State v. Orrico ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
AARON FRANK ORRICO, Appellant.
No. 1 CA-CR 20-0320
FILED 12-29-2020
Appeal from the Superior Court in Yavapai County
No. V1300CR201680623
The Honorable Michael R. Bluff, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
Law Office of Gonzales & Poirier, P.L.L.C., Flagstaff
By Tony Gonzales
Counsel for Appellant
STATE v. ORRICO
Decision of the Court
MEMORANDUM DECISION
Judge David B. Gass delivered the decision of the Court, in which Presiding
Judge Jennifer M. Perkins and Judge Michael J. Brown joined.
G A S S, Judge:
¶1 Aaron Frank Orrico filed this appeal in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297(1969). Orrico’s counsel searched the record and identified no arguable,
non-frivolous question of law. Counsel, therefore, asks this court to review
the record for fundamental error. Orrico was given an opportunity to file a
supplemental brief in propria persona. He has not done so. Finding no error
in the record, we affirm Orrico’s convictions and sentences.
FACTUAL AND PROCEDURAL HISTORY
¶2 This court views the facts in the light most favorable to
sustaining the jury’s verdict and resolves all reasonable inferences against
Orrico. See State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
¶3 M.N. and her mother were vacationing in Sedona and
scheduled massages. Orrico was M.N.’s massage therapist. Orrico began
with a foot massage and proceeded to a body massage. After M.N. moved
from lying face down to lying on her back, Orrico began massaging under
the loose draping covering her, touching her abdomen and in between her
breasts. Orrico then moved to M.N.’s pubic area, putting his fingers in her
vulva and touching her clitoris. M.N. never consented to Orrico touching
her vulva or clitoris. M.N. left the massage and waited in the lobby for her
mother to return. M.N. began to cry when she saw her mother. M.N. and
her mother reported Orrico’s conduct to the spa’s owner and manager, and
Sedona police.
¶4 S.Y. also had a massage from Orrico. Orrico had previously
given S.Y. a massage without incident. On this occasion, however, Orrico
proceeded to massage around her breasts. He then moved to her pubic area
and inserted his fingers inside her, touching her labia and clitoris. She
physically reacted. After he tried to touch her vagina two more times, she
realized his actions were intentional. After the massage, S.Y. also reported
Orrico’s conduct to the spa owner and Sedona police.
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STATE v. ORRICO
Decision of the Court
¶5 Orrico again repeated this conduct when he was massaging
P.W., touching around her breasts and inserting his fingers in her vagina.
When Orrico asked if she wanted to orgasm, P.W. left the massage. That
night, Orrico sent P.W. a text message saying he hoped she enjoyed the
massage. After speaking to police, who asked if P.W. would be willing to
respond to gather more evidence from Orrico, P.W. sent a message saying
the massage was “amazing” and next time he could make her orgasm.
Orrico responded “[t]hat would be awesome,” and made other sexual
comments.
¶6 Police asked to speak with Orrico. Orrico came to a police
station to talk with an officer. The officer and Orrico discussed the
allegations from M.N., S.Y., and P.W. During the interview, Orrico
confirmed he gave M.N., S.Y., and P.W. adductor and abdominal massages
while they were naked—what Orrico called “the full nine yards” because
of their proximity to the pubic area—without the women requesting it.
Soon after, a grand jury indicted Orrico on three counts of sexual assault,
all class two felonies.
¶7 The superior court held a voluntariness hearing, at the
conclusion of which the court found statements Orrico made to police were
voluntary and admissible in the State’s case-in-chief. After a five-day trial,
the jury convicted Orrico of all three counts. The jury also found, as
aggravating circumstances, the State proved Orrico was in a position of
trust and the victims suffered emotional harm.
¶8 The superior court sentenced Orrico to consecutive, slightly
aggravated 8-year terms of imprisonment for each count, with credit for 81
days served towards count 1. It also ordered community supervision after
Orrico’s term of imprisonment, various statutory fines and assessments,
and registration as a sex offender.
¶9 Orrico timely appealed. This court has jurisdiction under
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 13-4031, and
-4033.A.1.
ANALYSIS
¶10 This court has read and considered counsel’s brief and fully
reviewed the record for reversible error, finding none. See Leon, 104 Ariz. at
300; State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011).
¶11 All the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. The record shows Orrico was present
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STATE v. ORRICO
Decision of the Court
for, and represented by counsel at, all critical stages of the proceedings,
though he appeared late for the voluntariness hearing. See State v. Bohn, 116
Ariz. 500, 503 (1977); State v. Conner, 163 Ariz. 97, 104 (1990). The jury was
properly comprised of twelve jurors and two alternates. See A.R.S. § 21-
102.A. The record shows no evidence of jury misconduct. The superior
court properly instructed the jury on the elements of the charged offenses,
the State’s burden of proof, and Orrico’s presumed innocence.
Additionally, Orrico was given an opportunity to speak at sentencing, and
the sentences imposed are within statutory guidelines. See Ariz. R. Crim. P.
26.9, 26.10(b)(1); A.R.S. § 13-1406.B (presumptive sentence of seven years,
maximum sentence of fourteen years, for first-time offender), .C (requiring
sentences for sexual assault to run consecutively).
CONCLUSION
¶12 Orrico’s convictions and sentences are affirmed.
¶13 Defense counsel’s obligations pertaining to Orrico’s
representation in this appeal have ended. Defense counsel need do no more
than inform Orrico of the outcome of this appeal and his future options,
unless, upon review, counsel finds an issue appropriate for submission to
our supreme court by petition for review. See State v. Shattuck, 140 Ariz. 582,
584–85 (1984).
¶14 Orrico has thirty days from the date of this decision to
proceed, if he wishes, with an in propia persona petition for review. See Ariz.
R. Crim. P. 31.21. This court, on its own motion, also grants Orrico thirty
days from the date of this decision to file an in propia persona motion for
reconsideration. See Ariz. R. Crim. P. 31.20.
AMY M. WOOD • Clerk of the Court
FILED: HB
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