State v. Rushton, s. 1

• Court: Court of Appeals of Arizona
• Citation: 172 Ariz. 454,837 P.2d 1189
• Docket Number: Nos. 1,CA-CR,s. 1
• Parties: STATE of Arizona, Appellee, v. John Thomas RUSHTON, Appellant. 90-484, 1 90-584.
• Decision Date: 21 April 1992

Page 1189

837 P.2d 1189 172 Ariz. 454 STATE of Arizona, Appellee,
v.
John Thomas RUSHTON, Appellant. Nos. 1 CA-CR 90-484, 1 CA-CR 90-584. Court of Appeals of Arizona,
Division 1, Department A. April 21, 1992.
Redesignated as Opinion and Publication Ordered June 9, 1992.
Review Denied Oct. 20, 1992.

Page 1190

[172 Ariz. 455] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Criminal Div., Joseph T. Maziarz, Asst. Atty. Gen., Phoenix, for appellee.

DeConcini, McDonald, Brammer, Yetwin & Lacy, P.C. by Wayne E. Yehling, Tucson, for appellant.

OPINION

GRANT, Presiding Judge.

I. FACTS AND PROCEDURAL HISTORY

Appellant John Thomas Rushton ("defendant") was convicted following a jury trial of one count of indecent exposure. The jury failed to reach a verdict on three counts of child molestation alleged in the same indictment. The trial court suspended sentence on the indecent exposure conviction and placed defendant on probation for three years with a special condition that he serve one year in the county jail. Subsequently, defendant entered an Alford ¹ plea of guilty to one count of attempted child molestation in exchange for dismissal of the remaining counts of the indictment. The trial court sentenced defendant to nine years' imprisonment. Pursuant to the plea agreement, the trial court also terminated defendant's probation on the indecent exposure conviction and sentenced him to one year imprisonment to be served concurrently with the nine-year sentence with credit for time served.

The two matters were consolidated on appeal. Defendant challenges both the indecent exposure conviction following the jury verdict and the validity of the plea agreement resulting in the attempted child molestation conviction. We affirm.

II. DISCUSSION

A. Duplicitous Indictment

Defendant complains for the first time on appeal that count IV of the indictment, the indecent exposure count, is duplicitous. The charge reads:

On or about 9th day of April, 1989, in the vicinity of 2844 S. Cisco Drive, Lake Havasu City, Mohave County, Arizona, said Defendant JOHN THOMAS RUSHTON, exposed his genitals to Breanna S. age 6 years, Nicole S. age 4 years, Shanon B. age ten years, while being reckless about whether the other person as a reasonable person, would be alarmed or offended by the act, all in violation of A.R.S. Sec. 13-1402, 13-701 and 13-801, a Class 6 Felony.

Defendant contends that, because separate counts could have been alleged as to each victim and several instances of exposure were testified to at trial, the indictment is duplicitous and the conviction should be reversed. Without determining whether the indictment is in fact duplicitous or simply alleges a continuing scheme or course of conduct properly alleged in a single count, ² we agree with the state that defendant has waived any error.

Failure to object to duplicity either prior to or during trial constitutes a waiver of that objection. State v. Kelly, 149 Ariz. 115, 716 P.2d 1052 (App.1986). The reasoning

Page 1191

[172 Ariz. 456] behind this waiver rule is clearly demonstrated by the instant case. If, upon a timely objection by the defense, the indictment had been dismissed without prejudice, the state could have then charged defendant with at least three counts of indecent exposure, one as to each victim, subjecting defendant to the possibility of multiple convictions and multiple penalties. While defendant risked, in the alternative, the possibility of a non-unanimous guilty verdict on the single charge as alleged, his failure to object to the indictment indicates a risk he was willing to take. Defendant simply gambled and lost and cannot now be heard to complain.

Defendant argues, however, that we should not be persuaded by the state's waiver theory because the trial judge was not "sand-bagged" by defendant's failure to object to the form of the indictment. Defendant contends that the trial judge became "an active participant" in the problem when he advised the jury, with respect to the forms of verdict, that it need not unanimously find that defendant exposed himself to any one victim as long as all of the jurors found that defendant exposed himself to at least one of the alleged victims at some time. This argument does nothing to advance defendant's position. To the contrary, rather than excuse defendant's failure to object to the indictment, the trial court's instruction to the jury, given without objection by the defense, further demonstrates defendant's complicity in the charge as alleged. Had defendant truly been concerned with the danger of a non-unanimous jury verdict so as to risk the possibility of multiple convictions and penalties, he had ample opportunity to raise the issue in the trial court. He failed to do so and is not entitled to relief from this court. See State v. Schroeder, 167 Ariz. 47, 804 P.2d 776 (App.1990) (defendant was not prejudiced by arguably duplicitous indictment where each separate act of sexual abuse could have been the subject of a separate count subjecting defendant to the possibility of several felony...