Opinion
No. 1 CA-CR 13-0675
06-16-2015
STATE OF ARIZONA, Appellee, v. DAVID LOPEZ GONZALES, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Robert A. Walsh Counsel for Appellee Maricopa County Office of the Legal Advocate, Phoenix By Consuelo M. Ohanesian Counsel for Appellant David Lopez Gonzales, Florence Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR 2012-124110-001
The Honorable Karen L. O'Connor, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL Arizona Attorney General's Office, Phoenix
By Robert A. Walsh
Counsel for Appellee
Maricopa County Office of the Legal Advocate, Phoenix
By Consuelo M. Ohanesian
Counsel for Appellant
David Lopez Gonzales, Florence
Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge John C. Gemmill and Judge Patricia A. Orozco joined. SWANN, Judge:
¶1 Defendant David Lopez Gonzales appeals his convictions and sentences for molestation of a child and multiple counts of sexual abuse and sexual conduct with a minor.
¶2 This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Defendant's appellate counsel searched the record on appeal, found no arguable nonfrivolous question of law, and asks us to review the record for fundamental error. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530 (App. 1999). Defendant filed multiple supplemental briefs and motions in propria persona, in which he raises several issues for appeal. Under Penson v. Ohio, 488 U.S. 75, 83 (1988), we also ordered and received supplemental briefing from defense counsel and the state regarding certain of the jury's verdicts. Related to that briefing, we granted the state's motion to suspend the appeal and remand the case to the superior court for a hearing concerning the materials that the state presented to the jury during closing argument. The superior court ruled that the materials were part of the record, and the appeal was reinstated.
¶3 We have searched the record and considered the various briefs and motions filed on appeal. We hold that the superior court's entry of judgment on one of the sexual conduct counts was error because the jury returned two directly conflicting verdict forms with respect to that offense. This error was fundamental and prejudicial. We therefore vacate Defendant's conviction and sentence with respect to that count. We otherwise affirm Defendant's convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶4 In May 2012, Defendant was indicted for numerous counts of sexual abuse, molestation of a child, and sexual conduct with a minor, related to four alleged victims: T.Y., A.Y., C.S., and R.F. Defendant pled not guilty and the matter proceeded to a jury trial. Some of the charges were dismissed during the trial. With respect to the remaining charges, the jury found Defendant guilty of multiple offenses related to T.Y. and C.S.
¶5 The evidence presented by the state at the trial showed, in relevant part, the following. Starting in 1990 or 1991, Defendant began a romantic relationship with A.A., mother to T.Y., who was then six or seven years old. Defendant began living with A.A. and her children, including T.Y., soon thereafter.
¶6 Initially, Defendant and T.Y. had a positive relationship. Their relationship changed, however, following a series of interactions that began when T.Y. was ten years old and ended when she was twelve years old. The first interaction occurred when Defendant, purportedly inspecting T.Y. for bruises after A.A. hit her, lifted T.Y.'s shirt and training bra and touched her breasts with his hands. Another time, Defendant touched T.Y.'s breasts with his hands as she lay on the family's living room couch after her mother and siblings left to purchase pizza. Later, Defendant touched T.Y.'s breasts with his hands as she sat on his lap. Another time, Defendant touched T.Y.'s breasts with his hands as he pressed up against her from behind in the family's basement. On this occasion, T.Y. could feel Defendant's erect penis against her bottom. Another time, when T.Y. was applying an analgesic muscle rub to Defendant's legs, Defendant asked her to touch his penis. He then held her hand on his penis and moved it around. On a separate occasion, in the family's bathroom, Defendant touched T.Y.'s breasts with his hands and made her touch his penis with her hands and move them. Finally, Defendant, sitting on his and A.A.'s bed, directed T.Y. to kneel on the floor and close her eyes. When T.Y. opened her eyes, she saw Defendant pulling back the skin of his penis. Defendant then forced T.Y.'s head down so that the top of her lip touched his penis.
¶7 T.Y.'s cousin C.S. lived with the family for two years, starting when she was eleven years old and T.Y. was ten years old. During this period, T.Y. observed Defendant touch C.S.'s breasts in the context of play-wrestling. C.S. testified that this happened several times. The first time, she thought that the contact was accidental, but she later came to believe that the contact was purposeful because Defendant's hand would go directly to her breasts. C.S. further testified that one day, when she was crying in a room after having argued with A.A., Defendant sucked on her breasts.
