State v. Fulcher ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JESSE SCOTT FULCHER, Appellant.
No. 1 CA-CR 20-0518
FILED 9-9-2021
Appeal from the Superior Court in Mohave County
No. S8015CR201901010
The Honorable Douglas R. Camacho, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Casey D. Ball
Counsel for Appellee
Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
STATE v. FULCHER
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Jennifer M. Perkins joined.
C R U Z, Judge:
¶1 Jesse Scott Fulcher (“Fulcher”) appeals his convictions and
sentences for molestation of a child, sexual abuse, and offering to transfer
marijuana, arguing insufficient evidence supports his convictions. For the
following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Fulcher was a close family friend of the victims, K.C., H.P.,
and L.D. All three victims disclosed that Fulcher touched their breasts, with
K.C. disclosing he touched her genitals. K.C. and L.D. further reported that
Fulcher offered to give them marijuana.
¶3 The State charged Fulcher with one count of molestation of a
child, a class 2 felony and dangerous crime against children; four counts of
sexual abuse of a victim under fifteen years of age, class 3 felonies and
dangerous crimes against children; two counts of sexual abuse of a victim
fifteen years of age or older, class 5 felonies; and two counts of offering to
transfer marijuana, class 3 felonies. Fulcher waived his right to a jury trial,
and the superior court held a bench trial.
¶4 At trial, the mother of K.C. and H.P. testified that she
considered Fulcher a member of the family and trusted him to be alone with
the victims. She allowed Fulcher, a licensed massage therapist, to massage
the victims’ shoulders. The family cut ties with Fulcher after K.C. disclosed
that he had been touching her inappropriately. Around this time, Fulcher
text messaged the family and expressed disbelief that they could
“condemn” him for making a “mistake.”
¶5 K.C. testified that Fulcher regularly gave her massages. On
one occasion, while K.C. had her head on Fulcher’s lap, he began massaging
her upper thigh. Fulcher moved his hand beneath her underwear and
“grazed” her genitals. On a second occasion, while in a swimming pool,
Fulcher pulled up K.C.’s swimsuit and massaged her exposed breasts. In
doing so, Fulcher touched the fatty tissue of the tops and bottoms of K.C.’s
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Decision of the Court
breasts and “grazed” her nipples. This became an almost daily occurrence,
with Fulcher touching K.C.’s breasts under the guise of a massage
“hundreds or maybe thousands” of times. Fulcher’s conduct caused K.C.
fear and confusion, and she often made excuses to get away from him.
¶6 K.C. testified that she initially enjoyed Fulcher’s company and
confided in him. Fulcher began divulging personal, sometimes sexual
details, admitting to K.C. that he had problematic thoughts about the
victims and that he would date her if he were younger. During one of these
conversations, Fulcher told K.C. that if she wanted to experiment with
drugs, he would provide her with “safe” marijuana not “laced” with any
other substances. K.C. was between thirteen and fifteen years old when the
offenses occurred.
¶7 H.P. testified that Fulcher regularly gave her massages,
eventually moving under her bra to rub the fatty tissue of the tops and sides
of her breasts. In doing so, he would “sometimes” touch her nipples. As
with K.C., Fulcher once mentioned that he would be attracted to H.P. if he
were younger. Although H.P. could not remember specific dates, she
testified that the offenses occurred “almost every time he was over” before
she was fourteen years old. During this period, H.P. saw Fulcher move his
hand under K.C.’s shirt and massage near her breast area.
¶8 L.D. testified that, during a massage, Fulcher moved his
hands under her shirt to rub the fatty tissue of the tops and sides of her
breasts. L.D. did not give Fulcher permission to touch her breasts and she
made an excuse to get away from him. L.D. testified that she initially
trusted Fulcher and they confided in each other, with him revealing details
about his romantic and sexual history. In one of these conversations, L.D.
told Fulcher she struggled with substance abuse issues. Instead of offering
help, Fulcher offered to buy L.D. marijuana. L.D. testified that she knew
Fulcher made the other victims uncomfortable and she sensed that they
were experiencing similar abuse. K.C. and H.P. eventually asked L.D. “to
find a way to help them get out of it[.]” L.D. was between the ages of
eighteen and nineteen years old when the offenses occurred.
