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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                          LARRY CREWS, Appellant.

                             No. 1 CA-CR 18-0060
                               FILED 1-24-2019


             Appeal from the Superior Court in Yuma County
                        No. S1400CR201600779
                 The Honorable David M. Haws, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Eugene Marquez
Counsel for Appellant
                            STATE v. CREWS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Randall M. Howe joined.


C A M P B E L L, Judge:

¶1            Larry Crews appeals his convictions and sentences for sexual
conduct with a minor and molestation of a child, both class 2 felonies and
dangerous crimes against children (“DCAC”). He argues the charges are
duplicitous, and he contends his sentences were improperly enhanced as
DCAC. Crews also raises a constitutional claim to preserve it for future
review. For the following reasons, we affirm.

                             BACKGROUND1

¶2            Crews had been in a romantic relationship for approximately
10 years when he began engaging in sexual activity with his significant
other’s 13-year-old son. Crews would fondle the boy’s penis over and under
his clothes and engage in oral sex with the child. The conduct occurred
repeatedly between July and December of 2015.

¶3           The State charged Crews with one count each of sexual
conduct with a minor and molestation of a child. The indictment did not
specify an act for either charge; rather, it alleged Crews committed each
offense “on or about the 1st day of June, 2015 through the 31st day of
December, 2015.”

¶4            Claiming the charges were duplicitous, Crews moved to
dismiss the charges before trial, noting that the State’s disclosure revealed
multiple acts that could form the factual basis for each count. Crews argued
he did not have adequate notice to prepare a defense, and a conviction on
either charge would implicate double jeopardy concerns. Further, Crews
argued he would run the risk of receiving an improper conviction by less
than a unanimous jury verdict. In response, the State explained that the


1      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against the defendant. State v.
Valencia, 186 Ariz. 493, 495 (App. 1996).



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                           Decision of the Court

proper procedure would be for him to elect—after the presentation of trial
evidence, but before the case went to the jury—which act the State relied
upon to support each charge. The State also pointed out that any prejudice
could be cured by a jury instruction, presumably one requiring the jurors
to unanimously agree on the specific act constituting each charge.

¶5           Alternatively, Crews moved to dismiss the molestation
charge, arguing the molestation statute was unconstitutional. His argument
mirrored the reasoning recently set forth by the United States District Court
for Arizona, which held the statute improperly shifted the burden to
defendants to prove sexual interest did not motivate them to commit the
purported acts of molestation. May v. Ryan, 245 F. Supp. 3d 1145 (D. Ariz.
2017).

¶6           The trial court denied both motions, and Crews never
requested either curative measure identified by the State. The jury found
Crews guilty as charged and that the victim was under 15 years of age but
at least 12 years old. The court then imposed consecutive minimum
enhanced prison terms totaling 23 years.

                               DISCUSSION

I.     Duplicitous Charges

¶7             Crews argues the trial court erred by “permitting” him to be
convicted of duplicitous charges. Crews again claims he did not have
adequate notice of the charged offenses, he was deprived of unanimous
jury verdicts, and he will be unable to protect himself from any subsequent
prosecution for the criminal acts referenced during the trial.

¶8            The State concedes the charges are duplicitous. But based on
Crews’ failure to ask the trial court to take curative measures—such as
either requiring the State to elect the specific act underlying each count, or
instructing the jurors that they must, for each count, unanimously agree on
the act that Crews committed—Crews is not entitled to relief absent
fundamental error. Cf. State v. Klokic, 219 Ariz. 241, 244, ¶ 13 (App. 2008)
(noting defendant preserved issue regarding duplicitous charge by
requesting trial court take one of two curative measures).

¶9          Our supreme court has recently described a defendant’s
burden on fundamental error review as follows:

       A defendant establishes fundamental error by showing that
       (1) the error went to the foundation of the case, (2) the error


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                            Decision of the Court

       took from the defendant a right essential to his defense, or (3)
       the error was so egregious that he could not possibly have
       received a fair trial. If the defendant establishes fundamental
       error under prongs one or two, he must make a separate
       showing of prejudice, which also “involves a fact-intensive
       inquiry.” If the defendant establishes the third prong, he has
       shown both fundamental error and prejudice, and a new trial
       must be granted.

State v. Escalante, 245 Ariz. 135, 141, ¶ 21 (2018) (citation omitted).

¶10           A duplicitous charge exists when evidence of multiple
criminal acts is introduced at trial to prove the charged offense, but the
indictment refers to only one act. Klokic, 219 Ariz. at 244, ¶ 12. “Depending
upon the context, [a duplicitous charge] can deprive the defendant of
adequate notice of the charge to be defended, create the hazard of a non-
unanimous jury verdict, or make it impossible to precisely plead prior
jeopardy in the event of a later prosecution.” Id. (internal quotation
omitted).

