State v. Taylor
| Decision Date | 11 April 1989 |
| Docket Number | No. CR-87-0306-AP,CR-87-0306-AP |
| Citation | 773 P.2d 974,160 Ariz. 415 |
| Parties | STATE of Arizona, Appellee, v. Lawrence Leon TAYLOR, aka Thomas Michael Pierce, Appellant. |
| Court | Arizona Supreme Court |
Lawrence Leon Taylor appeals from convictions on 85 counts of crimes against children resulting in an aggregate prison term of 2,975 years. This court has jurisdiction pursuant to Ariz. Const., art. 6, § 5(3) and A.R.S. §§ 13-4031 and 13-4033. For the reasons set forth below, we affirm in part and reverse and remand in part.
FACTS
In October 1985, Diana met Taylor when Taylor came to her Tucson residence and told her that he and his wife belonged to a church group which worked with young children. He also displayed a badge and indicated that he was active with a law enforcement group. Taylor expressed an interest in working with Diana's three children. Diana agreed to permit Taylor to take her three children, Herbert (nicknamed Lee), age 8, Brandy, age 6, and Nathan, age 5, to various locations. Between June and October 1986, Diana and her children lived rent-free in a house Between October 1986 and March 1987, Lisa lived in Tucson with three children, Danee, age 4, Fallon, age 3, and Christopher, 18 months old. Taylor was her landlord. Taylor told Lisa that he was with an organization affiliated with the sheriff's department involved in taking low-income children to the park, the zoo, and other locations. He showed a badge to Lisa as proof of his work. On two occasions, Taylor took Danee and Fallon on outings.
[160 Ariz. 417] owned by Taylor. Taylor continued to have regular contact with Diana's children during this period of time. In October 1986, Diana and her children moved to Oregon.
On February 5, 1987, Taylor and his wife vacated a trailer in which they lived in Tucson. On February 8, 1987, Daniel and Sheri Westermeyer helped Taylor's landlady clean out the Taylors' trailer. The Westermeyers discovered numerous Polaroid photographs, including an album containing 77 photos. Of the 77 photos, 50 depicted children, including the children of Diana and Lisa, engaged in sexual activity individually, with each other, or with Taylor. Some of the photographs were of unidentified children. The photographs were turned over to the police.
Lee testified that Taylor took Polaroid photographs of Lee, his brother, and his sister engaged in sexual activities. Taylor also had Lee perform sexual acts on Taylor, including fellatio. Lee was unable to identify Taylor in the courtroom.
Taylor gave Lisa Polaroid photographs of Danee and Fallon from his first outing with the two children. In these photographs, the girls were fully clothed. Danee was very upset when she returned from the second outing with Taylor. Danee then told Lisa that Taylor had touched her "po" with his "dick." Danee was taught to use the word "po" for vagina, but had never used the word "dick" to describe penis. The seized album contained Polaroid photographs of the two girls, but in these pictures, the girls were engaged in sexual conduct.
PROCEDURAL BACKGROUND
Taylor was charged in two indictments with a total of 87 counts of sexual exploitation of a minor, sexual conduct with a minor under 15, and attempted sexual conduct with a minor. The indictments were consolidated and two counts were ultimately dismissed. 1
Taylor was charged with a separate count of sexual exploitation by photographing a minor as to each photograph he took of Lee, Brandy, Nathan, Danee, and Fallon between May 1986 and February 1987. Taylor was also charged with a separate count of sexual exploitation of a minor as to the 50 pictures he possessed in February of 1987 up to the time he vacated his mobile home. Those photographs showing one or more children engaged in sexual conduct with each other or with Taylor were also the basis of separate counts of sexual conduct with a minor or attempted sexual conduct with a minor. 2
Initially, the prosecutor alleged Hannah priors 3 and that each count was a dangerous crime against children in violation of A.R.S. § 13-604.01. Thereafter, the prosecutor alleged that Taylor had previously been convicted in 1984 in Texas of indecency with a child and in 1978 and 1982 in Illinois of indecent liberties with a child.
Following a five-day trial, a jury found Taylor guilty of 74 counts of sexual exploitation of a minor, eight counts of sexual conduct with a minor under 15, two counts of attempted sexual conduct with a minor under 15, and one count of molestation of a child. The jury found that Taylor had three prior convictions for sexual offenses involving children. Taylor received 85 consecutive sentences of life imprisonment without possibility of parole for 35 years.
