State v. Morgan

• Decision Date: 31 January 2020
• Docket Number: No. 2 CA-CR 2018-0127,2 CA-CR 2018-0127
• Parties: The STATE of Arizona, Appellee, v. Steven Randall MORGAN, Appellant.
• Court: Arizona Court of Appeals

248 Ariz. 322

460 P.3d 314

The STATE of Arizona, Appellee,

v.Steven Randall MORGAN, Appellant.

No. 2 CA-CR 2018-0127

Court of Appeals of Arizona, Division 2.

Filed January 31, 2020

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, By Kathryn A. Damstra, Assistant Attorney General, Tucson, Counsel for Appellee

Joel Feinman, Pima County Public Defender, By Abigail Jensen, Assistant Public Defender, Tucson, Counsel for Appellant

Presiding Judge Eppich authored the opinion of the Court, in which Judge Espinosa and Judge Eckerstrom concurred.

EPPICH, Presiding Judge:

¶1 Steven Morgan appeals his convictions and sentences for two counts of sexual conduct with a minor, child molestation, two counts of furnishing obscene or harmful items to a minor, public sexual indecency to a minor, and luring a minor for sexual exploitation. He contends (1) the prosecutor improperly vouched by telling the jury that he had committed illegal acts other than those charged; (2) insufficient evidence supported one of the counts of sexual conduct with a minor and one of the counts of furnishing obscene or harmful items to a minor; and (3) the court erred by indefinitely retaining jurisdiction over restitution. For the reasons that follow, we modify Morgan’s conviction for sexual conduct with a minor in count three to the lesser-included offense of child molestation and remand that count for resentencing, vacate his conviction and sentence for furnishing obscene or harmful items to a minor in count six, and affirm his other convictions and sentences.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to upholding Morgan’s convictions and sentences. State v. Dansdill , 246 Ariz. 593, ¶ 2, 443 P.3d 990 (App. 2019). In 2016, Morgan, a divorced father, began to sexually abuse his ten-year-old daughter L.M. on weekends that she was in his care. At first, Morgan groomed L.M. for sexual abuse by having her dress characters "more sexy" in an online fashion game she liked to play; this soon escalated to having her view online pornography. While watching pornography with L.M., Morgan would expose his penis to her, masturbate, and ejaculate. On some occasions while masturbating, Morgan would make L.M. manipulate his testicles. On other occasions, Morgan put his hand on L.M.’s vagina or made her masturbate in his presence by inserting vibrators he had provided to her. L.M. eventually told a friend about the sexual abuse; the friend told her mother, and the friend’s mother told L.M.’s mother, who contacted police.

¶3 A grand jury indicted Morgan on nine felony counts, alleging Morgan had committed various sexual offenses against L.M. After a five-day trial, a jury found Morgan guilty of two counts of sexual conduct with a minor under twelve, child molestation, two counts of furnishing obscene or harmful items to a minor, public sexual indecency to a minor under fifteen, and luring a minor for sexual exploitation. The trial court imposed a life sentence for one of the sexual conduct counts, plus consecutive and concurrent prison terms totaling 49.5 years for the remaining counts, to be served consecutively to the life sentence. We have jurisdiction over Morgan’s appeal under A.R.S. §§ 13-4031 and 13-4033(A)(1).

Vouching

¶4 In closing, the prosecutor argued that the charged offenses were not "everything [Morgan] did" to the victim. Morgan contends that the prosecutor’s comment constituted improper vouching to the jury that he had committed other illegal acts in addition to the ones charged. He concedes he did not object at trial but contends that the improper argument constitutes fundamental, prejudicial error and his convictions therefore must be reversed.

¶5 As the state points out, however, the prosecutor’s remarks referred to properly admitted evidence of "other crimes, wrongs, or acts" that were "relevant to show that [Morgan] had a character trait giving rise to an aberrant sexual propensity to commit the offense charged." Ariz. R. Evid. 404(c). The prosecutor’s reference to this evidence was not improper vouching. To the contrary, improper vouching occurs when the prosecutor alludes to information not presented to the jury or matters they may not properly consider. See State v. Dumaine , 162 Ariz. 392, 401-02, 783 P.2d 1184, 1193–94 (1989), disapproved on other grounds by State v. King , 225 Ariz. 87, ¶¶ 9-12, 235 P.3d 240 (2010). No such error occurred here.

