State v. Moore ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ANTHONY EUGENE MOORE, Appellant.
No. 1 CA-CR 15-0589
FILED 1-5-2017
Appeal from the Superior Court in Maricopa County
No. CR2013-001962-001 DT
The Honorable Pamela S. Gates, Judge
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Carlos D. Carrion
Counsel for Appellant
STATE v. MOORE
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jon W. Thompson joined.
M c M U R D I E, Judge:
¶1 Anthony Eugene Moore appeals his convictions and
sentences for kidnapping, aggravated assault, burglary in the first degree,
and sexual assault, all dangerous offenses, arising from a sexual assault at
gunpoint.
FACTS AND PROCEDURAL BACKGROUND
¶2 The evidence at trial demonstrated that while the 20-year-old
victim was walking home at about 10 p.m. on a Sunday night in February
2009, a man came up from behind her, and forced her at gunpoint to walk
with him to the backyard of a vacant house and perform oral sex on him. 1
¶3 DNA on a swab taken from the outside of the victim’s mouth
the night of the incident was matched to Moore’s DNA three years after the
assault.
¶4 At trial, Moore acknowledged he and the victim went to the
backyard of a vacant house where she performed a sex act on him, but he
testified that the sex was consensual. He testified he had met the victim on
a chat line, and after exchanging calls for about a week, they arranged to
meet that night. Moore admitted he had three prior felony convictions.
¶5 The jury convicted Moore of kidnapping, aggravated assault,
burglary in the first degree, and sexual assault, and found that the offenses
involved the use of a deadly weapon. The court found the existence of one
historical dangerous prior felony conviction, and sentenced Moore to a total
of 20 years in prison, to be served consecutively to prison terms imposed in
four other cases.
1 We view the evidence on appeal in the light most favorable to
sustaining the convictions. State v. Boozer, 221 Ariz. 601, 601, ¶ 2 (App. 2009).
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DISCUSSION
A. Admission of Expert Testimony.
¶6 Moore argues that the court abused its discretion in admitting
the testimony of Melissa Brickhouse-Thomas as a “blind” or “cold” expert
on the behavior and memories of victims of sexual violence, because the
testimony failed to meet the standards in Arizona Rule of Evidence 702.
¶7 Rule 702 provides that a witness “qualified as an expert by
knowledge, skill, experience, training, or education” may testify as to her
opinion if: “a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue; b) the testimony is based on sufficient facts or
data; c) the testimony is the product of reliable principles and methods; and
d) the expert has reliably applied the principles and methods to the facts of
the case.” Ariz. R. Evid. 702. Our supreme court has held that subsection
(d) is not applicable in evaluating the admissibility of the testimony of a
cold expert. State v. Salazar-Mercado, 234 Ariz. 590, 593, ¶ 11 (2014). We
review a “trial court’s ruling on the admissibility of expert testimony for an
abuse of discretion, viewing the evidence in the light most favorable to its
proponent, maximizing its probative value and minimizing its prejudicial
effect.” State v. Ortiz, 238 Ariz. 329, 333, ¶ 5 (App. 2015) (citations and
internal punctuation omitted).
¶8 Brickhouse-Thomas testified at a Rule 702 hearing that she
had a master’s degree in social work, was a licensed clinical social worker,
and had worked 18 years as a social worker, including 10 years as an
emergency-room social worker at St. Joseph’s Hospital. She also worked
on the crisis intervention response team of the Phoenix Police Department
and in a residential treatment center with adolescent girls with histories of
sexual violence. At the time of trial, she had worked nearly nine years at
the Glendale Police Department, where she was a supervisor of the Victim
Assistan[ce] Unit. She based her opinions on her training and education, as
well as her experience treating approximately 250–300 victims of sexual
violence over the course of her career.
¶9 Brickhouse-Thomas told the court that she anticipated she
would testify “about victim behavior in the context of sexual violence. More
specifically, why a victim may or may not react in the way somebody would
expect them to react after an act of sexual violence . . . and the impact of
trauma . . . on memory and how traumatic memories are different from
everyday memories.”
