State v. McPherson ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
LANCE DALE MCPHERSON, Appellant.
No. 1 CA-CR 14-0551
FILED 7-23-2015
Appeal from the Superior Court in Maricopa County
No. CR2012-106912-001
The Honorable Peter C. Reinstein, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Ballecer & Segal, Phoenix
By Natalee Segal
Counsel for Appellant
Lance Dale McPherson
Appellant
STATE v. MCPHERSON
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maurice Portley delivered the decision of the Court, in
which Judge John C. Gemmill and Judge Michael J. Brown joined.
P O R T L E Y, Judge:
¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant
Lance Dale McPherson has advised us that after searching the entire record
she has been unable to discover any arguable questions of law, and has filed
a brief requesting us to conduct an Anders review of the record. McPherson
filed a supplemental brief.
FACTS1
¶2 McPherson moved into an apartment next door to L.R. and
her children in 2009. He subsequently started dating L.R., and eventually
moved in with her and her children. L.R. would leave her five children
with McPherson if she had to leave the house. And when her sister, J.V.,
needed, McPherson would also watch her three children.
¶3 McPherson, however, began to molest and engage in sexual
conduct with one of L.R.’s children, S.V., who was then eight years old. His
conduct continued for three years. He also molested and had sexual contact
with M.M., J.V.’s child, who was also eight at the time.
¶4 On February 1, 2012, M.M. told her sister that she and S.V.
had been molested by McPherson, and the sister told her mother. J.V. called
L.R., who was having a family dinner at a restaurant with McPherson, and
told her about the accusations. L.R. immediately took her children outside,
and S.V. confirmed the accusation. L.R. then took her children, left the
restaurant, and called the police.
1We view the facts “in the light most favorable to sustaining the verdict,
and resolve all reasonable inferences against the defendant.” State v.
Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997).
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STATE v. MCPHERSON
Decision of the Court
¶5 McPherson was arrested and subsequently indicted on six
counts of sexual conduct with a minor, class 2 felonies, two counts of
attempt to commit molestation of a child, class 3 felonies, and one count of
molestation of a child, a class 2 felony. The case went to trial, and the court
granted his motion for directed verdict on count six, one of the counts of
sexual conduct with a minor. After considering all the evidence, the jury
found McPherson not guilty of Count 8, an attempted molestation against
M.M, but guilty of attempted molestation against S.V. (count 1), five counts
of sexual conduct with a minor (counts 2, 3, 4 and 5 involving S.V., and 9
involving M.M), and one count of molestation of a child (count 7, involving
M.M.). McPherson was subsequently sentenced to prison as follows: life
in prison with the possibility of parole after 35 years for one count of sexual
conduct with a minor; 20 years for each of the four sexual conduct with a
minor counts; and 17 years for molestation of a minor; all consecutive to
each other. He was also ordered thereafter to serve lifetime probation for
attempted molestation of a minor.
¶6 We have jurisdiction over this appeal pursuant to Article 6,
Section 9, of the Arizona Constitution, and Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).2
DISCUSSION
¶7 McPherson raises two general issues on appeal. He first
argues that the trial court improperly dismissed certain jurors while
keeping other biased jurors. He also argues the court erred in denying his
motion for judgment of acquittal because the evidence was not sufficient to
support the verdict.3
2 We cite the current version of the applicable statutes absent changes
material to this decision.
3 McPherson also alleges “jury misconduct” and that “the state asked
leading questions while questioning the allege[d] victims,” without further
explanation. Because McPherson does not develop those arguments, refer
to the record, or cite any legal authority to support those arguments, he has
waived those issues. See State v. Moreno–Medrano, 218 Ariz. 349, 354,
¶¶ 16–17, 185 P.3d 135, 140 (App. 2008); see also Ariz. R. Crim. P.
31.13(c)(1)(vi) (argument shall contain “citations to the authorities, statutes
and parts of the record relied on”); State v. Bolton, 182 Ariz. 290, 298, 896
P.2d 830, 838 (1995) (issue waived when argument insufficient to permit
appellate review).