¶8 When T.Y. was in middle school, she wrote or helped to write a letter to her mother stating that Defendant had inappropriately touched her and her sister, A.Y. A.A. questioned T.Y. and A.Y. about the letter and told them that the accusations could put Defendant in jail. She also told them that she was going to confront Defendant, but when the children returned from school that day, Defendant was home and their mother did not say anything to them. T.Y. felt betrayed by A.A. and did not again raise the matter with her. Nor did she contact law enforcement, both because she was afraid of retaliation by Defendant's family members and because she did not want those individuals to view her differently. Similarly, C.S. did not disclose Defendant's conduct. According to C.S., she did not trust anybody and wanted to put the incidents behind her.
¶9 In 2002, when T.Y. was seventeen years old, she witnessed a violent altercation between Defendant and one of her uncles. When questioned at the scene, T.Y. told a detective that she had been victimized by Defendant. But when later questioned at her high school by a different detective, T.Y. recanted because she felt overwhelmed and afraid. T.Y. did not again disclose Defendant's conduct to law enforcement until 2011, after her mother asked her to come forward. When T.Y. mentioned in a forensic interview that C.S. had also been a victim, C.S. was interviewed and she too disclosed her victimization. Defendant was interviewed and denied any abuse.
¶10 For his case, Defendant testified on his own behalf and presented the testimony of multiple relatives. Defendant denied ever having touched T.Y. or C.S. in any inappropriate manner, and his witnesses denied ever having seen any such behavior. Defendant and his witnesses also disputed the timeline established by the state. According to the defense evidence, Defendant did not begin dating and living with A.A. until 1995, and even thereafter was rarely around A.A.'s children because of his work obligations. Defendant also presented evidence that A.A.'s house was constantly full of visitors, some of whom were adult males. Defendant further presented evidence that no child had ever disclosed to his relatives any inappropriate conduct by Defendant, that T.Y. had worked for Defendant as a young adult, and that T.Y. had corresponded with Defendant in a civil manner as recently as 2011. Defendant testified that he had first heard of the accusations against him in connection with the 2002 altercation, and that the accusations resurfaced in 2011 at a time when he was engaged in a divorce and custody dispute with A.A. and had started dating another woman.
¶11 After considering the evidence and the parties' closing arguments, the jury returned verdicts finding Defendant guilty of two counts of sexual abuse as to C.S., five counts of sexual abuse as to T.Y., one count of molestation of a child as to T.Y., and two counts of sexual conduct with a minor as to T.Y., but found him not guilty of one count of sexual conduct with a minor as to T.Y. The jury further found Defendant not guilty of several counts related to A.Y.
¶12 The court entered judgment on the jury's verdicts and sentenced Defendant to consecutive presumptive prison terms totaling 92 years, with credit for 490 days of presentence incarceration. Defendant timely appeals.
DISCUSSION
¶13 Defendant raises multiple issues in his pro per briefs and motions. We address each of his contentions in turn. We find reversible error only with respect to his conviction and sentence for the offense described in Count 13. I. GRAND JURY PROCEEDINGS
The counts set forth in the indictment were renumbered for the jury's consideration. Unless otherwise noted, we refer to the counts by the numbers used by the jury.