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¶10 The court found that “this witness’ specialized knowledge
will assist the trier of fact in understanding the evidence or to determine a
fact in issue specifically to understand the general behavioral patterns of
victims to help them understand the evidence and the reactions, including
but not limited to delayed reporting or inconsistent reporting.” The court
further found that “her testimony is based on sufficient facts, training and
experience, that the testimony is a product of sufficiently reliable methods,
and so the Court does find, pursuant to Rule 702, and consistent with
Salazar . . . this testimony is admissible.” The court, however, found that the
expert did not have sufficient education or training to opine about the
neurobiological aspects of processing and storing memories in the brain.
¶11 Moore argues first that the court abused its discretion in
finding that the expert testimony would “assist the trier of fact to
understand the evidence or to determine a fact in issue” under Rule 702(a)
because (1) the expert’s opinions about victim behavior were so broad and
vague to be of no help to the jury; (2) the prospective jurors’ responses
during voir dire demonstrated that they needed no help in evaluating the
victim’s conduct, because “no jurors held any belief that a real victim had
to recall things perfectly, or in the exact same manner each time, or had to
fight her attacker”; and (3) the expert’s opinions were irrelevant because
they were based on observations of supposed victims whom the expert
could not say with certainty were in fact telling the truth.
¶12 The court acted well within its discretion in finding that the
expert’s testimony was relevant and would be of help to the jury. “When
the facts of the case raise questions of credibility or accuracy that might not
be explained by experiences common to jurors—like the reactions of child
victims of sexual abuse—expert testimony on the general behavioral
characteristics of such victims should be admitted.” State v. Lujan, 192 Ariz.
448, 452, ¶ 12 (1998). This was such a case, even though the victim was 20
years old at the time of the assault. The victim acknowledged at trial that
she did not scream or try to flee; did not call police afterward, but instead
called her boyfriend, with whom she had just had a fight; told inconsistent
stories about what had happened; gave multiple descriptions of the person
who assaulted her; and failed to cooperate with police requests for
follow-up interviews. The expert’s testimony was helpful to understand the
victim’s reactions to and after the assault, and to evaluate her credibility,
and was not so “broad and vague” as to be of no help. The expert testified
that victims of sexual assault may freeze from fear instead of scream and
run; recall the experience in a snapshot or fragmented way; disclose the
incident in different ways at different times; delay reporting or fail to
cooperate with police because of fear, shame, or embarrassment; blame
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Decision of the Court
themselves for choices they made that might have contributed to what
happened to them; and experience secondary consequences such as anxiety
or depression. The expert’s caveat that “[a]ll victims do not behave the same
way” did not rob the opinion of helpfulness; rather, it simply offered
evidence that some expected reactions might be true of one victim but not
another. See Salazar–Mercado, 234 Ariz. at 594, ¶ 15 (“cold expert” testimony
satisfied Rule 702(a) because it “might have helped the jury to understand
possible reasons for the delayed and inconsistent reporting” by sexual
abuse victims).
¶13 Nor did the court abuse its discretion in finding that the
expert testimony would be helpful notwithstanding the jurors’ responses
during voir dire and the expert’s testimony that she could not be certain that
the persons she treated were telling the truth. The questions during voir dire
were designed to determine biases that would impair the jurors’ ability to
be fair, see Ariz. R. Crim. P. 18.5(d) and (e), not to determine whether expert
testimony on how a victim of sexual assault might react would be helpful
to the jurors, and the court acted well within its discretion in finding the
expert testimony would be helpful to the jury despite prospective jurors’
responses during voir dire. Finally, the expert’s opinions were not irrelevant
simply because she could not say with certainty that the victims she treated
were “being 100 percent truthful.” As the court appropriately found,
whether the expert could verify that the victims she treated were telling the
truth was an appropriate topic for cross-examination and not a bar to
admissibility. See State v. Delgado, 232 Ariz. 182, 187, ¶ 15 (App. 2013)
(whether an expert’s patients have accurately reported the cause of their
injuries goes to the weight of the expert’s testimony, not its admissibility).
