                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                    JEFF ALAN LOCKWOOD, Appellant.

                             No. 1 CA-CR 13-0220
                              FILED 5-8-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2009-007924-001
                 The Honorable Joseph C. Welty, Judge

                                  AFFIRMED


Arizona Attorney General’s Office, Phoenix
By David Simpson
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Margaret M. Green
Counsel for Appellant



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Chief Judge Diane M. Johnsen
joined.
                          STATE v. LOCKWOOD
                           Decision of the Court

J O N E S, Judge:

¶1             Defendant Jeff Lockwood appeals his convictions for felony
murder and sexual assault. On appeal, Lockwood argues the trial court
erred by denying his Arizona Rule of Criminal Procedure 20 motion for
judgment of acquittal on both counts. For the following reasons, we
affirm the trial court’s ruling, the judgment of conviction and the resulting
sentences.

                 FACTS AND PROCEDURAL HISTORY

¶2             We review the evidence in the light most favorable to
sustaining the convictions and resolve all inferences against Lockwood.
State v. Stroud, 209 Ariz. 410, 412, ¶ 6, 103 P.3d 912, 914 (2005). On October
21, 1994, the deceased victim, E.H., was discovered in one of Papago
Park’s ramada structures. 1 E.H. appeared to have been bludgeoned to
death. E.H. was lying face down, and a large pool of blood had collected
by his head. A large, irregularly shaped rock was found a short distance
from E.H., within the blood pool. E.H.’s buttocks were exposed, as his
pants were pulled down to the back of his thighs. Fecal matter and blood
were present on E.H.’s buttocks and legs, and blood was on his back.
There also appeared to be semen on E.H.’s right buttock.

¶3            Police officers took photographs of the scene and
impounded various items, including a blood-stained pillow situated next
to E.H.’s body, the large rock located near E.H.’s head, a pair of jeans
found under E.H.’s body, and other assorted items of clothing positioned
near E.H. Officers also impounded a blood-stained blanket found
hanging over the rim of a nearby trash can; later testing revealed there
were two separate semen stains on the blanket. Further, officers took
fingerprints from various surfaces and items within the ramada; none of
the fingerprints taken matched Lockwood.

¶4             An autopsy revealed E.H. sustained multiple injuries to his
scalp and face; these injuries included, amongst others, “four distinct areas
of soft tissue lacerations and abrasions,” as well as communicating skull
fractures, fractured nasal bones, and a fractured jaw bone. The medical
examiner opined that the injuries, as well as the object responsible for the


1 E.H. was homeless. Testimony at trial established that he “lived” in this
particular ramada, meaning he took refuge in it at night and would vacate
it during the hours in which Papago Park was open to the public.



                                      2
                          STATE v. LOCKWOOD
                           Decision of the Court

injuries, were irregular and the injuries appeared to be the result of
multiple blows to E.H.’s head.

¶5            E.H. also suffered injuries to his rectum and anus.
Specifically, he sustained several mucosal tears surrounding the anal
opening, as well as a one-inch internal tear of the rectal mucosa “with
dark discoloration of the mucosa surrounding the tear.” The internal
injury resulted in a “perirectal hemorrhage” into the soft tissue.
According to the medical examiner, the hemorrhage was the result of
trauma; the trauma most likely caused by the insertion of a foreign object
as there was “just too much force [for] a soft organ such as a penis to have
caused it.” Based upon the hemorrhage, the medical examiner opined
that E.H. was alive at the time of the trauma. As part of the autopsy, a
sexual assault kit was performed on E.H. In the course of conducting the
sexual assault kit, the medical examiner swabbed the area on E.H.’s
buttocks where the apparent semen stain was located.

¶6           Due to then-existing limitations on what could be done with
the evidence, the investigation into E.H.’s death went cold until 2008,
when the Phoenix Police Crime Laboratory began processing some of the
impounded items from the crime scene. Of note, the laboratory tested the
swab from E.H.’s buttocks taken as part of the 1994 sexual assault kit and
swabs taken from two different places on the recovered blanket; these
tests produced positive results for traces of semen. Swabs of the semen
stains were packaged and sent for DNA analysis. The analysis developed
a DNA profile, which ultimately matched Lockwood’s.

¶7            A Phoenix police detective then traveled to Florida to
interview Lockwood in March 2009. The detective informed Lockwood of
E.H.’s murder in Papago Park and that his semen was found on E.H.’s
body. Lockwood admitted to living near Papago Park at the time of the
murder, but denied having ever visited the park. Lockwood further
denied: (1) ever having any sexual contact with men, including
specifically E.H.; and (2) ever masturbating outside of his own home.
Moreover, Lockwood denied having any knowledge of E.H.’s murder.

