                                                                FILED BY CLERK
                          IN THE COURT OF APPEALS                   MAY 27 2005
                              STATE OF ARIZONA                      COURT OF APPEALS
                                DIVISION TWO                          DIVISION TWO


THE STATE OF ARIZONA,                      )
                                           )       2 CA-CR 2004-0096
                              Appellee,    )       DEPARTMENT A
                                           )
                  v.                       )       OPINION
                                           )
KEVIN ALBERT JOHNSON,                      )
                                           )
                              Appellant.   )
                                           )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                              Cause No. CR-20032478

                         Honorable Virginia Kelly, Judge
                    Honorable Frank Dawley, Judge Pro Tempore

                                    AFFIRMED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe, Karla Hotis Delord,
     and David A. Sullivan                                                Phoenix
                                                           Attorneys for Appellee

Robert J. Hooker, Pima County Public Defender
 By John F. Palumbo                                                        Tucson
                                                           Attorneys for Appellant


E C K E R S T R O M, Judge.
¶1            Appellant Kevin Albert Johnson was convicted after a jury trial of attempted

sexual assault, burglary in the second degree, and theft of a credit card. The trial court

sentenced him to concurrent, presumptive prison terms of 3.5 years each on the attempted

sexual assault and burglary convictions and 1.5 years on the theft conviction. On appeal,

he argues that the evidence is insufficient to support his attempted sexual assault conviction

and that his sentences were imposed in violation of Blakely v. Washington, ___U.S.___, 124

S. Ct. 2531 (2004). We affirm.

¶2            We view the facts in the light most favorable to sustaining Johnson’s

convictions. See State v. Oaks, 209 Ariz. 432, ¶ 2, 104 P.3d 163, 164 (App. 2004). During

a social gathering at a neighbor’s house, D. invited several acquaintances including Johnson

to her own house to socialize and drink some alcohol. A short time later, D. told her guests

that she needed to go to sleep; they all left, she turned off the lights, locked the door, and

went to sleep.

¶3               D. awoke to find Johnson on top of her, kissing her inner thigh and trying to

take off her underwear. She pushed him away and asked how he had entered her house.

Johnson said that she had let him in. D. replied that she would remember having let him in

and asked him to leave. Johnson left her bedroom, but when D. went into the living room

to look for her cellular telephone, she saw Johnson in the kitchen, crouched between the

stove and the water heater and holding what appeared to be a bundled shirt near his chest.

She again asked him to leave and, when he went out the front door, she locked it behind


                                               2
him. After discovering that her kitchen window had been broken and some of her

possessions were missing, she ran to a nearby convenience store to call 911.

¶4            D. later had a sexual assault examination. A sample collected from her inner

thigh was found to contain a mixture of her and Johnson’s deoxyribonucleic acid (DNA).

When police officers searched her house, they found a knife on her bed that matched knives

in her kitchen. The officers also found an electrical cord that had been cut from her toaster

by her bedroom door and one from a power strip by the front door. Police located Johnson

outside a nearby apartment complex. When officers searched his vehicle, they found D.’s

cellular telephone, credit cards, and some of her jewelry inside.

¶5            Johnson argues that his conviction for attempted sexual assault is not

supported by sufficient evidence and, therefore, violates his due process rights. He maintains

that his acts were “mere[ly] preparatory and equivocal . . . and not the substantial step and

intent required for the offense of attempt.” When reviewing whether sufficient evidence

supports a criminal conviction, we determine if “any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979). “To set aside a jury

verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is

there sufficient evidence to support the conclusion reached by the jury.”            State v.

Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). In making this assessment, we

view the evidence in the light most favorable to sustaining the verdict. Id.


                                              3
¶6            Here, we must assess whether the state presented sufficient evidence from

which a jury could conclude beyond a reasonable doubt that (1) Johnson had intended to

commit a sexual assault and (2) that he had intentionally taken any “step in a course of

conduct planned to culminate” in the commission of a sexual assault. A.R.S. § 13-

1001(A)(2); see also State v. Fristoe, 135 Ariz. 25, 29-30, 658 P.2d 825, 829-30 (App.

1982) (“any step” equivalent to “substantial step” for purposes of attempt statute). A person

commits sexual assault by intentionally or knowingly engaging in oral sexual contact with

another person without that person’s consent. A.R.S. § 13-1406(A).