¶14 Defendant contends that he was indicted based on the state's presentation of false and perjured testimony to the grand jury. Though generally we may not review grand jury findings on appeal, we may review whether an indictment was based on perjured material testimony. State v. Moody, 208 Ariz. 424, 439-40, ¶ 31 (2004). A witness commits perjury by making "[a] false sworn statement in regard to a material issue, believing it to be false." A.R.S. § 13-2702(A)(1). Defendant contends that during the grand jury proceedings, a detective falsely testified that T.Y. and C.S. lived with Defendant at all relevant times. But nothing in Defendant's description of the allegedly perjured statements conflicts with T.Y. and C.S.'s trial testimony, and Defendant's claim that "school records and other records" would demonstrate falsity is unsupported by the record. There is no indication that the detective gave false testimony before the grand jury, much less that he knowingly gave false testimony. II. ASSISTANCE OF COUNSEL
¶15 Defendant was present and represented by counsel at all critical stages. We do not consider Defendant's claims that his trial counsel was deficient -- claims for ineffective assistance of counsel must be raised in a petition for post-conviction relief under Ariz. R. Crim. P. 32. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002). III. JURY COMPOSITION
¶16 The jury was composed of 12 jurors in accordance with A.R.S. § 21-102(A) and Ariz. R. Crim. P. 18.1(a). Defendant raised a Batson challenge during jury selection when the state exercised a peremptory strike to exclude a prospective juror with a Hispanic surname. Under Batson , a racially based peremptory strike of a potential juror is unconstitutional. 476 U.S. at 89. To challenge a peremptory strike, a defendant must first make a showing that the strike was based on race. Snyder v. Louisiana, 552 U.S. 472, 476 (2008). If the prosecutor offers a race-neutral reason for the strike, the court must then determine whether the defendant has shown purposeful discrimination. Id. at 476-77. This determination involves credibility determinations that the trial judge is in the best position to undertake, and we therefore review for clear error. Id. Here, the prosecutor offered a race-neutral reason for the challenged strike. The prosecutor explained that the juror at issue was single with no children, and that it was his strategy to select jurors who had children because they might be more empathetic toward the victims. The prosecutor also pointed out that he had not stricken other jurors with Hispanic surnames. The court did not clearly err by accepting the prosecutor's explanation.
Batson v. Kentucky, 476 U.S. 79 (1986).
¶17 Defendant contends that one of the selected jurors should have been dismissed because she fell asleep during the trial. The court questioned this juror about "nodding off" during the third day of trial. The juror denied having been asleep, and stated that she had merely closed her eyes because they were dry. On the day of closing arguments, the court and the parties agreed that they had noted no further issues with the juror, and counsel agreed that the juror should not be automatically selected as an alternate. On this record, the juror's continued participation was not error. IV. PROSECUTORIAL MISCONDUCT
¶18 Defendant contends that the prosecutor committed misconduct in a variety of ways. Prosecutorial misconduct is misconduct that "is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal." Pool v. Superior Court (State), 139 Ariz. 98, 108-09 (1984) (footnote omitted). If prosecutorial misconduct exists, it will warrant a new trial only if it "so infected the trial with unfairness as to make the resulting conviction a denial of due process" and was "so pronounced and persistent that it permeate[d] the entire atmosphere of the trial." State v. Hughes, 193 Ariz. 72, 79, ¶ 26 (1998) (citations omitted).
¶19 First, Defendant contends that the prosecutor engaged in prosecutorial misconduct by knowingly violating Brady v. Maryland, 373 U.S. 83 (1963). According to Defendant, the state failed to disclose documents -- in particular, C.S.'s Child Protective Services ("CPS") records -- that would have shown that C.S. wrongly identified the years during which she lived and interacted with him. Defendant asks that we conduct an in camera review of the records and enter an order compelling their disclosure. We deny this request and find no error. Under Ariz. R. Crim. P. 15.1 and Brady, 373 U.S. at 87, the state is required to timely disclose evidence material to guilt or punishment. When a witness's reliability may be determinative of guilt or innocence, material evidence affecting the witness's credibility must be disclosed. Giglio v. United States, 405 U.S. 150, 154 (1972). Defendant has made no showing of materiality -- though he argues that C.S. did not live with him during the years she claimed, he does not dispute that she lived with him at some point when she was less than fifteen years old, the age required to support his convictions for sexual abuse as a class 3 felony. See A.R.S. § 13-1404.
Before trial, the state moved the superior court to conduct an in camera review of CPS records to determine whether they included information requiring disclosure. The court denied the motion, declining to assume the state's obligation to make disclosure determinations. Defendant did not thereafter request disclosure under Ariz. R. Crim. P. 15.1(e) or (g).
¶20 Defendant next contends that the prosecutor engaged in misconduct at trial by eliciting false testimony and inadmissible hearsay, by asking leading questions, by showing an edited version of a video clip, and by preventing the admission of exculpatory evidence by not calling certain witnesses and by making objections when defense counsel examined witnesses. Defendant's contentions are unsupported. Nothing in the record suggests that the prosecutor engaged in misconduct, much less intentional misconduct, with respect to the evidence presented to the jury. To the extent Defendant contends that his convictions were based on false testimony, the credibility of the witnesses was for the jury to decide. State v. Cox, 217 Ariz. 353, 357, ¶ 27 (2007).
