morgan was convicted of two counts of sexual conduct with a minor under fifteen years of age, one count each of child molestation, sexual assault of a minor under the age of fifteen years, and kidnapping. He was sentenced to various concurrent and consecutive prison terms totaling forty-nine years. On appeal, he contends the trial court erred by refusing to give lesser-included offense instructions on certain charges and by failing to grant his motion for judgment of acquittal on the sexual conduct and child molestation charges. Finding no error, we affirm.

¶ 2 In his consolidated petition for review from the trial court's denial of relief on his petition for post-conviction relief, Morgan contends his trial counsel was ineffective in failing to move to exclude certain evidence and in failing to cite the appropriate authority on the necessity of proof of the corpus delicti. We grant review, but, because we find the trial court did not abuse its discretion in dismissing the petition, we deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶ 3 We view the facts in the light most favorable to sustaining the convictions. State v. Powers, 200 Ariz. 123, ¶ 2, 23 P.3d 668, ¶ 2 (App.2001). One evening in 1998, Morgan and his half-brother, Carl Watkins, approached two girls, the victim Y., age twelve, and her acquaintance B., age fourteen, and asked the girls if they wanted to drink alcohol and go "cruising." The girls agreed and got into the back seat of the men's car. Watkins bought alcohol, and the two men and the girls drank it.

¶ 4 They then drove to a park, where Y. and B. used the restroom. Y. was so intoxicated that she could not walk without assistance. B. asked the men to take the girls home, but Watkins refused, saying it was "too early to leave." Morgan and Y. walked back to the car, and, when B. attempted to follow them, Watkins grabbed her arm and tried to stop her. B. eventually returned to the car where she saw Morgan in the back seat with Y., who was naked from the waist down. B. saw that Y. was straddling Morgan, whose pants were pulled down, and that Morgan's hands were around Y.'s midsection. B. rapped on the window and asked Y. to open the car door, which was locked, and Y. and Morgan then pulled up their pants.

¶ 5 The four then drove to a grocery store, where Watkins told B. to go buy a soda because her breath smelled of alcohol. Y. was nearly unconscious in the back seat. B. walked to a soda machine but, when she turned around, the car was gone. Later that night, the two men left Y. naked on a desert road, where she then lost consciousness.

¶ 6 The next day, Y. underwent a medical examination, which showed she had been vaginally and anally penetrated. Deoxyribonucleic acid (DNA) testing was conducted on semen found in Y.'s vagina and anus. After Y. identified Morgan in a photographic lineup, he agreed to speak with police. He confessed that he and Y. had engaged in oral sex with each other, that he had digitally penetrated her and fondled her breasts, and that he had ejaculated on her. The DNA on the vaginal swab did not match Morgan's, but the DNA on the anal swab did.

¶ 7 The state charged Morgan with: 1) two counts of sexual conduct with a minor under the age of fifteen for engaging in oral sexual contact with Y. and forcing her to have oral sexual contact with him; 2) one count of child molestation for touching Y.'s genitals with his hand; 3) one count of sexual assault of a minor under the age of fifteen for engaging in sexual intercourse with Y. without her consent; and 4) one count of kidnapping. At trial, Y.'s memory of what had occurred that night was not entirely clear. But she did remember Morgan's having been on top of her in the back seat, hurting her in a manner "similar to sex," repeatedly pushing her down when she tried to get up, and having his penis "in [her]." She also remembered Morgan's having kissed her, touched her breasts when all her clothes were off, and touched her "in [her] legs." The last thing she remembered was being shoved out of the car by Morgan, getting tangled in the seat belt, and being left naked on a desert road. The jury found Morgan guilty on all counts.

APPEAL

1. Lesser-included Offense Instruction

¶ 8 Morgan first argues the trial court erred by refusing to give lesser-included offense jury instructions he had requested for certain charges. We review a trial court's refusal to give a requested instruction for an abuse of discretion. State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995).

¶ 9 Although Morgan complains that the trial court refused to give a lesser-included instruction on sexual abuse, as the state points out in its answering brief, no sexual abuse charge was submitted to the jury. Morgan has not filed a reply brief to explain this discrepancy. Accordingly, we reject his argument that he was entitled to a lesser-included instruction on sexual abuse.