¶8            Lockwood was indicted on two charges: (1) first degree
premeditated murder, or in the alternative first degree felony murder, a
class 1 felony (Count 1); and (2) sexual assault, a class 2 felony (Count 2).
Following the close of the State’s case in chief, Lockwood moved for a
judgment of acquittal on both counts pursuant to Arizona Rule of
Criminal Procedure 20, which the trial court denied.




                                     3
                         STATE v. LOCKWOOD
                          Decision of the Court

¶9           Thereafter, upon completion of the nineteen day bench trial,2
Lockwood was convicted of first degree felony murder and sexual assault.
The trial court sentenced Lockwood to a prison term of natural life on
Count 1 and the presumptive term of 10.5 years on Count 2. 3 Lockwood
timely appealed. We have jurisdiction pursuant to Arizona Revised
Statutes (A.R.S.) §§ 12-120.21(A) (2014), 13-4031 (2014), and 13-4033(A)(1)
(2014). 4

                             DISCUSSION

¶10         Lockwood’s sole contention on appeal is that the trial court
erred by denying his Rule 20 motion. We review the denial of a Rule 20
motion de novo. State v. Parker, 231 Ariz. 391, 407, ¶ 69, 296 P.3d 54, 70
(2013).

¶11            A Rule 20 motion should only be granted if “there is no
substantial evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a);
State v. Gray, 231 Ariz. 374, 375, ¶ 2, 295 P.3d 951, 952 (App. 2013). The
key phrase – substantial evidence – requires more than a mere scintilla of
evidence, meaning “such proof that reasonable persons could accept as
adequate and sufficient to support a conclusion of defendant’s guilt
beyond a reasonable doubt.” Parker, 231 Ariz. at 407, ¶ 70, 296 P.3d at 70;
Gray, 231 Ariz. at 375, ¶ 2, 295 P.3d at 952.

¶12           In considering a Rule 20 motion, “‘the relevant question is
whether, after viewing the evidence in light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” Parker, 231 Ariz. at
407, ¶ 70, 296 P.3d at 70 (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). When evaluating whether substantial evidence exists to support a
conviction, courts consider both direct and circumstantial evidence. State
v. West, 226 Ariz. 559, 562, ¶ 16, 250 P.3d 1188, 1191 (2011).



2 The State initially sought the death penalty. In exchange for the State
dismissing the death penalty allegation, Lockwood waived his right to be
tried by a jury.
3 Lockwood’s sentences in the immediate case are to run concurrent with

one another, but consecutive to a life sentence Lockwood is currently
serving in Florida.
4 Absent material revisions after the relevant dates, we cite the current

version of the statutes and rules unless otherwise indicated.



                                    4
                          STATE v. LOCKWOOD
                           Decision of the Court

      A.     Sexual Assault

¶13         “A person commits sexual assault by intentionally or
knowingly engaging in sexual intercourse or oral sexual contact with any
person without consent of such person.” A.R.S. § 13-1406(A) (2014). For
these purposes, sexual intercourse is defined as “penetration into the
penis, vulva or anus by any part of the body or by any object or
masturbatory contact with the penis or vulva.” A.R.S. § 13-1401(3) (2014).
The “without consent” requirement is satisfied if “[t]he victim is coerced
by the immediate use or threatened use of force.” A.R.S. § 13-1401(5)(a).

¶14           In this case, E.H. was discovered dressed only above the
waist, with his pants having been pulled down below his thighs. The
attack occurred in the middle of the night, with E.H. receiving multiple
blows to his head, and E.H. sustaining no defensive wounds. The medical
examiner testified that E.H. suffered internal rectal injuries so severe they
were likely caused by a foreign object; he also suffered blunt force trauma
to his head. Lockwood’s semen was found on E.H.’s buttocks within a
mixture of blood and fecal matter, as well as on a bloody blanket. Further,
undercutting the notion the sexual activity was consensual, Lockwood
denied ever visiting Papago Park, knowing E.H., having sexual contact
with men, or masturbating outside of his home. See State v. Kemp, 185
Ariz. 52, 59, 912 P.2d 1281, 1288 (1996) (evidence of a defendant’s
consciousness of guilt is relevant and admissible).

¶15            Lockwood argues insufficient evidence was presented to
find he engaged in any sexual activity with E.H., let alone that the sexual
activity was non-consensual. He posits that, beyond the DNA evidence
found at the crime scene, he could not be connected to Papago Park as
there were no eye-witnesses that placed him there and his fingerprints
were not found on the alleged murder weapon. In support of his
contention, Lockwood relies upon State v. Mathers, 165 Ariz. 64, 71, 796
P.2d 866, 873 (1990), which holds that “[s]peculation concerning
possibilities is an insufficient basis to sustain [a conviction].” We do not
quarrel with this point of law, but Lockwood’s reliance on Mathers is
unavailing.