¶21 Defendant finally contends that the prosecutor engaged in misconduct when he stated in closing argument: "Their witnesses have no credibility whatsoever." A prosecutor engages in impermissible vouching when he places the prestige of the government behind the state's evidence. State v. Vincent, 159 Ariz. 418, 423 (1989). Contrary to Defendant's suggestion, the prosecutor's comment in this case did not rise to the level of vouching. V. AMENDMENT OF INDICTMENT
¶22 During trial, the court amended the indictment to conform to the evidence. Count 15 of the indictment (renumbered as Count 14 for the jury's consideration) originally alleged that Defendant committed sexual abuse by touching T.Y.'s breasts with his mouth. The court amended this count to conform with T.Y.'s testimony that Defendant had touched her breasts with his hand. Defendant contends that this was error. We disagree.
¶23 Under Ariz. R. Crim. P. 13.5(b), a charge "may be amended . . . to correct mistakes of fact or remedy formal or technical defects[,] . . . [and t]he charging document shall be deemed amended to conform to the evidence adduced at any court proceeding." "A defect is formal or technical when its amendment does not change the nature of the offense or otherwise prejudice the defendant." State v. Buccheri-Bianca, 233 Ariz. 324, 329, ¶ 17 (App. 2013). An amendment changing the body part that Defendant used to contact T.Y.'s breasts did not alter the nature of the offense or otherwise prejudice him. See A.R.S. §§ 13-1404 (sexual abuse requires "sexual contact"), -1401(2) ("'Sexual contact' means any direct or indirect touching, fondling or manipulating of any part of the . . . female breast by any part of the body . . . ." (emphasis added)). Count 15 was therefore automatically deemed amended to conform with the evidence that Defendant had used his hand to touch T.Y.'s breasts. VI. CONVICTIONS
A. Jury Instructions and Verdict Forms
¶24 Defendant contends that the jury received improper instructions and verdict forms. His primary argument is that the instructions and verdict forms were impermissibly vague because they did not specify or require the jury to consider the dates, locations, and details of each count. This argument is unfounded. The verdict forms specified the location of each offense and provided a brief description identifying each offense -- such as "mother's bedroom - 75th Avenue and Indian School address" and "defendant put his penis on victim's lips - Central and Southern address." Such statements were sufficient to distinguish the charges, thereby enabling the jury to weigh the evidence related to each -- including the conflicting evidence regarding when and where Defendant lived with the victims. Contrary to Defendant's contention, the jury was not deprived of the information necessary to consider his defenses.
¶25 Defendant next contends that the jury instructions contained several specific errors. First, Defendant contends that the instructions erroneously defined "sexual contact." According to Defendant, contact is "sexual contact" only if it is undertaken for the purpose of arousing or gratifying sexual desire. Defendant is incorrect. The jury was instructed on "sexual contact" consistent with A.R.S. § 13-1401(2), which defines the term as meaning "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," without regard to the defendant's intent.
¶26 Second, Defendant contends that the jury instructions erroneously defined the state's burden of proof. In describing the state's burden to prove Defendant's guilt beyond a reasonable doubt, the court stated: "If . . . you think there is a real possibility that [Defendant] is not guilty, you must give him the benefit of the doubt and find him not guilty." Defendant argues that the word "real" should not have been used. This argument is meritless. The instruction comported exactly with the language that our supreme court has approved and repeatedly upheld, State v. Forde, 233 Ariz. 543, 565, ¶ 86 (2014), and with the model instruction set forth in the Revised Arizona Jury Instructions ("RAJI"), RAJI (Criminal) Stand. Crim. 5b(1) (3d ed. 2013).
¶27 Third, Defendant contends that because he presented evidence on his own behalf, the jury should not have been instructed that "[t]he defendant's decision not to produce any evidence is not evidence of guilt." But even if this accurate instruction did not apply, Defendant identifies no prejudice and we discern none.
