State v. Jones ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CRAIG MURRAY JONES, Appellant.
No. 1 CA-CR 15-0372
FILED 8-16-2016
Appeal from the Superior Court in Maricopa County
No. CR2012-009437-001 DT
The Honorable Margaret R. Mahoney, Judge
The Honorable Pamela D. Svoboda, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Arizona Attorney General’s Office, Phoenix
By W. Scott Simon
Counsel for Appellee
Brown & Little, P.L.C., Tempe
By Matthew O. Brown
Counsel for Appellant
STATE v. JONES
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Samuel A. Thumma and Judge Kenton D. Jones joined.
W I N T H R O P, Presiding Judge:
¶1 Craig Murray Jones (“Appellant”) appeals his convictions
and sentences for five counts of molestation of a child; four counts of
furnishing harmful items to minors; three counts of sexual conduct with a
minor; two counts each of attempted molestation of a child and child abuse;
and one count each of sexual abuse, attempted sexual conduct with a minor,
indecent exposure, and aggravated assault. Appellant argues the trial court
erred when it revoked his waiver of counsel, when it admitted the prior
consistent statements of one of the victims, when it ordered two of his
sentences to run consecutively to other sentences, and when it amended
count 3 of the indictment. For the following reasons, we vacate Appellant’s
conviction and sentence for sexual abuse as charged in the amended count
3 and affirm the remainder of Appellant’s convictions and sentences. 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) (2016), 13-
4031 (2010) and 13-4033 (2010).
FACTS AND PROCEDURAL HISTORY
¶2 The State charged Appellant with twenty-six counts that
alleged a variety of sexual offenses, obscenity offenses, child abuse, and
aggravated assault. Appellant committed the offenses against three minor
victims. Victims CJ and HJ were Appellant’s biological daughters; victim
ZR was Appellant’s niece.1
¶3 At the conclusion of the State’s case, the trial court granted
Appellant’s motion for judgment of acquittal on three counts that alleged
sexual conduct with a minor, aggravated assault, and attempted public
sexual indecency to a minor. The jury acquitted Appellant of three counts
that alleged aggravated assault, sexual exploitation of a minor, and public
1 We use victim identifiers to protect the victims’ identities. Ariz. R.
Sup. Ct. 111(i).
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sexual indecency. The jury convicted Appellant of the remaining counts
and the trial court sentenced him to an aggregate term of 114 years’
imprisonment.
ANALYSIS
I. The Revocation of Appellant’s Waiver of Counsel
¶4 More than a year before trial began, the trial court granted
Appellant’s motion to waive counsel and represent himself.2 Just over six
months later, the trial court revoked Appellant’s waiver over Appellant’s
objection and appointed counsel to represent Appellant for the remainder
of the proceedings. Appellant argues the trial court erred when it revoked
his waiver of counsel.
A. Facts
¶5 The first attorney to appear in the record on Appellant’s
behalf was appointed counsel Flores.3 Appellant raised numerous
complaints about Flores and Flores’s investigator shortly after the
appointment of Flores. Among Appellant’s complaints was that he did not
know what was happening in his case because Flores would not
communicate with him. Appellant conceded he had a prior attorney,
attorney Harrison, with whom he did not get along, either.4 Appellant
moved to waive counsel and represent himself. Flores informed the court
he could not communicate with Appellant because Appellant refused to
speak to him. The trial court appointed attorney Cutrer to represent
Appellant.
¶6 At the next case management conference, Appellant raised
complaints about Cutrer. Appellant again complained he did not know
what was happening in his case. He also claimed he did not have copies of
all discovery and filings despite Cutrer’s assurances to the contrary. Cutrer
informed the court that, despite Appellant’s claims about lack of
communication, he had discussions with Appellant that lasted hours, he
2 A different judge ultimately presided over Appellant’s trial.
3 Attorney Flores was Appellant’s advisory counsel before being
appointed as his counsel.
4 No attorney named Harrison appears in the record on appeal.
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sometimes talked to Appellant three to four times a day by telephone, and
Appellant simply refused to believe anything Cutrer told him.
