                            NOTICE: NOT FOR PUBLICATION.
  UNDER ARIZ. 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.

                JAMES RAYMOND GONZALEZ, Appellant.

                              No. 1 CA-CR12-0773
                               FILED 12-04-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-160623-001
               The Honorable Pamela D. Svoboda, Judge

                         AFFIRMED AS MODIFIED


                                    COUNSEL

The Gillespie Law Firm, Phoenix
By Craig C. Gillespie, Dave Roscoe
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
                          STATE v. GONZALEZ
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Judge Patricia A. Orozco and Judge Randall M. Howe joined.


T H U M M A, Judge:

¶1            This matter is on remand from the Arizona Supreme Court to
consider Defendant James Raymond Gonzalez’ appeal from his kidnapping
and sexual conduct with a minor convictions and resulting sentences.
Gonzalez argues (1) the verdict forms were deficient; (2) insufficient
evidence supports the sexual conduct with a minor conviction and (3) the
superior court erred in imposing consecutive sentences. For reasons set
forth below, the convictions and sentences are affirmed as modified.

                FACTS1 AND PROCEDURAL HISTORY

¶2            The charges arise out of an incident in April 2009 when
Gonzalez, the victim’s cousin and the victim’s uncle entered the victim’s
home. The victim, who was thirteen years old at the time, was home alone
asleep on a couch with her two-year old twin sisters.

¶3             The victim testified that Gonzalez pulled down her pants, got
on top of her and “put his penis in my vagina” and in her anus “a little bit”
and it hurt. After Gonzalez got off her, the victim went to the bathroom and
felt something “sticky” on her leg that looked “like spit[,] like saliva.”
Gonzalez gave the victim $20 and told her “not to tell nobody.” Gonzalez
then sat in the living room between the victim’s twin sisters.

¶4             A short time later, when the victim’s mother returned home,
the victim ran to meet her and told her what happened. The victim’s mother
started “hitting” and “stomping” on Gonzalez who was lying on the floor,
pretending to be passed out or asleep, and eventually Gonzalez left. The
police were called several hours after the assault.




1This court views the evidence in the light most favorable to sustaining the
conviction and resolves all reasonable inferences against defendant. State v.
Karr, 221 Ariz. 319, 320 ¶ 2, 212 P.3d 11, 12 (App. 2008).


                                     2
                           STATE v. GONZALEZ
                            Decision of the Court

¶5            The State charged Gonzalez with Count 1, kidnapping, a
Class 2 felony and dangerous crime against children; Count 2, sexual
conduct with a minor under the age of fifteen (to wit: anal intercourse), a
Class 2 felony and dangerous crime against children; and Count 3, sexual
conduct with a minor under the age of fifteen (to wit: penile/vaginal
intercourse), a Class 2 felony and dangerous crime against children.

¶6            After a six-day trial, the jury found Gonzalez guilty of Counts
1 and 2 but not guilty of Count 3. The superior court sentenced Gonzalez to
“less than presumptive” prison terms of “15 flat years” for the kidnapping
offense (Count 1) and “18 flat years” for the sexual conduct offense (Count
2), with the sentence for Count 2 to run consecutively to the sentence for
Count 1. On Gonzalez’ timely appeal, this court affirmed the convictions
and affirmed the sentences as modified to omit the requirement that
Gonzalez pay for DNA testing, with the majority of the court also
modifying the sentences so that they would be served concurrently. See
State v. Gonzalez, 1 CA–CR 12–0773, 2013 WL 6200093 (Ariz. App. Nov. 26,
2013) (mem. dec.) (2 to 1 decision regarding concurrent sentencing). The
Arizona Supreme Court later granted the State’s petition for review,
vacated this court’s decision and remanded to this court “for
reconsideration in light of State v. Jones,” 235 Ariz. 501, 334 P.3d 191 (2014).
State v. Gonzalez, CR–13–0452–PR, 2014 WL 5390417 at 1 (Ariz. Sept. 23,
2014). This court has now considered briefs filed by the parties after remand
addressing Jones and has jurisdiction over Gonzalez’ timely appeal
pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona
Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2014),2 13-4031 and 13-
4033.

                               DISCUSSION

I.     The Verdict Forms Did Not Constitute Fundamental Error.

¶7           Gonzalez argues the superior court erred by not sua sponte
indicating “anal intercourse” on the verdict form for Count 2 and
“penile/vaginal intercourse” on the verdict form for Count 3, thereby
distinguishing the factual bases for the two sexual conduct charges.
Gonzalez argues that, consequently, the verdict forms were incomplete and
the jury may have been confused about the nature of the charges alleged in
Counts 2 and 3. Gonzalez did not timely object to the verdict forms; in fact,


2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


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                           STATE v. GONZALEZ
                            Decision of the Court

he expressly approved of the verdict forms before they were presented to
the jury.