¶28 Fourth, Defendant contends that the jury should not have been instructed that they could consider evidence related to a 2002 altercation and his behavior toward his daughter, who was not named as a victim and did not testify. Defendant contends that the evidence was inadmissible hearsay, though no objection to the evidence was made at trial. Even assuming, arguendo, that the court erred by admitting hearsay statements concerning the altercation and Defendant's relationship with his daughter, that error did not rise to the level of fundamental error.
B. Verdicts
1. Verdicts for Counts 11 and 13
¶29 The forms of verdict returned by the jury indicated that the jury found Defendant not guilty of Count 11 and guilty of Count 13. But the verdict forms for these counts described the same offense: the form for Count 11 described "Sexual Conduct with a Minor ([T.Y.] to wit: defendant had victim masturbate his penis - 61st Avenue and Glendale address)," and the form for Count 13 described "Sexual Conduct with a Minor ([T.Y.] to wit: same incident as Count 11 - defendant had victim masturbate his penis)." The verdicts on Counts 11 and 13 therefore directly conflicted with one another.
¶30 The state contends that the jury understood that Counts 11 and 13 were based on separate instances of sexual conduct notwithstanding the "clerical error" in the verdict forms. The state argues that the jury must have known that the counts were different because the indictment, which was read to the jury, properly indicated the differing factual bases of the counts; the evidence at trial established multiple instances of sexual conduct with a minor at the relevant address; and the prosecutor described the multiple instances in his closing argument, both orally and in a PowerPoint presentation that he showed to the jury. To be sure, not all errors in verdict forms are fundamental and prejudicial. See State v. Graves, 188 Ariz. 24, 26 (App. 1996) (holding that verdict form's misidentification of date of alleged prior theft conviction constituted clerical error that "neither compromised Appellant's right to a fair trial nor affected the foundation of his case regarding the prior theft conviction"); State v. Roberts, 25 Ariz. App. 572, 574 (1976) (holding that verdict form's misidentification of heroin as "dangerous drug" instead of "narcotic drug" was clerical error that did not render guilty verdict insufficient because "[t]his is a case which involved a single, well-defined set of facts; one count in the charging document; instructions which dealt only with the crime charged; [and] facts which supported the conviction"). But this is not such a case. This was a lengthy, factually complicated trial in which Defendant was alleged to have committed numerous different types of sexual offenses on different occasions against different victims. On this record, it would be pure conjecture to impute to the jury an intention to substantively rewrite the plain language of the verdict forms to correctly distinguish the factual bases of Counts 11 and 13. In view of the not guilty verdict on Count 11, entry of judgment on the guilty verdict on the identical Count 13 was fundamental error that prejudiced Defendant. We must vacate Defendant's conviction and sentence for the offense described in Count 13. See 75B Am. Jur. 2d Trial § 1558 (2d ed. 2015) ("Verdicts so extremely contradictory and irreconcilable may require corrective action.").
2. Sufficiency of Evidence on Remaining Counts
¶31 Defendant contends that based on his version of the facts, he is innocent. We construe this argument as a challenge to the sufficiency of the evidence to support his convictions. The relevant inquiry is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime[s] beyond a reasonable doubt." State v. West, 226 Ariz. 559, 562, ¶ 16 (2011). "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 (1987). We do not reweigh the evidence or determine the credibility of witnesses. State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004).
¶32 We conclude that sufficient evidence supports Defendant's convictions. Defendant was convicted of five counts of sexual abuse with respect to T.Y. (Counts 6, 7, 10, 12, and 14), and two counts of sexual abuse with respect to C.S. (Counts 15 and 16). At all relevant times, A.R.S. § 13-1404(A) provided that "[a] person commits sexual abuse by intentionally or knowingly engaging in sexual contact with any person fifteen or more years of age without consent of that person or with any person who is under fifteen years of age if the sexual contact involves only the female breast," and § 13-1401(2) defined "sexual contact" as "any direct . . . 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." The state presented evidence that when T.Y. was less than fifteen years old, Defendant touched her breasts on five occasions. The state also presented evidence that when C.S. was less than fifteen years old, Defendant touched her breasts on two occasions. Defendant's convictions for sexual abuse were supported by sufficient evidence.
We do not review the sufficiency of the evidence with respect to Defendant's conviction for Count 13. See Section VI.B.1, supra.