¶14 The court also did not abuse its discretion in finding that this
expert’s opinions were “based on sufficient facts or data” under Rule 702(b)
and were “the product of reliable principles and methods” under Rule
702(c). The expert’s master’s degree in social work, her continuing
education and training, and her experience of more than 18 years treating
victims were more than sufficient to allow the court to find that her
opinions were reliable and based on sufficient facts and data.
¶15 Moore argues that this expert had never undertaken clinical
or behavioral research, nor read “the original literature in her field,” and
thus was barred from testifying under Rule 702(b) and (c). Even assuming
arguendo that these assertions are correct, these ostensible deficits would not
necessarily bar her testimony. Rule 702 does not disallow the testimony of
experts who are not scientists, and a court has broad latitude in determining
which factors are reasonable measures of reliability in a particular case.
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Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 153 (1999); see also Ariz. R.
Evid. 702 cmt. to 2012 amend. (amendment not intended to “preclude the
testimony of experience-based experts”). Because “the social stigma
attached to rape may preclude ideal experimental conditions and controls,”
courts may allow expert testimony on conduct of sexual assault victims
based on the experts’ professional experience, education, training, and
observations. See United States v. Simmons, 470 F.3d 1115, 1123 (5th Cir.
2006); United States v. Bighead, 128 F.3d 1329, 1330 (9th Cir. 1997) (rejecting
the argument that a child-sex-abuse expert was unreliable because the court
had not determined whether the expert’s “theories could be tested, were
subject to peer review and publication, had the potential for error, and were
generally accepted in the field.”).
¶16 Moore also claims the expert’s specialized knowledge was not
based on sufficient facts or data because it was based in part on information
and “best practice recommendations” from professional organizations,
which constituted hearsay. It is permissible, however, for a testifying expert
to rely on the facts, data, or opinions supplied by others if this “is the kind
of material on which experts in the field base their opinions.” State v.
Lundstrom, 161 Ariz. 141, 147 (1989) (citation omitted). Brickhouse-Thomas
testified that it was standard practice in her field to rely on the information
and “best practice recommendations” from professional organizations. The
record further fails to show that this expert was impermissibly acting
simply as a conduit for the opinions of the experts who prepared this
training material. See Lundstrom, 161 Ariz. at 148. Rather, she testified that
her opinions were based not only on her training, but also her education
and her experience treating victims.
¶17 Finally, the court did not abuse its discretion in finding that
the expert’s testimony was not cumulative to the “very limited” testimony
offered by the investigating detective on victim behavior, and in failing to
find that the relevance of the testimony was substantially outweighed by
any unfair prejudice. See Ariz. R. Evid. 403. “Deciding whether expert
testimony will aid the jury and balancing the usefulness of expert testimony
against the danger of unfair prejudice are generally fact-bound inquiries
uniquely within the competence of the trial court.” State v. Moran, 151 Ariz.
378, 381 (1986). The record supports the court’s ruling, and provides no
basis to find an abuse of discretion on this ground.
¶18 Moreover, the court instructed the jury that “[e]xpert opinion
testimony should be judged just as any other testimony,” and the jurors
“should give it as much credibility and weight as you think it deserves
considering the witness’s qualifications and experience, the reasons given
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STATE v. MOORE
Decision of the Court
for the opinions and all the other evidence in the case.” The jury is
presumed to have followed this instruction. State v. Newell, 212 Ariz. 389,
403, ¶ 68 (2006). For all of these reasons, the court did not err in allowing
Brickhouse-Thomas to offer her expert opinions at trial.
B. Opinions on Percentage of Victims Who Made False
Allegations.
¶19 Moore argues that the state improperly introduced testimony
from its expert and investigating detective on the percentage of purported
victims who fabricate allegations. Additionally, Moore argues that the
prosecutor improperly argued the percentage-based testimony during
closing arguments. Because Moore did not object at trial, we review for
fundamental error only. See State v. Henderson, 210 Ariz. 561, 568, ¶ 22
(2005). On fundamental error review, a defendant has the burden of
proving that an error occurred, that the error was fundamental in nature,
and that the defendant was prejudiced thereby. Henderson, 210 Ariz. at 567,
¶ 20. However, “if an error is invited, we do not consider whether the
alleged error is fundamental,” and we will not find reversible error. State v.
