                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                  JAIME ESPINOZA CUEVAS, Appellant.

                             No. 1 CA-CR 16-0285
                                 FILED 3-30-17


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-004867-001
                  The Honorable Mark H. Brain, Judge

                       AFFIRMED AS CORRECTED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Office of the Legal Advocate, Phoenix
By Consuelo M. Ohanesian
Counsel for Appellant

Jaime Espinoza Cuevas, Florence
Appellant
                             STATE v. CUEVAS
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.


N O R R I S, Judge:

¶1             Jaime Espinoza Cuevas timely appeals from his conviction
and sentence for one count of sexual conduct with a minor, a class 2 felony.
See Ariz. Rev. Stat. (“A.R.S.”) § 13-1405(B) (Supp. 2016).1After searching the
record on appeal and finding no arguable question of law that was not
frivolous, Cuevas’ counsel filed a brief in accordance with Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v.
Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record
for fundamental error. This court granted counsel’s motion to allow Cuevas
to file a supplemental brief in propria persona, and Cuevas did so. We reject
the arguments raised in Cuevas’ supplemental brief and, after reviewing
the entire record, find no fundamental error. Therefore, we affirm Cuevas’
conviction and sentence as corrected.

             FACTS AND PROCEDURAL BACKGROUND2

¶2             In the summer of 2013, when “I.P.” was 13 years old, she,
along with her best friend “R.J.,” spent the night at the house of their best
friends—“B.E.” (the “older sister”) and “B.E.” (the “younger sister”). I.P.,
R.J., the older sister, and the younger sister spent most of the night in the
sisters’ bedroom on social media and watching movies on I.P.’s laptop. The
older sister and the younger sister fell asleep first, before I.P. and R.J.

¶3           I.P. and R.J. fell asleep around 6 a.m. About a half hour later,
I.P. woke up when she felt a “sharp pain” in her vagina. She then saw
Cuevas, the sisters’ father, “squatted down [with] his hand under the
blanket” and she could feel his fingers inside her vagina. When Cuevas

              1The    Legislature has not materially amended any of the
statutes cited in this decision after the date of Cuevas’ offense. Thus, we cite
to the current version of all statutes in this decision.

              2We   view the facts in the light most favorable to sustaining
the jury’s verdict and resolve all reasonable inferences against Cuevas. State
v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).


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                             STATE v. CUEVAS
                            Decision of the Court
realized she was awake, he picked up I.P.’s laptop, tried to lay down
between I.P. and the younger sister who was sleeping on the floor next to
I.P., said something in Spanish to I.P., then quickly left the room. The three
other girls were asleep when these events occurred.

¶4             I.P. unsuccessfully tried to wake up the younger sister. She
then woke up R.J. and immediately told her what had just happened. And,
when they looked at the door of the bedroom, Cuevas was staring at them
through the crack of the door. I.P. stayed at the sisters’ house for a few hours
waiting for the sisters’ mom to come home. R.J. then told I.P. to go home
and tell I.P.’s mom what had happened. When I.P.’s mom arrived home,
I.P. told her about the incident and I.P.’s mom contacted the police. A few
hours later, a forensic nurse conducted a forensic examination of I.P. and
“swabbed” DNA evidence from I.P.’s external genital and vagina. A police
forensic scientist tested the swabs for DNA and found no DNA “foreign”
to I.P.’s DNA.

¶5           A grand jury subsequently indicted Cuevas on count one,
sexual conduct with a minor as to the incident with I.P., and on count two,
sexual abuse, for allegedly touching his older daughter’s breasts.3 The jury
convicted Cuevas on count one, see supra ¶ 1, but because the jury was
unable to reach a verdict on count two, the superior court dismissed that
count without prejudice. The jury also found one aggravating
circumstance—that I.P. had suffered physical and emotional harm.

                               DISCUSSION

I.     Supplemental Brief

¶6            Cuevas first challenges the sufficiency of the evidence
arguing that the State failed to present any “proof[,] [] evidence[,] or DNA
[evidence]” to support his conviction for sexual conduct with a minor. In
reviewing the sufficiency of the evidence, we determine whether
substantial evidence supports the jury’s findings, which is “proof that
reasonable persons could accept as adequate [] to support a conclusion of
[a] defendant’s guilt beyond a reasonable doubt.” State v. Kuhs, 223 Ariz.
376, 382, ¶ 24, 224 P.3d 192, 198 (2010) (quotations and citations omitted).

