                                                                     FILED BY CLERK
                              IN THE COURT OF APPEALS                    OCT 14 2008
                                  STATE OF ARIZONA                       COURT OF APPEALS
                                    DIVISION TWO                           DIVISION TWO




THE STATE OF ARIZONA,                        )
                                             )
                                 Appellee,   )          2 CA-CR 2007-0403
                                             )          DEPARTMENT B
                     v.                      )
                                             )          OPINION
LUIS ENRIQUE ORTEGA,                         )
                                             )
                                Appellant.   )
                                             )


            APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                 Cause No. CR20071579

                             Honorable Richard Nichols, Judge

                          AFFIRMED IN PART; VACATED IN PART


Terry Goddard, Arizona Attorney General
 By Kent E. Cattani and Amy M. Thorson                                         Tucson
                                                                Attorneys for Appellee

Barton & Storts, P.C.
 By Brick P. Storts, III                                                        Tucson
                                                                Attorneys for Appellant


V Á S Q U E Z, Judge.
¶1            Following a jury trial, appellant Luis Ortega was convicted of two counts each

of sexual abuse of a minor under fifteen years of age, molestation of a child, and sexual

conduct with a minor under fifteen, all dangerous crimes against children under A.R.S. § 13-

604.01, and two counts of threatening or intimidating. The trial court sentenced him to a

total of fifty-seven years in prison. On appeal, Ortega argues the charges in counts four and

five, molestation of a child and sexual conduct with a minor under fifteen, arose from a

single act, and his convictions on both charges violate the double jeopardy protections of

the United States and Arizona Constitutions. He further contends the prosecutor “exerted

improper influence” over a victim’s testimony, rendering it unreliable. For the reasons that

follow, we vacate Ortega’s conviction and sentence on count four, molestation of a child,

but affirm the remaining convictions and the sentences imposed.

                          Factual and Procedural Background

¶2            We view the facts in the light most favorable to sustaining the jury’s verdicts.

State v. Miles, 211 Ariz. 475, ¶ 2, 123 P.3d 669, 670 (App. 2005). On August 20, 2006,

thirteen-year-old C.Q. was visiting her mother in Tucson. That morning she was sleeping

on a couch, when she was awakened by Ortega touching her arms, buttocks, and legs and

trying to turn her over. She asked Ortega what he was doing, and although he stopped

touching her, he did not answer. A few days later, on August 25, while C.Q. was sleeping,

Ortega turned her “face up” and began touching her breasts and vagina over her clothes.




                                              2
Afterwards, Ortega told her not to tell anyone what had happened. C.Q. returned home to

Mexico the following day.

¶3            C.Q. next visited her mother in December 2006. On the 22nd or 23rd, Ortega

took C.Q. to an abandoned trailer where he forcibly removed her clothes, touched her

breasts, back, and legs, and had sexual intercourse with her. She did not tell her mother

what had happened because Ortega had told both her and her brother F.Q. that he would

either kill their mother or hurt them if they said anything.

¶4            On subsequent visits in February and March or April of 2007, Ortega engaged

in similar acts with C.Q. and each time he threatened to harm her mother if C.Q. told her

what he had done. On April 9, C.Q.’s mother was lying on the couch when she saw Ortega

touch C.Q.’s buttocks over her pajamas. Shortly thereafter, she heard him walk into C.Q.’s

bedroom. She screamed at him, and the two argued about what she had seen. When the

mother called the police, Ortega put his clothes in his car and left the house.

¶5            A grand jury indicted Ortega on the following charges: sexual abuse of a

minor, committed on or about August 20, 2006, through August 25, 2006 (count one);

molestation of a child, on or about August 20, 2006 (count two); sexual abuse of a minor

under fifteen, on or about December 21, 2006, through December 28, 2006 (count three);

molestation of a child, on or about December 21, 2006, through December 28, 2006 (count

four); sexual conduct with a minor under fifteen, on or about December 21, 2006, through

December 28, 2006 (count five); sexual conduct with a minor under fifteen, on or about


                                              3
February 10, 2007, through February 12, 2007 (count six); sexual conduct with a minor

under fifteen, on or about March 20, 2007, through March 22, 2007 (count seven);

threatening or intimidating C.Q. (count eight); and threatening or intimidating F.Q. (count

nine). Counts one through seven were alleged to be dangerous crimes against children.

¶6            During trial the court granted Ortega’s motion for judgment of acquittal

pursuant to Rule 20, Ariz. R. Crim. P., only on count seven, and the jury found him guilty

of the remaining charges. The court sentenced him to concurrent, enhanced, presumptive

prison terms on counts one through four, the longest of which was seventeen years;

consecutive, enhanced, presumptive, twenty-year terms on counts five and six; and 180 days

in jail for counts eight and nine, with 180 days of presentence incarceration credit. This

appeal followed.

