State v. Cotham ( 2015 )


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  •                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
    AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    STATE OF ARIZONA, Appellee,
    v.
    MICHAEL MARION COTHAM, Appellant.
    No. 1 CA-CR 14-0001
    FILED 3-17-2015
    Appeal from the Superior Court in Maricopa County
    No. CR2012-133092-002
    The Honorable David B. Gass, Judge
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Joseph T. Maziarz
    Counsel for Appellee
    The Hopkins Law Office, Tucson
    By Cedric Martin Hopkins
    Counsel for Appellant
    Michael Marion Cotham, Florence
    Appellant
    STATE v. COTHAM
    Decision of the Court
    MEMORANDUM DECISION
    Judge Samuel A. Thumma delivered the decision of the Court, in which
    Presiding Judge Margaret H. Downie and Judge Andrew W. Gould joined.
    T H U M M A, Judge:
    ¶1            This is an appeal under Anders v. California, 
    386 U.S. 738
     (1967)
    and State v. Leon, 
    104 Ariz. 297
    , 
    451 P.2d 878
     (1969). Counsel for defendant
    Michael Marion Cotham has advised the court that, after searching the
    entire record, he has found no arguable question of law and asks this court
    to conduct an Anders review of the record. Cotham was given the
    opportunity to file a supplemental brief pro se, and has done so. This court
    has reviewed the record and has found no reversible error. Accordingly,
    Cotham’s convictions and resulting sentences are affirmed.
    FACTS1 AND PROCEDURAL HISTORY
    ¶2            Cotham was charged with four counts of child prostitution,
    each a Class 2 felony. Before trial, the superior court granted several
    requests by Cotham to change counsel. Cotham then invoked his right to
    self-representation through a voluntary, signed waiver of counsel that was
    accepted by the court after an appropriate colloquy. After various motions
    and continuances, Cotham made a filing seeking to invoke his speedy trial
    rights and asking that trial be held within 90 days. This motion was granted
    and trial was scheduled for October 2013.
    ¶3            On the morning of the first day of trial, the superior court
    scheduled time for Cotham to meet with his investigator to go over the
    evidence before jury selection. However, Cotham (who was in custody)
    failed to appear in court that morning. After learning that Cotham refused
    transportation despite a warning that his failure to appear could result in
    revocation of his right to self-representation, the superior court revoked
    Cotham’s right to self-representation. Cotham’s advisory counsel was
    1This court views the facts “in the light most favorable to sustaining the
    verdict, and resolve[s] all reasonable inferences against the defendant.”
    State v. Rienhardt, 
    190 Ariz. 579
    , 588–89, 
    951 P.2d 454
    , 463–64 (1997) (citation
    omitted).
    2
    STATE v. COTHAM
    Decision of the Court
    appointed as counsel and granted a two week continuance to prepare for
    trial.
    ¶4            At trial, the victim, T.G., testified that she met Cotham when
    she was 17 years old and staying with a friend after running away from a
    group home.2 T.G. testified that Cotham and a man known as “Taxi Tom”
    talked to T.G. about becoming a prostitute for them. T.G. indicated that she
    was underage and did not want to become a prostitute but Cotham stated
    “we’re going to do it anyway.” According to T.G.’s testimony, Cotham
    became controlling and made her feel trapped. T.G. testified to having sex
    with numerous men while Cotham was prostituting her and stated that
    Cotham collected the payment, which was either drugs or money.
    ¶5            Police detectives testified that while investigating the matter,
    they engaged Cotham in conversation and used a fake story to explain their
    presence at a hotel where Cotham and T.G. were staying. While the
    detectives and Cotham were talking, T.G. approached Cotham and told him
    “a date . . . was on his way.” At Cotham’s suggestion, the detectives
    returned to the hotel later that night to spend time by the pool. While at the
    pool, T.G. joined the group and eventually spoke to one of the detectives
    alone. Based on that conversation, the detectives later returned to the hotel
    with other officers, including uniformed officers, to make arrests and
    execute a search warrant. When officers arrived on the floor where T.G. and
    Cotham were staying, they saw T.G. “walking fast and crying.” T.G. told a
    detective that Cotham had “raised his fist at her because she had a
    conversation with [a detective] while [Cotham] was not present.”