¶9 An officer, who conducted the initial interviews, testified that
the victims did not appear coached and seemed genuinely relieved to tell
their stories. The officer testified that Fulcher neither denied nor admitted
the allegations. A detective, who conducted the follow-up interviews,
testified that Fulcher denied any inappropriate conduct but admitted to
massaging the victims and rubbing their “pec area.” Fulcher further
admitted to speaking to K.C. about his romantic and sexual history. A blind
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Decision of the Court
expert1 on sexual abuse testified that offenders will break down a victim’s
barriers by building trust and incorporating “innocent” touching into their
relationship. In some instances, the offender may introduce a victim to
drugs or alcohol.
¶10 After the State’s case-in-chief, Fulcher moved for a judgment
of acquittal under Arizona Rule of Criminal Procedure 20. The superior
court denied the motion, finding the State presented sufficient evidence to
proceed. The superior court specifically rejected Fulcher’s assertion that the
evidence did not establish touching of the breasts under the statute
governing disciplinary actions for massage therapists, Arizona Revised
Statutes (“A.R.S.”) § 32-4253(B)(1), which defines the term “breast” as “any
portion of the female breast below a point immediately above the top of the
areola.” The superior court reasoned that the criminal code had not defined
the term and it was therefore a “factual determination as to whether the
evidence that has been presented so far shows that the breast has been
touched.”
¶11 Fulcher testified on his own behalf and denied the allegations.
Fulcher, however, admitted to massaging the victims, rubbing K.C.’s upper
thigh and pectoral area, and moving the victims’ clothing during massages.
He further admitted to telling the victims he would want his children to use
marijuana in a safe environment. A character witness testified that Fulcher
spent time with his young children and he never had concerns about
Fulcher’s conduct. The witness did not know the victims or K.C.’s and
H.P.’s mother.
¶12 The superior court found Fulcher guilty as charged. In
reaching its verdict, the superior court found the victims had no motive to
lie and provided credible testimony. The superior court found the date
ranges and victims’ ages proven through dates of birth, residential history,
and the location of the offenses. Again, the superior court rejected Fulcher’s
argument that the State failed to prove touching of the breasts as defined
by A.R.S. § 32-4253(B)(1) but noted the contact would amount to sexual
abuse even if that definition controlled.
¶13 The superior court sentenced Fulcher to an aggregate term of
42.5 years’ imprisonment. He timely appealed, and we have jurisdiction
pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
1 A “blind expert” is one who has not reviewed case-specific evidence
and will not testify about the events of the case at trial.
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DISCUSSION
I. Sufficiency of the Evidence
¶14 Fulcher argues insufficient evidence supports his convictions.
We review the sufficiency of the evidence de novo, viewing the facts in the
light most favorable to sustaining the verdict. State v. Bible, 175 Ariz. 549,
595 (1993). We will reverse only if a complete absence of probative facts
supports the convictions. State v. Scott, 113 Ariz. 423, 424-25 (1976).
¶15 We will uphold a superior court’s “finding of guilt if it is
supported by substantial evidence, which may be either circumstantial or
direct.” State v. Garza, 196 Ariz. 210, 211, ¶ 3 (App. 1999) (citations omitted).