                                   Standard of Review

¶7            Because Ortega failed to raise at trial either of the issues he raises on appeal,

we review only for fundamental error. State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d

601, 607 (2005). Fundamental error is “‘error going to the foundation of the case, error that

takes from the defendant a right essential to his defense, and error of such magnitude that

the defendant could not possibly have received a fair trial.’” Id., quoting State v. Hunter,

142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). In order to obtain relief, Ortega must

demonstrate both that fundamental error occurred and that it caused him prejudice. Id. ¶




                                              4
20. A double jeopardy violation constitutes fundamental, prejudicial error. See State v.

McGill, 213 Ariz. 147, ¶ 21, 140 P.3d 930, 936 (2006).

                                          Discussion

Double Jeopardy

¶8             Ortega first argues his convictions and sentences for both molestation of a child

and sexual conduct with a minor under the age of fifteen violate his right to be free from

double jeopardy. He contends molestation is a lesser included offense of sexual conduct

with a minor under fifteen and “the same exact act” was used to prove his guilt on both

charges.1 In the alternative, he argues that because both charges arose out of the same

conduct, the sentences must be served concurrently pursuant to A.R.S. § 13-116. These are

issues of law we review de novo. See State v. Brown, 217 Ariz. 617, ¶ 7, 177 P.3d 878, 881

(App. 2008).

¶9             The Double Jeopardy Clauses of the United States and Arizona Constitutions

protect criminal defendants from multiple convictions and punishments for the same offense.

See Brown, 217 Ariz. 617, ¶ 13, 177 P.3d at 882; Lemke v. Rayes, 213 Ariz. 232, ¶ 10, 141

P.3d 407, 411 (App. 2006); see also U.S. Const. amend. V, Ariz. Const. art. II, § 10.

Multiplicitous charges alone do not violate double jeopardy; only resulting multiple

convictions or punishments are prohibited. Merlina v. Jejna, 208 Ariz. 1, ¶ 14, 90 P.3d


       1
        In his opening brief, Ortega also asserted that count three, sexual abuse of a minor
under fifteen, was a lesser included offense of sexual conduct with a minor. However, he
has withdrawn that argument in his reply brief.

                                               5
202, 205 (App. 2004). “[W]here the same act or transaction constitutes a violation of two

distinct statutory provisions, the test to be applied to determine whether there are two

offenses or only one, is whether each provision requires proof of a fact which the other does

not.” Blockburger v. United States, 284 U.S. 299, 304 (1932); see also State v. Eagle, 196

Ariz. 188, ¶ 6, 994 P.2d 395, 397 (2000). Thus a defendant may not be convicted for both

an offense and its lesser included offense, because they are considered the “same offense”

for double jeopardy purposes. Lemke, 213 Ariz. 232, ¶¶ 16-18, 141 P.3d at 413; see also

Brown v. Ohio, 432 U.S. 161, 168 (1977) (concluding conviction for both greater and lesser

included offense violates double jeopardy under Blockburger test). In determining whether

offenses are the “same” for purposes of double jeopardy analysis, we look to the elements

of the offenses and not to the particular facts that will be used to prove them. See State v.

Price, 218 Ariz. 311, ¶ 5, 183 P.3d 1279, 1281 (App. 2008); Lemke, 213 Ariz. 232, ¶ 16,

141 P.3d at 413.

The Test for Determining Same Offenses

¶10           Both parties rely on In re Jerry C., 214 Ariz. 270, 151 P.3d 553 (App. 2007),

to support their respective positions on whether molestation of a child is a lesser included

offense of sexual conduct with a minor. In Jerry C., the juvenile’s charges included two

counts of sexual conduct with a minor involving victims who were both under the age of

fifteen. Id. ¶¶ 2, 12. During the adjudication hearing, the juvenile court ruled that the

evidence on these counts did not “fit” the charge of sexual conduct with a minor, but it was


                                             6
sufficient for molestation, which the court found to be a lesser included offense. Id. ¶ 3.

The juvenile appealed, arguing molestation is not a lesser included offense of sexual conduct

with a minor, and because the state had not given proper notice of the molestation charges,

his delinquency adjudications for those charges should be reversed. Id. ¶ 5. Division One

of this court disagreed, concluding that, as alleged in the charging document, it was not

possible for the juvenile to commit sexual conduct with a minor without also committing

molestation of a child and, therefore, the juvenile court properly had treated molestation as

a lesser included offense. Id. ¶ 13.