¶33 Defendant's conviction for molestation of a child with respect to T.Y. (Count 8) was also supported by sufficient evidence. At all relevant times, A.R.S. § 13-1410(A) provided that "[a] person commits molestation of a child 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." The state presented evidence that when T.Y. was less than fifteen years old, Defendant approached her from behind and pressed his penis against her bottom.
¶34 Finally, Defendant's conviction for sexual conduct with a minor with respect to T.Y. (Count 9) was supported by sufficient evidence. At all relevant times, A.R.S. § 13-1405(A) provided that "[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," and A.R.S. § 13-1401(1) defined "oral sexual contact" as "oral contact with the penis, vulva or anus." The state presented evidence that when T.Y. was less than eighteen years old, Defendant sat on a bed and forced T.Y.'s head down so that the top of her lip touched his penis. VII. SENTENCING
¶35 At sentencing, Defendant was given an opportunity to speak and the court stated on the record the evidence and materials it considered and the factors it found in imposing sentence. Defendant contends that the prosecutor improperly argued at sentencing that the court should consider the impact of Defendant's behavior on A.Y., even though he had not been convicted of the counts that related to A.Y. Taken in context, the prosecutor's reference to A.Y. was not prejudicial, because he made clear that Defendant had been found not guilty with respect to A.Y. He stated: "This is a case where the defendant was placed in a position of trust over very young girls at a time that they needed to be protected. . . . Even though the counts are in regard to [A.Y.], the defendant was found not guilty. She was also affected by all of this. There is long-term profound impact upon these girls, as well as [C.S.]."
¶36 The court imposed legal sentences. The court properly imposed presumptive 5-year prison terms for Defendant's convictions of sexual abuse on Counts 6, 7, 10, 12, 14, 15, and 16; a presumptive 17-year prison term for Defendant's conviction of molestation of a child on Count 8; and a presumptive 20-year prison term for Defendant's conviction of sexual conduct with a minor on Count 9. See A.R.S. §§ 13-1404 (sexual abuse of child under fifteen years of age is class 3 felony punishable as dangerous crime against children), -1410 (molestation of child is class 2 felony punishable as dangerous crime against children), -1405 (sexual conduct with a minor under fifteen years of age is class 2 felony punishable as dangerous crime against children), -705 [formerly -604.01] (prescribing sentencing scheme for dangerous crimes against children). The court also properly ordered the sentences to be served consecutively, see Forde, 233 Ariz. at 547, ¶ 138, and correctly calculated Defendant's presentence incarceration credit under A.R.S. § 13-712(B). VIII. JUDICIAL BIAS
When the court entered judgment on the jury's verdicts, it mislabeled Count 7 as molestation of a child and a class 2 felony instead of sexual abuse and a class 3 felony, and mislabeled Count 8 as sexual conduct with a minor instead of molestation of a child. The labeling errors did not, however, carry over to the sentencing.
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¶37 Defendant finally contends that his convictions and sentences were the product of judicial bias. "[A] trial judge is presumed to be free of bias and prejudice." State v. Medina, 193 Ariz. 504, 510, ¶ 11 (1999) (citation omitted). To rebut this presumption, a party is required to demonstrate bias or prejudice by a preponderance of the evidence. Id. Defendant has failed to meet this burden. Further, our independent review of the record shows no evidence of judicial bias or prejudice at any point in the proceedings.
CONCLUSION
¶38 For the reasons set forth above, we affirm Defendant's convictions and sentences on all counts except for Count 13. We vacate the conviction and sentence on Count 13. We deny the following motions filed by Defendant: Motion for In Camera Review of CPS Records to Determine if the Records Contain Brandy [sic] Material, filed on June 13, 2014; Motion Respectfully Asking the Court to Order Disclosure Under Rule 15.1, filed on September 29, 2014; Motion Respectfully Asking the Court to Order Disclodure [sic] Under Rule 15.1, filed on December 16, 2014; Motion to Compel Discovery, filed in two formats on January 15, 2015; Motion to Compel Discovery Under Rule 3.8(g), filed in two formats on January 30, 2015; Motion for a Default Judgment, filed on May 8, 2015; and Motion to Amend Default Judgment, filed on June 10, 2015. To the extent that it has not previously been denied, we also deny Defendant's Motion to Lift Stay, filed on February 4, 2015.