Logan, 200 Ariz. 564, 565–66, ¶ 9 (2001).
¶20 On cross–examination, Detective Jansen testified that she
could sometimes tell when a purported victim was lying, and described
some behavioral cues that alerted her to lies. On re-direct, without
objection, the detective testified that the “majority of the false allegations
were from teenage girls.” Over foundation and speculation objections, the
detective was permitted to respond to the prosecutor’s question: “And
based upon those investigations, how many, out of the 500 to 550 that you
investigated, were you able to say you could verify were false allegations?”
The detective responded, “Your Honor, I don’t know that I can give a
precise number on it. But I would have to say that’s a very small amount –
anywhere under ten – of those cases.”2
¶21 On cross-examination, Brickhouse-Thomas testified that she
did not directly ask the victims if they were lying, but did factor whether
they were telling the truth into her treatment. The expert testified in
response to defense counsel’s question, “[s]o . . . you are unaware of the
actual number of people that you dealt with who are actual victims as
opposed to people who are false accusers?”: “Correct. I have never counted
them.” On re-direct, over Moore’s objection on foundation and speculation
2 The court struck the portion of the detective’s answer following the
word “cases,” specifically, “where I was able to say that they were false.”
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Decision of the Court
grounds, Brickhouse-Thomas testified that in her training and experience,
sexual assault is under reported. A juror then posed the follow-up question:
“In your experience, how many victims have you worked with who have
eventually been discovered as false accusers?” Defense counsel had no
objection with the proviso, “[a]s long as she has sufficient knowledge.”
Brickhouse-Thomas responded: “Again, that’s difficult because I don’t
always track that. But based on my experience over, you know, the 18 years,
maybe 3 percent, 5 percent, that I become aware of . . . I’m comfortable
saying a very low percentage, 3 to maybe 5 percent.”
¶22 We find the challenged testimony from both the detective and
Brickhouse-Thomas to be invited error. During direct examination, neither
witness was asked about false reporting or the veracity of an average
victims’ claims. But on cross-examination, Moore asked both witnesses
about false accusers in relation to the total number of cases they had
previously handled. Moore asked Brickhouse-Thomas specifically if she
knew “the actual number of people” who were false accusers. On cross-
examination Detective Jansen was asked if any of the 500 to 550 cases she
had investigated involved false allegations. Moore argues he never directly
asked the witnesses to quantify the false allegations, but based on his line
of questioning the percentage-based questions asked on redirect naturally
flowed from Moore's cross-examination. The cross-examination of
Brickhouse-Thomas even prompted the jury to ask a quantifying question,
to which Moore did not object, about false accusers. Accordingly, we find
the source of the percentage-based testimony to be the Defendant, and
therefore invited error. See Logan, 200 Ariz. at 633, ¶ 11 (“The purpose of the
[invited error] doctrine is to prevent a party from injecting error in the
record and then profiting from it on appeal.”) (quotation omitted).
¶23 However, the statements made by the prosecutor in closing
argument related to both the expert and the detective’s testimony about the
percentage of cases in which they discovered that a victim had made a false
accusation were a violation of the principle set forth in State v. Lindsey, 149
Ariz. 472 (1986). It has long been settled that an expert is precluded from
offering opinions “with respect to the accuracy, reliability or truthfulness
of witnesses of the type under consideration,“ see Lindsey, 149 Ariz. at 475,
or quantifying “the percentage of victims who are truthful in their initial
reports despite subsequent recantation.” Moran, 151 Ariz. at 382. The
prosecution’s arguments that “[f]alse allegations of rape are rare,” and “Ms.
Thomas told you that it is about three to five percent, and . . . right in line
with Detective Jansen’s testimony . . . [that it is] almost two percent”
inappropriately drew the conclusion for the jurors that the current witness,
the victim, was telling the truth based on the reliability of past victims.