¶7 Several months later, Appellant again complained about
Cutrer during a hearing and claimed Cutrer no longer represented him
because Appellant had filed a request for a new attorney. The trial court
denied Appellant’s request for new counsel. Appellant then filed a notice
that he was unable to proceed with Cutrer, which in essence was to request
the court to remove Cutrer. When the court considered the notice,
Appellant claimed once again that he did not know what was going on with
his case. The court denied Appellant’s request.
¶8 Appellant later filed another motion to change counsel, which
the court denied. One week later, Appellant filed a handwritten waiver of
counsel. At the next pretrial management conference, Appellant argued
Cutrer no longer represented him because he filed the waiver. Cutrer,
however, announced ready for trial. Appellant then claimed he did not
wish to waive counsel, but wanted new counsel. Cutrer informed the court
that Appellant had refused to see him the last three times he had gone to
the jail to meet with Appellant. The court took no action.
¶9 At the next pretrial management conference in January 2014,
Cutrer again announced he was ready for trial. Appellant, however, moved
to represent himself. During the discussion of Appellant’s motion, the
court found no basis for Appellant’s claims that Cutrer’s representation was
inadequate or that Cutrer had refused to work with Appellant. The court,
however, granted Appellant’s motion to represent himself but appointed
Cutrer, over Appellant’s objection, as advisory counsel. One month later,
the court denied Appellant’s motion to change advisory counsel. The court
also continued the trial at the request of both Appellant and the State.
¶10 At the next pretrial management conference, Appellant stated
he needed time to meet with his defense witnesses personally at the jail.
When the trial court explained his witnesses could simply come visit him,
Appellant claimed the visits had to be “special legal visits” so they could
take place in a “special room.” Appellant then claimed he had already
spoken to the defense witnesses and they were available for interview by
the State. When Cutrer clarified for the court that Appellant’s investigator
had already interviewed the defense witnesses and prepared summaries of
the interviews, Appellant argued he had to meet with the witnesses
personally to confirm his investigator’s summaries of their interviews were
correct. Appellant then moved for a continuance to interview his witnesses,
obtain an expert to rebut the State’s expert, and get a different investigator.
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The trial court continued the matter for ninety days and noted the
continuance should provide more than enough time for Appellant to be
ready for trial. Appellant then argued he had a conflict with Cutrer and
claimed Cutrer knew nothing about his case, even though Cutrer had
announced ready for trial twice.
¶11 At a hearing a month later, the State informed the court
Appellant had disclosed four adult witnesses and two minor witnesses.
The State explained it had arranged interviews with these witnesses, but
the witnesses subsequently refused to be interviewed unless Appellant was
also present. The State was amenable to interviewing the adult witnesses
in the jail so Appellant could be present, but the jail would not allow minors
in the part of the facility where interviews could take place. The trial court
indicated it would address the matter at the next conference.
¶12 At the next conference, Appellant argued the State must
disclose all of its discovery once again because there were items missing
from the State’s disclosure. When pressed by the court, Appellant could,
however, identify only one missing item—the signature page for the State’s
allegation of multiple offenses not committed on the same occasion. When
the discussion turned to ways to arrange the interviews of Appellant’s
minor witnesses so Appellant could be present, Appellant objected to
Cutrer’s participation in the discussion. Appellant then complained again
that he wanted to meet with his witnesses personally to “verify” what his
own witnesses told his own investigator, but he refused to do so pursuant
to the normal jail policies and procedures. The trial court correctly noted
that, as Appellant represented himself, this was something he would need
to figure out on his own.
¶13 A week later, Appellant informed the court and the State that
he had obtained sworn statements from his witnesses, and that he planned
to disclose only those portions of the statements he believed were relevant.
The court explained the fallacy in Appellant’s plan. Appellant once again
claimed he wanted to meet with his own witnesses to verify whether the
information in his own investigator’s summaries of the witness interviews
was correct.