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STATE v. MCPHERSON
Decision of the Court
I. Dismissal and Retention of Trial Jurors
¶8 McPherson first asserts that the trial court improperly
dismissed juror 8, but did not dismiss two other jurors. We review a court’s
decision to dismiss jurors during trial for abuse of discretion. State v. Prince,
226 Ariz. 516, 528, ¶ 26, 250 P.3d 1145, 1157 (2011). We are mindful that trial
courts are required to excuse jurors “[w]hen there is reasonable ground to
believe that a juror cannot render a fair and impartial verdict.” Ariz. R.
Crim. P. 18.4(b). And the court retains broad discretion to “determine when
there is a reasonable ground to believe that a [juror] could not be fair and
impartial.” State v. Eddington, 226 Ariz. 72, 79, ¶ 17, 244 P.3d 76, 83 (App.
2010) (internal citation and quotation marks omitted).
¶9 Here, juror 8 had gone through the voir dire screening process
and was selected to serve on the jury. He, however, waited until the second
day of trial to tell the court that he and his son had convictions for driving
under the influence, and that his son was charged with a sexual offense
when he was twenty years old and, after an appeal, was ultimately
convicted of a misdemeanor offense. The court questioned him out of the
presence of the other jurors, and juror 8 indicated that he thought his son
was treated unfairly by the justice system in the sexual offense case. The
court then released juror 8 from further jury service. Based on our review
of the record, and given the nature of the allegations against McPherson,
the court did not abuse its discretion by dismissing him.
¶10 McPherson also asserts the court improperly refused to
dismiss juror 11, even after learning she was a co-worker of M.M.’s aunt.
During the third day of trial, M.M.’s aunt sat with the victims’ family in the
courtroom. Juror 11 noticed her co-worker and sent a note to the court. At
the end of the day recess, and out of the presence of the others, juror 11 told
the court that she was surprised to see a woman she worked with in the
audience in the courtroom. She was questioned by the court, and juror 11
thought she could be independent and fair as long as she did not have any
communication with her co-worker. After having juror 11 leave the
courtroom, the court questioned M.M.’s aunt. And based on her answers,
the court did not excuse juror 11.
¶11 Although the matter was resolved, later in the trial the State
noted that the “aunt ha[d] voluntarily excluded herself from the courtroom
since [the day she was questioned].” Consequently, based on the
information the court had — the juror’s surprise to see a co-worker, the
court’s questions and her answers, as well as the fact that M.M.’s aunt did
not attend the proceedings after the third day of trial, the court did not
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STATE v. MCPHERSON
Decision of the Court
abuse its discretion by keeping juror 11 on the jury. See State v. Hoskins, 199
Ariz. 127, 139, ¶ 37, 14 P.3d 997, 1009 (2000) (“In assessing a . . . juror’s
fairness and impartiality, the trial court has the best opportunity to observe
[the] jurors and thereby judge the credibility of each.”).
¶12 Similarly, McPherson argues that the trial court should have
dismissed juror 10, who worked as an overnight stocker, because he was
visibly tired during the trial. Juror 10 only revealed that he would be visibly
tired during the second day of trial, but he was not dismissed at that time.
Juror 10, however, was chosen as one of the alternates at the end of the trial,
and did not participate in the verdict. Because the juror did not participate
in the deliberations leading to the verdicts, the court did not abuse its
discretion by not removing him after the second day of trial.
II. Sufficiency of the Evidence
¶13 Finally, McPherson asserts that the court erred in denying his
motion for judgment of acquittal because there was insufficient evidence
for the jury to convict him. Specifically, McPherson identifies information
and testimony he considers to be inconsistent with what is in the police
reports, the testimony of each victim, and the lack of physical evidence. We
review the denial of a motion for judgment of acquittal de novo. State v.
Harm, 236 Ariz. 402, 406, ¶ 11, 340 P.3d 1110, 1114 (App. 2015). But, we
review the evidence “in the light most favorable to sustaining the verdict,
and resolve all reasonable inferences against the defendant.” Rienhardt, 190
Ariz. at 588-89, 951 P.2d at 463-64. As a result, a judgment of acquittal can
only be granted “if there is no substantial evidence to warrant a conviction.”
Ariz. R. Crim. P. 20(a). Substantial evidence is “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, 796 P.2d 866, 869 (1990) (internal citation and quotation marks
omitted); see State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995).