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Because Moore did not object to the prosecution’s inappropriate argument,
we review only for fundamental error. Id.
¶24 Moore has failed to meet his burden to show that the error
was both fundamental and prejudicial. Error is fundamental when it goes
to the foundation of the defendant’s case, takes from him a right essential
to his defense, and is error of such magnitude that he could not possibly
have received a fair trial. Henderson, 210 Ariz. at 567, ¶ 19. To prove
prejudice, a defendant must show that a reasonable jury could have reached
a different result absent the error. Henderson, 210 Ariz. at 569, ¶ 27. Moore’s
defense was that the sexual encounter with the victim was consensual, as
the two had met on a sex-chat line. Moore argued that his consensual theory
was bolstered by the alleged victim’s behavior after the assault, her failure
to fight back or scream, her inconsistent descriptions of her assailant and
the assault, and the absence of physical injuries or other evidence consistent
with an assault. Moore’s defense was severely hampered by the fact that he
denied meeting the victim when first asked about the attack, and the
evidence surrounding the alleged encounter evidenced an assault. The
statements in closing argument by the prosecutor that the detective and
expert had discovered or verified that very few of the victims they had
encountered had made false allegations did not go to the foundation of
Moore’s case, take from him a right essential to his defense, or constitute
error of such magnitude that he could not possibly have received a fair trial.
Nor has Moore shown that a reasonable jury could have reached a different
result absent the error, as necessary to show prejudice. Moore has
accordingly failed to meet his burden on fundamental error review.
C. Right to a Speedy Trial.
¶25 Moore argues that the state violated his Sixth Amendment
right to a speedy trial because 11 months passed between his indictment
and his arraignment, and he was prejudiced because he was unable to
locate two witnesses who saw him and the victim together at their
apartment that night, known to him only as Jason and Blanca.
¶26 Moore was incarcerated on other charges during the 11
months between his indictment and arraignment. Six months after his
arraignment, Moore filed a Motion to Dismiss for Post-Indictment Delay,
arguing that the delay was caused by the state’s negligence, and he had
suffered prejudice because in that one year several witnesses have
disappeared. He told the court that the witnesses about whom he was
speaking were not alibi witnesses, but were “with both Mr. Moore and the
alleged victim prior to the incident.”
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¶27 The court denied the motion without prejudice on the ground
it was premature, noting, however, that “if you have something more
substantial by way of actual prejudice and efforts of locating the witnesses
. . . then maybe we will have something a bit more solid to go on, but at this
point in time the Motion to Dismiss is denied.” Moore did not raise the issue
again.
¶28 “We review issues of constitutional law de novo, and related
factual determinations for abuse of discretion.” State v. Parker, 231 Ariz. 391,
398, ¶ 8 (2013). The Sixth Amendment right to a speedy trial does not
“provide a specific time limit within which trial must be held." State v.
Henry, 176 Ariz. 569, 578–79 (1993). In evaluating such claims, we weigh (1)
the length of the delay; (2) reasons for the delay; (3) defendant’s assertion
of the right; and (4) the resulting prejudice. Parker, 231 Ariz. at 398, ¶ 9
(citing Barker v. Wingo, 407 U.S. 514, 530–33 (1972)). In weighing these
factors, prejudice to a defendant is the most significant factor. Parker, 231
Ariz. at 399, ¶ 16.
¶29 As the pre-trial delay approaches one year, the delay is
considered “presumptively prejudicial,” that is, unreasonable enough to
trigger a speedy trial analysis. See Doggett v. United States, 505 U.S. 647, 652
n.1 (1992). “If the accused makes this showing, the court must then
consider, as one factor among several, the extent to which the delay
stretches beyond the bare minimum needed to trigger judicial examination
of the claim.” See Doggett, 505 U.S. at 652.
¶30 As an initial matter, the Sixth Amendment right to a speedy
trial does not attach until a defendant is accused, in this case when Moore
was indicted. See United States v. Marion, 404 U.S. 307, 313 (1971); State v.