¶11           Division One applied what it described as two separate tests for determining

whether an offense is a lesser included offense of another: the “same elements” test

promulgated in Blockburger and the “charging documents” test. Id. ¶ 7. Applying the same

elements test, the court considered the statutory elements for the two offenses in determining

whether one could commit sexual conduct with a minor without also committing molestation

of a child. Id. ¶ 9. It concluded that molestation could not be a lesser included offense of

sexual conduct under the same elements test because molestation involves only victims

under the age of fifteen, whereas sexual conduct can be committed against a victim under

the age of eighteen. Id. ¶ 10; see also A.R.S. §§ 13-1405 (sexual conduct), 13-1410

(molestation).

¶12           The court next applied the charging document test under which it stated an

offense is lesser included if “‘the charging document describes the lesser offense even though


                                              7
[it] would not always form a constituent part of the greater offense.’” Jerry C., 214 Ariz.

270, ¶ 11, 151 P.3d at 556-57, quoting State v. Brown, 204 Ariz. 405, ¶ 21, 64 P.3d 847,

852 (App. 2003). And, based upon the offense as it was charged, the court concluded

“molestation of a child, in this case, is a lesser included offense . . . because the charging

document sufficiently describes the lesser included charge.” Id. ¶ 13.

¶13           However, based on our reading of United States v. Dixon, 509 U.S. 688, 708

(1993), we question the use of charging documents as a separate test for assessing whether

two offenses are the same for double jeopardy purposes. See Price, 218 Ariz. 311, n.1, 183

P.3d at 1281 n.1.2 In Dixon, the Supreme Court held that when two offenses cannot survive

the Blockburger “same elements” test, the double jeopardy bar applies, and the defendant

may not be convicted of both offenses. 509 U.S. at 696. The Court rejected the view that,

after finding no double jeopardy violation under the Blockburger test, it should nevertheless

then consider “whether the nature of the acts alleged supported such a claim.” Id. at 709

n.12 (emphasis added). Thus, under Dixon, the “‘same elements’ test . . . is the only




       2
        In Price we acknowledged that “[s]ome Arizona authority suggests consideration of
the charging document is appropriate in double jeopardy analysis.” 218 Ariz. 311, n.1, 183
P.3d at 1281. These cases have articulated the test “in the context of lesser-included
offenses . . . as ‘whether [the purported lesser included offense] is, by its very nature, always
a constituent part of the greater offense or whether the charging document describes the
lesser offense even though it does not always make up a constituent part of the greater
offense.’” State v. Siddle, 202 Ariz. 512, ¶ 10, 47 P.3d 1150, 1154 (App. 2002), quoting
State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 12, 965 P.2d 94, 97 (App. 1998) (emphasis
omitted); see also State v. Welch, 198 Ariz. 554, ¶ 7, 12 P.3d 229, 231 (App. 2000).

                                               8
permissible interpretation of the double jeopardy clause,” State v. Sanders, 205 Ariz. 208,

¶ 65, 68 P.3d 434, 448 (App. 2003).3

¶14           However, as the state points out, when a particular offense can be committed

in multiple ways, “it is impossible to tell just by looking at the statute itself which of the

[ways] is . . . relevant . . . for purposes of determining any lesser included offenses. A court

would have to look at the charging document to make that determination.” We agree. The

same elements test merely prohibits consideration of the underlying facts or conduct. But

Blockburger does not preclude consideration of the offense as it has been charged in

determining the elements of an offense and whether two offenses are the same.4 See

Sanders, 205 Ariz. 208, ¶ 64, 68 P.3d at 448 (noting in dictum that Dixon would appear to

permit separate prosecution for two methods of committing aggravated assault on a police

officer based on one event because each contained distinctly different elements).

Arizona’s Sexual Conduct with a Minor Statute

       3
        Thus, to the extent Jerry C. considered the Blockburger elements test as distinct
from the “charging documents test,” we disagree. However, to the extent Jerry C. merely
considered the offense as it was charged to inform its determination of the elements
pursuant to Blockburger, we would find no fault with that approach. In any event, we reach
the same ultimate conclusion as in Jerry C., that molestation of a child is a lesser included
offense of sexual conduct with a minor under fifteen.
       4
         Nor does Dixon. In Part III-A of Justice Scalia’s opinion, which a plurality of the
Court joined, he consulted the contents of court orders prohibiting the defendants from
engaging in certain acts in order to elucidate the elements of the criminal contempt charges
based on those orders and compare them with the elements of their convictions for separate
but related offenses. 509 U.S. at 697-99. See also id. at 714 (Rehnquist, C.J., concurring
in part, dissenting in part) (disagreeing with Justice Scalia’s reliance on terms of contempt
orders rather than “elements of contempt of court in the ordinary sense”).