¶7            D.’s testimony that she had awakened to find Johnson on top of her, kissing

her thigh, and trying to pull down her underwear; the testimony that Johnson’s DNA had

been found on her thigh; the testimony about the knife found on her bed; and the testimony

about the cut electrical cords constitute evidence from which a rational jury could have

found beyond a reasonable doubt that Johnson had taken a substantial step toward engaging

in sexual contact with D. without her consent. We find no error in the jury’s verdict.

¶8            Johnson also argues that he was sentenced in violation of Blakely. The state

maintains that Johnson has waived the claim because he failed to raise it before the trial

court. Assuming without deciding that Johnson’s failure to raise the claim waived it, we may

grant relief notwithstanding waiver if we conclude fundamental error occurred. See State

v. White, 194 Ariz. 344, ¶ 45, 982 P.2d 819, 829 (1999). We have previously found that

a trial court’s imposition of a sentence in violation of a defendant’s right to a jury trial


                                             4
constitutes an illegal sentence and is therefore fundamental error. State v. Timmons, 209

Ariz. 403, ¶ 5, 103 P.3d 315, 317-18 (App. 2005); State v. Resendis-Felix, 209 Ariz. 292,

¶ 6, 100 P.3d 457, 459 (App. 2004). Accordingly, we address Johnson’s claim to determine

whether he received illegal sentences. We review de novo questions of law, such as a

challenge to the legality of a sentence. State v. Alvarez, 205 Ariz. 110, ¶ 6, 67 P.3d 706,

709 (App. 2003).

¶9            Johnson claims that, although the trial court did not impose aggravated

sentences, it “improperly found and weighed the aggravating factor of emotional harm to the

victim in determining [his] sentence[s].” “Other than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530

U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000). In Blakely, the

Court clarified that “the relevant ‘statutory maximum’ is not the maximum sentence a judge

may impose after finding additional facts, but the maximum he may impose without any

additional findings.” ___ U.S. at ___, 124 S. Ct. at 2537.

¶10           Under Arizona’s noncapital sentencing statutes, the maximum punishment

authorized by a jury verdict alone, without the finding of any additional facts, is the

presumptive term. See A.R.S. §§ 13-701(C) and 13-702(A) (setting forth presumptive prison

terms as required punishment absent trial court’s finding any aggravating or mitigating

factors). Indeed, the Arizona Supreme Court has specifically found that the maximum


                                              5
sentence for the purposes of Apprendi analysis is the presumptive term. State v. Brown, 209

Ariz. 200, ¶ 12, 99 P.3d 15, 18 (2004). Although the trial court considered and found an

aggravating factor not proved to the jury in determining Johnson’s sentences, it ultimately

imposed presumptive terms. Because that punishment does not exceed the statutory

maximum allowed by the jury verdicts alone, the trial court did not violate the requirements

of Apprendi and Blakely.

¶11           Johnson argues that the trial court’s mere consideration of an aggravating

factor not proved to the jury was a violation of his right to a jury trial on all the facts

essential to his punishment—even if his ultimate sentences do not exceed the statutory

maximum authorized by the verdicts. Specifically, Johnson maintains that his rights were

violated the moment he was “exposed to or subjected to the risk of an aggravated sentence”

based on the court’s improper consideration of an aggravating circumstance not found by

the jury. There is language in both Apprendi and Blakely, and in cases of our own, that

supports this argument. See, e.g., Apprendi, 530 U.S. at 483, 120 S. Ct. at 2359, 147 L. Ed.

2d at 450 (suggesting trial court exceeds constitutional boundaries if it makes a

determination that “exposes the criminal defendant to a penalty exceeding the maximum he

would receive if punished according to the facts reflected in the jury verdict alone”) (first

emphasis added); Blakely, ___ U.S. at ___ n.5, 124 S. Ct. at 2536 n.5 (“‘[E]very fact which

is legally essential to the punishment’ must be charged in the indictment and proved to a

jury.”), quoting 1 J. Bishop, Criminal Procedure ch. 6, at 50-56 (2d ed. 1872); State v.