¶14 The State noted Appellant’s witnesses now refused to be
interviewed by the State until they talked to Appellant first. The court
found Appellant’s four adult witnesses had refused to cooperate. The court
ordered the parties to interview those witnesses within three weeks,
regardless of whether the witnesses talked to Appellant first, and
threatened their exclusion if the parties did not meet that deadline. When
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the court and parties discussed the possibility of telephonic interviews with
Appellant’s two minor witnesses, Appellant argued he had to be personally
present with the witnesses. The trial court reminded Appellant that the jail
would not permit minors in the facility for interviews and such limitations
were the reality of being in custody. When Cutrer suggested methods to
interview Appellant’s minor witnesses through videoconferencing,
Appellant said he would refuse to participate and again complained he had
a conflict with Cutrer. Appellant then claimed he had to be personally
present because he did not have an investigator. The court reminded
Appellant he did have an investigator at one time, and had requested
another investigator but then withdrew that request. The court asked
Appellant if he wanted another investigator and Appellant said no.
¶15 When the trial court then reminded Appellant he was going
to trial in two months, Appellant suddenly claimed he had more
unidentified “eyewitnesses” he needed to locate and interview. When the
court again asked Appellant if he wanted an investigator, Appellant
responded he did not know if he needed an investigator because the Office
of Public Defender Services had an investigator to assign to him as soon as
he let them know what he needed. Appellant offered no explanation for
why he had not used the services of the investigator to that point.
Regardless, this was in direct contradiction to Appellant’s claim moments
before that he had no investigator. Appellant then again complained about
Cutrer and argued they had a conflict. The court noted no one but
Appellant recognized any conflict. When the court asked Appellant if there
was some new conflict with Cutrer or if it was the same purported conflict,
Appellant refused to answer.
¶16 In an effort to aid the court, Cutrer explained that, despite
Appellant’s claims, Appellant had an investigator who conducted
interviews of Appellant’s earlier witnesses. Appellant responded that the
person Cutrer was referring to was not his investigator because he did not
ask for that specific investigator but wanted someone else. The court noted
Appellant did not object to the investigator. The court finally ordered the
State to interview Appellant’s minor witnesses through videoconferencing.
The court found Appellant’s refusal to participate in a videoconference
unreasonable and noted it is routine for investigators to interview witnesses
without lawyers present at all. In direct contradiction to his numerous
claims that he must be and wanted to be personally present for the
interviews of his witnesses, as well as his claims that he did not have, did
not want, or did not know whether he needed an investigator, Appellant
then claimed he had been trying to do the witness interviews through an
investigator all along. Further, despite just telling the court he did not have
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an investigator and did not know if he needed an investigator, Appellant
then claimed not only that he had a new investigator he wanted to use, but
had spoken to the new investigator “at length.” Appellant then claimed he
had “put it on hold until [he] could find out what was going on here in the
hearing.” Appellant did not explain what, exactly, it was he had to find out
that caused him to delay obtaining the investigator and moving forward
with his preparation for trial. Regardless, the court once again asked
Appellant if he wanted an investigator, and this time Appellant answered
he did.
¶17 By the time of the next pretrial management conference a
month later, the parties had failed to interview any of Appellant’s
witnesses, but through no fault of Appellant. When Cutrer informed the
court that Appellant no longer wished to participate in any interviews of
his witnesses, Appellant contradicted this and claimed he did want to
participate. Appellant also noted he had identified two new witnesses.
¶18 Appellant then argued he needed even more time to complete
his investigation. He claimed his investigator may have identified more
“eyewitnesses” and he needed at least another month to locate and
interview those witnesses. Appellant then claimed he needed experts on
forensic interviews and child psychology. For the first time in the
proceedings, Appellant also indicated he now wanted to interview some of
the State’s witnesses. When the court asked which specific witnesses
Appellant wanted to interview, Appellant identified one person but
refused to name any others “until I’m clear on the questions we’re going to
be asked [sic].” Whether the trial court or the State comprehended what
Appellant meant is not reflected in the record, and Appellant did not
elaborate further. Appellant then again claimed he had two additional
“very important” witnesses who were “possibly eyewitnesses” he might
identify once he was able to “get it clear” with his investigator. He did not,
however, explain what he had to “get clear.” Appellant also said he wanted
to interview the investigating police officers, but did not know which ones.
¶19 When Appellant was done, the trial court remarked, “this
could never end.” The State remarked it had no idea what Appellant was
talking about. Appellant again argued he could not be ready for trial.