                                               9
¶15           As we noted above, the same elements test requires a comparison of the

elements necessary to establish each charged offense for double jeopardy purposes. Dixon,

509 U.S. at 696. Generally, the elements of a statute are not difficult to discern, but this is

not always the case in double jeopardy determinations. Some statutes describe the elements

of an offense in one subsection and in other subsections classify the offense based upon

additional factors which, if proven, increase or decrease the severity of the offense. The

question then becomes whether the additional factors constitute elements of the offense or

are sentencing factors authorized by the jury’s verdict. See Eagle, 196 Ariz. 188, ¶ 17, 994

P.2d 395, 399 (2000) (factors in kidnapping statute are mitigating sentencing factors, not

elements to be proved by the state); Brown, 204 Ariz. 405, ¶¶ 13, 20, 64 P.3d at 850-52

(finding former shoplifting statute included aggravated form of offense containing additional

elements which had to be proven to jury).

¶16           Section 13-1405, A.R.S., raises this issue. It provides as follows:

              Sexual conduct with a minor; classifications

              (A) 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 under eighteen years
              of age.

              (B) Sexual conduct with a minor who is under fifteen years of
              age is a class 2 felony and is punishable pursuant to [the
              dangerous crimes against children statute]. Sexual conduct with
              a minor who is at least fifteen years of age is a class 6 felony.
              Sexual conduct with a minor who is at least fifteen years of age
              is a class 2 felony if the person is the minor’s parent, stepparent,
              adoptive parent, legal guardian or foster parent and the

                                              10
              convicted person is not eligible for suspension of sentence,
              probation, pardon or release from confinement on any basis
              except as specifically authorized by [statute] until the sentence
              imposed has been served or commuted.

Under subsection (A), the elements of sexual conduct with a minor are: (1) intentionally or

knowingly engaging in sexual intercourse or oral sexual contact, defined in a separate

statute, (2) with a person who is less than eighteen years of age. See § 13-1401 (defining

sexual intercourse and oral sexual contact). And subsection (B) classifies the offense

according to factors that give rise to different classes of felonies, and corresponding

differences in punishment. See A.R.S. § 13-702(A). We must therefore decide whether the

factors in subsection (B) constitute elements of the offense for double jeopardy purposes.

See Eagle, 196 Ariz. 188, ¶¶ 9-12, 994 P.2d at 397-98; Brown, 204 Ariz. 405, ¶¶ 13-17,

64 P.3d at 850-51.

¶17           As our supreme court did in Eagle, 196 Ariz. 188, ¶ 14, 994 P.2d at 399, we

find Jones v. United States, 526 U.S. 227 (1999), instructive on this issue. See also Carter

v. United States, 530 U.S. 255, 273 (2000) (referring to Jones in determining elements of

offense). In Jones the defendant had been charged with violations of two federal statutes,

including “carjacking or aiding and abetting carjacking,” which provided in pertinent part:

              “Whoever, possessing a firearm . . . takes a motor vehicle . . .
              from the person or presence of another by force and violence or
              by intimidation, or attempts to do so, shall—

                     (1) be fined under this title or imprisoned not more than 15
                     years, or both,


                                              11
                    (2) if serious bodily injury . . . results, be fined under this
                    title or imprisoned not more than 25 years, or both, and

                   (3) if death results, be fined under this title or imprisoned
                   for any number of years up to life, or both.”
Id. at 230, quoting 18 U.S.C. § 2119 (1988). Jones was indicted without reference to the

numbered subsections. At his arraignment he was told he could face up to fifteen years in

prison; at trial the jury was instructed solely according to the first paragraph of the statute.

Id. at 230-31. However, over Jones’s objection, the trial court sentenced him to twenty-five

years on the carjacking charge after finding he had inflicted serious bodily injury on the

victim during the offense. Id. at 231. At the Supreme Court, Jones argued that the

carjacking statute effectively created three distinct offenses, requiring the elements of each

to be charged in the indictment and proven to the jury. See id. at 229.

¶18           The Court stated, “Much turns on the determination that a fact is an element

of an offense rather than a sentencing consideration, given that elements must be charged in

the indictment, submitted to a jury, and proven by the Government beyond a reasonable

doubt.” Id. at 232. Looking at the structure of the statute, the Court noted that “at first

glance, [the statute] has a look to it suggesting that the numbered subsections are only

sentencing provisions.” Id. at 233. But the Court went on to state that this impression

became less clear in light of subsections (2) and (3), which “not only provide[d] for steeply

higher penalties, but condition[ed] them on further facts (injury, death) that seem quite as

important as the elements in the principal paragraph (e.g., force and violence, intimidation).”