¶14 Here, the State was required to prove each element of each
offense beyond a reasonable doubt. McPherson, by counsel, was able to
cross-examine each witness, as well as give a closing argument
summarizing all the perceived problems with the State’s case. The jury, in
listening to the testimony and reviewing the evidence, had to determine the
credibility of the witnesses and weigh any conflicting testimony. In fact,
the jury was duly instructed to take into account the witnesses’ ability and
opportunity to observe, their memory, their manner while testifying, any
motive or prejudices they might have, and any inconsistent statement they
might have made in light of all the evidence in the case. We do not weigh
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STATE v. MCPHERSON
Decision of the Court
or re-weigh the evidence. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185,
1189 (1989), State v. Williams, 209 Ariz. 228, 231, ¶ 6, 99 P.3d 43, 46 (App.
2004) (“Although the record contains some conflicting evidence, it was for
the jury to weigh the evidence and determine the credibility of the
witnesses.”).
¶15 Although there were inconsistencies between the victims’
testimony, both victims testified that on multiple occasions McPherson
touched their respective private parts, which included digital penetration,
and made them touch his private parts. The jury had to determine whether
their testimony, individually or collectively, was compelling and
believable. See State v. Bronson, 204 Ariz. 321, 328, ¶ 34, 63 P.3d 1058, 1065
(App. 2003) (“Because a jury is free to credit or discredit testimony, we
cannot guess what they believed, nor can we determine what a reasonable
jury should have believed.”). In addition to the victims’ testimony, the jury
heard from the victims’ mothers, S.V.’s sister, the investigating police
officers, and Detective Sonia Stanley, who conducted a forensic interview
of the victims. Moreover, the jury also heard from McPherson, who
testified on his own behalf, as well as the testimony of Dr. Phillip Esplin, a
psychologist. The jury was able to watch all the witnesses, weigh the
testimony of all, and determine their credibility, while deciding what facts
the State did or did not prove beyond a reasonable doubt.
¶16 Moreover, although there was no physical evidence to
support the charges, physical evidence “is not required to sustain a
conviction where the totality of the circumstances demonstrates guilt
beyond a reasonable doubt.” State v. Canez, 202 Ariz. 133, 149, ¶ 42, 42 P.3d
564, 580 (2002); see State v. Jerousek, 121 Ariz. 420, 427, 590 P.2d 1366, 1373
(1979) (“In child molestation cases, the defendant can be convicted on the
uncorroborated testimony of the victim.”); see also State v. Williams, 111 Ariz.
175, 178, 526 P.2d 714, 717 (1974) (conviction may rest on uncorroborated
testimony of the victim of a sexual assault unless “the story is physically
impossible or so incredible that no reasonable person could believe it”). As
a result, and based on the record, there was substantial evidence for a
reasonable jury to find that the State met its burden of proof beyond a
reasonable doubt in order to convict McPherson. Consequently, the court
did not err by denying McPherson’s motion for judgment of acquittal.
III. Reversible Error Review
¶17 We have read and considered counsel’s brief and
McPherson’s supplemental brief, and have searched the entire record for
reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Having
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STATE v. MCPHERSON
Decision of the Court
addressed McPherson’s arguments, and having searched the entire record
for reversible error, we find none. All of the proceedings were conducted
in compliance with the Arizona Rules of Criminal Procedure. The record,
as presented, reveals that McPherson was represented by counsel at all
stages of the proceedings. There was an unsuccessful settlement
conference, and McPherson allowed the State’s last plea offer to expire.
Moreover, the court granted McPherson’s motion for directed verdict as to
count 6 and the jury acquitted him on count 8; both were sexual conduct
with a minor charges. And the sentences imposed were within the
statutory limits.
¶18 After this decision is filed, counsel’s obligation to represent
McPherson in this appeal has ended. Counsel must only inform McPherson
of the status of the appeal and his future options, unless counsel identifies
an issue appropriate for submission to the Arizona Supreme Court by
petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154,
156-57 (1984). McPherson may, if desired, file a motion for reconsideration
or petition for review pursuant to the Arizona Rules of Criminal Procedure.
CONCLUSION
¶19 Accordingly, we affirm McPherson’s convictions and
sentences.
:ama
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