Sufficiency of Evidence (Count Three)

¶6 Morgan argues that the evidence was insufficient to support his conviction for sexual conduct with a minor in count three, in which the state alleged he caused L.M. to manipulate his testicles while he masturbated. Although he concedes there was sufficient evidence that the conduct occurred, he contends it only established he committed the lesser-included offense of child molestation. He requests that we modify the conviction accordingly and remand for resentencing on that count.

¶7 We review de novo whether sufficient evidence supports a conviction. State v. Denson , 241 Ariz. 6, ¶ 17, 382 P.3d 1221 (App. 2016). We will reverse a conviction only if no substantial evidence supports it. Id. "Substantial evidence is ‘such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant’s guilt beyond a reasonable doubt.’ " Id. (quoting State v. Mathers , 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) ).

¶8 The state correctly concedes that the evidence supports only the lesser-included offense of child molestation. Sexual conduct with a minor under A.R.S. § 13-1405(A) requires "oral sexual contact"—which is clearly not the conduct here—or "sexual intercourse," which is defined as "penetration into the penis, vulva or anus by any part of the body or by any object or masturbatory contact with the penis or vulva." A.R.S. § 13-1401(A)(4). For this count, no penetration was alleged, and although the conduct was clearly masturbatory, the contact between the victim’s hand and the defendant’s scrotum did not involve his penis or her vulva.

¶9 As both parties acknowledge, the evidence does support a conviction for child molestation, which requires only "sexual contact." See A.R.S. § 13-1410 ("A person commits molestation of a child by intentionally or knowingly ... causing a person to engage in sexual contact."); § 13-1401(A)(3)(a) ("Sexual contact" is "any direct or indirect touching, fondling or manipulating of any part of the genitals ... or causing a person to engage in such contact."). Accordingly, we modify Morgan’s conviction in count three to child molestation and remand for resentencing on that count. See Ariz. R. Crim. P. 31.19(d) (appellate court may modify conviction to lesser-included offense and remand for resentencing if evidence does not support conviction but supports the lesser-included offense).

Sufficiency of Evidence (Count Six)

¶10 Morgan contends the evidence was insufficient to support his conviction for furnishing obscene or harmful materials to a minor in count six, in which the state alleged that he provided L.M. a gray vibrator. Again, Morgan concedes that the evidence shows the conduct occurred, but argues that the vibrator did not qualify as a harmful item under the relevant statutes.

¶11 A person furnishes obscene or harmful materials to a minor if he provides a minor with an "item" that is "harmful to minors." A.R.S. § 13-3506. An "item" includes "any material ... which depicts or describes sexual activity," including an "object" or "novelty device." A.R.S. § 13-3501(2). "Sexual activity" means "[p]atently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated," or "[p]atently offensive representations or descriptions of masturbation, excretory functions, sadomasochistic abuse and lewd exhibition of the genitals." § 13-3501(6). Taken together, these provisions require that the furnished material "depict[ ] or describe[ ]" a "patently offensive" "description or representation" of "ultimate sexual acts," "masturbation, excretory functions, sadomasochistic abuse, [or] lewd exhibition of the genitals."

¶12 Even though the device provided—a featureless metallic cylinder with a rounded point at one end—could be said to represent an erect human penis, we fail to see how a person could reasonably conclude it depicts one in a patently offensive way. To the extent the device can be said to depict an erect penis, its plain metallic finish and lack of distinctive features appear to be designed to make any such depiction as generalized as possible. Although sight of the vibrator could be offensive in some contexts, the offense would not arise from a patently offensive depiction or description linked to the device, but rather from the manner or context in which the device is used. The vibrator is not, therefore, an "item" as defined under § 13-3506, and furnishing it to a minor does not violate that statute.

¶13 The state focuses on other elements of the offense, arguing it is an "object" or "novelty device" and because it represents an erect penis it is "harmful to minors."¹ But for a valid conviction, the state must prove every element of the charged crime beyond a reasonable doubt. See State v. Johnson , 247 Ariz. 166, ¶ 149, 447 P.3d 783 (2019) (citing In re Winship , 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ). The state does not explain how the device here depicts or describes sexual activity in a patently offensive way, as required by § 13-3506, § 13-3501(2), and § 13-3501(6). Nor does it cite—and we have not found—any case upholding a conviction under § 13-3506 for furnishing a minor with a similar device. And although the state argues that Morgan "showed [L.M.] videos of women using vibrators" and made her "use the vibrator as if it were an erect penis," the fact that Morgan provided L.M. the vibrator within the context of other criminal conduct does not substitute for the necessity...