Id. The Court examined the statute’s legislative history, which it dismissed as unpersuasive,

                                              12
and other criminal statutes, from which it inferred that Congress had intended bodily injury

to be an element because serious bodily injury has traditionally been treated, both by

Congress and by the state legislatures, as defining an element of aggravated offenses. Id. at

235-39.

¶19           Finally, the Court noted that interpreting subsections (2) and (3) as merely

sentencing factors would put the constitutionality of the statute in doubt, resolving the issue

“in favor of avoiding those questions.” Id. at 251. Thus, it concluded that the statute must

be construed as “establishing three separate offenses by the specification of distinct

elements, each of which must be charged by indictment, proven beyond a reasonable doubt,

and submitted to a jury for its verdict.” Id. at 251-52.5 Therefore, under Jones, any factor

that is essential to proving an offense was committed and establishing a particular sentencing

range is an element that must be submitted to a jury and proven beyond a reasonable doubt.



       5
       In Apprendi v. New Jersey, 530 U.S. 466, 494 n.19 (2000), decided a year later, the
Court broadened its holding in Jones and further distinguished elements of offenses from
sentencing factors:

              The term [sentencing factor] appropriately describes a
              circumstance, which may be either aggravating or mitigating in
              character, that supports a specific sentence within the range
              authorized by the jury’s finding that the defendant is guilty of
              a particular offense. On the other hand, when the term
              “sentence enhancement” is used to describe an increase beyond
              the maximum authorized statutory sentence, it is the functional
              equivalent of an element of a greater offense than the one
              covered by the jury’s guilty verdict. Indeed, it fits squarely
              within the usual definition of an “element” of the offense.

                                              13
¶20            Applying these principles to § 13-1405, we conclude the “under fifteen years

of age” factor in § 13-1405(B), which renders the offense a class two felony, is an element

of that offense. We note that the specific age of a victim is the type of fact usually treated

as an element of a crime. See Jones, 526 U.S. at 234 (looking to “traditional treatment of

certain categories of important facts” in determining whether a fact is an element or a penalty

aggravator). But even more importantly, sexual conduct with a person under the age of

eighteen but at least fifteen years old, is a class six felony, which carries with it a sentencing

range from six months’ imprisonment to 1.5 years; but, sexual conduct with a minor under

the age of fifteen is a class two felony, carrying with it a sentencing range of four to ten

years. §§ 13-1405(B), 13-702(A)(1), (5).6 In other words, proof that the victim is under the

age of fifteen automatically exposes the defendant to a maximum prison term over six times

greater than what he or she would be exposed to absent such proof. See § 13-1405(B).

Additionally, this fact makes the offense punishable as a dangerous crime against children

under § 13-604.01.

¶21            Thus, because this fact authorizes a “steeply higher penalt[y]” than would be

permissible in its absence, we must conclude that § 13-1405 “establish[es] . . . separate

offenses by the specification of distinct elements, each of which must be charged . . . ,




       6
        In this case we are neither presented with nor do we decide whether, under the
reasoning of Jones, Apprendi, or their progeny, A.R.S. § 13-702 enhancement factors would
constitute elements for the purposes of Blockburger and double jeopardy analysis.

                                               14
proven beyond a reasonable doubt, and submitted to a jury for its verdict.”7 Jones, 526 U.S.

at 233, 252; see also Apprendi, 530 U.S. at 494; State v. Martinez, 210 Ariz. 578, ¶¶ 9-10,

115 P.3d 618, 621 (2005); State v. Gross, 201 Ariz. 41, ¶¶ 12, 14, 31 P.3d 815, 818, 819

(App. 2001).

¶22            Our conclusion is in accord with Arizona case law that consistently has

distinguished charges of sexual conduct with a minor under the age of fifteen from sexual

conduct with a minor under eighteen. See, e.g., State v. Gonzalez, 216 Ariz. 11, ¶ 1, 162

P.3d 650, 651 (App. 2007) (defendant “convicted of attempted . . . sexual conduct with a

minor under fifteen years of age”); State v. Long, 207 Ariz. 140, ¶ 3, 83 P.3d 618, 620

(App. 2004) (defining offense in one count as sexual conduct with minor under fifteen and

offense in another count, pertaining to different incident, as sexual conduct with minor