When the court twice asked Appellant if he was moving for a continuance,
Appellant would not answer the court directly. He eventually claimed he
and the State had informally discussed a continuance. The court held
Appellant was making an oral motion to continue and granted the motion.
The court noted it would be the sixth continuance since the original trial
setting, something the court found “extraordinary” in its experience.
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¶20 By the next pretrial management conference, the State had not
yet interviewed Appellant’s witnesses due to a misunderstanding by a new
prosecutor. The State noted Jones had never provided any contact
information for any of his witnesses, so the State could not arrange
interviews anyway.5 Either ignoring or unaware of the disclosure
requirements of Arizona Rule of Criminal Procedure 15.2, Appellant
responded that nobody had told him to provide contact information for his
witnesses.
¶21 The trial court noted that, over the five months Appellant had
represented himself, the case had not moved forward, admittedly for
reasons that were not all related to Appellant. Appellant claimed the fact
he had done nothing more than obtain a few statements from his own
witnesses over that period constituted progress. The court disagreed and
stated, “This has been a disaster.” The court had never had a pro se
defendant who took so long to prepare for trial.
¶22 Appellant then argued the only reason he had not waived his
right to self-representation and proceeded with appointed counsel was that
he did not want Cutrer to represent him at trial. Appellant had taken the
same position in his previous case management memorandum to the court.
In the end, the trial court removed Cutrer as advisory counsel and
appointed new counsel to represent Appellant. Despite Appellant having
just told the court the only reason he had not waived his right to self-
representation was because he did not want Cutrer as his attorney,
Appellant told the court he wanted to continue to represent himself with
new advisory counsel “so I can finish doing what I’ve done here.” The court
declined to let Appellant continue to represent himself. The court stated,
“This has been a very unsuccessful experiment in terms of you representing
yourself.” The court noted Appellant had limitations due to his custody,
was at odds with an investigator he personally requested, had more than
one advisory counsel, the situation was “unproductive,” and the case was
going nowhere. The court believed the case would not move forward
unless Appellant was represented by counsel. Trial then started
approximately nine months after new counsel was appointed to represent
Appellant.
¶23 Even after the court appointed counsel, Appellant did little or
nothing to help move his case forward. When the State rested its case,
5 The State arranged the previously-cancelled interviews through
direct contact with the witnesses at the courthouse after a hearing the
witnesses attended.
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Appellant refused to tell his trial counsel whether he would testify. When
the court questioned Appellant about this, Appellant claimed he wanted to
testify, but it was not in his best interest because his counsel’s
representation was “illegitimate.” Appellant further stated, “I also reiterate
my standing objection to even holding this trial with the convictions are
serious in this case [sic]. I object to the state proceeding and the court
proceeding in this case when knowing such conflict [sic].” The court
responded, “I have no idea what you are talking about.” Appellant then
made the same claims he had made about every attorney who had
represented him. Appellant argued there was a conflict with his trial
counsel, and that his trial counsel had never spoken to him about the case
and knew nothing about the case. Appellant’s counsel explained that,
despite Appellant’s claims, she attempted to communicate with Appellant
but he refused to cooperate. Counsel asserted having had many telephone
conversations with Appellant, many of which ended with Appellant
“yelling” and “screaming” at her and hanging up. Other times, Appellant
refused to take the counsel’s calls. Appellant sometimes called his counsel’s
office and then refused to speak. Counsel further noted Appellant had
refused to meet with her or her investigator on several occasions. When
Appellant did meet with her, he would sometimes refuse to speak other
than to say he did not acknowledge her as his attorney. Appellant’s counsel
also noted it had become necessary to have another person present on those
occasions when Appellant would agree to meet with her. Finally,
Appellant’s counsel explained Appellant would not even speak to her in
the privacy of a courthouse conference room, and every time she asked
Appellant if he had any questions during trial, he would respond “I’m not
speaking to you, you’re not my attorney.”
