State v. Eschrich ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CHRISTIAN ROBERT ESCHRICH, Appellant.
No. 1 CA-CR 18-0845
FILED 9-24-2019
Appeal from the Superior Court in Mohave County
No. S8015CR201700244
The Honorable Richard Weiss, Judge, Retired
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Janelle A. McEachern, Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
STATE v. ESCHRICH
Decision of the Court
MEMORANDUM DECISION
Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kent E. Cattani joined.
J O H N S E N, Judge:
Christian Eschrich filed this appeal in accordance with Anders
v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),
following his convictions of: (1) aggravated domestic violence by
interfering with judicial proceedings, a Class 5 felony; (2) aggravated
assault by domestic violence, a Class 4 felony; (3) robbery, a Class 4 felony;
and (4) sexual assault by domestic violence, a Class 2 felony. Eschrich's
counsel has searched the record on appeal and found no arguable question
of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259, 284 (2000);
Anders, 386 U.S. at 744; State v. Clark, 196 Ariz. 530, 537 (App. 1999).
Eschrich was given the opportunity to file a supplemental brief but did not
do so. Counsel now asks this court to search the record for fundamental
error. After reviewing the entire record, we affirm Eschrich's convictions
and sentences as modified.
FACTS AND PROCEDURAL BACKGROUND
In violation of an order of protection, Eschrich broke into the
victim's home.1 Once inside, Eschrich choked, slapped and sexually
assaulted the victim, then stole money that she kept on her person. The
victim reported the break-in, the choking and the robbery to Kingman
police later that day. Four days later, she reported the sexual assault.
Several swabs taken from the victim during a subsequent sexual-assault
examination revealed traces of semen containing DNA that matched
Eschrich's.
A grand jury indicted Eschrich on one count each of
aggravated domestic violence by interfering with judicial proceedings,
aggravated assault by domestic violence and robbery. A fourth charge,
sexual assault by domestic violence, later was consolidated with the first
1 Upon review, we view the facts in the light most favorable to
sustaining the jury's verdicts and resolve all inferences against Eschrich.
State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).
2
STATE v. ESCHRICH
Decision of the Court
three. The jury found Eschrich guilty of all charges. The superior court
sentenced Eschrich to concurrent terms of imprisonment of 1.5 and 7 years
on counts 1 and 4, respectively, followed by consecutive terms of 2.5 and
1.5 years on counts 2 and 3, respectively. Eschrich received 617 days'
presentence incarceration credit.
Eschrich timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes ("A.R.S.") sections 12-120.21(A)(1) (2019), 13-4031 (2019) and
-4033(A)(1) (2019).2
DISCUSSION
The record reflects Eschrich received a fair trial. He was
represented by counsel at all stages of the proceedings against him and was
present at all critical stages. The court held appropriate pretrial hearings.
At the close of jury selection, Eschrich moved to strike Juror
399145 for cause. During voir dire, the venire member had disclosed that
her husband is the Chief of the Kingman Police Department, which
investigated the victim's reports and ultimately arrested Eschrich.
Members of the Kingman Police Department were listed as witnesses for
the State and were to testify against Eschrich. The venire member also
reported that her son works for the Mohave County Sheriff's Office, she
herself is an employee of the justice court, and she knows the detective in
this case as well as other members of the Kingman Police Department.
When asked if any of these relationships would affect her ability to be fair
and impartial, she replied, "No, I work for the court. I have to remain fair
and impartial."
Relying on that response, the court denied Eschrich's motion
to strike the venire member. While we doubt the wisdom of denying the
motion, see State v. Eddington, 226 Ariz. 72, 75-78, ¶¶ 4-12 (App. 2010), the
error was harmless, see id. at 79, ¶¶ 18-20, because she ultimately was not
seated on the jury. Even if the superior court errs by denying a motion to
strike a prospective juror for cause, "under all but the most extraordinary
circumstances, defendants will be unable . . . to show prejudice and secure
any relief arising from a trial court's erroneous failure to strike a
venireperson for cause." Id. at ¶ 20. No such circumstances exist here.
2 Absent material revision after the date of an alleged offense, we cite
a statute's current version.
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STATE v. ESCHRICH
Decision of the Court
At trial, the State sought to introduce a report of the victim's
sexual-assault examination. Eschrich objected to admission of the narrative
description of the assault contained within the report, arguing it was
inadmissible hearsay. The superior court overruled the objection and
allowed the report. Regardless of whether the narrative description of the
assault was for the purposes of medical diagnoses, see generally State v.
Lopez, 217 Ariz. 433 (App. 2008), the State also offered the narrative as a
prior consistent statement. Such a use is permitted by Arizona Rule of
Evidence 801(d)(1)(B); see also State v. Williams, 131 Ariz. 211, 214 (1982)
(statements made to investigating officer in a sexual assault case were
admissible at trial as prior consistent statements). Thus, the superior court
did not err by admitting the full report.
More generally, the State presented both direct and
circumstantial evidence sufficient to allow the jury to convict. The jury was
properly comprised of eight members, who were properly instructed on the
elements of the charges and the State's burden of proof. The jury returned
a unanimous verdict, and the court received and considered a presentence
report, addressed its contents during the sentencing hearing and imposed
legal sentences for the crimes of which Eschrich was convicted. Although
the court orally imposed sentences of 2.5 years on count 2 and 1.5 years on
count 3, the sentencing minute entry recites that Eschrich would serve 1.5
years for count 2 and 2.5 years for count 3. The "oral pronouncement in
open court controls," and we therefore order the minute entry corrected to
reflect the appropriate sentences. State v. Ovante, 231 Ariz. 180, 188, ¶¶ 38-
39 (2013) (quotation omitted).
CONCLUSION
We have reviewed the entire record for reversible error and
find none, and therefore affirm the convictions and resulting sentences as
modified. See Leon, 104 Ariz. at 300. Although the court granted Eschrich
two more days of presentence incarceration credit than was warranted,
absent a cross-appeal by the State, we will not correct the sentence. State v.
Dawson, 164 Ariz. 278, 286 (1990).
Defense counsel's obligations pertaining to Eschrich's
representation in this appeal have ended. Counsel need do no more than
inform Eschrich of the outcome of this appeal and his future options, unless,
upon review, counsel finds "an issue appropriate for submission" to the
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STATE v. ESCHRICH
Decision of the Court
Arizona Supreme Court by petition for review. See State v. Shattuck, 140
Ariz. 582, 584-85 (1984). On the court's own motion, Eschrich has 30 days
from the date of this decision to proceed, if he wishes, with a pro per motion
for reconsideration. Eschrich has 30 days from the date of this decision to
proceed, if he wishes, with a pro per petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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