¶ 10 Morgan also contends that the trial court erroneously refused to instruct the jury on attempted sexual conduct as a lesser-included offense of the sexual conduct charges. The state counters that Morgan has waived appellate review of this issue because he argued below that the insufficiency of the evidence of sexual conduct justified the attempt instruction, rather than that the evidence affirmatively supported giving an attempt instruction. Although the state has identified a distinction, we believe Morgan's argument below sufficiently presented the issue to the trial court, and we thus review it. ¶ 11 Morgan contends that an attempt is a lesser-included offense of the completed offense, relying on State v. McCurdy, 15 Ariz.App. 227, 487 P.2d 764 (1971). He claims that Y. remembered only that he had kissed her, touched her in her legs, and fondled her breasts, but "could not remember if he was the one that raped her," reasoning that the jury could have found he had merely attempted to commit sexual conduct.

¶ 12 The state points out that, although an attempt can be a lesser-included offense, the evidence still must support conviction of the lesser-included offense in order to merit an instruction. See State v. Lara, 183 Ariz. 233, 235, 902 P.2d 1337, 1339 (1995)

; State v. Marshall, 197 Ariz. 496, ¶ 35, 4 P.3d 1039, ¶ 35 (App.2000). "A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact" with a minor. A.R.S. § 13-1405(A).

¶ 13 The sexual conduct with a minor charges against Morgan were based on alleged oral sexual contact. Although she testified that Morgan had had intercourse with her, Y. did not testify about any acts of oral sexual contact that constituted sexual conduct. But Morgan admitted to the police officers that he had engaged in oral sexual contact with Y. and that Y. had had oral sexual contact with him. This was evidence of completed offenses of sexual conduct with a minor, but not of lesser-included offenses of attempted sexual conduct. And, as the state points out, Y.'s testimony that Morgan had kissed and fondled her is evidence of other completed crimes, not of attempted sexual conduct with a minor. Neither the state nor Morgan argued differently below. By virtue of his confession, Morgan was either guilty of the greater offenses or not guilty at all. Under these circumstances, the trial court properly refused to instruct the jury on the lesser-included offenses of attempted sexual conduct. See State v. Dickens, 187 Ariz. 1, 23, 926 P.2d 468, 490 (1996)

(lesser-included offense instruction not required if defendant is either guilty of greater offense or not at all); Lara; Marshall.

2. Corpus Delicti

¶ 14 Morgan argues the trial court erred by allowing the state to introduce his confession into evidence without first proving by independent evidence the corpus delicti of the crimes of sexual conduct, stemming from the alleged oral sexual contact, and child molestation, stemming from the alleged touching of Y.'s genitals. Although he did not raise this issue in an earlier motion to suppress his statements to police, Morgan did raise it in his motion for judgment of acquittal, made pursuant to Rule 20, Ariz. R.Crim. P., 17 A.R.S., at the close of the state's case. We review a trial court's denial of a Rule 20 motion based on the corpus delicti doctrine for an abuse of discretion. State v. Jones, 198 Ariz. 18, ¶ 13, 6 P.3d 323, ¶ 13 (App.2000) ("[T]he sufficiency of the evidence of the corpus delicti are matters within the discretion of the trial court.").

¶ 15 A defendant may not be convicted of a crime based on an uncorroborated confession without independent proof of the corpus delicti, or the "body of the crime." State v. Gillies, 135 Ariz. 500, 506, 662 P.2d 1007, 1013 (1983); Jones, 198 Ariz. 18, ¶ 12, 6 P.3d 323, ¶ 12. The state "must establish the corpus delicti by showing proof of a crime and that someone is responsible for that crime." Jones, 198 Ariz. 18, ¶ 12, 6 P.3d 323, ¶ 12. Ultimately, "only a reasonable inference" that the corpus delicti exists is sufficient to permit the fact-finder to consider the defendant's confession. State v. Janise, 116 Ariz. 557, 559, 570 P.2d 499, 501 (1977).

¶ 16 The purpose of the corpus delicti rule is to prevent a defendant from being convicted based on a coerced or otherwise untrue confession. Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954); State v. Gerlaugh, 134 Ariz. 164, 654 P.2d 800 (1982); Jone...