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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    DAMIAN JOSE LOMELI, Appellant.

                             No. 1 CA-CR 14-0520
                               FILED 11-15-2016


            Appeal from the Superior Court in Navajo County
             Nos. S0900CR201300371 and S0900CR201300609
                  The Honorable Ralph E. Hatch, Judge

               AFFIRMED IN PART; VACATED IN PART


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee

Coronado Law Firm, PLLC, Lakeside
By Eduardo H. Coronado, Kai M. Henderson
Counsel for Appellant

Damian Jose Lomeli, Florence
Appellant
                             STATE v. LOMELI
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Patricia A. Orozco joined.


C A T T A N I, Judge:

¶1            Damian Jose Lomeli appeals his convictions and sentences for
child molestation, sexual abuse of a minor, luring a minor for sexual
exploitation, and sexual conduct with a minor. Lomeli’s counsel filed a
brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State
v. Leon, 104 Ariz. 297 (1969), certifying that, after a diligent search of the
record, he found no arguable question of law that was not frivolous.
Counsel asks this court to search the record for reversible error. See State v.
Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999).

¶2            Lomeli filed a pro se supplemental brief in which he (1)
challenges the sufficiency of the evidence underlying his conviction of
sexual conduct with a minor and asserts that conviction of both child
molestation and sexual conduct with a minor violated double jeopardy, (2)
argues that the court erred by allowing written certification (as opposed to
requiring testimony) from the custodian of records regarding provenance
of text message records, (3) challenges admissibility of the text message
records on hearsay grounds, (4) argues the court erroneously required the
defense to disclose attorney work product to the State, and (5) asserts that
the court erred by failing to inquire directly whether he wanted to testify at
trial.

¶3            We ordered Penson1 briefing to address whether the evidence
presented at trial showed that Lomeli committed separate acts warranting
conviction of both molestation and sexual conduct with a minor without
violating principles of double jeopardy. For reasons that follow, we vacate
Lomeli’s conviction and sentence for child molestation. We affirm in all
other respects.




1      Penson v. Ohio, 488 U.S. 75 (1988).


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                            STATE v. LOMELI
                           Decision of the Court

             FACTS AND PROCEDURAL BACKGROUND

¶4             The victim, A.G., was 14 years old in May 2013. Her mother,
Christina A., was in a relationship with Lomeli at the time, and Lomeli was
a father figure to A.G. Lomeli, Christina, A.G., and A.G.’s younger brothers
and sister lived together in a house in Winslow.

¶5            On the night of May 9, 2013, Lomeli, Christina, and two
friends were drinking together at the house. Around 5:00 a.m. the
following morning, Christina and the two friends left the house to return a
car the friends had been using. While they were gone, A.G.’s sister saw
Lomeli come into the bedroom she shared with A.G., and climb on top of
A.G. under the blanket.

¶6          Between approximately 5:45 a.m. and 6:05 a.m. that morning,
Lomeli and A.G. exchanged a series of text messages:

      Lomeli:    “Mmmm u felt so goood”
      A.G.:      “I love you daddy!”
      Lomeli:    “I love the way u feel Mmmmm nd I love u more”
      A.G.:      “dad I want you to know just cus i have a boyfriend
                 now, youll always be my #1 man & the only guy i
                 love! /ndad i dont want nothing to change between
                 us”
      Lomeli:    “U taste so good i could li[v]e on jus u nd ur juices”
      ....
      Lomeli:    “Wen mom leaves i want u on top baby”
      Lomeli:    “Cuz u feel soooo good”
      ....
      Lomeli:    “Y dnt u send me pix of my girls nd the one I love
                 2 eat anymore”
      A.G.:      “whose your girls ?”
      Lomeli:    “Wen i cum will u swallow it nd my girls r ur boobs
                 dork”
      Lomeli:    “Duh”
      A.G.:      “oh HAHAHA, I will daddy. \n& I dont wanna
                 swallow before school, ill swallow you more than
                 once tomorrow thouu”
      Lomeli:    “I swallowed u a min ago”

¶7           Later that day, Christina saw the “I dont wanna swallow
before school” text from A.G. on Lomeli’s phone. She confronted Lomeli




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                            STATE v. LOMELI
                           Decision of the Court

and A.G., and kicked Lomeli out of the house. Christina informed the
police the next day.