       7
        In Eagle, 196 Ariz. 188, ¶___, 994 P.2d at ___, our supreme court considered
whether Arizona’s kidnapping statute, A.R.S. § 13-1304, which is similar in construction
to § 13-1405, contains the separate offenses of first- and second-degree kidnapping. The
court concluded that the statute creates a single offense that is presumptively a class two
felony; the fact that the victim was released without physical injury is merely “a mitigating
factor relevant solely for sentencing purposes,” which allows the offense to be reduced to
a class four felony as set forth in subsection (B) of the statute. Id. ¶¶ 10, 17. Because only
the defendant benefits from the existence of a mitigating factor, he bears the burden of
proving it. Id. ¶ 17. The court noted, however, that the statute “also identifies as an
aggravating circumstance the fact that the victim is under 15 years of age. We are mindful
that the Constitution sometimes requires facts that increase punishment to be treated as
elements of the crime, not merely as sentencing factors.” Id. n.1. Because that issue was not
before the court, it “express[ed] no opinion whether the aggravating factor . . . must be
treated as an element of the offense.” Id.

                                             15
fifteen years or older); see also State v. Marshall, 197 Ariz. 496, ¶ 1, 4 P.3d 1039, 1041

(App. 2000).

¶23            In State v. Carlisle, 198 Ariz. 203, ¶ 12, 8 P.3d 391, 394-95 (App. 2000),

Division One of this court stated, “The crime of sexual conduct with a minor under the age

of fifteen involves two elements: (1) the defendant intentionally or knowingly engaged in

sexual intercourse or oral sexual contact with another person; and (2) the other person ha[d]

not reached his or her fifteenth birthday.” And in State v. Gallegos, 178 Ariz. 1, 10, 870

P.2d 1097, 1107 (1994), our supreme court approved without comment a jury instruction

that provided: “The crime of sexual conduct with a minor under age fifteen requires proof

of the following two things: (1) The defendant knowingly penetrated the anus of another

person with a part of his body; and (2) the other person had not reached her fifteenth

birthday.”

Application of the Same Elements Test

¶24            Because Ortega was charged with sexual conduct with a minor under fifteen,

we must compare the elements of that offense with the elements of molestation. Molestation

of a child is committed by “intentionally or knowingly engaging in or causing a person to

engage in sexual contact, except sexual contact with the female breast, with a child under

fifteen years of age.” A.R.S. § 13-1410(A). And one commits sexual conduct with a minor

under fifteen by intentionally or knowingly engaging in sexual intercourse or oral sexual

contact with any person who is under the age of fifteen. § 13-1405. Sexual contact is


                                             16
defined as “any direct or indirect touching, fondling or manipulating of any part of the

genitals, anus or female breast by any part of the body or by any object or causing a person

to engage in such contact” and sexual intercourse as “penetration into the penis, vulva or

anus by any part of the body or by any object or masturbatory contact with the penis or

vulva.” § 13-1401(2), (3).

¶25           Both offenses therefore require the same mens rea, and both may only be

committed against a victim who is under the age of fifteen. Furthermore, by penetrating the

penis, vulva, or anus with a body part or object or by engaging in masturbatory contact with

the penis or vulva, one has necessarily also touched, fondled, or manipulated the genitals

or anus of that person. Therefore, one cannot commit sexual conduct with a minor under

fifteen without also committing molestation of a child. Molestation is a lesser included

offense of sexual conduct with a minor under the age of fifteen. Accordingly, Ortega’s

conviction of both the greater and the lesser offenses violates the Double Jeopardy Clause,

Lemke, 213 Ariz. 232, ¶¶ 16-18, 141 P.3d at 413-14, and we must vacate his conviction for

molestation of a child.8 See also State v. McGill, 213 Ariz. 147, ¶ 21, 140 P.3d 930, 936

(2006).

Molestation Charge Based on Same Conduct




       Because we have vacated Ortega’s conviction and sentence in count four for
       8

molestation of a child, we need not address his alternative argument that A.R.S. § 13-116
requires his sentences in counts four and five to be served concurrently.

                                            17
¶26            The state contends, however, that “there was evidence from which a

reasonable juror could conclude [Ortega] had committed molestation by touching C.Q.’s

vagina with his hand in December, separate from the molestation inherent in the touching

necessary to accomplish penetration. Accordingly, . . . the molestation is not a lesser

included offense of the sexual conduct with a minor in this case.” See State v. Arnoldi, 176

Ariz. 236, 240, 860 P.2d 503, 507 (App. 1993) (multiple convictions permissible where

evidence showed defendant had rubbed victim’s vagina separately from digital penetration).

We disagree.

