State v. Ramsey

Decision Date30 November 2005
Docket NumberNo. 2 CA-CR 2004-0105.,2 CA-CR 2004-0105.
Citation211 Ariz. 529,124 P.3d 756
PartiesThe STATE of Arizona, Appellee, v. Jay David RAMSEY, Sr., Appellant.
CourtArizona Supreme Court

Terry Goddard, Arizona Attorney General, By Randall M. Howe and Cassie Bray Woo, Phoenix, for Appellee.

Jay Ramsey, Sr., Florence, In Propria Persona.

OPINION

PELANDER, Chief Judge.

¶ 1 After a jury trial, appellant Jay David Ramsey, Sr. was convicted of continuous sexual abuse of a child in violation of A.R.S. § 13-1417. He was sentenced to a presumptive, twenty-year prison term pursuant to A.R.S. § 13-604.01(C). Among the multiple overlapping issues Ramsey raises on appeal, he argues that the indictment against him was duplicitous and that § 13-1417 unconstitutionally violates the jury unanimity requirement of article II, § 23 of the Arizona Constitution. Finding no merit to those or the other issues he raises, we affirm.

BACKGROUND

¶ 2 We view the evidence and all reasonable inferences therefrom in the light most favorable to sustaining the conviction. See State v. Riley, 196 Ariz. 40, ¶ 10, 992 P.2d 1135, 1139 (App.1999). In October 2001, on his daughter A.'s twelfth birthday, Ramsey had her read aloud a portion of a story in a binder he had about a father kissing and touching his daughter. That same day, Ramsey took A. to an adult store called Fascinations and bought her a vibrator and a bottle of lubricant.

¶ 3 Several days later, Ramsey's wife, S., found the binder, which Ramsey usually took to work, on the roof of the family's home. She looked at the binder, saw that it contained graphic, sexual stories involving incest, and contacted the police. In addition to the binder, S. and police officers found other sexual stories in a kitchen drawer, among Ramsey's clothing, and in a duffel bag in the garage, where they also found a vibrator. A. eventually told S. and police detectives, and testified at trial, that Ramsey had repeatedly touched her breasts, "butt," and vagina on multiple occasions starting in early 1999.

DISCUSSION
I. Duplicitous indictment and A.R.S. § 13-1417

¶ 4 Ramsey first contends § 13-1417 is "unconstitutionally duplicitous and therefore the indictment against [him was] duplicitous." Enacted in 1993, the statute provides in part that "[a] person who over a period of three months or more in duration engages in three or more acts in violation of [A.R.S.] § 13-1405, 13-1406 or 13-1410 with a child under fourteen years of age is guilty of continuous sexual abuse of a child." § 13-1417(A). The indictment against Ramsey alleged in a single count that, "[o]n or about the dates of January 1999 through December 2000," he had "committed continuous sexual abuse of a child by engaging in three or more acts of sexual conduct with a minor under fifteen and/or molestation of a child ... in violation of A.R.S. § 13-1417."

¶ 5 Before trial, Ramsey moved to dismiss the indictment on the grounds "that the indictment was duplicitous in stating multiple offenses in one count and was outside the purview and constitutional jurisdiction of the jury." The trial court denied the motion. We review a trial court's ruling on a motion to dismiss criminal charges for abuse of discretion. State v. Sandoval, 175 Ariz. 343, 347, 857 P.2d 395, 399 (App.1993). But we review questions of statutory interpretation and constitutional law de novo. State v. Carrasco, 201 Ariz. 220, ¶ 10, 33 P.3d 791, 794 (App.2001); State v. Tamplin, 195 Ariz. 246, ¶ 6, 986 P.2d 914, 915 (App.1999).