¶8            Lomeli was arrested, and the State charged him with child
molestation, sexual abuse of a minor, luring a minor for sexual exploitation,
and sexual conduct with a minor under 15 years of age. At trial, A.G.
acknowledged telling her mother and a forensic interviewer that Lomeli
had “touched” her breasts and her vagina. But she claimed that those
statements were untrue and that Lomeli had never touched her
inappropriately or sexually.

¶9            The jury convicted Lomeli as charged. The court sentenced
him to concurrent terms of 17 years for child molestation and 11.25 years
each for sexual abuse and luring a minor for sexual exploitation (with credit
for 409 days of presentence incarceration), to be followed by a consecutive
term of 20 years for sexual conduct with a minor. Lomeli timely appealed.

                               DISCUSSION

I.     Separate Acts and Double Jeopardy.

¶10            We ordered Penson briefing to address whether the evidence
presented at trial supported convicting Lomeli of both child molestation
and sexual conduct with a minor under 15 years of age without violating
principles of double jeopardy. Because Lomeli did not raise this issue at
trial, we review for fundamental, prejudicial error. See State v. Henderson,
210 Ariz. 561, 567–68, ¶¶ 19–20 (2005).

¶11           A double jeopardy violation under the constitution results in
fundamental error. State v. McGill, 213 Ariz. 147, 153, ¶ 21 (2006). The
constitutional prohibition against double jeopardy protects a defendant
from multiple convictions and punishments for the same offense; for these
purposes, an offense and its lesser included offenses are considered the
same offense. State v. Ortega, 220 Ariz. 320, 323, ¶ 9 (App. 2008). Child
molestation is a lesser included offense of sexual conduct with a minor
under 15 years of age.2 Id. at 328, ¶ 25. Double jeopardy is only implicated,
however, when the greater offense and the lesser offense are based on the

2      Sexual conduct with a minor includes intentionally or knowingly
engaging in oral sexual contact with, as relevant here, a child under 15 years
of age. Ariz. Rev. Stat. (“A.R.S.”) § 13-1405(A), (B). Child molestation
includes intentionally or knowingly “touching, fondling or manipulating”
the genitals of a child under 15 years of age. A.R.S. §§ 13-1401(A)(3), -
1410(A).


                                      4
                            STATE v. LOMELI
                           Decision of the Court

“same act or transaction.” See Blockburger v. United States, 284 U.S. 299, 304
(1932). Thus, “[m]ultiple sexual acts that occur during the same sexual
attack may be treated as separate crimes.” State v. Boldrey, 176 Ariz. 378,
381 (App. 1993).

¶12           Here, the sexual conduct and molestation charges arose from
a single, overarching incident. The text message exchange between Lomeli
and A.G. in which he stated that he could “li[v]e on jus u and ur juices” and
that he “swallowed u a min ago”—particularly with the corroborating
testimony from A.G.’s younger sister that Lomeli had climbed on top of
A.G. in bed—provided sufficient evidence that Lomeli had performed oral
sex on A.G., supporting the conviction of sexual conduct with a minor.

¶13           The only other evidence that could indicate a separate act to
support the molestation conviction was A.G.’s testimony acknowledging
her statements to the forensic interviewer that Lomeli had “touched” her
vagina “sexually” during the same period between 5:00 a.m. and 6:00 a.m.
But A.G.’s testimony did not specify how Lomeli had “touched” her vagina,
i.e., manually, digitally, orally, or otherwise, and Lomeli necessarily
“touched” A.G.’s vagina orally in the act of oral sex underlying the sexual
conduct with a minor conviction.3 Accordingly, there is no evidence that
Lomeli committed an act constituting molestation separate from the oral
sexual contact supporting the sexual conduct conviction. We therefore
vacate Lomeli’s conviction of child molestation and the resulting sentence.

II.    Lomeli’s Pro Se Supplemental Brief.

       A.     Sexual Conduct with a Minor.

¶14           Lomeli argues that the State failed to present sufficient
evidence to support his conviction of sexual conduct with a minor.
Although Lomeli argues that the text messages did not “say with specificity
that [he] engaged in ‘oral sexual contact’ with A.G.’s vulva,” as described
above, supra ¶ 13, the text message exchange strongly supports the
reasonable inference that Lomeli engaged in oral sex with A.G. And


3         Based on other documents in the appellate record but not presented
at trial, A.G. reported during the police investigation that Lomeli “fondled
her . . . vaginal area but on top of her clothes” and that Lomeli had “rubbed”
her vagina. These details indicated a type of contact different than the oral
sexual contact, supporting the initial molestation allegation. But the details
were not presented at trial, leaving the jury no basis from which to find a
separate sexual act to support the molestation conviction.