ISSUES ON APPEAL
On appeal, Taylor argues that (1) his request for an additional mental competency examination was erroneously denied; (2) two counts of the indictment, to wit, counts 47 and 48, were impermissibly altered; (3) the 50 counts of sexual exploitation of a minor arising from possession of photographs should constitute a single count; (4) sentences on several counts should run concurrently because they occurred on only two occasions and constituted spree offenses; (5) three offenses should run concurrently because they occurred on the same occasion; (6) counts 13 and 14 are identical and therefore multiplicitous; (7) three counts should be reversed because the trial court failed to instruct on criminal liability based upon conduct of another; (8) the mandatory consecutive sentences imposed constitute cruel and unusual punishment; and (9) counts 56 and 57 were incorrectly designated class three felonies.
Denial of Additional Rule 11 Examination
The standard of review for denial of a competency hearing is abuse of discretion. State v. Salazar, 128 Ariz. 461, 462, 626 P.2d 1093, 1094 (1981); State v. Bishop, 137 Ariz. 5, 8, 667 P.2d 1331, 1334 (App.1983).
On July 27, 1987, the trial judge directed that a preliminary evaluation of Taylor be conducted by the Pima County Court Clinic. The expert who performed that examination orally informed the court that Taylor was competent to stand trial and was sane at the time that the alleged offenses occurred.
On Taylor's motion, the trial court later directed that a complete Rule 11 examination be conducted. Rule 11, Ariz.R.Crim.P., 17 A.R.S. The psychologist who conducted the preliminary examination and a psychiatrist appointed to conduct the Rule 11 examination both testified at a September 1987 hearing that Taylor was competent to stand trial. The second expert appointed in connection with the Rule 11 examination did not testify because Taylor refused to speak to him.
Six days later, the morning the trial was to commence, Taylor again requested a Rule 11 examination. This request was based upon Taylor's assertion that during the recent Rule 11 proceedings he had attempted to follow the advice of a Texas attorney who had warned Taylor against cooperating with mental health experts.
The trial court refused Taylor's request. The trial court indicated that Taylor appeared to be competent to stand trial, that Taylor was simply trying to disrupt the trial, and that he doubted Taylor's statements that he was following instructions given by an attorney from another state. At no time did Taylor's attorney indicate that Taylor was unable to understand the proceedings or to assist in his defense. See State v. Roper, 140 Ariz. 459, 463, 682 P.2d 464, 468 (App.1984). The trial court did not abuse its discretion in refusing to grant Taylor an additional competency examination.
Amendment of Indictment as to Counts 47 and 48
When counts 9 and 18 of the indictment were dismissed, original count 47 became count 45 and original count 48 became count 46. These counts involved photograph STC 31-A. 4 The original count 47 The first day of trial, the prosecutor moved to amend original count 47 so as to allege that Taylor committed the crime of sexual exploitation by photographing Lee between May and October 1986, as evidenced by photograph STC 31-A. Defense counsel did not object to this amendment and we find no error. However, original count 48 was never amended. The jury's verdict as to count 48 purported to find Taylor guilty of possessing photograph STC 31-A in February 1987 even though Taylor was charged in count 48 with having photographed Lee in February 1987. The prosecutor's apparent mistaken belief that this count had been amended so as to allege possession of photograph STC 3 -A in February 1987, although understandable, cannot support Taylor's conviction on this count. Appellant cannot be convicted of a crime not presented to the grand jury and not the basis for the grand jury's indictment. State v. Cummings, 148 Ariz. 588, 590, 716 P.2d 45, 47 (App.1985).
[160 Ariz. 419] alleged that Taylor committed the offense of sexual exploitation by possessing a photograph of Lee between May and October 1986. The original count 48 alleged that Taylor committed the offense of sexual exploitation of a minor by photographing Lee in February 1987. Based upon the overall scheme of the indictment, the evidence presented at trial, as well as the prosecutor's later attempt to amend the indictment, it is clear that the state intended to charge Taylor with photographing Lee sometime between May and October 1986 and possessing a photograph of Lee in February 1987.
We reverse Taylor's conviction as to count 48.
Consecutive Sentences for Possession of Each of the 50 Photographs
Taylor was charged with 50 counts of sexual exploitation of children as a result of possession of 50 photographs of children engaged in sexual conduct. Each offense allegedly occurred in February 1987 when...
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