¶8             Gonzalez sought an extension of time to file a motion for new
trial and, more than 10 days after the verdict, filed a motion for a new trial
purporting to challenge the verdict forms, which was denied. “A motion
for a new trial shall be made no later than 10 days after the verdict has been
rendered.” Ariz. R. Crim. P. 24.1(b). As noted in the comment to Rule
24.1(b), the Arizona Supreme Court “has held that the time limit is
jurisdictional; a trial court has no power to grant a new trial after its
expiration. State v. Hill, 85 Ariz. 49, 330 P.2d 1088 (1958).” Accord State v.
Hickle, 129 Ariz. 330, 332, 631 P.2d 112, 114 (1981). Accordingly, the superior
court lacked jurisdiction to consider the untimely motion for new trial,
meaning that motion does not constitute a timely objection to the verdict
forms. See Ariz. R. Crim. P. 21.3.

¶9             Because Gonzalez did not timely object to the verdict forms,
this court’s review on appeal is limited to fundamental error. See State v.
Henderson, 210 Ariz. 561, 567 ¶¶ 19–20, 115 P.3d 601, 607 (2005).
“Accordingly, [Gonzalez] ‘bears the burden to establish that “(1) error
exists, (2) the error is fundamental, and (3) the error caused him
prejudice.”’” State v. James, 231 Ariz. 490, 493 ¶ 11, 297 P.3d 182, 185 (App.
2013) (quoting cases). Gonzalez has not met this burden.

¶10            Although the better practice might have been to indicate the
specific conduct alleged in each count (which could be done by using the
“to wit” designations in the indictment), by rule, a verdict form must
“specify each count or offense” to which the form pertains. Ariz. R. Crim.
P. 23.2(c). The verdict forms here clearly specified that Counts 2 and 3
related to the offenses of sexual conduct with a minor. Therefore, the verdict
forms used complied with the rule.

¶11           Apart from compliance with the applicable rule, Gonzalez has
not shown any prejudice. At the beginning of trial, the clerk read the
indictment to the jury. The indictment clearly differentiated the two
offenses by stating, for Count 2, “to wit: anal intercourse” and for Count 3,
“to wit: penile/vaginal intercourse.” Gonzalez’ defense at trial was that he
did not commit the charged offenses. In addition, jury instructions given by
the superior court included the directives that each count charged a
separate and distinct offense, that the jury needed to decide each count
separately and that the jury’s finding for each count had to be stated in a
separate verdict. In closing argument, Gonzalez’ counsel reminded the jury
that Count 2 charged “anal intercourse, sexual conduct with a minor . . .


                                      4
                          STATE v. GONZALEZ
                           Decision of the Court

Count 2 involves the anus” and that “Count 3 involves vaginal intercourse,
sexual conduct with a minor vaginally.” Moreover, the jury found Gonzalez
guilty of Count 2 but not guilty of Count 3. This record indicates the jury
followed the instructions, separately decided the counts and found the State
had proven one sexual conduct charge beyond a reasonable doubt but had
not proven the other sexual conduct charge beyond a reasonable doubt.

¶12            On this record, Gonzalez has not shown that a lack of
specificity on the verdict forms went to the foundation of his case or
deprived him of a right essential to his defense or of a fair trial regarding
the separate sexual conduct charges. Henderson, 210 Ariz. at 568 ¶ 24, 115
P.3d at 608 (error is fundamental if a defendant shows “that the error
complained of goes to the foundation of his case, takes away a right that is
essential to his defense, and is of such magnitude that he could not have
received a fair trial”). Accordingly, Gonzalez has not shown that the verdict
forms used for Counts 2 and 3 were fundamental, prejudicial error.

II.    Substantial Evidence Supports The Conviction For Count 2.

¶13          Gonzalez argues that the superior court erred in denying his
motion for judgment of acquittal on Count 2 based on a lack of substantial
evidence. Gonzalez claims the State was compelled to present something
more than the victim’s testimony that the crime alleged in Count 2 occurred.

¶14            The “question of sufficiency of the evidence is one of law,
subject to de novo review on appeal.” State v. West, 226 Ariz. 559, 562 ¶ 15,
250 P.3d 1188, 1191 (2011) (citation omitted). A motion for judgment of
acquittal before verdict should be granted “if there is no substantial
evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a). “Substantial
evidence is that which reasonable persons could accept as sufficient to
support a guilty verdict beyond a reasonable doubt.” State v. Davolt, 207
Ariz. 191, 212 ¶ 87, 84 P.3d 456, 477 (2004). If reasonable persons can fairly
differ about whether the evidence establishes a fact, then the evidence is
substantial. Id.