                                      5
                             STATE v. LOMELI
                            Decision of the Court

although Lomeli suggests that the text messages were inadmissible hearsay,
his trial counsel stipulated to their admission into evidence, and the
relevant text messages were non-hearsay statements of Lomeli himself. See
Ariz. R. Evid. 801(d)(2).

       B.     Certificate of Records.

¶15           Lomeli argues the court erred by admitting in evidence the
cell phone company’s certificate of records certifying the text message
records as a business record. We review the superior court’s evidentiary
rulings for an abuse of discretion. State v. Chappell, 225 Ariz. 229, 238, ¶ 28
(2010).

¶16           Here, Lomeli’s counsel stipulated to admission of the text
message records. Moreover, Rule 803(6)(D) of the Arizona Rules of
Evidence expressly allows use of a self-authenticating certification like the
one provided here to establish foundation for the admission of a business
record. See also Ariz. R. Evid. 902(11), (12). Accordingly, the court did not
err.

       C.     Text Messages.

¶17           Lomeli next argues that the court erred by admitting into
evidence the text message records. Although Lomeli asserts the text
messages were inadmissible hearsay, as noted above, Lomeli’s counsel
stipulated to their admission into evidence. And although Lomeli argues
that admission of the text messages violated his confrontation right, most
of the text message declarants testified at trial and the substance of the text
messages was non-testimonial in any event. See Crawford v. Washinton, 541
U.S. 36, 51–52 (2004).

       D.     Defense Work Product.

¶18             Lomeli also argues that the superior court erred by ordering
defense counsel to disclose work product to the State. On the fourth day of
trial, the State learned that the defense had failed to disclose an interview
with a witness. The court ordered disclosure over defense counsel’s
objection that the recording contained work product in the form of his own
thoughts and opinions of the case. When the prosecutor began to review
the recording, he discovered factual statements by the witness, but also a
work-product opinion expressed by defense counsel, and immediately
stopped reviewing the recording.




                                        6
                            STATE v. LOMELI
                           Decision of the Court

¶19            The court properly ordered disclosure on the basis that,
although the State had in fact called the witness, the defense had listed the
individual as a defense witness, so the recording of the interview was
subject to disclosure under Arizona Rule of Criminal Procedure 15.2(c)(1).
Because the recording was of an interview of a defense witness, not a
witness for the State, Lomeli’s reliance on Osborne v. Superior Court, 157
Ariz. 2 (1988), is misplaced. Moreover, the prosecutor properly stopped the
recording when he became aware of the defense work product, and Lomeli
has not shown that the prosecutor made use of the work product (as
opposed to factual information from the recording).

       E.     Defendant’s Right to Testify.

¶20          Finally, Lomeli argues the court erred by failing to inquire of
Lomeli directly regarding whether he wished to testify. But the superior
court has no obligation to make such an inquiry sua sponte; instead the
defendant must make his desire to testify known at trial. State v. Allie, 147
Ariz. 320, 328 (1985). Here, although defense counsel on one occasion
indicated that Lomeli intended to testify, counsel later simply rested the
defense case, and nothing in the record indicates Lomeli opposed this
decision.

III.   Fundamental Error Review.

¶21           We have read and considered counsel’s brief and have
reviewed the record for reversible error. See Leon, 104 Ariz. at 300. Lomeli
was present and represented by counsel at all stages of the proceedings
against him. The record reflects that the superior court afforded Lomeli all
his constitutional and statutory rights, and that the proceedings were
conducted in accordance with the Arizona Rules of Criminal Procedure.
The court conducted appropriate pretrial hearings, and (with the exception
of the child molestation conviction discussed above) the evidence presented
at trial was sufficient to support the jury’s verdicts. Lomeli’s remaining
sentences fall within the range prescribed by law, with proper credit given
for presentence incarceration.

                              CONCLUSION

¶22          We vacate Lomeli’s conviction and sentence for child
molestation. Lomeli’s remaining convictions and sentences are affirmed.

¶23           After the filing of this decision, defense counsel’s obligations
pertaining to Lomeli’s representation in this appeal will end after informing
Lomeli of the outcome of this appeal and his future options, unless


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                            STATE v. LOMELI
                           Decision of the Court

counsel’s review reveals an issue appropriate for submission to the Arizona
Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582,
584–85 (1984). Lomeli shall have 30 days from the date of this decision to
proceed, if he desires, with a pro se motion for reconsideration or petition
for review.




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




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