¶7         Here, I.P. testified that she awoke to pain in her vagina and
saw Cuevas with his hand under her blanket. See supra ¶ 3. And, I.P. and


              3After   I.P. woke up the older sister at the sleepover, the older
sister told I.P., and later told Detective N.E., that Cuevas had touched her
breasts a few months before.


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                             STATE v. CUEVAS
                            Decision of the Court
R.J. both saw Cuevas looking through the crack in the door of the bedroom
while I.P. was telling R.J. what had just happened. Although Cuevas denied
the allegations, he admitted to being in his daughters’ bedroom, in the
bedding area where I.P. and the younger sister had been sleeping, shortly
before I.P. and R.J. woke-up.

¶8             Although Cuevas points to the lack of DNA evidence, the
forensic nurse who examined I.P. testified that I.P. had marked on the
examination form she had engaged in activities, such as wiping and
urinating, between the incident and before the examination, which had the
“possibility of [wiping] away DNA” evidence. Further, although the
forensic nurse testified she did not find signs of physical injury on I.P., she
also testified that it is “more common not to see [an] injury” in these types
of circumstances.

¶9            Additionally, although the forensic scientist who analyzed
the DNA evidence taken from Cuevas’ hands and I.P.’s vagina testified that
he did not find any foreign DNA on Cuevas’ DNA sample or on I.P.’s DNA
sample, he further testified that wiping and urinating can remove DNA
evidence and “there’s lots of variables” in how long DNA stays on a vagina,
both internally and externally. He testified that a lack of DNA evidence
does not establish whether a person was touched or not touched.
Accordingly, based on this record, a reasonable jury could have found
beyond a reasonable doubt that Cuevas had committed sexual conduct with
a minor. See A.R.S. §§ 13-1401(4) (Supp. 2016), -1405(B).

¶10          Second, Cuevas argues his sentence was unduly harsh
because he was “given a lot of time and [he is] innocent of what [he] was
accused of” and, thus, this court should reduce his sentence or grant a new
trial.

¶11            First, any claim of actual innocence must be brought under
Arizona Rule of Criminal Procedure 32. See State v. Denz, 232 Ariz. 441, 447-
48, ¶ 22, 306 P.3d 98, 104-05 (App. 2013) (claims of actual innocence, versus
sufficiency of evidence claims, are brought under Ariz. R. Crim. P. 32.1(h)).
Second, the superior court gave Cuevas a slightly mitigated sentence of 18
“flat” years’ of imprisonment. See A.R.S. § 13-705(C) (Supp. 2016)
(presumptive 20 years sentence for defendant convicted of sexual conduct
with a minor who is thirteen years of age). Accordingly, the sentence was
within the prescribed range.




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                            STATE v. CUEVAS
                           Decision of the Court
II.    Anders Review

¶12           We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Cuevas received a fair
trial. He was represented by counsel at all stages of the proceedings and
was present at all critical stages.

¶13           The evidence presented at trial was substantial and supports
the verdict. The jury was properly comprised of 12 members and the court
properly instructed the jury on the elements of the charge, Cuevas’
presumption of innocence, the State’s burden of proof, and the necessity of
a unanimous verdict. The superior court received and considered a
presentence report, Cuevas was given an opportunity to speak at
sentencing and he did. The superior court awarded Cuevas the correct
amount of presentence incarceration credit of 786 days, and, as discussed
above, see supra ¶ 11, his sentence was within the range of acceptable
sentences for his offense.

¶14           Although properly sentenced, we note the sentencing minute
entry contains an error. The sentencing minute entry states Cuevas was
sentenced under A.R.S. § 13-702 (2010). Section 13-702 does not apply here
because A.R.S. § 13-1405 specifies that a person convicted of sexual conduct
with a minor who is under 15 years of age must be sentenced under A.R.S.
§ 13-705. We therefore correct the sentencing minute entry to delete the
reference to A.R.S. § 13-702.

                              CONCLUSION

¶15          We decline to order briefing and affirm Cuevas’ conviction
and sentence as corrected.

¶16           After the filing of this decision, defense counsel’s obligations
pertaining to Cuevas’ representation in this appeal have ended. Defense
counsel need do no more than inform Cuevas of the outcome of this appeal
and his future options, unless, upon review, counsel finds 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).




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                            STATE v. CUEVAS
                           Decision of the Court
¶17            Cuevas has 30 days from the date of this decision to proceed,
if he wishes, with an in propria persona petition for review. On the court’s
own motion, we also grant Cuevas 30 days from the date of this decision to
file an in propria persona motion for reconsideration.




                           AMY M. WOOD • Clerk of the Court
                           FILED:    JT

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