¶ 6 First, we agree with the state that Ramsey has "fail[ed] to cite to any authority for the proposition that a statute can be found `unconstitutionally duplicitous.'" Because of that failure to comply with Rule 31.13(c)(1)(vi), Ariz. R.Crim. P., 17 A.R.S., we consider only whether the indictment against Ramsey was duplicitous. Separate offenses must be charged in separate counts. Spencer v. Coconino County Superior Court, 136 Ariz. 608, 610, 667 P.2d 1323, 1325 (1983); see also Ariz. R.Crim. P. 13.3(a), 16A A.R.S.; State v. Axley, 132 Ariz. 383, 392, 646 P.2d 268, 277 (1982); State v. Schroeder, 167 Ariz. 47, 51, 804 P.2d 776, 780 (App.1990). An indictment that charges separate or multiple crimes in the same count is duplicitous. Spencer, 136 Ariz. at 610, 667 P.2d at 1325. "Duplicitous indictments are prohibited because they fail to give adequate notice of the charge to be defended, because they present the hazard of a non-unanimous jury verdict and because they make a precise pleading of prior jeopardy impossible in the event of a later prosecution."1 Id. ¶ 7 Ramsey argues "[a]ll of the problems with a duplicitous indictment ... apply to this case."2 He first maintains he did not receive adequate notice of the alleged misconduct to enable him to defend against the charge. Ramsey's global defense, however, was that his wife had set him up out of revenge and that he had not, and could not have, committed any of the alleged sexual acts against A. Although, under some circumstances, an indictment's lack of specificity might hamper a defendant's ability to rebut or defend against the charges, Ramsey has not specifically articulated how his defense was impaired or prejudiced by the indictment against him. See State v. Whitney, 159 Ariz. 476, 480, 768 P.2d 638, 642 (1989) (defendant not denied "essential right to his defense" when defense was denial that offenses had occurred); People v. Gear, 19 Cal.App.4th 86, 23 Cal.Rptr.2d 261, 268 (1993) (finding no due process violation of defendant's "right to present a defense" when, "not untypically, [defendant] presented an all-or-nothing defense based on credibility—either he is telling the truth and he did not commit any act of molestation or [the victim] is telling the truth and he is guilty").3

¶ 8 Ramsey also contends the lengthy time period of the acts alleged in the indictment raises double jeopardy concerns. See U.S. Const. amend. V ("[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb...."); Ariz. Const. art. II, § 10 ("No person shall ... be twice put in jeopardy for the same offense."). According to Ramsey, nothing would prevent the state from again prosecuting him for events within the two-year period of the indictment by "arbitrarily and randomly picking three or more dates ... from the same 1999-2000 period, claiming [A.] remembers more specific details ... [and] repeat[ing] the process." Although the state argues § 13-1417(D) "dispenses with any problem with duplicity or double jeopardy," that subsection does not alleviate all double jeopardy concerns relating to potential future prosecutions. Rather, subsection (D) merely addresses what charges may be brought in a current proceeding involving a charge under § 13-1417, providing in pertinent part:

Any other felony sexual offense involving the victim shall not be charged in the same [i.e., current] proceeding with a charge under this section unless the other charged felony sexual offense occurred outside the time period charged under this section or the other felony sexual offense is charged in the alternative.

¶ 9 Nonetheless, the description of continuous sexual abuse in § 13-1417(A) is sufficiently clear to allow the "precise pleading of prior jeopardy" if the state were to attempt to reprosecute Ramsey for the same offense charged in the indictment in this case. Spencer, 136 Ariz. at 610, 667 P.2d at 1325. Although Ramsey posits hypothetical scenarios in which he might later be prosecuted under different statutes for some of the same conduct at issue in this case, the Double Jeopardy Clause does not necessarily protect him from that risk. See United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 2856, 125 L.Ed.2d 556, 568 (1993) (confirming for double jeopardy purposes a "same elements" test, as promulgated in Blockburger v. United States, 284 U.S. 299 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932), and overruling Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), that had promulgated a broader, "same conduct" test); State v. Sanders, 205 Ariz. 208, ¶ 65, 68 P.3d 434, 448 (App.2003) ("Th[e] test [under Dixon] inquires whether each of two offenses contains an element not contained in the other. If not, they are the same offense and double jeopardy bars successive prosecutions."); State v. Siddle, 202 Ariz. 512, ¶ 10, 47 P.3d 1150, 1154 (App.2002) ("Distinct statutory provisions constitute the same offense if they are comprised of the same elements."). In sum, we cannot find the indictment duplicitous based on double jeopardy concerns when Ramsey has not clearly articulated any specific scenario in which the indictment's single charge under § 13-1417 would "make a precise pleading of prior jeopardy impossible in the event of a later prosecution." Spencer, 136 Ariz. at 610, 667 P.2d at 1325.

¶ 10 Ramsey also argues Spencer "is a case exactly on point," "mirror[s] exactly the problems with [his] indictment," and required the state to "charg[e] the three or more predicate offenses [in § 13-1417] separately" and to "prove[] [each] as a mandatory element before [he] could be found guilty of a continuing course of conduct." But Spencer was not charged under § 13-1417. Rather, he was charged with one count each of incest and molestation in violation of A.R.S. §§ 13-1410 and 13-3608. Spencer, 136 Ariz. at 609, 667 P.2d at 1324. In that case, "the two charges brought by the grand jury [were] based upon allegations of numerous episodes of sexual misconduct." Id. at 610, 667 P.2d at 1325. And the court there stated that "each occurrence of such a prohibited act [was] a separate offense under [that] statute." Id.; cf. State v. Davis, 206 Ariz. 377, ¶¶ 59, 60, 79 P.3d 64, 77 (2003) (finding one charge of sexual misconduct with a minor duplicitous when defendant "was convicted of one count, based on proof of two acts," and when cour...

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