¶27            C.Q.’s testimony, the only evidence relating to the December incident charged

in count four, does not establish that Ortega touched her vagina separately from penetration

with his penis. C.Q. testified that in December Ortega touched her breasts, back, and legs

with his hands, and his penis “went into [her] vagina.” She was asked, “During the times

that you were asked on cross-examination [about] December, February, and March/April

when the defendant forced you to have sex did he only have sex with you or did he also

touch you?” C.Q. responded, “He would also touch me.”9 However, there is nothing in her


       9
        At oral argument, the state contended that C.Q.’s response that Ortega “would also
touch” her, referred back to the prosecutor’s previous question concerning touching in
August that included her breasts and vagina. However, the prosecutor’s question does not
constitute evidence. And after defense counsel’s objection to the question about August 25
was sustained, the prosecutor’s next question concerned “the times that defense counsel
asked [C.Q.] about on cross-examination in December, February, and . . . the March, April
time frame.” When the prosecutor attempted to clarify the type of touching C.Q. was
referring to, the court sustained another defense objection, and she abandoned that line of
questioning.

                                             18
testimony making it clear that the touching she had been referring to included manual

contact with her vagina. As noted above, C.Q. specifically stated that in December Ortega

had only touched her breasts, back, and legs. Her nonspecific response to the prosecutor’s

broad question, “[D]id he also touch you?” does not support an inference that on that date

he had also “touched, fondled, or manipulated [her] genitals.” § 13-1401(2).

¶28           Consequently, there is no evidence from which reasonable jurors could

conclude beyond a reasonable doubt that in December, Ortega committed an act that

constituted molestation and which was separate from the act that gave rise to the charge of

sexual conduct with a minor. See State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869

(1990) (conviction must be supported by substantial evidence; “[s]ubstantial evidence is

more than . . . mere scintilla and is such proof that ‘reasonable persons could accept as

adequate and sufficient to support . . . conclusion of defendant’s guilt . . . beyond reasonable

doubt’”), quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980).

Prosecutorial Misconduct

¶29           Ortega asserts that “the coercive tactics employed [by the state] upon ten year

old [F.Q.] impermissibly swayed his testimony.” He contends this rendered F.Q.’s testimony

unreliable, deprived him of a fair trial, and requires dismissal of count nine, threatening or

intimidating. Because Ortega failed to object to this testimony below, we review for

fundamental error only. See Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607. As we

understand his argument, Ortega essentially suggests the state committed prosecutorial


                                              19
misconduct that caused F.Q.’s testimony to be inconsistent and therefore unreliable.10 To

warrant reversal on the basis of prosecutorial misconduct, a “‘defendant must demonstrate

that the prosecutor’s misconduct so infected the trial with unfairness as to make the resulting

conviction a denial of due process. . . . [T]he conduct [must] be so pronounced and

persistent that it permeates the entire atmosphere of the trial.’” State v. Roque, 213 Ariz.

193, ¶ 152, 141 P.3d 368, 403 (2006), quoting State v. Hughes, 193 Ariz. 72, ¶ 26, 969

P.2d 1184, 1191 (1998).

¶30           When F.Q. initially was called to testify, he did not remember many of the

details of the events in question or his statements to a police detective. After extensive

discussion and argument from counsel, the trial court permitted him to be excused and

recalled the following day, so that an interpreter could transcribe his interview with the

police detective to help refresh his memory under Rule 612, Ariz. R. Evid., and for potential

use as impeachment based on prior inconsistent statements under Rule 613(A), Ariz. R.

Evid. See also Ariz. R. Evid. 801(d)(1) (prior inconsistent statements not hearsay).

¶31           F.Q. was recalled the following day. The prosecutor read him excerpts from

the transcribed interview and initially he still did not remember what he had told the

detective about the alleged instances of sexual contact between Ortega and C.Q. and denied

Ortega had threatened to kill his mother if he told anyone what had happened. However,


       10
        We note that although Ortega has documented the specific instances of questioning
he contends amount to prosecutorial misconduct, he has failed to cite any authority in
support of this argument. See Ariz. R. Crim. P. 31.13(c)(vi).

                                              20
a few minutes into the questioning, F.Q. recalled telling the detective that Ortega had

threatened him while he was in Tucson in December.

¶32           Ortega contends “[F.Q.’s] testimony was altered by the pervasive questioning

on the subject” and was “elicited by the State after considerable coaxing of [F.Q.] to testify

in a manner that would lead to [Ortega’s] conviction.” We disagree. The methods the

prosecutor used to elicit this testimony were proper under the Rules of Evidence and

therefore did not constitute prosecutorial misconduct. See Roque, 213 Ariz. 193, ¶ 154, 141

P.3d at 403 (first step in assessing prosecutorial misconduct is to determine whether error

occurred).