¶11           We address Crews’ concerns in turn. First, Crews argues he
lacked notice. However, the indictment clearly charged him with sexual
conduct with a minor and molestation of a child. Additionally, Crews does
not contend he lacked access to discovery, including police reports and
recorded law enforcement interviews of witnesses and the victim, all of
which detailed the sexual acts underlying the charges. Crews therefore had
adequate notice. See State v. Freeney, 223 Ariz. 110, 114, ¶ 24 (2009) (“[F]or
Sixth Amendment purposes, courts look beyond the indictment to
determine whether defendants received actual notice of charges, and the
notice requirement can be satisfied even when a charge was not included
in the indictment.”); State v. Schroeder, 167 Ariz. 47, 52 (App. 1990) (finding,
under similar circumstances, defendant had adequate notice of charged
offense).

¶12            As for Crews’ contention that he was deprived of unanimous
jury verdicts, his argument is speculation and we are not persuaded that he
received an unfair trial. Crews’ main defense was a blanket denial that any
of the sexual acts occurred.2 Thus, the dispositive issue facing the jury was


2 Crews also challenged both the adequacy of law enforcement’s
investigation and the State’s expert’s explanation of various responses
children have as victims of sex crimes. Neither of these “defenses,”



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                            Decision of the Court

whether to believe the boy’s accusations or Crews’ denial of perpetuating
the sexual acts. See Schroeder, 167 Ariz. at 53. By virtue of the verdicts, the
jury found the boy credible, and disregarded Crews’ account of the events.
“[T]he possibility that the jury might have found that some but not all of
the alleged acts occurred is irrelevant so long as they unanimously agreed
that the child had been sexually abused by the defendant.” Id.

¶13              Finally, no prejudice on double jeopardy grounds occurred.
“Double jeopardy will bar a second prosecution if the evidence necessary
to support a second conviction was admissible and would have supported
a conviction in the first prosecution.” Id. at 52. Here, the specific acts
constituting the charged offenses were admitted at trial. Crews cannot be
prosecuted again for the acts disclosed and introduced into evidence at
trial. See id.; State v. Lombardo, 104 Ariz. 598, 599 (1969) (“That information
was fully developed at trial and the record will be available to Lombardo
as a bar to any subsequent action which might be filed against him for the
same offense.”).

¶14           For the foregoing reasons, the jury’s consideration of the
duplicitous charges was not so egregious as to deny Crews a fair trial, and
Crews otherwise fails to establish prejudice. See State v. Whitney, 159 Ariz.
476, 480 (1989) (duplicitous indictment not prejudicial where defense was
that the charged offenses never took place). Accordingly, no fundamental
error occurred requiring reversal.

II.    Sentence Enhancement

¶15           Crews argues the trial court lacked jurisdiction to impose
enhanced sentences because the jury failed to find the offenses were DCAC.
Specifically, Crews contends he was not subject to the DCAC sentence
enhancement provisions of A.R.S. § 13-705 because the jury did not
expressly find that his conduct “focused on, directed against, aimed at or
targeted” the boy. See A.R.S. § 13-705(C), (D) (respectively, sentence
enhancements for sexual conduct with a minor who is 12, 13, or 14 years of
age and molestation of a child). In support, Crews relies on State v. Sepahi,
206 Ariz. 321 (2003).



however, directly challenged the victim’s credibility as did Crews’
testimony denying the sexual acts occurred. Thus, we consider his denial as
his primary defense.




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                              STATE v. CREWS
                             Decision of the Court

¶16              Sepahi does not help Crews. Based on the trial evidence and
the jury’s guilty verdicts, Crews did not “fortuitously injure [the boy] by
[his] unfocused conduct.” Sepahi, 206 Ariz. at 323, ¶ 11 (quoting State v.
Williams, 175 Ariz. 98, 103 (1993)). Rather, by fondling the victim’s genitals
and engaging in oral sex with him, Crews specifically targeted the boy.
Indeed, such targeting was inherent in the elements of the offenses; thus,
the jury was not required to expressly find Crews targeted the child victim.
See Ariz. R. Crim. P. 19.1(c)(2)(B) (State not required to prove aggravating
factor to jury if factor is an element of the offense); Williams, 175 Ariz. at 104
(“It is impossible to imagine how . . . molestation [or] sexual conduct . . .
could be committed without targeting persons.”). Accordingly, the
enhancement provisions of A.R.S. § 13-705 applied for purposes of
sentencing. Cf. id. (defendant who, while drunk, rammed his vehicle into a
station wagon causing injury to a 14-year-old passenger did not “direct[]
. . . or focus[]” upon the victim; thus, defendant did not commit a DCAC).

III.   Molestation Statute

¶17           As he did in superior court, Crews repeats his challenge to the
constitutionality of the molestation statute, A.R.S. § 13-1410. Recognizing
that the Arizona Supreme Court has previously addressed and rejected the
same argument he raises, see State v. Holle, 240 Ariz. 300 (2016), Crews
nonetheless wishes to preserve his claim for further review. We decline to
address the merits.

                                CONCLUSION

¶18           Crews’ convictions and sentences are affirmed.




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




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