B. The Merits
¶24 Appellant argues the trial court erred when it revoked his
waiver of counsel and appointed counsel to represent him for the
remainder of the proceedings. Appellant claims he followed the rules and
the court’s orders as best as he could under the circumstances and tried to
get ready for trial, but could not because he did not get any help from his
advisory counsel or the Office of Public Defender Services. He further
argues the trial court could not terminate his self-representation simply
because being in custody made it difficult for Appellant to represent
himself.
¶25 A defendant has a constitutional right to waive counsel and
represent himself or herself. State v. Moody, 192 Ariz. 505, 509, ¶ 22, 968
P.2d 578, 582 (1998). This right, however, does not exist in a vacuum. State
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v. De Nistor, 143 Ariz. 407, 412, 694 P.2d 237, 242 (1985). The right to self-
representation is balanced against “the government’s right to a ‘fair trial
conducted in a judicious, orderly fashion.’” Id. A self-represented
defendant still must comply with the rules of procedure, substantive law,
and courtroom protocol. State v. Gomez, 231 Ariz. 219, 222–223, ¶¶ 8, 15,
293 P.3d 495, 498–99 (2012); State v. Whalen, 192 Ariz. 103, 106, 961 P.2d 1051,
1054 (App. 1997). This includes compliance with deadlines and the rules of
disclosure. Gomez, 231 Ariz. at 223, ¶ 16, 961 P.2d at 499. A trial court may
revoke a defendant’s waiver of counsel and appoint counsel when the
defendant’s self-representation will “undermine the court’s authority and
ability to conduct the proceeding in an efficient and orderly manner.” Id.at 223–24, ¶ 16, 961 P.2d at 499–500. We review the decision to revoke a
waiver of counsel for abuse of discretion. Id. at 222, ¶ 8, 293 P.3d at 498.
¶26 The trial court did not abuse its discretion when it revoked
Appellant’s waiver of counsel and appointed counsel to represent him
throughout the remainder of the proceedings. Appellant’s actions and
inactions addressed above clearly indicate that, so long as he represented
himself, the proceedings would not move forward, let alone move forward
in an efficient, judicious, and orderly manner.
¶27 Appellant’s conduct while he was self-represented was
dilatory and did little or nothing to advance the proceedings and largely
hindered the advancement of the proceedings. Appellant refused to take
advantage of the availability of advisory counsel to help prepare for trial
and demonstrated a lack of candor when he repeatedly told the court that
all of his counsel, advisory and otherwise, would not communicate with, or
otherwise assist, him. He also refused to take full advantage of the
availability of investigators to assist him and repeatedly changed his story
regarding his use of investigators and whether he had, wanted, or needed
an investigator. Further, every time the court or anyone else made a valid
suggestion to Appellant about what he could do to proceed with his
investigation and trial preparation, Appellant either simply did nothing, or
came up with an excuse for why it was not satisfactory and refused to do it.
As a result, Appellant did virtually nothing to move forward with his
preparation. Even he conceded at trial that his total “progress” over the
course of nearly five months of self-representation was to do nothing more
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than obtain statements from some of his own six witnesses, none of whom
actually testified at trial.6
¶28 Further, the record establishes Appellant would always have
an excuse for why he needed more time. Whenever it became apparent the
court might not grant another continuance or might not otherwise give him
additional time to complete a task, Appellant would offer new excuses for
why he needed more time, such as the need to locate and interview more
new witnesses and obtain expert witnesses. Finally, Appellant contradicted
himself so frequently, apparently, and thoroughly within his explanations
and protestations to the trial court that the court had no reason to believe
Appellant would ever be ready for trial, let alone believe the case would
move forward in an efficient, judicious, and orderly manner. This is made
readily apparent by Appellant’s last act as a pro se litigant. As noted above,
Appellant eventually argued the only reason he had not waived his right to
self-representation was that he did not want advisory counsel Cutrer to
represent him at trial. The trial court granted Appellant’s wish, removed
Cutrer as advisory counsel, and appointed new counsel. In his next breath,
Appellant took a position opposite to that he had just espoused and claimed
he wanted to continue to represent himself. The trial court did not abuse
its discretion when it revoked Appellant’s waiver of counsel under these
circumstances.7
II. Admission of Victim HJ’s Prior Statements
¶29 Appellant argues the trial court erred when it admitted the
prior consistent statements of victim HJ through the testimony of another
witness. Appellant argues the testimony was inadmissible hearsay.
