State v. Ortega

Decision Date14 October 2008
Docket NumberNo. 2 CA-CR 2007-0403.,2 CA-CR 2007-0403.
Citation206 P.3d 769,220 Ariz. 320
PartiesThe STATE of Arizona, Appellee, v. Luis Enrique ORTEGA, Appellant.
CourtArizona Court of Appeals

Terry Goddard, Arizona Attorney General By Kent E. Cattani and Amy M. Thorson, Tucson, Attorneys for Appellee.

Barton & Storts, P.C. By Brick P. Storts, III, Tucson, Attorneys for Appellant.

OPINION

VÁSQUEZ, Judge.

¶ 1 Following a jury trial, appellant Luis Ortega was convicted of two counts each of sexual abuse of a minor under fifteen years of age, molestation of a child, and sexual conduct with a minor under fifteen, all dangerous crimes against children under A.R. S. § 13-604.01, and two counts of threatening or intimidating. The trial court sentenced him to a total of fifty-seven years in prison. On appeal, Ortega argues the charges in counts four and five, molestation of a child and sexual conduct with a minor under fifteen, arose from a single act, and his convictions on both charges violate the double jeopardy protections of the United States and Arizona Constitutions. He further contends the prosecutor "exerted improper influence" over a victim's testimony, rendering it unreliable. For the reasons that follow, we vacate Ortega's conviction and sentence on count four, molestation of a child, but affirm the remaining convictions and the sentences imposed.

Factual and Procedural Background

¶ 2 We view the facts in the light most favorable to sustaining the jury's verdicts. State v. Miles, 211 Ariz. 475, ¶ 2, 123 P.3d 669, 670 (App.2005). On August 20, 2006, thirteen-year-old C.Q. was visiting her mother in Tucson. That morning she was sleeping on a couch, when she was awakened by Ortega touching her arms, buttocks, and legs and trying to turn her over. She asked Ortega what he was doing, and although he stopped touching her, he did not answer. A few days later, on August 25, while C.Q. was sleeping, Ortega turned her "face up" and began touching her breasts and vagina over her clothes. Afterwards, Ortega told her not to tell anyone what had happened. C.Q. returned home to Mexico the following day.

¶ 3 C.Q. next visited her mother in December 2006. On the 22nd or 23rd, Ortega took C.Q. to an abandoned trailer where he forcibly removed her clothes, touched her breasts, back, and legs, and had sexual intercourse with her. She did not tell her mother what had happened because Ortega had told both her and her brother F.Q. that he would either kill their mother or hurt them if they said anything.

¶ 4 On subsequent visits in February and March or April of 2007, Ortega engaged in similar acts with C.Q. and each time he threatened to harm her mother if C.Q. told her what he had done. On April 9, C.Q.'s mother was lying on the couch when she saw Ortega touch C.Q.'s buttocks over her pajamas. Shortly thereafter, she heard him walk into C.Q.'s bedroom. She screamed at him, and the two argued about what she had seen. When the mother called the police, Ortega put his clothes in his car and left the house.

¶ 5 A grand jury indicted Ortega on the following charges: sexual abuse of a minor, committed on or about August 20, 2006, through August 25, 2006 (count one); molestation of a child, on or about August 20, 2006 (count two); sexual abuse of a minor under fifteen, on or about December 21, 2006, through December 28, 2006 (count three); molestation of a child, on or about December 21, 2006, through December 28, 2006 (count four); sexual conduct with a minor under fifteen, on or about December 21, 2006, through December 28, 2006 (count five); sexual conduct with a minor under fifteen, on or about February 10, 2007, through February 12, 2007 (count six); sexual conduct with a minor under fifteen, on or about March 20, 2007, through March 22, 2007 (count seven); threatening or intimidating C.Q. (count eight); and threatening or intimidating F.Q. (count nine). Counts one through seven were alleged to be dangerous crimes against children.

¶ 6 During trial the court granted Ortega's motion for judgment of acquittal pursuant to Rule 20, Ariz. R.Crim. P., only on count seven, and the jury found him guilty of the remaining charges. The court sentenced him to concurrent, enhanced, presumptive prison terms on counts one through four, the longest of which was seventeen years; consecutive, enhanced, presumptive, twenty-year terms on counts five and six; and 180 days in jail for counts eight and nine, with 180 days of presentence incarceration credit. This appeal followed.