                                             6
Benenati, 203 Ariz. 235, ¶ 13, 52 P.3d 804, 808 (App. 2002) (“[W]e choose to follow

Apprendi’s logic, and Ring’s [v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556

(2002),] clear message, that a fact exposing a defendant to increased sentencing, not the

actual sentence imposed, is the litmus test.”); see also State v. Pitre, 210 Ariz. 93, ¶ 17, 107

P.3d 939, 944 (App. 2005) (referring to “a defendant’s constitutional right to have the jury

find all factors that expose him to a sentence beyond the statutory maximum”) (second

emphasis added). And, we do not dispute that the aggravating factors played an essential

role in the punishment the trial court chose for Johnson.1

¶12           But the Supreme Court has also repeatedly emphasized since deciding

Apprendi that trial courts may freely consider other sentencing factors not found by a jury

in choosing a specific punishment that does not exceed the statutory maximum as defined

in Apprendi. As the Court cautioned in Apprendi: “We should be clear that nothing in [this

case] suggests that it is impermissible for judges to . . . [take] into consideration various

factors relating both to offense and offender—in imposing a judgment within the range

prescribed by statute.” 530 U.S. at 481, 120 S. Ct. at 2358, 147 L. Ed. 2d at 449; see also

Harris v. United States, 536 U.S. 545, 558, 122 S. Ct. 2406, 2415, 153 L. Ed. 2d 524, 538

(2002) (“Judicial factfinding in the course of selecting a sentence within the authorized range



       1
        Because the trial court was not required to specify either aggravating factors or
mitigating factors in imposing presumptive sentences, see State v. Bly, 127 Ariz. 370, 373,
621 P.2d 279, 282 (1980), we can only conclude that the court believed the analysis of both
factors was integral to its ultimate conclusion.

                                               7
does not implicate the indictment, jury-trial and reasonable-doubt components of the Fifth

and Sixth Amendments.”); United States v. Booker, ___ U.S. ___, 125 S. Ct. 738, 750

(2005) (same). Moreover, in context, the Supreme Court has described those facts “‘legally

essential to the punishment’” as nothing more than those that justify the statutory maximum,

in this case, the jury verdicts. Blakely, ___ U.S. at ___, 124 S. Ct. at 2537, quoting Bishop,

at 50-56. Thus, notwithstanding the Court’s use of broad language in some instances when

it described the scope of a defendant’s right to a jury trial as to facts that determine

punishment, it repeatedly has clarified that no constitutional violation occurs if the ultimate

sentence falls within the range authorized by the jury verdict alone.

¶13           Arizona courts that have squarely addressed the problem in light of the recent

clarifications of the issue articulated in Blakely, as subsequently confirmed by Booker, have

come to the same conclusion. State v. Miranda-Cabrera, 209 Ariz. 220, ¶ 34, 99 P.3d 35,

42-43 (App. 2004) (finding no Sixth Amendment violation when trial court weighs non-

Blakely-compliant aggravating circumstances against mitigating circumstances and resulting

sentence is below the presumptive); State v. Munninger, 209 Ariz. 473, ¶ 20, 104 P.3d 204,

211 (App. 2005) (commenting that “the use of a judge-found aggravating factor to increase

the minimum sentence . . . is not a Blakely problem because the right to jury trial applies

only if the factor increases the sentence beyond that which can be imposed based solely on

the jury verdict, i.e., a presumptive sentence under Arizona’s sentencing scheme”) (citation

omitted). We therefore hold that the trial court did not err when it considered an


                                              8
aggravating circumstance not found by the jury in sentencing Johnson, because it did not rely

on that circumstance to increase his punishment beyond the maximum authorized by the jury

verdicts alone.

¶14           Johnson also challenges the constitutionality of Arizona’s noncapital

sentencing statutes in light of Blakely. We summarily reject this argument for the reasons

stated in State v. Timmons, 209 Ariz. 403, ¶¶ 16-19, 103 P.3d 315, 320 (App. 2005);

accord State ex rel. Smith v. Conn, 209 Ariz. 195, ¶¶ 6-7, 98 P.3d 881, 883 (App. 2004).

¶15           Affirmed.



                                              ____________________________________
                                              PETER J. ECKERSTROM, Judge

CONCURRING:



____________________________________
JOSEPH W. HOWARD, Presiding Judge



____________________________________
J. WILLIAM BRAMMER, JR., Judge




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