6 Trial counsel investigated all of Appellant’s proffered witnesses and
chose not to call them to testify for tactical reasons.
7 While these are not the identical reasons the trial court relied on to
make its ruling, we may affirm on any basis the record supports. State v.
Robinson, 153 Ariz. 191, 199, 735 P.2d 801, 809 (1987). This includes when a
trial court revokes a waiver of counsel and the record supports the
revocation for reasons the trial court did not rely on. State v. Doss, 116 Ariz.
156, 160, 568 P.2d 1054, 1058 (1977); State v. Martin, 102 Ariz. 142, 146, 426
P.2d 639, 643 (1967).
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A. Facts
¶30 HJ was twelve years old at the time of trial. During cross-
examination, Appellant asked HJ if she saw victim CJ frequently, if she
spoke to CJ on the phone frequently, and if her mother and CJ’s mother
talked to each other. HJ also admitted on cross-examination that she had
told her mother she did not want to go to Appellant’s home anymore
because he was boring, rather than because of inappropriate contact.
Appellant also got HJ to admit she did not tell her mother or CJ about any
of Appellant’s conduct. Finally, Appellant asked HJ if she had spoken to
prosecutors, law enforcement investigators, or medical providers at times
other than those to which she had admitted. The State noted HJ had a
difficult time testifying and was not always responsive. Appellant later
agreed “it was like pulling teeth.” The trial court also noted HJ was
“extremely hesitant. It was very laborious trying to get any testimony from
her.”
¶31 Following this cross-examination, the State sought to admit
HJ’s prior consistent statements through the testimony of the woman
(“SW”), to whom HJ first disclosed the incidents. The State argued in
relevant part that Appellant’s cross-examination of HJ implied HJ
fabricated the incidents and had colluded with others regarding her
testimony. Appellant objected, and argued HJ’s prior statements were
hearsay and that he had not implied HJ fabricated her testimony but had
simply asked questions relevant to disclosure.
¶32 The trial court held that, while Appellant may not have
intended to imply HJ was fabricating testimony, Appellant’s cross-
examination of HJ could have led the jurors to believe Appellant implied
HJ recently fabricated her story or that other people improperly influenced
her testimony. The court held HJ’s prior consistent statements were
admissible pursuant to the then recently-amended Arizona Rule of
Evidence 801(d)(1)(B). In a supplemental ruling, the court further
explained the manner in which HJ testified was a factor in its decision to
admit the evidence. The court explained it was “very difficult” for HJ to
answer any questions and “it took her about a minute each time a question
was asked to even answer. If not a minute several, several seconds. In other
words, extremely long pauses with every question and every answer and it
got to the point where after a[ ]while, [the S]tate asked to take a break
because clearly the victim was having a lot of difficulty testifying. So I
thought the record should be supplemented. That is what I observed.” SW
ultimately testified in relevant part that HJ disclosed incidents to her in
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which HJ claimed Appellant touched her vagina with his fingers and a
sexual device and digitally penetrated her while she was in a bathtub.
B. The Merits
¶33 We review a trial court’s evidentiary rulings for a clear abuse
of discretion. State v. Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d 1260, 1275
(1990). Rule 801(d)(1)(B) provides in relevant part that a declarant’s prior
statement is not hearsay if the declarant testifies and is subject to cross-
examination about the statement and the statement is consistent with the
declarant’s testimony. The rule further requires the statement be offered to
either (1) rebut an express or implied claim that the declarant recently
fabricated the statement or the testimony was a result of improper influence
or motive, or (2) to rehabilitate the declarant’s credibility after it has been
attacked on another ground. Ariz. R. Evid. 801(d)(1)(B).8
¶34 The trial court did not abuse its discretion when it admitted
HJ’s prior statements because the statements were not hearsay pursuant to
Rule 801(d)(1)(B). HJ testified at trial and was subject to cross-examination.