Substantial evidence is “such proof that ‘reasonable persons could accept
as adequate and sufficient to support a conclusion of defendant’s guilt
beyond a reasonable doubt.’” State v. Mathers, 165 Ariz. 64, 67 (1990)
(quoting State v. Jones, 125 Ariz. 417, 419 (1980)). In reviewing sufficiency
of the evidence, we compare the evidence “against the statutorily required
elements of the offense,” State v. Pena, 209 Ariz. 503, 505, ¶ 8 (App. 2005),
but will neither reweigh conflicting evidence nor assess the credibility of
witnesses, State v. Buccheri-Bianca, 233 Ariz. 324, 334, ¶ 38 (App. 2013). Even
if uncorroborated, a victim’s testimony is sufficient to support a conviction
“unless the story is physically impossible or so incredible that no reasonable
person could believe it.” State v. Williams, 111 Ariz. 175, 177-78 (1974).
A. Molestation of a Child
¶16 A person commits molestation of a child if he intentionally or
knowingly engages in sexual contact with a minor under fifteen years of
age. A.R.S. § 13-1410(A). As relevant here, sexual contact includes “any
direct or indirect touching, fondling or manipulating of any part of the
genitals.” A.R.S. § 13-1401(A)(3)(a). This does not include contact “that an
objective, reasonable person would recognize as normal and reasonable
under the circumstances.” A.R.S. § 13-1401(A)(3)(b). The State, however,
is not required to prove sexual motivation as an element of the offense. See
State v. Holle, 240 Ariz. 300, 301, ¶ 1 (2016).
¶17 K.C. testified that Fulcher massaged her upper thigh and
quickly touched her genitals. Even if indirect, this contact exceeded that
which would be perceived as objectively “normal and reasonable.” See
A.R.S. § 13-1401(A)(3)(b). Although the State need not prove sexual
motivation, Fulcher’s behavior during the period of abuse demonstrated
his attraction to K.C. and intent to commit the offense. The evidence proved
that K.C. was under fifteen years of age and the offense occurred within the
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STATE v. FULCHER
Decision of the Court
charged date range. Sufficient evidence supports Fulcher’s conviction for
molestation of K.C.
B. Sexual Abuse
¶18 A person commits sexual abuse of a victim under fifteen years
of age if he intentionally or knowingly engages in sexual contact involving
the female breast. A.R.S. § 13-1404(A). If the victim is fifteen years of age
or older, the State must also prove the person acted without the victim’s
consent. A.R.S. § 13-1404(A). Lack of consent may be established by the
facts and circumstances of the abuse. See State v. Bolivar, 250 Ariz. 213, 229,
¶¶ 60-62 (App. 2020). As relevant here, sexual contact includes “any direct
or indirect touching, fondling or manipulating of any part of the . . . female
breast.” A.R.S. § 13-1401(A)(3)(a). As with molestation of a child, the State
is not required to prove sexual motivation, Holle, 240 Ariz. at 301, ¶ 1, but
the contact must exceed that which is “normal and reasonable under the
circumstances,” A.R.S. § 13-1401(A)(3)(b).
¶19 To the extent Fulcher argues the narrow definition of “breast”
under A.R.S. § 32-4253(B)(1) controls, we disagree. The definition found in
A.R.S. § 32-4253(B)(1) is expressly limited to disciplinary actions for
massage therapists and cannot be applied to the criminal code. See A.R.S.
§ 32-4253(B); see also State v. Prince, 226 Ariz. 516, 530, ¶ 38 (2011). Because
the criminal code does not define “breast,” as used in A.R.S. §§ 13-1401 and
-1404, we may look to the dictionary definition to ascertain the term’s “plain
and ordinary meaning.” State v. Clow, 242 Ariz. 68, 70, ¶ 10 (App. 2017)
(citation omitted). The dictionary definition of “breast” includes the
“glandular organs” on the female chest and the “superior ventral surface of
the human body, extending from the neck to the abdomen.” American
Heritage Dictionary (5th ed. 2020). Based on the plain meaning of the term,
Fulcher’s contact constituted touching of the female breast. See A.R.S. § 13-
1401(A)(3)(a).