¶15            As to Count 2, the victim testified that Gonzalez “tried to put
[his penis] in [her] butt.” She “told him that it hurt,” but “he just didn’t
stop.” When asked if Gonzalez’ penis went in “a little bit,” the victim
replied, “A little bit, yeah.” On cross-examination, the victim testified that
she “yelled out it hurts” when being assaulted anally. This testimony alone
is substantial evidence supporting the charge in Count 2. See State v. Munoz,
114 Ariz. 466, 469, 561 P.2d 1238, 1241 (App. 1976).




                                      5
                          STATE v. GONZALEZ
                           Decision of the Court

¶16            Gonzalez maintains that the victim’s testimony was
insufficient because the State presented no corroborating physical evidence
of anal penetration. The forensic nurse, however, testified that the victim
reported anal penetration to her and that, in her experience, it was not
unusual for victims of anal assaults to exhibit no physical evidence of
penetration. The credibility of witnesses is a matter for the jury to decide.
State v. Williams, 209 Ariz. 228, 231 ¶ 6, 99 P.3d 43, 46 (App. 2004). On this
record, substantial evidence supported the charge and conviction on Count
2.

III.   The Superior Court Properly Imposed A Consecutive Sentence
       For Count 2.

¶17            The superior court ordered that the sentence for Count 2 be
served consecutively to the sentence for Count 1. By statute, the Legislature
prohibits double punishment for the same act as follows: “An act or
omission which is made punishable in different ways by different sections
of the laws may be punished under both, but in no event may sentences be
other than concurrent.” A.R.S. § 13-116. By statute, the Legislature also
directs that that a sentence for a dangerous crime against children offense
“shall be consecutive to any other sentence imposed on the person at any
time.” A.R.S. § 13-705(M). As applied, the State argues that “[c]onsecutive
sentences were mandated pursuant to A.R.S. § 13-705(M),” while Gonzalez
argues that consecutive sentences were illegal given A.R.S. § 13-116.
Because Gonzalez did not object at sentencing, the review on appeal is for
fundamental, prejudicial error, recognizing that the imposition of an illegal
sentence constitutes fundamental, prejudicial error. State v. Martinez, 226
Ariz. 221, 224 ¶ 17, 245 P.3d 906, 909 (App. 2011).

¶18           In State v. Jones, the Arizona Supreme Court held that A.R.S.
§ 13-705(M) “requires that sentences imposed on a defendant convicted of
certain dangerous crimes against children run consecutively even when the
underlying convictions arise from a single act,” even in light of A.R.S. § 13-
116. 235 Ariz. 501, 502 ¶ 1, 334 P.3d 191, 192 (2014). In doing so, the court
overruled State v. Arnoldi, 176 Ariz. 236, 860 P.2d 503 (App. 1993), which
had adopted a contrary approach. Jones, 235 Ariz. at 503 ¶ 10, 334 P.3d at
193.

¶19           Although Gonzalez argues Jones “was wrongly decided,” it is
binding precedent in Arizona. See State v. Smyers, 207 Ariz. 314, 318 n.4 ¶
15, 86 P.3d 370, 374 n.4 (2004). Gonzalez also argues Jones is distinguishable
because, “[u]nder the single impulse doctrine,” Counts 1 and 2 merge and
he “may be punished only once.” Gonzalez, however, cites no Arizona case


                                      6
                          STATE v. GONZALEZ
                           Decision of the Court

law applying the “single impulse doctrine.” Moreover, the separate
offenses each requires proof of facts not required for the other. See A.R.S. §
13-1405(A), (B) (“A person commits sexual conduct with a minor by
intentionally or knowingly engaging in sexual intercourse or oral sexual
contact with any person who is,” as applicable here, “under fifteen years of
age”); A.R.S. § 13-1304(A)(3) (“A person commits kidnapping by knowingly
restraining another person with the intent to . . . [i]nflict death, physical
injury or a sexual offense on the victim, or to otherwise aid in the
commission of a felony”). “Thus, each offense requires an element that the
other does not,” meaning the sentences imposed do “not violate the double
jeopardy clause.” Jones, 235 Ariz. at 504 ¶ 13, 334 P.3d at 194. Accordingly,
the superior court properly imposed consecutive sentences.3

                              CONCLUSION

¶20          Gonzalez’ convictions are affirmed and his sentences are
affirmed as modified to omit the requirement that he pay for the cost of
DNA testing.




                                   :gsh




3 The superior court also ordered Gonzalez to “pay the applicable fee for
the cost of” DNA testing. In State v. Reyes, this court held that A.R.S. § 13–
610 does not authorize the court to impose a DNA testing fee on a convicted
defendant. 232 Ariz. 468, 472 ¶ 14, 307 P.3d 35, 39 (App. 2013). Accordingly,
pursuant to Reyes, which was issued after Gonzalez was sentenced, the
superior court erred by imposing the DNA testing fee. Therefore, the
sentence is modified to omit the requirement that Gonzalez pay for the cost
of DNA testing.


                                      7