¶33           When a witness does not remember making a particular statement, Rule 612,

Ariz. R. Evid., permits the “use [of] a writing to refresh memory for the purpose of

testifying.” If the attempt to refresh the witness’s recollection is unsuccessful, the writing

may then be read into the record, although it may not be separately admitted into evidence.

Ariz. R. Evid. 803(5); see also State v. Salazar, 216 Ariz. 316, ¶ 8, n.2, 166 P.3d 107, 109,

109 n.2 (App. 2007). Furthermore, when a witness denies making the prior statement, the

prior statement is admissible for impeachment purposes. See Ariz. R. Evid. 613(b),

801(d)(1); see also State v. Robinson, 165 Ariz. 51, 58, 796 P.2d 853, 860 (1990)

(impeachment of party’s own witness permissible); State v. Sucharew, 205 Ariz. 16, ¶ 20,

66 P.3d 59, 66 (App. 2003) (prior inconsistent statement by testifying witness not hearsay).

Here, at various times during his testimony F.Q. either did not remember his prior statements


                                             21
or denied making them. The prosecutor was thus entitled to introduce F.Q.’s prior

statements under Rules 801(d)(1) and 803(5), Ariz. R. Evid., to refresh his memory or for

impeachment purposes. Therefore, there was no error or misconduct in the prosecutor’s

detailed questions concerning F.Q.’s previous statements.

¶34           To the extent Ortega is arguing that F.Q.’s testimony was unreliable because

it was inconsistent, this was an issue of credibility for the jury to resolve. State v. Lee, 151

Ariz. 428, 429, 728 P.2d 298, 299 (App. 1986) (when jury aware of inconsistencies in

victim’s statements, issue is not sufficiency of evidence but credibility of victim and

defendant, which jury must resolve). Defense counsel was entitled to explore these

inconsistencies on cross-examination, and he chose not to, although he did argue them in

closing. We will not reweigh this evidence on appeal. State v. Cid, 181 Ariz. 496, 500, 892

P.2d 216, 220 (App. 1995) (finder of fact, not appellate court, determines witness

credibility). There was no error, let alone fundamental error, in the admission of F.Q.’s

testimony.

                                         Disposition

¶35           For the reasons stated above, we vacate Ortega’s conviction and sentence for

count four, molestation of a child. We affirm in all other respects.



                                               ____________________________________
                                               GARYE L. VÁSQUEZ, Judge

CONCURRING:

                                              22
____________________________________
PETER J. ECKERSTROM, Presiding Judge



E S P I N O S A, Judge, specially concurring.


¶36           I concur in the results and reasoning of the majority except with respect to the

lengthy and, in my view, unnecessary analysis of whether Ortega could be convicted on both

counts four and five in this case. Because it is simply not possible for Ortega to have had

sexual intercourse with the child, as charged in count five, without also having touched her

vagina, as charged in count four, under well-established jurisprudence of our supreme and

appellate courts, there is no question the latter was a lesser included offense of the former,

for which Ortega could not be separately convicted. See State v. Cheramie, 218 Ariz. 447,

¶ 9, 189 P.3d 374, 375 (2008) (“‘To constitute a lesser-included offense, the offense must

be composed solely of some but not all of the elements of the greater crime so that it is

impossible to have committed the crime as charged without having committed the lesser

one.’”), quoting State v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983); State v.

Wall, 212 Ariz. 1, ¶ 14, 126 P.3d 148, 150 (2006) (“An offense is ‘lesser included’ when

the ‘greater offense cannot be committed without necessarily committing the lesser

offense.’”), quoting State v. Dugan, 125 Ariz. 194, 195, 608 P.2d 771, 772 (1980); State

v. Caudillo, 124 Ariz. 410, 412, 604 P.2d 1121, 1122 (1979) (test to determine if offense


                                             23
is lesser included is whether the greater offense could not have been committed without

necessarily committing the lesser); see also In re Jerry C., 214 Ariz. 270, ¶ 11, 151 P.3d

553, 556-57 (as charged, child molestation was necessarily a lesser included offense of

sexual conduct with a minor); State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 12, 965 P.2d

94, 97 (App. 1998) (test for lesser included offense includes situation where lesser charge

is “incidental” to greater whose commission as charged necessarily includes the lesser), cited

with approval in Cheramie, 218 Ariz. 447, 189 P.3d 374.

¶37           In all other respects, I concur with the majority.



                                              ____________________________________
                                              PHILIP G. ESPINOSA, Judge




                                             24