Her prior statements were consistent with her testimony. A reasonable
juror could find that Appellant’s cross-examination of HJ implied she and
CJ may have discussed HJ’s allegations or her future testimony, and HJ may
have been aware her mother and CJ’s mother may have discussed their
daughters’ allegations. A reasonable juror could also find Appellant’s
cross-examination of HJ implied she was not telling the truth because she
did not disclose the incidents to her mother and told her mother she did not
want to go to Appellant’s house because he was boring. Finally, a
reasonable juror could find Appellant’s cross-examination about HJ’s
contacts with other people about the incidents implied HJ met with
prosecutors, investigators, and medical providers more times than she
admitted. Therefore, the trial court could admit HJ’s prior consistent
statements as non-hearsay to rebut implied claims that HJ fabricated her
testimony and her testimony was the result of improper influence or
motive, and to rehabilitate HJ’s credibility after Appellant attacked it.
8 The declarant must also have made the prior consistent statement
before the motive to fabricate arose. State v. Jones, 187 Ariz. 290, 299, ¶ 14,
4 P.3d 345, 354 (2000). Appellant raises no issue regarding the timing of the
motive to fabricate.
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III. The Imposition of Consecutive Sentences
¶35 The trial court imposed a mix of concurrent and consecutive
sentences in which the five-year sentence for sexual abuse as charged in
count 8 would run consecutively to the seventeen-year sentence for
molestation of a child as charged in count 1. The twenty-year sentence for
sexual conduct with a minor as charged in count 7 would run consecutively
to the seventeen-year sentence for molestation of a child as alleged in count
4. Appellant argues the trial court erred when it ordered count 8 to run
consecutively to count 1 because the two counts were based on the “exact
same act at the exact same time against the exact same victim.” He further
argues the court erred when it ordered count 7 to run consecutively to count
4 because they also involved “the exact same conduct with the exact same
victim.”
¶36 “An act or omission which is made punishable in different
ways by different sections of the laws may be punished under both, but in
no event may sentences be other than concurrent.” A.R.S. § 13-116 (2010).
“We review de novo whether consecutive sentences are permissible under
§ 13-116.” State v. Siddle, 202 Ariz. 512, 517, ¶ 16, 47 P.3d 1150, 1155 (App.
2002). While Appellant raised no objections to his sentences with the trial
court, “[i]mposition of an illegal sentence constitutes fundamental error.”
State v. Thues, 203 Ariz. 339, 340, ¶ 4, 54 P.3d 368, 369 (App. 2002).
Therefore, we may reverse an illegal sentence even in the absence of an
objection. State v. Canion, 199 Ariz. 227, 230, ¶ 10, 16 P.3d 788, 791 (App.
2000).
¶37 We find no error. We need not address whether counts 1 and
8, or counts 4 and 7, were based on the same acts, however, because A.R.S.
§ 13-116 does not control where A.R.S. § 13-705(M) is dispositive. All four
of the offenses were dangerous crimes against children. A.R.S. § 13-705(M)
provides in relevant part that any sentence “for [a] dangerous crime against
children in the first or second degree shall be consecutive to any other
sentence imposed on the person at any time, including child molestation
and sexual abuse of the same victim.” A.R.S. § 13-705(M) (Supp. 2015).9
Our supreme court has held the more specific sentencing provisions of § 13-
705(M) govern over the general provisions of § 13-116 even when the
convictions arise from a single act. State v. Jones, 235 Ariz. 501, 502, ¶ 1, 334
9 The two exceptions—established within § 13-705(M) allowing a
crime involving child molestation pursuant to § 13-705(D) or sexual abuse
pursuant to § 13-705(F) to be served concurrently with other sentences if the
offense involved only one victim—do not apply here. A.R.S. § 13-705(M).
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STATE v. JONES
Decision of the Court
P.3d 191, 192 (2014). Therefore, the trial court was required to order the
sentence for count 8 to run consecutively to the sentence for count 1, and
the sentence for count 7 to run consecutively to the sentence for count 4.
IV. Amendment of the Indictment
¶38 As the final issue on appeal, Appellant argues the trial court
erred when it amended count 3 of the indictment to change the offense from
molestation of a child to sexual abuse.