    ¶6            T.G. underwent a forensic exam. During the exam, T.G.
    indicated that Cotham had sexually assaulted her and had threatened both
    her and her family. The exam revealed several bruises on T.G. and several
    swabs were taken from T.G.’s genital area and breasts for DNA analysis. A
    forensic scientist testified that the DNA profile from one external genital
    swab was consistent with Cotham and that there was DNA from other
    unidentified individuals in the samples taken from T.G.
    ¶7            The jury found Cotham guilty on two counts of child
    prostitution and not guilty on the other two counts. On each guilty count,
    the jury also found three aggravating factors. At sentencing, Cotham’s
    probation imposed for a prior conviction was revoked and, after being
    2Initials are used to protect the identity of the victim and witnesses. See
    State v. Malonado, 
    206 Ariz. 339
    , 341 n.1 ¶ 2, 
    78 P.3d 1060
    , 1062 n.1 (App.
    2003).
    3
    STATE v. COTHAM
    Decision of the Court
    given credit for time served, Cotham was released on that conviction. The
    superior court then sentenced Cotham to an aggravated sentence of 21
    years for each of the child prostitution convictions to be served
    consecutively. Cotham properly was given 270 days of presentence
    incarceration credit on the first term to be served.
    ¶8           This court has jurisdiction over Cotham’s timely appeal
    pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona
    Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1)
    (2015).3
    DISCUSSION
    ¶9            This court has reviewed and considered counsel’s brief and
    appellant’s pro se supplemental brief, and has searched the entire record
    for reversible error. See State v. Clark, 
    196 Ariz. 530
    , 537 ¶ 30, 
    2 P.3d 89
    , 96
    (App. 1999). Searching the record and briefs reveals no reversible error. The
    record shows that Cotham was either represented by counsel at all stages
    of the proceedings or that Cotham had knowingly, intelligently and
    voluntarily waived his right to counsel and represented himself. The
    evidence admitted at trial constitutes substantial evidence supporting
    Cotham’s convictions. From the record, all proceedings were conducted in
    compliance with the Arizona Rules of Criminal Procedure. The sentences
    imposed were within the statutory limits and permissible ranges.
    ¶10           Cotham raises several arguments in his pro se supplemental
    brief, which this court discusses in turn.
    I.     The Superior Court Did Not Err In Revoking Cotham’s Right To
    Self-Representation.
    ¶11            Cotham contends the superior court abused its discretion by
    revoking his right to self-representation after he failed to appear for a
    morning meeting with his investigator on the first day of trial. The decision
    to revoke a defendant’s self-representation right is reviewed for an abuse
    of discretion. State v. Gomez, 
    231 Ariz. 219
    , 222 ¶ 8, 
    293 P.3d 495
    , 498 (2012).
    ¶12          “The right to counsel under both the United States and
    Arizona Constitutions includes an accused’s right to proceed without
    counsel and represent himself,” State v. Lamar, 
    205 Ariz. 431
    , 435 ¶ 22, 72
    3Absent material revisions after the relevant dates, statutes and rules cited
    refer to the current version unless otherwise indicated.
    4
    STATE v. COTHAM
    Decision of the Court
    P.3d 831, 835 (2003) (citing cases), “but only so long as the defendant ‘is able
    and willing to abide by the rules of procedure and courtroom protocol,’”
    State v. Whalen, 
    192 Ariz. 103
    , 106, 
    961 P.2d 1051
    , 1054 (App. 1997) (citation
    omitted). Here, the superior court clearly informed Cotham of his
    responsibilities and consequences before it revoked Cotham’s right to self-
    representation. The superior court explicitly stated that “[i]f you [Cotham]
    fail to attend the trial or refuse transport – it has happened – and if you
    decide to do that and absent yourself from this courtroom, you waive your
    right to represent yourself. So you need to make sure that you get ready
    and get here.” The record shows that the next morning, Cotham refused
    transportation. After a delay and the superior court successfully ordering
    Cotham transported, the following exchange took place:
    THE COURT: Do you remember me telling you
    that if you refused transport, failed to appear,
    that that was something that I could use to
    decide to no longer represent yourself?
    THE DEFENDANT: Yes.
    THE COURT: Do you remember me ordering
    that you would be here at 10:30 this morning to
    review the information that you said you
    needed to review?
    THE DEFENDANT: Yes, I do.
    THE COURT: And you failed to appear this
    morning, didn’t you? Don’t explain, just the
    answer is yes or no.
    THE DEFENDANT: Yes, sir.
