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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                          ANGEL FLORES, Appellant.

                              No. 1 CA-CR 16-0142
                                FILED 4-13-2017


            Appeal from the Superior Court in Maricopa County
                         No. CR 2014-142613-001
             The Honorable James R. Rummage, Commissioner

                                   AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

By Michael J. Dew
Counsel for Appellant
                             STATE v. FLORES
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined.


T H O M P S O N, Judge:

¶1             This appeal was timely filed in accordance with Anders v.
California, 368 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878
(1969). Defendant’s counsel searched the entire record on appeal and was
unable to find any arguable questions of law. Counsel subsequently filed a
brief requesting this court conduct an Anders review of the record for
fundamental error.

¶2             Defendant also filed a supplemental brief in which he raised
the following issues: 1) whether the trial court violated his right to a speedy
trial when it excluded time on a continuance granted by another judge, and
2) whether the trial court erred in denying his motion for acquittal relating
to the charges of sexual assault.

¶3           After searching the record for fundamental error and
considering the issues raised in defendant’s supplemental brief, we
conclude there is no fundamental error. Therefore, we affirm defendant’s
convictions and sentences.

               FACTUAL AND PROCEDURAL HISTORY

¶4            The victim, J.K., was an eighty-nine-year old woman at the
time of the subject incident. She lived alone. One morning in April 2013,
she was woken by someone ringing her doorbell “like an alarm.” She
rushed to the door without turning on the lights. Once at the door, J.K.
asked who was there. A man’s voice responded claiming to be J.K.’s
neighbor. She didn’t recognize the voice, so she cracked open the door to
hear better. The man pushed the door back with J.K. behind it, knocking
her against the wall.

¶5            The man pushed his way into J.K.’s home and covered her
mouth. He said if she was quiet, he would not hurt her. J.K. thought the
man was there to rob her; she told him if he wanted money it was in her
purse. The man told J.K. he did not want money. Instead, he said, “[I’m]
going to fuck [you].” J.K. fought to get away, but he threw her into a nearby


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                             STATE v. FLORES
                            Decision of the Court

chair. He grabbed her arms, put them above her head, and yanked off her
pajama bottoms and panties. J.K. was “twisting and turning and begging
him to leave [her] alone.” J.K. heard the man unzip his pants, but in the
dark she never saw his penis. The man attempted to put his penis in J.K.’s
vagina, but was unsuccessful.

¶6              The man lifted J.K. from the chair and pushed her to the
ground. J.K. landed on her side and tried to crawl away. The man grabbed
J.K.’s waist from behind and once again attempted to put his penis in her
vagina. J.K. testified that she could feel his penis in her vaginal area, but he
was unable to actually insert his penis into her vagina. He then shoved
J.K.’s head into the ground, stood up, and walked out of the house.

¶7            Defendant was arrested in September 2014 after DNA
analysis placed him at the crime scene.1 The state charged defendant with
burglary in the second degree, a class three felony (count one); kidnapping,
a class two felony (count two); and two counts of sexual assault, both class
two felonies (count three and four).

¶8           After a jury trial, defendant was convicted as charged. Prior
to sentencing, the defendant “knowingly, intelligently, and voluntarily”
admitted that he was on probation for a prior felony at the time of the
offense, and he agreed to the aggravating factor that the victim was 65 or
more years of age at the time of the offense. The trial court sentenced
defendant to presumptive terms of 6.5 years for count one, 9.25 years for
count two, 10.5 years for count three, and 10.5 years for count four. The
court ordered the sentences for counts one, two, and three to run
concurrently and credited each sentence with 534 days of presentence
incarceration credit. The sentence for count four was ordered to run
consecutively to the sentence for count three. Defendant was not given any
credit towards count four’s term.2



1    Shortly after defendant’s arrest, a court ordered defendant’s girlfriend
to provide her DNA to the police. The girlfriend’s DNA matched the
unknown female’s DNA found on J.K.’s shirt and underwear.
2      “When consecutive sentences are imposed, a defendant is not
entitled to presentence incarceration credit on more than one of those
sentences, even if the defendant was in custody pursuant to all of the
underlying charges prior to trial.” See State v. McClure, 189 Ariz. 55, 57, 938
P.2d 104, 106 (App. 1997). Count three and four are distinct charges because



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                              STATE v. FLORES
                             Decision of the Court

                                DISCUSSION

    1. Speedy Trial

¶9           In his supplemental brief, defendant asserts the trial court
violated his right to a speedy trial under Arizona Rules of Criminal
Procedure Rule 8 and the United States and Arizona Constitutions. See U.S.
Const. amend VI; Ariz. Const. art. 2, § 24. We disagree.3

¶10            In the absence of excludable time, Rule 8.2 (3)(iii) required
defendant be brought to trial within 270 days from the time of his
arraignment on September 22, 2014. However, there were multiple
continuances granted throughout the pretrial stage that pushed the last day
to start to October 12, 2015. Defendant does not contend these were in error.
Instead, defendant argues the judge presiding over his case at trial erred by
nunc pro tunc excluding eleven days not previously excluded by the judge
granting one of several motions to continue, which pushed the last day to
start to October 23, 2015.