Williams, 183 Ariz. 368, 379 (1995). “Thus, in terms of the Sixth Amendment,
the pre-indictment delay is of no consequence.” Williams, 183 Ariz. at 379.
Moore’s reference to the crime having occurred “four years before the
indictment and five years before [he] was actually served” accordingly is to
no avail; the only relevant period is the 11-month delay between indictment
and arraignment. See id.
¶31 The record fails to show that the 11-month delay in arraigning
Moore violated his right to a speedy trial. The 11-month delay in this case
arguably was sufficient to trigger the Barker analysis. See Doggett, 505 U.S.
at 652 n.1. The length of the delay, however, barely met the minimum
needed to trigger the analysis, and thus the first factor—the length of the
delay—does not weigh in favor of Moore. See Doggett, 505 U.S. at 652. The
second factor ― a determination of who was responsible for the delay ―
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weighs against the state, although not heavily, because the record shows
that the state negligently, but not intentionally, caused the delay. See Barker,
407 U.S. at 531 (a deliberate attempt to delay trial in order to hamper
defense weighs heavily against the state; negligence weighs less heavily
against the state). The third factor ― defendant’s assertion of his right ―
weighs against Moore. He first failed to assert his speedy trial rights until
six months after he was arraigned, several months after he successfully
moved to have the case designated as complex, and only a few months
before the date he had requested trial be set. He then failed to heed the
court’s invitation to refile his speedy trial motion with more support for his
claim of prejudice.
¶32 The final and most important factor ― prejudice from the
delay ― also does not weigh in favor of Moore. Moore argues that the
“courts have found that prejudice should be presumed when the state has
caused the delay.” The length of the state-caused delay in this case,
however, was not so long as to obviate the need for a showing of actual
prejudice. See Doggett, 505 U.S. at 657 (“[O]ur toleration of such negligence
varies inversely with its protractedness”; holding that a delay of 8.5 years
between indictment and arrest obviated need to prove actual prejudice);
Parker, 231 Ariz. at 399, ¶¶ 17–18 (rejecting claim that appellant did not need
to show prejudice from four-year delay).
¶33 Moore also argues that the delay in arraigning him on the
charges actually prejudiced him because during this time he lost his
memory of, and opportunity to locate, two witnesses ― apartment dwellers
whom he knew only as Jason and Blanca ― who could have testified they
met him and the victim earlier that night in February 2009. Moore’s claim
of actual prejudice fails because it is purely speculative. He has not shown
that, absent the delay between April 2013 and March 2014, he would have
been able to locate these witnesses, whom he knew by first name only, and
that they could have testified about meeting the victim with Moore that
night in February 2009. See United States v. Loud Hawk, 474 U.S. 302, 315
(1986) (“That possibility of prejudice is not sufficient to support
respondents’ position that their speedy trial rights were violated.”)
¶34 Weighing all of these factors, Moore’s claim of a Sixth
Amendment speedy trial violation fails.
D. Absence of Aggravator on Count 3.
¶35 Finally, Moore asks this court to correct the minute entry that
incorrectly shows the jury found harm to the victim as an aggravating
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circumstance on Count 3. This court may correct a clerical error when the
record is clear. State v. Ovante, 231 Ariz. 180, 188, ¶¶ 38–39 (2013). As the
state concedes, the record is clear that the jury did not find harm to the
victim as an aggravating circumstance on Count 3. The minute entry dated
May 13, 2015, incorrectly shows that the jury found that the offense in
Count 3 caused physical, emotional, or financial harm to the victim. We
accordingly order the minute entry corrected to delete this sentence. See
Ovante, 231 Ariz. at 188, ¶¶ 38–39.
CONCLUSION
¶36 For the foregoing reasons we affirm Moore’s convictions and
sentences, but correct the minute entry dated May 13, 2015, to reflect that
the jury did not find the offense in Count 3 caused physical, emotional, or
financial harm to the victim.
AMY M. WOOD • Clerk of the Court
FILED: AA
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