    THE COURT: And my understanding is
    because you refused to be transported, even
    though I entered the order specifically to allow
    you to prepare for yourself here today.
    THE DEFENDANT: Yes, sir.
    Given Cotham’s refusal to be transported on the first day of trial,
    notwithstanding the superior court’s clear, unambiguous and timely
    warnings that Cotham would lose the right to represent himself if he did
    not follow the court’s procedures and refused transport, the superior court
    5
    STATE v. COTHAM
    Decision of the Court
    did not abuse its discretion in revoking Cotham’s right of self-
    representation. See Whalen, 
    192 Ariz. at
    107–08, 
    961 P.2d at
    1055–56.
    II.    The State Did Not Exceed The Scope Of The Indictment.
    ¶13           Cotham argues that because he was charged with four counts
    of child prostitution, it was error for the court to allow the State to present
    evidence of his sexual conduct with T.G. because it was outside the scope
    of the indictment. Cotham failed to object at trial to the admission of the
    DNA evidence and forensic exam evidence and thus review on appeal is
    limited to fundamental error. See Ariz. R. Crim. P. 21.3(c); State v. Henderson,
    
    210 Ariz. 561
    , 567–68 ¶¶ 19–20, 
    115 P.3d 601
    , 607–08 (2005). “Accordingly,
    [the defendant] ‘bears the burden to establish that “(1) error exists, (2) the
    error is fundamental, and (3) the error caused him prejudice.”’” State v.
    James, 
    231 Ariz. 490
    , 493 ¶ 11, 
    297 P.3d 182
    , 185 (App. 2013) (citations
    omitted). Cotham has not met his burden here.
    ¶14           The State used the DNA evidence to show that T.G. had
    multiple sexual partners because she was being prostituted by Cotham and
    to corroborate T.G.’s testimony. Other testimony, including testimony
    about Cotham’s conduct with T.G., was admitted to corroborate the State’s
    theory of the case. Even assuming error in admitting such evidence,
    Cotham has not shown how such an error would be fundamental. There is
    no indication here that the evidence deprived Cotham of a right essential to
    his defense or that it deprived him of a fair trial and thus the admission of
    such evidence does not constitute fundamental error. See Henderson, 210
    Ariz. at 567 ¶ 19, 
    115 P.3d at 607
    .
    ¶15           Although Cotham alleges that the instruction on sexual
    conduct with a minor was improper, such an instruction is important in a
    child prostitution case to explain an element of the charge. Here, the jury
    acquitted Cotham of two counts of child prostitution and, contrary to
    Cotham’s claim, did not appear confused as to the reason for the inclusion
    of the instruction. On this record, inclusion of the instruction was not
    fundamental error.
    III.   The Superior Court Did Not Err In Precluding Evidence Of The
    Victim’s Sexual Past.
    ¶16              Cotham argues that the superior court erred in precluding
    evidence of T.G.’s sexual past to show the “acts of prostitution [] were
    consensual acts of prostitution that the defendant had no involvement [in]
    . . . and to directly refute the State’s scientific evidence.” Commonly referred
    6
    STATE v. COTHAM
    Decision of the Court
    to as the “rape-shield law,” A.R.S. § 13-1421 precludes evidence of a victim’s
    sexual conduct unless it falls into one of five enumerated categories. The
    statute also states that such evidence is admissible only if the court finds
    that the evidence is relevant and material to a fact in issue and that the
    inflammatory or prejudicial nature of the evidence does not outweigh its
    probative value. See A.R.S. § 13-1421(A). This court reviews the superior
    court’s decision to preclude evidence under A.R.S. § 13-1421 for an abuse
    of discretion. See State v. Gilfillan, 
    196 Ariz. 396
    , 405, 
    998 P.2d 1069
    , 1078
    (App. 2000).
    ¶17           In response to the State’s motion to preclude such evidence,
    the superior court found the victim’s sexual past irrelevant and
    inadmissible. When pressed by the court for specific instances or evidence
    Cotham wanted to introduce, Cotham responded by saying “things about
    her sexual nature as a person” and her prior history of sexual conduct “not
    for money.” Notably, when the court asked “[h]ow is it relevant because
    the charges against you are whether you engaged in child prostitution,”
    Cotham replied “I don’t know. . . They’re probably not, but this is the stuff
    she’s bringing up.” Although Cotham argued that he could introduce T.G.’s
    sexual past because it was referenced in the police report, the superior court
    correctly stated that “[t]here’s no exception for [it] just because it was
    included in the police report.”