¶16           In Mathers, there was no evidence placing the defendant at
the crime scene; there was merely speculation that he must have been
involved based upon (1) his departure from California to Arizona to “take
care of some business” earlier that day with other people involved in the
crime; (2) a previous trip the defendant had taken with a co-defendant in
which a person was abducted; and (3) statements the defendant made in


                                     5
                          STATE v. LOCKWOOD
                           Decision of the Court

which he admitted he had been in Arizona during the day of the crime at
issue. Id. at 69-71, 796 P.2d at 871-73. The Mathers Court found the
evidence insufficient where the evidence was unable to establish the
defendant’s involvement in the crimes or his presence at the crime scene.
Id. The converse is true in the case at bar, as Lockwood’s DNA was not
only found at the crime scene, but on the victim’s body. While there were
no eye-witnesses and Lockwood’s fingerprints were not present at the
scene, our Supreme Court has determined that no “particular piece of
evidence . . . is required as a prerequisite for sufficiency,” but instead has
applied a totality of the circumstances approach for evaluating proof
beyond a reasonable doubt. State v. Fulminante, 193 Ariz. 485, 494, ¶ 26,
975 P.2d 75, 84 (1999).

¶17            Lockwood also argues that based upon the evidence, it is
possible E.H. and Lockwood engaged in consensual sex. Notwithstanding
that this contention flies in the face of his specific denial of having ever
engaged in sexual activity with E.H. or any other men, the premise for this
assertion is the medical examiner’s inability to definitively say E.H.’s anal
and rectal injuries resulted from consensual or non-consensual sexual
activity.    Nevertheless, the medical examiner testified the injuries
sustained by E.H. were likely the result of a foreign object and “a
significant amount of force” being used. That being the case, “‘when
reasonable minds may differ on inferences drawn from the facts, the case
must be submitted to the [fact finder], and the trial judge has no discretion
to enter a judgment of acquittal.’” West, 226 Ariz. at 563, ¶ 18, 250 P.3d at
1192 (quoting State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997)).

¶18           Based upon the foregoing, substantial evidence was
presented from which a rational fact finder might reasonably conclude,
beyond a reasonable doubt, that Lockwood sexually assaulted E.H., and
that he did so using immediate force or the threat of force. See Fulminante,
193 Ariz. at 494, ¶ 28, 975 P.2d at 84. Accordingly, the trial court correctly
denied Lockwood’s Rule 20 motion regarding the sexual assault count.

       B.     Felony Murder

¶19           Lockwood was also convicted of first degree felony murder.
A person commits felony murder when “[a]cting either alone or with one
or more other persons the person commits or attempts to commit . . .
sexual assault under § 13-1406 . . . , and, in the course of and in
furtherance of the [sexual assault] or immediate flight from the [sexual
assault], the person or another person causes the death of any person.”
A.R.S. § 13-1105(A)(2) (2014).


                                      6
                          STATE v. LOCKWOOD
                           Decision of the Court

¶20          Lockwood contends the evidence does not establish he was
responsible for E.H.’s death. He points to the fact that his DNA was not
found on the apparent murder weapon, and suggests it is possible a third-
party caused E.H.’s death.

¶21          Criminal convictions may rest solely upon circumstantial
evidence. State v. Nash, 143 Ariz. 392, 404, 694 P.2d 222, 234 (1985).
“Moreover, the State is not required to disprove every conceivable
hypothesis of innocence when guilt has been established by circumstantial
evidence.” State v. Fischer, 219 Ariz. 408, 419, ¶ 43, 199 P.3d 663, 674 (App.
2008) (quoting Nash, 143 Ariz. at 404, 694 P.2d at 234).

¶22          There was sufficient evidence to permit the trier of fact to
determine beyond a reasonable doubt that Lockwood committed felony
murder. E.H. was found half naked, with the lower half of his body
exposed as his pants had been pulled down. Lockwood’s semen was
present in two spots on the discarded blanket covered in E.H.’s blood. In
one of the locations, Lockwood’s semen was mixed with E.H.’s DNA.
Further, Lockwood’s semen was also located on E.H.’s buttocks. The
medical examiner testified the stain went “through an area of blood, feces,
and sort of ends in a circle,” indicating the blood and feces were in place
when the semen was deposited. Finally, a large rock found next to E.H.’s
body was used to hit E.H. in the head multiple times, ultimately causing
his death.

¶23          Taking into account the totality of the circumstances, a
reasonable trier of fact could conclude beyond a reasonable doubt from
the evidence presented that Lockwood hit E.H. in the head with the ten-
pound rock in order to facilitate a sexual assault upon E.H., and that in the
furtherance of the sexual assault Lockwood caused E.H.’s death.
Fulminante, 193 Ariz. at 494, ¶ 26, 975 P.2d at 84. Accordingly, the trial
court did not err by denying Lockwood’s Rule 20 motion relating to the
felony murder charge.

                              CONCLUSION

¶24           We affirm Lockwood’s convictions and resulting sentences.




                                    :MJT




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