Standard of Review

¶ 7 Because Ortega failed to raise at trial either of the issues he raises on appeal, we review only for fundamental error. State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental error is "`error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.'" Id., quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). In order to obtain relief, Ortega must demonstrate both that fundamental error occurred and that it caused him prejudice. Id. ¶ 20. A double jeopardy violation constitutes fundamental, prejudicial error. See State v. McGill, 213 Ariz. 147, ¶ 21, 140 P.3d 930, 936 (2006).

Discussion
Double Jeopardy

¶ 8 Ortega first argues his convictions and sentences for both molestation of a child and sexual conduct with a minor under the age of fifteen violate his right to be free from double jeopardy. He contends molestation is a lesser included offense of sexual conduct with a minor under fifteen and "the same exact act" was used to prove his guilt on both charges.1 In the alternative, he argues that because both charges arose out of the same conduct, the sentences must be served concurrently pursuant to A.R. S. § 13-116. These are issues of law we review de novo. See State v. Brown, 217 Ariz. 617, ¶ 7, 177 P.3d 878, 881 (App.2008).

¶ 9 The Double Jeopardy Clauses of the United States and Arizona Constitutions protect criminal defendants from multiple convictions and punishments for the same offense. See Brown, 217 Ariz. 617, ¶ 13, 177 P.3d at 882; Lemke v. Rayes, 213 Ariz. 232, ¶ 10, 141 P.3d 407, 411 (App.2006); see also U.S. Const. amend. V, Ariz. Const. art. II, § 10. Multiplicitous charges alone do not violate double jeopardy; only resulting multiple convictions or punishments are prohibited. Merlina v. Jejna, 208 Ariz. 1, ¶ 14, 90 P.3d 202, 205 (App.2004). "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); see also State v. Eagle, 196 Ariz. 188, ¶ 6, 994 P.2d 395, 397 (2000). Thus a defendant may not be convicted for both an offense and its lesser included offense, because they are considered the "same offense" for double jeopardy purposes. Lemke, 213 Ariz. 232, ¶¶ 16-18, 141 P.3d at 413; see also Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (concluding conviction for both greater and lesser included offense violates double jeopardy under Blockburger test). In determining whether offenses are the "same" for purposes of double jeopardy analysis, we look to the elements of the offenses and not to the particular facts that will be used to prove them. See State v. Price, 218 Ariz. 311, ¶ 5, 183 P.3d 1279, 1281 (App.2008); Lemke, 213 Ariz. 232, ¶ 16, 141 P.3d at 413.

The Test for Determining Same Offenses

¶ 10 Both parties rely on In re Jerry C., 214 Ariz. 270, 151 P.3d 553 (App.2007), to support their respective positions on whether molestation of a child is a lesser included offense of sexual conduct with a minor. In Jerry C., the juvenile's charges included two counts of sexual conduct with a minor involving victims who were both under the age of fifteen. Id. ¶¶ 2, 12. During the adjudication hearing, the juvenile court ruled that the evidence on these counts did not "fit" the charge of sexual conduct with a minor, but it was sufficient for molestation, which the court found to be a lesser included offense. Id. ¶ 3. The juvenile appealed, arguing molestation is not a lesser included offense of sexual conduct with a minor, and because the state had not given proper notice of the molestation charges, his delinquency adjudications for those charges should be reversed. Id. ¶ 5. Division One of this court disagreed, concluding that, as alleged in the charging document, it was not possible for the juvenile to commit sexual conduct with a minor without also committing molestation of a child and, therefore, the juvenile court properly had treated molestation as a lesser included offense. Id. ¶ 13.

¶ 11 Division One applied what it described as two separate tests for determining whether an offense is a lesser included offense of another: the "same elements" test promulgated in Blockburger and the "charging documents" test. Id. ¶ 7. Applying the same elements test, the court considered the statutory elements for the two offenses in determining whether one could commit sexual conduct with a minor without also committing molestation of a child. Id. ¶ 9. It concluded that molestation could not be a lesser included offense of sexual conduct under the same elements test because molestation involves only victims under the age of fifteen, whereas sexual conduct can be committed against a victim under the age of eighteen. Id. ¶ 10; see also A.R.S. §§ 13-1405 (sexual conduct), 13-1410 (molestation).

¶ 12 The court next applied the charging document test under which it stated an offense is lesser included if "`the charging document describes the lesser offense even though [it] would not always form a constituent part of the greater...

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