    ¶18            Moreover, the State only requested preclusion of T.G.’s sexual
    past before coming into contact with Cotham. In fact, the State introduced
    much of the evidence Cotham requested to show its theory that the victim
    had multiple sexual partners “due to the fact that she was engaging in
    prostitution.” Cotham was free to argue that the sexual encounters were
    consensual and not for money but, as the superior court properly pointed
    out, T.G.’s sexual past before meeting Cotham “certainly [is] not relevant.”
    ¶19           Although Cotham argues that T.G.’s sexual past could be
    introduced to refute DNA evidence taken from T.G., Cotham does not
    explain how such evidence would refute the State’s DNA evidence. The
    superior court’s ruling did not preclude Cotham’s defense that T.G. was not
    paid for alleged prostitution acts nor did it preclude Cotham from arguing
    that T.G. did not engage in prostitution. Accordingly, on this record, there
    was no error in precluding evidence of the victim’s sexual past.
    7
    STATE v. COTHAM
    Decision of the Court
    IV.    The DNA Evidence Did Not Violate Cotham’s Confrontation
    Clause Rights.
    ¶20            Cotham alleges the DNA evidence introduced at trial violated
    his Sixth Amendment right to confront adverse witnesses because “the
    DNA evidence provided by the State was not specific” and “[i]ntroduction
    of [the] DNA evidence in this manner allowed the DNA to, in essence tell a
    story which would be no different than if the State played a recording of
    these men stating they had sex with this alleged victim with the defense not
    able to question the men on this story.” Cotham failed to make an objection
    at trial and thus review on appeal is limited to fundamental error. See Ariz.
    R. Crim. P. 21.3(c); Henderson, 210 Ariz. at 567–68 ¶¶ 19–20, 
    115 P.3d at
    607–
    08.
    ¶21             Cotham has not shown how the admission of DNA evidence
    constitutes error, let alone fundamental error. The DNA evidence was
    introduced through a forensic scientist, who Cotham cross-examined, and
    was used to corroborate T.G.’s testimony. The fact that the DNA evidence
    itself, or the source of the DNA that was not Cotham’s, could not be cross-
    examined is not a Sixth Amendment violation. Similarly, Cotham has not
    shown how his compulsory process rights were violated when the
    unknown sources of the DNA were not called by the State to testify.
    V.     Cotham Lacks Standing To Assert A Fourth Amendment
    Violation.
    ¶22            Cotham also argues that that his Fourth Amendment rights
    were violated when the Phoenix police supplied alcohol to the 17-year old
    victim during the time when T.G. told the police she was being prostituted.
    There is conflicting evidence as to whether T.G. was supplied with, or
    consumed, alcohol in the presence of the police officers. Furthermore,
    “Fourth Amendment rights are personal rights which, like some other
    constitutional rights, may not be vicariously asserted.” Brown v. United
    States, 
    411 U.S. 223
    , 230 (1973) (citing cases). Cotham has not shown that he
    has standing to assert an alleged Fourth Amendment violation on T.G.’s
    behalf.
    VI.    Cotham’s Speedy Trial Rights Were Not Violated.
    ¶23           Cotham argues that his speedy trial rights were “violated by
    the State obtaining continuances for trial conflicts that did not exist” and
    “by the court allowing an exclusion of time when [the court] took away the
    8
    STATE v. COTHAM
    Decision of the Court
    defendant’s pro se status.” The decision to grant a motion for continuance
    falls within the sound discretion of the trial judge and will not be reversed
    absent an abuse of discretion that is demonstrably prejudicial to the
    defendant. State v. Jackson, 
    112 Ariz. 149
    , 154, 
    539 P.2d 906
    , 911 (1975).
    ¶24           By rule, a defendant must be tried within a certain number of
    days from a specified time, typically the arraignment. Ariz. R. Crim. P. 8.2.
    However, for certain trial continuances, speedy trial time calculations are
    excludable. See Ariz. R. Crim. P. 8.5(b). Here, the superior court found that
    the unavailability of the assigned prosecutor constituted extraordinary
    circumstances warranting a continuance and that “delay [was]
    indispensable to the interests of justice.” The record shows that the assigned
    prosecutor was going to be in trial on another matter that took precedence
    over Cotham’s trial because it was an older, in-custody matter. It cannot be
    said, on this record, that the granting of the continuance constituted an
    abuse of discretion. Moreover, Cotham has not shown any prejudice from
    the continuance. This conclusion is further supported by the fact that after
    this continuance, Cotham filed a motion for a speedy trial and, at the same
    hearing, asked for a two week continuance.