A. Facts
¶39 Count 3 originally alleged Appellant committed molestation
of a child when he engaged in digital-vaginal contact with CJ “while
playing doctor.” See A.R.S. § 13-1410(A) (2010) (defining molestation of a
child). CJ testified, however, Appellant would feel her chest and stomach
when they played doctor. She never testified to any digital-vaginal contact
engaged in when they played doctor. Appellant’s cross-examination
regarding this count’s underlying factual allegations was limited to
whether Appellant put his hand under CJ’s clothing when they played
doctor.
¶40 When the State rested, Appellant moved for a judgment of
acquittal on count 3 and argued there was no evidence of digital-vaginal
contact. The State moved to amend count 3 to allege a wholly-new charge
of sexual abuse based on Appellant touching CJ’s breasts. See A.R.S. § 13-
1404(A) (Supp. 2015) (defining sexual abuse). The court amended the
indictment, over Appellant’s objection, finding it could amend the
indictment to conform to the evidence pursuant to Arizona Rule of
Criminal Procedure 13.5(b).
B. The Merits
¶41 Rule 13.5(b) provides “[t]he charging document shall be
deemed amended to conform to the evidence adduced at any court
proceeding.” Ariz. R. Crim. P. 13.5(b). The rule itself limits this, however,
“to correct mistakes of fact or remedy formal or technical defects.” Id.;
accord State v. Freeney, 223 Ariz. 110, 113, ¶ 18, 219 P.3d 1039, 1042 (2009);
accord State v. Johnson, 198 Ariz. 245, 247, ¶ 5, 8 P.3d 1159, 1161 (App. 2000).
Further, “A defect may be considered formal or technical when its
amendment does not operate to change the nature of the offense charged or
to prejudice the defendant in any way.” State v. Bruce, 125 Ariz. 421, 423,
610 P.2d 55, 57 (1980). When an amendment changes the elements of the
charged offense, the amendment changes the nature of the offense. Freeney,
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STATE v. JONES
Decision of the Court
223 Ariz. at 113, ¶ 17, 219 P.3d at 1042. Therefore, absent a defendant’s
consent, Freeney directs that a trial court may not amend an indictment
pursuant to Rule 13.5(b) if the indictment does not contain a mistake of fact
or a formal or technical defect, nor may a court amend an indictment if it
changes the nature of the charged offense. Id. at ¶ 20.
¶42 Count 3 contained no mistake of fact or formal or technical
defect. Count 3 simply alleged a charge that the State later failed to prove.
Any mistake or defect was in the State’s case, not count 3 of the indictment.
The amendment also changed the nature of the offense. Molestation of a
child and sexual abuse are separate and distinct crimes with different
elements, and sexual abuse is not an otherwise lesser included offense of
molestation of a child. State v. Cousin, 136 Ariz. 83, 86, 664 P.3d 233, 236
(App. 1983).
¶43 The State concedes error but argues the error was harmless.
See Freeney, 223 Ariz. at 114, ¶ 26, 219 P.3d at 1043 (noting a Rule 13.5(b)
violation may be harmless). The State, however, has not shown the error
was harmless under these circumstances. Appellant had no notice of the
amended charge or the conduct that constituted the basis of the amended
charge. He had no reason to develop any meaningful cross-examination of
CJ regarding her allegations of what occurred when she and Appellant
“played doctor” because the State did not charge Appellant for the conduct
CJ identified and CJ failed to provide any testimony to support count 3 as
originally charged. Appellant had every incentive to not probe further on
cross-examination and simply move the court to grant a judgment of
acquittal on count 3. For Appellant to do something otherwise on cross-
examination might result in the admission of evidence that would prove
count 3 as originally charged, whether through additional recollection by
CJ or giving the State the opportunity and incentive to try to admit the
missing evidence during redirect examination. Because the State has not
shown the error was harmless, we vacate Appellant’s conviction for count
3.
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STATE v. JONES
Decision of the Court
CONCLUSION
¶44 For the reasons stated above, we vacate Appellant’s
conviction and sentence for sexual abuse as charged in the amended count
3 of the indictment. We affirm the remainder of Appellant’s convictions
and sentences.
Amy M. Wood • Clerk of the court
FILED: AA
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