¶11            Although defendant did not express consent to this exclusion,
his counsel did not object and acknowledged it was preferable to
reassignment. “[D]elays agreed to by defense counsel are binding on a
defendant, even if made without the defendant’s consent.” State v. Spreitz,
190 Ariz. 129, 139, 945 P.2d 1260, 1269 (1997) (citations omitted).
Furthermore, Rule 8.2 is a procedural right, not a fundamental one. Id. at
139, 945 P.2d at 1270 (1997) (citation omitted). The defendant may not allow
the trial to continue to verdict and sentencing before claiming the need for
reversal because of a speedy trial violation. Id. at 139, 945 P.2d at 1270.

¶12          Even if we were to assume defendant’s right to a speedy trial
under Rule 8.2 was violated, he would not be entitled to relief because he
has not demonstrated he was prejudiced by the delay. See State v. Vasko,
193 Ariz. 142, 147, ¶¶ 20-22, 971 P.2d 189, 194 (App. 1998). Prejudice is
demonstrated if the defendant proves his defense was harmed by the delay.
Id. at ¶ 22. Defendant asserts his defense was hampered by the delay
because by the time of trial, the victim was “ninety-years-old” with


count three was for the frontal assault and count four was from the back,
but their elements are the same.

3       We focus on the alleged Rule 8 violation in this case as Rule 8 is more
restrictive than the constitutional right to a speedy trial. State v. Spreitz, 190
Ariz. 129, 136, 945 P.2d 1260, 1267 (1997).


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                             STATE v. FLORES
                            Decision of the Court

deteriorating health and memory of the event. However, J.K. was deposed,
and the deposition recorded, almost a year before trial because of the
concern she would not be competent to testify. Accordingly, defendant has
not proven his defense was prejudiced by the delay.

    2. Sufficiency of the Evidence

¶13          Defendant also contends that the evidence presented at trial
did not support the sexual assault charges (counts three and four)4. In the
motion for acquittal, defendant argued there was no evidence of sexual
intercourse because there was insufficient evidence of penetration.

¶14            When reviewing a denial of a motion for acquittal pursuant
to Arizona Rule of Criminal Procedure 20, “we view the evidence in the
light most favorable to sustaining the verdict and reverse only if no
substantial evidence supports the conviction. Substantial evidence ... is
such proof that reasonable persons could accept as adequate and sufficient
to support a conclusion of defendant’s guilt beyond a reasonable doubt.”
State v. Pena, 209 Ariz. 503, 505, ¶ 7, 104 P.3d 873, 875 (App. 2005) (internal
quotations and citations omitted).

¶15            Sexual intercourse is statutorily defined as “penetration into
the . . . vulva . . . by any part of the body or by any object or masturbatory
contact with the penis or vulva.” Ariz. Rev. Stat. (A.R.S.) § 13-1401 (2010) 5.
Penetration does not mean full insertion of the penis into the vagina, only
the “slightest penetration of the vulva” needs to be shown. See State v.
Torres, 105 Ariz. 361, 363, 464 P.2d 953, 955 (1970) (discussing the
penetration element in the context of a rape charge) (internal citation
omitted). Evidence of penetration includes lacerations or bruises. Id. at 362,
464 P.2d at 954.

¶16            The forensic nurse who examined J.K. identified over thirty
injuries on J.K.’s body including lacerations on her labia, abrasions near her
“hymen/vaginal opening area,” and bruising on her inner labia majora.
The nurse testified that to get these injuries, something “would had to have
crossed the plane of the external lips.” In response to a jury question, the
nurse stated “I don’t specify what penetrated her. So it is still evidence of


4      Pursuant to A.R.S. § 13-1406 (2010), “a person commits sexual assault
by intentionally or knowingly engaging in sexual intercourse or oral sexual
content with any person without consent of such person.”

5      Absent material changes, we cite to the current version of the statute.


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                            STATE v. FLORES
                           Decision of the Court

a penetration.” Therefore, the evidence presented at trial was sufficient to
establish that J.K. had been penetrated.

¶17           The record as a whole reflects that defendant received a fair
trial. All of the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. Defendant was present and
represented by counsel at all critical stages of the proceedings, including
the verdict and sentencing. The court properly instructed the jury of the
state’s burden of proof to demonstrate all elements for the charged offenses,
and stressed the necessity of a unanimous verdict. Most importantly, the
evidence presented was sufficient to support the verdicts and the imposed
sentences. We thus find no fundamental error and affirm defendant’s
convictions and sentences.

                              CONCLUSION

¶18            Following the filing of this decision, counsel shall inform
defendant of the appeal’s status and his options. Defense counsel has no
further obligations, unless, upon review, counsel finds an issue appropriate
for submission to the Arizona Supreme Court for review. See State v.
Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant has
thirty days from the date of this decision to proceed, if he wishes, with an
in propria persona motion for reconsideration or petition for review.




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




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