¶20 K.C. testified that Fulcher touched the fatty tissue around her
breast and quickly touched her nipples. This occurred on an almost daily
basis and caused her extreme discomfort. The evidence proved that K.C.
was under fifteen years of age for two counts and fifteen years of age for
one count, all within the charged date ranges. Where necessary, the
evidence established Fulcher lacked K.C.’s consent. H.P. testified that
Fulcher repeatedly touched the fatty tissue of the tops and sides of her
breasts and quickly touched her nipples. The evidence proved that H.P.
was under fifteen years of age for two counts, both within the charged date
ranges. L.D. testified that Fulcher touched the fatty tissue of the tops and
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sides of her breasts. The surrounding circumstances of the contact,
including L.D.’s demeanor, established her lack of consent. L.D.’s
testimony proved one count occurred during the charged date range.
¶21 For all victims, Fulcher’s behavior was indicative of the
grooming tactics described by the State’s blind expert. Fulcher ingratiated
himself with the victims, manipulated their trust, and used “innocent”
touching to breakdown their physical barriers. Fulcher’s conduct and
statements demonstrated his attraction to the victims and intent to commit
the offenses. Moreover, Fulcher exceeded that which an objective,
reasonable person would “recognize as normal and reasonable under the
circumstances.” A.R.S. § 13-1401(A)(3)(b). Sufficient evidence supports
Fulcher’s convictions for sexual abuse.
C. Offer to Transfer Marijuana
¶22 A person commits offering to transfer marijuana by
knowingly offering to “furnish, deliver or give away” marijuana weighing
less than two pounds. See A.R.S. §§ 13-3401(37), -3405(A)(4), (B)(10).
Although not defined by statute, we have held that an “offer” within the
context of drug sales can be made with statements and criminal intent
alone. See State v. Daugherty, 173 Ariz. 548, 552 (App. 1992). The State is not
required to prove the drugs were “produced or that money changed
hands.” State v. Strong, 178 Ariz. 507, 509 (App. 1993).
¶23 Relying on State v. Alvarado, 178 Ariz. 539 (App. 1994), Fulcher
argues the State failed to prove his statements constituted an “offer.” In
Alvarado, we held that the offense of offering to sell marijuana requires
proof a person was aware of or believed that he “made an offer to sell the
substance, not that he has told a lie or made a joke.” Id. at 542. Looking to
the civil law definition of “offer” as a “proposal to enter into a contract on
the terms contained in the offer,” we found the defendant made such a
proposal by specifying a price, type of drug, and general timeframe. Id. at
543 (citing K-Line Builders, Inc. v. First Fed. Sav. & Loan Ass’n, 139 Ariz. 209,
212 (App. 1983)). This holding does not require Fulcher’s convictions for
offering to transfer marijuana be vacated.
¶24 Here, K.C. and L.D. testified that Fulcher offered to give them
marijuana. Nothing from the record indicates these statements were false
or made in jest. The blind expert’s testimony that the use of drugs as a
common grooming tactic further establishes Fulcher’s intent to give the
victims marijuana. Fulcher listed a specific type of drug and a general time
of transfer could be inferred. See Alvarado, 178 Ariz. at 543. Unlike the
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STATE v. FULCHER
Decision of the Court
defendant in Alvarado, Fulcher’s conviction for offering to transfer
marijuana does not require proof of an intent to sell marijuana or
communicate its monetary value. See id. Fulcher’s statements, made in
earnest, proved he intended to “furnish, deliver or give away” marijuana
to both victims during the charged date ranges. See A.R.S. § 13-3401(37).
Sufficient evidence supports Fulcher’s convictions for two counts of
offering to transfer marijuana.
¶25 For all counts, we will not reexamine conflicts in testimony or
reweigh the evidence. See Buccheri-Bianca, 233 Ariz. at 334, ¶ 38. We
therefore defer to the superior court’s findings as to the victims’ credibility
and the weight afforded to their testimony.
CONCLUSION
¶26 We affirm Fulcher’s convictions and resulting sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
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