    ¶25           Furthermore, it cannot be said that Cotham was prejudiced by
    the two weeks of excluded time the court later granted to allow Cotham’s
    counsel to prepare for trial once Cotham’s pro per status was revoked.
    Defense counsel requested the two week continuance. Cotham has not
    shown error or resulting prejudice, given that the continuance was granted
    at defense counsel’s request so that an adequate defense could be presented
    for Cotham during trial.
    VII.   The Superior Court Did Not Err In Denying Cotham’s Motion For
    A New Trial.
    ¶26            Cotham argues the superior court erred in denying his motion
    for a new trial based on “abuse of discretion by the trial court judge denying
    the defendant of his constitutional right to defend himself.” This court
    reviews the denial of a motion for new trial for an abuse of discretion. State
    v. Spears, 
    184 Ariz. 277
    , 287, 
    908 P.2d 1062
    , 1072 (1996).
    ¶27           It appears that the motion for a new trial was not timely, as it
    was filed more than a month after the verdict. See Ariz. R. Crim. P. 24.1(b)
    (requiring new trial motion to be filed “no later than 10 days after the
    verdict”). Even if timely, Cotham has not shown how the superior court’s
    revocation of his right to represent himself was error, which was the ground
    9
    STATE v. COTHAM
    Decision of the Court
    stated in his motion. See Ariz. R. Crim. P. 24.1(c)(4). On this record, the
    superior court did not abuse its discretion in denying Cotham’s motion.
    VIII. There Was No Error In Denying The Jury The Use Of The Statute
    On Child Prostitution.
    ¶28           Cotham argues the jury’s request to view the child
    prostitution statute “shows the jury had problems determining what the
    defendant was charged with” and that the court erred in denying the jury’s
    request. Because Cotham failed to object to the superior court’s response to
    the jury’s request, he waived the right to raise the issue on appeal absent
    fundamental error. See Ariz. R. Crim. P. 21.3(c); Henderson, 210 Ariz. at 567–
    68 ¶¶ 19–20, 
    115 P.3d at
    607–08. The superior court’s response to a jury
    question is reviewed for abuse of discretion. See State v. Ramirez, 
    178 Ariz. 116
    , 126, 
    871 P.2d 237
    , 247 (1994).
    ¶29           Cotham has not shown how the superior court’s response to
    the jury’s request was error, let alone fundamental error. During
    deliberations, the jury submitted a note stating “[w]e would like to see a
    copy of all police reports, the hotel receipts & a copy of the statute of the
    law for child prostitution.” After consultation with both parties, the court
    responded in writing stating “[p]lease refer to the jury instructions and the
    evidence presented at trial, including the exhibits that were admitted.”
    Cotham’s counsel agreed with the court’s response and made no objection.
    Although Cotham posits what might have prompted the jury to make this
    request, he does not indicate how the court’s response was error. On this
    record, the court did not abuse its discretion in responding to the jury’s
    inquiry.
    CONCLUSION
    ¶30            This court has read and considered counsel’s brief and
    Cotham’s pro se supplemental brief, and has searched the record provided
    for reversible error and has found none. State v. Leon, 
    104 Ariz. 297
    , 300, 
    451 P.2d 878
    , 881 (1969); State v. Clark, 
    196 Ariz. 530
    , 537 ¶ 30, 
    2 P.3d 89
    , 96 (App.
    1999). Accordingly, Cotham’s convictions and resulting sentences are
    affirmed.
    ¶31            Upon filing of this decision, defense counsel is directed to
    inform Cotham of the status of his appeal and of his future options. Defense
    counsel has no further obligations unless, upon review, counsel identifies
    an issue appropriate for submission to the Arizona Supreme Court by
    petition for review. See State v. Shattuck, 
    140 Ariz. 582
    , 584–85, 
    684 P.2d 154
    ,
    10
    STATE v. COTHAM
    Decision of the Court
    156–57 (1984). Cotham shall have 30 days from the date of this decision to
    proceed, if he desires, with a pro per motion for reconsideration or petition
    for review.
    :ama
    11